Opinion
Case No. 03-2447-JWL.
December 17, 2004
MEMORANDUM ORDER
Plaintiff Brenda Hester filed suit against defendant under 42 U.S.C. §§ 1981 and 1982, and for false arrest under state law, based on defendant's wrongful accusation that plaintiff shoplifted merchandise from defendant's store in Atchison, Kansas. Plaintiff Temmie ("Tim") Hester (hereinafter referred to as "Tim Hester") filed suit against defendant under 42 U.S.C. §§ 1981, 1982 and 1983 based on defendant's wrongful detention of plaintiff while he was exiting defendant's store in Atchison, Kansas. Plaintiff Tim Hester also asserts a derivative claim for loss of services sustained as a result of alleged injuries suffered by his wife, plaintiff Brenda Hester. This matter is presently before the court on several motions, including defendant's motion for summary judgment on plaintiffs' claims (doc. #113).
As set forth in more detail below, the court grants defendant's motion for summary judgment with respect to all federal claims and dismisses without prejudice Ms. Hester's state law claim for false imprisonment and Mr. Hester's corresponding loss of services claim. The vast majority of the remaining motions (including all motions related to plaintiffs' experts and defendant's motion for separate trials) are thereby rendered moot. Plaintiffs' unopposed motion to supplement the summary judgment record (doc. #144) is summarily granted. Plaintiffs' motion to strike an unsupported fact in defendant's reply to plaintiffs' response to the motion for summary judgment is granted, see infra note 1, and plaintiffs' motion for sanctions, costs and to compel (doc. #101) is denied in part and is otherwise moot as discussed below.
I. Facts
The material facts of this case are fairly simple and, in large part, undisputed. Those facts that are in dispute are related in the light most favorable to plaintiffs, the nonmoving parties. The claims of both plaintiffs, who are husband and wife, arise out of plaintiffs' separate shopping trips to defendant's store in Atchison, Kansas.
On August 5, 2002, plaintiff Tim Hester went to the Wal-Mart store in Atchison for the purpose of making an initial down payment of twenty dollars on a layaway agreement for the purchase of certain stereo equipment. Mr. Hester made his payment and, without making any purchases or doing any more shopping, began to leave the store. As he was leaving the store, two Atchison police officers detained him.
A Wal-Mart employee had called the officers to the store to assist in apprehending four individuals who, on that particular day, were involved in a joint effort to steal merchandise from the store. The officers were stationed near the store's exit and, as Mr. Hester approached the exit, a Wal-Mart employee near the exit contacted by walkie-talkie Derrick Dye, defendant's Loss Prevention Associate, to determine whether the individual attempting to leave the store (i.e., Mr. Hester) was involved in the shoplifting and whether he should be detained. According to plaintiffs, Mr. Dye instructed the employee to advise the officers to stop the individual. Thus, the police officers stopped Mr. Hester, escorted him back inside the store and brought him to Mr. Dye. At that point, Mr. Dye advised the officers that Mr. Hester was not involved in the theft and should be permitted to leave the store.
Two days later, Mr. Hester returned to the store to receive a full refund of the down payment that he had made on the layaway agreement. Wal-Mart did not prevent or otherwise interfere with Mr. Hester's receipt of a full refund.
One month later, on September 5, 2002, plaintiff Brenda Hester was shopping in the Atchison Wal-Mart store with her teenage daughter and a toddler. At some point during her shopping trip, Ms. Hester stopped in the shoe department and began trying several pairs of shoes on the toddler. Ultimately, Ms. Hester placed two pairs of shoes in her shopping cart and allowed the toddler to wear one pair, carrying the price tag with her. During this time, Derrick Dye was observing Ms. Hester and her conduct. According to defendant, Mr. Dye was watching Ms. Hester because she fit the description of a "known" shoplifter. Mr. Dye then followed Ms. Hester and her shopping party to the checkout aisle. Although Mr. Dye was standing very near Ms. Hester while she was checking out, he lost sight of Ms. Hester for a period of time while he was advising one of defendant's assistant managers of the "situation." Ms. Hester paid for all of her merchandise, including the shoes that the toddler was wearing. According to defendant, Mr. Dye did not see Ms. Hester pay for the shoes that the toddler was wearing. Plaintiff asserts that Mr. Dye must have seen Ms. Hester pay for the shoes as he was standing right behind her in line.
