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Cable v. Coombs

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

July 3, 2019




         Before the Court are Defendants' [60] Motion for Summary Judgment and Plaintiff's [62');">2] Motion for Partial Summary Judgment. After considering the matter, the court finds as follows:

         Facts and Procedural History

         On July 2');">22');">2, 2');">2014, someone wrote a check for $2');">205.04 to the Starkville Kroger. It was drafted on Plaintiff's personal checking account-with his mailing address preprinted in the top left corner-and was signed “Jeremy Cable.” His driver's license number was recorded on the back of the check. The check was returned for insufficient funds. Kroger alleges it attempted to contact Cable, but after ninety days passed with no response, Kroger mailed the statutory Notice of Dishonor. The notice provided that failure to pay the amount owed within fifteen days allowed Kroger to “assume that [Cable] delivered the instrument with the intent to defraud.” See Miss. Code Ann. § 97-19-57. Although Plaintiff claims he never received the notice, it was never returned to Kroger as undeliverable or refused.

         On December 2');">23, 2');">2014, after Cable failed to respond, Melinda Coombs-a Kroger employee tasked with handling bad checks-executed a complaint form and affidavit on Kroger's behalf. Using a copy of the check retained in Kroger's electronic system, she reported Cable's information as found on his check, as well as Kroger's store information. She certified the information was true and that the case was not brought for collection of a civil debt. Based on the information presented, she stated that “Jeremy Cable . . . did unlawfully . . . and fraudulently obtain Merchandise . . . by presenting to Kroger a certain check . . . well knowing at the time of delivering said check that he did not have an account of sufficient funds . . . a copy of which is attached.”[1]One of the questions on the form asked for the “name of person accepting check.” Coombs left this question blank. The next question asked, “Can this person make positive ID?” Coombs said, “Yes.” Coombs sent the affidavit to the Lowndes County District Attorney's Office's Bad Check Unit, along with a copy of the check. Coombs and Kroger had no further participation in the matter.

         On January 13, 2');">2015, the district attorney's office sent a letter to Plaintiff advising that a bad check affidavit had been submitted. According to the district attorney's call log, someone called claiming to be Cable who apologized for writing the check to Kroger and said that he would come by on January 30 to make payment.[2');">2" name= "FN2');">2" id="FN2');">2">2');">2] Plaintiff did not appear on January 30 to make payment.

         On July 6, 2');">2015, the district attorney presented all evidence, including the complaint form and check-copy, to the grand jury, which returned an indictment against Plaintiff.[3] The Court issued a warrant on July 10, and Plaintiff was arrested on September 2');">27. Plaintiff's trial was set for January 2');">27, 2');">2016. He failed to appear, and a bench warrant was issued. On February 5, Cable was arrested a second time. Notably, Plaintiff testified all his damages arose following the second arrest.[4] After appearing before the court and on advice of counsel, Plaintiff paid the restitution to Kroger is criminal case was retired to the file on November 10, 2');">2016.

         On November 8, 2');">2017, Plaintiff filed the instant suit asserting negligence, gross negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, assault, abuse of process, false arrest, wrongful imprisonment, and malicious prosecution. The crux of Plaintiff's argument is that Coombs made false statements in the complaint form which led to his arrest and incarceration for seven days. Defendants move for summary judgment and dismissal with prejudice. Plaintiff moves for partial summary judgment as to liability and proximate causation.

         Summary Judgment Standard

         Summary judgment is warranted when the evidence reveals no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). 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, 32');">22');">2, 2');">2548');">106 S.Ct. 2');">2548, 91 L.Ed.2');">2d 2');">265 (1986).

         The moving party “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 32');">23. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 32');">24 (citations omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the non-movant, “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, 2');">20 S.Ct. 2');">2097');">12');">20 S.Ct. 2');">2097, 147 L.Ed.2');">2d 105 (2');">2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgewick James of Wash., 2');">276 F.3d 754');">2');">276 F.3d 754, 759 (5th Cir. 2');">2002');">2); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075.

         Analysis and Discussion

         Negligence Per Se

         “Negligence per se renders a defendant liable without proof of reasonable care when the plaintiff proves the defendant violated an applicable statute. Rivera v. Adams Homes, LLC, 2');">2014 WL 3342');">2566 at *5 (S.D.Miss. July 8, 2');">2014). Plaintiff argues Kroger “knowingly directed Defendant Coombs to violate Mississippi Code Section 99-9-59 as Defendant Kroger knew Defendant Coombs had no personal knowledge that Plaintiff committed the Felonious Crime of False Pretense.”[5] Plaintiff claims Coombs committed perjury when she stated in the complaint form and affidavit that (1) she could positively identify Jeremy Cable as presenting the check and (2');">2) she had personal knowledge that Jeremy Cable committed the crime of false pretense.

