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Wade v. Kay Jewelers Inc.

United States District Court, D. Connecticut

March 27, 2019

FABIAN WADE, Plaintiff,
v.
KAY JEWELERS, INC., STERLING JEWELERS, INC., GGP, INC., AND JANE & JOHN DOES, 1-5 Defendants.

          RULING ON MOTION FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         This suit arises out of a March 18, 2017 incident at the Buckland Hills Mall in Manchester, Connecticut, in which employees at a Kay Jewelers store misidentified Plaintiff Fabian Wade (“Wade”) as a criminal suspect and summoned mall security, which then alerted the Manchester police. Wade was then stopped and briefly questioned by the police before he was allowed to proceed on his way. Wade sued the owner of the Kay Jewelers store, Defendant Sterling Jewelers, Inc. (“Sterling”), the owner of the Buckland Hills Mall, GGP, Inc. (“GGP”), and numerous Jane and John Does alleged to be security guards at the mall or employees of Sterling. (ECF No. 36.)[1]GGP in turn brought a third-party complaint against the employer of mall security, Professional Security Consultants, Inc. (“PSC”). (ECF No. 57.) I previously granted in part and denied in part Sterling, GGP, and PSC's motions to dismiss. (ECF No. 105.) As a result, Wade has four remaining claims against Sterling, all under state law[2]: (1) false imprisonment; (2) defamation per se; (3) negligent infliction of emotional distress; and (4) negligent supervision. (Id. at 29.) Sterling now moves for summary judgment on these claims (ECF No. 87).[3] Sterling has also separately moved to preclude Wade from introducing the testimony of his designated expert witness, Dr. Sorhab Zahedi. (ECF No. 80.) For the reasons that follow, I GRANT Sterling's motion for summary judgment and DENY the motion in limine as moot.

         I. Factual Background

         The facts set forth below are taken from the parties' Local Rule 56(a) statements and supporting exhibits and are undisputed unless otherwise indicated.

         A week before March 18, 2017, a man came into the Kay Jewelers store in the Buckland Hills Mall (“the Mall”), gave the staff multiple different names, and on two separate occasions attempted to use multiple credit cards that were all declined. (ECF No. 88, Sterling's Local Rule 56(a)1 Statement (“Def.'s L.R. 56(a)1 Stmt.”) ¶ 4; ECF No. 93-1, Plaintiff's Local Rule 56(a)2 Statement (“Pl.'s L.R. 56(a)2 Stmt.”) ¶ 4.) The parties dispute whether the Sterling employees on duty, Jamileth Anes and Carmen Santos, suspected the man of criminal activity, such as credit card fraud. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 5; Pl.'s L.R. 56(a)2 Stmt. ¶ 7.)[4] The parties also dispute whether this man was ultimately arrested at a different Kay Jewelers store. (Def.'s L.R. 56(a)1 Stmt. ¶ 100; Pl.'s L.R. 56(a)2 Stmt. ¶ 100.)

         On March 18, 2017, Wade visited the Mall. (Def.'s L.R. 56(a)1 Stmt. ¶ 1; Pl.'s L.R. 56(a)2 Stmt. ¶ 1.) Wade passed back and forth in front of the Kay Jewelers store four or five times. (Def.'s L.R. 56(a)1 Stmt. ¶ 12; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 11-12.) Santos and Anes were the only employees working at the Kay Jewelers store at the time of the incident. (Def.'s L.R. 56(a)1 Stmt. ¶ 6; Pl.'s L.R. 56(a)2 Stmt. ¶ 6.) Anes saw Wade outside of the Kay Jewelers store. (Def.'s L.R. 56(a)1 Stmt. ¶ 7; Pl.'s L.R. 56(a)2 Stmt. ¶ 7.) The parties dispute whether Anes honestly mistook Wade for the individual from the week before, whether Wade bore a resemblance to that individual, and whether Wade was staring into the Kay Jewelers store. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 7-11, 13; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 7-11, 13.) According to Sterling, Anes reported to Santos that she saw the person who attempted credit card fraud the week before in front of the store. (Def.'s L.R. 56(a)1 Stmt. ¶ 14; Pl.'s L.R. 56(a)2 Stmt. ¶ 14.)

