Opinion
20-CV-6835 (GBD) (BCM)
03-25-2022
AASIR AZZARMI, Plaintiff, v. KEY FOOD STORES CO-OPERATIVE INC., et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. GEORGE B. DANIELS
BARBARA MOSES, United States Magistrate Judge.
In this diversity action, plaintiff Aasir Azzarmi, proceeding pro se, alleges that an employee at a Key Food grocery store located at 55 Fulton Street in Manhattan (the Store) defamed him by falsely accusing him of being a thief; that the incident took place in front of other customers and employees, some of whom discussed it among themselves (and with plaintiff) the next day; and that six months later he was denied admission to the Store. Now before me for report and recommendation are defendants' motions (Dkt. Nos. 39 and 42), made pursuant to Fed.R.Civ.P. 12(b)(5) and (6), to dismiss plaintiff's Amended Verified Complaint for Damages (Am. Compl.) (Dkt. No. 34) for insufficient service of process (as to one individual defendant) and for failure to state a claim upon which relief can be granted (as to all defendants). For the reasons that follow, I recommend that the motions be granted as to three of the five defendants named by plaintiff.
I.BACKGROUND
A. The Complaint
Plaintiff filed this action on August 1, 2020, naming as defendants Key Food Stores CoOperative, Inc. (Key Food) and Does 1-10. According to the Verified Complaint for Damages (Compl.) (Dkt. No. 2), the "original defamer," known to plaintiff only as "Angel," was a "Store Manager" who falsely accused plaintiff of being a thief in front of customers and other employees on October 20, 2019, and then "republished" his false accusations to, among others, a manager known to plaintiff as "Charmaine" and another manager known to plaintiff as "Kim." Compl. ¶¶ 3, 6A, 6B. Angel later admitted that he had confused plaintiff with someone else. Id. ¶ 19. Plaintiff sent a complaint email to Key Food, through its website, but the company "never responded." Id. ¶¶ 28-29. Thereafter, "[a]round April/May 2020," plaintiff was denied admission to the Store by another (unnamed) employee, who told plaintiff that he was "on our list of customers who steal" and was "banned from this store." Id. ¶ 22. Alleging that Angel and the other managers were agents of Key Food (which he apparently assumed to be the owner of the Store), plaintiff asserted a single claim of defamation per se against "ALL Defendants." Id. ¶¶ 32-45. Nothing in the Complaint suggested that any employee outside of the Store republished the allegedly defamatory statements.
After this action was referred to me (Dkt. No. 8) and Key Food answered (Dkt. No. 15), I permitted early written discovery designed to identify the Doe defendants, see Initial Case Mgmt. Order dated Feb. 25, 2021 (Dkt. No. 17), ¶ 2, and gave plaintiff a deadline of June 1, 2021, to amend his pleading. See Case Mgmt. Order dated April 22, 2021 (Dkt. No. 20), ¶ 1.
Key Food's discovery responses revealed that "Angel" was Angel Parma; "Charmaine" was Shamin Chaitram, a cashier and floor manager at the Store; and "Kim" was Jin Kim, the general manager of the Store. (Dkt. No. 12; Dkt. No. 21 at ECF pages 36, 40, 44, 64; Dkt. No. 24 at ECF page 31.) Additionally, in its interrogatory responses, Key Food stated that the Store is owned and operated by 55 Fulton Market, Inc. (55 Fulton) rather than by Key Food, "which is a separate entity" providing "franchisor services" to 55 Fulton and other owner-operators. (Dkt. No. 24 at 16-17.) Defendant suggested that plaintiff "correct the name of the defendant in this action when he amends." (Id.) In a letter dated May 12, 2021, counsel set forth substantially the same facts, adding that 55 Fulton was the "sole employer of Angel Parma" and offering to provide plaintiff with substantiating documentation. (Dkt. No. 25.)
B. The Amended Complaint
Plaintiff filed his Amended Complaint as scheduled on June 1, 2021. Rather than substitute 55 Fulton for Key Food, plaintiff named both corporations, along with three individuals, for a total of five defendants: (1) Key Food, a New York corporation headquartered in New Jersey, see Am. Compl. ¶ 2; (2) Madeline Donohue, employed by Key Food as a support services manager, see id. ¶¶ 6, 136, 138-39; (3) 55 Fulton, a New York corporation headquartered in New York, see id. ¶ 3; (4) Angel Parma, employed by 55 Fulton as a "managing agent" at the Store, see id. ¶¶ 4, 13; and (5) Shamin Chaitram, employed by 55 Fulton as a floor manager at the Store. Id. ¶ 214. Plaintiff, who once lived in New York, alleges that he now resides in California. Id. ¶ 1. Once again, plaintiff asserts a single claim of defamation per se against all defendants. Id. ¶ 217.
No summonses were ever issued for the defendants named for the first time in the Amended Complaint. Nonetheless, plaintiff filed proofs of service attesting that process was served on Key Food, Donohue, and Chaitram on May 28 and 29, 2021. (Dkt. Nos. 33, 35, 36, 44.) Counsel for 55 Fulton and Parma accepted service of the Amended Complaint on behalf of those defendants. (Dkt. Nos. 32, 37, 38.) As discussed in more detail below, only one defendant, Donohue, has raised an insufficient-service defense in her motion to dismiss.
Where the original Complaint was reasonably concise, the Amended Complaint (exclusive of exhibits) is 49 pages long - most of them single-spaced - prolix, internally inconsistent at times, and larded with legal argument and case citations. Nonetheless, plaintiff's basic factual allegations, which I am required to accept as true for the purpose of the pending Rule 12(b)(6) motions, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), are relatively simple.
1. Angel Parma
On October 20, 2019, plaintiff was shopping on the lower level of the Store when Parma, "acting in his capacity as a Managing Agent of Def. Fulton Market," pointed at plaintiff while "loudly publishing," to numerous customers and employees of the Store within earshot, that plaintiff was "a thief" and that Parma had "caught him stealing from this store many times in the past and had him arrested a few times for loading up carts and garbage bags and running out of the store and stealing." Am. Compl. ¶¶ 13-14. Parma told plaintiff to "put down" the groceries he was holding "and leave now." Id. ¶ 14. Among the customers who heard these accusations was plaintiff's friend Stephanie Acosta, who attests that she was shopping with plaintiff that day and generally corroborates his account. See Acosta Decl. (Dkt. No. 34 at ECF pages 52-55) ¶¶ 2-3. Also present was plaintiff's former neighbor Teresa Sorrento, who attests that she too "witnessed the entire incident." Sorrento Decl. (Dkt. No. 34 at ECF page 56) ¶¶ 3-4.
Because plaintiff attached the Acosta and Sorrento declarations to his Amended Complaint, the Court may consider them as part of the pleading for purposes of defendants' motion to dismiss. Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
In fact, plaintiff alleges, he has never been arrested, for theft or otherwise, Am. Compl. ¶¶ 12, 15, and had no previous interactions with Parma. Id. ¶¶ 11, 206. He was "humiliated, publicly shamed, mortified, degraded, and defamed" as Parma accused him of shoplifting in front of Store employees, customers, and "other members of the community." Id. ¶ 15.
