Hobson v. Dolgencorp, LLC et al
Filing
39
ORDER granting in part and denying in part 32 Motion for Summary Judgment Signed by District Judge Daniel P. Jordan III on October 23, 2015. (EH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CAROL HOBSON
PLAINTIFF
V.
CIVIL ACTION NO. 3:14CV720 DPJ-FKB
DOLGENCORP, LLC d/b/a
DOLLAR GENERAL STORE
DEFENDANT
ORDER
This tort action is before the Court on Defendant Dollar General Store’s (“Dollar
General”) motion for summary judgment [32] pursuant to Federal Rule of Civil Procedure 56.
Plaintiff Carol Hobson has responded in opposition. The Court, having considered the
submissions of the parties, finds that Defendant’s motion should be granted as to the false
arrest/imprisonment claim but otherwise denied.
I.
Factual Background
Plaintiff Carol Hobson filed this suit against Dollar General alleging claims of
defamation, intentional infliction of emotional distress, and false arrest/imprisonment stemming
from an accusation of shoplifting. According to Hobson’s Complaint, Dollar General employee
Akedra Atkins stopped her in the store and asked to search her purse, believing it contained
stolen merchandise. Hobson refused and Atkins instructed store employee Calvin Brooks to
stand in the aisle and watch Hobson while she called the police. Approximately thirty minutes
later, a police officer arrived and performed an item-by-item search of Hobson’s purse in full
view of other shoppers, ultimately absolving her. The officer then escorted Hobson out of the
store and told her “that at the request of store management, she was banned from ever entering
the store again.” Compl. [1-2] at 3.
Embarrassed and humiliated by Dollar General’s handling of the incident, Hobson filed
this suit in state court seeking compensatory and punitive damages. Dollar General removed the
action to this Court based on diversity jurisdiction. It now moves for summary judgment as to
each of Hobson’s claims.
II.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When such contradictory facts exist, the court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic
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arguments have never constituted an adequate substitute for specific facts showing a genuine
issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002);
Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.
Analysis
Dollar General attacks Hobson’s claims using two approaches. First, it contends that
Mississippi’s shopkeeper’s privilege renders it immune from liability. Second, it insists that
Hobson cannot satisfy the elements of her claims of slander, intentional infliction of emotional
distress, and false arrest/imprisonment.
A.
Shopkeeper’s Privilege
Mississippi Code Section 97-23-95 provides “a shield from civil liability for merchants
who question suspected shoplifters, so long as the questioning is done ‘(1) in good faith, (2) with
probable cause, and (3) in a reasonable manner.’” Scott v. Spencer Gifts, LLC, No.
1:14–CV–00037–SA–DAS, 2015 WL 4205242, at *3 (N.D. Miss. July 10, 2015) (quoting Boone
v. Wal-Mart Stores, Inc., 680 So. 2d 844, 847 (Miss. 1996)). The burden of proof lies with the
party asserting the privilege. Id. And a finding that the shopkeeper’s “questioning was
conducted unreasonably will alone be sufficient to defeat” the privilege. Id.
In J.C. Penney Co. v. Cox, the shopkeeper approached a suspected shoplifter and ordered
her to open her purse and display its contents on the steps of the store—in front of other
customers—in an attempt to reveal stolen merchandise. 148 So. 2d 679, 681 (Miss. 1963). The
Mississippi Supreme Court affirmed a jury verdict against the shopkeeper, concluding “that the
appellant exceeded [its] authority in this case.” Id. at 684. The Court observed that the privilege
“does not give the merchant the right to embarrass or harass individuals suspected, in public
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view of every one, in a rude manner.” Id. at 685. In reaching that conclusion, the Cox court
contrasted Scott-Burr Stores Corp. et al. v. Edgar, 177 So. 766 (Miss. 1938), where the
shopkeeper questioned the suspected shoplifter in private. See Cox, 148 So. 2d at 683.
