                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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.
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Unpublished opinions are not binding precedent in this circuit.




                                2
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



      1The 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.



                                          3
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).

                                       4
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.



                                        5
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

                                            6
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.



                                             7
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



                                               8
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



                                                9