Attempting to ignore Parma, plaintiff went upstairs to pay for his groceries. Am. Compl. ¶ 17. While he was checking out, an (unidentified) cashier told him that "Defendant Angel had already told all of us cashiers that you are a known thief, to make sure you aren't stealing, and that Angel personally witnessed you stealing from this store on multiple times throughout the years and you were supposed to be banned from the store because Angel had you arrested and you went to jail for stealing from Key Foods in the past." Id. ¶ 17; see also Acosta Decl. ¶ 6 (generally corroborating these allegations). Plaintiff then "went to look for Angel," who retracted his prior statements, telling plaintiff, "I think I was confused, the person I'm thinking of had your same skin color and my other worker told me it was you." Acosta Decl. ¶ 7; see also Am. Compl. ¶ 19 (Parma admitted that he had "confused Plaintiff based on Plaintiff's 'skin color' with the 'known thief'"). Plaintiff paid for his groceries and left the Store without further incident. Acosta Decl. ¶ 9.
The following month, Parma again admitted - to Acosta - that he had made a "personal mistake." Am. Compl. ¶ 20; see also Acosta Decl. ¶ 10 (Parma said to Acosta, "sorry about the drama last month, but at first I confused your friend Aasir with somebody else who was arrested and jailed for stealing from Key Foods[.]").
2. Shamin Chaitram
Defendant Chaitram knew plaintiff as a "regular customer." Am. Compl. ¶¶ 8, 131. She was not on duty on October 20, 2021. Id. ¶¶ 60, 214. However, on October 21, 2019, Chaitram and plaintiff "had a conversation" about the October 20 incident, during which Chaitram (acting "in her professional capacity on behalf of Def. 55 Fulton Market") told him that defendant Parma had "published to her" the false statements he had previously made about plaintiff being a thief, but assured plaintiff that "she personally" did not recall him being caught or arrested for stealing from the Store. Am. Compl. ¶ 29.
Elsewhere in his pleading, plaintiff alleges that Chaitram told him that she heard the defamatory statements from defendant Donohue, or from nonparty Kim, who was "republish[ing]" statements made to Kim by Parma, or by Donohue. Am. Compl. ¶¶ 5, 62, 66, 97. He also alleges that another employee of 55 Fulton, cashier Krystal Moore, "published to Plaintiff" on the same day that Chaitram had "republished Def. Parma's unprivileged, false statements of purported facts abouts Plaintiff to her, Kristal Moore." Id. ¶ 63.
3. Madeline Donohue
On October 20, 2019 - the day of the incident with Parma - plaintiff sent a "Cease and Desist email letter" to Key Food through its website, complaining about Parma's conduct. Am. Compl. ¶¶ 38, 47, 83; id. Ex. 1 (Dkt. No. 34 at ECF page 50). At 1:53 p.m. that same day, plaintiff's "'complaint' email" was "forwarded and/or copied and/or cc'd" to Donohue at her Key Food email address. Id. ¶¶ 87, 151. That was when Donohue "became aware of the 10/20/19 incident." Id. ¶¶ 99, 102. At 8:25 a.m. the next day, October 21, 2019, Key Food responded to plaintiff in an email from its "Social Media Administrator," reading, "On behalf of Key Food, I apologize for the way you were treated in one of our stores. We will make the owner aware of the situation, and I am confident they will speak to Angel and handle this accordingly." Id. ¶ 152 & Ex. 1. The apology email was also "carbon copied or cc'd" to Donohue. Id. ¶ 48.
Plaintiff does not explain why he alleged, in his initial Complaint, that Key Food "never responded" to his complaint email. Compl. ¶ 29. Even more puzzling, plaintiff has conspicuously failed to attach the complaint email to his pleading. Exhibit 1 to the Amended Complaint is a printout of the October 21 apology email from Key Food, but is cut off so as to as not to reveal the content of the message to which the company was responding. Thus, while Donohue's name and company email address can clearly be seen - suggesting that she was sent something - the exhibit does not document either the content of plaintiff's complaint or its receipt by Donohue.
Plaintiff alleges, on information and belief, that Key Food failed to forward his complaint email to the owner of the Store; that it negligently failed to make the owner "aware of the situation," as promised; and that Parma was never "reprimanded," by the owner, for the October 20, 2019 confrontation. Am. Compl. ¶¶ 123, 126, 189.
As noted above, defendants assert that the owner of the Store is 55 Fulton. Plaintiff, however, alleges (on information and belief) that the owner of the Store is Key Food. Am. Compl. ¶ 203. He also alleges (again, on information and belief) that the owner of the Store is general manager Kim. Id. ¶ 210.
4. "Republication" To or By Other Employees
In "late November 2019," plaintiff had a telephone conversation with Kim. Am. Compl. ¶¶ 36, 209-10. Plaintiff demanded that Store personnel "cease and desist from continuing to publish and/or republish unprivileged, false, defamatory per se statements of purported facts about Plaintiff to third parties." Id. ¶ 36. Kim replied that Parma was "just doing his job in monitoring and surveilling shoplifters like you, because he caught you stealing again and you are lucky that he didn't get you arrested again." Id. ¶ 37. Kim then told plaintiff that he was banned from the Store and threatened him with a "restraining order" if he came in to try to speak to Kim again. Id.
Approximately six months later, on or around May 15, 2020, when plaintiff attempted to enter the Store, a "young, female" employee came to the door and told him that he could not enter because the Store was closing soon and "I was told that you are a thief who we've banned from entering the store because you have a history of stealing and got caught stealing, loading up carts and garbage bags and running out of the store many times and we had you arrested." Am. Compl. ¶ 22. When plaintiff asked to speak to this employee's supervisor, nonparty Hosameldin AbdelAziz (known as "Sammy") came to the door and told him the same thing, id. ¶ 25, in the presence of two other customers, Anthony Russo and Chris Papa. Id. ¶ 23; see also Russo Decl. (Am. Compl. at ECF page 34) ¶ 3 (attesting that Sammy told him and Papa that "Aasir is a 'thief who was arrested and jailed many times for stealing from Key Food stores[.]").
Plaintiff does not claim that he had any contact with Donohue beyond seeing her name on the October 21, 2019 email. Nor does he claim that he ever saw or heard Donohue repeat Parma's allegedly defamatory statements. Instead, he alleges that other people told him (i) that Donohue had "republished" those statements, and/or (ii) that the directive banning him from the Store was conveyed by Donohue. See, e.g., Am. Compl. ¶ 56 (alleging that in late October 2019 Kim told plaintiff that Donohue had told Kim that "it was decided at Key Foods headquarters" that plaintiff would be banned from the Store); id. ¶ 25 (alleging that in May 2020 Sammy told plaintiff, Russo, and Papa that Kim had told Sammy about plaintiff's banishment "last year," after Kim "received a phone call from Madeline at Key Foods corporate office about you[.]"); Russo Decl. ¶ 3 (attesting in April 2021 that in May 2020 "Sammy kept mentioning Angel's name and some lady named Madeline, when Sammy told us that Aasir was last caught stealing in October 2020 [sic] and banned from entering the store").
