Bailey et al v. Smith et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part granting in part, denying in part 38 Motion for Partial Summary Judgment. Granted except as to the false imprisonment/unlawful detainment claims of plaintiffs Johnson and R.J., as set out herein. Signed by District Judge Tom S. Lee on 8/4/17 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CHARLES BAILEY, CATANZA BAKER,
STACY CASTON, R.J., A MINOR,
BY AND THROUGH HER NATURAL MOTHER
AND NEXT FRIEND, TOMMIECINA JOHNSON;
TOMMIECINA JOHNSON; JOHNITA SMITH; AND
CIVIL ACTION NO. 3:16CV256TSL-RHW
ADVANCE AMERICA, CASH ADVANCE CENTERS, INC.;
ADVANCE AMERICA, CASH ADVANCE CENTERS OF
MISSISSIPPI, LLC; EXPRESS CHECK ADVANCE OF
MISSISSIPPI, LLC; TERRENCE ("TERRY") SAUBER;
TONI JONES; and JOHN DOES A, B, C, D and E
MEMORANDUM OPINION AND ORDER
This cause is cause is before the court on the partial
summary judgment motion of defendants Advance America, Cash
Advance Centers, Inc.; Advance America, Cash Advance Centers of
Mississippi, LLC; Express Check Advance of Mississippi LLC
(collectively Advance America); and Terrence Sauber.
Charles Bailey, Catanza Baker, Stacy Caston, R.J., a minor, by and
through her natural mother and next friend, Tommiecina Johnson,
Tommiecina Johnson, Johnita Smith and Laquana Winters have
responded in opposition to the motion.
The court, having
considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes the motion should
be granted in part and denied in part.
Plaintiffs filed this lawsuit alleging claims for assault,
unlawful detainment/false imprisonment1, and intentional
infliction of emotional distress, among others, against Terrence
Sauber and Advance America2 relating to events alleged to have
occurred on March 19, 2015 at the Express Check Advance branch in
Vicksburg, Mississippi, a pay day/title loan business owned and
operated by Advance America.
On the afternoon of March 19, 2015,
Terry Sauber, a regional loss prevention officer for Advance
America, accompanied by Toni Jones, a divisional director of
operations for Advance America, went to the Vicksburg store to
conduct a loss prevention investigation.
Earlier that day, Sauber
had received an email from corporate headquarters expressing
concern that over a period of several months, deposits from the
Vicksburg store were routinely made two to three days late,
suggesting possible impropriety.3
Sauber was asked to
Plaintiffs have alleged separate counts for “false
imprisonment” and “unlawful detainment.” Defendants point out
that under Mississippi law, these are not separate torts.
“Unlawful detention" is the second element of a false imprisonment
claim. See Morgan v. Greenwaldt, 786 So. 2d 1037, 1042 (Miss.
2001)(observing that elements of false imprisonment are “detention
of the plaintiff and the unlawfulness of such detention.”).
Plaintiffs have also alleged claims against Advance
America for negligent hiring and retention, negligent supervision
and training and negligent entrustment.
According to Jones, company policy required that the
day’s receipts must be deposited by noon the following day in
order to keep the amount of money in the store to a minimum and to
Sauber promptly contacted Jones to arrange for the
two of them to go to the Vicksburg store.
Their plan was to ask
the manager if the store was going to balance, that is, if the
cash on hand in the store would equal the amount the store’s
computer records showed should be present.
If the manager said
yes, then Sauber and Jones would do a cash count to determine
whether all the money was present and accounted for.
When Sauber and Jones arrived at the store, three employees
were present, Johnita Smith, Laquana Winters, and Stacy Caston.
The store’s “banker,” Catanza Baker, was supposed to be there but
was out; she was called and told to return to the store, and she
Also present at the store were customers Charles Baker and
Tommiecina Johnson and Johnson’s minor daughter, R.J.
spoke with the manager, Baker, who stated that the store would
Plaintiffs allege that Sauber then proceeded to
“intentionally and unlawfully detain [them] by locking the doors
to the business and intentionally and unlawfully put[ting] the
plaintiffs in fear of eminent, serious bodily harm by exhibiting
aggressive and loud behavior.”
