Dennis v. Brookfield Properties Retail Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TEJUAN DENNIS,

Plaintiff,

Case No. 2:23-cv-873-CLM

v.

BROOKFIELD PROP.

RETAIL INC.,

Defendant.

MEMORANDUM OPINION

Tejaun Dennis argued with another shopper at the Riverchase

Galleria Mall. After talking to both men, mall security guards and Hoover

police removed Dennis from the mall and banned him from returning for

one year. Dennis sues the owner and operator of the Galleria, Brookfield

Properties Retail, Inc., for (1) slander and defamation, (2) harassment, (3)

negligence, (4) false imprisonment, and (5) negligent hiring, training, and

supervision. (Doc. 1-1).

Brookfield moves for summary judgment on all claims. (Doc. 19).

Because Dennis provides no evidence that would allow a reasonable juror

to find that the security guards acted as agents of Brookfield, the court

GRANTS Brookfield’s motion on all counts.

BACKGROUND

A. Dennis’ failure to dispute facts

As the introduction suggests, the court bases its ruling on a lack of

evidence. Dennis did not seek written discovery from Brookfield, nor did

he ask to depose any witnesses, including a Brookfield corporate

representative. See (Doc. 31, p.1). Nor did Dennis respond to Brookfield’s

written discovery requests. See id.; (Doc. 20, ¶ 10, n.3).

When Brookfield moved for summary judgment, Dennis did not

dispute any of the 28 “undisputed facts” Brookfield listed in its brief in

support, nor did he list any of his own “undisputed facts,” despite the

court’s uniform initial order that says: “All material facts set forth in the

statement required of the moving party will be deemed to be admitted for

summary judgment purposes unless controverted by the response of the

party opposing summary judgment.” (Doc. 2, pp. 16-17); see also Fed. R.

Civ. P. 56(e)(2) (allowing the court to consider facts “undisputed” if the

responding party fails to “properly address” the moving party’s statement

of facts).

As a result, the court assumes all facts listed by Brookfield as

admitted and uses them—along with the evidence Brookfield produced to

support them—to detail the altercation that led to this lawsuit. The court

also considers the four pieces of evidence Dennis produced along with his

brief in opposition. See (docs. 25-2, 25-3, 25-4, 25-5).

B. The altercation

Dennis took his son to the Galleria’s food court and secured a table.

Dennis gave his son his food, then walked toward another restaurant to

buy food for himself. As he was walking, Dennis turned back to his son

and said something.

That ‘something’ was heard by two young children in a stroller. The

kids started crying. So the kids’ father approached Dennis and asked him

what he said or did to make the children cry.

The two men argued for about three minutes before mall security

arrived. Security guards separated the men and talked to them outside

the presence of the other. Dennis admits that he yelled and cursed at the

security guards. Dennis also admits that he does not know what the other

man and security guards talked about.

Hoover police arrived about six minutes after the security guards.

The security guards talked to Hoover police and the other man, and

Dennis admits he does not know what they talked about.

According to the incident report, one of the security guards decided

to “verbally ban” Dennis from the mall for one year. (Doc. 21-5, p. 2).

Hoover police asked Dennis for identification, and Dennis refused. Id. So

one security guard and one Hoover police sergeant escorted Dennis out of

the mall. Id. Hoover police determined Dennis’s identity by checking the

number on his vehicle’s license plate. Id.

C. The lawsuit

Dennis did not return to the Galleria during the next year. After the

year ended, Dennis sued Brookfield and multiple fictitious defendants in

the Circuit Court of Jefferson County. (Doc. 1-1). Brookfield removed the

case to this court based on diversity jurisdiction. Id. Because “fictitious-

party pleading is not permitted in federal court,” only Dennis’s claims

against Brookfield are before this court. See Richardson v. Johnson, 598

F.3d 734, 738 (11th Cir. 2010).

As stated, Dennis did not seek discovery from Brookfield, and he did

not answer Brookfield’s discovery requests. Brookfield seeks summary

judgment on all counts. (Doc. 19).

STANDARD OF REVIEW

Summary judgment is proper when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court “must view

all evidence most favorably toward the nonmoving party, and all

justifiable inferences are to be drawn in the nonmoving party’s favor.”

Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir. 1990). The court

does not weigh the evidence as fact-finder; rather, it must “determin[e]

whether there is the need for a trial—whether, in other words, there are

any genuine factual issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).

