United States District Court, D. Maryland
K. Bredar Chief Judge.
Stacie and Andrew MacDonald, citizens and residents of
Maryland, brought this suit against Defendant Costco
Wholesale Corp. on June 12, 2017 in the Circuit Court for
Anne Arundel County, Maryland. (See Notice of
Removal, ECF No. 1.) Defendant, a citizen of the State of
Washington, removed the case to this Court on the basis of
diversity of citizenship on June 26, 2017. (Id.)
Defendant answered on the same day. (ECF No. 5.) Defendant
now brings a motion for summary judgment. (ECF No. 26.)
Plaintiffs have responded in opposition (ECF No. 27) and
Defendant has replied (ECF No. 28). The motion is therefore
fully briefed and ripe for review. No hearing is necessary to
resolve the matter. Local Rule 105.6 (D. Md. 2016). For the
reasons stated below Defendant's motion will be granted
in part and denied in part by accompanying order.
2015 Stacie MacDonald and her husband, Andrew, went to Costco
in Glen Burnie Maryland to shop for groceries. (Dep. Stacie
MacDonald 63:8-15, ECF No. 27-3.) The couple shopped
separately, and Stacie “went toward the food
area.” (Id. 66:6.) She had not had lunch.
(Trial Tr. 88:3, ECF No. 26-3.) She took a package of Super
Veggie Cakes from the shelf, and began to eat them while she
continued shopping. (Dep. Stacie 68-69.)
to Stacie, she was being watched. Mr. Sears, a Costco
employee who worked as a floor manager and in loss
prevention, had seen Stacie take the Veggie Cakes and begin
eating them. (Trial Tr. 9-11.) He began to follow her.
(Id. at 11:17-18.) Each package of Veggie Cakes
contains two six-packs of cakes. (Id. at 10:5-6.)
Mr. Sears watched Stacie consume some or all of one six-pack
and dispose of it in the garbage. (Id. at
11:11-12:22; Dep. Stacie MacDonald at 69:13-70:2.) At some
point, Mr. Sears watched her pick up a second package of
Veggie Cakes. (Trial Tr. at 12:13-15; Dep. Stacie MacDonald
at 72:1-4.) After watching her meet briefly with her husband,
he saw her toss the second six-pack from the first package
and the outer box from the first package in a garbage can,
“[r]ight in front of her husband.” (Trial Tr. at
14:14-16; see Dep. Stacie MacDonald at 69:19-70:2.)
Mr. Sears later saw both Stacie and Andrew proceed to the
registers. (Trial Tr. at 15:11-12.)
MacDonalds contend that they were executing a detailed plain
in relation to the food items at the center of this case.
According to Stacie, she had badly damaged the exterior
package of the first Veggie Cake package when she opened it,
rendering the UPC bar code useless. (See Stacie
MacDonald Aff. ¶ 3, ECF No. 27-7.) Instead of bringing
the unscannable package to the register, Stacie thought to
get another package from the shelf. This way, as Stacie saw
it, the cashier would not “have to call someone and get
the price” and could simply ring up the second package
and set it aside. (Trial Tr. at 90:8-10.) It was, Stacie
thought, “the right thing to do.” (Id.).
This plan grew in complexity when Stacie had to use the
restroom prior to checking out, forcing her to rely on Andrew
to inform the cashier. (Id. at 91:1-12.) Stacie left
Andrew in line, and he swears that he “told the cashier
to charge the veggie cakes and put the package aside and not
in my cart.” (Andrew MacDonald Aff. ¶ 3, ECF No.
27-8.) It is unclear if the plan was successfully executed.
Andrew “believe[s]” that the Veggie Cakes were
indeed set aside, and were not in his shopping cart
as he left the store - Stacie and Andrew had been shopping
separately, and (according to them) had separate carts.
(Id. ¶ 4.) Stacie is more certain about her
cart, swearing “[t]he veggie cakes were not in my
shopping cart when I exited the store.” (Stacie
MacDonald Aff. ¶ 7; see also Dep. Stacie
MacDonald at 84:5-8.) Mr. Sears later claimed that the Veggie
Cakes were in Stacie's cart after the MacDonalds went
through the register. (Trial Tr. at 31:15-18.) The
MacDonalds' receipt shows that they paid for a package of
Veggie Cakes, but without knowing whether the second package
ended up with the MacDonalds after they had checked out, this
evidence could support either the Plaintiffs' version of
events or the Defendant's. (See Receipt, ECF No.
Mr. Sears was unaware of Stacie's plan to reimburse
Costco for the Veggie Cakes. He had seen a woman consume
food, throw the package in the garbage, and walk towards the
exit without paying for it. He approached her and asked her
to come back to the office. (Trial Tr. at 22:13-14.)
here, the important events are in complete dispute. Mr. Sears
testified, at the later criminal trial, that he asked Stacie
about the Veggie Cakes and gave her an opportunity to
explain. (Trial Tr. at 33:3-11.) He testified that instead of
explaining her plan to pay for the Veggie Cakes, she became
agitated and indignant, saying that it was “beneath her
for us to stop her for something so miniscule.”
