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Scott v. Dillards, Inc.

United States District Court, N.D. Mississippi, Oxford Division

January 16, 2019

KENDARIOUS SCOTT, a minor As brought by his parents and natural Guardians JACKIE ELLIS SCOTT and EDGAR ALLEN SCOTT, SR. PLAINTIFF
v.
DILLARD'S, INC. and JOHN DOES I-V DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on Plaintiffs' motion for partial summary judgment [47] and Defendant Dillard's motion for summary judgment [49].[1] The Court, having considered the memoranda and submissions of the parties, along with relevant case law and evidence, is now prepared to rule.

         Plaintiffs commenced this action in the Circuit Court of Desoto County, Mississippi. The case was removed to this court on January 30, 2018.

         Factual Background

         On or 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.

         Camille 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.

         Camille 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.

         At 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 resolution.

         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 “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 Cir. 1994)).

         Discussion

         The Court will discuss the two pending motions, Plaintiffs' Motion for Partial Summary Judgment [47] and Defendants' Motion for Summary Judgment [49], separately.

         A. Plaintiffs' Motion for Partial Summary Judgment [47]

         In 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.

         a. Shopkeeper's Privilege

         “Mississippi 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).

         Here, 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 ...


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