Huynh v. Walmart Inc.

• Decision Date: 04 April 2022
• Docket Number: 21-20277
• Citation: 30 F.4th 448
• Parties: Thalia HUYNH; Dalena Bustos, Plaintiffs—Appellants, v. WALMART INC.; Wal-Mart Stores Texas, L.L.C., Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

30 F.4th 448

Thalia HUYNH; Dalena Bustos, Plaintiffs—Appellants,

v.WALMART INC.; Wal-Mart Stores Texas, L.L.C., Defendants—Appellees.

No. 21-20277

United States Court of Appeals, Fifth Circuit.

FILED April 4, 2022

Mo Taherzadeh, Husein Hadimohammadabad, Houston, TX, for Plaintiffs—Appellants.

Neal Alexander Hoffman, Bush & Ramirez, P.L.L.C., Houston, TX, for Defendants—Appellees.

Before Dennis, Southwick, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

In certain circumstances under Texas law, shopkeepers can detain suspected shoplifters. In 2017, Walmart employees stopped Thalia Huynh and her daughter, Dalena Bustos, on just such a suspicion. After the situation escalated (to put it gently), the two sued Walmart in state court, alleging false imprisonment among other claims. Walmart removed the case to federal court, and the district court eventually dismissed some of Huynh and Bustos's claims and entered summary judgment in favor of Walmart on the remaining ones. The court determined that Walmart's employees acted appropriately and that plaintiffs could not prove their claims. We affirm.

I.

In June 2017, Antonio De La Cruz and Tyrone Rock were working as asset protection associates at a Walmart in the greater-Houston area. De La Cruz was monitoring the store's security cameras while Rock circulated throughout the store. De La Cruz saw Thalia Huynh move through several clothing sections in the store, pick up merchandise, and place the merchandise in her purse. De La Cruz called Rock, gave him a description of Huynh, and asked him to stop her before she left the store.

Two security cameras recorded what happened next. Rock saw Huynh leaving and jogged in front of her shopping cart in the store's vestibule. De La Cruz arrived shortly after Rock. Rock asked Huynh to return the merchandise, but Huynh instead took her purse out of the otherwise empty cart and moved to walk around Rock and out of the store. Rock responded by grabbing Huynh's purse. Huynh did not let go of the purse and instead tried to yank it away from Rock while Rock slowly walked back into the store, purse and Huynh in tow. Dalena Bustos followed her mother and Rock as they reentered the store. De La Cruz trailed behind the three.

As other shoppers passed by (shortly, many would congregate to watch the unfolding spectacle), Bustos intervened and began tugging on the purse as well. After saying something to Rock, Bustos attacked him—the store video shows her punching, kicking, and biting him.

At this point Marcus McNeil intervened, and Rock and De La Cruz had no further direct involvement in the altercation. McNeil was an off-duty Houston police officer working as a store security guard. He had been escorting two assistant managers while they collected money from registers throughout the store.

McNeil quickly handcuffed Bustos and then began trying to subdue and handcuff Huynh. Huynh resisted, though McNeil was eventually able to cuff her. To little avail: the store video shows that Bustos and Huynh were literally kicking and screaming, attempting to attack McNeil despite their restraints. Almost immediately after McNeil handcuffed Huynh, Bustos aimed a kick at him. In response, McNeil dropped Bustos to the floor; when he did, Huynh began kicking him. McNeil then attempted to subdue Huynh, finally forcefully throwing her to the floor as well. Even then, Huynh and Bustos both continued to kick at McNeil for the next minute or so. McNeil held them there until Houston police officers arrived approximately four minutes later. The officers removed Huynh and Bustos from the store.

Following the incident, Huynh and Bustos sued Walmart, Inc. in Texas state court. They alleged claims for false imprisonment, malicious prosecution, assault and battery, offensive physical contact, intentional infliction of emotional distress, negligence, negligence per se, gross negligence, and violations of the Texas Deceptive Trade Practice & Consumer Protection Act. Wal-Mart Stores Texas, LLC, filed an answer, noting that it, not Walmart, Inc., was the proper defendant.¹ Walmart then filed a notice of removal to federal district court, alleging complete diversity as the ground for subject-matter jurisdiction.²

Shortly after removal, Walmart filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Texas Deceptive Trade Practice & Consumer Protection Act claim as well as the malicious prosecution, intentional infliction of emotional distress, and negligence per se claims. The district court granted the motion and dismissed those claims. After discovery, Walmart moved for summary judgment on plaintiffs' remaining claims. The district court granted summary judgment, noting that the video recording of the altercation between Huynh, Bustos, Rock, De La Cruz, and McNeil materially refuted the version of events advanced by Huynh and Bustos. Plaintiffs now appeal.

II.

A.

