*1 judgments VACATE the of conviction and Cooper, Plaintiff, Demetria corresponding sentences entered thereon v. 924(c) for the five counts and for entry Department Dillard Stores, Inc., sentencing on no more Defendant-Appellant. 924(c) than one per count Hobbs Act conviction. In all aspects, other we AF- 98-3011, 98-3261, Nos. 98-3306. FIRM the judgment of the district court.
United States Appeals, Court Tenth Circuit.
April HAMPTON, Paula Darlene Plaintiff, Cooper,
Demetria Plaintiff-Appellant,
v. DILLARD STORES, DEPARTMENT
INC., Defendant-Appellee, Lawyers’ Committee Rights for Civil Law,
under Amicus Curiae. Hampton, Paula Darlene Plaintiff-Appellee, Cooper, Plaintiff, Demetria Department Dillard Stores, Inc., Defendant-Appellant, Lawyers’ Rights Committee for Civil Law, Amicus Curiae. Hampton,
Paula Darlene Plaintiff-Appellee, *7 (Jamie II, Kathryn A. Benson
Arthur Gregg Lom- Lansford, McQueeny, Jane him on bardi, McKinney, Aften P. Associates, briefs), Benson & of Arthur Hamp- MO, Cooper and City, Kansas ton. Drodge and Elaine L. Whitacre
Jack Browne Britt & Fane Spencer Koch MO, De- LLP, for Dillard City, Kansas partment Stores. Butts, Williamson, R. Duncan M.
Julie Ann Fisher, Goldberg and Eric Jonathan L.L.P., Cuneo, & Kiley McKenna C. brief, Amicus CO, Denver, submitted for Civil Lawyers’ Committee Curiae Under Rights Law. HENRY, H. STEPHEN
Before LUCERO, Circuit ANDERSON Judges.
HENRY, Judge. Circuit suit Hampton filed Darlene Paula *8 Stores, Inc. Department Dillard against company had (Dillard’s), that the claiming right to with unlawfully her interfered of in violation a contract and enforce make jury A § 1981. awarded 42 U.S.C. based damages punitive compensatory (1) Hampton “was findings that on its sample as a cologne a to free entitled on purchase of her privilege or benefit 1099 5, 1996,” Aplt’s agree vol. at 147 tion. April App. We with the district court that (2) (verdict trial); phase fact, law, form from one of questions see, these are of “intentionally Stores, Dillard’s interfered e.g., Hampton Inc., with Dep’t v. Dillard ability cologne receive a (D.Kan.1998) (not to free sam- F.Supp.2d 1256, 1265 [her] (3) id.; Hampton’s and Ms. “race was ple,” ing that the issue of discrimination is a factor in motivating conduct [Dillard’s] fact), of question and the jury explic made (verdict April Id. at on 1996.” form findings it as to appellate each. On re trial). phase two thereaf- view, challenge jury’s we cannot find for judgment ter filed a motion as a matter fact; instead, ings may only we ask law, court which district denied. “legally whether there was a sufficient evi- appeals, raising Dillard’s now various ob- dentiary basis for a reasonable to find jections district its to the court’s denial of for Hampton]” on each fact. [Ms. Fed. motion. 50(a). R.Civ.P. Because there such a basis, must affirm we the district court’s review the de We district court’s order. judgment nial of Dillard’s motion for as a novo, “applying matter of law de the same as I.
legal standard the district court.” BACKGROUND Gray, Brown v. F.3d following material are facts taken Cir.2000). A party is entitled from the district court’s orders below and “only matter of law if the evidence transcript. from the trial facts These are way susceptible no points but one and is taken, undisputed, disputed, or where are may support reasonable inferences which them, required as we are take opposing party’s position.” Tyler v. light Hampton. most to Ms. favorable We Inc., States, Mountain RE/MAX briefly shall first summarize the facts in (10th Cir.2000). important It is case, this while we reserve a more detañed that, record, reviewing note we “[i]n description of the evidence for later discus- evidence, judge not weigh ivill witness specific parties. sion of issues raised credibility, challenge conclu factual 5, 1996, April jury. as a On and her Judgment sions matter niece, Cooper, law if appropriate [only] is there is no Demetria both African Americans, evidentiary shopping an legally basis for Easter sufficient controlling Cooper’s one-year-old claim under the law. con outfit for Ms. son in evidence, any department sider inferences the Dillard’s children’s in Ov- therefrom, Park, drawn favor of the erland The plaintiffs non-mov Kansas. Brown, (em son, party.” Cooper’s four ing F.3d chfidren them: Ms. phasis quotation eight-month-old added and internal marks Ms. and seven- omitted). year-old daughters, and daugh- her elder friend. ter’s
Thus, a high Dillard’s has hurdle Shortly they store, appeal to overcome. The focus of Dillard’s after entered the (1) Wilson, security officer, questions: three whether the Tom a Dülard’s fragrance coupon was in them. fact benefit noticed He observed them more (2) Hampton’s purchase; than fifteen whether minutes. Mr. Wilson testified paid party, in there was indeed intentional interference that he close attention to the *9 Hampton’s redemption part, Ms. had they with of the because a stroller with (3) them, coupon; Cooper rolled-up and whether the interference because Ms. had a hand, in based in was the end on racial discrimina- dark cloth item her and because intervention, and “turned she ceiling Wilson’s looking up at kept Cooper Ms. Aplt’s people.” other talking to around, to see started if to check glancing and (testimony of Ms. Chou- 3, at 624 App. his vol. Because being watched. if was she teau). aroused, fellow asked he suspicions were to continue Fitzgerel employee Pam matching up Mr. Wilson While in chil- room the fitting ain surveillance Hampton became receipt, Ms. to items plaintiffs where department, dren’s that, aas and told Mr. Wilson visibly upset one- Cooper’s clothing on Ms. trying
were Dillard’s, did not she customer regular trial, Fitzgerel testi- At Ms. year-old son. and shoplifting being accused of appreciate holding a rolled- Cooper was Ms. fied that way. treated this to be not deserve she did room; that she fitting in the up cloth item or he her to calm down told Mr. Wilson jack- Cooper’s Ms. saw an item later police and Park the Overland call would store that, the item to be et; believing and Ms. the store. her removed have merchandise, Mr. Wilson she contacted his name and Mr. Wilson Hampton asked that Ms. positive him that she was told and service coun- of the customer the location coat. her something under Cooper put had to the customer proceeded She then ter. Ms. fitting room and group left The had no more contact counter and service an outfit purchase Hampton proceeded with Mr. The encounter with Mr. Wilson. from the salesclerk Cooper’s son for Ms. five approximately minutes. Wilson lasted she did When department. the children’s Cooper subsequent- and Ms. Hampton Ms. so, gave Ms. the sales associate Dillard’s, alleging false against ly filed suit coupon that was each Cooper and Ms. law and vio- under Kansas imprisonment for counter fragrance at the redeemable of U.S.C. lation group shopping cologne samples. coun- fragrance to the proceeded on then History A. Procedural the Dillard’s ter, is located where which Cooper based Hampton and Ms. Ms. Oak Park opens into the store ends their detention claims on state tort their coupons. Mall, fragrance their to redeem their They based by Mr. Wilson. process of in the women While by and detention observation claims on the while the coupons redeeming their disparate on the store’s Mr. Wilson fra- a conversation
women were “arresting or detain- security practices Chouteau, Mr. Betty grance consultant signif- at a shoppers African-American ing Referring to them. interrupted Wilson it arrests or de- rate than icantly greater Hampton that Cooper, he advised Aplt’s App. vol. shoppers.” tains white observed ... black female been “the They alleged their (complaint). at 5 Aple’s coat.” something placing pattern or part of this “detention was (Dillard’s Security Re- at 121 Supp.App. practice.” Id. 1996). He asked Apr. port, dated Dil- discovery, close of Following bag carried Dillard’s look inside the summary on lard’s moved emptied bag, Hampton, took granted court The district both claims. Mr. fragrance counter. contents summary judgment on the state Dillard’s the re- against the items Wilson checked and on most tort claims they corre- ceipt determined only § claim claims. The that she Ms. Chouteau testified sponded. to trial proceed allowed embarrassing district court “a rather perceived it be interfered with the claim that and, upon Mr. the women situation”