In any event, as Ms. Hester was leaving the store, Mr. Dye grabbed her by the arm and accused her of stealing a pair of shoes. He asked her to return to the store and she refused, advising Mr. Dye that he was mistaken and that she had not stolen any merchandise. Mr. Dye then followed Ms. Hester into the parking lot, repeated his accusation that she had stolen merchandise, and again asked her to return to the store. Ms. Hester again refused to return to the store and advised Mr. Dye for the second time that he was mistaken. According to Ms. Hester, Mr. Dye then "jumped in front" of her and told her that he "could not let her leave" because she had shoplifted items from the store. At that point, Ms. Hester became upset and told Mr. Dye that he was "going to have to call the police or something." Ms. Hester alleges that Mr. Dye repeatedly called her a liar during their confrontation.
The police were contacted and arrived within ten minutes. While the record is not entirely clear, it appears that the officers compared Ms. Hester's cash register receipt with the items in her shopping bag, visited with the cashier and determined that Ms. Hester had not stolen any merchandise. Shortly thereafter, Ms. Hester went back into the store to return all of the merchandise for a full refund. While Ms. Hester concedes that no one interfered with her return of the merchandise or her receipt of a full refund, it is undisputed that Mr. Dye accompanied Ms. Hester back into the store and stayed with her as she returned the merchandise.
In its reply brief, defendant asserts, without citation to the record, that Ms. Hester "attempted to assault a cashier" prior to returning her merchandise. Plaintiffs move to strike (doc. #146) this portion of defendant's reply brief on the grounds that the statement is unsupported and, in any event, is "outright false." In response, defendant asserts that the fact is not material and, thus, did not need to be supported by the record. Defendant also contends that the fact is supported by the record in any event, as Derrick Dye issued a report on September 5, 2002 in which he stated that Ms. Hester "began to yell at one of [defendant's] cashiers and began to take steps toward her." As the statement in defendant's reply brief is defendant's "spin" on the actual facts in the record, the court will grant plaintiffs' motion to strike this statement from defendant's reply brief.
Plaintiffs have secured the services of various experts who testified that both plaintiffs were the victims of racial profiling and that Mr. Dye detained both plaintiffs on the basis of their race. Additional facts will be provided as they relate to plaintiffs' particular claims.
II. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. American Guarantee Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at 671).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis Co., 256 F.3d 1013, 1017 (10th Cir. 2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and in-expensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1); see also Kaster v. Safeco Ins. Co. of Am., 2003 WL 22854633, at *2 (10th Cir. Dec. 3, 2003) (affirming the district court's grant of summary judgment in favor of defendant in an ADEA case where the plaintiff had failed to present evidence sufficient for a reasonable jury to conclude that Safeco's employment decisions were age-related); Young v. White, 2003 WL 21940941, at *1-2 (10th Cir. Aug. 14, 2003) (affirming district court's grant of summary judgment in favor of defendant in race discrimination and retaliation context).
III. Plaintiffs' Section 1981 Claim
Plaintiffs have also asserted claims under 42 U.S.C. § 1982, which prohibits racial discrimination in the purchase of property. Like section 1981, section 1982 has its roots in section 1 of the Civil Rights Act of 1866. Due to the statutes' similar wording and common lineage, sections 1981 and 1982 are generally construed in tandem. See Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (citing Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 440 (1973)). Thus, the court's reasoning and holding vis-à-vis section 1981 applies with equal force to plaintiffs' claims under section 1982.
