El-ghazzawy v. Berthiaume
| Decision Date | 16 April 2010 |
| Docket Number | Civ. No. 09-372 (RHK/AJB). |
| Citation | 708 F.Supp.2d 874 |
| Parties | Karim G. EL-GHAZZAWY, Plaintiff,v.Kay BERTHIAUME, acting in her individual capacity as an officer of the Bloomington Police Department, Michael David Wisniewski, and Pawn America, Minnesota, L.L.C., Defendants. |
| Court | U.S. District Court — District of Minnesota |
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Robert Bennett, Jeffrey S. Storms, Flynn Gaskins & Bennett, LLP, Minneapolis, MN, for Plaintiff.
Jason M. Hiveley, Iverson Reuvers, LLC, Bloomington, MN, for Defendant Kay Berthiaume.
Mark A. Smith, Wrobel & Smith, PLLP, St. Paul, MN, for Defendants David Wisniewski and Pawn America, Minnesota, L.L.C.
In this action, Plaintiff Karim G. El-Ghazzawy has sued: (1) Officer Kay Berthiaume of the Bloomington Police Department, alleging violation of his Fourth-Amendment rights and (2) Michael David Wisniewski and Pawn America, Minnesota, L.L.C. (“Pawn America”), alleging state-law defamation and false imprisonment. All Defendants now move for summary judgment. For the reasons set forth below, the Court will deny Berthiaume's Motion and grant Wisniewski and Pawn America's Motion in part and deny it in part.
Viewed in the light most favorable to El-Ghazzawy see Graves v. Ark. Dep't of Fin. & Admin., 229 F.3d 721, 723 (8th Cir.2000), the events giving rise to this action are as follows.
El-Ghazzawy is an attorney whose hobby is collecting high-end wrist watches. (El-Ghazzawy Dep. Tr. at 15-16, 35-36.) Part and parcel of this hobby is purchasing and selling watches. ( Id. at 46-47, 51-52.) Pawn America is a pawnshop chain with several locations throughout Minnesota. (Wisniewski Dep. Tr. at 7.) Pawn America purchases high-quality items, such as watches, for resale. (Joshi Dep. Tr. at 30.) Wisniewski is employed by Pawn America as a District Manager, managing several Pawn America stores in Minnesota and South Dakota. (Wisniewski Dep. Tr. at 7, 109.)
On October 29, 2008, El-Ghazzawy went to the Bloomington Pawn America to sell five or six high-end watches. (Schmidt Dep. Tr. at 25-27.) Pawn America employee Robert Schmidt inspected the watches and researched their authenticity. ( Id. at 27-34.) Schmidt purchased two watches, a Corum and an Ebel, for $800 and $400, respectively. (Storms Aff. Ex. J.) Schmidt never expressed any concerns regarding the authenticity of these watches to anyone at Pawn America. (Schmidt Dep. Tr. at 32-33.)
The following day, El-Ghazzawy returned to the Bloomington Pawn America looking to sell additional watches. (El-Ghazzawy Dep. Tr. at 30.) Pawn America employee Jon Garner inspected the watches. (Garner Dep. Tr. at 7-13.) Garner was interested in purchasing two of the watches, but required the purchasing approval of Wisniewski for transactions exceeding $1,000. ( Id. at 48.) Upon describing the watches over the telephone to Wisniewski, Garner obtained the necessary approval and purchased a Breitling watch and Baume Mercier watch from El-Ghazzawy for $1,200 and $1,500, respectively. ( Id. at 48; Storms Aff. Ex. J.)
El-Ghazzawy returned to the Bloomington Pawn America a third time on November 11, 2008, to sell five additional watches. (El-Ghazzawy Dep. Tr. at 61-62.) He initially discussed the sale with Schmidt, who decided to have Wisniewski handle the transaction. (Schmidt Dep. Tr. at 44.) Wisniewski looked briefly at the watches offered for sale and observed El-Ghazzawy pull several tags off of the watches. (El-Ghazzawy Dep. Tr. at 64; Wisniewski Dep. Tr. at 66-67.) Wisniewski asked El-Ghazzawy how much he had paid for the watches, but El-Ghazzawy refused to provide this information. (Wisniewski Dep. Tr. at 66-67.) Sellers usually do not provide such information when attempting to sell items to Pawn America. (Garner Dep. Tr. at 55.)