Here, the facts resemble Cox, not Edgar. According to Hobson, Atkins “yelled . . . ‘stop
her’” and then accused Hobson of putting merchandise in her bag. Hobson Dep. [34-1] at 20.1
An item-by-item search of Hobson’s purse was later performed in the middle of the aisle, and
once exonerated, Hobson was escorted out of the store and told not to return. These events
occurred in the store and in full view of other customers who, according to Hobson, were
“looking at [her].” Id. at 22. Hobson felt embarrassed and humiliated by all of this and would
have preferred for the exchange to take place in a back room, where she “would have had a
better chance of nobody seeing [her].” Id. at 27.
Accordingly, the Court finds a question of fact as to whether Defendant exceeded the
shopkeeper privilege. See Scott, 2015 WL 4205242, at *3 (finding genuine factual dispute as to
whether shopkeeper’s questioning was conducted in reasonable manner); Boone, 680 So. 2d at
848 (finding jury question whether questioning in front of store was reasonable); Sw. Drug
Stores of Miss., Inc. v. Garner, 195 So. 2d 837, 839 (Miss. 1967) (finding jury question where
accusor was allegedly loud and rude, and noting that privilege may be lost “by the manner of its
exercise, although belief in the truth of the charge exists”). Summary judgment based on the
shopkeeper’s privilege is denied.
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CMECF pagination.
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B.
Hobson’s Claims
1.
Slander2
Hobson contends that Dollar General committed slander by falsely accusing her of
stealing in a rude and loud manner such that other customers in the store overheard. To succeed,
Hobson must prove the following elements: “(1) a false and defamatory statement concerning
the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting at least to
negligence on the part of the publisher; and, (4) either actionability of the statement irrespective
of special harm or the existence of special harm caused by the publication.” Blake v. Gannett
Co., Inc., 529 So. 2d 595, 602 (Miss. 1988). Dollar general attacks Hobson’s case on the first,
second, and fourth elements, but the arguments as to the first and fourth tend to merge.
Starting with the existence, vel non, of a false and defamatory statement, Dollar General
observes that its employees never called Hobson a “thief” or used the word “stealing.” Def.’s
Mem. [33] at 4. In its Reply, Dollar General explains that the absence of such direct accusations
is critical because Hobson has not shown special harm and must therefore show slander per se.
Def.’s Reply [37] at 2. While special harm may be lacking, the Court finds a jury question as to
whether the words used constitute slander per se.
Under Mississippi law, certain “slanders [ ] are actionable per se and need no special
harm.” Speed v. Scott, 787 So. 2d 626, 632 (Miss. 2001) (en banc) (citation omitted). Among
the recognized categories of statements that constitute slander per se are “[w]ords imputing the
guilt or commission of some criminal offense involving moral turpitude and infamous
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Plaintiff’s Complaint lists her cause of action as “Defamation,” and the parties properly
analyze the claim as an oral defamation, also known as “slander.” Compl. [1-2] at 4; see Speed
v. Scott, 787 So. 2d 626, 631 (Miss. 2001).
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punishment.” Id. This standard does not, as Dollar General suggests, require magic words like
“thief” or “stealing.” The question instead is whether the record, when viewed in a light most
favorable to Hobson, would allow a jury to conclude that the “words imput[ed]” guilt or the
commission of a crime. Id.
The words allegedly used in this case would allow that conclusion. According to
Hobson, Atkins “yelled . . . ‘stop her’” to a co-worker, and then said in a loud voice, “I saw you
put it in your bag.” Hobson Dep. [34-1] at 20. When Hobson refused to allow a search, Atkins
allegedly stated, “Well, I’m calling the police,” to which Hobson responded, “Well, call the
police.” Id. Even Akins agreed in her deposition testimony that when she approached Hobson
in the store, she was “accusing her of having placed store items in her purse.” Atkins Dep. [341] at 10. She also testified that she called Dollar General’s security company from a direct line
positioned at a busy cash register, id. at 11–14, and that she reported that she “had a young lady
that was shoplifting.” Id. at 13. The fact that Atkins never said the words “thief” or “stealing” is
not fatal to Hobson’s slander claim; summary judgment is inappropriate on this basis.