DISCUSSION

Dennis pleads five state-law claims: (1) slander and defamation, (2)

harassment, (3) negligence, (4) false imprisonment, and (5) negligent

hiring, training, and supervision. (Doc. 1-1). Brookfield is the only

defendant. Brookfield is also a corporation, which means it acts through

its agents. As a result, to survive summary judgment on all counts, Dennis

must offer evidence that would allow a reasonable juror to find that a

Brookfield agent slandered, defamed, harassed, or falsely imprisoned him,

or that Brookfield negligently trained and supervised its agents not to

slander, defamed, harass, or falsely imprison him.

Brookfield argues that Dennis produced no evidence that the

security guards or Hoover police officers were Brookfield agents, rather

than independent contractors (the security guards) or city agents (the

Hoover police officers). Dennis responds in two ways. First, he argues that

Brookfield waived the agency argument. Second, he argues that the

security guards were Brookfield agents, rather than independent

contractors. The court addresses Dennis’s arguments in Parts B-C. But

the court starts by explaining why agency matters under Alabama law.

A. Alabama law requires Dennis to prove that Brookfield had a

right to control the acts of the security guards.

Dennis does not allege that the Brookfield corporation acted against

him, and it is undisputed that the police officers were agents of the City

of Hoover, not Brookfield. So Dennis necessarily focuses on the acts of the

security guards who engaged him.

Under Alabama law, Dennis can show that Brookfield is liable for

the security guards’ conduct in one of two ways: (a) respondeat superior

or (b) negligent hiring, training, and supervision. See QHG of Enter., Inc.

v. Pertuit, 323 So. 3d 1171, 1179 (Ala. 2020). Under the former, “a

principal may be held liable for his agent’s tort committed in the course

and scope of the agent’s employment.” Pryor v. Brown & Root USA, Inc.,

674 So. 2d 45, 47-48 (Ala. 1995) (using the terms “agent” and “employee”

interchangeably in the respondeat superior context). Under the latter, an

employer may be held liable for negligently hiring, training, and

supervising an employee whose conduct injures a third party. See Univ.

Fed. Credit Union v. Grayson, 878 So. 2d 280, 291 (Ala. 2003) (treating

negligent hiring and supervision as one claim); Lane v. Cent. Bank of Ala.,

N.A., 425 So. 2d 1098, 1100 (Ala. 1983) (describing the “tort of negligent

supervision of an employee” as holding an employer “responsible for his

[employee’s] incompetency when notice of knowledge, either actual or

presumed, of such unfitness has been brought to him”).

Both theories share a common denominator: an employer-employee

relationship. See Hendley v. Springhill Mem’l Hosp., 575 So. 2d 547, 550

(Ala. 1990) (“To recover against a defendant under the theory of

respondeat superior, it is necessary for the plaintiff to establish the status

of employer and employee—master and servant.”); Jones Express, Inc. v.

Jackson, 86 So. 3d 298, 304 (Ala. 2010) (discussing a negligent hiring,

retention, and supervision claim based on the misconduct of defendant’s

“employee”). That relationship is proved by showing that the principal has

retained a right of control over the actions of the alleged agent. Ex parte

Wild Wild West Soc. Club, Inc., 806 So. 2d 1235, 1241 (Ala. 2001). And it

is the plaintiff’s burden to prove that right of control. Id. at 1242.

B. Brookfield did not waive Dennis’s burden to prove agency.

Dennis first argues that Brookfield waived its agency argument by

not raising it before seeking summary judgment. But as discussed, agency

is not an affirmative defense that Brookfield must plead and prove, see

Fed. R. Civ. P. 8(c); it’s an essential element that Dennis must prove. Wild

Wild West, 806 So. 2d at 1242; see also Reed v. Bd. of Tr. for Ala. State

Univ., 778 So. 2d 791, 795 (Ala. 2000) (“The burden of proving the

existence of an employment relationship rests on the party asserting the

relationship.”).

1. No waiver: Brookfield did not waive Dennis’s burden. In its

answer, Brookfield denied Dennis’s allegations that Brookfield

negligently hired, trained, and supervised the security guards. Compare

(doc. 1-1, ¶¶ 55-56) with (doc. 4, ¶¶ 55-56). Then, as its Tenth Defense,

Brookfield pleaded that the incident “was caused by the acts or omissions

of others over whom Brookfield has not control, and for whom Brookfield

is not liable, thus barring recovery against Brookfield.” (Doc. 4, p. 7).