         As a result, Santos called mall security. (Def.'s L.R. 56(a)1 Stmt. ¶ 16-17; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 16-17.) The parties dispute what Santos told mall security on the call. According to Sterling, Santos told mall security that a Sterling employee believed she saw a person who had attempted credit card fraud at the store the prior week and asked them to “stand by” in the vicinity of the store in case the person attempted any type of crime. (Def.'s L.R. 56(a)1 Stmt. ¶ 18.) Sterling proffers that the shared understanding of a “stand by” request is be somewhere nearby and observe the store; mall security does not normally respond to a request to “stand by” by entering the store or interacting with any store patrons. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 20-22.) According to Wade, Santos did not ask mall security to “stand by, ” but instead reported to mall security that Wade may try to do a “grab-and-run” and later to police that Wade was suspected of a crime. (Pl.'s L.R. 56(a)2 Stmt. ¶ 18.) The parties also dispute whether the Sterling employees identified Wade by name to mall security or anyone else; it is undisputed that they did not know Wade's name. (Def.'s L.R. 56(a)1 Stmt. ¶ 19; Pl.'s L.R. 56(a)2 Stmt. ¶ 19.)

         After Santos called, two mall security officers, Matthew Vieweg and Shevada Davis, came to the Kay Jewelers store and spoke with Santos. (Def.'s L.R. 56(a)1 Stmt. ¶ 23; Pl.'s L.R. 56(a)2 Stmt. ¶ 23.) Santos was the only Sterling employee who spoke with mall security. (Def.'s L.R. 56(a)1 Stmt. ¶ 24; Pl.'s L.R. 56(a)2 Stmt. ¶ 24.) The parties dispute whether Santos told Vieweg and Davis during the conversation to stand by or whether she told them to look for Wade. (Def's L.R. 56(a)1 Stmt. ¶¶ 23, 26; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 23, 26.) The parties also dispute whether Santos (or any other Sterling employee) asked mall security to call the police, detain Wade, initiate any type of criminal proceeding against Wade, or engage Wade in any way. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 26-30; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 26-30.) The parties further dispute whether mall security decided what action to take and whether Sterling employees have authority to direct the actions of mall security. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 31-32; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 31-32.)

         Mall security called the Manchester Police. (Def.'s L.R. 56(a)1 Stmt. ¶ 33; Pl.'s L.R. 56(a)2 Stmt. ¶ 33.) The parties dispute, among other things, whether Santos expected mall security to call the police or knew that they would, based on either her knowledge at the time or her past practice. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 35-46; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 35-46.) Mall security told the police that a Kay Jewelers employee reported seeing a person she believed was the suspect in a previously attempted fraud at the Kay Jewelers store. (Def.'s L.R. 56(a)1 Stmt. ¶ 47; Pl.'s L.R. 56(a)2 Stmt. ¶ 47.)

         Officer John Decker was the only police officer present in the Mall that day. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 48-49; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 48-49.) The parties dispute whether Officer Decker first went into Kay Jewelers and talked to a Sterling employee before finding Wade. (See Pl.'s L.R. 56(a)2 Stmt. ¶ 18.) The parties further dispute whether, once he found Wade, Officer Decker approached Wade or affirmatively stopped him. (Def.'s L.R. 56(a)1 Stmt. ¶ 49; Pl.'s L.R. 56(a)2 Stmt. ¶ 49.) Officer Decker asked for Wade's ID card (i.e., his driver's license), which Wade provided. (Id.) The parties dispute whether Officer Decker's request for Wade's ID was voluntary, whether Wade voluntarily provided his ID, and whether Wade demanded or instructed Decker to return his ID at any point. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 50-53; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 50-53.) Officer Decker asked Wade to walk with him to the Kay Jewelers store, but Wade initially declined. (Def.'s L.R. 56(a)1 Stmt. ¶ 54; Pl.'s L.R. 56(a)2 Stmt. ¶ 54 (relying on Wade's testimony that Wade “declined at first”).) Wade then began walking with Officer Decker, but the parties dispute whether this was voluntary too. (Id.) While Wade was with Officer Decker, Wade called his lawyer, and nobody made any attempt to prevent Wade from calling his lawyer. (Def.'s L.R. 56(a)1 Stmt. ¶ 57; Pl.'s L.R. 56(a)2 Stmt. ¶ 57.)

