Sherrod v. Piedmont Aviation, Inc., No. CIV-2-77-179.

• Court: United States District Courts. 6th Circuit. Eastern District of Tennessee
• Writing for the Court: NEESE
• Citation: 516 F. Supp. 39
• Parties: Howell H. SHERROD, Jr., Plaintiff, v. PIEDMONT AVIATION, INC., Defendant.
• Docket Number: No. CIV-2-77-179.
• Decision Date: 24 July 1978

516 F. Supp. 39

Howell H. SHERROD, Jr., Plaintiff,
v.
PIEDMONT AVIATION, INC., Defendant.

No. CIV-2-77-179.

United States District Court, E. D. Tennessee, Northeastern Division.

May 25, 1978.

On Motion to Reconsider June 26, 1978.

On Motion to Dismiss Appeal July 24, 1978.

516 F. Supp. 40

COPYRIGHT MATERIAL OMITTED

516 F. Supp. 41

Dick L. Johnson, Johnson City, Tenn., for plaintiff

David W. Blankenship, Kingsport, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is a civil action for compensatory and punitive damages for the defendant's removal of the plaintiff from a commercial aircraft. 28 U.S.C. §§ 1332(a)(1), (c). The defendant Piedmont Aviation, Inc. (Piedmont) moved the Court for a summary judgment as to the plaintiff Mr. Sherrod's claims herein of false arrest and imprisonment, malicious prosecution, and abuse of process, supporting such motion with an affidavit. Rule 56(b), (e), Federal Rules of Civil Procedure. The plaintiff failed to make a timely response to such motion, local Rule 12(b), and is thus deemed to have waived any opposition thereto, local Rule 11(f).¹

Jurisdiction having been invoked herein on the basis of the diversity of citizenship of the parties and the requisite amount in controversy, 28 U.S.C. §§ 1332(a)(1), (c), this Court must look to the law of Tennessee including such jurisdiction's conflict of law rules. Boatland, Inc. v. Brunswick Corp., C.A.6th (1977), 558 F.2d 818, 8211. It being undisputed that all events surrounding the incident which is the basis herein of this action occurred in Illinois, under the conflict of law rules of Tennessee, this Court is required to apply the substantive law of Illinois. Telecommunications, E. S. & S. Co. v. Southern T. S. Co., C.A.6th (1975), 518 F.2d 392, 3944; Winters v. Maxey (Tenn., 1972), 481 S.W.2d 755, 7561.

The thrust of the plaintiff's claim is that, while he was seated in the defendant's commercial aircraft at O'Hare Field in Chicago awaiting its "take off," Piedmont's personnel ordered him to remove himself from the plane; that, when he refused to do so, they, without just cause, swore out an arrest warrant with the appropriate authorities charging him with the offense of disorderly conduct; that he was arrested and taken from the plane by the Chicago police pursuant to such warrant; and that he was thereafter imprisoned for some 2 hours in a Chicago police precinct station prior to posting bond.

The uncontroverted affidavit of Mr. Larry Brook, an employee of Piedmont, establishes

516 F. Supp. 42

that, on November 14, 1977 in a Chicago court, Mr. Sherrod was found guilty of disorderly conduct in connection with this incident and was ordered to forfeit his bond. Piedmont contends that such conviction bars the plaintiff's claim herein of false arrest and imprisonment, malicious prosecution, and abuse of process

