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Greer v. Wal-Mart Stores Inc.

United States District Court, N.D. Texas, Dallas Division

December 19, 2017




         Before 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.


         In this 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.

         Plaintiff 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.

         Plaintiff 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.[1] The Court therefore considers the motion without the benefit of a response.

         Legal Standards

         Summary 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.

         The 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).


         Plaintiff 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).

         Statute of Limitations

         Defendants 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 accrues.”).

         Malicious ...

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