It is not clear from the Amended Complaint whether plaintiff spoke to Kim twice - in October 2019 and again in November of that year - or whether it was a single conversation erroneously identified as having happened on two different dates. Compare Am. Compl. ¶ 55-57 ("late October 2019") with id. ¶ 36 ("late November 2019").
5. The Corporate Defendants
According to plaintiff, Parma and Chaitram were employees and "managing agents" of 55 Fulton. See, e.g., Am. Compl. ¶¶ 5, 164, 214 (Chaitram); id. ¶¶ 13, 161 (Parma). Plaintiff also alleges, without any supporting facts, that they were "managing agents" of the franchisor, Key Food. See, e.g., id. ¶¶ 9A, 9B, and that Parma was acting "on behalf of" both corporate defendants on October 20, 2019, when he called plaintiff a thief. Id. ¶¶ 162-63. Donohue is alleged to be an employee and "managing agent" of Key Food, see, e.g., id. ¶¶ 51, 88-89, but not 55 Fulton.
Plaintiff also describes Store employees Sammy, Moore, and Makida Mundy (not otherwise described) as "managing agents" of Key Food. See, e.g., Am. Compl. ¶ 9B.
6. Fault
Plaintiff alleges that at some point on October 20, 2019, Parma (the "original defamer," Compl. ¶ 3) "believed that Plaintiff had previously stolen items from Defendant 55 Fulton Market's store." Am. Compl. ¶ 196. However, Parma's belief "was a figment of [his] imagination and/or had no basis in truth and/or fact." Id. ¶ 74. Moreover, Parma did "nothing to verify Plaintiff's identity as the 'thief'" that he previously caught stealing from the Store. Id. ¶ 71, 73. It was only after the confrontation on the lower level of the Store that Parma "realized that he had mistaken Plaintiff for another individual[.]" Id. ¶ 197.
As for the remaining defendants, the Amended Complaint alleges repeatedly - without distinguishing among them - that they all "entertained serious doubts as to the truth" of Parma's statements, Am. Compl. ¶¶ 77-78, 116, "knew" or "had knowledge" that those statements were false (or "obviously false"), id. ¶¶ 79, 113, 226, and/or republished them with "reckless disregard of truth or falsity," id. ¶ 82, 109, in that they "did not conduct any prior investigation" and "did not rely upon reputable sources of information." Id. ¶¶ 115-16, 226. Plaintiff adds that the defamatory statements were all published "negligently, recklessly, and intentionally," with "hatred, ill will, and an intent to vex, harass, annoy and injure plaintiff," id. ¶ 225, and that each defendant harbored "an improper and evil motive amounting to malice . . . which abused and/or prevented the existence of any conditional privilege." Id. ¶ 229.
7. Damages
Plaintiff alleges that, as a proximate result of the publication and republication of Parma's defamatory statements, he "suffered injury to his personal, business, and professional reputation including suffering mental anguish, embarrassment, humiliation, severe emotional distress, shunning, anguish, fear, potential job opportunities and future earnings, all to [his] economic, emotional, and general damage in an amount according to proof." Am. Compl. ¶¶ 42, 228. Plaintiff does not further specify his damages, except to say that they are in excess of $75,000. Id. ¶ 231.
C. The Motions
On June 18, 2021, defendants 55 Fulton, Chaitram, and Parma (collectively the 55 Fulton Defendants) filed a motion to dismiss the Amended Complaint pursuant to Rule 12(b)(6), supported by a memorandum of law (55 Fulton Mem.) (Dkt. No. 40). On June 21, 2021, defendants Key Food and Donohue (collectively the Key Food Defendants) filed a separate motion to dismiss, made pursuant to Rules 12(b)(5) and 12(b)(6), also supported by a memorandum of law (Key Food Mem.) (Dkt. No. 43). On July 1, 2021, plaintiff filed two briefs, one in opposition to the Key Food Defendants' motion (Key Food Opp.) (Dkt. No. 47) and one in opposition to the 55 Fulton Defendants' motion (55 Fulton Opp.) (Dkt. No. 48). On July 6, 2021, the Key Food Defendants filed a reply brief (Key Food Reply) (Dkt. No. 50).
II. LEGAL STANDARDS
A. Pro Se Parties
A pro se plaintiff is "'entitled to special solicitude, '" and the court must "read his pleadings 'to raise the strongest arguments that they suggest.'" Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam)). However, "the appropriate degree of special solicitude is not identical with regard to all pro se litigants." Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010). The degree of solicitude required may be "lessened" where, as here, "the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented." Id.
Three of plaintiff's lawsuits, including the case at bar, remain pending in this district. All three assert defamation claims. See Second Am. Compl. (Dkt. No. 34) ¶ 6A, Azzarmi v. Neubauer, No. 7:20-09155 (KMK) (S.D.N.Y. August 18, 2021) (accusing 5 defendants of defaming him by "either implying and/or stating as a matter of fact that Plaintiff is/was a 'Fraud' and/or that Plaintiff committed the crime acts [sic] of 'fraud' and/or 'insurance fraud,' and/or 'larceny' and/or that Plaintiff was 'stealing' from his employer Delta Air Lines" by applying for worker's compensation benefits to which he was not entitled); Am. Compl. (Dkt. No. 6) ¶ 18, Davis v. Sedgwick Claims Mgmt. Services, No. 21-CV-07090 (LTS) (S.D.N.Y. Nov. 18, 2021) (accusing 14 defendants, including Delta Air Lines, of RICO violations, fraud, defamation, and other torts in connection with an alleged scheme to defraud Delta Air Lines employees into paying for worker's compensation insurance "when in fact no workers compensation insurance policy/plan exists or existed at any time"). In Neubaur, as here, plaintiff supported his pleading with an affidavit signed by his friend Acosta. See Second Am. Compl. Ex. 25 (Dkt. No. 34-1, at ECF pages 104-6), Azzarmi v. Neubauer, No. 7:20-09155 (KMK) (S.D.N.Y. August 18, 2021). In the Eastern District of New York, two of plaintiffs' cases were dismissed "with prejudice, pursuant to Fed.R.Civ.P. 41(b), for failure to comply with court orders and for using abusive language toward the judges." Pimentel v. Delta Air Lines, Inc., 818 Fed.Appx. 100, 101 (2d Cir. 2020) (summary order) (affirming dismissals). A third case - in which plaintiff attempted to sue the United States District Judge who dismissed his previous cases - was dismissed on judicial immunity grounds. See Decision and Order (Dkt. No. 14), Azzarmi v. Donnelly, No. 21-CV-00012 (WFK) (E.D.N.Y. April 28, 2021). In the state and federal courts of California, where plaintiff has also been active, he has been deemed a vexatious litigant and prohibited from filing new lawsuits without prior judicial approval. See Ruling, Azzarmi v. Chau, No. 19TRCV00759 (Cal. Sup. Ct., Los Angeles Cty. Feb. 4. 2020); Ruling, Azzarmi v. Delta Air Lines, Inc., No. 19TRCV00603 (Cal. Sup. Ct., Los Angeles Cty. Feb. 24. 2020); Minutes in Chambers, Azzarmi v. Wurtz, No. 2:20-CV-00607 (DMG) (JC) (C.D. Cal. May 21, 2020), aff'd, No. 20-55590 (9th Cir. July 28, 2021). Plaintiff Azzarmi, formerly known as Nicholas Pimentel, is a frequent litigant in this jurisdiction and others. Most of his lawsuits are related to his former employment at Delta Air Lines. E.g., Pimentel v. Schwenker, No. 1:19-CV-01346 (GHW) (JLC) (transferred to the Eastern District of New York on April 1, 2019, see Dkt. No. 10); Pimentel v. Ricotta & Marks, P.C., No. 1:19-CV-07437 (CM) (S.D.N.Y.) (dismissed for lack of subject matter jurisdiction on September 13, 2019, see Dkt. No. 5); Azzarmi v. Catania, No. 7:20-CV-04712 (KMK) (dismissed for improper venue on October 28, 2021, see Dkt. No. 59); Azzarmi v. Donnelly, 1:20-CV-10750 (CM) (transferred to the Eastern District of New York on December 23, 2020, see Dkt. No. 5).
