Nasim v. Tandy Corp.

• Decision Date: 14 September 1989
• Docket Number: Civ. No. K-85-1072.
• Citation: 726 F. Supp. 1021
• Parties: Ghulam Mohammed NASIM v. TANDY CORPORATION.
• Court: U.S. District Court — District of Maryland

726 F. Supp. 1021

Ghulam Mohammed NASIM v. TANDY CORPORATION.

Civ. No. K-85-1072.

United States District Court, D. Maryland.

September 14, 1989.

Joseph H. Young and Hogan & Hartson, Baltimore, Md., for plaintiff.

Barry Bach, Catherine A. Potthast and Smith, Somerville & Case, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Senior District Judge.

In this case, plaintiff, Ghulam Mohammed Nasim (Nasim), seeks compensatory and punitive damages from defendant Tandy Corporation, for the torts of false imprisonment and malicious prosecution. In a July 20, 1988 Memorandum and Order, this Court previously dismissed plaintiff's claim for false imprisonment because the statute of limitations on that cause of action had expired. Tandy has moved for summary judgment with respect to the malicious prosecution claim. That motion, for reasons stated in this opinion, will also be granted.¹

Nasim was arrested on March 9, 1982 at a Radio Shack store in Glen Burnie, Maryland by members of the Anne Arundel County Police Department. A statement of charges was completed by Anne Arundel County Police Officer Koenig, charging Nasim with forgery and credit card offenses. Subsequently, the forgery charge was nol prossed, and the case proceeded to trial on the misdemeanor charge of receiving a stolen credit card in violation of Md. Ann.Code art. 27, § 44. At the conclusion of the state's evidence, the trial court granted Nasim's motion for judgment of acquittal, reasoning that no evidence had been presented that Nasim knew the credit card had been stolen. The testimony at trial reveals the following facts which led to Nasim's arrest.

The manager of the store, Anthony O'Hara, testified that on March 9, 1982, Nasim and a woman entered the store together, looked around for a few minutes and selected certain items for purchase. They brought all of the items up to the counter where a sales clerk prepared a receipt. The woman asked if she could pay for her purchases by check. She was told that she could, and proceeded to write a check and to produce a major credit card and a form of positive identification as requested by the cashier. Specifically, the woman produced a Master Charge credit card in the name of Helen Mullineaux, along with an age of majority card.² A Radio Shack employee then called Master Charge to ascertain the credit availability of the cardholder. Master Charge informed that Radio Shack employee that the latter should call the police. Accordingly, that employee retained possession of the charge card and called the police.

When the manager came back on the floor, the woman calling herself Helen Mullineaux had walked out of the front of the store. O'Hara testified that he handed the card back to Nasim, who was waiting at the counter with the merchandise, and that he (O'Hara) stated that it would be several minutes until the check would be approved. Nasim proceeded to walk around the store and wait near the counter where the merchandise was located. The Anne Arundel County police arrived and arrested Nasim.

Officer Koenig testified at trial that when he walked into the store, O'Hara identified Nasim and informed the officer that Nasim had a stolen credit card. The officer told Nasim that he had presented a stolen credit card, and began to pat him down. Nasim told the officer that he knew the woman by the name of Helen and that he had met her on "the block." The officer asked him where Helen lived but Nasim did not give the officer an address. When the officer asked Nasim where Helen had gone, "he stated that while he was waiting in the store, he had let the female have the keys to his car so she could pick up her children somewhere on Mountain Road."

Helen Mullineaux testified at trial that her pocketbook had been stolen, including her checks and credit card, and that she had reported the theft to the Anne Arundel County Police Department on February 10, 1982.