HOI ability rejected to per- redeem the the verdict and plaintiffs’ the Dillard’s Motion sample. Judgment Law, fume aas of Al- Matter or ternatively for a New Trial Remittitur. noted, however, court The district claim Cooper’s coupon whether Ms. was appeals Dillard’s now the district court’s doubt, in as remained the cou- actionable of judgment denial its motion for as a pon by Cooper the was received Ms. as (1) of matter law and claims it is purchase a but as a result of benefit of Ms. judgment entitled to on Ms. Hampton’s Hampton’s purchase. The court ordered § coupon 1981 claim because the was not a Cooper why her Ms. to show cause claims (2) contract; contract, coupon if the was a any pur- in the of should survive absence there was no a interference with contract by chase made her. The court subse- interest; (3) and there nowas interference quently rejected Cooper’s Ms. contention with a contract interest based on racial that, third-party beneficiary a of the discrimination. appeals Dillard’s also the § Hampton, sale to Ms. 1981 claim district court’s denial of a new trial and survive, the in turn should and court dis- (1) it unfairly prejudiced contends was remaining Cooper’s missed claim various instructional errors misled the the before trial. day (2) jury evidentiary various admissions Finally, exclusions that were in error. §
Noting jurispru that our challenges of compen- award requires dence the action interfered satory punitive damages contract, and the with must on a be based see of attorney’s award fees. Phelps Eagle-Beacon, v. Wichita (10th Cir.1989) 1262, 1267 (requiring actual addition, Cooper In dis- appeals § a for a loss of contract interest § trict court’s dismissal of her 1981 claim right claim for interference with and her state law claim. The Lawyer’s contract),1 make and enforce district Committee for has an Rights Civil filed trial. court decided to bifurcate the (1) in support amicus curiae brief of affir- determine phase, jury first was to judgment of mance the verdict and in fa- the fragrance sample whether was a bene (2) Hampton vor Ms. of reversal of the Hampton’s purchase fit of from Dil Cooper’s of Begin- dismissal Ms. claims. intentionally lard’s and whether Dillard’s ning appeal, with the defendant’s we shall redemption interfered the cou each in turn. review contention pon. jury coupon If the found purchase benefit and that Dillard’s in 98-3011, II. CASE -3261 ANAL- NOS. interfered, tentionally proceed it would YSIS two, phase in it which would determine Hampton’s § whether store’s intentional interfer A. Ms. Claim racially ence motivated. The § 1. Elements 1981 Claim found for Ms. on all the issues presented phases, respect § both and awarded her With to 42 U.S.C. $56,000 compensatory damages prima facie establish case discrimi $1.1 1981,2 punitive damages. plaintiff million in must district nation under court entered accordance with show: Buick, Wesley Although Phelps predated 42 F.Supp.2d
1. our decision in v. Don Stein (D.Kan.1999). the 1991 amendments these 1200 n. 7 requirement alter amendments do not See, e.g., Specifically, provides: an actual loss of a contract interest. *11 1102 by dramatically limited that were tections of a member is a
(1) plaintiff that the Morris, 413 F.3d at decisions”); 89 those class; protected ad- claims 1981 of predominance (noting to intent (2) defendant that the discrimination). employment race; dressing and of the basis on discriminate to applied However, has been the statute interfered (3) discrimination that in the retail arising claims in discrimination activity as defined protected awith a when industry, restaurant and sector § 1981. See, e.g., established. has been contract 1, Den Dist. No. v. School Reynolds 512, Inc., F.Supp.2d 19 Rage, v. Bobbitt (10th 1523, Cir. 1532 ver, Colo., F.3d to (W.D.N.C.1998) (allowing action 518-20 dis (“Section racial 1995) 1981 prohibits forced plaintiffs, who where proceed making, performance, 'the crimination restaurant, pizza for food contracts, prepay to of modification, and termination a altered the restaurant benefits, privi demonstrated of all enjoyment and ser- the food of characteristic contrac terms, fundamental and conditions leges, Duty race); Washington ”) v. U.S.C. (quoting 42 on relationship.’ based vice tual Ltd., F.Supp. Oil Bellows v. Amoco 1981); Shoppers, also see Free (list Cir.1997) (5th summary Co., (N.D.Cal.1988) (denying 1289-90 Max, elements); v. Morris where African ing three to defendant Office Cir.1996) (7th (ap Inc., they F.3d need- told were customers American transaction'). retail to plying elements airline tickets and passport a to ed show to are not and “are elements flexible These goods, while duty-paid shopping before Longmont Cone rigidly.” applied be to do required were not other customers Ass’n, 530 n. 2 F.3d Hosp. United so). Cir.1994). to the elements prima facie Applying involving litigation most Typically, case, the district setting of this factual right from the emanated has § 1981 claims plaintiff court instructed con- employment enforce make and to must establish: (not- (1990) 101-315 S.Rep. No. tracts. Cf. “a series response to § 1981was ing that to a free First, plaintiff was entitled employment addressing decisions of recent of privilege sample as benefit cologne “the Su- where claims” discrimination 5,1996; April purchase dramatically on the cut back preme Court intentionally in- Second, that defendant rights pro- of civil and effectiveness scope enjoy the plaintiffs right terfered with the act is purpose that the and tections” purchase; privileges of and benefits recent Supreme Court’s to the respond “to and pro- rights restoring the civil by decisions section, the term this purposes of For (a) rights equal Statement includes contracts” "make and enforce jurisdiction of persons within
All modification, ter- and making, performance, right in the same shall have United States contracts, enjoyment and the en- mination Territory and to make every and State temis, benefits, and conditions sue, privileges, contracts, all give evi- parties, be force relationship. the contractual dence, equal benefit of to the full (c)Protection against impairment security of proceedings all laws and pro- by section are rights protected this by white enjoyed property as is persons and nongovern- impairment against citizens, tected subject punish- like shall be un- impairment licenses, taxes, mental discrimination ment, penalties, pains, State law. kind, der color of no other. every and to exactions supplied). (emphasis § 1981 42 U.S.C. (b) defined contracts” and enforce "Make plaintiffs right upon race was motivat- intended to confer recipi- Third its addition, Aplt’s points conduct. ent. ing factor defendant’s *12 (Instruction 18). App. Cooper’s receipt will dis- a coupon at 151 of as evidence elements, of a beginning purchase required cuss each these was not to re- a gift. whether there was interference ceive the with with contract. rebuttal, In Hampton argues Ms. of jury’s we must be mindful the appraisal Coupon
A The as Part the Purchase of the credibility of of the witnesses well as Contract jury’s as the resolution of factual issues. appeals Dillard’s the district court’s de Holdings, See United Int’l Inc. v. Wharf judgment nial of motion for as a matter its Ltd., 1207, (Holdings) 210 F.3d law, contending coupon of first the Cir.2000) (noting jury has “[t]he the exclu- was not a contract. We review the district sive function of appraising de- credibility, judgment court’s of a motion denial the termining weight given to be to the novo, law applying a matter of de the same testimony, drawing inferences from the legal standard as the district court. See established, facts resolving conflicts in the Servs., Inc., Equifax Deters v. Credit evidence, Info. and reaching ultimate conclu- (10th Cir.2000). But fact”) (internal quotation sions of marks legal the standard that we and the district omitted). Cooper She Ms. testified is, earlier, court must use as noted difficult that, during they shopped the time at the a party for the movant: is entitled to (over hour), Dillard’s store an they never a only as matter of law if the anyone a coupon saw receive no saw points way “evidence but one and is sus distributing coupons. one the first The ceptible sup no to reasonable inferences