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Bailey v. Advance America, Cash Advance Centers, Inc.

United States District Court, S.D. Mississippi, Northern Division

August 4, 2017




         This cause is cause is before the court on the partial summary judgment motion of defendants Advance America, Cash Advance Centers, Inc.; Advance America, Cash Advance Centers of Mississippi, LLC; Express Check Advance of Mississippi LLC (collectively Advance America); and Terrence Sauber. Plaintiffs Charles Bailey, Catanza Baker, Stacy Caston, R.J., a minor, by and through her natural mother and next friend, Tommiecina Johnson, Tommiecina Johnson, Johnita Smith and Laquana Winters have responded in opposition to the motion. The court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes the motion should be granted in part and denied in part.


         Plaintiffs filed this lawsuit alleging claims for assault, unlawful detainment/false imprisonment[1], and intentional infliction of emotional distress, among others, against Terrence Sauber and Advance America[2] relating to events alleged to have occurred on March 19, 2015 at the Express Check Advance branch in Vicksburg, Mississippi, a pay day/title loan business owned and operated by Advance America. On the afternoon of March 19, 2015, Terry Sauber, a regional loss prevention officer for Advance America, accompanied by Toni Jones, a divisional director of operations for Advance America, went to the Vicksburg store to conduct a loss prevention investigation. Earlier that day, Sauber had received an email from corporate headquarters expressing concern that over a period of several months, deposits from the Vicksburg store were routinely made two to three days late, suggesting possible impropriety.[3] Sauber was asked to investigate. Sauber promptly contacted Jones to arrange for the two of them to go to the Vicksburg store. Their plan was to ask the manager if the store was going to balance, that is, if the cash on hand in the store would equal the amount the store's computer records showed should be present. If the manager said yes, then Sauber and Jones would do a cash count to determine whether all the money was present and accounted for.

         When Sauber and Jones arrived at the store, three employees were present, Johnita Smith, Laquana Winters, and Stacy Caston. The store's “banker, ” Catanza Baker, was supposed to be there but was out; she was called and told to return to the store, and she did. Also present at the store were customers Charles Baker and Tommiecina Johnson and Johnson's minor daughter, R.J. Sauber spoke with the manager, Baker, who stated that the store would balance. Plaintiffs allege that Sauber then proceeded to “intentionally and unlawfully detain[] [them] by locking the doors to the business and intentionally and unlawfully put[ting] the plaintiffs in fear of eminent, serious bodily harm by exhibiting aggressive and loud behavior.” This went on, according to plaintiffs, for approximately two hours, while Sauber and Jones did a count of all the money in the store. Ultimately, all the money was accounted for; the store did balance and Sauber left the store.

         Defendants have now moved for summary judgment on plaintiffs' claims for false imprisonment/unlawful detainment and assault.

         Summary Judgment Standard

         Summary judgment is proper “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). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, the court must view the evidence in the light most favorable to the non-movant, and it may not make credibility determinations or weigh the evidence. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Once the moving party shows there is no genuine dispute as to any material fact, the nonmoving party “must come forward with specific facts showing a genuine factual issue for trial.” Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011).

         False Imprisonment

         To succeed on a claim of false imprisonment, a plaintiff must show that she was “detained and (2) that such detainment was unlawful.” Mayweather v. Isle of Capri Casino, 996 So.2d 136, 140 (Miss. Ct. App. 2008). In Martin v. Santora, 199 So.2d 63(Miss. 1967), the Mississippi Supreme Court, considering an employee's claim for false imprisonment based on allegations her employer required her to accompany the police to the police station to have her fingerprints taken in connection with a burglary investigation, stated:

It is essential to a cause of action for false imprisonment that there shall have been some detention or restraint of the person of the plaintiff. ... On the other hand, submission to the mere verbal direction of another, unaccompanied by force or by threats of any character, cannot constitute a false imprisonment, and there is no false imprisonment where an employer interviewing an employee declines to terminate the interview if no force or threat of force is used, and false imprisonment may not be predicated on a person's unfounded belief that he was restrained against his will. In order to constitute an unlawful imprisonment, where no force or violence is actually employed, the submission of the plaintiff must be to a reasonably apprehended force. The circumstances merely that one considers himself restrained in his person is not sufficient to constitute false imprisonment unless it is shown that there was a reasonable ground to have believed defendant would resort to force if plaintiff attempted to assert her right to freedom.