Later, in the parties’ joint status report, Brookfield asserted that Dennis

could not prove “that Brookfield is liable for the incident at issue” and that

Dennis “cannot establish that Brookfield is liable for any of the conduct

alleged in the complaint.” (Doc. 18, p. 8). Then, when discussing Count V,

Brookfield asserted: “Mr. Dennis must prove that an agent or employee of

Brookfield was incompetent, and that Brookfield had notice of this

incompetence. Here, Mr. Dennis cannot present any evidence that an

employee or agent of Brookfield was incompetent, or that Brookfield knew

of any such incompetence.” Id., p. 16-17.

As plaintiff, it is Dennis’s responsibility to know and satisfy his

burden of proof. All of the above statements portend that Brookfield would

force Dennis to satisfy his burden of proving agency. None of these

statements—or any other statement Brookfield made before filing its Rule

56 motion—affirmatively waived Dennis’s burden or stipulated that he

could meet it. So the court rejects Dennis’s waiver argument.

2. Burden of production: Dennis also argues that Brookfield cannot

argue against agency because it produced no evidence that disproves

agency. (Doc. 25, p. 5). But again, Brookfield has no burden of proof;

Dennis does. And “when the non-moving party bears the burden of proof

on an issue at trial, the moving party need not support its motion with

affidavits or other similar material negating the opponent’s claim in order

to discharge this initial responsibility.” Wills v. Royal Caribbean Cruises,

Ltd., 77 F.4th 1332, 1336 n.7 (11th Cir. 2023) (quotations omitted).

“Instead, the moving party may simply point out to the district court that

there is an absence of evidence to support the nonmoving party’s case.”

See id. (quotations omitted).

Brookfield met its minimal burden to “simply point out” that no

evidence supported an agency relationship between Brookfield and the

security guards. Id.; see also Clark v. Coats & Clark, Inc., 929 F.2d 604,

608 (11th Cir. 1991) (“The moving party bears the initial burden to show

the district court, by reference to the materials on file, that there are no

genuine issues of material fact that should be decided at trial.”). Once it

did, Dennis had the burden to produce evidence that would create a

genuine issue of material fact about agency. As discussed in the next part,

Dennis did not meet his burden.

C. Dennis produced no evidence that would allow a reasonable

juror to find that the security guards were agents, rather than

independent contractors.

Mall security guards are not necessarily agents of the mall’s owner.

Alabama law distinguishes between agents and independent contractors,

and this distinction is “critical” here “because it is a well-settled rule that

a principal is not ordinarily liable for the torts of its independent

contractor.” Wild Wild West, 806 So. 2d at 1241. Only agents can pass

liability to the corporate defendant, id., and “only if the agent commits the

tort while working within the line and scope of his employment.” Id.

The court starts by examining a state supreme court decision that

explains the difference in a case with somewhat similar facts.

1. Wild Wild West: Stephen Morrison had some drinks at the Plum

Crazy bar, owned by Wild Wild West Social Club, Inc. A bar fight broke

out around 1:00am, and a Plum Crazy bouncer ejected Morrison from the

bar—personally walking him into the parking lot. Once in the parking lot,

another Plum Crazy bouncer and two parking lot security guards

separated Morrison and the first bouncer. Morrison wasn’t finished and

went after the first bouncer, pushing aside one of the parking lot security

guards as he went. The two security guards grabbed Morrison and walked

him back to their car, and the security guard that Morrison pushed

(James Graham) punched Morrison in groin. Morrison needed emergency

surgery two days later. He then sued Wild Wild West (the bar’s owner).

At trial, Wild Wild West argued that Morrison failed to offer any

evidence that James Graham, the parking lot security guard, was its

agent rather than an independent contractor. The trial court denied

WWW’s motions, and a jury awarded Morrison $35,000.

The supreme court reversed. As for the law, the court said that

“when a defendant’s liability is based on the theory of agency, agency may

not be presumed, and to support a finding of liability the plaintiff must

present substantial evidence of an agency relationship. The party

asserting the existence of an agency relationship has the burden of

adducing sufficient evidence to prove its existence.” 806 So. 2d at 1242

(cleaned up). The court then held that Morrison “did not present such

evidence.” Id. To the contrary, Morrison had hired the same security

company (Metropolitan) to guard his business. Id. Plus, Morrison offered

no evidence that “Wild Wild West retained, or exercised, any control over

the means by which Graham and the other Metropolitan guards

performed their duties.” Id. The court also noted that the security guards

“did not wear clothing, like that of the bouncer, that would indicate they

were agents or employees of Wild Wild West.” Id. The court thus

concluded that “the jury had before it no evidence from which it could find

that Graham was an agent of Wild Wild West.” Id.

