Petr v. J.C. Penney Corp., Inc., 1:11-cv-00825-RLY-MJD
| Decision Date | 25 July 2012 |
| Docket Number | 1:11-cv-00825-RLY-MJD |
| Parties | JOHN PETR, Chapter 7 Trustee for the Estate of Maria L. Burton, Plaintiff, v. J.C. PENNEY CORPORATION, INC., Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
In this diversity case, John Petr, Chapter 7 Trustee for the Estate of Maria L. Burton ("Burton"), brings a multitude of state law claims against J.C. Penney Corporation, Inc. ("JCP") arising out of Burton's detention and arrest for allegedly engaging in the act of, or participating in, the theft of merchandise from the JCP store located in the Castleton Square Mall in Indianapolis, Indiana. JCP now moves for summary judgment on all of Burton's claims. For the reasons set forth below, the court GRANTS JCP's motion.
On January 25, 2011, Burton went to Castleton Square Mall with her sister, Delisha Burton ("Delisha") and Delisha's friend, Ashlyn Owens ("Ashlyn"). (Deposition of Maria Burton ("Burton Dep.") at 22). They entered the JCP store and shopped in various departments, at times shopping together and at other times, shopping separately.(Id. at 23). JCP's Loss Prevention Supervisor Lisa Herrmann ("Officer Herrmann") and Loss Prevention Officer Brad Graves ("Officer Graves") observed Ashlyn and Delisha each select three items of fragrance and placed the merchandise in a mesh shopping bag. (Affidavit of Lisa Herrmann ("Herrmann Aff.") ¶ 4; Affidavit of Bradley Graves ("Graves Aff.") ¶¶ 4-5). Ashlyn and Delisha met up with Burton in the Juniors section and the three shopped for clothes. (Herrmann Aff. ¶ 5; Graves Aff. ¶ 7). Burton selected two tops and a pair of pants, and entered into the dressing room. (Video 2, Camera 16 5:30:00 -5:31:40). Ashlyn selected a juniors sweater from the display and several other items and proceeded into the dressing room approximately three minutes later, followed by Delisha. (Herrmann Aff. ¶ 5; Graves Aff. ¶ 7; see also Video 2, Camera 16: 5:30:00-5:34:30).
Officer Herrmann went into the dressing room and testified that, based on her observation below the doors of the dressing room stalls, Burton and Ashlyn were in the same stall. (Herrmann Aff. ¶ 6). Burton disputes this fact. (Burton Dep. at 26).
Delisha came out of the dressing room several minutes before Burton and Ashlyn. (Video 2, Camera 16: 5:39:37-5:42:19). Burton, with clothes in hand, turned toward the right; Ashlyn put her clothes down near the dressing room exit. (Id., 5:42:20-5:42:30). After the three women left the dressing room, Officer Herrmann visually inspected the dressing room stalls that she believed the women used, and did not find any fragrance merchandise. (Herrmann Aff. ¶ 9).
Burton, Ashlyn and Delisha eventually met up at the exit of the store. (BurtonDep. at 30). Officer Herrmann and Officer Graves testified that they, along with fellow Loss Prevention Officer Wayne Pinkerton ("Officer Pinkerton"), stopped the three women and asked them to return to the store. (Herrmann Aff. ¶¶ 10-11; Graves Aff. ¶ 13). Burton refused and kept walking into the interior of the mall. (Herrmann Aff. ¶ 11; Graves Aff. ¶ 13; Burton's Answer to Interrogatory No. 4 ()). Burton then called her mother and walked out of the mall. (Id. at 33-34). Ashlyn confessed to shoplifting three items of fragrance and one item of clothing, leaving three items of fragrance unaccounted for. (Herrmann Aff. ¶¶ 12-13; Burton Dep. at 49, 59).
Officer Graves maintained observation of Burton while she exited the mall and proceeded to the Longhorn Steak House restaurant in the mall outlot. (Graves Aff. ¶ 14). During this time frame, Officer Graves was informed via radio communication that some, but not all, of the JCP merchandise had been recovered. (Id. ¶ 15). Upon questioning, Officer Graves informed Mall Security Director Chad Bunner of what he had observed, and Security Director Bunner called the Indianapolis Police Department ("IMPD"). (Graves Aff. ¶¶ 17-18).
