Robertson v. Wal-Mart Stores Inc

Filing 19

MEMORANDUM AND OPINION entered GRANTING 15 MOTION for Summary Judgment . Final judgment entered by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH DALE ROBERTSON,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.

§
§
§
§
§
§
§
§
§

October 12, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3427

MEMORANDUM AND OPINION GRANTING THE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Wal-Mart sells many things. It is not surprising that it is sued over things that are not usually
the stuff of federal cases.1 This case is an example. It arises from a single bag of potato chips.
Joseph Dale Robertson sued Wal-Mart Stores, Inc. in Texas state court, alleging false arrest
and false imprisonment. Wal-Mart promptly removed to federal court on the basis of diversity
jurisdiction. (Docket Entry No. 1). After discovery, Wal-Mart moved for summary judgment.
(Docket Entry No. 15). Robertson responded. (Docket Entry No. 18). Based on careful review of
the parties’ submissions, the applicable law, and the record, the court grants Wal-Mart’s motion for
summary judgment and enters final judgment. The reasons are explained below.
I.

Background
1

See, e.g., Farneth v. Wal-Mart Stores, Inc., No. 2:13-cv-01052, 2013 U.S. Dist. LEXIS 181020
(W.D. Pa. Dec. 30, 2013) (sales tax of $0.42 on a buy-one-get-one coupon for shaving cream); Boggs v. WalMart Stores, Inc., 2006 Ky. App. Unpub. LEXIS 586, 2006 WL 1045413 (Apr. 21, 2006) (plaintiff stopped
in the parking lot for allegedly stealing his own jacket); Matthew Adam, et al. v. Wal-Mart Stores, Inc., No.
A1700827 (Hamilton Cty. Ct. of Common Pleas, Feb. 10, 2017) (whether Wal-Mart’s “Craft Beer”meets the
Brewers Association definition of “craft” brewing); Mierzwa v. Wal-Mart, Inc., 2014 N.J. Super. Unpub.
LEXIS 1726 (N.J. Super. Ct. App. Div. July 16, 2014) (inability to purchase “choicest reserved seats” to a
Beach Boys concert); see also Debra Cassens Weiss, Consumer Advocate Wins Suit Against Walmart Store
for Failing to Correct Two Penny Overcharge, ABA J OURNAL (Oct. 3, 2011),
http://www.abajournal.com/news/article/consumer_advocate_wins_suit_against_walmart_for_failing_to_
correct_two_penn/ (two cent overcharge on “Brown ‘N Serve” sausages).

In October 2014, Robertson drove to the Wal-Mart Store in The Woodlands, Texas, to pick
up a few groceries for dinner that evening and to return a recently opened bag of Wal-Mart brand
“Great Value” potato chips. (Docket Entry 15-2 at 13). Robertson’s wife had detected an odor
when she opened the bag. Robertson wanted a new bag.
The Wal-Mart greeter directed Robertson to the customer-service counter. (Docket Entry
No. 15-2 at 13). Robertson asked the customer-service representative to exchange the open bag for
a new one, explaining that his wife had complained that the chips smelled bad when she opened the
bag. (Id.) The Wal-Mart associate asked for the receipt and a driver’s license or other governmentissued identification. (Id.). Robertson said he had neither. Robertson told the associate that both
he and his wife had previously returned items, including a swimming pool worth over $200, without
having to present a receipt or identification. (Docket Entry No. 15-2 at 12–13). Robertson said that
he had no receipt and was not sure whether the chips came from that store or another store. (Id. at
14–15). He said that he did not have his driver’s license, although he had driven to the store. (Id.
at 16, 31). Robertson showed the associate a Sam’s Club Card and a business card. (Docket Entry
No. 15-2 at 16). The associate explained that neither met the store’s requirement for an exchange.
Robertson asked to speak with a manager. The customer-service associate told him that no manager
or assistant manager was available. (Id. at 17).
Robertson left the customer-service counter and went to pick up the grocery items he needed.
He ran into the same greeter, who encouraged him to return to the customer-service counter and
again ask for a manager. (Docket Entry No. 15-2 at 18). Robertson returned to the counter and
again asked to exchange the potato chips. He got the same response. He then dropped the bag of
chips into the Wal-Mart associate’s hands. (Docket Entry No. 15-2 at 21). The associate told