This went on, according to
reduce the temptation to employees of “maybe borrowing the money
and paying it back later.” Sauber testified that late deposits
can indicate that a store is “floating deposits,” meaning an
employee withholds some cash from the loan payments received on
one day and does not make a deposit for that day, which allows the
employee to misuse the cash. The employee then takes cash from
the next day's loan payments and applies that cash to the prior
day's receipts and makes a late deposit for the prior day.
plaintiffs, for approximately two hours, while Sauber and Jones
did a count of all the money in the store.
Ultimately, all the
money was accounted for; the store did balance and Sauber left the
Defendants have now moved for summary judgment on plaintiffs’
claims for false imprisonment/unlawful detainment and assault.
Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine dispute of material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
At the summary judgment
stage, the court must view the evidence in the light most
favorable to the non-movant, and it may not make credibility
determinations or weigh the evidence.
Abarca v. Metro. Transit
Auth., 404 F.3d 938, 940 (5th Cir. 2005); Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d
Once the moving party shows there is no genuine
dispute as to any material fact, the nonmoving party “must come
forward with specific facts showing a genuine factual issue for
Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635
F.3d 685, 690 (5th Cir. 2011).
To succeed on a claim of false imprisonment, a plaintiff must
show that she was “detained and (2) that such detainment was
Mayweather v. Isle of Capri Casino, 996 So. 2d 136,
140 (Miss. Ct. App. 2008).
In Martin v. Santora, 199 So. 2d 63
(Miss. 1967), the Mississippi Supreme Court, considering an
employee’s claim for false imprisonment based on allegations her
employer required her to accompany the police to the police
station to have her fingerprints taken in connection with a
burglary investigation, stated:
It is essential to a cause of action for false
imprisonment that there shall have been some detention
or restraint of the person of the plaintiff. ... On the
other hand, submission to the mere verbal direction of
another, unaccompanied by force or by threats of any
character, cannot constitute a false imprisonment, and
there is no false imprisonment where an employer
interviewing an employee declines to terminate the
interview if no force or threat of force is used, and
false imprisonment may not be predicated on a person's
unfounded belief that he was restrained against his
will. In order to constitute an unlawful imprisonment,
where no force or violence is actually employed, the
submission of the plaintiff must be to a reasonably
apprehended force. The circumstances merely that one
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.
Martin, 199 So. 2d at 65.
Thus, plaintiffs can succeed on their
claim of false imprisonment only if they present proof that Sauber
used “force or violence” to detain them or that they had
reasonable grounds for believing he would have used such force to
detain them had they attempted to leave.
See also Nelson v.
Nationwide Mut. Ins. Co., No. 3:11-CV-223-DPJ-FKB, 2012 WL 393242,
at *3 (S.D. Miss. Feb. 6, 2012) (“Detention requires proof that
the defendant employed ‘force or violence,’ or that the plaintiff
submitted upon ‘reasonably apprehended force.’”) (citing Martin);
see also Hobson v. Dolgencorp, LLC, 142 F. Supp. 3d 487, 493-94
(S.D. Miss. 2015)(even if employee under questioning by employer
relating to alleged shoplifting was told she could not leave, her
submission “‘to the mere verbal direction of another,
unaccompanied by force or by threats of any character, cannot
constitute a false imprisonment....’”); Mayweather, 996 So. 2d at
141 (casino patron’s testimony that officer sat in front of door
when she was questioned relating to theft of another customer’s
wallet was not enough to show reasonable apprehension of force,
“especially considering that she willingly accompanied security to
the interview room and never attempted to or asked to leave”).