2. Lack of evidence here: Dennis similarly lacks any evidence of an

agency relationship between Brookfield and the security guards. As

mentioned, Dennis didn’t use any of the discovery vehicles to obtain the

needed evidence. He didn’t propound any requests for admissions or

interrogatories. He didn’t depose a corporate representative for Brookfield

or the security guards’ employer (assuming they are different). He didn’t

even seek to depose the security guards.

So the only evidence the court has is Dennis’s deposition testimony,

Brookfield’s initial disclosures, the incident report, surveillance video, and

Dennis’s FaceBook live video. None of this evidence is helpful. Neither

Dennis’s deposition nor Brookfield’s initial disclosures prove the

relationship between Brookfield and the security guards. The surveillance

video is too distant to allow a juror to read the company name on the

security guards’ uniforms. Dennis’s video focuses on Dennis, not the

guards, so it too fails to show the guards’ uniform or suggest who controls

them. And the incident report gives no indication, other than the header,

which seems to suggest the guards were using a third-party reporting

system:

MAXIMUS Sommechscalne MN

INCIDENT MANAGEMENT SYSTEM Birmingham

Alabama United States of America

INCIDENT REPORT

Disorderly Conduct

(Doc. 21-5).

Dennis points to one piece of evidence to support his argument for

agency—i.e., this portion of the incident report that indicates one of the

security guards told some shop owners and a mall housekeeping employee

to stop recording the incident with her phone:

deescalate to no avail. During this time with Sat. Foreman, several store tenants and a Housekeening employee, Latasha Echols, were

observed by our Security team filming the incident. Tenants from AM Beauty, Mr. Jeans, and various other locations were seen filming the

altercation and Latasha Echols was also seen filming the altercation When asked to tum off her phone and stop filming by PSS Steven J.

Patrick, she claimed she was not filming but face timing someone. Ms. Echols can be seen on camera interacting with the Individual in

question during his altercation with Security and with Hoover Police. A decision was made by PSS §. Patrick to verbally ban Mr. Dennis for

Id. at 2. But evidence that a security guard told mall employees and

tenants to stop filming the incident is not proof of who controlled the

guard. For example, assume that one of the Hoover police officers was

instead the person who asked everyone to stop filming. Would that prove

the officer worked for the mall, rather than the City? What if Dennis asked

everyone to stop filming, and they did? Would that prove Dennis worked

for the mall? No reasonable juror could find that it would, so by the same

token, no reasonable juror could base a finding that a guard was an agent

or employee of the mall simply because he asked others to stop filming.

—

To sum up, “agency may not be presumed”; the plaintiff must prove

it. Wild West, 806 So. 2d at 1242 (internal quotations omitted). Dennis has

produced no evidence in opposition to Brookfield’s motion that could

support a finding that the security guards were Brookfield agents. Nor

does it seem that Dennis asked for any evidence about agency in

discovery—even though there were ripe fields of inquiry like corporate

depositions, guard depositions, employment contracts, employee

handbooks, hiring documents, paychecks, and etcetera. Dennis’s failure to

produce any evidence that could prove agency if admitted at trial requires

the court to grant summary judgment on all counts. See, e.g., Ex parte The

HuffingtonPost.com, Inc., 376 So. 3d 432,449-50 (Ala. 2022) (finding

evidence that defendant “reserved editorial rights. . . to review and

approve. . . submitted content,” and “controlled access to the published

content, including the right to remove the published content” was

insufficient evidence of an agency relationship between the content

creator and the defendant to survive summary judgment); Wood v. Shell

Oil Co., 495 So. 2d 1034, 1035-37 (Ala. 1986) (finding that a lease and

dealer agreement that detailed the dealer’s requirements for the lessee to

keep certain business hours, maintain the premises for a limited purpose,

perform work in a workmanlike manner, and maintain adequate and

competent staff was insufficient evidence of an agency relationship

between the lessee and dealer).

CONCLUSION

For these reasons, the court GRANTS Brookfield’s motion for

summary judgment on all counts (doc. 19). The court will enter an Order

consistent with this Memorandum Opinion that carries out this ruling

and closes this case.

Done and Ordered on March 20, 2025.

Lee gf Hay

/

COREY‘L. MAZE

UNITED STATES DISTRICT JUDGE

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