According to plaintiffs, defendant violated 42 U.S.C. § 1981 when it, through its agent Derrick Dye, detained them and, in the case of Ms. Hester, wrongfully accused her of shoplifting. Defendant contends that summary judgment is warranted on plaintiffs' section 1981 claims because plaintiffs cannot establish that defendant engaged in intentional discrimination on the basis of race and because plaintiffs cannot show the actual loss of a contract interest. As explained more fully below, plaintiffs' section 1981 claims fail because defendant did not detain plaintiffs until after they had completed their transactions and, thus, defendant did not interfere with any ongoing transaction.
Section 1981 addresses racial discrimination in contractual relationships. As amended by the Civil Rights Act of 1991, the statute reads as follows:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kinds, and to no other.
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981(a)-(c). To establish a prima facie case of discrimination under section 1981, plaintiff must show that he is a member of a protected class; that defendant had the intent to discriminate on the basis of race; and that the discrimination interfered with a protected activity as defined in section 1981. Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001). Plaintiff alleges that defendant interfered with his right to make and enforce contracts.
In their response to defendant's motion for summary judgment, plaintiffs reference only the "make and enforce contracts" clause of section 1981. Moreover, the vast majority of the language in the pretrial order focuses only on whether defendant interfered with plaintiffs' rights to make and enforce contracts. However, one isolated statement in the pretrial order refers to the "full and equal benefit of all laws" clause of section 1981. After considering the pretrial order as a whole, and in light of the fact that plaintiffs make no reference to this clause in their brief, the court does not believe that plaintiffs have intended to assert a separate section 1981 claim under a "full and equal benefits" theory of liability. To the extent plaintiffs did intend to assert this theory of liability separate and apart from their theory that defendant interfered with their right to make and enforce contracts, plaintiffs should file a motion to alter or amend within 10 days that includes the legal basis for pursuing that theory along with an explanation why they did not brief this issue in their response to the motion for summary judgment. See D. Kan. R. 7.3(a); Fed.R.Civ.P. 59(e).
The court begins with Ms. Hester's claim and the undisputed fact that defendant detained Ms. Hester after she had made her purchases, was done with her shopping and was leaving the store. Faced with identical facts, the Circuit Courts of Appeals have consistently held that once the purchase is completed, no contractual relationship remains and, thus, no claim is stated under section 1981. The preeminent case is Morris v. Office Max, Inc., 89 F.3d 411 (7th Cir. 1996). There, the plaintiffs, two African-American men, entered an Office Max store to purchase certain office supplies. 89 F.3d at 411-12. Within minutes, the store's assistant manager telephoned the police department to report "two male blacks acting suspiciously." Id. at 412. The police department immediately dispatched two officers (who were already in the area at the time) to the store. Id. In the meantime, one of the plaintiffs, Darryl Morris, was looking for telephone message pads. Id. A store clerk directed him to the proper location, and Mr. Morris picked up several pads and paid for the items. Id. While Mr. Morris was paying for the items, the other plaintiff, Leggitt Nailor, continued to walk around the store. Id. After making his purchases, Mr. Morris rejoined Mr. Nailor, and the two began to examine time-stamp machines. Id. By this time, the officers had arrived at the store and the assistant manager directed the officers toward the plaintiffs. Id. The officers approached the two plaintiffs and, after a brief encounter, the officers left the store. Id. Plaintiffs filed suit against Office Max under § 1981 alleging that the store had interfered with their right to make further purchases or to enter into a retail contract. Id. Affirming the district court's grant of summary judgment for Office Max, the Seventh Circuit held that the plaintiffs failed to offer specific facts showing that Office Max deprived them of the right to make and enforce a contract. See id. at 414. Specifically, the Circuit emphasized that the plaintiffs "were denied neither admittance nor service, nor were they asked to leave the store." See id.