Defendants seek summary judgment on plaintiffs’ false
imprisonment claims because they cannot prove that Sauber detained
Plaintiffs maintain that by Sauber’s own admission, he
“locked the doors to the building” so that he could “get control
of everything”; this, they say, plainly establishes that he
intended to detain plaintiffs and that he did physically detain
them by locking the doors, and they claim that he then used fear,
intimidation and the prospect of physical force to keep them from
They submit that based on Sauber’s actions, they had
every reason to believe that he would have used force against them
had they tried to assert their freedom.
“Assault occurs where a person ‘(a) ... acts intending to
cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a
contact, and (b) the other is thereby put in such imminent
Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991)
(quoting Restatement (Second) of Torts § 21 (1965)).
“An act is
done with the intent of putting the other in apprehension of an
immediate harmful or offensive contact if it is done for the
purpose of causing such an apprehension or with knowledge that, to
a substantial certainty, such apprehension will result.”
v. Wilson, 5 So. 3d 442 (Miss. Ct. App. 2008) (quoting Restatement
(Second) of Torts § 21, cmt. D).
be objectively reasonable.
Moreover, the apprehension must
Thus, for example, the Fifth Circuit
found there was no triable issue of assault in DePree v. Saunders,
588 F.3d 282 (5th Cir. 2009), where the defendant’s alleged actions
of “aggressively walk[ing] toward [DePree], yelling at [him],
repeatedly referring to [him] as a ‘son-of-a-bitch,’ and shaking
papers in his face” could not have created a reasonable
apprehension of imminent, harmful contact.
Id. at 291.
Defendants seek summary judgment on plaintiffs’ assault
claims on the basis that plaintiffs cannot prove that Sauber
intended to make harmful or offensive contact with them or that
they had reason to believe and actually believed that he intended
to have such harmful or offensive contact with them.
submit that the totality of Sauber’s acts and behavior shows that
he intended to put them in apprehension of immediate harmful or
offensive contact, and he obviously knew that such an apprehension
would almost certainly result.
The court, with these legal principles and the parties’
arguments in mind, considers the evidence4 to determine whether
any of the plaintiffs has created an issue for trial on either of
The evidence in this case consists primarily of the
testimony of plaintiffs, Sauber and Toni Jones during the criminal
trial held in Vicksburg Municipal Court on criminal affidavits for
assault filed against Sauber by plaintiffs Baker, Smith, Winters,
Caston and R.J., a minor. Tommiecina Johnson also claimed to have
filed a criminal affidavit against Sauber, but no such affidavit
could be found and her putative claim was dismissed. Ultimately,
Sauber was found not guilty on all the criminal charges.
Defendants flatly deny plaintiffs’ allegations. They
agree that Sauber locked the door to the building while the money
was being counted. However, both Sauber and Jones testified that
the doors were locked as a security measure, not so much to keep
people in as to keep others out, since they had large amounts of
Catanza Baker was the manager of the Vicksburg Express Check
store on March 19, 2015.
According to her testimony, when Sauber
first arrived, he introduced himself to her, told her he had
concerns about the store and asked whether the safe was going to
When she said it would, he responded, “Don’t lie to me,”
and proceeded to tell her that if she admitted up front that the
safe would not balance, he would set her up on a payment plan, but
that if she did not agree to that and her safe did not balance,
she would be “leaving out of here in handcuffs today.”
walked to the front of the store, locked the door and placed
himself squarely in front of the door with his arms crossed.
Baker testified that she felt Sauber “would have did [her] bodily
harm” if she had “tried to walk out that door.”
However, as to
the basis for this fear, she offered only that she was “just
afraid of his whole demeanor. ... the way he was acting to me, he
cash out and plainly visible. Sauber denied that he stood in
front of the door, blocking the exit, or that he prevented anyone
from coming or going, as necessary; and he denied that he said or
did anything threatening or that would have caused any of the
plaintiffs to fear he would harm them. Jones similarly testified
that while the door was locked, she or Sauber unlocked the door to
let employees and customers in or out, as necessary. Sauber, she
claimed, did not stand in front of or otherwise block the door,
and none of the employees or customers was prevented from leaving.
