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Romich v. Sears Holding Corp.

United States District Court, Third Circuit

November 4, 2013

MARY ROMICH, Plaintiff,
v.
SEARS HOLDING CORP. et al., Defendants.

MEMORANDUM

GENE E.K. PRATTER United States District Judge.

In September 2012, Mary Romich sued Officer John Doucette of the Phoenixville, PA, Police Department, as well as Kmart Corporation, its parent company, Sears Holding Corporation, and two Kmart employees, Brad O’Brien and April Sweeney (“the Sears Defendants”), under 42 U.S.C. § 1983. She alleges that Officer Doucette falsely arrested and maliciously prosecuted her without probable cause, and that the Sears Defendants, through conspiring with Officer Doucette, are likewise liable for malicious prosecution under § 1983. Invoking the Court’s supplemental jurisdiction, Ms. Romich also brings a defamation claim against the Sears Defendants.

All of the Defendants seek summary judgment. Because the Court finds that, based on the evidence that Ms. Romich musters, no reasonable juror could find that Officer Doucette lacked probable cause to arrest and initiate prosecution of Ms. Romich or that the Sears Defendants conspired with Officer Doucette or otherwise became state actors, the Court will grant both Motions (Docket Nos. 17 & 18).

I. FACTUAL AND PROCEDURAL BACKGROUND

The following factual background is undisputed, either by admission or by a party’s failure to cite to any record evidence raising a genuine issue of material fact: “summary judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

In August 2011, Ms. Romich, who had worked for Kmart since 1983, served as the Assistant Store Manager at the Phoenixville, PA Kmart. She was responsible for opening and closing the store, managing the office, overseeing the clothing, and handling cash, layaway services, and checkouts. Romich Dep. 14-16 (Sears Ex. B). April Sweeney and Brad O’Brien were the store’s Loss Prevention Managers. During the several weeks during which Ms. Romich and Mr. O’Brien worked together, they shared only minimal interactions, and no incidents. Romich Dep. 16:11–17:21 (Sears ¶ 15; Ex. B).

At some point, Ms. Sweeney learned from an associate that baby furniture, which Ms. Romich was responsible for setting up in accordance with Kmart’s planning brochures, Haas Dep. 19:21–21:24 (Sears ¶ 9; Ex. C), had been leaving the store without being destroyed (or paid for), Sweeney Dep. 5:25–6:24 (Doucette ¶ 3; Ex. C). Kmart’s policy was to destroy infant furniture once it was no longer on display in order to forestall any safety issues. Ms. Sweeney also learned that Ms. Romich might have been involved in a romantic relationship with another employee, the former loss prevention manager. Sweeney Dep., 5:22–6:20 (Sears ¶ 13, Ex. E); Sweeney Memo at SHC 0043 (Romich–Sears ¶ 13, Ex. A). For at least one of these reasons— Ms. Romich says because of the suspected affair; the Sears Defendants say because of Ms. Romich’s violation of the infant furniture policy—Ms. Sweeney instructed Mr. O’Brien to investigate Ms. Romich’s conduct. Compare Doucette ¶ 4 and Sears ¶ 14 with Romich–Doucette ¶¶ 3-4 and Romich–Sears ¶ 14.

As part of this investigation, on September 13, 2011, Mr. O’Brien reviewed surveillance video footage showing the store associates’ activities. Among other footage, he viewed video of Ms. Romich’s opening shift on August 19, 2011. Mr. O’Brien testified at his deposition that the August 19, 2011 video showed Ms. Romich select a gold necklace out of a box from the store’s jewelry counter and place it over her head. O’Brien Dep. 14:18–16:22, 26:8–28:3 (Sears ¶¶ 17-20, Ex. D).[1] Mr. O’Brien testified that he then checked the jewelry case from which he believed Ms. Romich took the necklace and, finding a watch, ring, and another necklace, concluded that it was supposed to be used as storage for empty boxes. O’Brien Dep. 25:12–26:4 (Sears ¶ 26; Ex. D); see Romich–Sears ¶ 26. Mr. O’Brien also examined Ms. Romich’s use of her employee discount card, Shop Your Way rewards card, debit and credit card transactions, and suspected price adjustment fraud. He also learned that Ms. Romich stayed at work later than scheduled and consistently changed time-in or time-out clock punches of the employee with whom Mr. O’Brien and Ms. Sweeney suspected her of having a romantic relationship.

At some point, Mr. O’Brien called the Phoenixville Police Department to notify the police that Kmart would be conducting an interview with Ms. Romich. O’Brien Dep. 112:4-24 (Romich–Doucette ¶ 11; Ex. B). On September 20, 2011, Mr. O’Brien memorialized his interpretation of the August 19, 2011 surveillance video in an Associate Dishonesty Case Profile Report. Ex. O’Brien-17 (Doucette Ex. B). Ms. Sweeney and Nicholas Haas, the Phoenixville Store Manager, viewed the video and likewise concluded that Ms. Romich had stolen a necklace. Sweeney Statement (Sweeney 1, Sears Ex. E); Haas Dep. 10:15–11:7, 32:19–33:8 (Sears ¶¶ 22-25, Ex. C). On September 20, Ms. Sweeney, who had never met Ms. Romich before, Romich Dep. 17:4-9, 37:3-14 (Sears ¶ 42; Ex. B), called Ms. Romich to a meeting which was to be witnessed by another employee, Romich Dep. 35:4–36:8 (Sears ¶ 42; Ex. B); Sweeney Dep. 20:25–21:4 (Sears ¶ 42; Ex. E). At some point, ostensibly during this meeting, Ms. Romich wrote and signed a note regarding infant display furniture that stated, “I have let the employee take home with out [sic] cost to them and myself have taken the furniture home too.” Romich 1 (Sears Ex. B). That same day, another employee also indicated that he “was aware of Mary Romich taking furniture off the infants platform [sic] and allowing associates to have it.” Ex. 2 to Verified Statement of April Sweeney (Sears Ex. F).