they coupons of saw the was after party the the porting opposing motion.” Hampton had purchased merchandise. (internal omitted). quotation Id. marks Furthermore, representative sales the record, reviewing weigh the we “will not fragrance company, from the Ms. Chou- evidence, judge credibility, witness chal or teau, purpose pro- the of testified that the lenge jury.” factual of the conclusions coupon, motional handed out after cus- only Id. as a of law Judgment matter is purchase, tomer of Dillard’s made appropriate legally if is no sufficient there shoppers “to entice the come to evidentiary basis for a claim under fragrance so that we talk [counter] could controlling law. id. See We consider product.” Aplt’s App. to them about our evidence, any inferences drawn there Chouteau). (testimony vol. at 622 of Ms. from, nonmoving in favor party. of supported promotions All such were See id. agreed Dillard’s. id. at 663 See Dirks, of (testimony opera- Dillard’s challenges whether manager). Finally, Cooper tions testi- fragrance coupon was a of Ms. benefit that, receipt upon coupons, fied relationship contractual for the salesperson her children’s wear directed purchase According of wear. children’s fra- shopping party appropriate toward the Dillard’s, coupons promotional grance counter. invitations, indiscriminately handed out per- exclusively a Ms. contends that she and not connection with steps necessary vol. to act in com- purchase. Aplt’s App. formed the 648, 650, 655, conditions of pliance 657. Dillard’s maintains with the terms and coupon completed was a and that it never the offer from Dillard’s: she gift
H04 performance beginning or tenders presented coupon to the purchase it. The performance counter. fragrance acts, (2) constitutes argues, duty performance she either
these offeror’s enjoy- “the any or so created acceptance option an entitles contract benefits, terms, and privileges, completion ment of all tender conditional relationship,” performance of the contractual accordance conditions the invited says. as the terms the offer. statute (Second) § 45 Contracts Restatement *13 purpose the of the Clearly, (1981). pro- § 45 The to further Comment the right to “make it clear that statute is vides free and enforce contracts’ to ‘make to is limited cases where [t]his Section by protected race sec [is] discrimination promissory not a the offer does invite (1990). S.Rep. No. 101-315 tion 1981.” acceptance. offer has often Such an Furthermore, the list set forth subsec to for a referred as an “offer been (b) statute, gives which tion of the exam Typical illustra- unilateral contract.” might “making” of the ples what constitute of or tions are found offers rewards Act, “is “enforcing” or of a the prizes.... to illustrative rather than ex intended be State, a; § Id. 45 cmt. see also Brown v. Id. have clarified “that a haustive.” (Ct. 602 N.W.2d 230 Wis.2d for with the 1981 claim interference by App.1999) (noting “performance right make and enforce a contract must to by the requested entrant of the act the a involve the actual loss of contract inter sponsor—there, returning eligibility an est, merely possible of future not loss acceptance an of an offer card—constitutes opportunities.” Wesley, contract contract;” binding noting a and forms also F.Supp.2d (citing Phelps, at 1200 nearly jurisdictions adopted all have 1267). at governs the the rule “that contract law transaction, (internal of a sponsor-contestant relationship”) the context retail omitted). opportunity Here, this court has not had the to quotation marks (b). apply See id. at address or subsection a of an or unilater option offered variance Morris, 413). & F.3d at (citing 1200 n. 8 al Hampton, contract to Ms. and she com to guidance pleted performance There is even less as what in accor invited purposes constitutes contract of dance with the terms of the offer. See transaction, involving (Second) 45; § 1981 claim a retail Restatement Contracts of such, as we to to Perry Burger King and are authorized look Corp., cf. 1988(a). (S.D.N.Y.1996) common law. See U.S.C. (denying F.Supp. to finished
motion dismiss where customer 45 of Restatement Section sought restaurant’s rest meal use (Second) provides Contracts illumination facilities; plaintiff may noting room regarding on the contracts common law of be for food “considered have contracted by perfor accept an invitation to an offer as and use of the bathroom” benefit mance: relationship). contractual (1) Cooper’s an an Dillard’s also that Ms. Where offer invites offeree contends by rendering receipt coupon jury’s of a accept performance undermines promissory accep- finding coupon not that the was a does invite benefit tance, option Hampton’s purchase an contract is created contract. We when Ms. Cooper, disagree. the offeree or Ms. whose child re- begins tenders invited shop- clothing, part allege was a tract must the actual of a ceived the loss con- interest, tract party, perhaps merely possible store clerk ping loss thought Cooper opportunities.”) too should receive the of future (citing contract 1267). coupon. jury weighed testimony re- Phelps, 886 F.2d at Dillard’s con- receipt coupons by garding such tends was not denied a nonpurchasing customers determined product, required service Morris. trial, weighed that the evidence favor of Ms. At Mr. Wilson testified on behalf of e., Hampton, coupon i was a benefit stopped Dillard’s that he the women while relationship contractual they approaching exit the store’s with Dillard’s. that he did not believe them to be ex- changing their coupons fragrance sam- to the regard purpose With the cou- ples. pon, Ms. Chouteau testified that it served shoppers” sample “to entice the A testimony recollection of Mr. Wilson’s company’s products. Aplt’s App. may explain vol. why and district *14 Chouteau). (testimony of Ms. court they 622 She also reached the decisions that did: “ coupon were stated holders ‘entitled Q: you What did think Hampton Paula ” fragrance sample. to’ a Id. at 625. Cooper and Demetria doing were when addition, note that benefit we the ran to you approached them? to sample prod- as well: those They getting ready A: were to exit the ucts, the customer would traverse the go Dillard’s store to out the into mall. store, perhaps eyeing other merchandise Q: Okay. you they Did notice that were purchase jury’s from Dillard’s. The speaking with a cosmetic or associate a credibility determinations and conclusion fragrance you ap- consultant when coupon right the conferred a to a proached the two ladies? sample fragrance as a of a benefit contrac- No, I A: did not. relationship weight tual not against are the Q: you knowingly prevent Did Paula the a evidence as matter of law. Hampton receiving a cologne free providing or not this
Whether of the sam- sample? ple hopes that a customer would walk No, I A: did not. through purchase the store and co- back App. (testimony Aplt’s vol. 3. at of Mr. logne or option another item was itself an Wilson). Thus, have a security we trained contract, say unilateral cannot or we guard claiming that he notice that did not jury’s coupon the conclusion that the awas redeeming coupon. the In- women were of Ms. contract benefit with deed, they he did not notice that Dillard’s was unreasonable. talking salesper-
shopping even with a son. Intentional with Re- Interference demption Coupon the testimony directly This was contested Hampton Cooper. jury Ms. The sought judgment
Dillard’s also
as
could have resolved this conflict based on
Hampton
a matter of law because Ms.
evidence,
may
their
but the silver bullet
right
suffered no actual loss of
contract
Chouteau,
testimony
have
of Ms.
been
Phelps,
or interest.
F.2d at 1267
See
perfume
consultant:
protected
that actual loss is
(emphasizing
loss); Morris,
§by
possible
Q:
you
Hampton
not
recall Paula
[D]o
(“A
F.3d at 414-15
claim for
Cooper
interference
Demetria
their children
coming up
right
with the
make and enforce a con-
to the cosmetics counter?
every-
bag,
and then he shoved
was
A:
I do.
Aplt’s App.
at
thing
at
vol.
[her].”
back
Q:
you
Do
recall that their discussion
(testimony
Hampton). After
of Ms.
by a Dillard’s
you
interrupted
with
was
this,
Hampton told Mr. Wilson she
security officer?
of shoplifting,
shocked
be accused
Yes, I
A:
do.
subsequently
and Mr. Wilson
threatened
her removed from the store. See
to have
Q:
up
came
When
Wilson
[0]fficer
at
id.