To like effect is Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851 (8th Cir. 2001), where the Eighth Circuit confronted a situation in which a store employee had accused an African-American customer of shoplifting after the customer had consummated his purchase. See id. at 853. The Circuit held that the customer could not bring a claim against the store under section 1981 because no contractual relationship remained once the purchase was completed. See id. at 854 ("Once Youngblood paid the cashier and received the [merchandise] from the cashier, neither party owed the other any duty under the retail-sale contract."). Similarly, in Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir. 2002), the defendant accused the plaintiff, an African-American, of shoplifting after the plaintiff had completed his purchases. The First Circuit rejected the plaintiff's claim under section 1981 because the plaintiff did not allege that the defendant "interfered with his ability to make desired purchases." See id. at 101. Finally, the court highlights the preeminent district court case on the issue before it — Lewis v. J.C. Penney Co., 948 F. Supp. 367 (D. Del. 1996). In that case, two African-American women were detained and accused of shoplifting as they were leaving the defendant's store, after having completed their purchases. See id. at 368-69. Thereafter, one of the women filed suit against the defendant under section 1981 and the court granted summary judgment on that claim because the plaintiff "had done her shopping and was the leaving the store; no contractual relationship remained." See id. at 372.
Ms. Hester urges that the Tenth Circuit's decision in Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091 (10th Cir. 2001), requires that her claim survive summary judgment. However, the facts underlying Ms. Hester's claim are distinguishable from the facts in Hampton in one fatal respect. Although Ms. Hampton, like Ms. Hester, was detained and accused of shoplifting after she had completed her purchases, the Tenth Circuit affirmed a jury verdict in her favor on her section 1981 claim because the defendant interfered with Ms. Hampton's redemption of a coupon for a fragrance sample. See id. at 1106. According to the Circuit, the coupon was a benefit of Ms. Hampton's contractual relationship with defendant in that she received the coupon only after she made her purchases and but for the officer's detention of Ms. Hampton at the fragrance counter, Ms. Hampton would have received the service of her redemption of the coupon. See id. In other words, Ms. Hampton's claim was legally sufficient under section 1981 because the defendant interrupted (and prevented) an "ongoing transaction." See id. at 1106 n. 3. In this case, nothing happened after Ms. Hester completed her purchases that created any further contractual duty on defendant's part. Accordingly, Ms. Hester's reliance on Hampton is misplaced.
Plaintiff also contends that this court's decision in Kelly v. Bank Midwest, N.A., 161 F. Supp. 2d 1248 (D. Kan. 2001) mandates that their claims survive summary judgment. The facts of that case, however, are entirely distinct from those presented here. In Kelly, this court concluded that the plaintiff stated a claim under section 1981 because the defendant required the plaintiff to satisfy additional conditions before it would enter a contract with him. See id. at 1257-58. By contrast, defendant here did not place any different conditions upon Ms. Hester's right to enter a contractual relationship.
While Ms. Hester suggests that having to return her merchandise under the watchful eye of Mr. Dye was a "different condition" based on her race, the evidence in no way suggests that Ms. Hester would not have been permitted to return her merchandise absent supervision from Mr. Dye. There is no evidence, for example, that had Ms. Hester opted to return her merchandise the following day, she would have been required to do so under Mr. Dye's supervision. Moreover, Mr. Dye did not interfere with her ability to return her merchandise as it is undisputed that defendant accepted her returns and provided her with a full refund. See Garrett v. Tandy Corp., 295 F.3d 94, 101 (1st Cir. 2002) ("So long as watchfulness neither crosses the line into harassment nor impairs a shopper's ability to make and complete purchases, it is not actionable under section 1981.").
In fact, the Hampton decision strongly supports this court's conclusion that summary judgment is appropriate. In response to Judge Anderson's dissent in Hampton and, more specifically, his concern that the timing of the officer's detention of Ms. Hampton was "purely fortuitous," the majority emphasized that the officer's "inopportune timing" neither altered the resulting interruption of an ongoing transaction nor defeated Ms. Hampton's claim. See id. To support this point, the majority compared the facts presented in Morris v. Office Max, Inc. and Lewis v. J.C. Penney Co. and noted that in those cases, the plaintiffs had completed all of their transactions at the time they were detained. The Circuit's discussion on this point indicates that Ms. Hampton's claim would have failed if the officer had simply stopped her after she left the fragrance counter and supports this court's conclusion that Ms. Hester, having completed all of her transactions at the time she was stopped, cannot state a claim under section 1981.
