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Thomas Dewitt v. Home Depot U.S.A.

September 12, 2012


The opinion of the court was delivered by: Matsumoto, United States District Judge:


On May 28, 2010, plaintiff Thomas Dewitt ("plaintiff") commenced this action in New York State Supreme Court in Kings County asserting, inter alia, negligence claims against defendant Home Depot U.S.A., Inc. ("Home Depot" or "defendant") in connection with allegations that plaintiff suffered personal injuries when Home Depot employees forcefully detained him after falsely accusing him of shoplifting. (See ECF No. 1, Verified Complaint ("Compl.").) Home Depot subsequently removed the action to this court on July 20, 2010. Plaintiff initially brought this action against "John Doe 1," "John Doe 2," "John Doe 3," and "John Doe 4," which are "fictitious names, intended to be the assailants of the plaintiff." (Id. at 1.) During discovery, plaintiff identified these John Doe defendants as Woody Simeon, Mariano Moreno, and Arturo Barbosa. (See ECF No. 29, Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment at 2 n.3.).) Plaintiff, however, never moved to amend his complaint to add these individual defendants and never served the complaint on these individual defendants. Accordingly, plaintiff's claims against the John Doe defendants are dismissed. See Fed. R. Civ. P. 4(m) (mandating dismissal without prejudice of claims against a defendant that is not served within 120 days after the complaint is filed); Brown v. Tomcat Elec. Sec., Inc., No. 03-CV-5175, 2007 U.S. Dist. LEXIS 63542, at *2 n.2 (E.D.N.Y. Aug. 27, 2007) ("Since, even after discovery, plaintiffs have failed to substitute named defendants for the John Does and XYZ Corporations, the claims against those defendants are dismissed."). Plaintiff also voluntarily discontinued with prejudice his second cause of action for punitive damages (see ECF No. 13, Stipulation of Discontinuance of the Second Cause of Action for Punitive Damages) and all intentional tort claims alleged in his first and third causes of action (see ECF No. 25, Stipulation and Order of Discontinuance of Intentional Tort Claims). Therefore, the only remaining claims in this action are plaintiff's negligence claims against Home Depot.

Presently before the court is Home Depot's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 on plaintiff's negligence claims. Having reviewed the parties' submissions, the record before the court, and the relevant case law, for the reasons set forth below, the court grants Home Depot's motion for summary judgment in its entirety.


I. Statement of Relevant Material Facts*fn1

For the purposes of deciding this motion for summary judgment, the court has considered whether the parties have proffered admissible evidence in support of their positions and has construed the evidence in the light most favorable to the nonmoving plaintiff, drawing all reasonable inferences in his favor. See FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264-65 (2d Cir. 2009). Additionally, the court has considered materials in the record that have not been cited by the parties. See Fed. R. Civ. P. 56(c)(3). Because the parties present significantly divergent factual accounts, the court will first summarize plaintiff's account of the relevant facts, construing the evidence in the light most favorable to him, and then will describe the issues of fact disputed by Home Depot. A.Plaintiff's Account of the April 13, 2009 Incident On April 13, 2009, Woody Simeon ("Simeon"), Mariano Moreno ("Moreno"), and Arturo Barbosa ("Barbosa") were Home Depot employees working at the store located at 2970 Cropsey Avenue in Brooklyn, New York (the "Store") in the capacity of Asset Protection Specialists (collectively, the "AP Specialists"). (Def. 56.1 Stmt. at 2; Pl. 56.1 Stmt. at 1; ECF No. 29-2, Transcript of Deposition of Woody Simeon ("Simeon Dep.") at 27-28.) Around noon on the same day, plaintiff entered the Store to purchase a drill. (ECF No. 29-1, Transcript of Deposition of Thomas Dewitt ("Pl. Dep.") at 26, 31.) He obtained a shopping cart and eventually proceeded to an area known as the tool corral to look for a drill. (Id. at 29, 34-36.) After he picked up one Ridgid brand drill box and placed it in his shopping cart, plaintiff eventually proceeded to a cash register for checkout. (Id. at 37-39.) Prior to proceeding to the cash register, plaintiff did not tamper with the Ridgid drill box in any manner and did not place a second drill in the drill box only intending to pay for one drill. (Id. at 42-44.)