         The parties dispute whether Officer Decker brought Wade's driver's license into the Kay Jewelers store to show the Sterling employees, as well as the content of any conversation between Officer Decker and the employees. (Pl.'s L.R. 56(a)2 Stmt. ¶ 55; see ECF No. 100 at 10-11 (conceding factual dispute on whether Decker went into Kay Jewelers after his conversation with Wade ended).) Wade never went into the Kay Jewelers store or interacted with any Sterling employees. (Def.'s L.R. 56(a)1 Stmt. ¶ 114; Pl.'s L.R. 56(a)2 Stmt. ¶ 114.) The parties dispute whether there was any interaction between the police and the Sterling employees, or whether any Sterling employee asked the police to detain or engage with Wade in any way. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 115-17; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 115-17.) When the Sterling employees realized that Wade was not the same person from the week before, they so informed Officer Decker. (Def.'s L.R. 56(a)1 Stmt. ¶ 55; Pl.'s L.R. 56(a)2 Stmt. ¶ 55.) Once he learned that Wade was not the suspect from the week before, Officer Decker thanked Wade for his time and ended their conversation. (Def.'s L.R. 56(a)1 Stmt. ¶ 56; Pl.'s L.R. 56(a)2 Stmt. ¶ 56.)

         The parties dispute whether Wade's interaction with Officer Decker was voluntary, whether Wade was detained against his will, whether Officer Decker or anyone else told Wade that he could not leave, or whether Wade asked if he was free to leave. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 58-62; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 58-62.) It is undisputed, however, that Officer Decker never placed Wade under arrest, never handcuffed Wade, and never directly physically touched Wade. (See Def.'s L.R. 56(a)1 Stmt. ¶¶ 63-65; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 63-65.) Although the parties dispute exactly how long the incident lasted, Wade admits that it lasted less than 20 minutes in total. (Def.'s L.R. 56(a)1 Stmt. ¶ 118; Pl.'s L.R. 56(a)2 Stmt. ¶ 118 (“The Incident started just before security at Buckland Hills mall received the telephone call from Santos at 12:13 P.M. on March 18, 2017. . . The incident ended just a minute or two before 12:33 P.M.”).)

         II. Legal Standard

         Summary judgment is appropriate only when the moving party “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). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (internal quotation marks and citations omitted). “A fact is material when it might affect the outcome of the suit under governing law, ” and a dispute of fact “is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal citations and quotation marks omitted). The moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences” in favor of the non-moving party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (internal citations omitted).

         If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). It “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Id. (internal quotation marks and citations omitted). “Where no rational finder of fact could find in favor of the nonmoving party because the evidence to support its case is so slight, summary judgment must be granted.” Id. (internal quotation marks and citations omitted).

         III. Discussion

         Sterling moves for summary judgment on all claims against it arising out its employees' role in the March 18, 2017 incident. (ECF No. 87.) As earlier discussed, only four claims remain against Sterling: (1) false imprisonment; (2) defamation per se; (3) negligent infliction of emotional distress; (4) and negligent supervision. Because Wade has failed to raise a genuine dispute of material fact as to each claim, I conclude that Sterling is entitled to summary judgment. I address each claim in turn.

         A. False Imprisonment

         Wade argues that disputed issues of material fact preclude summary judgment on his false imprisonment claim against Sterling. (ECF No. 93 at 24-34.) But he has failed to submit any evidence suggesting that Sterling's employees acted with the requisite intent to confine Wade; and because he has the burden to prove that they did, his claim fails.

         “[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another.” Berry v. Loiseau, 223 Conn. 786, 820 (1992) (citation omitted). “To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly.” Id. (citation omitted). The restraint must be accomplished through the “exercise of force . . . express or implied.” Id. at 821. “Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability.” Green v. Donroe, 186 Conn. 265, 267 (1982); see Id. (“The fact that there was no formal arrest of the plaintiff . . . and that he remained in the custody of the police for only ten minutes would not necessarily defeat his cause of action for false imprisonment.”). Nonetheless, “[a] person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.” Rivera v. Double A Transp., Inc., 248 Conn. 21, 31 (1999) (citing Donroe, 186 Conn. at 268). “Nothing less than a rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases.” Id.

         Wade argues that Santos and Anes, by reporting Wade to mall security and speaking with Officer Decker, acted with the purpose of imposing a confinement on Wade or with knowledge that his confinement would result with substantial certainty. (ECF No. 93 at 29-34.) But even when all ambiguities in the record are resolved and all reasonable inferences from the evidence drawn in Wade's favor, there is no evidence from which a reasonable juror could find that Santos or Anes acted with the requisite intent.