Mr. Hester's situation is arguably different in that he had made only the first payment on a layaway contract and, thus, his contractual relationship with defendant was "ongoing" at the time he was detained. In that regard, Mr. Hester suggests that the indignity he suffered as a result of being wrongfully detained curtailed his interest in continuing his contractual relationship with defendant (and sparked his desire to terminate the contract). The problem with this argument, however, is that his detention bore no connection whatsoever to the contractual relationship. See Garrett v. Tandy Corp., 295 F.3d 94, 101-02 (1st Cir. 2002) (rejecting section 1981 plaintiff's theory that police interrogation after he left the defendant's store deprived him of the enjoyment of his purchases; alleged harassment bore no connection to contractual relationship). Indeed, it was Mr. Hester's mere presence in the store, not his payment on the layaway contract or any other aspect of that contract, that provoked Mr. Dye's decision to have Mr. Hester detained. See id. at 102. Neither Mr. Dye nor the officers interfered in any way with Mr. Hester's right to enter into the layaway contract. Similarly, it is undisputed that he was able to terminate the contract without any hindrance from defendant. Thus, Mr. Hester's contractual rights were not impaired. In the end, Mr. Hester's claim must fail as defendant did not interfere with his right to enter the layaway contract and did not interfere with his right to terminate the contract.
The court does not doubt that Mr. Dye's conduct was disconcerting and humiliating to both plaintiffs. Worse yet, Mr. Dye's actions may have been based on plaintiffs' race. Nonetheless, section 1981 does not provide a general cause of action for race discrimination even if in fact it occurred. The requirement remains that a plaintiff must point to some interference with a contractual relationship in order to bring a claim under Section 1981. The uncontroverted facts in this case demonstrate that no such interference occurred. Accordingly, plaintiffs' section 1981 claims must fail.
IV. Mr. Hester's Section 1983 Claim
In the pretrial order, Mr. Hester asserts that defendant acted under color of state law to deprive him of his federal constitutional rights to be free from "unreasonable seizures." In support of this claim, Mr. Hester asserts that defendant "utilized the police to effectuate the detention" of Mr. Hester. Defendant contends that summary judgment is appropriate on this claim because Mr. Hester has not set forth sufficient facts demonstrating that defendant acted "under color of state law." As set forth below, the court agrees with defendant that Mr. Hester has not come forward with sufficient facts from which a reasonable jury could conclude that defendant acted under color of state law. Thus, the court grants defendant's motion for summary judgment on Mr. Hester's section 1983 claim.
As the Supreme Court has recognized, section 1983 "basically seeks 'to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights' and to provide related relief." See Richardson v. McKnight, 521 U.S. 399, 403 (1997) (quoting Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-257 (1978))). It imposes liability only where a person acts "under color" of a state "statute, ordinance, regulation, custom, or usage." Id. (quoting 42 U.S.C. § 1983). Nonetheless, section 1983 can sometimes impose liability upon a private individual or entity under certain narrowly prescribed circumstances. Id. (citing Wyatt, 504 U.S. at 162; Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)).
It is uncontroverted that defendant is a private actor for purposes of analyzing Mr. Hester's section 1983 claim. To hold a private actor liable under section 1983, "it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State." Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quoting Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir. 1987)); see also Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (identifying four tests for determining whether particular conduct constitutes state action). In his response to defendant's motion for summary judgment, Mr. Hester submits that he is relying on the "joint action" test to establish defendant's liability under section 1983. See Dennis v. Sparks, 449 U.S. 24 (1980); Adickes v. S.H. Kress Co., 398 U.S. 144 (1970).
In the pretrial order, Mr. Hester further asserts that defendant is a "state actor" because it "utilized authority granted to [it] under Kansas statutes permitting detention of suspected shoplifters." Mr. Hester does not make this argument in his response to defendant's motion for summary judgment and, thus, he may have abandoned the argument. To the extent he has not abandoned it, the court rejects it as the Supreme Court has held that a private party's mere invocation of state legal procedures does not constitute state action. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 n. 21 (1982).
