United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
BARBARA M.G. LYNN CHIEF JUDGE
the Court is a Motion for Summary Judgment [ECF #17], filed
by Defendants Wal-Mart Stores, Inc. and Kenedy Maina. For the
reasons stated, the Motion is GRANTED.
civil action, Plaintiff Deandrea Lamont Greer asserts claims
against Defendants arising out of Plaintiff's August 2014
arrest on shoplifting charges. See Pl. Orig. Pet.,
Def. MSJ App., Ex. 1. Defendant Wal-Mart Stores, Inc. owns
and operates a Walmart Supercenter store in Garland, Texas.
Id. at 2, ¶10. Defendant Kenedy Maina has
worked as a Loss Prevention Associate at the Garland
Supercenter store since December 2007. Id.,
¶11; see also Maina Aff., Def. MSJ App., Ex. 2,
¶2. On May 30, 2014, Defendants informed police that
Plaintiff, a former Wal-Mart employee, shoplifted from the
Garland Supercenter. Pl. Orig. Pet. at 3, ¶12. The
police arrested Plaintiff in August 2014 on shoplifting
charges based on Defendants' May 30, 2014 report.
Id., ¶13. However, the Dallas County District
Attorney's Office dismissed the charges on October 16,
2015. Id. at 4, ¶22.
denies that he shoplifted from the Garland Supercenter store,
or that he even went to the store on May 30, 2014.
Id. at 3, ¶13. According to Plaintiff,
Defendant Maina harbors ill will towards Plaintiff from the
period when they both worked at the Garland Supercenter.
Id. at 3, ¶14. Plaintiff alleges that Defendant
Maina falsely accused him of theft and made several false
reports to police and the District Attorney that Plaintiff
had shoplifted from the Garland Supercenter on May 30, 2014.
Id., ¶¶15, 20. As a result of
Defendants' accusations, Plaintiff claims he was arrested
and placed in handcuffs in the presence of his four-year-old
daughter, had his car impounded, remained in jail for six
days because he was unable to post bail, and was forced to
incur significant expense to fight the charges that were
ultimately dismissed. Id., ¶¶ 15-19, 21.
filed this civil action in the 162nd Judicial District Court
for Dallas County, Texas, on October 17, 2016, asserting
claims against Defendants for malicious prosecution, abuse of
process, defamation, intentional infliction of emotional
distress, and negligence. Defendants timely removed the case
to federal court on the basis of diversity. Defendants have
filed a motion for summary judgment as to all of
Plaintiff's claims and causes of action. Plaintiff, who
is proceeding pro se, did not file a written
response to the summary judgment motion. The Court
therefore considers the motion without the benefit of a
judgment is warranted “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 dispute as to a material fact is
genuine, if the evidence is sufficient to permit a reasonable
factfinder to return a verdict for the nonmoving party.
Johnson v. World Alliance Fin. Corp., 830 F.3d 192,
195 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A fact is material if
its resolution could affect the outcome of the action.
Weeks Marine, Inc. v. Fireman's Fund Ins.
Co., 340 F.3d 233, 235 (5th Cir. 2003). The substantive
law determines which facts are material. See
Anderson, 477 U.S. at 247.
summary judgment movant bears the initial burden of showing
the absence of evidence to support the nonmovant's
claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the movant satisfies this initial burden, the
burden shifts to the nonmovant to show summary judgment is
not proper. Fordoche, Inc. v. Texaco, Inc., 463 F.3d
388, 392 (5th Cir. 2006). To carry this burden, the nonmovant
must designate specific facts in the record to show the
existence of a genuine issue of material fact. Id.
All evidence and inferences must be viewed in the light most
favorable to the nonmovant. Boudreaux v. Swift Transp.
Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
did not file a response to Defendants' Motion for Summary
Judgment. Although Plaintiff's failure to respond does
not permit the Court to enter a “default” summary
judgment, the Court is permitted to accept Defendants'
evidence as undisputed. Eversley v. MBank Dallas,
843 F.2d 172, 174 (5th Cir. 1988); see also Bell v. State
Farm Lloyds, 2014 WL 1516254, at *3 (N.D. Tex. Apr. 18,
2014) (Lynn, J.). Plaintiff's failure to respond means
that where Defendants have pointed to the absence of evidence
to support elements of Plaintiff's claim, Plaintiff has
not designated specific facts to prove the existence of a
genuine issue of material fact. “A summary judgment
nonmovant who does not respond to the motion is relegated to
[his] unsworn pleadings, which do not constitute summary
judgment evidence.” Bookman v. Shubzda, 945
F.Supp. 999, 1002 (N.D. Tex.1996) (citing Solo Serve
Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.
1991)); see also Larry v. White, 929 F.2d 206, 211
n. 12 (5th Cir. 1991) (“Unsworn pleadings, memoranda,
or the like are not, of course, competent summary judgment
evidence.”). As Federal Rules of Civil Procedure
56(e)(2) and (3) provide, “If a party fails . . . to
properly address another party's assertion of fact as
required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion [and] grant summary
judgment if the motion and supporting materials-including the
facts considered undisputed-show that the movant is entitled
to it[.]” Fed.R.Civ.P. 56(e)(2), (3).
move for summary judgment on Plaintiff's claims for
malicious prosecution and defamation on limitations grounds.
Actions for malicious prosecution and defamation are subject
to a one-year statute of limitations. Tex. Civ. Prac. Rem.
Code Ann. § 16.002(a) (West 2017) (“A person must
bring suit for malicious prosecution, libel, [or] slander . .
. not later than one year after the day the cause of action