# Dennis v. Brookfield Properties Retail Inc

> District Court, N.D. Alabama · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10827889

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 20, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10827889

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10827889. Public record. Not legal advice.