United States Court of Appeals,
Fifth Circuit.
No. 93-5103.
Charles Lee HALBERT, Plaintiff-Appellant,
v.
CITY OF SHERMAN, TEXAS, et al., Defendants.
BPS, Guard Services, Inc., d/b/a Burns International Security
Services, et al., Defendants-Appellees.
Sept. 30, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before KING, JOLLY and STEWART, Circuit Judges.
STEWART, Circuit Judge:
Charles L. Halbert appeals two district court judgments which
dismissed his claims against BPS Guard Services, Inc. ("BPS") and
a BPS security guard and which denied him leave to amend his
original complaint to add two new claims. For the following
reasons, we affirm the judgments of the district court.
I. BACKGROUND
On October 1, 1991, Charles Lee Halbert drove his semitrailer
to a facility owned by Johnson & Johnson Medical, Inc. ("JJMI") in
Sherman, Texas. He went there to pick up a loaded trailer. Roger
Wade, who was employed by BPS Guard Services, Inc. ("BPS"), was
working as a security guard at the facility. Upon Halbert's
arrival, Wade contends that Halbert smelled of marijuana and could
not spell his own name. Wade called the Sherman Police Department
and informed them that Halbert was "higher than a kite." The
1
police asked Wade to restrain Halbert. Although he agreed to try
to restrain Halbert, in actuality, he made no such attempt.
Two police officers eventually arrived at the scene and gave
Halbert three field sobriety tests. After concluding that Halbert
had failed the tests, the police arrested him. He was released
from police custody after only a few hours. Halbert immediately
went to a local hospital and submitted to a set of comprehensive
drug and alcohol tests. The tests did not reveal the presence of
any alcohol or illicit drugs in his system.
On December 11, 1991, Halbert filed suit against Wade, JJMI,
BPS, the City of Sherman, and the two police officers who arrested
him. He asserted claims of false imprisonment, false arrest, and
intentional and negligent infliction of emotional distress against
BPS, Wade, and JJMI. He asserted the same state law claims and a
§ 1983 claim against the police officers and the City of Sherman.
The City of Sherman was eventually dismissed from the case.
On February 6, 1992, Halbert attempted to amend his complaint
to add libel and slander claims against Wade and BPS. This motion
was denied without reasons. On January 13, 1992, JJMI filed a
motion for judgment, on the pleadings, which was later converted to
a motion for summary judgment. This motion was eventually granted.
On July 29, 1992, BPS and Wade filed a motion for summary
judgment which was granted. The trial court found that Halbert had
"failed to establish a fact issue whether Wade detained or directed
the arrest of Halbert or whether Wade knowingly provided false
information to the police."
2
On January 18, 1993, trial was held and the jury returned a
verdict in favor of Halbert against one of the two police officers.
Halbert has appealed the judgment dismissing his claim of false
arrest and intentional infliction of emotional distress against
Wade and BPS. He also appeals the denial of his motion for leave
to amend his complaint.
II. REVIEW OF THE SUMMARY JUDGMENT MOTIONS
A. Standard of Review
This Court reviews a grant of summary judgment de novo.
Abbott v. Equity Group, Inc., 2 F.3d 613, 618 (5th Cir.1993), cert.
denied, --- U.S. ----, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994).
Summary judgment is proper if the moving party establishes that
there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party
opposing a motion for summary judgment must set forth specific
facts showing the existence of a genuine issue for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986). On appeal from summary judgment, this Court
examines the evidence in the light most favorable to the non-moving
party. Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir.1992).
B. False Imprisonment Claim
Halbert contends that the district court erred in granting
BPS's motion for summary judgment on the false imprisonment claim.
"Under Texas law, a private citizen does not incur liability simply
because he mistakenly informs the police that the suspect has
3
committed a crime whenever the suspect is not thereafter
successfully prosecuted." Armstead v. Escobedo, 488 F.2d 509, 511
(5th Cir.1974). "Rather, the citizen must actually direct the
police to make the arrest." Id.
In Armstead v. Escobedo, a bus driver had a dispute with a
female passenger over the fare. As she left the bus, she allegedly
threatened the bus driver with a knife and threw a brick through
the bus window. One week later, the same bus driver picked up a
female passenger whom he believed to be his assailant. After
questioning the passenger, he flagged down two passing police
officers and told them that the female passenger was his assailant.