At the cash register, plaintiff paid for a single drill using his Visa credit card and obtained a receipt. (Id. at 40.) Seconds later, plaintiff was approached by the AP Specialists, who were wearing plain clothes. (Id. at 46-47; Simeon Dep. Tr. at 16, 27; Pl. 56.1 Stmt. at 1.) Without identifying themselves as Home Depot employees, one of the AP Specialists grabbed plaintiff from behind by the neck and placed him in a head lock and another AP Specialist twisted plaintiff's arm behind his back. (Pl. Dep. at 48-50.) Then, without explaining their actions to plaintiff and with no resistance from plaintiff, the AP Specialists pulled plaintiff with his arm behind his back to an office in the back of the Store. (Id. at 48, 63-65, 67-70.)

In the office, plaintiff was patted down by the AP Specialists, who removed the contents of his pockets, and he sat down in a chair. (Id. at 70-71.) After plaintiff was in the office for approximately twenty minutes, police officers arrived at the Store in response to a 911 call by Home Depot and waited outside the office, as plaintiff could hear their radios from the office. (Id. at 79-82, 84-85, 95-96; Exhibit E to Def. 56.1. Stmt., Transcript of Deposition of Aida Acevado ("Acevado Dep.") at 11, 49.) Plaintiff was told by the AP Specialists that he could go home if he signed a document (the "Voluntary Statement").*fn2 (Pl. Dep. at 76.) Plaintiff, however, informed the AP Specialists that he could not read the Voluntary Statement because he did not have his reading glasses, and when plaintiff attempted to get out of his chair to speak to a police officer, one of the AP Specialists pushed him back down into the chair. (Id. at 78-80, 84-85.)

While still in the office, plaintiff eventually signed the Voluntary Statement even though he could not read it because he felt that he would not be able to leave without signing it. (Id. at 86, 105-06, 108, 164-66.) Although plaintiff testified that there was no way out of the office because one of the AP Specialists blocked the doorway (id. at 87-93), the door to the office was left open and plaintiff never asked to leave the office, to make a phone call, or to call the police (id. at 74, 76, 88, 99-100; Simeon Dep. at 99-100).

The police officers that arrived at the Store learned from Moreno and another AP Specialist that the AP Specialists detained plaintiff after they observed him (1) open a drill box containing one drill, (2) remove packaging from the box, (3) place a second drill in the box even though it should only hold one drill, and (4) proceed to purchase only a single drill and exit the Store in possession of the two drills without paying for the second drill. (Acevado Dep. at 10-12.) The police officers subsequently entered the office and spoke with the plaintiff, and plaintiff told them that he was not sure why he was getting arrested. (Pl. Dep. at 113.) Plaintiff was then placed in handcuffs, arrested, and escorted to the 60th Precinct by another police officer. (Id. at 103-104, 118, 141; Acevado Dep. at 60.) The probable cause for plaintiff's arrest was predicated on the statements the police officers received from the AP Specialists. (Acevado Dep. at 19-20, 66-67, 70-72; see Exhibit K to Def. 56.1 Stmt., Complaint Report.)

At his arraignment the next morning, plaintiff was charged with Petit Larceny under New York Penal Law § 155.25 and Criminal Possession of Stolen Property in the Fifth Degree under New York Penal Law § 165.40, both class A misdemeanors, for his alleged attempt to shoplift a Ridgid drill from Home Depot. (Pl. Dep. at 126-28; ECF No. 29-3, Certificate of Disposition). All criminal charges were subsequently dismissed on June 14, 2010. (See Certificate of Disposition.) Plaintiff sought and received medical treatment by a physician for injuries he sustained as a result of the AP Specialists' assault of him on April 13, 2009. (Pl. Dep. at 152-53.)