Dollar General next contends that the shoplifting accusation is not slander per se because
it would not result in a felony offense. Def.’s Reply [37] at 3. The Honorable Sharion Aycock
rejected this same argument in Scott, noting that “opinions from this Court and the Mississippi
Supreme Court make clear that false accusations of shoplifting rise to the level of slander per
se.” 2015 WL 4205242, at *4 (collecting cases). Judge Aycock was correct. As the Mississippi
Supreme Court stated in Garner, “To accuse one of stealing is actionable per se, and no
testimony is required to show the meaning of the words.” 195 So. 2d at 841; see also Boone,
680 So. 2d at 848 n.2 (reversing verdict in favor of the defendant merchant and stating, “[w]e
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find it noteworthy that many of the allegedly stolen items in our defamation cases deal with []
minor sundries”).
Dollar General next attacks the publication prong by arguing that Hobson has no proof its
employees made any false statement to a third party. This element is admittedly a closer call, but
Hobson did testify that Atkins “yelled . . . ‘stop her’”; that other shoppers were in the immediate
vicinity; and that other shoppers were looking at Hobson during the incident. Hobson Dep. [341] at 20, 22, 24–25. More specifically, Hobson recalled hearing other customers nearby and
commented, “I don’t know who all on the other aisles heard it. She was very loud. I mean, I’m
sure her voice carried over the store.” Id. at 28. Atkins confirmed that the store was busy, and
that she called security from a phone line at a busy cash register. Atkins Dep. [34-1] at 11–14.
Finally, Hobson added that the customers at that register were “looking at” her during the
incident. Hobson Dep. [34-1] at 23.
In Garner, the defendant storekeeper appealed an adverse jury verdict, arguing in part
that no witnesses testified as to their understanding of what they heard. 195 So. 2d at 840. The
Mississippi Supreme Court rejected the argument, finding a jury question as long as “the facts
and circumstances would entitle the jury to believe that [other customers] heard and understood
the same.” Id. at 841 (citation omitted).
There is sufficient circumstantial evidence in this case that other customers heard and
understood what was said. Id.; see also Scott, 2015 WL 4205242, at *2 (finding the statement
that “if he don’t have it then she’s got it” to a suspected shoplifter in a back storeroom in front of
a security guard satisfied the publication element). Summary judgment is denied as to the
slander claim.
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2.
Intentional Infliction of Emotional Distress
To maintain a claim for intentional infliction of emotional distress, Dollar General’s
conduct must be “wanton and willful and . . . evoke outrage or revulsion.” Speed, 787 So. 2d at
630 (quoting Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995))
(internal quotation marks omitted). “The inquiry focuses on the conduct of the defendant rather
than the physiological condition of the plaintiff.” Jenkins v. City of Grenada, Miss., 813 F.
Supp. 443, 446 (N.D. Miss. 1993). And, as Hobson concedes, “[m]eeting the requisite elements
for a claim for intentional infliction of emotional distress is a tall order in Mississippi.” Id.; see
also Scott, 787 So. 2d at 630.
Considering the evidence in the light most favorable to Hobson, the Court finds that
questions of fact also preclude summary judgment on this claim. Atkins and Brooks confronted
Hobson in the aisle of the Dollar General store, accused her of placing items in her purse with
the goal of shoplifting, and demanded that she turn over her purse. Hobson Dep. [34-1] at 20.
While waiting for the police to arrive, Atkins instructed Brooks to “watch” Hobson, leaving
them standing in the aisle for close to thirty minutes. Hobson Dep. [36] at 3. The police
conducted an item-by-item search of her purse in the aisle, removing each of Hobson’s
possessions and asking store employees, “Is this yours?” Hobson Dep. [34-1] at 21. Once the
police finished the inventory, Hobson asked if she could complete her intended purchase. Id. at
22. Despite the fact that Hobson had not shoplifted, Dollar General refused and had her escorted
from the store, past other shoppers, with instructions not to enter the store ever again. Id.
