United States District Court, N.D. Mississippi, Oxford Division
KENDARIOUS SCOTT, a minor As brought by his parents and natural Guardians JACKIE ELLIS SCOTT and EDGAR ALLEN SCOTT, SR. PLAINTIFF
DILLARD'S, INC. and JOHN DOES I-V DEFENDANTS
MEMORANDUM OPINION AND ORDER
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Plaintiffs' motion for
partial summary judgment  and Defendant Dillard's
motion for summary judgment . The Court, having considered
the memoranda and submissions of the parties, along with
relevant case law and evidence, is now prepared to rule.
commenced this action in the Circuit Court of Desoto County,
Mississippi. The case was removed to this court on January
about September 9, 2017, 17-year-old Plaintiff Kendarious
Scott (“Kendarious”), along with his parents,
Plaintiffs Jackie and Edgar Scott, entered the Dillard's
Department Store in Southaven, Mississippi. As they began
shopping, Kendarious asked his parents if he could shop
downstairs. They agreed. Kendarious then proceeded to the
Polo section of the store where a pair of blue jean shorts
caught his attention.
Covington (“Camille”), Dillard's camera
operator, watched Kendarious enter a fitting room with the
shorts. She observed his pants as being “big” and
“sagging on both sides.” She later captured him
on camera in another section of the store but noticed that he
no longer had the shorts with him, that his pants appeared to
be tighter and that he was trying to adjust and straighten
his pants. At this point, Camille requested that Beatrice
Farmer, the cashier located nearest the fitting room, check
the room to determine whether the shorts were left behind.
They were not.
then observed Kendarious in the shoe department, and,
suspecting he intended to steal the jean shorts by concealing
them under his pants, contacted Dillard's security
officers. Enter Officers Merritt (“Merritt”) and
Sims (“Sims”) who were both off duty police
officers working for Dillard's.
5:01:53 PM, Merritt and Sims-fitted out with what, as best
this observer can tell, can perhaps be described as casual
swat team attire with their black cargo pants, a matching
polo shirt that said “Dillard's Security” and
belts chromed out with handcuffs and a holstered gun-
approached Kendarious in the shoe department and introduced
themselves. Kendarious placed a shoe that he had been
admiring on the table and confusedly looked at Merritt and
Sims. At 5:01:59 PM, or six seconds later, Merritt placed a
cuff on Kendarious's right arm, thereby leashing him.
Sims and Merritt then instructed Kendarious to lift his shirt
and Sims conducted a “pat search”. According to
Kendarious's deposition, Merritt and Sims asked him
whether the gym shorts he was wearing under his pants were
the missing shorts belonging to Dillard's. Kendarious
assured them “No, I had those on when I first came
in.” All of this occurred in the middle of the
store's shoe department. At 5:02:23 PM, Kendarious's
parents descended on the escalator and immediately confronted
the officers. Within 52 seconds of cuffing Kendarious, at
5:02:51 PM, Merritt removed the cuff from Kendarious's
wrist. The entire incident lasted until 5:06:29
PM-approximately five minutes-when Kendarious left the store
with his father while his mother remained to speak with the
security officers. This imbroglio now compels federal
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 “draw all reasonable inference in favor of
the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” 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). “[A] party cannot defeat
summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of
evidence.'” Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37 F.2d 1069, 1075 (5th
Court will discuss the two pending motions, Plaintiffs'
Motion for Partial Summary Judgment  and Defendants'
Motion for Summary Judgment , separately.
Plaintiffs' Motion for Partial Summary Judgment
their motion, Plaintiffs argue that they are entitled to
summary judgment (a) because the “Shopkeepers
Privilege” does not apply since Dillard's exceeded
its authority in dealing with Kendarious; (2) because
Dillard's actions were extreme and outrageous, thus,
satisfying an intentional infliction of emotional distress
claim; and (3) because Dillard's falsely imprisoned
Kendarious in handcuffing him during the incident.
Dillard's timely filed a response to this motion.
Code Section 97-23-95 provides ‘a shield from civil
liability for merchants who question suspected shoplifters,
so long as the questioning is done (1) in good faith, (2)
with probable cause, and (3) in a reasonable
manner.'” Hobson v. Dolgencorp, 142
F.Supp.3d 487, 490 (S.D.Miss. 2015) (citing Scott v.
Spencer Gifts, LLC, No. 1:14-CV-00037-SA-DAS, 2015 WL
4205242, at *3 (N.D. Miss. July 10, 2015)). The party
asserting the privilege bears the burden of proof. Boone
v. Wal-Mart Stores, Inc., 680 So.2d 844, 847 (Miss.
1996). “[A] finding that the shopkeeper's
‘questioning was conducted unreasonably will alone be
sufficient to defeat' the privilege.”
Hobson, 142 F.Supp.3d at 490 (citing Scott,
2015 WL 4205242, at *3).
the Court finds that there are fact issues as to whether
Dillard's questioning of Kendarious was conducted in a
reasonable manner. The record establishes that Camille
watched Kendarious enter the fitting room with the shorts but
did not see him exit the fitting room. She later spotted him
in a different section of the store without the shorts.
Camille then requested that the cashier search for the shorts
in the fitting room. She then instructed Merritt and Sims to
only ask Kendarious where the shorts were ...