Stephanie Farrell; William Farrell v. Macy’s Retail Holdings, Inc.; Ipc International Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1726
STEPHANIE FARRELL; WILLIAM FARRELL,
Plaintiffs - Appellants,
v.
MACY’S RETAIL HOLDINGS, INC.; IPC INTERNATIONAL CORPORATION,
Defendants - Appellees,
and
MACY’S; WHITE MARSH MALL, LLC; GENERAL GROWTH PROPERTIES;
BARRY MARKOWITZ, in his capacity as employee for Macy’s
Retail Holdings, Inc.; CLARENCE PARKS, in their capacities
as employees for IPC International Corporation; JOHN DOE, in
their capacities as employees for IPC International
Corporation,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-03591-JFM)
Submitted: March 31, 2016 Decided: April 14, 2016
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

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George L. Garrow, Jr., GARROW LAW FIRM, PLLC, Washington, D.C.,
for Appellants. Patricia M. Thornton, Edward C. Bacon, BACON
THORNTON & PALMER LLP, Greenbelt, Maryland; Sonia Cho, GORMAN &
WILLIAMS, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Stephanie and William Farrell appeal the district court’s
order granting summary judgment on their state-law negligence
and false imprisonment claims to Macy’s Retail Holdings, Inc.,
and IPC International Corporation (collectively, “Defendants”),
and dismissing their remaining state-law claims for lack of
subject matter jurisdiction. We affirm in part, vacate in part,
and remand.
I.
The Farrells first challenge the district court’s grant of
summary judgment on their negligence and false imprisonment
claims.1 We review de novo a district court’s order granting
summary judgment. Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district court ‘shall
grant summary judgment if 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.’” Id. at 568 (quoting
Fed. R. Civ. P. 56(a)). In determining whether a genuine issue
of material fact exists, “we view the facts and all justifiable
1 The district court granted summary judgment on these
claims based on its determination that Defendants had probable
cause to detain William Farrell. Although they raised several
additional potential bases for the negligence claims, the
Farrells argue on appeal only that the district court’s probable
cause determination was erroneous.

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inferences arising therefrom in the light most favorable to
. . . the nonmoving party.” Id. at 565 n.1 (internal quotation
marks omitted).
The Farrells argue that the Defendants’ employees lacked
probable cause to detain them. Under Maryland law, “[f]or a
plaintiff to succeed on a false arrest or false imprisonment
claim, the plaintiff must establish that the defendant deprived
the plaintiff of his or her liberty without consent and without
legal justification.” State v. Roshchin, 130 A.3d 453, 459 (Md.
2016) (internal quotation marks omitted). However, a merchant
cannot be held liable for false imprisonment if it “had, at the
time of the detention . . . , probable cause to believe that the
person committed the crime of ‘theft,’ as prohibited by [Md.
Code Ann., Crim. Law § 7-104 (LexisNexis 2012)].” Md. Code Ann,
Cts. & Jud. Proc. § 5-402(a) (LexisNexis 2013). “[Probable
cause] is defined in terms of facts and circumstances sufficient
to warrant a prudent person in believing that the suspect had
committed or was committing an offense.” DiPino v. Davis, 729
A.2d 354, 361 (Md. 1999) (alterations and internal quotation
marks omitted). “[P]robable cause is a practical, nontechnical
concept based on probabilities and common sense,” United States
v. Williams, 10 F.3d 1070, 1074 (4th Cir. 1993), requiring “more
than bare suspicion” but less than proof necessary to justify a
conviction, Brinegar v. United States, 338 U.S. 160, 175 (1949).

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All of the circumstances known to the officer are considered
when determining whether there was probable cause. DiPino, 729
A.2d at 361.
Maryland defines theft as “wilfully and knowingly;
obtaining unauthorized control over the property or services of
another; by deception or otherwise; with intent to deprive the
owner of his property; by using, concealing, or abandoning it in
such a manner that it probably will not be returned to the
owner.” Lee v. State, 474 A.2d 537, 540-41 (Md. Ct. Spec. App.
1984); see Md. Code Ann., Crim. Law § 7-104(a). In Lee, the
court noted that “several factors should be assessed to
determine whether the accused [in a shoplifting case] intended
to deprive the owner of property,” including “concealment of
[the] goods[,] . . . . [o]ther furtive or unusual behavior[,]
. . . . [t]he customer’s proximity to the store’s exits[,] . . .
and possession by the customer of a shoplifting device with
which to conceal merchandise.”2 474 A.2d at 542-43.
We conclude that Defendants’ employees had probable cause
to detain the Farrells at the time of the detention. Macy’s
asset-protection manager observed William Farrell walk around
2 Although Lee addressed these factors in determining
whether sufficient evidence supported a conviction for theft,
its discussion also is relevant to whether probable cause
existed to believe that a person is committing theft.