Wisniewski then decided to inspect the Breitling watch that Pawn America had purchased from El-Ghazzawy two weeks earlier.1 (Wisniewski Dep. Tr. at 104-06.) Based upon research conduced on several Web sites and a visual review of the watch, Wisniewski determined that the Breitling was a fake. ( Id. at 19.) Specifically, he believed that the watch was a counterfeit because the symbol was tilted, the numbers were blurry, the dial was not detailed or crisp, and the weight was off. ( Id. at 59.) Wisniewski thereafter assumed that all the watches previously and presently offered by El-Ghazzawy for sale were fake. (Wisniewski Dep. Tr. at 19-21.) Wisniewski also believed El-Ghazzawy's transaction history was suspicious. ( Id. at 49.)
Based upon his belief that all the watches offered for sale by El-Ghazzawy were counterfeit, Wisniewski called the Bloomington Police Department. ( Id. at 48-49.) This phone call took place seventeen minutes after El-Ghazzawy entered the Pawn America. Wisniewski told the dispatcher that he had a man in the store (Angolkar Aff. Ex. B.)
The record reveals that Wisniewski's physical inspection of the Breitling watch was brief. He reviewed several Breitling Web sites, but did not begin the inspection of the watch itself until he entered the back office at 10:13:52. (Surveillance “Office” View.) This inspection must have ceased no later than 10:15:01, the time at which he called the police. ( Id.) Accordingly, Wisniewski's inspection of the Breitling lasted, at most, one minute and eight seconds.
Upon receipt of Wisniewski's call, the police dispatcher sent Berthiaume to the scene. Prior to arriving, Berthiaume was told the following:
I'll put you in the area of Pawn America, 8650 Lyndale. They have a male there that's ah ... employee called in. They have a male that's returned. He ... in the past, sold counterfeit watches. Apparently he's trying to do it again. Mixed race male, wearing the suit.
(Angolkar Aff. Ex. B.) Berthiaume arrived at the scene, approached El-Ghazzawy, and immediately placed him in handcuffs. (El-Ghazzawy Dep. Tr. at 91-92.)
Officer Larry Mena arrived three to five minutes after Berthiaume and stood with El-Ghazzawy as Berthiaume went into the back room with Wisniewski to investigate. (Mena Dep. Tr. at 16-17.) Wisniewski informed Berthiaume of El-Ghazzawy's sales history and described why he believed the Breitling watch was counterfeit. Wisniewski informed Berthiaume that all the other watches purchased by Pawn America from El-Ghazzawy or offered for sale by him were counterfeit, without describing a basis for this belief. ( Id.) Berthiaume relied upon the statements of Wisniewski. (Berthiaume Dep. Tr. at 49.) Berthiaume also discussed the watches with El-Ghazzawy, who asserted that they were authentic and that he had receipts to prove it. (El-Ghazzawy Dep. Tr. at 93-94, 104-05.)
El-Ghazzawy contends that Wisniewski spoke to him in front of Berthiaume in a “berating” manner. ( Id. at 193.) Specifically, Wisniewski stated that he wanted the money returned that Pawn America had paid to El-Ghazzawy. ( Id.) When El-Ghazzawy stated that he would do so, Wisniewski told Berthiaume that El-Ghazzawy was “not going to come back and give him the money.” ( Id.)
Berthiaume determined that she had probable cause to arrest El-Ghazzawy for theft by swindle and transported El-Ghazzawy to the Bloomington Police Department. There is no evidence that El-Ghazzawy affirmatively represented that the watches he offered for sale were authentic prior to Berthiaume's arrival on the scene. (Berthiaume Dep. Tr. at 53-54.)
El-Ghazzawy spent 23 hours at the Bloomington jail. (El-Ghazzawy Dep. Tr. at 101.) Bloomington Police Detective Douglas Barland investigated the theft-by-swindle charge. (Barland Dep. Tr. at 17.) El-Ghazzawy's wife brought the watch receipts to Barland, and at that time El-Ghazzawy was released pending further investigation. During this investigation, Garner informed Barland that he believed El-Ghazzawy's watches to be authentic. (Barland Dep. Tr. at 114.) Barland then took the watches to expert Bill Weigel, who inspected them and determined they were authentic. 2 Accordingly, Barland closed the investigation. Pawn America later sold the Breitling watch. (Wisniewski Dep. Tr. at 37.) 3
In February 2009, El-Ghazzawy commenced the instant action asserting three causes of action: (1) violation of the Fourth Amendment against Berthiaume; (2) defamation against Wisniewski and Pawn America; and (3) false imprisonment against Wisniewski and Pawn America. All Defendants now move for summary judgment.
Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Id. at 322, 106 S.Ct. 2548; Mems v. City of St. Paul, Dep't of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir.2000). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Graves, 229 F.3d at 723; Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).
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