830-32.
you
spoke, what did
do then?
that,
been
concluded
there
Well,
it
em-
A:
rather
because
interference,
have
no
would
barrassing
I was
situation and because
redemption
[her]
received
service
things
busy
of other
very
lot
noted,
coupon.
As the district court
on,
talking
I
going
turned and started
produced
“plaintiff
legally
sufficient
my
back to
people
other
at
time with
inter-
intentionally
evidence that Wilson
them.
redemption
coupon.”
fered with the
Q:
your
With
back to whom?
Hampton,
F.Supp.2d
at 1264.
doWe
mean,
A:
Paula.
I
I
To
officer and
question
jury’s credibility
determi-
just
embarrassing
it
felt like
was an
nations,
we
a mat-
say
cannot
I
situation
them and felt uncomforta-
jury’s
ter
law
conclusion incorrect.
ble,
know,
Iso turned and
you
watching,
(“In
Deters, 202 F.3d
our
sup-
I
ahead and did what was
went
record,
weigh
*15
of the
review
we will
posed
doing.
to be
evidence, judge
credibility,
chal-
witness
or
621-22,
(testimony
Aplt’s App. vol. 3 at
624
lenge
jury.”)
factual
of
the
conclusions
the
Chouteau).
of Ms.
Mr.
again,
Once
the evidence
the record is
dissent notes that
jury
testimony
that
does not
he
suggest
sufficient
the
to determine
Wilson’s
subjective
deliberately
prevent
Mr.
with
had the
intent
to
the
Wilson
interfered
Hampton’s redemption
coupon
coupon.3
agree,
of
but
redemption
enjoyment
§
of
1981
protects
and that she suffered an actual loss
a note that
of
any impair
a
privilege of her contract because of this
benefits of
contract from
ment,
long
interruption.
impairment
testified that
so
as the
arises
Hampton
approached
and
42
after he
her
identified
from intentional discrimination. See
1981(a) (“All persons
fragrance
while
was at the
...
shall
himself
she
U.S.C.
counter,
shopping]
right
Mr.
have the same
...
to make and
[her
Wilson “took
by
...
bag, dumped
enjoyed
out on the coun-
contracts
as is
the contents
enforce
”).
ter,
compared
receipt
proper
them to the
that white citizens....
Thus the
fo-
Although
may
quite
any
plaintiff
point
be
correct
evi
the dissent
because
unable to
observing
timing
in-
that the
of Mr. Wilson's
dence in the record that she "intended to
fortuitous,”
"purely
Mr. Wil-
terference was
visit”);
during
purchase a car
v.
Lewis
inopportune timing
son's
neither alters
Co.,
367,
(D.Del.
Penney
F.Supp.
J.C.
948
372
resulting interruption
ongoing
of an
transac-
1996)
(dismissing §
claim
1981
because
nor
this
action. See Mor-
tion
defeats
1981
plaintiff
shopping
"had done her
ris,
(explaining
plaintiffs
racial discrimination
2097,
Inc.,
133, 147, 120 S.Ct.
530 U.S.
Douglas
framework of McDonnell
shifting
(2000)
Mary’s
St.
(quoting
L.Ed.2d 105
is
and the issue
largely
is
irrelevant
Hicks,
511,
502,
U.S.
Honor Ctr. v.
employment
the
action
whether
adverse
(1993)).
As
1110 enjoy the to all benefits right her Instructions relationship contractual privileges of her appeals the dis next Dillard’s Dillard’s, on of her race. with account a new motion for trict denial of its court’s plaintiff that specifically, More contends the district grounds trial the on prevented her intentionally defendant unfairly prejudi court’s instructions were redeeming cologne coupon a free trial denial of cial. review the court’s her a bene- given which Dillard’s as a for a new trial the basis motion depart- purchase fit of a its children’s weight jury’s against verdict is the ment. of dis for “a manifest abuse evidence Alexander, F.3d 152 cretion.” Blanke v. prov- Hampton has the burden of (10th Cir.1998); 1224, see also Gas 1235 of the ing by preponderance a evidence Humanities, Inc., 518 perini v. Center for are true probably that her claims more 415, 433, L.Ed.2d 116 135 U.S. S.Ct. than not true. (1996) (noting a trial court 659 federal plaintiffs Dillard’s denies claims a new if the grant trial has “discretion sample cologne contends that against court] to be appears [the verdict gift, patrons, free available to all store evidence”) (internal quo of the weight purchase. rather than benefit with omitted). There is an abuse tation marks (Instruction 10). clearly, of discretion'when “the verdict is Aplt’s App. vol. 139 overwhelmingly decidedly against trial, In of the the district court phase two weight the evidence.” Black v. Hieb’s ap- phase stated that the one instructions Enters., Inc., deliberations, Cir. 805 F.2d plied jury’s to the 1986). Instead, In- exception of Instruction 10. claims, Hampton’s out struction 17 set Ms. argues that the dis slightly in a different context: but jury trict instructions court’s confused proof Hampton the burden misdirected Plaintiff Paula claims that review, Stores, jury’s inquiry. the focus of the On Department defendant Dillard Inc., in their jury rights consider instructions her “[w]e violated civil entirety, applying by intentionally to deter denying de novo review U.S.C. on the jury mine whether misled all right enjoy her the benefits Ingersoll-Rand applicable relationship law.” Smith her privileges of contractual (10th Cir.2000). Co., with Dillard’s on account of race. her review, “Despite do not plaintiff this standard of we specifically, More contends surveillance, we satis require perfection, but must be defendant’s detention instructions, that, upon hearing fied her belongings search of constituted re understood the to be security practice unequally issues bur- which Id. duty solved and its to resolve them.” shop- dened as an African-American (internal omitted). quotation marks per. prov- Hampton has the burden of Instructions a. and 17. ing by preponderance evidence trial, phase one Instruction probably that her claims more true are
set out Ms. claims: than not true. Plaintiff Paula claims plaintiffs allegations. Dillard’s denies Stores, Department defendant Dillard 17). (Instruction Inc., rights under 42 Id. at Dillard’s con- violated her civil denying intentionally § 1981 tends that the above instructions U.S.C. because *19 prior you jury already on its unrelated bad Because have resolved focused the acts, unfairly prejudiced. of plaintiff, Dillard’s was the first two issues in favor only you need address the third element. hold that Instruction refo issue, plaintiff On this not does have one, phase jury in jury: cused the was prove only that defendant was motivated coupon on was a to focus whether plaintiffs race, by prove but she must intentional contract and whether Dillard’s motivating that her race was in factor interfered; two, phase jury’s ly pri decision, is, that defendant’s that defen- Dil mary focus was to determine whether acted, at in part, dant least of because discriminatory motive. lard’s acted with plaintiffs race. pretrial order’s The instruction echoed Hampton’s characterization of “motivating” A factor that means but claims—i.e., engaged that Dillard’s dis motive, for its unlawful defendant would parate practices unequal surveillance plaintiff have denied right not ly shoppers African-American burdened enjoy privileges the benefits and of her Hampton’s rights and violated Ms. under words, purchase. you other must § 1981. To allow the to consider the find that race was at one least of the past practice conduct and as indi store’s factors which motivated Officer Wilson rect not error. These in evidence was with plaintiffs redemption to interfere jury. not structions did mislead the To cologne sample. motivating A clearly contrary, the instructions stat not factor need be the sole or exclusive legal ed the correct standard. however, reason, for Wilson’s actions. plaintiff While must show defen- b. Instruction 18. intentionally against dant discriminated In Dillard’s also contends her, not required produce she is di- jury, struction 18 further confused the be of discrimina- rect evidence intentional suggested cause it that Ms. may Intentional discrimination be tion. one of motivating race could be several of other inferred from existence conduct, factors behind Dillard’s rather may showing facts and be inferred from than the determinative factor. Instruction explanation unworthy that defendant’s presented the essential elements that of belief. prove had to to establish her proves by plaintiff pre- If her claim a claim of race discrimination under 1981: evidence, you ponderance must In order to establish her claim race If plaintiff. return verdict favor discrimination U.S.C. plaintiff not claim a prove does her plaintiff prove following must essen- evidence, preponderance you must probably tial are elements more true claim iri favor defendant. decide this than true: (Instruction Aplt’s App. vol. at 151-52 First, plaintiff to a entitled 18). cologne sample privi- a benefit or free 5, 1996; lege purchase April her merely Instruction 18 restated 1981’s Second, intentionally that defendant jury’s and recited the verdict elements plaintiffs right enjoy interfered with phase from the of the trial: that Ms. first privileges pur- of that the benefits cologne to a free Hampton was entitled chase; and sample purchase as a benefit of her