As the September 20, 2011 interview drew to a close, Mr. O’Brien contacted the Phoenixville Police and Officer Doucette arrived at the scene. Mr. O’Brien escorted Officer Doucette to the loss prevention office where the interview was occurring. Once there, Officer Doucette informed Ms. Romich that she was being detained for retail theft, Romich Dep. 51:19-20 (Sears ¶ 56; Ex. B), and Ms. Sweeney informed her that she was being suspended from her job pending further investigation. Officer Doucette reviewed the August 19, 2011 video footage with Mr. O’Brien and Ms. Sweeney. O’Brien Dep. 127:4–129:8 (Sears Ex. D); Sweeney Dep. 29:3–23 (Sears Ex. E); Sears ¶¶ 61, 68. After showing Officer Doucette the video, Mr. O’Brien gave him a copy of the video and a picture of a gold necklace that Mr. O’Brien believed was missing. O’Brien Dep. 117:9–119:5, 127:4–21, 129:22–131:11 (Doucette Ex. B.); Incident Report at 3-4 (Romich–Doucette Ex. D). Ms. Sweeney also testified that she discussed charging Ms. Romich with theft of both the baby furniture and the necklace with the Phoenixville Police Department. Sweeney Dep. 22:5–8, 23:3–6 (Sears ¶ 59; Ex. E).

On September 23, 2011, now roughly a month after the events on the video, based on the video and statements from the Sears Defendants, Officer Doucette filed a criminal complaint against Ms. Romich for the retail theft of a gold necklace. Criminal Compl. (Doucette Ex. D; Compl. Ex. A). Along with the complaint, Officer Doucette submitted a sworn affidavit of probable cause that stated, in full:

On 9/20/2011 I was called to 1000 Nutt Rd (Kmart) for a report of retail theft. I was informed by Loss Prevention Officer Brad O’Brien that he had observed the defendant on video take possession of a 10KT gold necklace valued at $161.99 on 8/19/2011 at 6:48am. O’Brien stated he watched the video’s [sic] for that day and the defendant did not return the item and was seen walking out on video wearing the necklace. O’Brien showed me the video of the defendant taking the necklace and the defendant can be clearly seen taking the necklace.

Id.

On September 29, 2011, Magisterial District Judge Theodore Michaels held a preliminary hearing at which Officer Doucette and Mr. O’Brien testified. Romich Dep. 70:2-5 (Doucette ¶ 17; Ex. A). Over the continuing objection of Ms. Romich’s counsel, Mr. O’Brien testified regarding his observations from the August 19, 2011 surveillance video and still pictures he took from it. Hr’g Tr. 7-8, 12 (Doucette ¶ 18; Ex. E). He testified that Ms. Romich took a necklace from a box in a jewelry case, did not return it, and later “exited the building without ever paying for that merchandise.” Hr’g Tr. 8:5-6 (Doucette Ex. E). Officer Doucette then testified that he reviewed the videos and saw Ms. Romich “leaving the store with the necklace still around her neck.” Hr’g Tr. 31:3-4 (Doucette Ex. E). The hearing was then adjourned until October 27, 2011.

Ms. Romich waived the remainder of her hearing when it resumed on October 27, 2011. Although Judge Michaels did not view the video himself, having received Officer Doucette’s affidavit and the testimony of Officer Doucette and Mr. O’Brien, he found probable cause for the charge and bound it over for trial. A bench trial was then scheduled for February 22, 2012. Pennsylvania v. Romich, No. CP-15-CR-0004069-2011, Docket at 3 (Doucette Ex. G). Before the trial date arrived, the Chester County District Attorney’s Office nolle prossed the charges. Id. This suit followed.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

Upon motion of a party, summary judgment is appropriate 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). A party moving for summary judgment has the initial burden of supporting its motion by reference to admissible evidence showing the absence of a genuine dispute of a material fact or showing that there is insufficient admissible evidence to support the fact. Id. 56(c). Once this burden has been met, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp., 455 F.3d at 201.

Summary judgment should be granted only if the moving party persuades the district court that “there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir.1988). A fact is “material” if it could affect the outcome of the suit, given the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence presented “is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party, ” and make every reasonable inference in that party’s favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). The court must not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). Nevertheless, the party opposing summary judgment must support each essential element of his or her opposition with concrete evidence in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted). Of course, the court may grant summary judgment if the plaintiff’s version of the facts, as a matter of law, does not entitle her to relief: “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. ...


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