PITTSBURGH – Walmart has made an attempt to dismiss a lawsuit from a Western Pennsylvania man who alleged that a store loss prevention officer wrongly accused him of theft, subjecting him to malicious prosecution.
Thomas Allen Givens of Elco initially filed suit in the Washington County Court of Common Pleas on June 9 versus Wal-Mart Stores, Inc., of Bentonville, Ark.
(The case was later removed to the U.S. District Court for the Western District of Pennsylvania on July 11.)
According to Givens’ complaint, he was charged by the West Brownsville Police Department for an alleged retail theft at a Walmart Supercenter, on Kendall Drive in Brownsville. Givens alleged that the store’s loss prevention agent, Chad Shonts, accused him of putting several tools into blue cloth bags, during his visit to the Walmart store on May 13, 2021.
Givens further alleged that Shonts published his name and identified him as a criminal offender to the West Brownsville Police Department – meanwhile, Givens added he was working on that day and was not even present at the Walmart store. The plaintiff also claimed he did not see the police report until after June 17, 2021, and never received a copy of the surveillance video despite filing a subpoena to obtain it.
According to Givens’ suit, though the case against him was dismissed. Givens claimed he suffered defamation and points to Walmart’s alleged negligence for falsely reporting his name to police, which caused him to lose several job opportunities.
In response to Walmart’s first motion to dismiss, the plaintiff filed an amended complaint, and replaced the original version’s four counts with only one count sounding in malicious prosecution under Pennsylvania common law.
UPDATE
On Aug. 25, Walmart filed a motion to dismiss the case, for failure to state a claim upon which relief could be granted.
“Presently, even accepting plaintiff’s factual allegations as true, and leaving aside his bare allegations or legal conclusions, this Court is faced with a situation in which the police were investigating a retail theft at Walmart Store No. 4501, and in the course of their investigation, one of the individuals detained for the theft confessed to the crime, and identified plaintiff as one of two other individuals participating in the retail theft,” the motion to dismiss stated.
“The police then made the independent decision to charge plaintiff, not Walmart. Given these circumstances, even if you assume for the purposes of this motion that Walmart’s employee also provided false information to police with an improper motive (which is certainly disputed), the police had an independent factual basis for probable cause and to initiate charges against plaintiff.”
Further, the motion stated that the plaintiff’s allegations that Chad Shonts’ identification of him was fabricated “lacks the necessary further support in the pleadings.”
“In order to show a lack of probable cause based alleged fabricated evidence, plaintiff must show ‘persuasive evidence supporting a conclusion that the proponents of the evidence are aware that evidence is incorrect or that the evidence is offered in bad faith.’ A pleading must contain allegations describing such persuasive evidence in order to survive a motion to dismiss. No such persuasive evidence is present in plaintiff’s amended complaint,” the motion said.
“For these reasons, the Court should find probable cause existed here as matter of law. With probable cause established, plaintiff cannot sustain a cause of action for malicious prosecution, has failed to state a claim for which relief can be granted, and such claim should be dismissed with prejudice.”
Additionally, the motion stated that Givens “does not provide the Court with any information or pleadings supporting that the report to police was false or made with malice, and the Court should recognize these pleadings as nothing more than conclusory and threadbare allegations reciting the elements of the claim.”
For one count of malicious prosecution, the plaintiff is seeking damages in excess of $50,000, plus interest, costs, fees and any other relief that the court deems just and proper.
The plaintiff is represented by John E. Egers Jr. of Julian Law Firm, in Washington, Pa.
The defendant is represented by G. Richard Murphy of Thomas Thomas & Hafer, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01006
Washington County Court of Common Pleas case C-63-CV-2022-3939
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com