United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
Wal-Mart Stores, Inc., (“Wal-Mart”) moved for summary
judgment  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.
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.
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. 
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.
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
; Def.'s Mots. [27, 30]. Noel responded to Wal-Mart's
motion, expressly conceding his false-arrest,
See Pl.'s Mem.  at 7. The Court has
subject-matter jurisdiction and will now consider Noel's
remaining claims for defamation and malicious prosecution.
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).
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.
seeks summary judgment on Noel's defamation and
malicious-prosecution claims. See Def.'s Mem.
 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.
to Noel's malicious-prosecution claim, he must show a
genuine issue of material fact as to each of the following
(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 ...