Huynh v. Wal-Mart Stores Tex., LLC

THALIA HUYNH and DALENA BUSTOS, Plaintiffs, v. WAL-MART STORES TEXAS, LLC, Defendant.

CIVIL ACTION NO. 18-4257

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

June 17, 2019

MEMORANDUM AND RECOMMENDATION

Pending in this case has recently been referred to the undersigned Magistrate Judge for all pretrial proceeding is Defendant's Partial 12(b)(6) Motion to Dismiss (Document No. 8), in which Defendant seeks an Order dismissing Plaintiffs' claims for malicious prosecution, intentional infliction of emotional distress, negligence per se, and violations of the Texas Deceptive Trade Practices Act. Having considered the motion, the response in opposition, the additional briefing, the parties' arguments at a status conference held on May 1, 2019, Plaintiffs' allegations in the state court pleading they filed prior to Defendant's removal of the case to this Court, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendant's Partial 12(b)(6) Motion to Dismiss (Document No. 8) be GRANTED IN PART.

I. Background

This case was filed by two women who were detained and arrested at the Wal-Mart Supercenter near Westheimer and South Kirkwood Road in Houston, Texas. Plaintiffs allege that as they were leaving the Wal-Mart store,

A large man approached Plaintiffs and then grabbed Ms. Huynh's purse. While Ms, Huynh struggled with the purse snatcher, Officer McNeil, an off-duty officer working security for Walmart, approached Plaintiffs and confronted them. Officer McNeil then slammed Ms. Huynh to the ground and handcuffed her. In the course of this assault, her pants were pulled down to her ankles. Officer McNeil also handcuffed Ms. Bustos and slammed her to the ground.

Plaintiffs' First Amended Petition (Document No. 1-2) at 2. Plaintiffs also allege that Ms. Huynh was in intense pain, which Officer McNeil ignored, and that when Houston Police Department officers arrived at the scene, "Officer McNeil and the HPD officers huddled to discuss the situation," leaving Plaintiffs "on the ground in handcuffs for approximately an hour [with] Ms. Huynh lying there with her pants down and in plain view of other customers. While Plaintiffs were on the ground, Officer McNeil and some of the other officers laughed and joked about them." Id. at 2-3. Plaintiffs further allege that they were then "dragged out of the Walmart store by their handcuffs and [ ] taken by ambulance to West Houston Medical Center" where Ms. Huynh was treated and then both Plaintiffs were taken to the Harris County Jail and "charged with resisting arrest." Id. at 3.

Plaintiffs Huynh and Bustos filed suit in state court against Wal-Mart, alleging claims for false imprisonment, malicious prosecution, assault and battery, offensive physical contact, intentional infliction of emotional distress, negligence and negligence per se, gross negligence, and violations of the Deceptive Trade Practices Act (DTPA). Plaintiffs also alleged that Wal-Mart was responsible for the conduct of Officer McNeil under theories of respondeat superior and vicarious liability. Wal-Mart removed the case to this Court on the basis of diversity jurisdiction and promptly filed a Partial 12(b)(6) Motion to Dismiss (Document No. 8), seeking the dismissal of Plaintiffs' claims for: (1) the malicious prosecution; (2) the intentional infliction of emotional distress; (3) negligence per se; and (4) violations of the DTPA. Plaintiffs have filed a response to that motion, as well as an associated, alternative request for leave to amend.

II. Rule 12(b)(6) Standard of Review

Rule 12(b)(6) provides for dismissal of an action for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell AtlanticCorp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is said to be plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Plausibility will not be found where the claim alleged in the complaint is based solely on legal conclusions, or a "formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. Nor will plausibility be found where the complaint "pleads facts that are merely consistent with a defendant's liability" or where the complaint is made up of "'naked assertions devoid of further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557)). Plausibility, not sheer possibility or even conceivability, is required to survive a Rule 12(b)(6) motion to dismiss. Twombly, 550 U.S. at 556-557; Iqbal, 129 S.Ct. at 1950-1951.