Martin, 199 So.2d at 65. Thus, plaintiffs can succeed on their claim of false imprisonment only if they present proof that Sauber used “force or violence” to detain them or that they had reasonable grounds for believing he would have used such force to detain them had they attempted to leave. See also Nelson v. Nationwide Mut. Ins. Co., No. 3:11-CV-223-DPJ-FKB, 2012 WL 393242, at *3 (S.D.Miss. Feb. 6, 2012) (“Detention requires proof that the defendant employed ‘force or violence, ' or that the plaintiff submitted upon ‘reasonably apprehended force.'”) (citing Martin); see also Hobson v. Dolgencorp, LLC, 142 F.Supp.3d 487, 493-94 (S.D.Miss. 2015)(even if employee under questioning by employer relating to alleged shoplifting was told she could not leave, her submission “‘to the mere verbal direction of another, unaccompanied by force or by threats of any character, cannot constitute a false imprisonment....'”); Mayweather, 996 So.2d at 141 (casino patron's testimony that officer sat in front of door when she was questioned relating to theft of another customer's wallet was not enough to show reasonable apprehension of force, “especially considering that she willingly accompanied security to the interview room and never attempted to or asked to leave”).

         Defendants seek summary judgment on plaintiffs' false imprisonment claims because they cannot prove that Sauber detained them. Plaintiffs maintain that by Sauber's own admission, he “locked the doors to the building” so that he could “get control of everything”; this, they say, plainly establishes that he intended to detain plaintiffs and that he did physically detain them by locking the doors, and they claim that he then used fear, intimidation and the prospect of physical force to keep them from leaving. They submit that based on Sauber's actions, they had every reason to believe that he would have used force against them had they tried to assert their freedom.


         “Assault occurs where a person ‘(a) ... acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.'” Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991) (quoting Restatement (Second) of Torts § 21 (1965)). “An act is done with the intent of putting the other in apprehension of an immediate harmful or offensive contact if it is done for the purpose of causing such an apprehension or with knowledge that, to a substantial certainty, such apprehension will result.” Jordan v. Wilson, 5 So.3d 442 (Miss. Ct. App. 2008) (quoting Restatement (Second) of Torts § 21, cmt. D). Moreover, the apprehension must be objectively reasonable. Thus, for example, the Fifth Circuit found there was no triable issue of assault in DePree v. Saunders, 588 F.3d 282 (5th Cir. 2009), where the defendant's alleged actions of “aggressively walk[ing] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-a-bitch, ' and shaking papers in his face” could not have created a reasonable apprehension of imminent, harmful contact. Id. at 291.

         Defendants seek summary judgment on plaintiffs' assault claims on the basis that plaintiffs cannot prove that Sauber intended to make harmful or offensive contact with them or that they had reason to believe and actually believed that he intended to have such harmful or offensive contact with them. Plaintiffs submit that the totality of Sauber's acts and behavior shows that he intended to put them in apprehension of immediate harmful or offensive contact, and he obviously knew that such an apprehension would almost certainly result.

         The court, with these legal principles and the parties' arguments in mind, considers the evidence[4] to determine whether any of the plaintiffs has created an issue for trial on either of these claims.[5]

         Catanza Baker

         Catanza Baker was the manager of the Vicksburg Express Check store on March 19, 2015. According to her testimony, when Sauber first arrived, he introduced himself to her, told her he had concerns about the store and asked whether the safe was going to balance. When she said it would, he responded, “Don't lie to me, ” and proceeded to tell her that if she admitted up front that the safe would not balance, he would set her up on a payment plan, but that if she did not agree to that and her safe did not balance, she would be “leaving out of here in handcuffs today.” He then walked to the front of the store, locked the door and placed himself squarely in front of the door with his arms crossed. Baker testified that she felt Sauber “would have did [her] bodily harm” if she had “tried to walk out that door.” However, as to the basis for this fear, she offered only that she was “just afraid of his whole demeanor. ... the way he was acting to me, he was just so aggressive.” She testified she did not ask to leave because she was afraid:

I wasn't going to say anything to Mr. Sauber because he was very hostile. ... He had turned red. His - his whole demeanor - standing up there aggressive. And he had already threatened me that I'm going to jail, so I was too afraid to say anything to him. ... This man was so aggressive with me and he wouldn't let us out that store. I was literally terrified of this man. ... How am I going to approach someone who has already threatened me that if a dime is missing, I'm going to jail and is standing in front of a door, blocking the door where I can't even walk outside.

         Baker admitted Sauber never verbally threatened her with physical harm; yet she claimed she felt threatened by

his whole demeanor - and then when he went and stood by that door - I mean, I'm not going anywhere. Let's say I just wanted to walk outside and get a breath of fresh air, that right was denied me because you're standing - you've not only locked the door, you have stand - stood right in front of the door with your arms crossed in an aggressive manner.

         Baker testified that Sauber told them they were not leaving until the money was counted. And while Baker testified that Sauber “would not let me leave of my free will, ” she admitted she never asked to leave, at least while the money was being counted. She agreed, moreover, that since she was the store manager, she wanted to stay at the store while the money was being counted. Further, she testified that after the money had been counted and ...

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