P:\CASES\2016\16-3427\16-3427 MSJ opinion.a04.wpd

2

Robertson that a manager was available to speak to him.
Robertson testified that when the manager arrived, Robertson extended his hand, which the
manager refused to shake. (Docket Entry No. 15-2 at 21). The manager said to Robertson, “You
slapped one of my employees. Get out of my store.” (Id.). Robertson responded “Excuse me?”
The manager again told Robertson to leave the store and warned that if he did not “leave the store,
I’m calling the police.” (Id.). Robertson said: “I would like to ask you to call the police.” (Id.).
Robertson stood at the Wal-Mart customer-service desk while the manager called the police. (Id.
at 21–22). No one told Robertson to stay or otherwise kept him from leaving. To the contrary,
Robertson had been told to leave, twice, and refused.
Robertson testified that he overheard the manager explaining to the police that he was calling
from Wal-Mart and that there was “an incident where a customer slapped one of our employees.”
(Docket Entry No. 15-2 at 22). According to Robertson, he said at the time that the report was a
lie and denied having slapped any Wal-Mart employee. (Id.).
The parties agree that Robertson voluntarily waited for the ten minutes it took the police to
arrive. (Docket Entry No. 15-2 at 21). Two officers responded. One, Officer Beatty, first talked
to the manager, but Robertson could not hear them. (Docket Entry No. 15-2 at 22). Officer Beatty
asked Robertson to tell him what had happened. Robertson refused to answer. (Id. at 23). Instead,
he pointed to the security surveillance camera and suggested that the officer watch it. (Id.). The
parties agree that Officer Beatty then said “uncooperative” to Robertson, told him to turn around,
and handcuffed him. (Id.). Robertson testified that Beatty spoke to the Wal-Mart customer-service
associate and the manager before telling Robertson to turn around and handcuffing him. (Id.). WalMart denies this, asserting that the officer handcuffed Robertson immediately after declaring him

P:\CASES\2016\16-3427\16-3427 MSJ opinion.a04.wpd

3

“uncooperative.” (Docket Entry No. 15 at 8).
Officer Beatty had Robertson sit at the customer-service area with the second officer while
Officer Beatty left the area. (Docket Entry No. 15-2 at 23–24). Officer Beatty returned after about
12 minutes and removed the handcuffs. (Id. at 25). Officer Beatty told Robertson to wait while he
got something from his car. (Id. at 26). He returned a few minutes later with a citation for
disorderly conduct and a document that he asked Robertson to sign. (Id.). Robertson testified that
he asked if he could read the document before he signed it, but Officer Beatty responded, “You’ll
sign it or you’re going to jail.” (Id.). Robertson signed the document—an agreement to stay away
from the Wal-Mart—and testified that when he asked for a copy, Officer Beatty refused to provide
it. (Docket Entry No. 15-2 at 27). At that point, the parties agree, Officer Beatty told Robertson to
leave the store, and he did. (Id. at 28). The disorderly-conduct citation was later dismissed.
(Docket Entry No. 1-1 at 4; Docket Entry No. 15 at 9).
Robertson wants actual and exemplary damages for Wal-Mart’s actions that caused him “to
suffer extreme shame and public embarrassment and humiliation,” which caused him “great mental
anguish.” (Docket Entry No. 1-1 at 5–6). Robertson testified that he had problems sleeping and was
diagnosed with a “systemic infection” after the incident. (Docket Entry No. 15-2 at 32–34).
Wal-Mart moves for summary judgment on the basis that it did not detain or restrain
Robertson. Instead, Robertson voluntarily remained after he was told to leave. It was Robertson
who asked Wal-Mart to call the police rather than leave the store. (Docket Entry No. 15 at 9–10).
Wal-Mart argues that the evidence shows that when the police arrived, no Wal-Mart
employee told the officers to detain or restrain Robertson. Instead, according to Wal-Mart, Officer
Beatty did not handcuff Robertson or issue a citation until after he refused to answer the officer’s