As the Tenth Circuit has recognized, merchants generally are not considered to be acting under color of law for purposes of section 1983 when they detain a person suspected of shoplifting, call the police, or make a citizen's arrest. See Jones v. Wal-Mart Stores, Inc., 1994 WL 387887, at *3 (10th Cir. July 27, 1994) (citing cases). In an effort to evade this general rule and create an issue of material fact, Mr. Hester contends that the Atchison police officers impermissibly delegated their judgment to defendant because they detained Mr. Hester at defendant's instruction and released him only upon defendant's direction. Mr. Hester's argument is based on dicta in Murray v. Wal-Mart, Inc., 874 F.2d 555, 559 (8th Cir. 1989) regarding police failure to independently investigate a merchant's allegations of shoplifting before detaining accused shoplifters. Mr. Hester, however, has misinterpreted Murray's broad statement.
Mr. Hester actually cites to Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001) in support of his argument, but the Youngblood court cites to the Murray case in support of its statement concerning police failure to conduct an independent investigation. Ultimately, the Youngblood court distinguished the facts before it from the situation in Murray and affirmed the entry of summary judgment in favor of the defendant on the plaintiff's section 1983 claim. See id.
In Murray, the Eighth Circuit upheld the district court's judgment in favor of the plaintiff on plaintiff's section 1983 claim. The claim was based on an incident in which the plaintiff was detained and accused of shoplifting by a Wal-Mart employee who was also a police employee and worked closely with the prosecuting attorney, who decided to prosecute based solely on the employee's recommendation. Clearly, those facts are not present here. In any event, in analyzing the plaintiff's claim, the Eighth Circuit noted, by way of example, that "a store and its employees may be considered to be acting jointly with police when the police will detain accused shoplifters without making an independent investigation." In support of this example, the Murray court cites Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th Cir. 1975). The Smith case, however, held that even if the police detained a suspected shoplifter without conducting an independent investigation, a section 1983 claim would not lie against the merchant unless the plaintiff could show "that the police and the store managers were acting in concert; that [the store] and the police had a customary plan whose result was the detention in the present case." See id. at 94.
Thus, the statement in Murray that a store acts jointly with police for purposes of section 1983 liability "when the police will detain accused shoplifters without making an independent investigation" refers to a customary plan among a store and police. Accord Copeland v. K Mart Corp., 1998 WL 560759, at *3 (9th Cir. Sept. 2, 1998) (affirming district court's grant of summary judgment on plaintiff's section 1983 claim against K Mart where plaintiff failed to present evidence of any customary plan between store and police); Spencer v. Lee, 864 F.2d 1376, 1391 (7th Cir. 1989) (noting that the involvement of the police is sufficient to transform a merchant into a state actor for purposes of section 1983 where police "routinely" arrest suspected shoplifters without independent investigation); Cruz v. Donnelly, 727 F.2d 79, 81 (3d Cir. 1984) (holding that state action exists if the police have a pre-arranged plan with the store and under the plan police will arrest anyone identified as a shoplifter without independently evaluating the presence of probable cause).
There is no evidence in this case that defendant had an understanding that the police would detain, arrest or prosecute every person that defendant identified as a suspected shoplifter. Here, the mere fact that the police detained Mr. Hester on the basis of defendant's request is not sufficient to bridge the gap between private and State action. See Cruz, 727 F.2d at 82 (affirming grant of summary judgment on plaintiff's section 1983 where police strip searched suspected shoplifter at direction of store employee; no facts tended to show pre-arranged plan). As Mr. Hester has not shown that defendant was acting under color of state law, his section 1983 claim must be dismissed.
V. Plaintiffs' State Law Claims
Ms. Hester asserts that Derrick Dye falsely imprisoned her in violation of Kansas law when he detained Ms. Hester in defendant's parking lot. Defendant moves for summary judgment on this claim based on the statutory merchants' defense, K.S.A. § 21-3424. For the reasons explained below, the court declines to address the merits of this claim and dismisses the claim without prejudice; Ms. Hester may file her claim in state court should she wish to do so.
