United States District Court, W.D. Tennessee, Eastern Division
MOHAMMED F. NASAR, Plaintiff,
KOHL'S DEPARTMENT STORES, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
DANIEL BREEN, UNITED STATES DISTRICT JUDGE.
action was initially brought in the Circuit Court of Madison
County, Tennessee, on September 4, 2018, by the Plaintiff,
Mohammed F. Nasar,  against the Defendant, Kohl's
Department Stores, Inc. (“Kohl's”), (Docket
Entry (“D.E.”) 1-2) and removed to this Court on
October 26, 2018, in accordance with 28 U.S.C. § 1441
(D.E. 1). Before the Court is the Defendant's August 27,
2019, motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. (D.E. 27.) Plaintiff
responded to the motion on September 17, 2019. (D.E. 28.)
However, in an order entered September 19, 2019, the Court
struck the response from the docket in light of Nasar's
failure to comply with the local rules of this district or
the Federal Rules of Civil Procedure, and for his failure to
adequately address the issues raised in Kohl's
dispositive motion. (D.E. 30.) A second filing was made by
Plaintiff in response to the motion on October 7, 2019. (D.E.
following facts are undisputed. The Plaintiff visited the
Kohl's store located at 1131 Vann Drive in Jackson,
Tennessee, several times per year. According to copies of
documents attached to Plaintiff's deposition, on
September 4, 2017, at 7:34 p.m., Nasar purchased three pairs
of men's Dockers brand pants for a total purchase price,
including tax, of $54.88. (D.E. 27-2 at PageID 89.) The
purchase was made with a Visa card. (Id.) Later that
evening, at 7:59 p.m., he returned a pair of pants, for which
he received merchandise credit in the amount of $21.95.
(Id. at PageID 90.) The return receipt identified
the clothing as “Mens Haggar Suit” and noted the
return was “WITHOUT RECEIPT.” (Id.)
Kohl's submits, and Nasar does not appear to dispute,
that these pants bore a “Haggar tag.” (D.E. 27-1
at PageID 73.) A second return receipt, timestamped moments
later at 8:06 p.m., reflected the return of a pair of pants,
also identified as “Mens Haggar Suit, ”
“WITHOUT RECEIPT.” (D.E. 27-2 at PageID 88.)
Plaintiff was given store credit in the amount of $21.95 for
this return. (Id.) Nasar appears to not dispute that
these pants bore a “Haggar tag.” An Electronic
Journal Report timestamped 8:08 p.m. on September 4, 2017,
indicates that Nasar purchased a pair of “Mens Dress
Pants” for $32.91, including tax. (Id. at
PageID 89.) He paid for the item with $21.95 of his store
credit and put the remainder on the same Visa card used to
make the first September 4 purchase. (Id.) The 8:08
p.m. purchase involved men's size 40x32 Croft and Barrow
True Comfort 4-way stretch classic-fit pleated dress slacks
in charcoal heather.
following day, at 3:18 p.m., Plaintiff returned two pairs of
Dockers brand pants to the store. (Id. at PageID
91.) It appears that he presented a purchase receipt for the
items and a refund in the amount of $36.59 was credited to
his Visa card.
September 12, 2017, Nasar attempted to return a pair of pants
bearing a Croft and Barrow tag on two separate occasions. The
Defendant claims, and the Plaintiff does not dispute, that
the sewn-in label of the pants did not match the Croft and
Barrow tag. Kohl's refused to accept the return.
Kohl's manager Paul Sanford spoke to him at some point
during this attempted return. When Nasar returned to the
store later in the day to again attempt to return the pants,
an employee advised him that a supervisor wanted to speak
with him. Plaintiff, who was familiar with the supervisor,
walked with him to an office, and the supervisor closed the
door behind him. They were joined by a second employee
shortly thereafter. Neither touched Nasar. The police were
called, and officers issued a written warning citation to
Plaintiff for theft, shoplifting, and trespassing but did not
place him under arrest. (Id.) The citation indicated
that Kohl's did not wish to press charges. (Id.)
not a model of clarity, it appears the complaint alleges
false arrest and imprisonment, and intentional and negligent
infliction of emotional distress.
provides that 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). “The moving
party must first demonstrate to the court that an essential
element of the nonmoving party's case is absent; upon
that showing, the nonmoving party must then present
sufficient evidence to demonstrate that there is a factual
controversy as to that element, or at least explain why such
evidence is not available.” Superior Prod.
P'ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d
311, 326 (6th Cir. 2015) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). While “all
reasonable inferences [must be made] in favor of the
nonmoving party, . . . the mere existence of a scintilla of
evidence in support of the plaintiff's position will be
insufficient to defeat summary judgment.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986); Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986))
(internal alterations & quotation marks omitted). A
plaintiff “cannot rely on conjecture or conclusory
accusations to survive summary judgment.” Guba v.
Huron Cty., Ohio, 695 Fed.Appx. 98, 105 (6th Cir. 2017)
(quoting Arendale v. City of Memphis, 519 F.3d 587,
605 (6th Cir. 2008)) (internal quotation marks omitted).
extent a nonmovant fails to respond to an argument of the
moving party, the court “may not grant summary judgment
on that fact alone.” Alhomedi v. Dillard's,
Inc., No. 14-cv-2434-SHL-cgc, 2015 WL 10818743, at *3
(W.D. Tenn. Oct. 22, 2015). Rather, “a district court
must review carefully the portions of the record submitted by
the moving party to determine whether a genuine dispute of
material fact exists.” Fed. Trade Comm'n v.
E.M.A. Nationwide, Inc., 767 F.3d 611, 630 (6th Cir.
AND CHOICE OF LAW
Plaintiff is a resident of Tennessee, Kohl's is a
Wisconsin corporation, and the amount in controversy exceeds
$75, 000. Accordingly, this Court has diversity jurisdiction
over this matter under 28 U.S.C. § 1332. In diversity
cases, a federal district court is to apply the substantive
law of the state in which it sits. Hackney v. Lincoln
Nat'l Fire Ins. Co., 657 Fed.Appx. 563, 570 (6th
Cir. 2016) (citing Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938)). This rule includes the forum state's
law concerning choice of laws. Id. In tort cases,
“Tennessee follows the ‘most significant
relationship' approach of the Restatement (Second) of
Conflict of Laws to choice-of-law questions.”
Montgomery v. Wyeth, 580 F.3d 455, 459 (6th Cir.
2009) (citing Hataway v. McKinley, 830 S.W.2d 53, 59
(Tenn. 1992)); Bass v. Kodirov, Nos. 1:17-CV-108
REEVES/STEGER, 1:17-CV-69 REEVES/STEGER, 2019 WL 4601992, at
*3 (E.D. Tenn. Sept. 23, 2019). That is, "the law of the
state where the injury occurred will be applied unless some
other state has a more significant relationship to the
litigation.” Montgomery, 580 F.3d at 459
(quoting Hataway, 830 S.W.2d at 59). Here, the
alleged injury occurred in Tennessee and the parties do not
claim any other state's law applies. Thus, the Court will
look to the law of Tennessee in resolving this action.
OF THE PARTIES AND ANALYSIS
Infliction of ...