Miller v. Target ( 2021 )

Case: 20-20415 Document: 00515811316 Page: 1 Date Filed: 04/07/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 7, 2021
No. 20-20415 Lyle W. Cayce
Clerk
Arielle Y. Miller,
Plaintiff—Appellant,
versus
Target Corporation; Casey Blythe,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1539
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff, Arielle Miller, appeals the district court’s grant of Target
Corporation’s (“Target”) motion for summary judgment. For the reasons
that follow, we AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20415
I. Background
On July 25, 2017, several cell phones were stolen from one of Target’s
stores in Katy, Texas. Target’s loss prevention manager, Casey Blythe,
investigated the incident and identified several individuals, including Miller,
who he believed stole the cell phones. Blythe contacted Harris County
Sheriff’s Office with the information he had gathered. Miller was arrested on
October 20, 2017 and charged with third degree felony theft for stealing the
cell phones. On January 11, 2018, the charges against Miller were dismissed.
Miller filed suit against Blythe and Target on January 11, 2019 in state
court, alleging defamation and malicious prosecution against Blythe and
negligence and vicarious liability against Target. Target removed the suit to
federal court on April 26, 2019. Target moved to dismiss the defamation and
malicious prosecution claims on May 13, 2019. Before the district court ruled
on the motion to dismiss, Miller amended her complaint on June 3, 2019 to
include a claim of intentional infliction of emotional distress against Blythe
and Target. On August 13, 2019, the district court dismissed the defamation
and malicious prosecution claims under Federal Rule of Civil Procedure
12(b)(6). Defendants subsequently filed a motion for summary judgment on
the intentional infliction of emotional distress and vicarious liability claims
on March 11, 2020. On May 11, 2020, the district court granted summary
judgment in favor of Defendants on Miller’s claims of intentional infliction
of emotional distress and Target’s vicarious liability. Miller appeals only the
dismissal of her intentional infliction of emotional distress and vicarious
liability claims.
2
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II. Discussion
This Court reviews a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.1 Under Federal
Rule of Civil Procedure Rule 56, “[a] party may move for summary
judgment, identifying each claim or defense—or the part of each claim or
defense—on which summary judgment is sought.”2 The district court shall
grant summary judgment “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law.”3
A. Intentional Infliction of Emotional Distress
Under Texas law, a plaintiff must establish the following for an
intentional infliction of emotional distress (“IIED”) claim: (1) the defendant
acted intentionally or recklessly; (2) the defendant’s conduct was extreme
and outrageous; (3) the defendant’s actions caused the plaintiff emotional
distress; and (4) the resulting emotional distress was severe.4 In addition to
the elements of the prima facie case, the Texas Supreme Court elaborated on
when recovery for IIED is available in Hoffman-La Roche Inc. v. Zeltwanger.
First, IIED is “a ‘gap-filler’ tort, judicially created for the limited purpose of
allowing recovery in those rare instances in which a defendant intentionally
inflicts severe emotional distress in a manner so unusual that the victim has
1
Warren v. Fed. Nat’l Mortg. Ass’n, 932 F.3d 378, 382 (5th Cir. 2019); Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
2
FED. R. CIV. P. 56(a).
3
Id.4
Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).
3
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no other recognized theory of redress.”5 “Where the gravamen of a
plaintiff’s complaint is really another tort, intentional infliction of emotional
distress should not be available.”6 Second, when the substance of the
complaint is covered by another tort, “a plaintiff cannot maintain an
intentional infliction claim regardless of whether he or she succeeds on, or
even makes, [an alternate] claim.”7
Relying on Zeltwanger, the district court granted Target’s motion for
summary judgment finding as a matter of law that defamation and malicious
prosecution formed the core of Miller’s complaint. On appeal, Miller
essentially argues that Zeltwanger is distinguishable and that her IIED claim
stands alone because her other claims have been previously dismissed.
In Zeltwanger, the plaintiff sued her employer for sexual harassment
under the Texas Labor Code and common-law IIED.8 The statutory sexual
harassment claim was subject to a $300,000 damages cap.9 The trial court
allowed the plaintiff’s statutory sexual harassment claim and IIED claim to
proceed in tandem, and the jury awarded the plaintiff $8.5 million under the
sexual harassment statute, capped at $300,000, and $9 million for IIED—
effectively undermining the cap.10 The Texas Supreme Court vacated the
jury’s award on the IIED claim.11 Thus, the Texas Supreme Court made it
5
Id. at 447.
6
Id.7
Id. at 448; see also Draker v. Schreiber, 271 S.W.3d 318, 322 (Tex. App. 2008).
8
Zeltwanger, 144 S.W.3d at 441–42.
9
Id. at 446.
10
Id. at 446.
11
Id. at 450.
4
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clear that recovery under an IIED theory is unavailable when the total
recovery may be limited under the available alternate theory.12
Texas appellate courts have applied Zeltwanger broadly holding that
IIED is unavailable when plaintiffs do not succeed on claims like the ones in
Miller’s case. In Draker v. Schreiber, a Texas appellate court held that an IIED
claim was unavailable when the complaint primarily alleged facts regarding
defamation and libel per se, and the defamation and libel claims were
previously dismissed on summary judgment leaving only an IIED claim.13
Similarly, in Oliva v. Davila, the court held that IIED was not recoverable in
the alternative to defamation claim.14
The gravamen of Miller’s complaint concerns defamation and
malicious prosecution. The facts alleged in the complaint concern Blythe’s
investigation of the cell phone theft and his assistance with the Sheriff’s
Office in accusing Miller of the theft, which all form the basis of Miller’s
defamation and malicious prosecution claims. She has not alleged
independent facts to support a standalone IIED claim.15
B. Vicarious Liability of Target
In addition to dismissing Miller’s IIED claim, the district court
dismissed all claims of Target’s alleged vicarious liability because all
underlying tort claims against Target’s agent, Blythe, were dismissed. Miller
argues that Target is liable for Blythe’s conduct that forms the basis of her
12
Id. at 446–47.
13
271 S.W.3d 318, 323 (Tex. App. 2008).
14
373 S.W.3d 94, 107 (Tex. App. 2011).
15
See Draker, 271 S.W.3d at 323 (“[T]o maintain a claim for intentional infliction
of emotional distress, [plaintiff] was required to allege facts independent of her defamation
claim.”).
5
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IIED claim because Blythe was in the course and scope of his employment
with Target. Though Blythe may have been in the course and scope of
employment, all underlying tort claims in this case have been dismissed.
Without some underlying liability of Target’s employee, Target cannot be
vicariously liable.16
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district
court.
16
See Crooks v. Moses, 138 S.W.3d 629, 638 (Tex. App. 2004) ([I]f the alleged
tortfeasor is not liable as a matter of law, then determination of agency and vicarious liability
issues are never reached.”).
6