Because it has dismissed all of plaintiffs' federal claims over which it had original jurisdiction, the court may, but is not required to, exercise jurisdiction over Ms. Hester's supplemental state law claim for false imprisonment. See 28 U.S.C. § 1367(c)(3). The court's discretion must be guided by considerations of "judicial economy, convenience, fairness, and comity." See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); accord Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon, 484 U.S. at 350 n. 7; see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial . . . the state claims should be dismissed as well."); United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002) ("[A] district court should normally dismiss supplemental state law claims after all federal claims have been dismissed, particularly when the federal claims are dismissed before trial.").
The court has considered whether there is an alternative basis for the court's jurisdiction. Plaintiffs' complaint, however, alleges that Ms. Hester is a Kansas resident and that defendant is a Kansas corporation. See 28 U.S.C. § 1332(c)(1) (corporation is considered to be citizen of the state in which it is incorporated and the state where it has its principal place of business for purposes of determining diversity of citizenship). Therefore, there is not complete diversity between the parties. Moreover, the pretrial order invokes the court's jurisdiction only under 28 U.S.C. §§ 1331 and 1343, both of which relate to federal-question jurisdiction. Thus, there is no basis for the assertion of diversity jurisdiction.
In this case, plaintiffs' federal claims have been eliminated only two months before the scheduled trial date and the court must be mindful of the extent of the litigants' efforts in deciding whether to exercise supplemental jurisdiction over plaintiff's state law claim. Botefuhr, 309 F.3d at 1273 (suggesting that it may be advisable for district courts to exercise supplemental jurisdiction over state claims where the parties have already expended a great deal of time and energy on the state law claims); Anglemyer, 58 F.3d at 541 (same). In this case, the parties have already expended substantial time and effort on this case and the court acknowledges that dismissal without prejudice might not be the best alternative to further the interests of judicial economy and convenience.
In determining the weight to give to this consideration, the court is ultimately guided by the reasoning of an unpublished case from the Tenth Circuit, Huntsinger v. Board of Director of E-470 Public Highway Authority, 2002 WL 853497, at * 10-11 (10th Cir. May 6, 2002). In Huntsinger, the Court held that the district court did not abuse its discretion by declining to exercise supplemental jurisdiction over state law claims where discovery had already been completed. See id. The plaintiff had argued that dismissal of her claims would be inefficient and wasteful because the parties would essentially be forced to duplicate their substantial efforts in state court. See id. The Tenth Circuit rejected these arguments, explaining that the parties had not completed pretrial proceedings or tried their case to a jury, and that they could utilize the discovery they had already conducted in future state court proceedings. See id.
Pursuant to Tenth Circuit Rule 36.3(B)(1), the court cites this unpublished opinion for its persuasive value.
Likewise, in this case, although the court is concerned about judicial economy and convenience, that concern is attenuated by the fact that the progress that has been made in the case can be utilized in state court. In fact, because discovery in this case is complete, the court conditions dismissal on use of all discovery in any subsequently filed state court case. Further, the Tenth Circuit has repeatedly held that district courts may properly decline to exercise supplemental jurisdiction over state law claims after dismissing federal claims on motions for summary judgment, which typically occurs at a late stage of the litigation after discovery has been completed. See, e.g., Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir. 1998) (holding the district court could decline to exercise supplemental jurisdiction over state law claims after granting summary judgment on federal law claims); Taylor v. Meacham, 82 F.3d 1556, 1564 n. 11 (10th Cir. 1996) (same); Figuly v. City of Douglas, 76 F.3d 1137, 1142 (10th Cir. 1996) (same); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1492 (10th Cir. 1995) (same); Anglemyer, 58 F.3d at 541 (same).
