The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER
SUMMARY JUDGMENT (Doc. 25) RE: PLAINTIFFS' MOTION FOR
Before the Court for decision is Plaintiffs Jotasha and Corey Taylor's motion for summary judgment, filed on November 12, 2010. Plaintiffs, proceeding pro se and in forma pauperis, previously prematurely moved for summary judgment on July 6, 2010, two weeks after they filed this federal litigation. That motion was denied on September 9, 2010.
Defendant Wal-Mart Inc. ("Defendant" or "Wal-Mart") opposed the present motion on January 31, 2011.
FACTUAL AND PROCEDURAL BACKGROUND.
This case includes allegations of racial discrimination and commercial fraud related to Plaintiffs' purchase of four automobile tires at a Wal-Mart store in Odessa, Texas. According to Plaintiffs, the tires were defective and/or unsuitable for their cross-country drive to California; that various Wal-Mart employees - in Texas, Louisiana and California - purposefully and with racial animus installed defective tires and subsequently refused to reinstall the appropriately sized tires Plaintiffs intended to purchase, resulting in "substantial" damage and emotional distress. Plaintiffs further allege that they were subjected to violence and/or threats of violence at a Wal-Mart store in Fresno, California.
Although the parties dispute many of the relevant facts concerning this motion, this is a general summary:*fn1
Plaintiffs allege that on March 2, 2010 they purchased four tires at a Wal-Mart in Odessa, Texas. According to Plaintiffs, a Wal-Mart employee claimed that the tires were compatible for Plaintiffs' 2002 Pontiac Grand Prix. Plaintiffs claim that they paid for the tires, along with a disposal fee, but Defendant intentionally installed cheaper tires, which were "dangerously" incompatible for Plaintiffs' sedan. Plaintiffs allege that Wal- Mart also attempted to extort extra money by charging $10.00 per tire for balancing the tires.
Plaintiffs further allege that Defendant was aware that Plaintiff Jotasha Taylor was in late term pregnancy and Plaintiffs were traveling interstate; a Wal-Mart employee attempted to conceal store's license number and incorrectly told Plaintiffs that they were given a free tire balance; and the same employee told Plaintiffs to "have a bumpy ride."
Defendant disputes Plaintiffs' version of events. According to the declaration of Leonardo Vargas, a Wal-Mart tire technician working on March 2, 2010, Plaintiffs arrived at the Wal-Mart store shortly before closing and requested the most inexpensive tires for their drive to California. Plaintiffs were given the appropriately sized tires - P225/60R16 -, however, Mr. Vargas inadvertently scanned the wrong serial number into the computer system, which resulted in Plaintiffs receiving Douglas tires instead of the Goodyear Viva 2 tires they were recommended to purchase. Plaintiffs' service order reflected this error. Mr. Vargas states that Plaintiffs declined the tire balancing ($10 per tire), but the service was provided free of charge "in light of plaintiffs' upcoming lengthy trip to California  and their limited funds." Mr. Vargas did not mention the free tire balancing on Plaintiffs' service order.
Mr. Vargas contends that he did not intentionally install Douglas tires nor did he intentionally give Plaintiffs S-rated tires when H-rated tires were recommended for their vehicle.*fn2
According to Mr. Vargas, he did not attempt to conceal the store number or consider Plaintiffs' race during their interactions.
According to the Complaint, Plaintiffs drove from Odessa, Texas to Shreveport, Louisiana on the night of March 2, 2010. Plaintiffs arrived at Wal-Mart #0448 in Shreveport, Louisiana on March 3, 2010. According to Plaintiffs, a Wal-Mart tire technician in Shreveport inspected the car and said it "was obvious" that a free balancing was not performed and that it was not a store policy to charge for tire balancing after the purchase of new tires.
Defendant responds that Plaintiffs arrived in Shreveport on March 3, 2010 and spoke with Wal-Mart tire technician James Johnson concerning a tire malfunction. Mr. Johnson reviewed the service order and discovered Mr. Vargas' original invoicing error, i.e., that Plaintiffs purchased Goodyear Viva 2 tires but in fact were sold Douglas tires. Mr. Johnson also noted that the service order did not indicate that Plaintiffs' tires had been balanced. Mr. Johnson conveyed this information to Plaintiffs, who then requested that Viva tires be installed on their automobile. Mr. Johnson informed Plaintiffs that there were no Viva tires in stock or available in the Shreveport area.
As no Viva tires were available in the Shreveport area, Mr. Johnson and the shop manager Francine Scott balanced the tires and prepared an updated service order. The Wal-Mart employees represent that since the tires were appropriately sized; there was no risk of malfunction or "blowout." Mr. Johnson and Ms. Scott claim that they told Plaintiffs to present their service order at any other Wal-Mart to obtain the Viva tires they ordered the previous day.
Mr. Johnson and Ms. Scott represent that they did not consider Plaintiffs' race during their interactions and did not did not treat Plaintiffs different from customers of other races.
According to the complaint, Plaintiffs departed Shreveport for Fresno, California on March 3, 2010. During the drive to Fresno Plaintiffs allegedly experienced a "life threatening" blowout of the driver side tire. Plaintiffs allege that they had no choice but to finish the trip on three defective tires and one "donut" tire, a drive of over 1,000 miles.