Huyhn and Bustos begin by challenging the district court's Rule 12(b)(6) dismissal of their Texas Deceptive Trade Practices & Consumer Protection Act claim. This court reviews a grant of a motion to dismiss de novo. Budhathoki v. Nielsen , 898 F.3d 504, 507 (5th Cir. 2018) (citing Wampler v. Sw. Bell Tel. Co. , 597 F.3d 741, 744 (5th Cir. 2010) ). In order to survive a motion to dismiss, a plaintiff must "plead ‘enough facts to state a claim to relief that is plausible on its face.’ " Wampler , 597 F.3d at 744 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). As this is a diversity case involving claims alleged under Texas law, this court applies Texas's substantive law. Klocke v. Watson , 936 F.3d 240, 244 (5th Cir. 2019) (citing Hanna v. Plumer , 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) ).

The Texas Deceptive Trade Practices & Consumer Protection Act "protects a consumer from ‘false, misleading, or deceptive acts or practices,’ from an ‘unconscionable action or course of action by any person,’ and from the breach of an implied or express warranty in the conduct of any trade or commerce that is the producing cause of actual damage." Miller v. Kim Tindall & Assocs., LLC , 633 S.W.3d 102, 104-05 (Tex. App. 2021) (internal quotation marks omitted) (quoting Lukasik v. San Antonio Blue Haven Pools, Inc. , 21 S.W.3d 394, 400 (Tex. App. 2000) ). To sustain a claim under the Act, a plaintiff must show that "(1) the plaintiff was a consumer; (2) the defendant either engaged in false, misleading, or deceptive acts ... or engaged in an unconscionable action or course of action; and (3) the [Act's] laundry-list violation or unconscionable action was a producing cause of the plaintiff's injury." Bus. Staffing, Inc. v. Jackson Hot Oil Serv. , 401 S.W.3d 224, 236 (Tex. App. 2012) (citing Amstadt v. U.S. Brass Corp. , 919 S.W.2d 644, 649 (Tex. 1996) ; Doe v. Boys Clubs of Greater Dall., Inc. , 907 S.W.2d 472, 478 (Tex. 1995) ).

Huynh and Bustos allege that they "were consumers because they sought or acquired goods from Walmart," and that "Walmart committed an unconscionable act[.]" A consumer is defined by the Act as "an individual ... who seeks or acquires by purchase or lease, any goods or services[.]" TEX. BUS. & COM. CODE § 17.45(4). An unconscionable act in this context is defined as "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree." Id. § 17.45(5). The Texas Supreme Court has held that "[t]o prove an unconscionable action or course of action, a plaintiff must show that the defendant's act took advantage of her lack of knowledge and ‘that the resulting unfairness was glaringly noticeable, flagrant, complete and unmitigated.’ " Ins. Co. of N. Am. v. Morris , 981 S.W.2d 667, 677 (Tex. 1998) (quoting Chastain v. Koonce , 700 S.W.2d 579, 584 (Tex. 1985) ).

Nowhere in their pleadings or briefs do Huynh and Bustos identify any facts that would establish an unconscionable action by Walmart under the Texas Deceptive Trade Practices & Consumer Protection Act. They do not assert that Walmart took advantage of their lack of knowledge; rather, they allege that Walmart restrained, assaulted, and battered them. This conduct does not fall within the ambit of unconscionability under the Act. Further, unconscionability must relate to the alleged transaction itself, not "post-transaction conduct[.]" Charlie Thomas Chevrolet, Ltd. v. Martinez , 590 S.W.3d 9, 19 (Tex. App. 2019). As a result, Huyhn and Bustos fail to state a claim under the Act, and the district court properly granted Walmart's motion to dismiss.

B.

Huyhn and Bustos next assert that the district court improperly granted summary judgment to Walmart on their claims for false imprisonment, offensive contact, assault and battery, negligence, and gross negligence. A grant of summary judgment is reviewed de novo. RealPage, Inc. v. Nat'l Union Fire Ins. Co. , 21 F.4th 294, 297 (5th Cir. 2021) (quoting Luminant Mining Co. v. PakeyBey , 14 F.4th 375, 379 (5th Cir. 2021) ). "Summary judgment is merited 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.’ " Id. (internal quotation marks omitted) (quoting PakeyBey , 14 F.4th at 379 ). When the record includes video recordings, "as is the case here, the video depictions of events, viewed in the light most favorable to the [non-movant], should be adopted over the factual allegations ... if the video ‘blatantly contradict[s]’ those allegations." Harmon v. City of Arlington , 16 F.4th 1159, 1163 (5th Cir. 2021) (quoting Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).

Huyhn and Bustos assert that McNeil, Rock, and De La Cruz each committed acts underlying plaintiffs' claims for false imprisonment, offensive contact, and assault and battery. They further contend that Walmart is vicariously liable for the actions. In response,...