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Noel v. Wal-Mart Stores, Inc.

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

March 22, 2018

GREGORY NOEL PLAINTIFF
v.
WAL-MART STORES, INC., ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

         Defendant Wal-Mart Stores, Inc., (“Wal-Mart”)[1] moved for summary judgment [27] in this malicious-prosecution case brought by former employee Plaintiff Gregory Noel. For the following reasons, the Court grants in part and denies in part Wal-Mart's motion; Noel's malicious-prosecution claim will proceed, but his claim for punitive damages will not.

         I. Background

         This case relates to alleged embezzlement by Gregory Noel, a former Wal-Mart employee. Wal-Mart hired Noel as an overnight maintenance associate at its Clinton, Mississippi, store in April 2015. A few months later, on June 26, 2015, Noel purchased several items in a transaction that was recorded by two video cameras, one directly above the cash register, and the other capturing a wider shot of the department where Noel made his purchases. There is no dispute that the cashier, Eric Redmond, “hand-keyed” the purchases, meaning he entered the prices by hand rather than scanning the items. This violated Wal-Mart policy.

         Redmond was already on Wal-Mart's radar for expected theft. So at some point after this incident, Wal-Mart's asset-protection manager Alexandria Brookins reviewed the video footage. She also pulled the transaction history from that night and discovered that Noel paid $5.00 for his purchases-$1.42 less than he should have. Pl.'s Mem. [34] at 2. Based on this evidence, Brookins reported Noel's alleged theft, and he was charged with embezzlement. The charge was later dropped after Noel prevailed at trial.

         Aggrieved, Noel sued Wal-Mart in state court alleging false arrest, malicious prosecution, intentional infliction of emotional distress, false imprisonment, and defamation. See Compl. [1-2]. Wal-Mart promptly removed the action to federal court based on diversity jurisdiction and, after discovery, requested summary judgment. See Notice of Removal [1]; Def.'s Mots. [27, 30].[2] Noel responded to Wal-Mart's motion, expressly conceding his false-arrest, false-imprisonment, and intentional-infliction-of-emotional-distress claims. See Pl.'s Mem. [34] at 7. The Court has subject-matter jurisdiction and will now consider Noel's remaining claims for defamation and malicious prosecution.

         II. Standard

         Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when the evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

         III. Analysis

         Wal-Mart seeks summary judgment on Noel's defamation and malicious-prosecution claims. See Def.'s Mem. [28] at 4-7, 10-12. Regarding defamation, Wal-Mart says the statements Noel relied upon are “privileged and, as such, not actionable.” Id. at 10 (citing Richard v. Supervalu, Inc., 974 So.2d 944, 949-50 (Miss. Ct. App. 2008)). Noel failed to address this argument, focusing instead on malicious prosecution. “If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal.” Criner v. Texas-New Mexico Power Co., 470 F. App'x 364, 368 (5th Cir. 2012) (quoting Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002)). Therefore, the Court finds that Noel has waived his defamation claim.

         Turning to Noel's malicious-prosecution claim, he must show a genuine issue of material fact as to each of the following elements:

(1) the institution of a criminal proceeding; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as a result of prosecution.

Owens v. Kroger Co., 430 So.2d 843, 846 (Miss. 1983). Of these, the parties dispute whether Noel has created questions of material fact regarding ...


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