She said, moreover, that Sauber never raised his voice and did not
threaten anyone or act in a menacing manner. However, the court,
on this motion for summary judgment, is bound to consider the
evidence in the light most favorable to the plaintiffs.
was just so aggressive.”
She testified she did not ask to leave
because she was afraid:
I wasn’t going to say anything to Mr. Sauber because he
was very hostile. ... He had turned red. His – his
whole demeanor – standing up there aggressive. And he
had already threatened me that I’m going to jail, so I
was too afraid to say anything to him. ... This man was
so aggressive with me and he wouldn't let us out that
store. I was literally terrified of this man. ... How
am I going to approach someone who has already
threatened me that if a dime is missing, I’m going to
jail and is standing in front of a door, blocking the
door where I can’t even walk outside.
Baker admitted Sauber never verbally threatened her with physical
harm; yet she claimed she felt threatened by
his whole demeanor – and then when he went and stood by
that door – I mean, I’m not going anywhere. Let’s say I
just wanted to walk outside and get a breath of fresh
air, that right was denied me because you’re standing –
you’ve not only locked the door, you have stand – stood
right in front of the door with your arms crossed in an
Baker testified that Sauber told them they were not leaving until
the money was counted.
And while Baker testified that Sauber
“would not let me leave of my free will,” she admitted she never
asked to leave, at least while the money was being counted.
agreed, moreover, that since she was the store manager, she wanted
to stay at the store while the money was being counted.
she testified that after the money had been counted and everything
was accounted for, she asked for permission to leave to take her
son to a doctor’s appointment and was allowed to leave.
In the court’s opinion, Baker’s testimony, accepted as true,
is insufficient to establish that she was unlawfully detained.
Baker does not claim that Sauber used force to detain her; and
while she claims that she considered herself detained, that is not
sufficient to establish her claim.
Rather, she must come forward
with evidence which shows that she had an objectively reasonable
basis for believing Sauber would have used force if she had
attempted to leave.
See Martin, 199 So. 2d at 65.
testimony falls short of this standard.
Baker admits Sauber never
verbally threatened to harm her if she tried to leave.
only that she found his “demeanor” to be threatening because he
locked the door and stood in front of it with his arms crossed “in
an aggressive manner,” he “turned red” and was “hostile” – though
she does not suggest what specifically made her view him as
This is insufficient to create a jury issue on Baker’s
claim that she was unlawfully detained, particularly when
considering her further acknowledgment that (1) she wanted to
remain at the store while the money was being counted; and (2)
when she did ask to leave to take her son for an appointment,
Sauber allowed her to go.
Baker’s testimony is likewise insufficient to sustain her
claim for assault.
Nothing in her testimony provides any basis
for concluding that she had a reasonable apprehension of imminent,
Johnita Smith, though on duty, was not present at the store
when Sauber first arrived.
When she did return to the store after
being called and told to do so, the door was locked.
in, and the door was locked behind her.
She was let
Toni Jones, her district
manager, told Smith to immediately count down her register.
testified that Sauber stood behind her as she did so.
I was nervous. I was shaking. ... He was just standing
there looking. He was real red-looking, and you know,
he was looking intimid – like – to me, was put me in
fear, because he just scared me. His whole face was
red, and I didn’t really know what was going on.
She stated that after she counted her register down, Sauber was
just standing by the door.
And she “really wanted to leave, in a
sense,” because she was nervous and scared; “[b]ut he was standing
at the door, like this (indicating) where no one could move.
know, you was like – you couldn’t move, you wasn’t going to go
Smith testified that she wanted to go get her cell
phone to call her family, but her phone was in her purse in the
back of the store and Sauber was blocking the exit from her work
When asked if Sauber said anything to her, she
Not really. It was more his demeanor, how red he got in
the face, how he was just blocking ... the exit and you
know, it was – it was – it’s how big he was. You know,
he was just – I don’t know. He was just so – he was
just a large man and standing over you and blocking your
– your entry way –
Asked if she thought he was going to physically assault her, she
I almost did, because how red he turning in the face.
