FAVORITO v. MARLBORO TOWNSHIP et al
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 3/17/2014. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTOPHER FAVORITO, an infant by
his father and natural guardian, PAUL
Civil Action No. 12-7348 (MAS) (LHG)
MARLBORO TOWNSHIP, et at.,
SHIPP, District Judge
Now before the Court is the motion of Defendant Rite Aid of New Jersey, Inc. ("Rite
Aid") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Def.'s Mot., ECF No. 21.) Plaintiff filed opposition to the motion (Pl.'s Opp'n, ECF No. 30),
and Defendant replied (Def.'s Reply, ECF No. 31). The Court has carefully considered the
parties' submissions and decided the matter without oral argument pursuant to Local Civil Rule
78.1. For the reasons stated below, and for other good cause shown, Defendant's motion is
Plaintiff Christopher Favorito ("Favorito" or "Plaintiff') commenced this action to obtain
monetary damages for "serious psychological injuries" he allegedly suffered as a result of his
arrest and prosecution for shoplifting. 1 (Compl. ~~ 23, 26.) His federal claims against Marlboro
Township, the Marlboro Police and the Freehold Regional High School District have been
resolved. (Stipulations, ECF Nos. 13, 19.)
The instant motion concerns Favorite's remaining New Jersey state law claim against
Rite Aid for malicious prosecution. According to Favorite, the Rite Aid employee whose
accusation led to his arrest and prosecution for shoplifting knew or should have known that he
was innocent of the charge. Favorite contends that Rite Aid is liable in tort for his alleged
On March 16, 2011, Favorite attended an after-school tutoring session at Marlboro High
School, where he was a freshman. When the session ended, he agreed to walk with his friend and
classmate Brandon Cook to a nearby Rite Aid. (C. Favorite Dep. 21-24.) Inside the store, Cook
removed a box containing a home-drug test kit from the shelves, emptied the contents into his
knapsack, and dropped the empty box. (Pacachamango Dep. 6-21.) Favorite, who was standing
with Cook, was not sure what his companion had done but thought it "was something wrong."
(C. Favorite Dep. 21-28.)
Assistant Store Manager Ivette Pacachamango shared Favorite's suspicion. Trailing the
youths through the store, she discovered the discarded box on the ground. (Pacachamango Dep.
19-20.) Pacachamango ordered a colleague to call the police and started after Favorite and Cook,
who were heading toward the store's exit. (Pacachamango Dep. 22.) Pacachamango stopped the
youths on the sidewalk in front of the store and confronted them with the empty box. (!d. at 2021; C. Favorito Dep. 33.) As Cook withdrew the stolen drug test kit from his bag, Favorito
insisted he had not been involved in the theft. (C. Favorite Dep. 33-35; Pacachamango Dep. 21.)
Actually, Favorite's father, Paul Favorite, commenced this action on his son's behalf.
While Cook was returning the merchandise, a second store employee came outside to inform
Pacachamango that the police would arrive shortly. (Pacachamango Dep. 21-22.) Overhearing
this exchange, Cook and Favorite fled in different directions. (!d. at 29-30; C. Favorite Dep. 29.)
Favorite headed toward the school. (C. Favorite Dep. 37.)
Police officers arrived at the store minutes later. The officers listened to Pacachamango's
account of the incident and viewed security camera footage of the youths' brief interaction with
her outside the store. (Pacachamango Dep. 32-36.) Pacachamango described the culprits and
reported that one had run off in the direction of the school. (Pacachamango Dep. 31-32.)
Favorite, meanwhile, had changed his clothes in the school locker room and was waiting
for his father in the lobby. (C. Favorite Dep. 37.) The disguise was ineffective. Favorite was still
waiting at the school when a police officer recognized him. (!d. at 38-39.) Two officers
subsequently questioned Favorite in the presence of the school's Principal and Vice Principal.
(!d.) Favorite called Cook, who agreed to meet him at the school. (!d. at 42-43.) Both Cook and
Favorite were subsequently cuffed, seated in the back of a police cruiser, and transported to the
police station where they were held for about an hour. (!d. at 47-48, 68-69.)
They were still in custody when Pacachamango arrived at the station to formally charge
them with shoplifting. (Pacachamango Dep. 46-49, 59.) At a subsequent appearance before a
juvenile court judge, Cook stated that he had been solely responsible for the theft. Cook's
"confession" prompted the judge to dismiss the charge against Favorite. (C. Favorite Dep. 7375.)