The police officers decided to arrest the woman. She was later
released after passing a lie detector test. She then sued the bus
driver for false arrest. This Court held that the bus driver could
not be held liable for false arrest because he had not directed the
police to arrest the woman. 488 F.2d at 511.
In this case, Halbert produced no summary judgment evidence
that Wade directed his arrest. Wade did inform the police that
Halbert was intoxicated and he informed them of Halbert's location
once they arrived; however, the police officers did not rely on
this information in determining whether to arrest Halbert. They
conducted their own sobriety tests and then decided to arrest him.
Consequently, as the bus driver's conduct in Armstead did not give
rise to liability for false arrest, Wade's conduct does not give
rise to liability for false arrest. Thus, the district court
correctly dismissed the false arrest claims.
4
Halbert relies heavily upon Leon's Shoe Stores v. Hornsby, 306
S.W.2d 402 (Tex.Civ.Ct.App.1957), for support of his contention
that Wade's actions warrant a finding of false arrest. In Leon's
Shoe Stores, the credit manager of a shoe store called the police
to report that a customer was trying to cash a forged check. The
credit manager had known the customer for several years and knew
that the check was actually hers. The police arrested the
customer. The court held that the store was liable for false
imprisonment because the store credit manager knew that the
customer had not forged the checks. Id. at 410.
This case is distinguishable. In Leon's Shoe Store, the store
manager's false statement had directed the police to arrest the
customer; in this case, it was the police officer's evaluation of
Halbert's field sobriety tests that was responsible for his arrest.
Thus, we find Halbert's argument unpersuasive.
C. Intentional Infliction of Emotional Distress Claim
Halbert contends that the district court erred in dismissing
his claim for intentional infliction of emotional distress. Under
Texas law, the elements of this tort are: (1) the defendant acted
intentionally or recklessly; (2) the conduct was "extreme and
outrageous"; (3) the defendant's actions caused the plaintiff's
emotional distress; and (4) the plaintiff's emotional distress was
severe. Gillum v. City of Kerrville, 3 F.3d 117, 122 (5th
Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 881, 127 L.Ed.2d
76 (1994). In order for conduct to be extreme and outrageous, it
must be "beyond the bounds of decency," "atrocious," and "utterly
5
intolerable in a civilized community." Diamond Shamrock Refining
& Marketing Co. v. Mendez, 844 S.W.2d 198 (Tex.1992).
We find that merely calling the police and informing them
that someone is intoxicated or using drugs is not sufficiently
outrageous conduct to warrant the recovery of damages for the
intentional infliction of emotional distress even if those
statements are false. In Diamond Shamrock Refining & Marketing
Co., the defendant had been sued for intentional infliction of
emotional distress for falsely publicizing that the plaintiff had
been fired for stealing company property. The Supreme Court of
Texas—in an opinion that was divided on every issue except this
one—held that there was no evidence that the employer's conduct met
this standard of outrageous conduct. Id. at 202. The conduct of
Wade, in the instant case, is comparable to the actions of the
employer in Diamond Shamrock. Similarly, in this case, Wade's
conduct does not support a recovery for intentional infliction of
emotional distress.
III. DENIAL OF LEAVE TO AMEND
A. Standard of Review
This Court reviews a district court's denial of leave to
amend a complaint for abuse of discretion. Avatar Exploration Inc.
v. Chevron USA, Inc., 933 F.2d 314, 320 (5th Cir.1991). The
Federal Rules of Civil Procedure provide that, after an answer has
been filed, "a party may amend the party's pleading only by leave
of court" and that "leave to amend shall be freely given when
justice so requires." Fed.R.Civ.P. 15(a). Amendments should be
6
liberally allowed. Duff-Smith v. Collins, 973 F.2d 1175, 1180 (5th
Cir.1992), cert denied, --- U.S. ----, 113 S.Ct. 1958, 123 L.Ed.2d
661 (1992). However, leave to amend is by no means automatic.
Avatar Exploration Inc., 933 F.2d at 320. Instead, the decision to
grant or deny leave is one left to the sound discretion of the
district court. Id.
B. Analysis
Halbert filed his motion to amend his pleadings on February
6, 1992, to add claims of libel and slander. It was filed well
within the June 15, 1992 scheduling order deadline for the
amendment of pleadings. Thus, on its face, the motion was timely
and evidenced no prejudice to the other parties or potential to
delay the proceeding. The district court did not provide any
explanation for denying Halbert's motion to amend his complaint.