All of this took place within the store, in full view of other patrons. Id. At no time did
employees offer to conduct the search in the back room. Id. at 27. Hobson testified that
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customers in the store and at the cash register were looking at her. Id. at 22–23. She was
embarrassed and afraid someone might record the incident and publish the video on social
media. Id. at 22–23. After leaving the store, she pulled her car into a nearby parking lot and
broke down in tears. Id. at 23.
While proving a claim of intentional infliction of emotion distress is a “tall order” and
these facts may not ultimately support such a claim, the Court nevertheless finds sufficient
evidence exists to present the claim to a jury. See Gamble v. Dollar General Corp., 852 So. 2d
5, 12–13 (Miss. 2003) (finding jury issue where defendant’s handling of suspected shoplifter was
“confrontational, physical, demeaning, and embarrassing”). Summary judgment on Hobson’s
intentional-infliction-of-emotional-distress claim is denied.
3.
False Arrest/Imprisonment
In its motion for summary judgment, Dollar General contends that Hobson cannot make
out a claim for false arrest or imprisonment because she was never arrested, detained, or
restrained. In response, Hobson argues against the application of the shopkeeper’s privilege, but
fails to substantively address this claim. The Court concludes that Hobson has not met her
burden under Rule 56(c).
To show false imprisonment on the part of Dollar General, Hobson must prove that she
was: “(1) detained and (2) that such detainment was unlawful.” Mayweather v. Isle of Capri
Casino, 996 So. 2d 136, 140 (Miss. Ct. App. 2008).3 “The circumstances merely that one
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“False arrest is an intentional tort, arising when one causes another to be arrested falsely,
unlawfully, maliciously and without probable cause.” City of Mound Bayou v. Johnson, 562
So.2d 1212, 1218 (Miss. 1990). Because Hobson was not arrested, her claim is better described
as one for false imprisonment. Moreover, because the elements of false arrest and false
imprisonment are essentially identical, the distinction is inconsequential. See Hart v. Walker,
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considers himself restrained in his person is not sufficient to constitute false imprisonment unless
it is shown that there was a reasonable ground to have believed defendant would resort to force if
plaintiff attempted to assert her right to freedom.” Id. at 141 (quoting Martin v. Santora, 199 So.
2d 63, 65 (Miss. 1967) (internal quotation marks omitted)).
Dollar General submits that Hobson cannot show actual detention. Hobson declined
Atkins’ request to search her purse and told her to go ahead and call the police. As a result,
Hobson waited until the officer arrived. Dollar General points out that Hobson never tried to
leave the store and she was never told she could not leave. At most, Hobson testified that Atkins
told Brooks to “watch her” and “[d]on’t let her move,” Hobson Dep. [34-1] at 21, but even if she
was told she could not leave, the “submission to the mere verbal direction of another,
unaccompanied by force or by threats of any character, cannot constitute a false imprisonment . .
. .” Martin, 199 So. 2d at 65; see Mayweather, 996 So. 2d at 141 (noting that plaintiff’s
“testimony that one of the officers sat in front of the door while she was questioned is not
enough to show a reasonable apprehension of force, especially considering that she willingly
accompanied security to the interview room and never attempted to or asked to leave”).
Ultimately, Hobson offers no substantive response to Dollar General’s arguments
regarding detention. Because Hobson has not come forward with evidence to counter Dollar
General’s proof that she was not detained, summary judgment as to her false-imprisonment
claim is appropriate.
720 F.2d 1436, 1439 (5th Cir. 1983) (setting out the elements of “false arrest or imprisonment”).
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IV.
Conclusion
The Court has considered all arguments advanced by the parties; those not specifically
addressed would not have changed the Court’s holding.
Based on the foregoing, the Court finds that Dollar General’s motion should be granted
as to Plaintiff’s false arrest/imprisonment claim and denied as to Plaintiff’s slander and
intentional-infliction-of-emotional-distress claims.
SO ORDERED AND ADJUDGED this the 23th day of October, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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