(Id. at 33:12-14.) He testified that he checked her
receipt against the contents of her shopping cart, and found
the second package of Veggie Cakes. (Id. at
31:15-18.) There was no evidence of payment for the first
package, only for the second. Or, there was evidence of
payment for the first package that was consumed, but then not
for the second in Stacie's possession. In any event, in
Sears' view, the MacDonalds had taken two packages of
Veggie Cakes but only paid for one. He testified that he then
called the police. (See Id. at 24:18.)
according to her testimony at the criminal trial, her
deposition, and in a sworn affidavit, remembers things
differently. According to Stacie, once she was in the office
she tried to explain that she had (at least as far as she
knew) paid for the Veggie Cakes she had consumed, but was
never given an opportunity to explain, and was in fact told
not to speak by another Costco employee. (Trial Tr. at 98:8-9
(“I tried to say, look, can we talk about this”);
id. at 97:19-20 (“I asked her if I could
explain . . . .”); id. at 98:2-3 (“[Mr.
Sears] came back at some point, but he would not let me
talk.”); id. at 99:21-100:2 (Costco employee
told her not to speak).)
to Stacie, Mr. Sears was the agitated figure during this
encounter, becoming irate at her and her husband.
(See Trial Tr. at 98:7-8.) She testified at trial
that Mr. Sears “was very angry.” (Id.)
She testified that at the time she told her husband that Mr.
Sears “seemed crazy, ” and was “all fired
up” and “out of control.” (Id. at
101:15-18; see also Id. at 110:13-111:1.) She
testified in her deposition that he was “acting like a
lunatic.” (Dep. Stacie MacDonald at 92:8-9.) Andrew
testified that while he was waiting outside the office, Mr.
Sears “blasted out of the office, ” and Andrew
attempted to take a picture of him. (Trial Tr. at 134-35.)
Andrew testified that this made Mr. Sears particularly upset.
Andrew testified that after he took a photo of Mr. Sears, Mr.
Sears “was very irate, raised his voice, [and]
screamed.” (Id. at 136:1-2; see also
Dep. Andrew MacDonald at 41:22-42:12.) Mr. Sears testified
that he was simply uncomfortable about having his photograph
taken, and politely asked that Andrew delete it. (Trial Tr.
at 39:3-8.) However, Mr. Sears also testified that it was
after this incident with the photograph that he called 9-1-1
hoping that the police would “hurry up and
respond.” (Id. at 41:6-10.) Furthermore, a
fellow Costco employee testified that Mr. Sears was upset
about Andrew taking a photo. (Id. at 71:10-12.)
to Stacie, and Andrew, Mr. Sears never checked their receipt
against the items in their cart until after the police had
arrived and “paraded” Stacie through the store in
handcuffs. (Trial Tr. at 100:5 (“paraded”);
see also Trial Tr. at 173:8-12 (Judge at bench trial
noting that, after hearing testimony from Mr. Sears, Stacie,
and Andrew, “We don't know when [Mr. Sears]
inventoried.”). In other words, according to Stacie,
Mr. Sears never asked for an explanation, did not allow
Stacie to give one, and did not even investigate the contents
of her shopping cart to see if she had actually stolen
anything before calling the police.
undisputed that the police did arrive, and that they
ultimately arrested Stacie. After a criminal bench trial the
following year she was found not guilty of theft. The judge
did “not believe that anybody in the store acted
improperly, ” but noted that the question of whether
the store acted properly was not “what we're here
about.” (Trial Tr. at 173:16-19.) The judge determined
that based on Stacie and Andrew's testimony, there was a
reasonable doubt as to whether Stacie intended to steal
anything that day. (See Id. at 173-74.) According to
Stacie, she spent roughly $2, 000 defending the criminal
case, and suffered various other harms as a result of this
incident, such as stomach aches, PTSD, loss of sleep, and a
residual fear of entering stores. (Dep. Stacie MacDonald at
121-24.) According to Andrew, he suffered as well, having to
take over some of Stacie's work duties as she
recuperated. (Dep. Andrew MacDonald 11:17-12:1, ECF No.
27-4.) Their love life, it seems, suffered as well.
(See Compl. ¶¶ 45-46.)
the MacDonalds brought this action against Costco in Maryland
state court on June 12, 2017, and Costco removed the action
to this Court on the basis of diversity jurisdiction on June
26, 2017. (See Notice of Removal.) The
MacDonalds' complaint asserts six counts against Costco:
malicious prosecution, false imprisonment, assault, battery,
negligence, and loss of consortium. (See Compl.
¶¶ 18-46.) Costco moved for summary judgment on all
counts on January 19, 2018, a motion which has now been fully
briefed. It is this motion that the Court considers now.
court shall grant summary judgment 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); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing predecessor to current Rule
56(a)). The burden is on the moving party to demonstrate the
absence of any genuine dispute of material fact. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a
verdict in favor of the party opposing the motion, then a
genuine dispute of material fact is presented and summary
judgment should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the
[opposing party's] position” is insufficient to
defeat a motion for summary judgment. Id. at 252.
The facts themselves, and the inferences to be drawn from the
underlying facts, must be viewed in the light most favorable
to the opposing party, Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008), who may not rest upon the mere allegations
or denials of his pleading but instead must, by affidavit or
other evidentiary showing, set out specific facts showing a
genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting
and opposing affidavits are to be made on personal knowledge,
contain such facts as would be admissible in evidence, and
show affirmatively the competence of the affiant to testify
to the matters stated in the affidavit. Fed.R.Civ.P.
advances the following arguments in support of its motion for
summary judgment: that it cannot be held liable for malicious
prosecution or false imprisonment because it is protected by
the “shopkeeper's privilege, ” and that
Plaintiffs have no evidence to support claims ...