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Banziger v. City of Franklin

United States District Court, S.D. Indiana, Indianapolis Division

September 18, 2017

CITY OF FRANKLIN, SHAWN HENSON, in his individual and official capacities, ANDREW BREWER, WAL-MART STORES EAST, LP, Defendants.


          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff 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.


         Legal Standard

         Under 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.” Id.



         Consistent 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 complete story”).]

         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.]

         Mr. 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.]

         On 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.]



         Walmart 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 ...

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