Dillard's, Inc. v. Scott

• Decision Date: 05 May 2005
• Docket Number: No. 2003-IA-02723-SCT., No. 2002-IA-01422-SCT
• Parties: DILLARD'S, INC. v. Michael J. SCOTT. Dillard's, Inc. f/k/a Dillard Department Stores, Inc. v. Africia Johnson.
• Court: Mississippi Supreme Court

908 So.2d 93

DILLARD'S, INC. v. Michael J. SCOTT.

Dillard's, Inc. f/k/a Dillard Department Stores, Inc. v. Africia Johnson.

Nos. 2002-IA-01422-SCT, 2003-IA-02723-SCT.

Supreme Court of Mississippi.

May 5, 2005.

Rehearing Dismissed August 18, 2005.

Daniel P. Jordan, III, Christy D. Jones, Jackson, Robert L. Johnson, III, Natchez, attorneys for appellant.

Dennis C. Sweet, Omar Lamont Nelson, Dale Danks, Jr., Pieter John Teeuwissen, Jackson, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. This is the consolidation of two cases on appeal, both arising from the Circuit Court of Hinds County. In both complaints, multiple plaintiffs allege that Dillard's engaged in a scheme of racial discrimination or racial profiling resulting in the wrongful detention, harassment, and mistreatment of Dillard's customers and employees at numerous Dillard's store locations. The allegations of both complaints include diverse claims of false imprisonment, assault and battery, negligence, negligent control of servants, defamation, intentional infliction of emotional distress, invasion of privacy, malicious prosecution, conspiracy, gross negligence and malice, as well as alter ego.

Scott Procedural History

¶ 2. Twenty-three plaintiffs filed the Original Complaint in the Scott litigation on November 16, 2000. Plaintiffs amended the complaint on December 20, 2000. On March 19, 2001, Dillard's moved to sever and dismiss the out-of-state claims in Scott. This motion was subsequently denied on August 6, 2002. On May 9, 2001, Dillard's filed its Notice of Removal. The case was subsequently remanded back to the state court on February 11, 2002. On May 28, 2002, plaintiffs filed a motion to amend the first amended complaint to add thirteen additional plaintiffs. This motion was subsequently granted although plaintiffs never filed an amended complaint. Dillard's filed a motion to recuse Circuit Court Judge Tomie Green on August 2, 2002. On August 6, 2002, the trial court denied Dillard's Motion to Sever Misjoined Parties. The motion to recuse was denied on August 12, 2002.

¶ 3. Defendants then filed a Petition for Writ of Prohibition seeking the recusal of Judge Green and a Petition for Interlocutory Appeal of the orders related to joinder. On October 1, 2003, this Court granted Dillard's permission to appeal both the joinder and recusal issues and stayed all trial court proceedings pending a decision on appeal. See M.R.A.P. 5.

Johnson Procedural History

¶ 4. Forty-six plaintiffs filed their original Complaint in Johnson on August 31, 2001. The case was removed to federal court and subsequently remanded back to the state court. On November 6, 2003, Dillard's filed a motion to stay Johnson pending the Scott appeal, which was denied on December 16, 2003. The trial court also denied Dillard's request to certify the issue for interlocutory appeal. Dillard's then sought an emergency stay from this Court which was granted, and this Court thereafter consolidated Johnson and Scott.

¶ 5. Dillard's raises the following issues on appeal:

I. Whether the trial court abused its discretion under Mississippi Rule of Civil Procedure 20(a) by failing to sever and/or dismiss the claims of non-resident Plaintiffs who alleged factually distinct events that occurred outside this state.

II. Whether the Honorable Tomie T. Green should have recused herself in both cases.

FACTS

Facts related to Venue

¶ 6. The Scott case involves 23 plaintiffs each alleging that they were wrongfully mistreated and harassed at various Dillard's store locations. Of the plaintiffs involved in the Scott suit, four reside in Hinds County, Mississippi, eleven reside in Texas, six reside in Louisiana, and two in Arkansas. Of these alleged incidents, only one occurred in Hinds County, Mississippi. Three other incidents occurred in Mississippi, but outside of Hinds County. All other incidents occurred outside of Mississippi.

¶ 7. The Johnson case involves 46 plaintiffs also alleging that they were mistreated in different ways while shopping or working at a variety of Dillard's stores. Of these plaintiffs, fourteen reside in Mississippi, while the remaining plaintiffs reside in other states (Kentucky, Alabama, Nevada, Texas, Florida, Arkansas, and Colorado). Of the fourteen Mississippi residents, only six reside in Hinds County, Mississippi. Of these alleged incidents, not a single one occurred in Hinds County.