Plaintiffs arrived at Wal-Mart Kings Canyon, Fresno, on an undisclosed date, and apprised a Wal-Mart employee of their tire problems. The employee allegedly inspected the tires and stated "Oh my God! These are definitely the wrong tires!" and "[t]hey definitely manipulated you guys." The employee then inquired with nearby Wal-Mart stores to see if they had the correct brand (Viva tires) in stock. Plaintiffs were allegedly told that it was not against store policy to ask another tire store, but it needed supervisor approval.
Plaintiffs allege that they waited two hours for Susan, a Wal--Mart surpervisor, to arrive. After reading the "tire contract," Plaintiffs allege that Susan immediately lied and said Wal-Mart "was not liable for new tires." According to Plaintiffs, Susan then "violently ripped the receipt" from Plaintiffs' hands. Ms. Taylor allegedly pleaded for assistance to put the receipt back together. Plaintiffs reiterated that they were entitled to the Viva tires they paid for, at which time Susan allegedly verbally attacked them and refused to conduct business with them.
Plaintiffs further allege that when they asked to speak with a "higher up manager," Susan lied and said she had the most authority and no other manager would be there until the next day. Plaintiffs allege that they called the Odessa Wal-Mart, but the manager there reportedly said it was out of his hands and they should speak to the Fresno Wal-Mart store manager, Mr. Robert Craigo. Plaintiffs claim that after 4 hours, Mr. Craigo came out of his office and tried to deceive them into thinking that Defendant had "zero liability." Plaintiffs allege that Mr. Craigo inspected the tires and then phoned the clerk that did the work, who allegedly stated, "It wasn't a mix-up, it was intentional." Mr. Craigo allegedly responded "Next time cover yourself and make them sign a disclaimer." He then told Plaintiffs that he could get the right tire, but just didn't want to. He offered to take the tires back for a full refund, leaving Plaintiffs with a tireless car. Mr. Craigo allegedly invited Plaintiffs to do the work themselves and refused to work if he or his white staff members had to do the work for Plaintiffs.
Plaintiffs also allege that Mr. Craigo intimidated them by threatening forceful removal of their car. After Plaintiffs removed their vehicle, they asked an employee to provide the last name of the store manager. The employee allegedly responded, "I don't know. And if I did I wouldn't tell your black ass." Plaintiffs allege that they again approached Mr. Craigo, asking for a higher official to help them get their tires. Mr. Craigo reportedly gave them a telephone number to a leasing company. Plaintiffs allege that they were forced to leave Walmart with the same tires.
Defendant disputes Plaintiffs' version of events. According to Defendant, Plaintiffs arrived at the Fresno Wal-Mart claiming that one of their tires blew out during a cross-country drive. Plaintiffs produced the service order, however, no spare tire was observed on Plaintiffs' automobile. Wal-Mart employee Lauren Holguin reviewed the transaction history and discovered that the recommended tires for Plaintiffs' 2002 Grand Prix were the "H" Series; however, Plaintiffs actually requested the Viva tires, which are "S" series. The difference between the "H" and "S" rated tires is speed. Tires with a speed rating of "H" are recommended for driving at speeds of up to 130 mph. Tires with a speed rating of "S" are recommended for driving at speeds of up to 112 mph. Defendants argue that "as long as plaintiffs' speed stayed below 112 miles per hour, plaintiffs should not have had any problems with the Douglas tires ["S" speed rating"] they received."
Ms. Holguin explained the speed rating distinction to Plaintiffs and called other area stores for appropriately-sized "H" rated tires. No stores had the tires in stock and Plaintiffs were given the option of ordering the tires, arriving in one week. Plaintiffs asked whether they could purchase tires from another store. As Ms. Holguin was not authorized to approve such a transaction, she referred the matter to Assistant Manager Susan Vargas. Ms. Vargas states that as soon as she arrived on the scene, Plaintiff Jotasha Taylor "become confrontational." Eventually, Ms. Vargas called Store Manager Robert Craigo to assist.
According to Defendants, Robert Craigo contacted the Odessa Wal-Mart and spoke with an associate in the tire department familiar with Plaintiffs. After speaking with the Odessa associate, Mr. Craigo explained to Plaintiffs the tire ratings and that "H" rated tires could be installed in one week. Plaintiffs responded that they wanted to purchase tires from a different tire retailer. Mr. Craigo explained that they could do so, but they would have to eventually return the Douglas tires to receive a full refund. Plaintiffs rejected this option and left the store without having ordered the "H" rated tires.
At an unknown point during the conversation, Plaintiff Jotasha Taylor called Jose Salinas, the Assistant Manager at the Odessa Wal-Mart, to request a full refund. Mr. Salinas referred the matter to the Wal-Mart Regional Manager in charge of the Fresno area, Mickey Anderson. It is unclear Plaintiffs contacted Mr. Anderson concerning their tire purchase.
Ms. Holguin and Mr. Vargas state that they did not tear Plaintiffs' receipt; did not commit any acts of violence or threaten any acts of violence; did not consider Plaintiffs' race during their interactions; and did not did ...