The incident left Favorite with recurring nightmares and a persistent sense of humiliation
and anger. In the opinion of a psychologist who evaluated Favorite in connection with this suit,
Favorito will need long-term treatment to overcome the "moderate" psychological distress he
suffered as a result ofhis arrest and prosecution. (Def.'s Mot., Exh. D, at 2.)
Summary judgment is appropriate if the record 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); see Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986). In evaluating the evidence,
the Court is "required to view the inferences to be drawn from the underlying facts in the light
most favorable to the party opposing the motion." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.
2002) (internal quotations omitted). However, where the party opposing summary judgment
ultimately bears the burden of proof as to a dispositive issue, that party "bears the burden of
production under Rule 56 to 'designate specific facts showing that there is a genuine issue for
trial."' Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The non-moving party cannot rely on unsupported assertions or bare
allegations to defeat summary judgment. See Hahnemann Univ. Hasp. v. All Shore, Inc., 514
F.3d 300, 308 (3d Cir. 2008).
To prevail on a malicious prosecution claim in New Jersey, the plaintiff must establish
"(1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was
actuated by malice, (3) that there was an absence of probable cause for the proceeding, and
(4) that it was terminated favorably to the plaintiff." Epperson v. Wal-Mart Stores, Inc., 862
A.2d 1156, 1160 (N.J. Super. Ct. App. Div. 2004) (internal quotation marks omitted). The
parties' dispute here focuses on the third element- probable cause.
Probable cause exists when there are "reasonable grounds for suspicion supported by
circumstances sufficiently strong in themselves to warrant an ordinarily cautious [person] in the
belief that the accused is guilty of the offen[s]e with which he is charged." Trabal v. Wells Fargo
Armored Svc. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (quoting Lind v. Schmid, 337 A.2d 367,
369 (N.J. 1975)). "Under New Jersey law, where the underlying facts in a malicious prosecution
action are not disputed, the existence of probable cause is an issue oflaw." Id.
Based on the uncontested facts before the Court, a reasonable person in Pacachamango' s
position would have suspected Favorite of shoplifting. Favorite entered the Rite Aid store with
Cook, stood a few feet away as Cook secreted merchandise into his bag, accompanied his friend
out of the store when the theft was completed, and chose to flee rather than face the police after
Pacachamango exposed the crime. In light of these facts, no rational factfinder could find fault in
Pacachamango's decision to press charges against both Favorite and Cook.
In his opposition to summary judgment, Plaintiff asserts that it was unreasonable for
Pacachamango to suspect Favorite of shoplifting once she discovered the stolen drug test kit in
Cook's knapsack. According to Plaintiff, Cook's possession of the merchandise "absolved
Christopher Favorite from any culpability[.]" (Pl.'s Opp'n 9.) Plaintiffs argument appears to rest
on the assumption that only one of the youths, either Cook or Favorite, could have been held
legally responsible for stealing the drug test kit. This is not the case. Under New Jersey law,
defendants may be convicted of aiding and abetting shoplifting even if they are not caught in
possession of pilfered goods. See, e.g., State v. Harabi, No. 9-12-2361, 2013 WL 1285439, at
*4-5 (N.J. Super. Ct. App. Div. April 1, 2013) (trial judge erred in not instructing jury to
consider whether defendant was guilty as an accomplice to shoplifting); State v. McCrae, No. 611-1045, 2010 WL 2867936, at *3-4 (N.J. Super. Ct. App. Div. July 22, 2010) (upholding
defendant's conviction as accomplice to shoplifting).
More importantly, the record establishes that Pacachamango believed both Favorito and
Cook were responsible for the theft. There was nothing unreasonable about this belief. Cook and
Favorito entered the Rite Aid together, remained together inside the store, left the store together,
and, after the confrontation with Pacachamango, fled together to avoid the police. These
circumstances would persuade an "ordinarily cautious [person]" that the youths acted in concert.
See Trabal, 269 F.3d at 249.
Pacachamango had probable cause to press charges against Favorito for shoplifting.
Accordingly, Plaintiffs malicious prosecution claim fails.
For the reasons set forth above, and for other good cause shown, Defendant's Motion for
Summary Judgment is GRANTED. An appropriate order follows.
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