Burton entered the restaurant and went immediately into the restroom. (Id. at 39). Officer Ivanov of the IMPD arrived while Officer Graves was outside of the restaurant. (Graves Aff. ¶ 18). Officer Ivanov and Officer Graves entered the restaurant. (Burton Dep. at 41; Graves Aff. ¶ 20). Officer Graves opened the restroom door, told Burton to exit, and checked the restroom trash can for stolen merchandise. (Burton Dep. at 41). Assoon as Burton walked out of the restroom, Officer Graves identified her as the person he believed was involved in the act of shoplifting with Ashlyn. (Graves Aff. ¶ 20). She was immediately handcuffed by Officer Ivanov and escorted across the parking lot into the JCP loss prevention office, where she was detained for approximately an hour. (Burton Dep. at 44, 51). Present were the JCP store manager, Officer Graves, Officer Pinkerton, Ashlyn, and Burton. (Id. at 50). The officers did not find any stolen merchandise on Burton's person or in her purse. (Graves Dep. at 32, 36; Burton Dep. at 52-53).
Burton was transported to the Marion County Jail where she was booked and charged with theft and conversion. (Burton's Answers to Interrogatory No. 4). Master Commissioner Murphy of the Marion Superior Court, Criminal Division, entered a judicial finding of probable cause for the arrest of Burton. (Marion County Case Chronology for Cause No. 49 F07 1101 CM 005612).
On March 25, 2011, Burton's case was dismissed due to "evidentiary problems." (See Motion to Dismiss). The following month, the record relating to Burton's arrest was expunged by the Marion Superior Court. (See Order Granting Petition for Expungement).
Summary judgment is appropriate "if 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." FED. R. CIV. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). The non-moving party, however, may not rest on mere allegations or denials in itspleadings, but rather must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
A genuine issue of material fact exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. Stated differently, only disputes over material facts - i.e., "facts that might affect the outcome of the suit under the governing law" - will preclude the entry of summary judgment. Id. Disputes over immaterial or irrelevant facts will not. Id. at 247-48. When determining whether a genuine issue of material fact exists, the court views the record and all reasonable inferences in the light most favorable to the nonmoving party. Id. at 255.
Plaintiff's Amended Complaint asserts the following causes of action under Indiana law: negligence, abuse of process, false light publicity, defamation, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. Before reaching the merits of these causes of action, the court must first address whether JCP and its loss prevention officers are entitled to immunity under Indiana's common law qualified communications privilege.
"A qualified privilege protects 'communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to aperson having a corresponding interest or duty.'" Holcomb v. Walter's Dimmick Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. Ct. App. 2006) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)). Because of the compelling public interest in encouraging citizens to report criminal activity, communications to law enforcement are qualifiedly privileged. Id. A communication loses its privileged status if the plaintiff can show that the privilege has been abused. Id. "Abuse of the privilege is proven by showing that: '(1) the communicator was primarily motivated by ill will in making the statement; (2) there was excessive publication of the defamatory statements; or (3) the statement was made without belief or grounds for belief in its truth.'" Id. (quoting Bals, 600 N.E.2d at 1356).
Burton argues that Officer Graves, Officer Herrmann, and Officer Pinkerton are not entitled to the qualified privilege because they made statements to the IMPD implicating Burton that were made without belief or grounds for belief in their truth. In support of Burton's claim, Burton argues that the statements made in the Affidavit of Probable Cause authored by Officer Graves contained a multitude of "glaring misstatements" and purposefully excluded the fact that neither Officer Graves nor Officer Herrmann saw Burton in possession of the missing merchandise.
"[T]he privilege exists to protect tipsters from liability for making inaccurate reports." Williams v. Tharp, 934 N.E.2d 1203, 1210 (Ind. Ct. App. 2011). Accordingly, in determining whether one is entitled to the qualified privilege based upon the third circumstance (whether the statement was made without belief or grounds for belief in itstruth), the relevant inquiry is not the factual accuracy of one's statements to law enforcement; "the critical issue is whether the alleged defamations were made . . . without belief or grounds for belief as to truth." Bals, 600 N.E.2d at 1357. The Indiana Court of Appeals decision in Tharp1 is illustrative of this point. In Tharp, two male customers of Papa John's brought claims against Tharp and Papa John's for defamation, false imprisonment, negligence, and intentional...
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