Regardless of the plaintiff's litigation experience, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009). A pro se plaintiff, like any other, "must state a plausible claim for relief," Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Moreover, the court need not accept allegations that are "contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint," Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005), and cannot "invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
B. Motion to Dismiss - Rule 12(b)(5)
When a defendant moves to dismiss for insufficient service of process pursuant to Rule 12(b)(5), "the plaintiff bears the burden of establishing that service was sufficient." Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010) (summary order); see also Cassano v. Altshuler, 186 F.Supp.3d 318, 320 (S.D.N.Y. 2016); Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y. 2003). "Because a Rule 12(b)(5) motion implicates 'whether [the court] has jurisdiction,' the court 'looks to matters outside the complaint.'" Hines v. Roc-A-Fella Recs., LLC, 2020 WL 1888832, at *1-2 (S.D.N.Y. Apr. 16, 2020) (quoting Cassano, 186 F.Supp.3d at 320). Moreover, "the adequacy of service of process must be resolved before any merits-based challenge to the complaint." Hines, 2020 WL 1888832, at *2 (quoting George v. Prof'l Disposables Int'l, Inc., 221 F.Supp.3d 428, 442 n.7 (S.D.N.Y. 2016)) (internal quotation marks omitted); accord Deptula v. Rosen, 2021 WL 4037709, at *7 (S.D.N.Y. Sept. 3, 2021).
C. Motion to Dismiss - Rule 12(b)(6)
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." If a complaint fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," the deficient claims must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Presented with a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy, 482 F.3d at 191. However, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, "a pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.
D. Defamation
"Defamation is the 'making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.'" Kesner v. Dow Jones & Co., Inc., 515 F.Supp.3d 149, 169 (S.D.N.Y. 2021) (quoting Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 590 (1996)) (citations and quotations omitted). "Under New York law, to state a claim for defamation, a plaintiff must allege '(1) a written [or spoken] defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.'" Kesner, 515 F.Supp.3d at 169-70 (quoting Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019)).
As to the first element, the court's "limited function" at the motion to dismiss stage is to determine "as a matter of law whether the statements complained of are reasonably susceptible of a defamatory construction." Levin v. McPhee, 917 F.Supp. 230, 236 (S.D.N.Y. 1996), aff'd, 119 F.3d 189 (2d Cir. 1997). This determination is "guided not only by the meaning of the words as they would be commonly understood . . . but by the words considered in the context of their publication." Levin, 119 F.3d at 195 (citing Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 381, 625 N.Y.S.2d 477, 484 (1995)).
As to the second element, the publication must be made to "someone other than the subject of the statement." Egiazaryan v. Zalmayev, 2011 WL 6097136, at *5 (S.D.N.Y. Dec. 7, 2011). See, e.g., Joseph v. Springer Nature, 2021 WL 1372952, at *6 (S.D.N.Y. Apr. 12, 2021) (statements in emails were not libelous "because they were private communications to [plaintiff]"). Unlike some other jurisdictions, New York does not flatly prohibit defamation claims based on statements made "by one employee to another." Albert v. Loksen, 239 F.3d 256, 269 (2d Cir. 2001). However, "New York recognizes a qualified common interest privilege when the allegedly defamatory statement is made between persons who share a common interest in the subject matter," Thai v. Cayre Grp., Ltd., 726 F.Supp.2d 323, 330 (S.D.N.Y. 2010), such as co-workers with shared concerns about a matter affecting the business. To overcome the common interest privilege at the pleading stage, the plaintiff must allege facts showing that the false statements were made with (i) "actual malice, which requires either knowledge that the statements were false or reckless disregard for the statements' truth," Bah I, 2020 WL 614932, at *11, or (ii) common-law malice, which "means spite or ill-will," and must be the "one and only cause for the publication." Albert, 239 F.3d at 272 (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 437, 439, 590 N.Y.S.2d 857, 863 (1992)).
See, e.g., Bah v. Apple Inc. (Bah I), 2020 WL 614932, at *11 (S.D.N.Y. Feb. 10, 2020) (communications among employees of Apple and employees of Apple's security contractor concerning the identity of a suspected shoplifter at Apple's stores fell within the common interest privilege), adhered to on denial of reconsideration, 2021 WL 4894677 (S.D.N.Y. July 26, 2021); Conteh v. Sears, Roebuck & Co., 38 A.D.3d 314, 315, 831 N.Y.S.2d 408, 409 (1st Dep't 2007) ("The defamation cause of action was properly dismissed since the complained-of statements by defendant Sears' employees in furtherance of their employer's interests were qualifiedly privileged and there was no evidence that the statements were maliciously motivated.").
As to the third element, the degree of fault required depends on the subject of the alleged defamation and the status of the plaintiff. "Under federal constitutional law, plaintiffs who are public figures must show defendants acted with actual malice." Coleman v. Grand, 523 F.Supp.3d 244, 254 (E.D.N.Y. 2021). A private plaintiff need only prove that false and defamatory statements of and concerning the plaintiff were made with negligence, see Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000), or - if the statements concern "matters of public interest" - with "gross negligence." Coleman, 523 F.Supp.3d at 254; see also Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 539, 435 N.Y.S.2d 556, 564 (1980) (because the accused newspaper articles discussed a matter "within the sphere of legitimate public concern," they "cannot lead to liability unless it is proven by a fair preponderance of the evidence that its publishers 'acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties'") (internal citations omitted).