         Plaintiff's claim of negligence per se fails on multiple grounds. First, he asserts Kroger “direct[ed] its employee to untruthfully complete and submit a Complaint Form and Affidavit against Jeremy Cable.” Although Coombs was tasked with handling bad checks, there is no evidence that Kroger directed her to lie on the form. Second, the court finds there is insufficient evidence to support a charge of perjury. The form asked for the “name of person accepting check.” Coombs left it blank. It then asked, “Can this person make positive ID?” Coombs responded, “Yes.” The Court finds that the “this person” identified on the form refers to the “person accepting check.” As Coombs left that question blank, the Court finds she did not commit perjury. Plaintiff, however, argues the “this person” refers to Coombs. Even giving Plaintiff the benefit of that interpretation, his claim still fails. At the time Coombs completed the form she had before her the copy of the check, complete with Cable's purported signature, his address, and his driver's license number. She also had evidence that Kroger had attempted to contact Cable and had sent him the Notice of Dishonor. She testified she used the information on the check and in Kroger's system to “identify” Cable, which was not perjury. Plaintiff also laments that Coombs did not physically see Cable pass the check at Kroger. But Coombs never said she did. She swore that “the matters and facts set forth in the foregoing affidavit are true and correct to the best of [my] information and belief.[6] The Court has already discussed all the information available to Coombs at the time of completing the affidavit. The Court finds no evidence of perjury.

         Malicious Prosecution

         Mississippi has six elements to malicious prosecution: (1) institution of judicial proceedings (2');">2) by, or at the insistence of defendant; (3) termination of such proceeding in plaintiff's favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceeding; and (6) damages. Cardenas v. Maslon, 93 F.Supp.3d 557, 566 (N.D. Miss. 2');">2015). Failure to prove any element is fatal to plaintiff's claim. Brabham v. O'Reilly Automotive, Inc., 2');">274 Fed.Appx. 373');">2');">274 Fed.Appx. 373, 376 (5th Cir. 2');">2008). While not conceding the other factors, Defendants argue Plaintiff failed to establish “termination in his favor, ” “malice, ” and “lack of probable cause.”

         a. Termination

         Favorable termination requires that “the dismissal of criminal proceedings must reflect on the merits of the criminal action.” Bearden v. BellSouth Telecommunications, Inc., 2');">29 So.3d 761');">2');">29 So.3d 761, 764 (Miss. 2');">2010). “If [dismissal] is of such a nature as to indicate the innocence of the accused, it is a favorable termination . . . . If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.” Id. at 765 (citations omitted).

         Defendants argue Plaintiff's charges were not even dismissed, but rather “retired to file”- in exchange for his agreement to pay restitution-and could have been recalled at any time. Plaintiff argues the charges were retired to file because Defendants sent no witnesses to the trial and the prosecutor was unable to proceed. The record reflects the prosecutor moved to “Retire the case to the file in the interest of justice (Affidavit Missing [handwritten]), ” which was sustained by the Municipal Court of Starkville, Mississippi. Further, Plaintiff argues his criminal charges were expunged, which was a termination in his favor. Plaintiff presents this Court with an Order for Expungement.[7] The order is styled “In the Circuit Court of Oktibbeha County, Mississippi, ” but it is signed by a “Municipal Judge.”[8] The order provides that “it is[, ] therefore, further ordered and adjudged that the Charge of False Pretense . . . against Petitioner Jeremy Gerard Cable is terminated in Petitioner's Favor.”[9] Plaintiff argues the order of expungement is conclusive proof of a termination in his favor. However, Plaintiff instituted his case for malicious prosecution on November 8, 2');">2017. The order of expungement was not entered until November 14, 2');">2018. Therefore, at the time Plaintiff filed his complaint, his charges had not been expunged. In any event, the charges were expunged because they languished too long in the file. The order of expungement provides that they were retired to file on November 10, 2');">2016, and “[a]s of November 10, 2');">2018, the charge of False Pretense against Mr. Jeremy Cable terminated.”[10]

         Even if, as Plaintiff argues, the charges were retired to file because Kroger did not send any witnesses to his trial, that fact does not reflect on his innocence, but is rather a “technical or procedural” ground that is not inconsistent with his guilt. It is undisputed that Cable paid the restitution to Kroger while the charges remained retired to file. The order of expungement is of no avail. Not only did it not exist at the time this suit was instituted, but it too disposes of the charges on a procedural ground-the statute of limitations.

         The Court having found that Plaintiff cannot show a termination in his favor, it need go no further as to the claim of malicious prosecution. However, it will continue its analysis as to malice and probable cause.

         b. Malice

         In malicious prosecution claims, malice denotes a prosecution “instituted primarily for purposes other than that of bringing an offender to justice.” Gatheright v. Clark, 2');">297');">680 Fed.Appx. 2');">297, 301 (5th Cir. 2');">2017).

Under Mississippi law, “a citizen has a privilege to start the criminal law into action by complaints to the proper officials so long as one acts either in good faith, i.e., for a legitimate purpose, or with reasonable grounds to believe that he person ...

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