Opinion
Case No. 2:99CV933C
May 26, 2000
ORDER
This lawsuit alleges several state and federal claims relating to the arrest and subsequent prosecution of Plaintiff Anthony J. Ball. This matter comes before the court on Defendants Dillard's Department Stores, Bill Dillard II, and Mark Brawley's Motion to Dismiss and for Partial Summary Judgment. The pending motion is joined by Defendant J. Stewart. Having fully considered the submissions of the parties and applicable legal authority, the court now enters the following order.
Background
On November 25, 1998, Ball attempted to return some merchandise at the Dillard's Store in South Towne Mall in Sandy, Utah. Ball claims that the store supervisor refused his refund request, called him a liar, and implied that he was stupid. (See Compl. at 3, ¶ 9.) When Ball "raised his voice in protest," the store supervisor called for security. (See id. at 3, ¶ 11, 12.)
Defendant Jeff Stewart, a Sandy police officer who was working undercover in the store, approached Ball. (See id. at 3, ¶ 17.) After a brief exchange of words, Stewart handcuffed Ball's wrists and led him to an office. Ball alleges that Stewart roughly handled him, causing him pain and physical injury. Once Stewart placed him in the office, Ball alleges that Stewart refused him medical attention, denied his request for water, and caused him embarrassment.
As a result of the incident, Ball was charged with disorderly conduct and interference with a public servant. (See Ex. A to Defs.' Br. at 1.) According to the state court record, on February 23, 1999, Ball entered a plea in abeyance to a charge of disorderly conduct and the interference charge was dropped. The court record indicates that Ball was required to serve six months on probation, pay $100 court costs and attend anger management classes.
Additionally, Ball was required to execute a "hold harmless agreement" against the City of Sandy. Ball has not sued the City in this suit.
Of the nine causes of action in Ball's complaint, Defendants move to dismiss the following: (1) False Arrest; (2) Intentional Infliction of Emotional Distress; (3) Malicious Prosecution; and (4) violation of 42 U.S.C. § 1985. In addition, Defendants seek dismissal from the lawsuit of Bill Dillard II, the CEO of Dillard's, who has been sued in his individual capacity.
Pending Motion
Defendants move for dismissal or, in the alternative, for partial summary judgment under Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is treated as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) and may not be granted unless the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Mock v. T.G.Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992). In evaluating a motion to dismiss, a court must accept all well-pled allegations as true and indulge all reasonable inferences in favor of the plaintiff. See Weatherhead v. Globe Int'l, Inc., 832 F.2d 1226, 1228 (10th Cir. 1987).
With some of the claims discussed below, Defendants ask the court to consider documents outside the pleadings. Fed.R.Civ.P. 12(c) permits a court to consider such matters. When a court does so, however, it must treat the motion as one for summary judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(c). A court may grant summary judgment only upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
Discussion
A. Dismissal of Bill Dillard
In general, a CEO cannot be held liable based solely on his status with a corporation. See, e.g., Tulsa Litho Co. v. Tile and Decorative Surfaces Magazine Publ'g, Inc., 69 F.3d 1041, 1043 (10th Cir. 1995) ("Mr. Fisher's interest in the defendant companies as their President does not make him personally liable."); Lobato v. Pay Less Drug Stores, Inc., 261 F.2d 406, 408 (10th Cir. 1958) ("[M]erely being an officer or agent of a corporation does not render one personally liable for a tortious act of the corporation. Specific direction or sanction of, or active participation or cooperation in, a positively wrongful act of commission or omission which operates to the injury or prejudice of the complaining party is necessary to generate individual liability in damages of an officer or agent of a corporation for the tort of the corporation."); Stratton v. West States Constr., 440 P.2d 117, 118 (Utah 1968) ("The mere fact that Lords was president and major stockholder of defendant corporation . . . does not indicate that he was acting for his individual benefit.").
Ball names Bill Dillard, CEO of Dillard's Inc., as a defendant. There is no allegation that Mr. Dillard personally participated in any of the events alleged to have occurred, and there is no indication that Mr. Dillard personally directed any of the Dillard's employees in any of the actions alleged to have occurred. Since Ball has not articulated sufficient grounds for holding Mr. Dillard personally liable, Mr. Dillard must be dismissed from the lawsuit.
B. Dismissal of the Four Claims
1. Malicious Prosecution
In order for Ball to prevail on a claim of malicious prosecution, he must show that the prosecution at issue was brought without probable cause and that it terminated in his favor. See Gilbert v. Ince, 981 P.2d 841, 845 (Utah 1999) (defining malicious prosecution claim as bringing a charge against one who is innocent); Hodges v. Gibson Products Co., 811 P.2d 151, 156 (Utah 1991) ("a plaintiff must prove that the criminal proceedings were terminated in favor of the accused"); Keller v. Ray Quinney Nebeker, 896 F. Supp. 1563, 1570 n. 15 (D. Utah 1995) ("both malicious prosecution claims and wrongful bringing of civil proceedings claims must await the termination of proceedings in favor of the person against whom they are brought"); see also MUJI 10.19 (defining the elements of malicious prosecution to include "That proceeding was terminated in favor of the plaintiff").