Facts related to Recusal

¶ 8. On March 4, 2002, WLBT-TV in Jackson, Mississippi, aired a "Three on Your Side" investigative report, in which the reporter stated that Judge Tomie Green had accused the Jackson Police Department of racial profiling and harassment of her during a traffic stop. A transcript of the newscast reflects the following:

Reporter: Here at home, a charge of racial profiling by white Jackson police officers. What makes it unusual is that the accuser is a Hinds County Circuit Court Judge.

Judge Green: It's eroded my faith in public safety in Jackson and Hinds County.

Reporter: Circuit Court Judge Tomie Green is angry ... and hurt over an incident she describes as racial profiling. According to Judge Green on Saturday, February 23rd around seven at night she was traveling on Hanging Moss Drive heading down-town when two officers in separate patrol cars put on their blue lights behind her. She says she pulled over to the right and stopped. Why was she pulled over?

Judge Green: He just started to tell me I was driving in the wrong lane that I needed to go [to] the department of public safety and get a book and learn how to drive and be in the right lane.

Reporter: But acting police chief Jim French says the officer tells a different story.

Jim French: The car pulled out in front of him and nearly caused him to wreck

Reporter: But the officer, who Chief French will not name, did not issue Judge Green a ticket. The Judge says the officer's manner was abusive.

Judge Green: He just kind of harassed me in terms of the questioning. I said there's no such thing as the wrong lane and I was just driving.

Reporter: Judge Green drives a 2001 Jaguar with a plate that reads lawkeeper. She says the fact that she's black and drives an expensive car caused the officers to stop her ... and nothing else. She asked to speak to the other officer on the scene, but says the first officer told her he had nothing to do with it. Then according to Judge Green she drove to precinct three about a mile away on Northside Drive to file a complaint. The precinct was closed. Chief French says he cannot say much about this incident because internal affairs is looking into it. However ...

French: This Department specifically prohibits stops for racial profiling, sexual profiling.

Reporter: He says it may take a couple of weeks for internal affairs to finish its report. We'll keep you posted ...

¶ 9. Subsequently, Dillard's filed the motion to recuse requesting that Judge Green recuse herself, averring that this incident created a conflict for her to preside in the cases sub judice.

ANALYSIS

I. Joinder and Venue

¶ 10. The standard of review regarding joinder and venue is abuse of discretion. Ill. Cent. R.R. v. Travis, 808 So.2d 928, 931 (Miss.2002). See also Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004).

¶ 11. Dillard's argues that the trial court abused its discretion when it failed to sever factually distinct claims against it and that the joinder of these claims into a single mass action exceeds the scope of permissible joinder under Rule 20(a) of the Mississippi Rules of Civil Procedure. Dillard's relies on Armond to support its argument that these claims should be severed. Plaintiffs argue that the Rule 20 standard is met and that the claims arise out of the same transaction, occurrence, or series of transactions or occurrences and there are questions of law or fact common to all plaintiffs. Plaintiffs argue joinder is proper because they allege a common scheme among Dillard's stores to racially profile customers, and allege a failure to enforce proper retail security protocol at Dillard's stores.

¶ 12. M.R.C.P. 20(a) states in pertinent part:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action.

The scope of Rule 20 was clarified by this Court's ruling in Armond, and this Court finds that Armond and its progeny control the joinder issues in the cases sub judice. In Armond, 56 plaintiffs sued for injuries they claimed were caused by a prescription medication Propulsid. Id. Armond involved 56 plaintiffs who had different medical histories, different injuries at different times, ingested different amounts of Propulsid over different periods of time, and received different advice from 42 different doctors. Id. at 1096. This Court found in Armond that there was no single transaction or occurrence or series of transactions or occurrences to satisfy Rule 20, and severed all claims. Id. at 1101.

¶ 13. Recently, this Court further clarified when joinder is appropriate under Rule 20 in Ill. Cent. R.R. v. Gregory, ___ So.2d ___, 2005 WL 613490 (Miss. March 17, 2005). In Gregory, this Court stated the following with regards to when joinder is appropriate:

[The] determination includes, among other things, whether a finding of liability for one plaintiff essentially establishes a finding for all plaintiffs, indicating that proof common to all plaintiffs is significant. The appropriateness of joinder decreases as the need for additional proof increases. If plaintiffs allege a single, primary wrongful act, the proof will be common to all plaintiffs; however separate proof will be required where there are several wrongful acts by several different actors. The need for separate proof

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