As to the fifth element, the plaintiff must either plead "special damages" or that the statements are "defamatory per se." Celle, 209 F.3d at 179; Kesner, 515 F.Supp.3d at 171.
Special damages are those that involve the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation. Special damages must be fully and accurately stated, with sufficient particularity to identify actual losses. Round figures or a general allegation of a dollar amount . . . will not suffice. The particularity requirement is strictly applied, as courts will dismiss defamation claims for failure to allege special damages with the requisite degree of specificity.Thai v. Cayre Grp., Ltd., 726 F.Supp.2d 323, 330 (S.D.N.Y. 2010) (internal citations and quotation marks omitted).
If a statement is defamatory per se, "injury is assumed," even where the plaintiff does not plead special damages. Celle, 209 F.3d at 179; accord, Thai, 726 F.Supp. at 331. "There are four types of per se defamatory statements for which no special damages need be asserted: statements that (i) charge a plaintiff with a serious crime; (ii) tend to injure another in his or her trade, business or profession; (iii) a plaintiff has a loathsome disease; or (iv) impute unchastity to a woman." Atkins v. Bohrer, 2011 WL 6779311 (S.D.N.Y. Dec. 23, 2011) (quoting Zherka v. Amicone, 634 F.3d 642, 645 n. 6 (2d Cir. 2011)). With regard to the first category, "'the law distinguishes between serious and relatively minor offenses.'" Kesner, 515 F.Supp. at 171 (quoting Liberman v. Gelstein, 80 N.Y.2d at 435, 590 N.Y.S.2d at 861)."[O]nly statements regarding the former are actionable without proof of damage." Liberman, 80 N.Y.2d at 435, 590 N.Y.S.2d at 861. "Whether a challenged statement constitutes defamation per se is a question of law." Kesner, 515 F.Supp.3d at 171 (S.D.N.Y. 2021) (citing Geraci v. Probst, 15 N.Y.3d 336, 344, 912 N.Y.S.2d 484, 492 (2010)).
"Under New York law, an employer can be held vicariously liable for a defamatory statement made by one of its employees, but only if the employee made the statement in the course of performance of her duties." Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1166 (E.D.N.Y. 2003); accord E.E.O.C. v. Die Fliedermaus, 77 F.Supp.2d 460 (S.D.N.Y. 1999). "[T]he determination of whether a particular act was within the scope of the servant's employment is heavily dependent on factual considerations, and therefore the question is ordinarily one for the jury." Die Fliedermaus, 77 F.Supp.2d at 473.
The statute of limitations for defamation in New York is one year. N.Y. C.P.L.R. (CPLR) § 215(3); see McKenzie v. Dow Jones & Co., 355 Fed.Appx. 533, 535 (2d Cir. 2009) (summary order) (affirming dismissal of untimely claim pursuant to Rule 12(b)(6) and denial of leave to amend where, due to the time-bar, "leave to amend would be futile").
III. ANALYSIS
A. The Key Food Defendants
1.Madeline Donohue
(a) Insufficient Service
Service of process is governed by Fed.R.Civ.P. 4. Under Rule 4(a)(1), a summons must: "(A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiff's attorney or - if unrepresented - of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court's seal." Under Rule 4(b), "[a] summons - or a copy of a summons that is addressed to multiple defendants - must be issued for each defendant to be served." See also Trombetta v. Novocin, 2020 WL 7053301, at *2 (S.D.N.Y. Nov. 24, 2020) ("A separate summons must be issued for each individual defendant."). In this case, no summons was ever requested, much less issued, as to defendant Donohue. Plaintiff therefore could not have effected service of process upon her. See Deptula, 2021 WL 4037709, at *10 (dismissing for insufficient service where "plaintiff never obtained, and therefore could not have served, a summons satisfying Rule 4(a)").
"[S]ome courts within our Circuit forgive the absence of the clerk's signature and seal on a summons as a 'technical defect,' particularly where the plaintiff is pro se and service is otherwise adequate." Deptula, 2021 WL 4037709, at *10. But even if I assume, arguendo, that plaintiff prepared a document containing the information required by Rule 4(a)(1)(A)-(E), I could not conclude that service was adequate. Although plaintiffs filed two proofs of service with Donohue's name on them, neither reflects service in accordance with Fed.R.Civ.P. 4(e).
Under Rule 4(e)(2), service may be made by personal delivery to the defendant, by leaving copies of the summons and complaint at the defendant's "dwelling place or usual place of abode" with a person of "suitable age and discretion," or by delivering them to an "agent authorized by appointment or by law to receive service of process." Under Rule 4(e)(1), service may be made in accordance with state law. CPLR § 308, governing service on individual defendants in New York, permits service by personal delivery to the defendant; by leaving the summons at the defendant's residence or "actual place of business" with a person of "suitable age and discretion" (and then mailing a copy, first class, to the defendant at the same address); or by delivery to "the agent for service of the person to be served." Under both federal and state law, "the designation of an individual to receive service of process must be clear and with the knowledge of the defendant sought to be served." Jackson v. Cty. of Nassau, 339 F.Supp.2d 473, 477 (E.D.N.Y. 2004).
The first proof of service for Donohue states that her summons was served on Judy Carkner, who was designated by law to accept service on behalf of "CSC" (presumably CSC Corporation Services), at CSC's address in Albany, New York. (Dkt. No. 36.) The second states that a summons was served on "Nate," who was designated by law to accept service on behalf of "Key Food Stores Inc.," at an undisclosed address. (Dkt. No. 44.) Plaintiff offers no reason to believe that either Carkner or "Nate" was authorized to accept service on behalf of Madeline Donohue. See Jackson, 339 F.Supp.2d at 478-79 (dismissing case against individual physician where the summons was delivered to Savinetti, "the individual who accepted service of process at the Nassau County Medical Center," but there was "no evidence that Dr. Sabir ever appointed Savinetti as his agent for service of process"). Nor could Carkner or "Nate" qualify as a person of "suitable age and discretion" at Donohue's residence or "actual place of business," CPLR § 308(2), because Donohue did not live or work at CSC's premises in Albany, and plaintiff offers no clue as to where "Nate" was served. Moreover, the 90-day period for effecting service, see Fed. R. Civ. P. 4(m), has long run, and plaintiff has neither requested an extension of his time to serve Donohue nor shown good cause for his failure to do so within that period. Consequently, the Amended Complaint should be dismissed as against Donohue for insufficient service of process pursuant to Rule 12(b)(5).
In his opposition brief, plaintiff argues that "Key Food's" insufficient-service argument is "waived" because that entity was properly served with the original Complaint and never moved to dismiss it. Key Food Opp. at ECF pages 5-6. Plaintiff appears to have misunderstood the insufficient-service argument, which is made on behalf of Donohue only.