P:\CASES\2016\16-3427\16-3427 MSJ opinion.a04.wpd

4

questions. (Id. at 13–14). Wal-Mart argues that Robertson has no claim against, and is not entitled
to the damages he seeks from, Wal-Mart. (Id. at 17–20).
Robertson responds that Wal-Mart caused the police to handcuff and detain him by falsely
reporting that he had “slapped” a Wal-Mart employee. (Docket Entry No. 18 at 7). The motion,
response, and summary judgment evidence are reviewed under the applicable legal standards.
II.

The Legal Standard Standards
A.

Summary Judgment

“Summary judgment is required when ‘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.’” Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). “A genuine dispute of material
fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The moving party ‘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. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial
burden by showing an absence of evidence to support the nonmoving party’s case. Fret v. Melton
Truck Lines, Inc., No. 17-50031, 2017 U.S. App. LEXIS 16912, at *5–6 (5th Cir. Sept. 1, 2017)
(citing Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994)). While the party moving
for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not

5

need to negate the elements of the nonmovant’s case. Coastal Agric. Supply, Inc. v. JP Morgan
Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (citing Boudreaux v. Swift Transp. Co., 402
F.3d 536, 540 (5th Cir. 2005)). A fact is material if “its resolution could affect the outcome of the
actions.” Aly v. City of Lake Jackson, 605 Fed. App’x 260, 262 (5th Cir. 2015) (citing Burrell v. Dr.
Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)). “If the moving party fails
to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the
nonmovant’s response.” Pioneer Exploration, LLC v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir.
2014) (citation omitted).
“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive
a summary judgment motion by resting on the mere allegations of its pleadings.” Bailey v. E. Baton
Rouge Parish Prison, 663 Fed. App’x 328, 331 (5th Cir. 2016) (quoting Duffie v. United States, 600
F.3d 362, 371 (5th Cir. 2010)). The nonmovant must identify specific evidence in the record and
articulate how that evidence supports that party’s claim. Willis v. Cleco Corp., 749 F.3d 314, 317
(5th Cir. 2014). “This burden will not be satisfied by ‘some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’”
Jurach v. Safety Vision, LLC, 642 Fed. App’x 313, 317 (5th Cir. 2016) (quoting Boudreaux, 402
F.3d 536, 540 (5th Cir. 2005)). In deciding a summary judgment motion, the court draws all
reasonable inferences in the light most favorable to the nonmoving party. Darden v. City of Fort
Worth, 866 F.3d 698, 702 (5th Cir. 2017).
B.

False Imprisonment and False Arrest

Under Texas law, false imprisonment and false arrest have the same elements. See, e.g., San
Antonio v. Dunn, 796 S.W.2d 258, 262 (Tex. App.—San Antonio 1990, writ denied); Villegas v.