Nasim's version of the incident differs in several respects. Nasim states that he entered the store accompanied by some friends, and that he spoke to "Helen" at the sales counter because she was purchasing an item which interested him. At some point during the check approval process, the woman "asked me to look after her purchases until she returned. She explained ... that she was going out to her car to check on her children." Affidavit of Ghulam Nasim at ¶ 4. Nasim states that when O'Hara returned to the register, he asked him where the woman had gone. Nasim's friends³ wanted to leave but O'Hara refused to allow Nasim to leave and "pushed him into a chair where he physically restrained him until the police arrived." Nasim states that he (O'Hara) called him an "Iranian bastard" and stated that "he hated Indians and Iranians." Nasim Aff. at ¶ 6.

Nasim further states that before entering the Radio Shack he did not know and had never met the woman who identified herself as "Helen." He also says that he knew nothing about the forged check or stolen credit card she attempted to use. He states that he informed O'Hara of the above facts, but that "he made no attempt to verify them or to locate the other individuals with whom I had entered the store." Nasim Aff. at ¶ 7.

Defendant's Motion for Summary Judgment

The above statement of facts reveals that there are some factual disputes between plaintiff and defendant. However, Tandy asserts that it is entitled to summary judgment as a matter of law because the undisputed facts do not support a claim of malicious prosecution, even giving to plaintiff the benefit of all factual differences and references. This Court agrees.

While the tort of malicious prosecution is not favored in the law, Exxon Corp. v. Kelly, 281 Md. 689, 693, 381 A.2d 1146 (1978), it is recognized in Maryland in appropriate cases. Id. The elements of a cause of action in Maryland for malicious prosecution of a criminal charge have been articulated as follows: "(a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) `malice', or a primary purpose in instituting the proceeding other than that of bringing an offender to justice." Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, 122 A.2d 457 (1956), quoted with approval in Exxon Corp. v. Kelly, 281 Md. at 693, 381 A.2d 1146. It is undisputed that the criminal proceeding terminated in favor of Nasim, i.e., the trial court granted a motion for judgment of acquittal at the conclusion of the state's case, finding that the prosecution had not proved that Nasim was in "knowing" possession of a stolen credit card. Furthermore, Tandy has presented no argument that it is entitled to summary judgment with respect to the element of malice.⁴ However, Tandy argues that it is entitled to summary judgment because the record independently establishes that (1) Tandy did not institute or continue the proceeding against Nasim and (2) in any event, there was probable cause for Tandy's calling the police to the Radio Shack store.

In Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the Supreme Court stated that "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." The party moving for summary judgment need only show that "there is no genuine issue of material fact" and that it is entitled to a judgment as a matter of law. See also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

Whether Tandy Instituted or Continued the Proceeding Against Plaintiff

In order to succeed in an action for malicious prosecution, Nasim must show, inter alia, that Tandy instituted or continued the criminal proceeding against him.

"The defendant may be liable either for initiating or for continuing a criminal prosecution without probable cause. But he cannot be held responsible unless he takes some active part in instigating or encouraging the prosecution. He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused, even though his testimony is perjured, since the necessities of a free trial demand that witnesses are not to be deterred by fear of tort suits, and shall be immune from liability. On the other hand, if he advises or assists another person to begin the proceedings, ratifies it when it is begun in his behalf, or takes any active part in directing or aiding the conduct of the case, he will be responsible. The question of information laid before prosecuting authorities has arisen in many cases. If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer's decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable." Prosser, Law of Torts pp. 836-837 (4th ed. 1971) (footnotes omitted).

Wood v. Palmer Ford, Inc., 47 Md.App. 692, 700-01, 425 A.2d 671 (1981) (emphasis added). In Palmer Ford, Judge Orth commented with regard to the above quotation from Prosser: "This reflects the law of Maryland." Id.

In Safeway Stores v. Barrack, supra, the plaintiff was arrested and tried for the crime of theft at a Safeway store. The court stated that there were sufficient facts to warrant submitting plaintiff's malicious prosecution claim to the jury because, although defendant's employee Smith did not swear out a warrant, he was "the moving cause of his subsequent imprisonment." Id., 210 Md. at 174, 122 A.2d 457. "There was...