United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
Rochelle Banziger's Amended Complaint alleges several
constitutional and state law claims against a variety of
defendants after Ms. Banziger suffered injuries during an
incident at a Walmart. [Filing No. 32.] Ms. Banziger
alleges only a state law assault claim against Wal-Mart
Stores East, LP, which operates the Walmart store, and Andrew
Brewer (collectively, “Walmart”), the
Walmart employee who allegedly initiated the confrontation
that resulted in her injuries. Walmart now moves to dismiss
Ms. Banziger's assault claim for failure to plausibly
allege an assault under Indiana law. [Filing No.
41.] For the following reasons, the Court
DENIES Walmart's Motion to Dismiss.
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim that does not state a right to relief. The
Federal Rules of Civil Procedure require that a complaint
provide the defendant with “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active Disposal
Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir.
2011). A Rule 12(b)(6) motion to dismiss asks whether the
complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The Court may not accept
legal conclusions or conclusory allegations as sufficient to
state a claim for relief. See McCauley v. City of
Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief
“to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633
(7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
with the standard set forth above, the Court recites the
facts as detailed in Ms. Banziger's Amended Complaint,
which are treated as true for the purpose of resolving
Walmart's Motion. The Court may not fill in what the
defendant may see as “gaps” in the
plaintiff's story with additional facts proposed by the
defendant. Cf., e.g., Mescall v. Burrus,
603 F.2d 1266, 1269 (7th Cir. 1979) (“To support the
dismissal, certain findings of fact were made beyond the
allegations of the complaint. Perhaps the trial court has
correctly predicted what the final result may be on a motion
for summary judgment or after trial, but at this stage of the
proceeding those findings cannot be justified.”). The
Court thus begins its summation of the well-pleaded facts by
rejecting Walmart's attempt to supplement Ms.
Banziger's Amended Complaint with its own suggested
facts. [See Filing No. 42 at 1 (arguing that the
Amended Complaint “omits a material part of the
events relevant to Walmart's Motion began, according to
the Amended Complaint, when seventy-nine-year-old Ms.
Banziger visited an Indiana Walmart store in March 2016.
[Filing No. 32 at 2.] As Ms. Banziger exited the
store with a cart, Mr. Brewer, a Walmart asset protection
employee, approached Ms. Banziger and announced that he
worked for Walmart's asset protection unit. [Filing
No. 32 at 3.] According to Mr. Brewer's statements
after the incident, Ms. Banziger did not physically fight
with Mr. Brewer, but “became uncooperative, ”
caused a “big scene, ” and got “very
mouthy.” [Filing No. 32 at 3.]
Brewer asked Ms. Banziger to return to the store and walked
her to the asset protection office, calling the police along
the way. [Filing No. 32 at 3.] Mr. Brewer demanded
to see Ms. Banziger's receipt for her purchase after he
believed that he saw Ms. Banziger searching through her
purse. [Filing No. 32 at 3.] Mr. Brewer then took a
step toward Ms. Banziger, leaned over her where she was
sitting, and pointed his finger in her face. [Filing No.
32 at 4.] Mr. Brewer later admitted that he was
frustrated with Ms. Banziger, which led him to become firm
and get in her face. [Filing No. 32 at 8.] According
to Mr. Brewer, Ms. Banziger stood up and told Mr. Brewer not
to speak to her that way. [Filing No. 32 at 4.]
Then, the police officer whom Mr. Brewer had called arrived
and intervened. [Filing No. 32 at 8.]
March 10, 2017, Ms. Banziger brought suit and, with leave of
Court, [Filing No. 31], filed her currently
operative Amended Complaint on July 25, 2017, [Filing No.
32]. Ms. Banziger alleges that Mr. Brewer's actions,
committed while working in the scope of his employment with
Walmart, constitute assault under Indiana law. [Filing
No. 32 at 8.] Ms. Banziger seeks to hold Mr. Brewer and,
pursuant to the doctrine of respondeat superior,
Walmart liable for Mr. Brewer's actions. On August 21,
2017, Walmart filed its Motion to Dismiss, arguing that Ms.
Banziger's Amended Complaint fails to plausibly allege an
assault claim. [Filing No. 41.]
advances one argument in support of its Motion: that the
facts alleged in Ms. Banziger's Amended Complaint, taken
as true, do not raise “more than the mere
possibility” that Mr. Brewer assaulted Ms. Banziger.
[Filing No. 44 at 2.] In response, Ms. Banziger
argues that Walmart's position overstates the ...