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the store wearing a jacket that he had not yet purchased. After
removing the jacket, William Farrell selected several items from
sales racks, removed the items from their hangers, and placed
the items into a bag. Moreover, he appeared to move away from
where he selected the jacket before placing it into the bag,
leaving its hanger on a different rack. After the Farells began
shopping together, the couple selected a robe for William
Farrell, and he again removed it from the hanger and placed it
in the bag. The Farrells then walked within 5 to 10 feet of the
exit to the mall at which two mall security officers, one of
whom was wearing his security uniform, were sitting, before
turning back into the store.
The Farrells argue that the district court did not view the
evidence in the proper light because it failed to consider their
deposition testimony that they intended to purchase the items at
the sales counter near where they had entered the store and,
therefore, that they had not passed all points of sale prior to
their apprehension. However, “[w]hether probable cause exists
depends upon the reasonable conclusion to be drawn from the
facts known to the arresting officer at the time of the arrest.”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The Farrells
have not argued or offered any evidence demonstrating that, at
the time he detained them, the asset-protection manager knew
they intended to pay for the items William Farrell had placed

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into the bag he was carrying. Moreover, the court’s finding
that the Farrells had passed all points of sale is supported by
the store’s video surveillance; the couple is seen walking
toward the exit to the mall and, as Stephanie Farrell testified
at her deposition, coming within approximately 5 to 10 feet of
the exit while looking at a table displaying merchandise for
sale. We therefore affirm the district court’s grant of summary
judgment on these claims.
II.
The Farrells next contend that the district court erred
when it dismissed their remaining state-law claims for assault
and battery based on a lack of jurisdiction. Defendants respond
that the district court was required to dismiss these claims
once it concluded that it was a legal certainty that the
Farrells could not recover $75,000 on these claims.3
We review de novo a district court’s dismissal for lack of
subject matter jurisdiction, Johnson v. Am. Towers, LLC, 781
F.3d 693, 701 (4th Cir. 2015), but review for abuse of
discretion a court’s decision not to exercise supplemental
jurisdiction over state-law claims, ESAB Grp. v. Zurich Ins.
PLC, 685 F.3d 376, 393 (4th Cir. 2012). An abuse of discretion
3 The Farrells have not argued that they sought sufficient
damages based on only these remaining claims to meet the
jurisdictional threshold.

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occurs when the district court’s “decision is guided by
erroneous legal principles or rests upon a clearly erroneous
factual finding.” United States v. Garcia, 752 F.3d 382, 390
(4th Cir. 2014) (internal quotation marks omitted). A district
court’s failure to recognize that it had discretion is an abuse
of discretion. Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 366
(4th Cir. 2012).
“In most cases, the ‘sum claimed by the plaintiff controls’
the amount in controversy determination.” JTH Tax, Inc. v.
Frashier, 624 F.3d 635, 638 (4th Cir. 2010) (quoting St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)).
However, “if some event subsequent to the complaint reduces the
amount in controversy, . . . the court must then decide in its
discretion whether to retain jurisdiction over the remainder of
the case.” Shanaghan v. Cahill, 58 F.3d 106, 112 (4th Cir.
1995). In those circumstances, the “court[] should be guided by
the same kind of factors that inform decisions in the
supplemental jurisdiction context,” including: (1) the
“convenience and fairness to both parties”; (2) “the interests
of judicial economy”; (3) “whether the amount claimed in the
complaint was made in good faith, or whether plaintiff was
consciously relying on flimsy grounds to get into federal
court”; (4) whether “a plaintiff might suffer serious prejudice

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from the dismissal of [the] action”; and (5) “the amount of time
and energy that has already been expended.” Id.
Like the district court in Shanaghan, the district court
here concluded that it lacked jurisdiction because it found that
the Farrells could not recover $75,000 on the state law assault
and battery claims. See id. at 108-09. The court’s order in
this case is silent as to whether the court considered
exercising supplemental jurisdiction over these claims. Because
it is not clear that the district court recognized it had
discretion to exercise supplemental jurisdiction, we vacate the
district court’s dismissal of these claims and remand with
instructions to consider whether to exercise supplemental
jurisdiction over these claims. See id. at 108, 113.
III.
In sum, we affirm in part, vacate in part, and remand with
instructions to determine whether the court, in its discretion,
should maintain jurisdiction over the Farrells’ assault and
battery claims. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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