BANZIGER v. CITY OF FRANKLIN
1:17-cv-00755
S.D. Ind.Sep 18, 2017Background
- Plaintiff Rochelle Banziger, age 79, alleges she was injured after an encounter with Walmart asset-protection employee Andrew Brewer as she was exiting a Walmart in March 2016.
- Brewer confronted Banziger, demanded to see her receipt, escorted her toward the asset-protection office, and called the police while she was leaving.
- Banziger alleges Brewer stepped toward her, leaned over her while she was seated, and pointed his finger in her face; Brewer later said he was frustrated and got ‘‘in her face.’’
- Banziger sued, asserting only a state-law assault claim against Brewer and, under respondeat superior, against Walmart; the claim is before the federal court under supplemental jurisdiction.
- Walmart moved to dismiss under Rule 12(b)(6), arguing the Amended Complaint fails to plausibly allege an assault under Indiana law.
- The court treated all well-pled factual allegations as true and denied Walmart’s motion, finding the facts permit a reasonable inference Brewer intended and caused apprehension of offensive contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Amended Complaint plausibly alleges assault under Indiana law | Banziger argues allegations that Brewer stepped toward her, leaned over her, and pointed a finger in her face, together with his admission of frustration, plausibly infer intent to cause apprehension of offensive contact | Walmart contends the facts, even accepted as true, do not show Brewer intended harmful or offensive contact or caused apprehension of such contact — only a mere possibility of assault | Denied dismissal: court holds the facts permit a reasonable inference of intent and imminent apprehension of offensive contact, so the assault claim is plausibly pleaded |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Bell Atlantic v. Twombly, 550 U.S. 544 (2007) (pleading must state a claim that is plausible on its face)
- Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991) (definition of actionable assault under Indiana law)
- Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008) (examples of acts causing apprehension; discussing assault elements)
- Bonte v. U.S. Bank, N.A., 624 F.3d 461 (7th Cir. 2010) (standard to survive a motion to dismiss is not high)