Third, intentionally plaintiffs race a moti- that Dillard’s interfered with ability cologne free sam- vating factor in defendant’s conduct. to receive a *20 1112 (verdict “patently plainly erroneous id. at 147 form from error would be
pie. See trial). prop- Id. hold phase prejudicial.” one of instruction and therefore We plaintiff the erly stated that the bears as to jury properly that the instructed establishing that race was burden of the damages could the it award and factor in the deci- motivating defendant’s jury not the to con- did instructions allow Diag- Anaeme v. sion to discriminate. See impermissible theories. sider nostic, Inc., 1275, 1282 Cir.1999) (noting “[plaintiffs it is ultimate Proposed Regarding Instructions d. jury the responsibility persuad[e] [to] Summary Judgment. motivating factor in the em- race was Finally, Dillard’s district argues the decision”). ployment Because we consider give proposed court refusing erred
jury instructions as a whole connection regarding the district court’s instruction see Hall given, with all other instructions on grant summary judgment to Dillard’s Co., 1050, 988 v. Western Prod. F.2d 1058 plaintiffs’ imprisonment false claims. the (10th Cir.1993) (“The appellate court re- Specifically, the Dillard’s contends that whole, jury views the instructions as a not ruling summary judgment court’s district instructions.”), by reviewing single jury we conclusively established that Mr. Wilson argument hold defendant’s that Instruction probable with cause he acted when jury numbers 17 or 18 misled the to be stopped Cooper without merit. stopped that he them at the nexus of the store and the mall.
c. Instruction 19. argues Dillard’s further the 56(d), summary Rule ad “Under erroneously court the instructed judication only im some of claims discriminatory on practices focus its when poses duty practi on the trial court to ‘if making apportionment its of actual dam cable’ articulate what facts are established ages. part, In Instruction 19 stated that Anixter and which remain controverted.” plaintiff is to prove “[t]he [the] burden Co., Prod. 977 Home-Stake F.2d by a preponderance of the evidence (10th Cir.1992). Here, 1548 district damages and amount of her existence granted court Dil summary the fact that conduct defendant’s unlawful imprisonment lard’s on the false claims proximately damages.” Aplt’s caused claims, and a subset of but App. at vol. 153. Dillard’s contends that upon allowed 1981 claim based jury’s consideration of all of its “unlaw proceed. coupon agree We with alleg ful conduct” include Dillard’s would district court that “that record different is edly discriminatory surveillance tactics and developed from the record which [was be consequently distorted the award. Be coupon fore trial on the claim] preserve cause Dillard’s this issue did summary judgment order imma Court’s review, plain we review error. See (Tr. Aplt’s App. terial.” vol. Co., Drilling Co. v. Enron & Unit Oil Gas conference). instruction (10th Cir.1997). F.3d above, if the stop As noted even com- plain order to find error we would have to law, plied with Dillard’s is state not neces- “patently conclude that instruction was (in sarily liability plainly prejudicial.” Id. shielded erroneous omitted). Tanner, (“mere F.2d n. ternal marks at 580 quotation error, procedural compliance requisites doubt whether this instruction was were, and even if it also we doubt that the state law would not shield [officers] *21 1983”). (10th Cir.1992). liability Further- 982 F.2d Fail- more, findings in there were no the sum- object ure to so “constitutes waiver of to Mr. mary order as Wilson’s plain issue unless there is error resulting subjective policies beliefs and store’s injustice.” manifest Id. at 1414-15. allegedly based on them. Whether under an abuse of discretion review, error plain we conclude that there unique pow
Section 1981 is a and was no error. that on erful statute focuses motivation particular behind action. Whether Mr. Dillard’s focuses several al- areas of committed a tort his fruit Wilson state (1) legedly prejudicial testimony: testimo- Hampton’s belongings less search of Ms. ny that supervisor Officer Wilson’s used targeted dispositive why not he her in racial epithets previous in his position as reasons, place. For the first those director of security another employer, consider, jury along was entitled to (2) testimony by security former Dillard’s testimony, testimony Mr. Wilson’s training officers as to they re- received Chouteau, Ms. and Ms. Coo garding minority treatment of shoppers; per, and demonstrative evidence. The (3) testimony regarding makeup the racial court’s properly district instruction stated of Dillard’s and shoppers logs shift and regarding the law the issues before the (4) reports; arrest lay opinion testimony the district not and court did abuse its (5) security officers; about Dillard’s give discretion when it to refused testimony that approximately dated back proposed store’s instruction. twenty years as Officer Wilson’s disci- 6. Admission and Preju- Irrelevant plinary proceeding suspension. In ad-
dicial Excul- dition, Evidence/Exclusion Dillard’s contends that the court patory Evidence erred when it excluded Ms. Hampton’s handwritten complaint she filed with
Dillard’s sought also new trial department the customer service after arguing the cumulative effect of the incident. district court’s evidentiary erroneous rul
ings merits reversal. review eviden- evidentiary The first three tiary rulings alleged for an abuse discretion. Jackson, errors, See Cartier v. F.3d taken or in separately aggre Cir.1995). argument The store’s do not gate, warrant reversal. The use around the centers contention epithets by racial Wilson’s su Mr. former exceedingly claim was store, pervisor, training practices of the its narrow therefore the admission of tes may logs reports shift incident and arrest timony regarding surveillance tactics and viewed as be indirect evidence of discrimi practices prejudicial prevention loss natory stated, previously animus. As “a confusing jury. to the plaintiff alleging § 1981 racial discrimina may prove tion intentional discrimination
Dillard’s upon continuing relies through either direct or circumstantial evi testimony objection opinion about rac Tyler, at dence.” 812. Dillard’s by the officer ism witnesses. The record every opportunity to rebut all of the objected does not indicate that above admitted evidence but instead relied challenged testimony all of the at trial. A upon objection” “continuing opin its to all party timely proper must make a ob jection preserve testimony rationally ion alleged per an error based on Herndon, appeal. knowledge. Aplt’s. App. United States sonal vol. 1H4 prejudiced by hold Dillard’s was not did district court
713. We hold complaint. the exclusion of the discretion. not abuse its the cumulative Dillard’s also contends testimony regarding Of As to they appeal unduly effect of errors the Kansas suspension from ficer Wilson’s As we have found prejudiced their case. *22 in falsifying report Highway Patrol compound error, effect. no there can be no that court determined the district time, in remote although the event was Damages probative of Mr. Wilson’s because it was Damages Compensatory a. truthfulness, and because character explain inci able to the Mr. Wilson was the contends that Dillard’s dent, question the would allow the court $56,000 is of damages award compensatory not abuse its ing. district court did by must be supported the evidence and question allowing this line discretion complains there party set When a aside. jury to it allowing give and in ing support a dam was evidence to insufficient Rule of Evi appropriate weight. Federal award, age whether we must determine 608(b) provides: “Specific instances dence supported by sub damage award is may, ... ... of a of the conduct witness Baty v. stantial evidence. See Willamette court, probative if the discretion of (10th Indus., 1232, 1243 Cir. 172 F.3d untruthfulness, inquired be truthfulness 1999). light view the evidence in the We wit into on cross-examination party. prevailing most favorable to the ” 608(b). key ness .... Fed.R.Evid. One Stores, Dep’t See Harolds Inc. v. Dillard application is is aspect of this rule that its (10th Stores, Inc., 1533, 1551 82 F.3d Cir. explicitly the discretion the dis within 1996).
