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SERPICO v. MENARD

May 17, 1996

FRANK SERPICO, Plaintiff,
v.
MENARD, INC., Defendant.



The opinion of the court was delivered by: GETTLEMAN

 The moral of this case is never to put someone else's nuts in your pocket. Plaintiff's amended complaint concerns an incident in which defendant accused plaintiff of shoplifting a machine nut from one of defendant's Menards stores. In his amended complaint plaintiff alleges that defendant: falsely arrested/imprisoned him (Count I); intentionally inflicted emotional distress upon him (Count II); and violated the Illinois Consumer fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. (Count III). After filing an answer and affirmative defenses to the amended complaint, defendant filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

 Facts1

 On December 12, 1994, plaintiff, who is seventy years old, went to one of defendant's stores located at Hall Plaza in Chicago to pick up supplies that he needed to fix a broken sprinkler system for his employer. The first item plaintiff looked for and located was a nut. After picking out a nut, which had a value of less than 70 cents, plaintiff asked several of defendant's employees where he could locate pipe wrap.

 During his search for the pipe wrap plaintiff put the "solitary, little nut" in his pocket so that he would not drop the nut or misplace it while he searched for the pipe wrap. Plaintiff found and picked up some pipe wrap, went to a cash register and paid for the pipe wrap, but forgot to remove or pay for the nut he had put in his pocket. Plaintiff then proceeded to exit the store without paying for the nut. After plaintiff exited, one of defendant's representatives stopped plaintiff and forced him to accompany the representative to a closed room within the store. In the room, defendant's representative demanded that plaintiff empty his pockets. Plaintiff proceeded to remove the nut, money, and a cash register receipt for the pipe wrap.

 Defendant refused to listen to plaintiff's explanation that he had merely forgotten to pay for the nut. Defendant's representative then took plaintiff's picture and displayed it on a bulletin board along with numerous other pictures labeled as criminals who had stolen merchandise, and called the Chicago Police Department to have an officer come to defendant's store to file a criminal complaint against plaintiff for shoplifting. The police officer tried to dissuade defendant's store manager from filing a complaint against plaintiff, telling the manager that plaintiff did not intend to steal the nut and that plaintiff had made an honest mistake. Nonetheless, the manager insisted on filing a criminal complaint, and the police took plaintiff to the station where he was fingerprinted.

 As a result of defendant's insistence that plaintiff be prosecuted for theft of the 70 cent nut, plaintiff was forced to retain a lawyer. The lawyer called defendant's store manager who told the attorney trial defendant intended to prosecute plaintiff for shoplifting. When plaintiff's employer learned what had happened, one of its representatives called defendant's store manager, vouched for plaintiff's integrity, stated that plaintiff had not intended to steal the item, and explained that the employer always reimbursed plaintiff for all purchases plaintiff made for repairs for the employer (thus negating any motive or intent by plaintiff to steal the nut).

 After further calls and investigation, the vice president of plaintiff's employer told a manager at defendant's corporate headquarters that the store manager had decided that plaintiff had not intended to steal the nut. Defendant's corporate headquarters, however, told plaintiff's attorney that regardless of whether plaintiff intended to steal the nut, defendant still intended to prosecute plaintiff because it was defendant's company policy to prosecute every case. Despite defendant's repeated insistence on having plaintiff prosecuted for shoplifting, on the date set for plaintiff's criminal trial no one from defendant's company appeared, and the judge dismissed the charges.

 After the trial date William Payne, defendant's "legal enforcement manager," sent plaintiff a letter dated April 10, 1995, making a "civil restitution settlement demand." In the April 10 letter Payne wrote that plaintiff had been apprehended for concealing and taking unpaid merchandise from the store on December 12, 1994. The letter further stated that under "Illinois Statutes" Chapter 38 Sections 16A-3 & 16A-7, *fn2" any person who commits retail theft (shoplifts) can be sued civilly by the owner of the property. The letter offered that to avoid additional time and expense to plaintiff of defending a law suit, defendant was "willing to settle the matter for [defendant's] actual costs in processing [plaintiff's] case." Defendant offered to settle all civil claims against plaintiff for $ 100. The letter noted that settlement of defendant's civil claim did not prevent local authorities from proceeding with a criminal prosecution.

 Defendant, through Payne, then sent plaintiff a follow up letter dated May 16, 1995, giving plaintiff "final notice" to "amicably settle" the matter, stating that if defendant did not receive a $ 100 payment by May 30, 1995, defendant would file a lawsuit. Plaintiff filed the instant case against defendant on June 14, 1995. Defendant has not filed a counterclaim or otherwise made good on its "legal enforcement manager's" threat to sue plaintiff for the 70 cent nut.

 Discussion

 A Rule 12(c) motion is governed by the same standard as a motion to dismiss under Rule 12(b)(6). Rooding v. Peters, 876 F. Supp. 946, 947 (N.D.Ill. 1995); Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir., 1993). The motion should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief, and that the movant is entitled to judgment as a matter of law. Id., National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir., 1987). The court considers only the matters presented in the pleadings and must view the facts in the light most favorable to the nonmoving party. National Fidelity Life Ins., 811 F.2d at 358.

 False Arrest/Imprisonment

 Defendant raises two arguments in support of its motion for judgment on the pleadings as to plaintiff's claim for false arrest/imprisonment. First, defendant asserts that it had probable cause to arrest and detain plaintiff. Under Illinois law, a claim for false arrest must allege the restraint of an individual's liberty without probable cause. Jones v. Village of Villa Park, 815 F. Supp. 249, 253 (N.D.Ill. 1993), citing, Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 475, 151 Ill. Dec. 560, 564 N.E.2d 1222 (1990). Probable cause is an absolute defense to an action for false arrest and false imprisonment. Burghardt v. Remiyac, 207 Ill. App. 3d 402, 406, 152 Ill. Dec. 367, 565 N.E.2d 1049 (2nd Dist. 1991); Myatt v. City of Chicago, 816 F. Supp. 1259, 1266 (N.D.Ill. 1992).

 In the instant case plaintiff was detained and turned over to the police for alleged retail theft actionable under § 16A-3 of the Illinois Criminal Code of 1961 (720 ...


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