(b) Statute of Limitations
In the alternative, the Amended Complaint should be dismissed as against Donohue because it is time-barred. Where, as here, a limitations defense "appears on the face of the complaint," it may be adjudicated pursuant to Rule 12(b)(6). Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998); accord Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014); McKenzie, 355 Fed.Appx. at 535.
Plaintiff's theory of liability, as to Donohue, is that on October 20 or 21, 2019, after learning about Parma's defamatory statements from plaintiff's complaint email, she "republished" those statements (and communicated an edict banning plaintiff from the Store) to general manager Kim, who, in turn, passed the false statements along to Chaitram, Moore, and Sammy. Am. Compl. ¶¶ 25, 56, 65, 66, 198. There is no allegation that Donohue published or republished any actionable statements after October 21, 2019. Nor does plaintiff claim that he was unaware of Donohue's identity or conduct. To the contrary, plaintiff affirmatively alleges that on October 21, 2019, he received Key Food's apology email (including Donohue's name and email address, see id. Ex. 1) and learned from both Chaitram and Moore about "Def. Madeline Donohue's unprivileged, defamatory per se, false statements of purported facts about Plaintiff[.]" Id. ¶¶ 65, 66. Shortly thereafter (still in "late October 2019"), Kim told him that "Madeline Donohue, in her professional capacity as a managing agent of Def. Key Foods," republished Parma's allegedly defamatory statements to Kim and told Kim that plaintiff was "no longer allowed to enter or shop in any Key Foods' stores because of your criminal history[.]" Id. ¶ 56. Assuming, arguendo, that these allegations state a defamation claim against Donohue, the tort was complete - and plaintiff knew about it - in October 2019. Yet he did not name Donohue as a defendant until he filed the Amended Complaint on June 1, 2021, more than one year later.
As the New York Court of Appeals explained in Karaduman, "the law of our State does not render the original publisher of a defamatory statement automatically liable for subsequent republications of the statement by others." 51 N.Y.2d at 540, 435 N.Y.S.2d at 564. In any event, the last "republication" alleged by plaintiff took place on or about May 15, 2020, when Sammy repeated the defamatory statements to plaintiff and others. Am. Compl. ¶ 23, 25. The Amended Complaint was filed more than one year after that incident.
In his opposition brief, plaintiff argues that Key Food waived Donohue's statute of limitations argument when it did not object to this Court's April 22, 2021 Case Management Order, which permitted plaintiff to amend his pleading. See Key Food Opp. at ECF page 7 (by failing to object, Key Food "acquiesced to Plaintiff amending his complaint to add new Defendants including Def. Donohue"). The argument is frivolous. Leave to amend, routinely granted at the outset of a case pursuant to Fed.R.Civ.P. 16(b)(3)(A), does not mean leave to file facially defective claims. Moreover, Donohue was not a party to this action when leave was granted and could not have waived any of her rights at that time.
Plaintiff further argues - at length - that his claim against Donohue is timely because it "relates back" to the filing of the original Complaint pursuant to Fed.R.Civ.P. 15(c). See Key Food Opp. at ECF pages 5, 11-12, 17-23. Where, as here, an amendment adds a new party, it relates back only if it "asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out" in the original pleading, and if, within the 90-day period provided by Rule 4(m) for service of the original pleading, "the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C).
The Amended Complaint does not meet this standard. First, it "names a new party as well as new dates," Pruiss v. Bosse, 912 F.Supp. 104, 106 (S.D.N.Y. 1996), and for that reason does not arise out of the same "instance of defamation" described in the original Complaint. Cojocaru v. City Univ. of New York, 2020 WL 5768723, at *4 (S.D.N.Y. Sept. 28, 2020) ("defamation claims do not relate back to a prior pleading where they allege 'new instances of defamation'" (quoting Pruiss, 913 F.Supp. at 106); see also Kirkland v. City of Peekskill, 634 F.Supp. 950, 952-53 (S.D.N.Y. 1986) (no relation back where new defamation claim involves a different conversation than claims in prior pleading). Second, there is no reason to believe that Donohue had "notice of the action" simply because the original Complaint named her employer as a defendant. Nothing in that pleading - which alleged that "Angel," "Charmaine," "Kim," and other Store personnel published or republished the false statements - so much as suggested that Donohue (or any other individual outside of the Store) participated in the alleged defamation. Third, there was no "mistake concerning the proper party's identity." By October 21, 2020, plaintiff had in hand a Key Food email with Donohue's name on it. That same day - he now alleges - both Chaitram and Moore identified Donohue by name as one of the people who made "unprivileged, defamatory per se, false statements of purported facts" about him, id. ¶¶ 65, 66, and by the end of the month Kim identified Donohue by name as the person who communicated the news that he was to be banned from the Store. Id. ¶ 56. Plaintiff's failure to name Donohue in the original Complaint was a choice, not a mistake. Accordingly, "[a]llowing [the amended] claims to relate back would, in effect, allow the plaintiff to circumvent the statute of limitations, a result proscribed by Fed.R.Civ.P. 15(c)." Pruiss, 912 F.Supp. at 106.
As the Key Food Defendants point out, Donohue (unlike Parma and Chaitram) "was not even sued as an alleged "Madeline Doe" in the original complaint." Key Food Reply at 3.
(c) Common Interest Privilege
Communications among and between the personnel of 55 Fulton and the personnel of Key Food concerning a suspected shoplifter at the Store are subject to the common interest privilege. Bah I, 2020 WL 614932, at *11; Bah v. Apple Inc. (Bah II), 2021 WL 4084500, at *5 (S.D.N.Y. Sept. 8, 2021); Conteh, 38 A.D.3d at 315, 831 N.Y.S.2d at 409. The question thus becomes whether plaintiff has plausibly alleged either actual malice or common-law malice "sufficient to overcome the qualified privilege[]." Bah II, 2021 WL 4084500, at *5.
Common-law malice overcomes the qualified privilege only if the defendant's "spite or ill will" was the "one and only cause for the publication." Albert, 239 F.3d at 272. Here, plaintiff alleges in wholly conclusory fashion - with no supporting detail - that all of the defendants published all of the allegedly defamatory statements with "hatred, ill will, and an intent to vex, harass, annoy and injure plaintiff." Am. Compl. ¶ 225. These are "labels and conclusions," not facts, and do not satisfy the pleading standard announced in Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 555. Moreover, any claim that defendants acted solely from "spite or ill will" is contradicted by plaintiff's concession that Parma at one point "believed" Azzarmi had previously stolen from the Store, Am. Compl. ¶ 196, later "realized that he had mistaken Plaintiff for another individual," id. ¶ 197, and then apologized - once to plaintiff himself and a second time to his friend Acosta - as did Key Food. Id. ¶¶ 19-10, 152; Acosta Decl. ¶ 7, 10.