trict court. The court did not abuse its any states that emotional dam- Dillard’s discretion. ages Hampton resulted from Ms. suffered Mr. belief that her niece was Wilson’s Finally, contends that Dillard’s alleged shoplifting any and not from it the district court when excluded erred In interference with her contract. Hampton’s complaint Ms. written addition, contends that Ms. store, her immediately after interac made distress, any, if Hampton’s emotional alleges with Wilson. Dillard’s tion Mr. unsupported the record. against the report that was an admission interest, closely Hampton damages counters that it tracked Ms. Ms. and interference with story, made no intimation the accusation Mr. Wilson’s hu- were she felt of racial The record indi contract substantial: discrimination. disgraced by the accusations. planned cates Dillard’s counsel to of miliated accusation, though specific Clearly fer facts that were admissions directed niece, fact, implicated part her her as of the report. against interest dressing in the In addi- entourage to cross-examine room. Dillard’s counsel able she, too, tion, Hampton claims thoroughly about the written Ms. Hampton Ms. Furthermore, stealing. complaint. Hampton was accused She contends complaint damages immedi- nothing sug in the her emotional testified evident, ately visibly upset as she was gested that she believed the interference incident, as she coupon lasting, after the as well redemption of the with App. shop her children for racially Aplt’s vol. is now unable motivated. See future and humiliation. (testimony Hampton). fear of ridicule at 837 also claimed her daughter b. Punitive Damages repeated nightmares the in- regarding Dillard’s also seeks to reduce or elimi cident. nate the punitive million $1.1 damage award. argues Dillard's there was noteWe first that any economic damage insufficient evidence for the to con that resulted from the store’s intentional clude that the defendant discriminated interference with redemption against plaintiff willfully or maliciously, fragrance sample was negligible. Our re- which is required for an punitive award of view of compensatory damages is limited damages 1981. See EEOC v. to Ms. Hampton’s testimony regarding her Gaddis, F.2d Cir. emotional suffering. See Karnes v. SCI 1984). It also asks us to conclude as a Servs., Colo. Funeral matter of law that punitive damage *23 (10th Cir.1998) (noting availability of com- award is excessive. pensatory punitive and damages under 1981). testified as to her (1) of Damages Award emotional distress and that of daugh- her “In Circuit, the Tenth Vision, See Migis Inc., ter. v. Pearle standard punitive for damages for discrim (5th Cir.1998) F.3d that, (noting ination in violation of civü rights federal in a case, discrimination 1981a victim’s that the discrimination must have been “testimony of anxiety, sleeplessness, ‘malicious, willful, and in gross disregard stress, marital hardship and loss of self- [plaintiffs] of rights.’” Jackson v. Pool was esteem sufficiently detailed pre- to Co., Mortgage clude us from holding that the district Cir.1989) Gaddis, (quoting 733 F.2d at court abused its in discretion its award of “ 1380). ‘The allowance of such damages compensatory damages”). Ms. Hampton’s inherently involves an evaluation of the testimony here similarly was detañed. As nature of the conduct question, in the wis the district court noted: dom some form of pecuniary punish this plaintiff [I]n case gave eloquent and ment, and advisability of a deterrent. emotionally moving testimony that Wil- Therefore, the infliction of such damages, disgraced son her, and humiliated in and the inflicted, amount thereof when are front of chfidren, that she was too of within necessity the discretion of the ” drive, emotionally distraught to and trier of Gaddis, fact.’ 733 F.2d at she had call to her husband ride (internal omitted). quotation marks home. Immediately after the incident Based on the testimony presented, she crying and she was upset so jury could reasonably find that Dülard’s that she not could write out a customer part took in the intentional discriminatory card, comment and a employee Dillard’s conduct. id. at 1379 (holding that trial
fiUed it out for her. She that “I testified finding court’s of intentional discrimination don’t feel that my life wñl ever be the was correct and noting “[w]here the same.” jury The was entitled credit supports evidence a conclusion way either this testimony and compensate plain- the choice permissible between two views tiff accordingly. weight of the of the evidence clearly is not Hampton, (cita- F.Supp.2d (internal erroneous”) at 1275-76 quotation marks omitted). omitted). tions We conclude that jury The found Ms. Hampton’s award compensatory damages was well witnesses credible. The weighed also within the district court’s discretion. testimony regarding the training store’s
1H6 employment on the reports, private ob- tion in basis policies, its its close incident An who establishes of African-American customers race. individual servation is entitled to objectively in innocent cause of action under engaging who were relief, legal including behavior, equitable arrest reports. and its both and, certain circum- jury’s findings compensatory a whole are sufficient to stances, punitive Dil- damages.”). Applying establish that the discrimination Wilson, ratio, lard’s, factors—reprehensibility, acting through Mr. was ma- three case, willful, licious, gross disregard comparability—to we are this arguments. rights. unpersuaded by will dis- store’s subject it was punitives. ample turb decision to award Dillard’s notice punitive ma- damages conduct (2) Damages Amount of licious, willful, gross disregard plaintiffs rights. argues Dillard’s also severity punitive damage award vio Reprehensibility a. right process. lates its constitutional to due “One must fair notice both that receive argues it is authorized subject punish him to certain conduct will prevention activ- engage reasonable loss ment, possible severity that, the pun and the ity during epi- the five-minute *24 Deters, may imposed.” sode, ishment be Hampton was “free to at leave” punitive at 1272 (affirming 202 F.3d dam sug- Br. at 46. any Aplt’s time. Dillard’s age for claims award sexual harassment gests reprehensibility that the of its con- VII). pursued Supreme under Title The is duct further minimized because guideposts Court has outlined three to de shopped at hun- Hampton “had Dillard’s termine whether a defendant has received times, stopped this only dreds of but was Gore, fair v. notice. See BMW N. Am. Finally, purports Id. its once.” Dillard’s of 559, 574-75, 1589, 517 116 U.S. S.Ct. 134 no ox- surveillance tactics involved verbal (1996). “First, 809 im abuse, L.Ed.2d most inappi-opriate physical thus are portant, reprehensibility is the of de punitive damages. [the] Deters, at fendant’s conduct.” 202 F.3d above, jury pre- As discussed the was punitive is ratio 1272. Next coding sented with evidence about the damage compensatory award to dam of close surveillance African-American age id. at 1272. Third is the award. See shoppers. jury agreed have The must of the punitive damage measure award in Hampton with Ms. the store’s surveil- comparable relation to awards miscon pai-ticulai-ly reprehensi- tactics lance are in keep duct. id. also must mind See We ble. goal punitive in damages deterrent conjunction impact with the the size Ratio b. on a award will have defendant with the punitive Dillard’s next contends that
the wealth and size of the defendant as
damages
approximately 20
1 is
ratio of
relevant factors. See id.
impermissibly
and unconstitu
excessive
availability
punitive
tionally disproportionate.
relies
Dillard’s
damages
primarily
1981 is well established.
the BMW Court’s admoni
cases,
Railway
Agency,
damage
v.
Express
regarding
See
tions
economic
Johnson
Inc.,
454, 459-60,
1716,
ap
421
a
10:1
cited
U.S.