B.Issues of Fact Disputed by Home Depot

There are several aspects of plaintiff's deposition testimony that conflict with Simeon's deposition testimony, which are not material to deciding Home Depot's motion but provide background for Home Depot's view of the evidence. First, Simeon testified that he and the other AP Specialists personally observed plaintiff attempt to steal one Ridgid drill from the Store. Specifically, the AP Specialists observed plaintiff (1) open two sealed Ridgid drill boxes priced at $99.00, (2) remove the packaging from one of the drill boxes, (3) remove the drill from the other box and place it in the box from which he had removed the packaging so that it contained two drills, and (4) reseal the drill box containing two drills with tape located in the same aisle as the drills. (Simeon Dep. at 54-66.) Subsequently, Moreno observed plaintiff proceed to a cash register with the drill box containing two drills, pay for only one drill, and pass all points of sales to exit the Store without paying for the second drill. (Id. at 71-72, 75-76, 78-80; see also Exhibit P to Def. 56.1 Stmt. (a report filled out by Moreno the next day on April 14, 2012 ("Moreno Report") at 3.)

Second, Simeon testified that there was no physical contact between any of the AP Specialists and plaintiff at any point in time, including when plaintiff was stopped by the AP Specialists upon exiting the Store, during the walk to the office in the back of the Store, and in the office. (Simeon Dep. at 92-93, 108-09.) Rather, Simeon testified that, when plaintiff was stopped at the Store exit, Moreno approached plaintiff from the front, showed plaintiff his photo ID badge with a Home Depot logo, identified himself by name and as a member of the Home Depot loss prevention team, and instructed plaintiff that he had to accompany the AP Specialists to the back office because he attempted to leave the Store without paying for a drill. (Id. at 80-83; see also Moreno Report at 3.) Simeon further testified that plaintiff initially stated that he paid for the drill, but when Moreno opened the drill box to reveal the two drills, plaintiff said he was sorry and voluntarily followed the AP Specialists to the office, saying sorry another five to seven times during the walk to the office. (Simeon Dep. at 80, 84-85, 96.) Additionally, although Simeon testified that he asked plaintiff on the walk to the office whether he had a weapon or anything that could explode, Simeon testified that the AP Specialists did not perform a pat-down of plaintiff and that the AP Specialists do not perform pat-downs. (Id. at 95.)

Third, Simeon testified that, upon plaintiff's arrival in the back office, plaintiff requested that the AP Specialists not call the police. (Id. at 94.) Simeon further testified that plaintiff asked for a "courtesy" because his nephew is a police officer, and that, per policy, Simeon as the most senior AP Specialist had to call the District Asset Protection Manager on duty, Marcus Torres, to inform him of the plaintiff's request. (Id. at 103-04.)

Fourth, Simeon testified that Moreno read the Voluntary Statement aloud to plaintiff, explained to plaintiff that he did not have to sign it, and that plaintiff read the Voluntary Statement with his glasses on. (Id. at 104-06.)

Finally, the arresting officer who interviewed plaintiff in the office testified during her deposition that plaintiff "said he made a mistake and he was sorry" (Acevado Dep. at 69; see id. at 14), and such statement was documented in her paperwork in connection with the arrest (see, e.g., Exhibit N to Def. 56.1 Stmt., Shoplift/Criminal Possession of Stolen Property Fact Sheet ¶ 10). Plaintiff, however, denied telling the police officers he made a mistake. (Pl. Dep. at 114.)

C.Qualifications and Training of Home Depot Asset Protection Specialists

Home Depot presented undisputed evidence regarding the qualifications and training of AP Specialists. In order to work as an AP Specialist in or around April 2009, an employee must have obtained a security guard license issued by New York State and also become certified by completing approximately three months of in-house Home Depot training. (Simeon Dep. at 9-13.) This training consists of physical, defensive, and surveillance training, with the defensive training taught by the same instructors that train the police department. (Id. at 9-11.) Additionally, the AP Specialists are trained on how to detect fraud and the steps that must be followed in apprehending a suspect. (Id.) According to Simeon, AP Specialists do not forcefully detain any suspects, and they do not close the door to any room in which a suspect is detained in case ...

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