Hester v. Wal-Mart Stores, Inc.
| Decision Date | 17 December 2004 |
| Docket Number | No. 03-2447-JWL.,03-2447-JWL. |
| Citation | 348 F.Supp.2d 1252 |
| Parties | Brenda HESTER and Temmie ("Tim") Hester, Plaintiffs, v. WAL-MART STORES, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Thomas R. Larson, Jimmy E. Allen, Jr., Larson & Larson, P.C., Leawood, KS, for Plaintiffs.
Christopher J. Stucky, Koriambanya S. Carew, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, James R. Jarrow, Baker, Sterchi, Cowden & Rice, L.L.C., Overland Park, KS, Dustin Jay Denning, Mickey W. Mosier, Clark, Mize & Linville, Chtd., Salina, KS, for Defendant.
Plaintiff Brenda Hester filed suit against defendant under 42 U.S.C. §§ 1981 and 1982, and for false arrest under state law, based on defendant's wrongful accusation that plaintiff shoplifted merchandise from defendant's store in Atchison, Kansas. Plaintiff Temmie ("Tim") Hester (hereinafter referred to as "Tim Hester") filed suit against defendant under 42 U.S.C. §§ 1981, 1982 and 1983 based on defendant's wrongful detention of plaintiff while he was exiting defendant's store in Atchison, Kansas. Plaintiff Tim Hester also asserts a derivative claim for loss of services sustained as a result of alleged injuries suffered by his wife, plaintiff Brenda Hester. This matter is presently before the court on several motions, including defendant's motion for summary judgment on plaintiffs' claims (doc. # 113).
As set forth in more detail below, the court grants defendant's motion for summary judgment with respect to all federal claims and dismisses without prejudice Ms. Hester's state law claim for false imprisonment and Mr. Hester's corresponding loss of services claim. The vast majority of the remaining motions (including all motions related to plaintiffs' experts and defendant's motion for separate trials) are thereby rendered moot. Plaintiffs' unopposed motion to supplement the summary judgment record (doc. # 144) is summarily granted. Plaintiffs' motion to strike an unsupported fact in defendant's reply to plaintiffs' response to the motion for summary judgment is granted, see infra note 1, and plaintiffs' motion for sanctions, costs and to compel (doc. # 101) is denied in part and is otherwise moot as discussed below.
The material facts of this case are fairly simple and, in large part, undisputed. Those facts that are in dispute are related in the light most favorable to plaintiffs, the nonmoving parties. The claims of both plaintiffs, who are husband and wife, arise out of plaintiffs' separate shopping trips to defendant's store in Atchison, Kansas.
On August 5, 2002, plaintiff Tim Hester went to the Wal-Mart store in Atchison for the purpose of making an initial down payment of twenty dollars on a layaway agreement for the purchase of certain stereo equipment. Mr. Hester made his payment and, without making any purchases or doing any more shopping, began to leave the store. As he was leaving the store, two Atchison police officers detained him.
A Wal-Mart employee had called the officers to the store to assist in apprehending four individuals who, on that particular day, were involved in a joint effort to steal merchandise from the store. The officers were stationed near the store's exit and, as Mr. Hester approached the exit, a Wal-Mart employee near the exit contacted by walkie-talkie Derrick Dye, defendant's Loss Prevention Associate, to determine whether the individual attempting to leave the store (i.e., Mr. Hester) was involved in the shoplifting and whether he should be detained. According to plaintiffs, Mr. Dye instructed the employee to advise the officers to stop the individual. Thus, the police officers stopped Mr. Hester, escorted him back inside the store and brought him to Mr. Dye. At that point, Mr. Dye advised the officers that Mr. Hester was not involved in the theft and should be permitted to leave the store.
Two days later, Mr. Hester returned to the store to receive a full refund of the down payment that he had made on the layaway agreement. Wal-Mart did not prevent or otherwise interfere with Mr. Hester's receipt of a full refund.
One month later, on September 5, 2002, plaintiff Brenda Hester was shopping in the Atchison Wal-Mart store with her teenage daughter and a toddler. At some point during her shopping trip, Ms. Hester stopped in the shoe department and began trying several pairs of shoes on the toddler. Ultimately, Ms. Hester placed two pairs of shoes in her shopping cart and allowed the toddler to wear one pair, carrying the price tag with her. During this time, Derrick Dye was observing Ms. Hester and her conduct. According to defendant, Mr. Dye was watching Ms. Hester because she fit the description of a "known" shoplifter. Mr. Dye then followed Ms. Hester and her shopping party to the checkout aisle. Although Mr. Dye was standing very near Ms. Hester while she was checking out, he lost sight of Ms Hester for a period of time while he was advising one of defendant's assistant managers of the "situation." Ms. Hester paid for all of her merchandise, including the shoes that the toddler was wearing. According to defendant, Mr. Dye did not see Ms. Hester pay for the shoes that the toddler was wearing. Plaintiff asserts that Mr. Dye must have seen Ms. Hester pay for the shoes as he was standing right behind her in line.
In any event, as Ms. Hester was leaving the store, Mr. Dye grabbed her by the arm and accused her of stealing a pair of shoes. He asked her to return to the store and she refused, advising Mr. Dye that he was mistaken and that she had not stolen any merchandise. Mr. Dye then followed Ms. Hester into the parking lot, repeated his accusation that she had stolen merchandise, and again asked her to return to the store. Ms. Hester again refused to return to the store and advised Mr. Dye for the second time that he was mistaken. According to Ms. Hester, Mr. Dye then "jumped in front" of her and told her that he "could not let her leave" because she had shoplifted items from the store. At that point, Ms. Hester became upset and told Mr. Dye that he was "going to have to call the police or something." Ms. Hester alleges that Mr. Dye repeatedly called her a liar during their confrontation.
The police were contacted and arrived within ten minutes. While the record is not entirely clear, it appears that the officers compared Ms. Hester's cash register receipt with the items in her shopping bag, visited with the cashier and determined that Ms. Hester had not stolen any merchandise. Shortly thereafter, Ms. Hester went back into the store to return all of the merchandise for a full refund.1 While Ms. Hester concedes that no one interfered with her return of the merchandise or her receipt of a full refund, it is undisputed that Mr. Dye accompanied Ms. Hester back into the store and stayed with her as she returned the merchandise.
Plaintiffs have secured the services of various experts who testified that both plaintiffs were the victims of racial profiling and that Mr. Dye detained both plaintiffs on the basis of their race. Additional facts will be provided as they relate to plaintiffs' particular claims.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. American Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.
Finally, the court notes that...
To continue reading
Request your trial