Eisnnicher v. Bob Evans Farms Restaurant

• Decision Date: 31 March 2004
• Docket Number: No. 2:02-cv-1020.,2:02-cv-1020.
• Parties: Barbara E. EISNNICHER, et al., Plaintiffs, v. BOB EVANS FARMS RESTAURANTS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

310 F.Supp.2d 936

Barbara E. EISNNICHER, et al., Plaintiffs, v. BOB EVANS FARMS RESTAURANTS, et al., Defendants.

No. 2:02-cv-1020.

United States District Court, S.D. Ohio, Eastern Division.

March 31, 2004.

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James Donald McNamara, Columbus, OH, for Plaintiffs.

Chris Joseph North, Mark A Knueve, Vorys, Sater, Seymour & Pease, Mark David Landes, Aaron Michael Glasgow, Isaac, Brant, Ledman & Teetor, Columbus, OH, for Defendants.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on several of the parties' Motions for Summary Judgment. Defendants Bob Evans Farms Restaurants, Inc. ("Bob Evans") and Natterious Manson (collectively the "Bob Evans Defendants") filed their Motion on August 8, 2003. Plaintiff Barbara Eisnnicher filed a Motion for Partial Summary Judgment on September 2, 2003. Finally, Defendants City of Westerville, George Abbot, Stacy Coe, Gene Hunter, Carrie Martz, and Kurt Nightingale (collectively the "Westerville Defendants") filed their Summary Judgment Motion on September 2, 2003. For the following reasons, the Court GRANTS in part and DENIES in part the Westerville Defendants' Motion for Summary Judgment, DENIES Plaintiff Barbara Eisnnicher's Motion for Partial Summary Judgment, and GRANTS in part and DENIES in part the Bob Evans Defendants' Motion for Summary Judgment.

II. FACTS

The following facts appear to be undisputed.

On the morning of April 6, 2002, Plaintiff Barbara Eisnnicher, her son, Plaintiff Joseph Eisnnicher, and a friend, Plaintiff Matt Austin, went to breakfast at their local Bob Evans Restaurant, located at 69 Huber Village Boulevard, Westerville, Ohio. Plaintiffs, regular patrons at the Bob Evans, arrived at the restaurant around 11:30 a.m. They waited in the waiting area for some time before being seated. Defendant Natterious Manson was the Assistant Manager in charge of the shift when Plaintiffs arrived. Manson was one of two supervisors on duty in the restaurant at the time.

At approximately 12:05 p.m., Manson pushed a "silent" alarm button used to contact the Westerville Police Department and inform it that a robbery is in progress at the restaurant. Several officers were dispatched to the restaurant to investigate the alarm. Meanwhile, Manson spoke with the police dispatcher by telephone. Manson informed the dispatcher that there was not a hold up in progress but that there were suspicious customers in the restaurant and that he would meet the officers at the back door to explain why he pushed the alarm.

Within about five minutes of the alarm being pushed, the police arrived. Manson provided a physical description of Plaintiffs Joseph Eisnnicher and Matt Austin and informed the police that three separate tables of customers had complained about Eisnnicher and Austin. Manson stated that all three sets of customers flagged him down to tell him that Eisnnicher and Austin had been discussing bank robberies and "jobs." Manson also directed the police to Eric Greber, a Bob Evans prep cook employee. Greber told the police that he recognized Joseph Eisnnicher from an episode of "Crime Stoppers" that he had seen the previous day. Greber described Eisnnicher and said that he had been featured on the television program as a wanted felon sought by the authorities for bank robbery. The police also were aware, at the time, that there had recently been several bank robberies in the Columbus area, and that this particular Bob Evans restaurant had been robbed in the past.