Ball entered a plea in abeyance to the charge of disorderly conduct. A plea in abeyance is defined in Utah Code of Crim. P. 77-2a-1(1):
"Plea in abeyance" means an order by a court, upon motion of the prosecution and the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in the plea in abeyance agreement.
Id. According to Utah Code of Crim. P. 77-2a-3, "Upon finding that a defendant has successfully completed the terms of a plea in abeyance agreement, the court shall reduce the degree of the offense, dismiss the case only as provided in the plea in abeyance agreement or as agreed to by all parties." Ball's plea agreement says that "Upon providing proof that the Defendant has completed the anger management class and paid the court costs, the Court will refuse to accept the plea held in abeyance to the Disorderly Conduct charge and the Disorderly Conduct charge will be dismissed with prejudice." Defendants argue that Ball cannot prevail on his claim of malicious prosecution since judgment was not entered in his favor.
Although there is no authority from the Utah courts on this question, other jurisdictions have held that dispositions similar to a plea in abeyance preclude malicious prosecution claims since such dispositions are not "in plaintiff's favor." See Swanson v. Fields, 814 F. Supp. 1007 (D. Kan. 1993), aff'd 13 F.3d 407 (10th Cir. 1993) (plea diversion agreement similar to plea in abeyance precludes plaintiff's subsequent claims for civil damages for malicious prosecution and false arrest); Land v. Hill, 644 P.2d 43, 45 (Colo.App. 1984) (guilty plea similar to plea in abeyance will not support malicious prosecution claim since such a plea agreement did not establish termination in favor of plaintiff).
The conclusions in Swanson and Hill are sound: a plea in abeyance is not meant to indicate that the accused is innocent; rather the plea agreement is an attempt to provide some leniency in certain situations. In addition, the fact that Ball was required to abide by certain rules indicates that there was some "punishment" attached to the agreement. It is fair to conclude, then, that the criminal proceedings were not terminated in Ball's favor. Therefore his malicious prosecution claim is precluded, and summary judgment is granted for this claim.
2. False Arrest
Utah courts recognize that probable cause to arrest is a complete defense to a false arrest claim. See Utah Crim. Code § 76-6-604 (it is a defense that the merchant detaining "such person had probable cause to believe that the person had committed retail theft and that the merchant acted reasonably under all circumstances"); Davis v. ZCMI, 509 P.2d 362, 363 (Utah 1973) (affirming summary judgment for defendant on false arrest claim where court decided (as a matter of law) that there was probable cause for the arrest).
Defendants argue that Ball's plea in abeyance conclusively establishes (as a matter of law) probable cause for Ball's arrest and thereby prohibits Ball from bringing this claim. Defendants cite several non-Utah cases in support of this argument. See, e.g., Hanson v. City of Snohomish, 852 P.2d 295, 301 (Wash. 1993) ("We hold that a conviction, although later reversed on appeal, conclusively establishes probable cause" and is therefore a complete defense to an action for false arrest.); Land, 644 P.2d at 45 ("In a false arrest case, proof that plaintiff pled guilty or was convicted of a state law . . . constitutes an affirmative defense to plaintiff's action."); Herrera v. Conner, 729 P.2d 1075, 1085 (Idaho Ct.App. 1986) (disorderly conduct guilty plea in some cases conceded probable cause precluding false arrest claim).
Although not cited by either party, the Utah Supreme Court has considered this issue in regard to false imprisonment, a cause of action similar to false arrest. In Oleson v. Pincock, 251 P. 23, 25 (Utah 1926), the Utah Supreme Court considered defendant's argument that plaintiff's prior guilty plea "waived the right to recover damages for the alleged false imprisonment." The Court rejected this argument, holding that plaintiff could pursue his claim. Although Oleson is an old case, it has not been overruled and there is no reason to reject its reasoning in the instant case:
One may be illegally arrested and charged with having committed a misdemeanor, and, rather than defend the charge, the accused may plead guilty, and pay the fine imposed, and go about his business. It may be a very serious inconvenience to the person arrested, especially if he is away from home, to go through a trial, although he may feel certain of his innocence. He therefore pleads guilty, and submits to the imposition of a fine. The fact can, however, not palliate or atone for the serious wrong an officer may have committed in making an unlawful arrest, and of illegally depriving the citizen of his liberty.
. . .
To excuse an officer for invading a most sacred right by making an unauthorized arrest in the hope that the accused citizen may plead guilty rather than go to the trouble of defending himself stretches the doctrine of waiver beyond all reasonable bounds.
Id. In fact, the Court's reasoning applies with even greater force in this case, where Ball accepted a plea in abeyance instead of pleading guilty.
It is noteworthy that the state model jury instruction for false arrest and false imprisonment does not mention the effect of a prior guilty plea or a prior plea in abeyance. See MUJI 10.16 (listing only existence of probable cause as a defense to false arrest). Furthermore, it appears that Defendants' argument has been considered and rejected in other state courts. See, e.g., Lewis v. Farmer Jack Division, Inc., 327 N.W. 893, 894 n. 1 (Mich. 1982) ("The innocence of the person arrested is not an element of the tort of false arrest."); Herrera, 729 P.2d at 1085 ("We recognize that there may be cases where a plea of guilty does not necessarily confirm that an officer . . . had probable cause for an arrest.").
