United States District Court, S.D. Mississippi, Northern Division
P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE
The Kroger Co. (“Kroger”) requests summary
judgment  on Plaintiff Johnnie Mae Owens's negligence
and false-light claims. For the reasons that follow,
Kroger's Motion for Summary Judgment  is granted in
part and denied in part.
Facts and Procedural History
says Kroger's negligence proximately caused a local media
station to broadcast a surveillance image of Owens with the
caption “wallet thief.” The dispute began
November 24, 2014, when Owens discovered a wallet while
checking out at the Clinton, Mississippi, Kroger store. The
wallet belonged to the preceding customer, Ezella Lewis.
Owens informed the cashier and was instructed to take the
wallet to the Customer Service Representative
(“CSR”). Instead, Owens left the store hoping to
catch Lewis in the parking lot. Unfortunately, Lewis was
gone, so Owens returned to the store and handed the wallet to
the CSR, Tawanna Cavett. She also asked Cavett how Kroger
documents that an item was returned and not stolen. Cavett
responded by pointing to the security cameras. Cavett then
placed the wallet in the lost-and-found drawer. When Lewis
called Kroger and asked whether anyone had found her wallet,
it appears that no one checked the drawer before informing
Lewis it had been taken. She then called the Clinton Police
investigated the alleged crime by requesting surveillance
footage from Kroger. And pursuant to that request, Kroger
provided footage depicting Owens leaving Kroger with
Lewis's wallet in hand. Kroger did not, however, give CPD
the video from the customer-service area where Owens returned
Lewis's wallet. And Kroger again failed to check the
lost-and-found drawer. Believing that the person in the video
(Owens) stole Lewis's wallet, CPD released still images
to Crime Stoppers which, in turn, released them to the media
with the description “wallet thief.” The images
were then broadcasted on television.
Owens filed the instant suit against Kroger alleging various
negligence theories and a false-light claim. Compl. [1-2].
Kroger now seeks summary judgment. Def.'s Mot. . The
issues have been briefed, and the Court has subject-matter
and personal jurisdiction.
judgment is warranted under Federal Rule of Civil Procedure
56(a) when 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.
says Kroger's negligence caused her injuries. To
establish negligence, “the plaintiff must show duty,
breach of duty, causation, and damages.” Presswood
v. Cook, 658 So.2d 859, 862 (Miss. 1995). But before
addressing those elements, the Court must square-up the
parties' briefs and identify the allegedly negligent acts
opening memorandum, Kroger focuses on the allegation that it
provided false or incomplete information to CPD when it
produced the surveillance video from the register while
withholding the second video from the customer-service area.
See Def.'s Mem.  at 6-8. Kroger argues that
this conduct breached no duties, see id., and Owens
takes no real issue with that argument. So to the extent her
Complaint can be read to include a negligence claim based on
producing only one video, she waived it. See Hensley v.
Wal-Mart Stores Inc., 290 Fed.Appx. 742, 743-44 (5th
Cir. 2008) (holding that “arguments not raised in
response to” dispositive motions are waived).
said, Owens's summary-judgment response focuses on a
different basis for her negligence claim. According to her,
“Kroger breached its duty twice by failing to act with
reasonable care to look inside its own Lost & Found
drawer before telling Ms. Lewis her wallet was not found or
turned in, and when it failed to look inside its own Lost
& Found drawer before it provided the CPD the
video.” Pl.'s Resp.  at 4, 6.
asserted this theory in her Complaint. Compl. [1-2]
¶¶ 10, 11. Yet Kroger failed to address it until
rebuttal. Normally, the Court would ignore arguments first
raised in reply. See Gillaspy v. Dall. Indep. Sch.
Dist., 278 Fed.Appx. 307, 315 (5th Cir. 2008) (“It
is the practice of . . . the district courts to refuse to
consider arguments raised for the first time in reply
briefs.” (citation omitted)). But even considering the
issue and Kroger's reply, questions of fact preclude
reply, Kroger states that it owed Lewis, not Owens, the duty
to check the lost-and-found drawer when Lewis called looking
for her wallet. It further says that any breaches did not
proximately cause Owens's alleged damages. See
Def.'s Reply  at 4. Accordingly, the parties dispute
the duty and causation elements of the prima facie negligence
duty and causation elements “both involve
foreseeability.” Rein v. Benchmark Constr.
Co., 865 So.2d 1134, 1143 (Miss. 2004). But “duty
is an issue of law, and causation is generally a matter for
the jury.” Id. Thus the first issue is for the
judge and the second is reserved for the jury when the
plaintiff satisfies Rule 56(c) by creating a material fact
issue. See Id. The Court will therefore determine