The Supreme Court has held that the refusal to grant leave to amend
"without any justifying reasons is not an exercise of discretion;
it is merely abuse of that discretion." Foman v. Davis, 371 U.S.
178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Therefore, in
the absence of any "justifying reasons", it was error for the
district court to deny the facially valid motion to amend.
Normally, we would remand this case to the district court to
give the plaintiff the opportunity to amend his pleading
particularly in those cases where the new claims warrant
development of facts to uncover the merits of the claims or where
the claims allege facts which are disputed. See Conti v. Sanko
Steamship Co., 912 F.2d 816, 818-819 (5th Cir.1990); Sorosky v.
7
Burroughs Corp., 826 F.2d 794, 805 (9th Cir.1987). However, in
this case, the record has been developed extensively and all other
claims have been dismissed or decided at trial. Under these
circumstances, we think that a remand to the district court simply
to consider the merits of these two claims would be a waste of
judicial resources because both Halbert's libel and slander claims
fail as a matter of law. Brown v. Texas A & M University, 804 F.2d
327, 334 (5th Cir.1986) (holding that a remand on a claim that
could not be supported by the record would be a waste of judicial
resources).1
Halbert's libel and slander claims are based on the phone
call Wade made to the police and on a report about the incident
that Wade filed with his supervisor. Texas law defines libel as "a
written or printed defamation which tends to injure the reputation
of a living person and thus expose him to public hatred, contempt,
ridicule, or financial injury, or impeach his honesty, integrity,
virtue or reputation." Sellards v. Express-News Corp., 702 S.W.2d
677, 679 (Tex.Ct.App.1985). Slander is a defamatory statement
orally communicated or published to a third person without legal
excuse. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 91
(Tex.Ct.App.1992).
1
In Brown, we held that if we search "every nook and cranny
of the record, like a hungry beggar searching a pantry for the
last morsel of food and have determined that "even the most
sympathetic reading of plaintiffs' pleadings uncovers no theory
and no facts that would subject the present defendants to
liability' " then remand is unnecessary. Brown v. Texas A & M
University, 804 F.2d 327, 334 (5th Cir.1986) (quoting Jacques v.
Procunier, 801 F.2d 789, 791 (5th Cir.1986)).
8
A qualified privilege protects statements made in good faith
on a subject matter in which the author has an interest or with
reference to which he has a duty to perform to another person
having a corresponding interest or duty. Houston v. Grocers Supply
Co. 625 S.W.2d 798, 800 (Tex.Ct.App.1981). In order to overcome
the defense of privilege and impose liability for libel and
slander, Halbert must prove that Wade acted with malice. Id. at
801. The falsity of a statement is insufficient to prove malice.
Stearns v. McManis, 543 S.W.2d 659, 664 (Tex.Civ.Ct.App.1976).
Under Texas law, both of the statements made by Wade would be
covered by a privilege. See Mayfield v. Gleichert, 484 S.W.2d 619
(Tex.Civ.Ct.App.1972) (holding that a published hospital report was
privileged because the reports were asked to be made and read only
by the requesting party); Zarate v. Cortinas, 553 S.W.2d 652
(Tex.Civ.Ct.App.1977) (holding that communications to the police
are conditionally privileged). In order to overcome the defense of
privilege and impose liability for libel and slander, Halbert must
thus prove that Wade acted with malice. See Houston, 625 S.W.2d at
801.
After scouring the record, we have found no hint of evidence
that attests to Wade's motives. Moreover, Halbert has not alleged
any motive for an intentional false report by Wade to the police
officers. At best, Halbert's own testimony and the medical
evidence would prove that Wade's statements were false. However,
proof of the falsity of a statement alone is insufficient to prove
malice. See Stearns, 543 S.W.2d at 664. Thus, as a matter of law,
9
Wade would not be able to prevail on the libel and slander claims
even if his amendment were now allowed.
IV. CONCLUSION
Because insufficient evidence existed to support the
contention that Wade's conduct is actionable, the summary judgment
dismissing the false arrest claim and intentional infliction of
emotional distress claim is affirmed. The district court erred in
not furnishing any reason for its denial of leave for Halbert to
amend his complaint by adding two new claims. However, Halbert
could not prevail on these claims as a matter of law. We thus
choose not to remand this case for any further proceedings because
it would be a waste of judicial resources and the resources of the
parties.
The judgment of the district court is affirmed.
AFFIRMED.
10