... I mean, I wouldn’t know the reason why if had have,
but I was just intimidated. I guess I was just scared.
... I almost thought he could attack me because the way
... he got red in his face like that ... [H]e was just
very red in the face; he was very intimidating. And
honestly, I was scared. ... Because I didn’t know what
was going on.
She reiterated this, stating:
So to me, you know, it was just like I really -- I
really wasn't -- I really didn't know who he was, you
know. I just knew he was a big guy that was standing
over me and he was red in the face, and I didn't know
exactly who he was. ....
Smith testified that at the time of this incident, she had
been working for Advance America for three years; and during that
time, there had been occasions when she had to count the cash in
her drawer; but usually, they would take the cash drawer to the
back and count it with a manager or someone else being present to
verify the count.
As to the events of March 19, 2014, she stated:
We never did that procedure before. We never had no one
to come in, tell you to take out your money right then
and there, especially, you know, right in front of
customers there. We just never did that procedure
before, and it made me nervous. It made me scared. I
didn't know what was going.
However, she stated that Sauber did not approach her in an
aggressive manner; he was “just standing there.”
agreed that Sauber and Jones had concerns about deposits that were
not being made on time; that the cash count was conducted due to
those concerns; that since there were large amounts of cash that
were being counted at the front of the store, then it was
reasonable to lock the door as a security measure.
agreed that her cash count had to be verified, so Sauber had a
legitimate reason to stand by her and her co-workers as they were
counting their drawers.
And she stated that Sauber never said
anything to her or approached her in an aggressive manner.
intimidated her and put fear in her, she said, was “the manner
that he stood in” and the “aggressiveness” of his manner, i.e.,
how he was “red in the face” and not speaking in a calm tone.
Although she acknowledged that he never threatened to physically
harm her, she stated:
[H]is demeanor made you feel like that. Because the –
the height, the redness, how he just crossed his arm,
never said nothing, just looked at you like, “I could
bite your off [sic] if you move.” That’s the way I
In the court’s opinion, no reasonable jury could find
defendants liable for false imprisonment or assault based on
Smith’s testimony regarding the events of March 19, 2015.
admitted that Sauber did not use force to keep her in the store
and, like Baker, although she asserts rather vaguely that his
“demeanor” made her feel that she was at risk of physical harm if
she tried to leave, she offered no objectively reasonable ground
for a belief that Sauber would have resorted to force if she had
attempted to leave.
According to Smith, Sauber never said
anything to her, threatening or otherwise; all he did was “just
The facts that he was a “big guy,” that he was
“red in the face,” that he stood in front of the door with his
arms crossed, and that she felt intimidated by his manner, is not
enough to sustain her claim for false imprisonment or to support a
finding that she reasonably apprehended imminent, harmful contact
by Sauber, as is essential to her claim for assault.
Winters testified that shortly after Sauber arrived at the
store, she went outside with a customer, Tommiecina Johnson, to do
an inspection on Johnson’s vehicle.
While she and Johnson were
outside, she heard the door lock and saw Sauber turn the “Open”
sign to “Closed.”
When she finished outside, Sauber opened the
door to let her and Johnson in, and then locked it behind her and
began counting the drawers.
Winters testified that she was
“already nervous because we was being locked in the store,” but
she was “really scared” because she knew her drawer was $50 short.
When she told Sauber her drawer was going to be short $50, he told
her he was “not worrying about that.”
After she finished with her
customer, he called her and employee Stacy Caston aside and told
them there was “something fishy going on” but it had nothing to do
Winters testified that when he said this, “[h]e had,
like, this loud aggression.”
Sauber then called her to the side
to get her to help him count some money; he told her, “Don’t ever
let nobody count your money while you’re not standing there.”
After helping Sauber, Winters returned to her desk, “still, like,
kind of shaking and shivering, because we’re still locked in the
store,” and “nervous” because she did not know “why we got locked
in the store.”