"* * * It is settled Illinois law that a complaint for malicious prosecution `must allege facts showing that the prior litigation * * * had terminated favorably to the plaintiff.' * * *" LaSalle National Bank v. 222 East Chestnut Street Corp., C.A.7th (1959), 267 F.2d 247, 2525, certiorari denied (1959), 361 U.S. 836, 80 S.Ct. 88, 4 L.Ed.2d 77. Unless the underlying proceeding terminated in the plaintiff's favor, he cannot maintain an action for malicious prosecution. Barrett v. Baylor, C.A.7th (1972), 457 F.2d 119, 1223; Alberto-Culver Co. v. Andrea Dumon, Inc., D.C.Ill. (1969), 295 F.Supp. 1155, 11607; Schwartz v. Schwartz (1937), 366 Ill. 247, 250(1), 8 N.E.2d 668; Bonney v. King (1903), 201 Ill. 47, 50(2), 66 N.E. 377; McBean v. Ritchie (1856), 18 Ill. 114; Kay v. Boehm, C.A.Ill. (1975), 32 Ill.App.3d 853, 856(2), 336 N.E.2d 781; Elfgen v. Noll's Ice Cream & Frozen Food Co., C.A.Ill. (1971), 131 Ill.App.2d 1006, 1068(1), 267 N.E.2d 731; Neumann v. Ellars, C.A.Ill. (1966), 75 Ill.App.2d 394, 221 N.E.2d 85; Ammons v. Jet Credit Sales, Inc., C.A.Ill. (1962), 34 Ill.App.2d 456, 461-4624, 181 N.E.2d 601; Hargadine v. Sharkey, C.A.Ill. (1956), 8 Ill.App.2d 209, 2266, 131 N.E.2d 134; Breytspraak v. Gordon, C.A.Ill. (1948), 333 Ill.App. 650, 77 N.E.2d 860; Ligitos v. Finerman, C.A.Ill. (1946), 329 Ill.App. 241, 67 N.E.2d 610. A conviction in an underlying criminal prosecution is a complete defense and a bar to a malicious prosecution suit. DeCorrevant v. Lohman, C.A.Ill.² (1967), 84 Ill.App.2d 221, 2287, 228 N.E.2d 592; Galarza v. Sprague, C.A.Ill. (1936), 284 Ill.App. 254, 260(2), 1 N.E.2d 275; Dahlberg v. Grace, C.A.Ill. (1913), 178 Ill.App. 97, 101(1).

Mr. Sherrod makes no claim herein that the aforementioned criminal proceeding terminated in his favor, and the contrary is shown by an uncontroverted affidavit. Accordingly, he cannot maintain an action for malicious prosecution as to this proceeding.

By amendment to his complaint, the plaintiff avers that the defendant also filed charges against him with the Federal Aviation Administration, and that such charges "* * * were dismissed or dropped. * * *" This is still not sufficient for a malicious prosecution action. Under Illinois law, malicious prosecution involves "* * * the institution or continuation of an original judicial emphasis provided proceeding, either civil or criminal. * * *" 25 Ill.Law & Practice 571-572, Malicious Prosecution § 12. The plaintiff makes no claim herein that proceedings before the aforementioned federal administrative agency were judicial in nature, nor does he cite any authority indicating that the Illinois courts have extended the scope of malicious prosecution to cover such proceedings. This Court's research discloses none.

For the aforementioned reasons, Piedmont is entitled to a summary judgment as to the plaintiff's claim of malicious prosecution.

As to the plaintiff's claims of false arrest and imprisonment³ and abuse of process, however, it is not required that the underlying proceedings have terminated in favor of Mr. Sherrod. Prosser, Laws of Torts (4th ed., 1971) 49 n. 24, § 11 and 856, § 121. Therefore, Piedmont is not entitled to a summary judgment as to these claims. Nevertheless, as to these claims, the Court hereby EXCLUDES from its consideration the affidavit submitted in support of such

516 F. Supp. 43

motion and TREATS the motion as seeking a dismissal of these claims for the plaintiff's failure to state a claim upon which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure.⁴ See and cf. Marvasi v. Shorty, D.C.Pa. (1976), 70 F.R.D. 14, 171-5 and In re Penn Central Securities Litigation, D.C.Pa. (1972), 347 F.Supp. 1327, 134221, modified in part on other grounds D.C.Pa. (1973), 357 F.Supp. 869, affirmed C.A.3d (1974), 494 F.2d 528

Mr. Sherrod was required to have included in his complaint herein "* * * a short and plain statement of the claim showing that he is entitled to relief. * * *" Rule 8(a)(2), Federal Rules of Civil Procedure. While it was not necessary for the plaintiff to have set out a detailed accounting of all the facts upon which his claims were based, it was required that the complaint "* * * contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, * * * or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial. * * " 5 Wright & Miller, Federal Practice and Procedure: Civil 121-123, § 1216.

In ruling on a motion for a dismissal for the failure of a plaintiff to state a claim upon which relief can be granted, the Court is required to treat all well-pleaded allegations of the complaint as true, Miree v. DeKalb County (1977), 433 U.S. 25, 27, 97 S.Ct. 2490, 2492, 53 L.Ed.2d 557, 561 n. 22b, and to construe liberally such allegations in favor of the plaintiff, Ott v. Midland-Ross Corporation, C.A.6th (1975), 523 F.2d 1367, 13694. However, legal conclusions that may be alleged are not required to be accepted in ruling on such a motion, Blackburn v. Fisk University, C.A.6th (1971), 443 F.2d 121, 1245; nor is there any duty on the part of the Court to create a claim which the plaintiff has not spelledout in his complaint, Clark v. National Travelers Life Insurance Co., C.A.6th (1975), 518 F.2d 1167, 11692. Applying...