LeSure v. Walmart Inc., 21-cv-472-pp
| Court | United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin |
| Writing for the Court | HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE |
| Parties | CHANDI LESURE, Plaintiff, v. WALMART INC., Defendant. |
| Docket Number | 21-cv-472-pp |
| Decision Date | 24 August 2022 |
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 12) AND DISMISSING CASE
The plaintiff, a Black woman, filed a complaint in this district alleging that she entered the defendant's store in Plymouth, Indiana on August 9, 2020, purchased some items and was stopped by a security officer as she tried to leave the store. Dkt. No. 1. Although she was allowed to purchase the items and exit the store, the amended complaint alleges that the plaintiff was disproportionately monitored while in the store and that the defendant's security failed to place items back in her bag after checking it. Dkt. No. 11. She further alleges that the defendant's agents called law enforcement to report her as a shoplifter. Id.
The defendant filed a motion to dismiss, arguing that the plaintiff's two causes of action fail to state a claim. Dkt. No. 13 at 2. The defendant argues that the plaintiff's §1981 claim fails because she never was denied entry to the store or prevented from purchasing goods or services on account of race. Id.
The defendant argues that the plaintiff's defamation claim fails because the statements to law enforcement are privileged and she has not alleged any facts that would satisfy the malice element of a defamation claim. Id. at 11-15. The court will grant the defendant's motion and dismiss the case.
The plaintiff filed the original complaint on April 14, 2021; she was represented by counsel. Dkt. No. 1. The first four pages of that document consisted of quotes and facts allegedly taken from media and law review articles. Id. at 1-4. The complaint alleged that in August 2020, the plaintiff participated in a march by “caravan” from Milwaukee to Washington, D.C. Id. at ¶5. The march passed through Indiana, and on August 9, 2020 the plaintiff went to a Walmart in Plymouth, Indiana to purchase some items. Id. at ¶¶6-7. It alleged that while the plaintiff was shopping, she was “given disproportionate scrutiny by [the defendant's] security management and employees and which was disproportionate to that experience by her fellow white consumers at that same time and place.” Id. at ¶11. The plaintiff tried to leave the store after making her purchases; the complaint alleged that she was the “only black person leaving the store and also the only shopper who was stopped by management to have her purchases inspected before leaving.” Id. at ¶13. When the plaintiff asked why she was being stopped, she was told by the manager that it was “company policy.” Id. at ¶14. The plaintiff alleged that she then was accused of being a shoplifter and that the defendant's employees caused her to empty her shopping bags, while “white shoppers exited without being stopped, or having their purchases inspected or receipts checked.” Id. at ¶¶15-16. The defendant then called law enforcement to report the plaintiff as a shoplifter. Id. at ¶17.
The original complaint alleged a violation of 42 U.S.C. §1981, Id. at page 8, and a “[p]endent” state law claim of defamation, Id. at page 9.
On May 11, 2021, rather than answering the complaint, the defendant filed a motion to dismiss. Dkt. No. 7. The court issued an order reminding the plaintiff that, in lieu of responding to that motion to dismiss, the plaintiff could file an amended complaint; the court gave the plaintiff a deadline of June 1, 2021 to either respond to the motion or file an amended complaint. Dkt. No. 10. On that date, the plaintiff filed an amended complaint. Dkt. Nol. 11.
The “Jurisdiction” section of the amended complaint alleged that this court had jurisdiction “under the provisions of the Fair Credit Reporting Act 15 U.S.C. 1681.” Id. at 1, ¶1. The court assumes that this is a cut-and-paste failure; there are no facts in the complaint that could support a FCRA claim. The amended complaint stated that the court “also has jurisdiction to adjudicate this Federal Question under 42 U.S.C. 1981.” Id. at 1, ¶3. The amended complaint asserts that venue is proper in the Eastern District of Wisconsin “because the Defendants[1] conduct regular and systematic business activity within Milwaukee County in The State of Wisconsin.” Id. at ¶4.