Winters believed that Sauber was “trying to
intimidate all the ladies in the store.”
She stated: “I just feel
like he was yelling and hollering at us like we had did something
wrong, like we was stealing or we was doing something that we
didn't have any business -- and everything was there.”
whether she feared that she was going to be physically harmed, she
I didn't -- I didn't -- my mind was -- I'm -- I don't
say no physical, but I was really intimidated. I was
scared. I was really scared. ... He just was big and
aggressive. I didn't know what was going to happen.
Asked if she thought he was going to attack her, she testified:
I can't say he was going to attack me. I don't know if
he would or he wasn't. I just -- it was just -- I was
scared. I was really scared. ... I don't know what he
was do -- he's a big, aggressive man. If he attack me,
if he don't attack me. It's -- I -- I don't know. It's
just vice versa, he could attack me, he couldn't attack
As to whether he threatened her verbally, she stated:
He didn’t never – well, I’m not going to say he never
threatened me verbally. He did tell us that nobody was
leaving the store until our money was accounted for.
Winters testified further that she never asked to leave, but that
she “didn’t feel like [she] had no other choice” than to stay
until the money was counted.
She agreed, though, this occurred
during work hours and it was her job to be there.
Although Winters claimed she was nervous and scared about
being locked in the store, and although she described Sauber as a
“big, aggressive man,” she did not testify that he detained her by
force or that she believed he would harm her if she tried to leave
and she did not offer any facts which would support a finding that
any such belief would have been objectively reasonable.
did not purport to have perceived any threat of imminent harmful
or offensive contact by Sauber.
Accordingly, her claims for false
imprisonment and assault fail as a matter of law.
Stacy Caston testified that when Sauber arrived at the store,
she was working with a customer, Charles Bailey, on reworking a
Bailey went outside to get some papers, and while he was
gone, Sauber locked the door.
According to Caston, Bailey
returned to the store and asked to be let back in to finish his
Sauber let him in, but then “got real aggressive, he
was – he had turned red in the face....”
felt threatened and I feared.
Caston stated she “just
I’m like, ‘Why are we being locked
down?’” Sauber, she testified, said no one could leave until all
the money was counted in the store,
and he propped against the door. So we wasn’t allowed
to leave. And that – I was scared and I feared for my –
I feared, because – [f]eared for my life, because I
didn’t know what was going on.
Caston stated she thought she was safe as long as she did not try
to leave, but, asked whether she thought he was going to attack
her if she tried to get out of the door, she responded:
The way he was looking and the way he propped up at that
door and, like, wasn’t nobody getting out that door,
yes. Yeah, I think he was going to – Yes, he was going
to stop me any means necessary.
Caston acknowledged that all this occurred during her regular work
hours and that during her regular work hours, she stays at the
She further agreed that to stay and count the money was
her job as an employee.
In addition, while Caston testified that
she did not try to leave because she was scared, she acknowledged
that at one point, she did ask Sauber to go outside to do an
evaluation for a customer and was allowed to do so.
herself out, locked the door behind her, did the evaluation and
then let herself and the customer back in with her key.
The evidence does not support a finding that Caston was
assaulted or unlawfully detained.
Caston claimed she “feared for
her life” yet she did not point to anything specific Sauber said
or did to engender such fear.
She testified only that he was
“real aggressive”, that he was “propped against the door” and that
he “turned red in the face.”
Moreover, she admitted not only that
she felt safe as long as she did not try to leave, but that Sauber
did actually allow her to leave the building.
accepted as true, will not sustain a claim for assault or for
Charles Bailey testified that when he arrived at the Express
Check location on March 19, 2015 to transact business, the door
He began speaking with Stacy Caston at the counter
about a loan.
Shortly after entering the store, Sauber came from
the back of the store and locked the door.
he continued to work with Caston.
Bailey testified that
At one point, when he needed to
go to his vehicle to get his glasses, he asked Sauber to open the
door, and Sauber did.