"For a defamatory statement to be made with actual malice, a plaintiff must allege that defendants acted in reckless disregard of the truth, i.e., that they knew there was a high probability that the thief was not [Azzarmi] and therefore that their statements identifying [Azzarmi] as such were false." Bah II, 2021 WL 4084500, at *6 (citing Liberman, 80 N.Y.2d at 437-38, 590 N.Y.S.2d at 862-63). As to the "republisher" defendants (including Donohue), plaintiff has, once again, pled conclusions, not facts, alleging that they "entertained serious doubts as to the truth" of Parma's statements, Am. Compl. ¶¶ 77-78, 116, "knew" or "had knowledge" that those statements were false (or "obviously false"), id. ¶¶ 79, 113, 226, and/or republished them with "reckless disregard of truth or falsity." Id. ¶ 82, 109. Assuming, arguendo, that Donohue did in fact "republish" Parma's statements about plaintiff to Kim - and crediting plaintiff's allegation that Parma himself believed, in the moment, that plaintiff was the person he had previously caught "stealing from this store," id. ¶¶ 13-14, plaintiff nowhere explains why or on what basis Donohue should have known better. Because plaintiff is "armed with nothing more than conclusions" as to Donohue's actual malice, Iqbal, 556 U.S. at 678-79, he has not overcome the common interest privilege as to her.
Compare Bah II, 2021 WL 4084500, at *6 (permitting defamation count to proceed where plaintiff's claim as to actual malice, though "thin," included the specific allegations that defendants should not have relied on Bah's stolen learner's permit to identify the thief and should have noticed a height discrepancy between the thief and Bah) with Orenstein v. Figel, 677 F.Supp.2d 706, 711 (S.D.N.Y. 2009) (granting motion to dismiss "because Orenstein utterly fails to plead facts that could support his conclusory allegations regarding defendants' purported - and implausible - malice toward him").
2. Key Food
Key Food's defamation liability, if any, is vicarious, meaning that plaintiff's claim against Key Food "cannot stand" if "'there is no primary liability upon which such a claim of vicarious liability might rest.'" Udechukwu v. City of New York, 333 F.Supp.3d 161, 172 (E.D.N.Y. 2018) (quoting Karaduman, 51 N.Y.2d at 546, 435 N.Y.S.2d at 564). Because plaintiff "has failed to plead any viable claim against" Key Food's employee, Donohue, his claim against Key Food should also be dismissed. Id.
As noted above, plaintiff also asserts that 55 Fulton employees Parma and Chaitram acted as "managing agents" of Key Foods. See, e.g., Am. Compl. ¶¶ 9A, 9B, 10, 65, 98, 100. However, he offers no facts to render these conclusory allegations plausible. He does not aver, for example, that Parma or Chaitram was employed by Key Food, paid by Key Food, supervised by Key Food, or entrusted by Key Food to manage its interests. Nor does he plead any of the facts required under New York law before a franchisor may be held vicariously liable for torts committed by its franchisee's employees. See Wendy Hong Wu v. Dunkin' Donuts, Inc., 105 F.Supp.2d 83, 87 (E.D.N.Y. 2000) ("in deciding whether a franchisor may be held vicariously liable for acts of its franchisees, courts determine whether the franchisor controls the day-to-day operations of the franchisee, and more specifically whether the franchisor exercises a considerable degree of control over the instrumentality at issue in a given case"), aff'd sub nom. Wu v. Dunkin' Donuts, Inc., 4 Fed.Appx. 82 (2d Cir. 2001) (summary order). Consequently, plaintiff's allegations concerning the conduct of Parma and Chaitram (even if sufficient to state a direct claim of defamation against them or a vicarious claim against their employer) do not render viable his claim against Key Food.
B. The 55 Fulton Defendants
1. Shamin Chaitram
As to Chaitram, plaintiff principally alleges that she "republished" Parma's false statements on October 21, 2019, to "the subject of the statement," Egiazaryan, 2011 WL 6097136, at *5, that is, to plaintiff himself. See Am. Compl. ¶¶ 29, 62, 66, 97. Since no third party was present, no defamation was committed. Moreover, in plaintiff's telling, Chaitram added that she did not recall him being caught or arrested for stealing from the Store. Id. ¶ 29. Thus, even if a third party were present, her words, "considered in the context of their publication," would not be defamatory. Levin, 119 F.3d at 195.
Plaintiff also alleges, fleetingly, that cashier Moore told him that Chaitram "republished" Parma's statements "to her, Kristal Moore." Am. Compl. ¶ 63. However, a conversation between a floor manager and a cashier concerning a suspected shoplifter sighted the day before is presumptively covered by the common interest privilege, which plaintiff has not overcome. See Bah I, 2020 WL 614932, at *11; Bah II, 2021 WL 4084500, at *5; Conteh, 38 A.D.3d at 315, 831 N.Y.S.2d at 409.
2. Angel Parma and 55 Fulton
As to Parma, plaintiff has adequately pleaded the first, second, and fourth elements of a defamation claim. Whether he has plausibly alleged negligence, as required to satisfy the third element, or defamation per se, as required to satisfy the fifth element in the absence of any claim for special damages, see Kesner, 515 F.Supp. at 171, present closer questions, which I address in reverse order.
The 55 Fulton Defendants argue that Parma's statements were protected by the qualified interest privilege. 55 Fulton Mem. at 4-5. However, plaintiff clearly alleges that Parma called him a thief in front of customers as well as other Store employees. See Am. Compl. ¶¶ 4, 13-14.
The crime described by Parma - commonly known as shoplifting - is ordinarily prosecuted as petit larceny under N.Y. Penal Law § 155.25, which is a Class A misdemeanor. Id. The 55 Fulton Defendants describe this as "an extremely minor offense." 55 Fulton Mem. at 2. Plaintiff responds that "'shoplifting is sufficient to constitute actionable slander per se." 55 Fulton Opp. at ECF page 3. At the pleading stage, plaintiff has the better end of this argument. In New York, a Class A misdemeanor carries a potential sentence of up to one year of imprisonment and is serious enough to entitle the defendant to a jury trial. See N.Y. Penal Law § 70.15(1); People v. Suazo, 32 N.Y.3d 491, 498, 93 N.Y.S.3d 629, 636 (2018) ("Since class A misdemeanors carry an authorized maximum penalty of one year of imprisonment . . . both the Sixth Amendment and [N.Y. Crim. Proc. Law § 340.40] guarantee a jury trial to all defendants charged with such crimes"). Moreover, both the state and federal courts in New York have permitted defamation per se claims to proceed based on generic allegations of "theft," without parsing the degree of potential criminal culpability too finely. See, e.g., O'Diah v. Yogo Oasis, 954 F.Supp.2d 261, 275 (S.D.N.Y. 2013) ("[A]n accusation of theft constitutes an allegation of a 'serious crime.'"); Epifani v. Johnson, 65 A.D.3d 224, 234, 882 N.Y.S.2d 234, 243 (2d Dep't 2009) ("the alleged statement that Supple," a personal assistant, "was stealing from Johnson," her employer, constitutes "an allegation of a 'serious crime' so as to qualify as slander per se"). Consequently, I conclude that plaintiff has adequately pleaded that Parma publicly accused him of a "serious crime."