As she did in the original complaint, the plaintiff alleges in the amended complaint that she joined a group of Black activists to march from Milwaukee, Wisconsin to a rally in Washington D.C. in August of 2020. Id. at ¶8. While passing through Plymouth, Indiana, the plaintiff decided to visit the defendant's store at 255 N. Oak Drive in Plymouth. Id. at ¶10. She felt that she was “given disproportionate scrutiny by [the defendant's] store security, management and employees which was disproportionate to that experienced by her fellow white consumers at that same time and place.” Id. at ¶13. When the plaintiff checked out, an employee scanned and bagged the items the plaintiff purchased. Id. at ¶14.
The plaintiff left the checkout counter and headed for the exit. Id. at ¶17. According to the plaintiff, defendant's agents contacted law enforcement while she was checking out and falsely reported her as a shoplifter. Id. at ¶20. At that point, she was the only Black person leaving the store and the only one stopped by management to have her purchases removed from her shopping bags and left in a cart before being asked to leave. Id. at ¶22. When the plaintiff asked why she was the only person stopped and had her purchases inspected and why white customers exited freely, she was told it was company policy. Id. at ¶23. She claims she was accused of being a shoplifter, both at checkout and at the exit to the store. Id. at ¶24. She again alleges that the defendant's employees caused her merchandise to be removed from her shopping bags, in contrast to white customers who left the store without being stopped or having their purchases checked. Id. at ¶25.
The plaintiff alleges that after the defendant's agents “identified a racially based policy to [the plaintiff],” they removed her merchandise from the bags, placed the items in an open cart and told her to leave without helping her rebag the items. Id. at ¶26. She says the bagging of the purchases is a condition precedent to a consumer purchase. Id. at ¶27. The plaintiff asserts that she has a right to enforce her contract for bagged merchandise, but that she was prevented from doing so because the store demanded that she leave without “the convenience of bagging her immediate purchases.” Id. at ¶29. The plaintiff alleges that this “deprived” her of “her right to enforce the contract which she had entered into with [the defendant] for the purchase of consumer goods.” Id. at ¶28.
The plaintiff further alleges that “upon information,” the defendant's agents reported to a “Local Newspaper” that the plaintiff had committed shoplifting offenses, which was not true. Id. at ¶34. The plaintiff alleges upon information and belief that based on the defendant's agents having contacted local law enforcement to report the plaintiff as a shoplifter, the “Local Newspaper published that [the plaintiff] had committed shoplifting offenses, which was not true.” Id. at ¶35. The plaintiff characterizes these statements as defamatory statements that were not true, and says that the defendant published them to third parties. Id. at ¶36. This allegedly cause the plaintiff apprehension and stress that “acts as a prohibition on any future consumer transaction(s) she may wish to enter into with [the defendant].” Id. at ¶37. The plaintiff says that the defendant doesn't have a race-neutral explanation for its policy of screening only Black consumers, id. at ¶38, and says that the defendant refused her the same level of service it provides to white customers, “thereby interfering with her right(s) to contact for the purchase of goods at the same level as a white customer.” Id. at ¶39.
The amended complaint alleges racial discrimination by a commercial establishment under 42 U.S.C. §1981. Id. at page 6. The plaintiff says that she was deprived of services that similarly-situated persons outside the protected class enjoyed, she received services in a markedly hostile manner, and that the conduct was outside accepted business norms and arbitrary on its face. Id. at ¶43. She further alleges that the defendant acted with reckless indifference to her federally-protected rights. Id. at ¶44. The amended complaint, like the original complaint, also asserts a pendent state law claim for defamation. Id. at page 7. The plaintiff says that the defendant, by its management, made a false statement or a set of false statements, with express malice and/or reckless disregard for the truth (that the plaintiff was a shoplifter). Id. at ¶47. The plaintiff also alleges that management made the false statements with ill will and/or bad intent and that those statements were communicated to others in speech or conduct and they were not privileged. Id. at ¶48.
The plaintiff seeks damages for emotional harm and special damages under Rule 9(g) in the amount of $6,325,500 (.005% of Wal-Mart's 2018 Gross Income of $126.51 billion) for the §1981 claim and general and punitive damages for the defamation claim. Id. at 7, 8.
The defendant filed a motion to dismiss the amended complaint less than three weeks after the plaintiff filed it. Dkt. No. 12. The plaintiff filed a brief in opposition, dkt. no. 15, and the defendant filed a reply in support, dkt. no. 16.
A motion to dismiss tests the sufficiency of a complaint, not the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a motion to...
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