The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on a Motion for Summary Judgment and Sanctions (#29) filed by Defendant, Wal-Mart Stores, Inc (Wal-Mart). This court has carefully reviewed the arguments of the parties and the documents provided. Following this careful and thorough review, this court concludes that Wal-Mart is entitled to summary judgment. This court concludes, however, that sanctions are not warranted. Accordingly, Wal-Mart's Motion for Summary Judgment and Sanctions (#29) is GRANTED in part and DENIED in part.
Plaintiff, Ralph Hart, is African American and believes that employees at the Wal-Mart Store in Mattoon, Illinois (Mattoon Wal-Mart) treat Caucasian customers better than African American customers and discriminate against African American customers based upon their race. At his deposition, Plaintiff was given the opportunity to provide all of the evidence he has to support this belief. Plaintiff recounted occasions where he witnessed a greeter at the Mattoon Wal-Mart ask African American customers to show their receipt and did not ask Caucasian customers to show a receipt. He acknowledged, however, that there were instances when he was not asked to show a receipt and also acknowledged that he could not say that Caucasian customers were never asked to show receipts. He also described an occasion where he was waiting for service at the deli counter at the Mattoon Wal-Mart and Milly Rowe, a Wal-Mart employee, started to wait on a Caucasian customer when he was actually next in line. Plaintiff testified that the Caucasian customer advised Rowe that Plaintiff was next in line and Rowe then waited on him "[r]eluctantly."
On April 16, 2005, Plaintiff went to the Mattoon Wal-Mart with his friend, Patrick Morris, and his son, Hart Hart, who was 11 years old at that time. Plaintiff testified that Rowe, who was working as a greeter, greeted other customers entering the store but looked at them with "disgust." Plaintiff purchased a lawn mower and other items. Plaintiff testified that he had the lawn mower in a cart and, as he was leaving the store, Rowe asked him if he had paid for the mower and asked to see his receipt. Plaintiff testified he told her that he had paid for the lawn mower. Plaintiff also testified that Rowe had not asked other customers ahead of him to see their receipts so, as to her request to see his receipt, he told her "no" and walked to the parking lot. Rowe testified that her position of door greeter required "looking at all receipts going out the door." It is undisputed that Wal-Mart conducts receipt checks to deter and prevent shoplifting. Rowe testified that, when Plaintiff refused to show her a receipt, she told Jacob Brown and Kevin Elliott, two Garden Center Sales Associates, that a customer would not show her his receipt from his merchandise.
Plaintiff testified that Brown and Elliott "ran" up to them and grabbed his cart. They asked to see his receipt. Plaintiff refused to show them his receipt. Brown testified that Plaintiff responded that he did not have one. Plaintiff's son testified that he remembered his dad saying that he did not have one. Plaintiff testified that he told Brown and Elliott that he felt he was being singled out because he was black because the greeter did not ask any of the other customers for their receipt. Plaintiff testified that one of them said, "if you can't show us a fucking receipt, you can't take our fucking stuff." Plaintiff testified that he said to "back off or else" and then told either Brown or Elliott "if he touched my stuff again I was going to break his fucking face." Brown and Elliott went to get Tim Rappe, an assistant manager at the Mattoon Wal-Mart, who was operating a fork-lift nearby. Rappe came over and asked Plaintiff for his receipt. Plaintiff testified that "I explained to [Rappe] what had happened and how I felt that it was racial profiling to single me out and not the others, and then he responded sharply that he didn't have time for this crap or shit, whichever one it was, and he needed me to show him the receipt or he was going to call the police." Plaintiff testified "I told him to call the police because that would be good if he called the police." Plaintiff also testified that Rappe told him he was not allowed back at the store. Plaintiff testified "I told him he didn't own the store." Plaintiff testified that he called Rappe a "[p]unk ass bitch" and "told him to fuck off." Plaintiff testified that he and Rappe were both shouting.