I also conclude that he has - barely - alleged facts sufficient to show that Parma acted negligently. See Am. Compl. ¶¶ 72, 74 (alleging that Parma did "nothing to verify Plaintiff's identity" before calling him out as a thief, and that his mistaken identification of plaintiff as a known shoplifter, although sincere, was "a figment of defendant Parma's imagination"). The 55 Fulton Defendants point to N.Y. Gen. Bus. Law (GBL) § 218, noting that it "protects retail merchants from claims of . . . defamation where such an establishment detains a suspected shoplifter in a reasonable manner and for not more than a reasonable time." 55 Fulton Mem. at 5.Plaintiff counters that Parma's statements "were not aimed at 'protecting the store from shoplifting'" because plaintiff "was not stealing," and that in any event he was "never detained." 55 Fulton Opp. at ECF page 8. In my view, neither side is correct.
GBL § 218 states, in pertinent part, that in a defamation action brought by a person detained on store premises "for the purpose of investigation or questioning as to . . . the ownership of any merchandise," it "shall be a defense" that "the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning" and that the owner, or the owner's employee or agent, "had reasonable grounds to believe" that the person so detained was . . . committing or attempting to commit larceny on such premises of such merchandise."
The purpose of GBL § 218 is to help "overcome the extreme reluctance with which merchants . . . attempt to interfere with shop-lifters." Jacques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 472, 334 N.Y.S.2d 632, 638 (1972) (internal quotation marks omitted); see also Guion v. Associated Dry Goods Corp. (Lord & Taylor Div.), 56 A.D.2d 798, 393 N.Y.S.2d 8 (1st Dep't 1977) ("[A]lthough store owners may not proceed with abandon to rectify the problem [of shoplifting], they should not be deterred from attempting to apprehend those responsible for the theft of merchandise."), aff'd, 43 N.Y.2d 876, 403 N.Y.S.2d 465 (1978). Plaintiff's allegation that he was not in fact stealing is irrelevant the availability of the defense under § 218, which requires only that store personnel who "attempt to interfere" with a suspected shoplifter have "reasonable grounds to believe" that the suspect was "committing or attempting to commit larceny." Similarly, the fact that Parma's "interference" stopped short of physically detaining plaintiff should not lessen the protection afforded under the statute.
However, § 218 is a defense to a defamation claim, and places the burden on the defendant to establish "reasonable grounds" for acting. See, e.g., Mullen v. Sibley, Lindsay & Curr Co., 51 N.Y.2d 924, 925, 434 N.Y.S.2d 982, 983 (1980) (affirming judgment for customer where "[w]e cannot conclude that the evidence in this case was sufficient, as a matter of law, to establish that the security guard had probable cause to arrest appellant"); Bell v. GAP, Inc., 189 Misc.2d 719, 720, 735 N.Y.S.2d 708, 709 (App. Term 1st Dep't 2001) (affirming judgment for retailer where "[t]he testimony of defendant's loss prevention employee as to his observations of the plaintiff furnished an ample evidentiary basis for a finding that there were 'reasonable grounds' to believe plaintiff 'was committing or attempting to commit larceny of such merchandise'"). I note, in this regard, that the case on which the 55 Fulton Defendants rely, Tertulian v. Sony Elecs., 2018 N.Y. Misc. LEXIS 5426 (Sup. Ct. Nassau Cty Apr. 24, 2018), was decided on summary judgment, at which point the "record establishe[d] that there was probable cause to arrest and charge the plaintiff . . . with the offense of petit larceny." Id. at *5.
Since the existence of "reasonable grounds" to confront plaintiff on the lower level of the Store does not appear on the face of the Amended Complaint or in its exhibits, the motion to dismiss should be denied as to defendant Parma. And since the claim against defendant 55 Fulton is vicarious, flowing from the conduct of its employees, the motion should also be denied as to 55 Fulton, but only insofar as the claim against 55 Fulton is based upon the conduct of Angel Parma.
C. Leave to Amend
While leave to amend a complaint should be freely given "when justice so requires," Fed.R.Civ.P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy, 482 F.3d at 200. Here, it would be futile to grant leave to amend plaintiff's direct claim against Donohue, who was never properly served, or his vicarious claim against Key Food, which arises out of his untimely and substantively inadequate claim against Donohue. See Meimaris v. Royce, __ Fed.Appx. __, 2021 WL 5170725, at *6 (2d Cir. Nov. 8, 2021) (summary order) (affirming dismissal on insufficiency and limitations grounds and denial of leave to amend where no additional allegations could "make [plaintiff's] claim timely"). It would similarly be futile to allow plaintiff a third opportunity to try to state a claim against Chaitram, who was not even on duty on October 20, 2019, see Am. Compl. ¶ 214, and who, in plaintiff's telling, supported his side of the story the following day. Id. ¶¶ 29, 100. I note in this regard that plaintiff does not appear to seek leave to amend against any defendant, and certainly does not describe any facts that, if pled, would render viable his claims against Donohue, Key Food, or Chaitram. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming denial of leave to amend where the pro se plaintiff "has suggested no new material she wishes to plead").
In his brief in opposition to the 55 Fulton Defendants' motion, plaintiff asks the Court to strike certain of "defendant's" affirmative defenses pursuant to Fed.R.Civ.P. 12(f), and sanction the 55 Fulton Defendants pursuant to Fed.R.Civ.P. 11(b) for "frivolous filing of [their] motion to dismiss." 55 Fulton Opp. at ECF pages 10-14. I construe these pages liberally as an intended cross-motion to dismiss and for sanctions, and recommend that the cross-motion be denied. None of the defendants has yet answered the Amended Complaint, much less pleaded affirmative defenses in response to it. A Rule 11 motion must be made "separately from any other motion" and served at least 21 days before it is filed. Fed.R.Civ.P. 11(c)(2). In any event, 55 Fulton Defendants' pending motion to dismiss is not sanctionable.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that the Key Food Defendants' motion (Dkt. No. 42) be GRANTED and that the 55 Fulton Defendants' motion (Dkt. No. 39) be GRANTED IN PART AND DENIED IN PART. Plaintiff's claim against Madeline Donohue should be DISMISSED pursuant to Rule 12(b)(5) (without prejudice) or, in the alternative, pursuant to Rule 12(b)(6). His claims against Key Food Stores Co-Operative, Inc. and Shamin Chaitram should be DISMISSED pursuant to Rule 12(b)(6). No leave to amend should be granted as to the claims dismissed pursuant to Rule 12(b)(6). Plaintiff's claims against defendants Angel Parma and 55 Fulton Market, Inc. should not be dismissed, but the scope of his claim against 55 Fulton should be limited to the scope of his claim against Parma.
The Court notes that plaintiff has consented to receive electronic service via the ECF system. (Dkt. No. 3.) Consequently, no mailing is required.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. George B. Daniels at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Daniels. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).