         The undisputed facts, when construed in the light most favorable to Wade, show as follows. Santos called mall security and told them that a Kay Jewelers employee believed she saw a person near the store who had attempted to commit credit card fraud at the store the prior week and that security should “stand by” the store in case the man attempted a crime. (See Def.'s L.R. 56(a)1 Stmt. ¶¶ 16, 18; Pl.'s L.R. 56(a)2 Stmt. ¶ 16; ECF No. 87-4, Santos Dep. Tr. 33:12-16, 39:23- No. 40:22, 48:3-7, 76:4-9.) By “stand by, ” she meant that mall security should stay somewhere near the store and observe the store. (Def.'s L.R. 56(a)1 Stmt. ¶ 21; see ECF No. 87-4, Santos Dep. Tr. 81:16-82:12.) Both Santos and Anes believed that mall security typically responds to calls to stand by from Kay Jewelers by “walking around in the general area outside of the store, ” not “by coming inside the store or interacting with any patron of Kay Jewelers or the Mall.” (Def.'s L.R. 56(a)1 Stmt. ¶¶ 20, 22 (citing ECF No. 87-4, Santos Dep. Tr. 13:21-14:2, 36:18-22, 81:16-82:12; ECF No. 87-5, Anes Dep. Tr. 20:23-21:7).) No. other Sterling employee called mall security about Wade. (Def.'s L.R. 56(a)1 Stmt. ¶ 17; Pl.'s L.R. 56(a)2 Stmt. ¶ 17.)

         Two mall security guards came to the Kay Jewelers store in response to the call and talked to Santos, who again told them to stand by. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 23-24; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 23-24; see ECF No. 87-4, Santos Dep. Tr. 41:11-12 (“I told them the same thing: just stand by, you know.”).) Mall security left after talking to Santos. (Def.'s L.R. 56(a)1 Stmt. ¶ 25; Pl.'s L.R. 56(a)2 Stmt. ¶ 25.) Santos did not ask mall security to look for Wade. (Def.'s L.R. 56(a)1 Stmt. ¶ 26; see ECF No. 87-4, Santos Dep. Tr. 42:1-2.) No. Sterling employee asked mall security to call the police, detain Wade, initiate any type of criminal proceeding against Wade, or engage Wade in any way. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 27-30; see ECF No. 87-4, Santos Dep. Tr. 83:22-84:12; ECF No. 87-5, Anes Dep. Tr. 20:3-10.) Mall security did not tell Santos they would call the police or that they intended to look for Wade, and Santos did not hear mall security say that they would call the police or expect they would do so. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 35-38, 44; see ECF No. 87-4, Santos Dep. Tr. 44:16-23, 51:7-9, 53:18-55:12, 83:19-21, 85:16-20.) In response to Santos' previous calls to ask mall security to “stand by, ” mall security had never called the police, interacted with the person, or detained the person. (Def.'s L.R. 56(a)1 Stmt. ¶ 45; see ECF No. 87-4, Santos Dep. Tr. 82:13-83:2.) Mall security has never responded to Santos' calls by calling the police unless the person about whom security was called had already committed a crime. (Def.'s L.R. 56(a)1 Stmt. ¶ 46; see ECF No. 87-4, Santos Dep. Tr. 51:10-23.) Anes also did not know that mall security called the police and did not believe that mall security would respond to the call by calling the police, detaining Wade, or engaging Wade in any way. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 39-43; ECF No. 87-5, Anes Dep. Tr. 20:23-22:14.)

         After Santos called them, mall security decided what action to take. (Def.'s L.R. 56(a)1 Stmt. ¶ 31; see ECF No. 87-4, Santos Dep. Tr. 85:7-85:15.) Sterling does not have the authority to direct the actions of mall security. (Def.'s L.R. 56(a)1 Stmt. ¶ 32; see ECF No. 87-4, Santos Dep. Tr. 85:7-85:15.) Mall security, and not an employee of Sterling, called the police. (Def.'s L.R. 56(a)1 Stmt. ¶¶ 33-34; Pl.'s L.R. 56(a)2 Stmt. ¶¶ 33-34.) When Officer Decker arrived, no Sterling employee asked the police to detain Wade or to engage ...


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