In addition, the four factors of judicial economy, convenience, fairness, and comity usually weigh in favor of declining supplemental jurisdiction where "state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought." Carnegie-Mellon, 484 U.S. at 350 n. 7 (internal quotation omitted). In this case, state issues overwhelmingly predominate Ms. Hester's false imprisonment claim, which is based entirely on the Kansas common law, as well as defendant's defense to that claim, which is based on a Kansas statute. Moreover, the court does not believe that federal court is the appropriate forum to resolve this particular state law claim as plaintiff has alleged very little in the way of damages stemming from her alleged false imprisonment. Finally, the court concludes that a federal forum is not appropriate for plaintiff's false imprisonment claim as it is unclear from the record whether plaintiff has even stated a claim for false imprisonment under Kansas law. Defendant, however, did not move for summary judgment on this basis and, for this reason and because the parties have not briefed the issue, the court is reluctant to explore the merits of plaintiff's claim.
In sum, then, under these circumstances, the court is persuaded that the interests of judicial economy, convenience, fairness, and comity weigh in favor of the court declining to exercise supplemental jurisdiction over Ms. Hester's false imprisonment claim.
Although the statute of limitations on plaintiff's false imprisonment claim would normally preclude plaintiff from pursuing her claim in state court at this time, plaintiff is afforded at least 30 days from a federal court dismissal to commence a new action in the state court. See 28 U.S.C. § 1367(d). Moreover, Kansas's "saving statute," K.S.A. § 60-518, affords a plaintiff six months to commence a new action if a previous timely action failed "otherwise than upon the merits." Examples of such failures include dismissal without prejudice. See Rogers v. Williams, Larson, Voss, Strobel Estes, 245 Kan. 290 (1989). If applicable, this time frame controls over the 30-day tolling period in 28 U.S.C. § 1367(d). The court expresses no view on which statute applies to the circumstances of this case.
Mr. Hester does not dispute that his claim for loss of services derives from Ms. Hester's claim for false imprisonment. Thus, because the court has dismissed without prejudice Ms. Hester's false imprisonment claim, it must similarly dismiss without prejudice Mr. Hester's loss of services claim. See Ratts v. Board of County Comm'rs of Harvey County, Kansas, 141 F. Supp. 2d 1289, 1324 (D. Kan. 2001) ("Without a viable personal injury claim, a derivative loss of consortium claim has no place before a jury.").
VI. Plaintiffs' Motion for Sanctions, for Costs and to Compel
Plaintiffs move for sanctions, for costs and to compel production of a clear and accurate copy of a surveillance videotape from September 5, 2002. The motion is moot in certain respects, as plaintiffs seek an adverse inference jury instruction relating to defendant's destruction of a videotape showing the customer service area on September 5, 2002. Of course, there will be no trial of plaintiffs' claims in federal court and, thus, the jury instruction request is moot. Plaintiffs also seek $25,000 in sanctions and/or costs for their efforts to secure a "clear and accurate" copy of the surveillance video tape that defendant has made available — presumably a tape showing Ms. Hester shopping in the store. The motion is denied as plaintiffs have failed to provide the certification required under the pertinent Federal Rules of Civil Procedure. See Fed.R.Civ.P. 26(c) (motion must be accompanied by certification that the movant has conferred in good faith with opposing party in an effort to resolve the dispute); Fed.R.Civ.P. 37(a)(2)(A) (same). In any event, nothing in the record before the court demonstrates that defendant engaged in sanctionable conduct with respect to the surveillance videotape. Rather, the record reflects that all parties were engaged in a good faith, continuous effort to resolve the issue to plaintiffs' satisfaction.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion for summary judgment (doc. #113) is granted with respect to plaintiffs' federal claims; the court declines to exercise jurisdiction over plaintiffs' remaining state law claims and dismisses those claims without prejudice. Plaintiffs' motion to supplement the summary judgment record (doc. #144) is granted. Plaintiffs' motion to strike a portion of defendant's reply brief (doc. #146) is granted and the court hereby strikes the statement on page 4 of that brief that Ms. Hester "had attempted to assault a cashier." Finally, plaintiffs' motion for sanctions, for costs and to compel (doc. #101) is denied in part and is otherwise moot. All other pending motions are hereby moot.
IT IS SO ORDERED.