The evidence shows that the police were not called and, even though Plaintiff did not show Rowe, Brown, Elliott or Rappe his receipt, Plaintiff left with the lawn mower in Morris' truck. Morris testified that they got about three miles away and Plaintiff decided he did not want the merchandise and was taking it back. Morris testified that he took Plaintiff back to the Mattoon Wal-Mart. Plaintiff testified that he entered the store and returned the lawn mower and other merchandise. Plaintiff testified that he showed his receipt to return the merchandise. Plaintiff testified that nobody told him to return the stuff. At his deposition, Plaintiff was asked "did anybody tell you that you had to return the goods?" He responded, "Just me." Plaintiff testified that, when he came back to return the merchandise, he talked to the manager of the Mattoon Wal-Mart, David Sauerwein. Plaintiff testified that Sauerwein said he was not barred from the store. Rappe confirmed that the only way to ban a customer from the store was to fill out a "trespass letter," which was not done in Plaintiff's case. Rappe testified that, without the trespass letter, there is no way to enforce a ban.
Plaintiff testified that he did not shop at the Mattoon Wal-Mart until the end of 2007 or beginning of 2008 "[b]ecause I was still upset." Plaintiff testified that he could have returned to the store if he wanted to, he "just chose not to because of what had happened." Plaintiff testified that, since then, he has shopped at the Mattoon Wal-Mart without any incident or problems. Plaintiff testified that, subsequent to 2005, he has been able to enter the store and make purchases without any problems. Plaintiff specifically testified that no employee at any Wal-Mart store, including the Mattoon Wal-Mart, has ever prohibited him from entering a store or ever prohibited him from making a purchase.
On April 13, 2009, Plaintiff, through his counsel Ruth E. Wyman of the Robert G. Kirchner Law Office, filed his complaint against Wal-Mart in the circuit court of Coles County. Plaintiff alleged that Wal-Mart violated 42 U.S.C. § 1981 in various ways, including by causing Plaintiff to return goods to the store. On May 28, 2009, Wal-Mart filed a Notice of Removal (#1) and removed the case to this court, stating that Plaintiff's Complaint arises under federal law as it alleges that Plaintiff seeks redress pursuant to 42 U.S.C. § 1981.
On March 12, 2010, Wal-Mart filed its Motion for Summary Judgment and Sanctions (#29). Wal-Mart argued that it is entitled to summary judgment on Plaintiff's Complaint because Plaintiff cannot establish that the alleged discrimination concerned the making and/or enforcing of a contract and, additionally, because Plaintiff cannot show that Wal-Mart had the intent to discriminate on the basis of race. Wal-Mart also argued that it was entitled to an award of sanctions from Plaintiff's attorney pursuant to 28 U.S.C. § 1927. Wal-Mart argued that "Plaintiff's counsel should have been aware that Plaintiff's claims were no longer factually or legally viable after Plaintiff's deposition, when Plaintiff admitted that he (1) has never been denied entrance to the Mattoon Wal-Mart Store (or any other Wal-Mart Store), (2) has never been prevented from making a purchase; and (3) voluntarily decided to return his purchased goods (and was allowed to do so) on the day at issue in this Lawsuit." Wal-Mart argued that these admissions made Plaintiff's § 1981 claim not viable, and Plaintiff's counsel should have dismissed the case.
On March 31, 2010, Plaintiff, through counsel, filed his Response to Wal-Mart's Motion for Summary Judgment (#32). Plaintiff argued that Wal-Mart's employees threatened to take his merchandise and threatened to call the police, causing him to return the merchandise. Plaintiff therefore argued that the actions of Wal-Mart's employees interfered with his right to equal enjoyment of a contractual relationship. Plaintiff also argued, throughout his Response, that he was banned from the store. He argued that, because of this ban, he did not return to the Mattoon Wal-Mart until either the end of 2007 or beginning of 2008. Plaintiff's counsel did not respond to WalMart's request for sanctions.
On April 14, 2010, Wal-Mart filed its Reply (#34). Wal-Mart argued that, in his Response, Plaintiff has attempted to "avoid summary judgment by backpedaling off his clear admissions that he voluntarily returned his ...