95 S.Ct.
where
ratio of
was
(1975) (“[Section]
BMW,
proval.
581,
1117
443,
Corp.,
statutory cap
punitive
U.S.
460- have
Resources
509
a
limits
anee
2711,
L.Ed.2d 366
Title
damages
113 S.Ct.
as does
VII. See U.S.C.
1981a(b)(l).
(1993)).
above,
counters
As
stated
few
“
transactions,
‘the
is hard to detect
claims
injury
cases where
involve retail
monetary
of noneconomic
reach
value
fewer
trial. We thus consider
[and]
”
determine,’
judi-
...
difficult
a
harm
whether
award would “shock the
[is]
conscience,
higher
punitive damages
to com
cial
ratio
and constitute a denial of
(inter-
Deters,
damages
justified.
justice.”
v.
is
Bielicki
Big D F.3d 934 184 Cir.1999) (upholding punitive appeal, Cooper maximum On Ms. seeks reversal of summary damages Housing grant judg- award Fair Act case the district court’s of damage that on her stating punitive “[t]he and ment to Dillard’s 1981 action. (1) receipt coupon case ... na- award this reinforces the She contends that of promise protecting pre- commitment to and from the Dillard’s clerk created tion’s (2) all”); her; or, alternatively, serving rights the civil see also owed to she is a Deters, beneficiary (stating third-party 1273 of the contract be- “[w]e and, persuaded not ratio Ms. and as are between tween Dillard’s $5,000] such, compensatory [damages pu- redemption and is entitled to of the cou- $295,000 adjusted pon. district damages [of nitive She also asserts unconstitutionally improperly credibility ... and VII] under Title is court resolved granted summary issues it disproportionate”). intent when judgment to Dillard’s. Comparable
c. Sanctions for Miscon- duct Standard ofRevieiv sup- inquiry The third further “We the district court’s prong review novo, holding. grant summary judgment ap- 1981 not de ports our Section does 1118 that, Morris, (noting 415 F.3d at 89 as the legal standard same
plying the
pro
with
interference
claim was
Mary-Corwin where
v. St.
Munoz
court below.”
Cir.2000).
relations,
“[w]hile
contractual
spective
Hosp., 221 F.3d
“if the
undoubt
appropriate
is
... was unfortunate
Summary judgment
incident
it does
humiliating,
to inter-
answers
depositions,
disconcerting
pleadings,
edly
file,
statutes”);
together
and admissions
a violation of
rogatories,
constitute
there
affidavits,
any, show that
(granting
if
at 1201
Wesley,
F.Supp.2d
material fact
any
to
issue as
no
genuine
no
where there
summary judgment
to a
entitled
moving party is
at
and that
have
would
plaintiff
“that
evidence
of law.” Fed.
matter
as a
the dealer
a car from
purchase
to
tempted
standard,
56(c).
this
applying
“In
R.Civ.P.
chased her
had not
agents
if the
ship
and draw
record
the factual
Kazmierczak,
we examine
Sterling v.
away”);
light
in a
inferences therefrom
reasonable
1192 (N.D.Ill.1997)
(granting
F.Supp.
nonmoving party.”
most favorable
plain
to dismiss where
motion
defendant’s
Munoz,
1119 upon third-party her the status of a purely benefi- incidental contemplated and not by ciary. disagree. the contract between Ms. Dillard’s, does not entitle her to sue to stipulation “A contract is a enforce the contract.
pour if clearly [for autrui it re others] contracting veals the intent of the Credibility and Intent A parties provide was to to a benefit third Texaco, Inc., party.” v. Wallace 681 F.2d Lastly, Cooper Ms. contends that (5th Cir.1982). 1088, Cooper’s 1090 Ms. district court prematurely disposed of her presence register was fortuitous § 1981 claim and her state law false im- and, above, as noted receipt prisonment claim and credibility made coupon from the sales clerk did not dilute factual determinations that should have However, Ms. 1981 claim. jury. been made As to her an incidental enough benefit is not to con claim, legitimate there is no dispute factual contract; fer rights contractual under the as to whether Cooper attempted there must also be consideration for the purchase an item from Dillard’s. Because (“The contract. See id. benefit to the we have held as a matter of law that Ms. party third must be more than merely Cooper is third-party not a beneficiary of contract; incidental to part it must be the contract between Ms. Hampton and of the condition or consideration for the Dillard’s, her claim as to outstanding cred- contract.”). ibility determinations no raises material facts. “[performance of a con tract person. will often benefit a third But As imprisonment to her false unless person the third is an intended claim, agree we with the district court that ..., beneficiary duty no to him is created.” Mr. Wilson’s statement to Ms. Hampton (Second) Contracts, § Restatement that she needed to calm down or he would cmt. e. An beneficiary per incidental is a Police, call the Overland Park does not by performance son who will be benefitted imprisonment. constitute false promise of a promisee but who neither a Co., Thompson v. General Fin. 205 Kan. nor an beneficiary. intended See Holbrook (1970) (listing P.2d ele Pitt, Cir.1981) v. claim); ments of imprisonment false see that, law, (noting under federal common Co., Wright Montgomery also Ward & agreement “[i]f was not intended to (D.Kan.1993) (dis F.Supp. however, benefit party, third he is cussing imprisonment false under Kansas viewed an beneficiary, ‘incidental’ hav law). Cooper has failed to state a ing legally no cognizable rights under the claim as a matter of law and we affirm the contract”). grant summary district court’s judg Undoubtedly, Cooper, as a third Cooper’s ment as to all of Ms. claims. party, derived some benefit from the con- *27 tract Hampton between Ms. and Dillard’s. III. ANALYSIS OF CASE NO. 98- not, This derivation benefit does howev- 3306 er, automatically render contract a case, contract, companion In a third-party beneficiary Dillard’s as it beyond arguments in reaches the intent of the contract- raises two its effort to over ing parties. Cooper turn simply Ms. an the district court’s determination that beneficiary. Hampton incidental See id. Merely attorney’s be- Ms. was entitled to may benefit, cause expenses she have derived a in fees and the amount of H20 Here, in case
$141,192.50
§
all of the claims
this
pursuant
to 42 U.S.C.
very
similar
stemmed
First,
disputes
Dillard’s
the district court’s
... one
same
of facts.
“There was
set
is
Hampton
“pre-
conclusion
Ms.
and there was substan
bundle of evidence
Second,
vailing party”
Dillard’s
below.
v.
tial
the Plaintiff.” Tidwell
success for
contends
Ms.
received fees
406, 412
Corp.,
Fort
989 F.2d
Howard
law
for unrelated and unsuccessful state
(10th Cir.1993). Any consequent fee reduc
by
§ 1981
that were dismissed
claims
unjust
tion
a difficult and
division
would be
the district court. We review the district
claim-by-claim
expended
of the hours
on a
attorney’s
award
fees
ex-
court’s
435,
Hensley,
103
basis.
461 U.S. at
See
for an
penses
abuse
discretion.
(“Much of
time will be
S.Ct. 1933
counsel’s
1505,
Bangerter,
L. v.
1509
Jane
litigation
as a
generally
devoted
Cir.1995).
(10th
the reasons
forth
For
set
whole, making it difficult
divide the
below, we affirm
award.
the district court’s
claim-by-claim
hours
on a
ba
expended
sis.”).
Tidwell,
a
we
to allow
refused
argument,
As to the first
be
attorney’s
district court to reduce
fees
have
above
cause we
determined
plaintiff
prevailed
Equal Pay
a
who
on an
Hampton prevailed
on her
below
Act
on
claim but failed
her Title VII
rights
upon
claim based
her
under the
Tidwell,
state
F.2d at
law claims. See
coupon,
required.
no
discussion is
further
that,
concluded
instead of fol
412-13. We
to the
As
unrelated
dismissed
and/or
basis,
lowing
claim-by-claim
un
a
success
claims,
contends
in
fees
der
focus
1988 the
should be on
spent
curred and costs
connection
“significance of the overall relief obtained
Hampton’s
imprison
state law false
hours
plaintiff
relation to the
[the]
ment claim and Ms.
dismissed
reasonably expended
litigation.”
on the
claim,
Cooper’s
as well as Ms.
dis
435,
1933;
at
Hensley, 461 U.S.