According to the complaint, the only thing Ball did to warrant arrest was raise "his voice in protest" and question Stewart's ability to arrest him. (See Compl. at 3, ¶¶ 12, 17.) A person is guilty of disorderly conduct if:
(a) he refuses to comply with the lawful order of the police to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or
(b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
(i) engages in fighting or in violent, tumultuous, or threatening behavior;
(ii) makes unreasonable noises in a public place;
(iii) makes unreasonable noises in a private place which can be heard in a public place; or
(iv) obstructs vehicular or pedestrian traffic
Utah Crim. Code § 76-9-102. Based on the allegations in the complaint, Defendants have not proved as a matter of law that they had probable cause at the time of arrest to believe that Ball violated this section. Accordingly, the court denies Defendants' motion for summary judgment on this claim.
3. Intentional Infliction of Emotional Distress
In order to state a claim of intentional infliction of emotional distress, a plaintiff must show (a) that the defendant intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result, and (c) that severe emotional distress resulted as a direct result of the defendant's conduct. See Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 905 (Utah 1992); Rutherford v. ATT Communications, 844 P.2d 949, 977-78 (Utah 1992) (action must be bad enough so that a reasonable person would exclaim "Outrageous!"); see also Samms v. Eccles, 358 P.2d 344 (Utah 1961) (recognizing the right of a plaintiff to maintain such a claim).
As with the two claims discussed above, Defendants argue that the conduct at issue here cannot be "outrageous" behavior since Ball pled guilty to the criminal charge of disorderly conduct. This is incorrect. This claim alleges that the Defendants acted outrageously and intentionally caused emotional distress. Whether or not Ball was disorderly (leading to his arrest) is irrelevant to the issue of whether Defendants' actions are themselves outrageous.
Ball has alleged a number of outrageous actions by the Defendants. (See Compl. at 5 ¶ 23) (Defendants' actions caused Ball pain and injury); (id. at ¶ 27) (Defendants refused Ball medical care, water, and use of a restroom); (id. at ¶ 18) (Defendants threatened Ball); (id. at ¶ 85) (Defendants humiliated Ball). Ball alleges that these actions were motivated by an intent to cause him emotional distress, and he alleges serious emotional injuries. (See id. at 7, ¶ 41; at 6, ¶ 33.) Ball has, therefore, stated a claim of intentional infliction of emotional distress. Accordingly, the court denies Defendants' motion for summary judgment on this claim.
4. 42 U.S.C. § 1985 42 U.S.C. § 1985 is designed to prevent conspiracies intended to interfere with citizen's exercise of their civil rights. 42 U.S.C. § 1985(3) allows recovery only when a plaintiff can demonstrate (1) a conspiracy to deprive plaintiff of equal protection or equal privileges or immunities, (2) an act in furtherance of the conspiracy, and (3) an injury or deprivation resulting therefrom. See Tilton v. Richardson, 6 F.3d 683, 685 (10th Cir. 1993). Significantly, the statute does not apply to all tortious, conspiratorial interferences with the rights of others, but only to conspiracies motivated by some racial or, perhaps, otherwise class-based, invidiously discriminatory animus. See id.; Dixon v. City of Lawton, 898 F.2d 1443, 1447 (10th Cir. 1990) ("1985(3) requires proof that a conspirator's action was motivated by a class-based, invidiously discriminatory animus."), citing Griffin v. Breckinridge, 403 U.S. 88, 102 (1971).
The "other class-based animus" language has been narrowly construed and the Supreme Court has explicitly held that § 1985(3) does not reach conspiracies motivated by an economic or commercial basis. See United Bhd. of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 837-38 (1983); Tilton, 6 F.3d at 685.
Ball fails to allege any racial motivation for his alleged abuse. While the complaint suggests that Defendants were motivated by some economic-status bias, (see, e.g., Compl. at ¶ 94 (alleging Dillard was biased against 2nd class citizens); ¶ 95 (Dillard was biased against his perceived financial status); ¶ 45 (suggesting that Ball's treatment was because Dillard's deemed him to be not a "quality person")), this type of bias is not covered by § 1985(3). See Scott, 463 U.S. at 838; Tilton, 6 F.3d at 685.
Ball has failed to state a claim under 42 U.S.C. § 1985 and the court therefore grants Defendants' motion to dismiss.
In summary, the court grants Defendants' motion to dismiss or for summary judgment in part and denies in part. The court GRANTS Defendants' motion to dismiss Mr. Dillard from the lawsuit, GRANTS Defendants' motion for summary judgment on Ball's malicious prosecution claim and GRANTS Defendants' motion to dismiss Ball's § 1985 claim. The court DENIES Defendants' motion to dismiss and for summary judgment of Ball's intentional infliction of emotional distress claim as well as Ball's false arrest claim.
SO ORDERED.