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Nasar v. Kohl's Department Stores, Inc.

United States District Court, W.D. Tennessee, Eastern Division

November 15, 2019





         This action was initially brought in the Circuit Court of Madison County, Tennessee, on September 4, 2018, by the Plaintiff, Mohammed F. Nasar, [1] 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. 34-35.)


         The 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.

         The 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.

         On 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.)

         Although not a model of clarity, it appears the complaint alleges false arrest and imprisonment, and intentional and negligent infliction of emotional distress.[2]


         Rule 56 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 non[]moving 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).

         To the 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. 2014).


         The 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.


         Intentional Infliction of ...

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