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MacDonald v. Costco Wholesale Corp.

United States District Court, D. Maryland

March 23, 2018

STACIE MACDONALD, et al., Plaintiffs


          James K. Bredar Chief Judge.

         Plaintiffs 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.

         I. Background[1]

         In May 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.)

         Unbeknownst 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.)

         The 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. 27-6.)

         Regardless, 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.)

         From 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.)

         Stacie, 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).)

         According 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.)

         According 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.

         It is 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.)

         Together, 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.

         II. Standard

         “The 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. 56(c)(4).

         III. Analysis

         Defendant 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 ...

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