In considering a Rule 12(b)(6) motion to dismiss, all well pleaded facts are to be taken as true, and viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). But, as it is only facts that must be taken as true, the court may "begin by identifying the pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, at 1950. It is only then that the court can view the well pleaded facts, "assume their veracity and [ ] determine whether they plausibly give rise to an entitlement to relief." Iqbal, at 1950.

III. Discussion - Plausibility of Plaintiffs' claims

A. Malicious Prosecution

In support of their malicious prosecution claim, Plaintiffs allege that "[c]riminal prosecutions were commenced against [them]. Defendant [Wal-Mart] initiated such prosecutions. The prosecutions were terminated in Plaintiffs' favor. Plaintiffs were not guilty of the charges alleged. Defendant did not have probable cause to initiate such prosecutions against Plaintiffs. Defendant acted with malice towards Plaintiffs. Plaintiffs have suffered, and continueto suffer, damages as a result of such prosecutions." Plaintiffs' Original Petition (Document No. 1-2) at 4. Wal-Mart seeks dismissal of this claim, arguing that Plaintiffs have not alleged any facts that would support a malicious prosecution claim against it given that Plaintiffs were charged with resisting arrest, and not shoplifting. Plaintiffs respond that this claim should not be dismissed at this stage because the facts that are alleged raise an inference that Wal-Mart, acting through its security guard (McNeil), initiated and/or requested that criminal charges be filed against Plaintiffs.

To state a plausible malicious prosecution claim, a plaintiff must allege: "(1) the commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). "A person initiates a criminal prosecution if he makes a formal charge to law enforcement authorities. A person procures a criminal prosecution if his actions are enough to cause the prosecution and, but for his actions, the prosecution would not have occurred." Atchison v. Mem'l Hermann Mem'l City Hosp., No. 14-17-00307-CV, 2018 WL 5260971, at *3 (Tex. App. Oct. 23, 2018) (internal citation omitted).

Here, while Plaintiffs allege, in a conclusory fashion, all the elements of a malicious prosecution claim, there are no facts alleged to support the required elements of a malicious prosecution claim. In particular, there are no facts alleged to support a conclusion that Wal-Mart, either on its own or by and through McNeil, initiated or procured criminal proceedings against Plaintiffs, and no facts alleged that there was an absence of probable cause for Plaintiffs' prosecution. All Plaintiffs allege are legal conclusions, which must be disregarded indetermining whether Plaintiffs have stated a plausible claim. Here, because there are no facts alleged that would support a malicious prosecution claim as against Wal-Mart, that claim is subject to dismissal under Rule 12(b)(6).

B. Intentional Infliction of Emotional Distress

In support of their intentional infliction of emotional distress claim, Plaintiffs allege that "in the course of accosting, confronting, detaining, assaulting, arresting, and prosecuting Plaintiffs, Defendant acted intentionally, knowingly or recklessly. Such conduct by Defendant was egregious, extreme and outrageous and proximately caused emotional distress and harm to Plaintiffs. The emotional distress suffered by each Plaintiff was severe." Plaintiffs' Original Petition (Document No. 1-2) at 5. Wal-Mart seeks dismissal of this claim, arguing that such a "gap-filler" IIED claim is not plausible in this case given "the variety of causes of action [alleged by Plaintiffs] that would provide relief for [the] mental anguish damages" Plaintiffs claim to have suffered. Wal-Mart's Motion to Dismiss (Document No. 8) at 3. Plaintiffs, in response, argue that it is premature to determine whether their IIED claim is a "gap-filler" claim or not, and that they have sufficiently alleged facts, taken as true, that would support the elements of an IIED claim.

To state a claim for IIED, a plaintiff must allege facts that would show: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; 3) the defendants actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Twyman v. Twyman 855 S.W. 2d. 619, 621 (Tex. 1993). Conduct is considered to be extreme and outrageous when the character of the act is so outrageous and the degree is so extreme as to go beyond all possible bounds of decency Id. at...