Based on this information, the police stationed themselves around the restaurant and asked Manson to call them when Plaintiffs left. At approximately 1:00 p.m., Plaintiffs left the restaurant, got into their vehicle, and drove away from Bob Evans. Several police cruisers, with lights activated converged behind the vehicle and brought it to a stop in the parking lot of an adjacent strip mall. As soon as the car stopped, Barbara Eisnnicher, who was sitting in the passenger seat of the car, jumped out of the car and confronted the police officers about why the car had been stopped. Officers had their guns drawn, and they instructed Joseph Eisnnicher to throw his car keys out of the window and ordered Plaintiffs to exit the car, one at a time, place their hands on their heads, walk backwards to the police, and kneel on the pavement.

Barbara Eisnnicher was ordered in a "forceful tone" to put her hands up, to move to a specific location and stay there, and to "shut up." During the encounter, Mrs. Eisnnicher was highly agitated and continued to speak loudly to the officers. At one point, she poked her finger into Detective Hunter's chest as he attempted to calm her and explain the reasons for the stop. At another point, she reached into the car for her purse, retrieved a cell phone from the purse, and proceeded to make phone calls. At no time during the stop did any of the officers touch Mrs. Eisnnicher, threaten her, or inform her that she was under arrest.

Meanwhile, the men were secured with handcuffs, patted down for weapons, and placed in separate cruisers. Officers Coe and Nightingale spoke with Eisnnicher and Austin, asking for basic biographical information and for information about their conversations while at the restaurant. Neither Eisnnicher nor Austin was informed that he was under arrest, and neither was ever threatened. The officers ran routine background checks on Eisnnicher and Austin, including checks for outstanding warrants and verification on the status of the vehicle. When nothing suspicious was discovered, the police released Plaintiffs. As documented by the police cruiser video camera in Officer Martz's cruiser, the stop lasted approximately 15 to 17 minutes.

At the conclusion of the stop, Plaintiffs returned to the restaurant to confront Manson. Barbara Eisnnicher requested that several officers accompany Plaintiffs to the Bob Evans for assistance. None of these events, however, was ever televised or published in a newspaper, and none of Plaintiffs was ever approached by any friends and asked about them. Neither Austin nor Joseph Eisnnicher suffered any wage loss. Barbara Eisnnicher voluntarily missed work on April 8, 2002, to go to the doctor to get a refill on her prescription for Valium, which she had previously taken on a periodic basis.

III. PROCEDURAL HISTORY

On September 20, 2002, Plaintiffs, Barbara Eisnnicher, Joseph Eisnnicher, and Matt Austin, filed a Complaint against Defendants, City of Westerville, George Abbott, Stacy Coe, Gene Hunter, Carrie Martz, Kurt Nightingale, Bob Evans, and Natterious Manson in the Franklin County Court of Common Pleas. The case was removed to this Court on October 15, 2002. The First Amended Complaint, filed February 19, 2003, seeks compensatory and punitive damages based on the following claims: (1) negligence and/or gross negligence; (2) false arrest and imprisonment; (3) defamation by Defendant Manson; (4) violations of the Fourth Amendment of the United States Constitution and 42 U.S.C. § 1983; and (5) failure to adequately train, supervise, and discipline police officers by Defendant City of Westerville.

On October 17, 2003, Plaintiffs stipulated to the dismissal of all state tort claims against Defendants Abbott, Coe, Hunter, Martz, and Nightingale. Also on that date, Plaintiffs voluntarily dismissed with prejudice all claims against Defendant City of Westerville. In their September 10, 2003, response to the Bob Evans Defendants' Motion for Summary Judgment, Plaintiffs clarified that they were not asserting any § 1983 or other federal claims against the Bob Evans Defendants.

This matter is before the Court on Motions for Summary Judgment filed by both the Westerville Defendants and the Bob Evans Defendants, as well as a Motion for Partial Summary Judgment filed by Plaintiff Barbara Eisnnicher. In her Motion for Partial Summary Judgment, Barbara Eisnnicher seeks summary judgment only as to her claims against the Westerville Defendants.

IV. STANDARD OF REVIEW

The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991). Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[S]ummary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). Significantly, in responding to a motion for summary judgment, however, the non-moving party "may not rest upon its mere allegations ... but ... must set forth specific...