Thistle v. May Department Stores CV-97-423-SD 12/30/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Judith Thistle

v. Civil No. 97-423-SD

The May Department Stores, d/b/a Filene's Department Store

O R D E R

The civil action now before the court was originally filed

in state court, but has since been removed to this court on the

basis of diversity jurisdiction. The plaintiff, Judith Thistle,

alleges false imprisonment, assault and battery, unauthorized

taking, an invasion of privacy, intentional infliction of

emotional distress, and extortion arising from the defendant's

employees' apprehension and detention of the plaintiff. The

complaint alleges willful, malicious, and outrageous conduct

sufficient to justify the imposition of enhanced compensatory

damages. Before the court is defendant's motion to dismiss Count

II of the complaint, to which plaintiff objects1 and plaintiff's

motion to compel, to which defendant objects.

1The Court notes that plaintiff's memorandum in support of her objection violates Local Rule 5.1(a) and (b). Although the court has accepted the memorandum in the interests of judicial efficiency, the court notes that violations of the local rules are not looked upon favorably. Background

On May 2 9 , 1 9 9 1 , the plaintiff, Judith Thistle, was working

at the men's fragrance counter of the Filene's Department Store

at the Rockingham Mall in Salem, New Hampshire. Filene's

Department Store is owned and operated by May's Department

Stores, a Delaware Corporation. At some point during her shift.

Thistle went out to her car to take her break. On her way to her

car. Thistle took two men's shirts and concealed them in her bag.

As Thistle sat in her car, she was approached by two members of

Filene's security department who had observed Ms. Thistle remove

the two shirts from the store without paying for them. Thistle

alleges that one of the security officers pulled her from her

car, and told her that she was under arrest. Eventually, Thistle

accompanied the two men back into the store to discuss the

situation and ultimately admitted that she had taken the two

shirts and that she had taken merchandise in the past.

Thistle does not deny that she took the two shirts; rather.

Thistle alleges that the manner in which she was guestioned was

indicia of hatred sufficient to sustain enhanced compensatory

damages. See (Thistle Mem. at 2).

2 Discussion

1. Standard of Review

The Federal Rules of Civil Procedure state that summary

judgment shall be rendered if the "pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c) . The role of

the trial judge in ruling on a motion for summary judgment is not

to weigh the evidence and determine the truth of the matter, but

to determine whether there is a genuine issue for trial. See

Anderson v. Liberty Lobby, Inc.,

(1986) . The

purpose of summary judgment is to avoid unnecessary trials, not

to substitute for a trial when it is indeed necessary to find

material facts. See Scripps Clinic & Research Found, v Genentech,

Inc.,

, 1570 (Fed. Cir. 1991) (citing Meyers v.

Brooks Shoe, Inc.,

(Fed. Cir. 1990)).

The burden that the moving party must bear is proving that

there is no genuine issue of material fact. See

. Material facts are identified by the substantive

law. See i d . Similarly, summary judgment will only lie "if the

3 dispute about a material fact is genuine, that is, if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party." I d .

In ruling on a motion for summary judgment, the court must

view the evidence in the light most favorable to the nonmoving

party and must draw all permissible inferences in favor of that

party. See Gummo v. Village of Depew, N.Y.,

(2d

Cir.), cert, denied

(1996); Saenger Organization

v. Nationwide Ins. Assoc.,

(1st Cir. 1997) .

2. Enhanced Compensatory Damages

Filene's chief argument is that New Hampshire law does not

permit the award of punitive damages.2 Filene's is correct. New

Hampshire law states explicitly that "[n]o punitive damages shall

be awarded in any action, unless otherwise provided by statute."

N.H. REV. STAT. ANN. (RSA) § 507:16 (1997). The state of the law

in New Hampshire relative to punitive damages has been settled

since the ancient case of Fay v. Parker,

(1873) .

There, Justice Foster declared in no uncertain terms that the idea

2In considering this motion, the court, sitting in diversity jurisdiction, recognizes the applicability of the state law of the forum to substantive issues. Erie P.P. Co. v. Tompkins,

(1937)

4 that a civil remedy for the plaintiff is the punishment of the

defendant is "[W]rong. It is a monstrous heresy. It is an

unsightly and unhealthy excrescence, deforming the symmetry of the

body of law." I d . at 382. Justice Foster stated further that the

imposition of punishment is properly relegated to the criminal law.

A civil remedy is properly limited to reparation for a wrong

inflicted, compensation for the damages or injury sustained by the

plaintiff. See i d .

Although New Hampshire law does not permit punitive damages,

it does allow enhanced compensatory damages for tortious conduct

committed under aggravating circumstances. Plaintiff urges the

court to treat her claim as one for such damages. Accordingly, the

court will consider her claim under this standard. Unlike punitive

damages, liberal damages are not imposed with the intent to punish,

but are intended to compensate the plaintiff for those damages

which are incapable of exact pecuniary valuation and were the

result of malice. See i d . at 464.