When he got ready to reenter the store,
Sauber let him back in.
After Bailey finished handling his
business, Caston unlocked the door and let him out.
locked the door again and was standing by the door as Bailey drove
According to Bailey’s testimony, Sauber never said anything
to him; and, he was allowed to come and go freely. Clearly, based
on this testimony, Bailey has no cognizable claim for false
imprisonment or assault.
Tommiecina Johnson was a customer in the store doing business
when Sauber arrived.
She testified that when she had completed
her business and was ready to leave, Sauber was standing in front
of the door.
When she told him she was ready to leave, “[h]e was,
like, ‘You're not going nowhere until all this money accounted
And plus, when he (Charles Bailey) leave, that's when you
can go.’" Johnson stated she “didn't have no choice” but to stay
until the money was counted since “[h]e was standing in front of
the door like this....”
She went and sat back down, and left
“after two hours.”
It is apparent that Tommiecina Johnson has offered no
evidence that would even arguably support her claim for assault.
In the court’s opinion, however, she has presented sufficient
evidence that she was detained.
Ms. Johnson testified that the
door was locked and Sauber was blocking the sole means of egress;
and when she asked to be let out, he told her she could not leave.
Cf. Mayweather, 996 So. 2d at 140 (finding casino patron was not
detained where, although casino security officer was sitting in
front of door to the room, patron never asked or tried to leave).
R.J. (a/k/a LJ)
R.J., Ms. Johnson’s sixteen-year old daughter, accompanied
her mother to the Express Check store on March 19, 2015.
listening to music on her headphones while her mother conducted
R.J. testified that Sauber came in while she was
there with her mother.
She testified that she noticed him go to
the back of the store, but she had her headphones in, “so I really
wasn’t paying attention.
So I just seen him – he looked all mad
and everything, so I didn’t really think nothing of it.”
stated that when her mother and someone else went outside to take
pictures, Sauber locked the door.
At that point, she took her
After her mother came back in the store, she
asked her mother what was going on,
And she was like she don’t know. And then I guess my
mama asked him can we leave, and he was just saying,
“You can’t leave until all the money was accounted for.”
I heard that.
She still did not know or understand what was going on.
admitted that Sauber did not threaten her or say
anything to her; he did not even come close to her.
she testified she feared he was going to hurt her because “he was
acting all aggressive and yelling, like, ‘You can't go nowhere
“til all the money's accounted for.’
door and standing by the door.”
Then he kept locking the
Asked again whether he acted like
he was going to hurt her, she responded, “Well, the way he was
yelling and he was all red in the face and acting all hostile, so
I wouldn't know.”
But she agreed that he was not yelling at her.
In the court’s opinion, R.J.’s evidence is insufficient to
sustain her claim for assault.
even came near her.
Sauber never threatened her or
She could not reasonably have thought she was
in danger of imminent offensive contact by Sauber.
As to her claim for false imprisonment, a close question is
presented as to whether there is sufficient evidence to support a
reasonable finding that R.J. was detained.
generally that she was fearful of Sauber because he was yelling
and kept locking the door.
However, she never asked or tried to
leave and she did not indicate that she felt he would have harmed
her had she tried to do so.
On the other hand, she stated that
she was there with her mother and could not leave until her mother
left; and while she did not seem to know whether her mother had in
fact asked or tried to leave, she did understand Sauber to say
that her mother could not leave until the money was counted.
asked her mother why they could not leave, but her mother said she
did not know.
Arguably, one could reasonably find, based on
Sauber’s statements to her mother, coupled with the fact that he
was blocking the door, that she reasonably understood that she was
not free to leave.
Therefore, the court will deny defendants’
motion for summary judgment on R.J.’s claim for false
Based on all of the foregoing, it is ordered that defendants’
motion for partial summary judgment is granted except as to the
false imprisonment/unlawful detainment claims of plaintiffs
Johnson and R.J.
SO ORDERED this 4th day of August, 2017.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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