6

Griffin Indus., 975 S.W.2d 745, 754 (Tex. App.—Corpus Christi 1998, pet. denied). “The essential
elements of false imprisonment are: (1) willful detention; (2) without consent; and (3) without
authority of law.” Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). “A
detention may be accomplished by violence, by threats, or by any other means that restrains a person
from moving from one place to another.” Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640,
644–45 (Tex. 1995). Liability “may extend to anyone who directs, requests, or participates in a
detention, including the detention of a private citizen whom the defendant identifies as the
perpetrator of a crime.” Villegas, 975 S.W.2d at 755. “When the alleged detention results from an
unlawful arrest, to prove instigation a plaintiff must show that the defendant clearly directed or
requested the arrest. As the Restatement explains, in the case of an arrest, [instigation] is the
equivalent, in words or conduct, of Officer, arrest that man! To hold a third party liable for
instigating the detention, then, the act of arrest [must be] made by the officer, not of his or her own
volition, but to carry out the request of the defendant.” Rodriguez, 92 S.W.3d at 507.
“The law is clear that a defendant who summons the police, reports an alleged crime, and
identifies the offender, is not liable for any subsequent false imprisonment.” Miller v. Baylor Coll.
of Med. Fed. Credit Union, No. H-09-1332, 2011 WL 677350, at *11 (S.D. Tex. Feb. 16, 2011)
(citing Lewis v. Continental Airlines, Inc., 80 F. Supp. 686, 702 (S.D. Tex. 1999)); see also Darden
v. E-Z Mart Stores, Inc., No. 2-05-CV-64 (TJW), 2006 WL 163219 (Jan. 20, 2006)). The instigation
requirement will not be satisfied if the defendant has merely provided information to the police
about a crime or accused another of committing the crime, “so long as he leaves to the police the
decision as to what shall be done about any arrest, without persuading or influencing them.”
Rodriguez, 92 S.W.3d at 508. An inference of instigation “is justified only when a party provides

7

information in its report that it knows is false.” Gipson v. Wal-Mart Stores, Inc., No H-08-2307,
2008 WL 4844206, at *7 (S.D. Tex. Nov. 8, 2008) (citing Rodriguez, 92 S.W.3d at 507).
III.

Analysis
The record consists of the pleadings, the attached documents, and Robertson’s deposition

testimony. (See Docket Entry Nos. 15, 18). The parties agree that neither Wal-Mart nor its
employee detained or restrained Robertson at any point. The parties agree that Robertson refused
to leave when he was repeatedly told to do so. The parties agree that Wal-Mart did not insist on
calling the police. Rather, it was Robertson who insisted that the manager call the police after
Robertson refused to leave the store. It is undisputed that Wal-Mart did nothing to keep Robertson
at the store, to prevent him from leaving, or to restrain his movement. Robertson chose to wait until
the police arrived.
Officer Beatty placed Robertson in handcuffs for about 12 minutes. Robertson bases his
argument that Wal-Mart “instigated” this detention on his assertion that when the Wal-Mart manager
called the police—at Robertson’s insistence—the manager told the officer that Robertson had
slapped an employee. Robertson denies any slap, although he agrees that he “dropped” the open bag
of chips in the employee’s hands. (Docket Entry No. 15-2 at 21). The parties agree that before
handcuffing Robertson, Officer Beatty “announced the word, ‘Uncooperative,’” when Robertson
refused to answer his question about what had happened and instead told the officer to watch the
security camera footage. (Docket Entry No. 15 at 8; Docket Entry No. 15-2 at 23).
There is no genuine factual dispute material to determining whether Wal-Mart instigated
Robertson’s arrest. Even assuming that the manager had told the officer that Robertson refused to
leave the store when asked and that he had “slapped” an employee, there is no evidence that any

8

Wal-Mart employee asked or directed Officer Beatty to handcuff Robertson. The evidence is that
the officer decided to use the handcuffs after Robertson refused to answer questions and told the
officer to watch the surveillance tape.
The undisputed evidence is that Wal-Mart called the police for a customer who repeatedly
refused to leave the store; that Robertson asked the manager to call the police rather than leave the
store; that he voluntarily remained at the store until the police came; and that he was handcuffed for
12 minutes and detained for another few minutes after refusing to answer any of the officer’s
questions. The instigation requirement necessary to extend liability to Wal-Mart is not met and WalMart is entitled to judgment as a matter of law.
IV.

Conclusion

Wal-Mart’s motion for summary judgment is granted. (Docket Entry No. 15). Final
judgment is entered dismissing Robertson’s claims with prejudice.
SIGNED on October 11, 2017 at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

9