103 S.Ct.
claims,
not be
missed
should
awarded.
City County
see also Zuchel v.
&
Den
disagree.
Cir.1993)
ver,
F.2d
related,
If claims
failure
are
on some
(“[T]he Supreme
clear
Court has made
full
preclude
recovery
claims should not
when,
here,
two
claims are interre
plaintiff
if
on signifi-
achieves success
plaintiff
lated and the
obtains excellent
cant,
claim.
interrelated
‘Where
law-
claims,
fully
on one of
results
those
claims, plaintiff
suit consists of related
compensatory
usually
fee should
award
be
has
who
won substantial relief should
ed.”). Here,
it
undisputed that
attorney’s
not have his
fee reduced sim-
Hampton “has obtained
results”
excellent
ply because
court
the district
did not
such,
and as
“attorney[s]
should recov
adopt each contention raised.”
fully
Hensley,
er a
compensatory fee.”
Eckerhart,
(quoting Hensley
Id. at 1512
at
per’s and we AFFIRM the dis- They A: getting ready were to exit the attorney’s trict court’s award of fees to go store to out into the mall. Hampton. Ms. Q: Okay. you they Did notice that were speaking awith cosmetic associate or a ANDERSON, Judge, Circuit dissenting: fragrance you consultant ap- when agree majority I opinion with the proached the two ladies? correctly the district court dismissed Ms. No, A: I did not. However, Cooper’s against claims Dillard. Q: you knowingly prevent Did Paula I because believe that no 1981 violation (cid:127) Hampton receiving from cologne free in Hamp- occurred connection with Ms. sample? ton’s employees interaction with Dillard
either, I would reverse the district court’s No, A: I did not. denial of Dillard’s motion for Q: you Did intend to interfere with jury a matter of law and overturn the Paula Hampton obtaining a sample free Hampton. verdict favor of Ms. 5th, of cologne April on 1996? I lightly realize we do not overturn A: No. may only verdicts. do so if “there Q: you Did any prevent have desire to legally is no evidentiary sufficient basis Hampton Paula obtaining a free ... respect with to a claim.” Harolds sample cologne 5th, April 1996? Stores, Stores, Inc., Dep’t Inc. v. Dillard No, A: I did not. (10th Cir.1996). I be- Q: Hampton you lieve Dillard has met that burden in this Did Ms. ever tell respectfully you case. I therefore receiving dissent. interfered with her a free date, sample of cologne April on that I argument assume the sake of 5th, 1996? coupon is a privilege benefit or of Ms. No, A: she did not. Hampton’s relationship contractual Bearing Dillard. in mind that 1981 re- test., App. Dillard 3 at Wilson Vol. quires purposeful discriminatory con- produced absolutely Plaintiffs zero— no— duct, absolutely there is no evidence that testimony evidence to refute Mr. Wilson’s intentionally Mr. Wilson interfered with point nothing on that and there is in this redemption coupon when he showing record that he intended to inter- approached Cooper, her and Ms. based redemption fragrance fere with their upon probable suspect cause to that Ms. coupons. majority correctly And while the Cooper shoplifted, and asked to look determinations credibility notes that are Hampton’s bag at a location near jury’s I province, within the note that the the store exit. court, concluding district Mr. Wilson Indeed, that, there is no probable suspect plaintiffs evidence when had cause to approached Hampton Mr. Wilson shoplifting, specifically plain- stated that Cooper seriously and asked to examine the tiffs “cite no evidence which calls shopping bag, they question credibility.” he even knew that into ... Wilson’s Stores, Inc., redeeming fragrance coupons. Dep’t When v. Dillard (D.Kan.1997). trial, questioned F.Supp. Nothing about the incident at Mr. Cooper’s Wilson testified as follows: in Ms. or Ms. testimo- *29 re- of the record My review motivated. that Mr. remotely suggests Wilson’s ny of such evidence legally no sufficient inten- veals an them indicated conduct towards interac- Mr. Wilson’s racial motivation in from re- plaintiff prevent to either tion origi- if Even Ms. Hampton. tion with All the coupons. fragrance deeming race- plaintiffs nal surveillance only: way one points in this case evidence stop based, claim that Mr. Wilson’s any Ms. with interference that Mr. Wilson’s race-based is of them was questioning fragrance redemption of her Hampton’s the district utterly inconsistent fortuitous, incidental coupon purely amply supported specific finding, court’s only thing to the completely collateral case, that Mr. this by the evidence in i.e., stop and intentionally Mr. Wilson did — stop probable cause had Wilson Cooper Hampton and Ms. Ms. question probable them. The existence question they left the store because briefly before reason wholly sufficient cause was one of to believe probable he had cause stop plaintiffs.1 shoplifted merchandise. them had supported further evidence sur- My Additionally, was no conclusion there stop particulars there is no evidence rounding the fact conduct, plaintiffs’ stopped ques- or Mr. Wilson’s Mr. suggests either Wilson damages arising from race. Hampton’s the basis of plaintiffs or Ms. tioned Wilson, have would that Mr. Wilson her encounter with Mr. is no evidence made There Hamp- any way had Ms. racially derogatory different in remarks or acted any been fragrance sample. already any way received her which ton conducted or himself anything at all in preventing plaintiffs no evidence that suggested There is that he was fragrance coupons have been different had redeeming this case would their from before, intercepted plaintiffs they Mr. African-American. Wilson because that he had ever said their fra- during they or after redeemed There is no evidence words, all the coupons. suggesting In other he was racist grance anything or done wrongful differently it was the evidence indicates that or treated African-Americans Indeed, not the denial of shoplifting, accusation of there is no from white customers. fragrance sample, particular which caused this her free that he evidence handled injuries. But alleged Hampton’s shoplifting any different- investigation Ms. into remedy for the provide investigation does not ly any shoplifting from other shoplifting, any absent wrongful any patrons, accusation store involving other a contract benefit. Hampton interference with background. some racial herself shopped frequently that she had testified Further, con- with the interference Dillard, purchases had made numerous (the fragrance coupon this tract benefit incident, and there was there without ab- case) The ma- must be motivated. racially any Dillard in solutely no evidence that discriminatory jority acknowledges her, discouraged way had ever wished surveillance, is not it- reprehensible, while her, discourage patronizing its Thus, § 1981. self actionable under store. case, action this succeed on her sum, 1981 claim prove must that Mr. Wil- the free fra- redemption hangs on the interference with her thread son’s following coupon given to her racially grance fragrance coupon was itself differently Indeed, any suspect shoplifting ble cause to evidence that Dillard there is no Wilson, security personnel, they treated or Mr. than treated customers. black they proba whom white customers about *30 purchase was a benefit of her contractual Dillard,
relationship and that Mr. Wil- son, intentionally discriminatory and with
animus, redemption with her interfered coupon. Because the evidence this clearly any
case demonstrates that inter- Mr. ference Wilson with coupon redemption completely unin- tentional, accidental, way no based race,
upon only from the but resulted fortuity fragrance counter was exit, I
near a store would find that there is legally no sufficient supporting evidence Hampton. jury’s verdict favor of Ms. KINGSFORD,
Thomas E. Plaintiff-Appellee, SALT LAKE CITY SCHOOL
DISTRICT, Defendant, Shackett, Defendant- Charles J.
Appellant. No. 99-4204. Appeals, United States Court of Tenth Circuit. April