To justify the award of enhanced compensatory damages, the

plaintiff must allege and prove wanton, malicious, and oppressive

conduct. See Johnsen v. Fernald,

, 416 A . 2d 1367,

1368 (1980)(citing Munson v. Raudnois,

, 387 A . 2d

1174, 1177 (1978)). In meeting this burden of proof, the plaintiff

5 may not simply allege and prove an intentional tort, but must

connect tortious conduct with the requisite motive. See i d . Rather

than allow an award of liberal damages to be based on implied or

legal malice, the New Hampshire Supreme Court has stated that

we prefer to base such an award only on a showing of actual malice. There must be ill will, hatred, hostility, or evil motive on the part of the defendant. Without such a showing, the mere commission of a tort will not give rise to the aggravated circumstances necessary for the award of liberal compensatory damages.

, 387 A . 2d at 1177

(emphasis added). In Johnsen,supra,

, 416 A . 2d at

1368, for example, the supreme court rejected the argument that

driving while intoxicated alone amounts to wanton or malicious

conduct. Although the court considered the conduct "deplorable,"

it held that "[i]n the context of measuring damages . . . we do not

equate the act of driving while under the influence with the term

'malice'." I d . Here, the supreme court emphasized that the mere

commission of a tort will not, without proof of motive or state of

mind, give rise to the aggravated circumstances necessary for the

award of liberal damages. See i d . at 441-442, 1368 (quoting

, 387 A . 2d at 1177) .

As applied to the instant case,Thistle's memorandum of law

and supporting documents, even when viewed in the light most

favorable to her, simply do not satisfy the requirement that a

party seeking enhanced compensatory damages must show the defendant

6 was motivated by ill will, hatred, hostility, or evil motive. See

, 387 A . 2d at 1177. Thistle argues

in her memorandum that she has indicated "physical and brutal

behavior by the defendant's employees." See Memorandum in Support

of Plaintiff's Objection to Defendant's Motion for Summary Judgment

(Plaintiff's Memorandum) at 1. In support of this allegation,

plaintiff refers the court to pages 18-26 of her deposition.

However, Thistle's deposition contains no evidence that defendant's

employees were motivated by ill will or malice. Even assuming that

the conduct of Filene's employees was "physical and brutal,"

Thistle has not proved the requisite motive necessary to qualify

for liberal damages.

Thistle also argues that only the fact finder is authorized to

evaluate the defendant's motivation and that it would be improper

for this court to grant defendant's motion for summary judgment at

this stage in the litigation. See Plaintiff's Memorandum at 1.

Although motive is generally a question of fact, the First Circuit

has stated that "where elusive concepts such as motive or intent

are at issue, summary judgment may be appropriate if the nonmoving

party rests merely upon conclusory allegations, improbable

inferences, and unsupported speculation." Smith v. Stratus

Computer, I n c .,

(1st Cir. 1994) (Citations omitted.)

Such is the situation in the instant case. Thistle argues

that she was placed in fear by the words and deeds of Filene 's

7 employees. Thistle's state of mind, however, is not evidence of

the "ill will, hatred, hostility, or evil motive on the part of the

defendant" necessary to support liberal damages. See

, 416 A . 2d at 1367 (quoting

, 387 A . 2d at 1177).

Indeed, not only does the evidence of record in this case fail

to provide any support for an allegation of malice, all the

evidence seems to support Filene's contention that its employees'

actions were justified. Under New Hampshire law, "[a] merchant, or

his agent, is justified in detaining any person who he has

reasonable grounds to believe has committed shoplifting,

provided such detention is conducted in a reasonable manner." RSA

627:8 (a) (1997) . Even if a jury were to find that the actions of

Filene's employees were unreasonable and amounted to an intentional

tort, Thistle would still have to allege and prove the requisite

wanton, malicious, or oppressive behavior in order to claim liberal

damages. See

, 387 A . 2d at 1177.

Although intent may be inferred from circumstantial evidence, see

e g ., FDIC v. Elio,

(1st Cir. 1994), this court

finds nothing in the plaintiff's evidence that would permit a

reasonable jury to find the wanton, malicious, or oppressive conduct necessary to sustain enhanced

compensatory damages.

3. Plaintiff's Motion to Compel _____ Plaintiff's motion to compel relates to her interrogatories

numbered 4 and 10, which were actually requests for document

production. The plaintiff requested all documents concerning the

allegations of theft against the plaintiff and all documents

relating to her apprehension and interrogation. According to

plaintiff, despite several requests, the defendant has failed to

produce such documents. In particular, plaintiff points to

deposition testimony of two defense witnesses who indicated that

they had made contemporaneous reports regarding plaintiff's

detention. Although Filene's states that after the depositions it

"produced additional records responsive to the plaintiff's

requests," it has not indicated that it produced the reports

specifically identified. To the extent defendant has such reports

in its possession that it has not already produced, it shall turn

over such records to plaintiff's counsel within 10 days of the date

of this order. No sanctions will be ordered at this time. C f . RW

I n t '1 Corp. v. Welch Foods Inc.,

(1st Cir. 1991)

("[UJnless the failure of discovery is absolute, or nearly so, Rule

37(b)(2) sanctions are unripe."). Pursuant to Rule 37(a) (4) (a),

9 defendant shall pay plaintiff all reasonable expenses incurred in

making the motion.

Conclusion

For the abovementioned reasons, defendant's motion for summary

judgment on Count II (document 20) is granted and enhanced

compensatory damages are not available in this case. Plaintiff's

motion to compel (document 24) is hereby granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 30, 1998

cc: Andrew M. Richelson, Esq. Jeffrey H. Karlin, Esq.

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