Summary
holding that complaint that failed to allege any physical injury did not state a claim for IIED under Pennsylvania law
Summary of this case from Mzamane v. WinfreyOpinion
Civil Action No. 02-1222
July 17, 2002
MEMORANDUM
This action arises out of an altercation between plaintiff and a security guard at a store of defendants in the Franklin Mills Mall in Philadelphia, Pennsylvania. Plaintiff asserts federal civil rights claims under 42 U.S.C. § 1981, 1985, and 1986, and a claim of intentional infliction of emotional distress under state law. Now before the Court is the motion of defendants Boscov's Inc., Boscov's Department Store, Inc., Boscov's Department Store, LLC, Ports of the World, Inc., Ports of the World LLC (collectively, "Boscov's") to dismiss for failure to state a claim pursuant to Rule 12(b)(6), for a more definite statement pursuant to Rule 12(e), and to strike pursuant to Rule 12(f) of the Federal Rules of Civil Procedure (Document No. 6), and the response of plaintiff Dixon thereto (Document No. 10). For the reasons set forth below, the motion will be granted in part and denied in part.
A. Background
All facts are taken as true from the amended complaint, as required by law.
Plaintiff, an African-American woman, and her daughter were waiting in the check-out line of Boscov's, when they were accosted by Terry Steward, an employee of the defendants' store. Steward represented herself as head of store security and accused plaintiff of engaging in illegal or fraudulent acts, including the use of a fraudulent credit card. Specifically, Steward remarked, "I don't know why they [plaintiff and her daughter] are waiting, the sale is not going to go through." Steward then approached plaintiff, stating "They aren't going to give you those items, I put a stop to that." Steward continued, "You're not going to take this out of the store, your card is fraudulent." Steward ordered the cashier to void the sale, took plaintiff's shopping bags and emptied their contents onto the floor. When plaintiff's daughter bent down to pick up the merchandise, Steward ordered, "Get the f__k away from that merchandise." She commented, "I see black people come in here all of the time stealing. All of you are thieves." Another employee of Boscov's approached the companion of plaintiff's daughter and threatened to "f__k [him] up." When plaintiff left the store, Steward followed her into the parking lot and stated, "If you don't get out of her [sic] right now, there's a cop waiting in the alley for you." Steward produced a cellular phone and stated that she was calling the police. The instant suit ensued.
B. Legal Standard
Rule 12(b) of the Federal Rules of Civil Procedure provides that "the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted." In deciding a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969). Because the Federal Rules of Civil Procedure require only notice pleading, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). A motion to dismiss should be granted only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229 (1984).
C. Analysis 1. Sections 1985 and 1986
Section 1985 of the federal civil rights provisions prohibits conspiracies to deprive a U.S. citizen of his constitutional rights based on invidious class-based discrimination. See 42 U.S.C. § 1985.
Section 1985(3) provides, in relevant part:
If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; . . . [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for recovery of the damages, occasioned by such injury or deprivation against any one or more of the conspirators.42 U.S.C. § 1985(3).
To state a claim under section 1985 for private conspiracy, a plaintiff must allege:
(a) that a racial or other class-based invidious discriminatory animus lay behind the coconspirators' actions, (b) that the coconspirators intended to deprive the victim of a right guaranteed by the Constitution against private impairment, and (c) that that right was consciously targeted and not just incidentally affected.Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001) (citingSpencer v. Casavilla, 44 F.3d 74, 77 (2d Cir. 1994); citing also Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993)). While Section 1985(3) provides a remedy for purely private conspiracies involving no state action, see Griffin v. Breckenridge, 403 U.S. 88, 100, 29 L.Ed.2d 338, 91 S.Ct. 1790 (1971), it does so only when the rights aimed at by the conspiracy are protected against private encroachment. See United Bhd. of Carpenters Joiners, Local 610 v. Scott, 463 U.S. 825, 833, 77 L.Ed.2d 1049, 103 S.Ct. 3352 (1983). Only two rights have hitherto been recognized by the Supreme Court as protected against private conspirators under section 1985(3): the right to be free from involuntary servitude and the right to interstate travel. See Brown, 250 F.3d at 805 (citingBray v. Alexandria Women's Health Clinic, 506 U.S. 263, 278, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993)). In Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 378, 60 L.Ed.2d 957, 99 S.Ct. 2345 (1979), the Supreme Court held that rights pursuant to Title VII could not be the basis for a section 1985(3) claim. In their concurring opinions, Justices Stevens and Powell extended this holding to state that section 1985 was intended to provide a remedy only for the violation of rights protected by the Constitution and not for the violation of statutory rights. See Novotny, 442 U.S. at 379-85.
Plaintiff contends that her allegation of a section 1981 violation supports her claim under section 1985(3). There is conflicting authority among the district courts on whether section 1981 may be the basis of a section 1985 claim. See, e.g., Weeks v. Coury, 951 F. Supp. 1264, 1277 (S.D.Tex. 1996) ("The courts have recognized that Section 1985(3) claims may be supported by rights created under Section 1981") (citing Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769 (N.D.Ill. 1993); Alder v. Columbia Historical Society, 690 F. Supp. 9 (D.D.C. 1988)). Nevertheless, although stated in dictum, the Third Circuit Court of Appeals in Brown rejected the same argument posed by plaintiff. Without expressly adopting the concurring positions of Justices Stevens and Powell in Novotny, the Brown court set forth a legal standard which required the rights protected by section 1985 to be guaranteed by the Constitution. See Brown, 250 F.3d at 804. Accordingly, the Brown court observed that statutory rights pursuant to section 1981 cannot be the basis of a section 1985 remedy. Id. at 805. The court further stated:
Plaintiff correctly notes that defendants have failed to move to dismiss her section 1981claim. Defendants have not filed a reply brief nor moved to add the section 1981claim to their motion for dismissal.
The Brown court ultimately reserved the issue, noting that it "need not resolve the question whether violations of §§ 1981 and 1982 can support a § 1985(3) claim because [plaintiffs] have failed to state a claim under either § 1981 or § 1982." Brown, 250 F.3d at 806. Nevertheless, the direction provided by the dictum is persuasive. See Harden v. RR Donnelly, C.A. No. 01-6147, 2002 U.S. Dist. LEXIS 12124, at **4-5 (E.D.Pa. April 1, 2002) (denying motion for reconsideration on section 1985 claim based on Brown dictum).
[Plaintiffs] Black Smokers attempt to salvage their § 1985(3) claims by arguing that defendants' alleged violations of §§ 1981 and 1982 may support a claim under § 1985(3). In light of the overwhelming preponderance of authority on the question, this argument too must fail. Contrary to Black Smokers' claims, [the Supreme Court opinion in] Bray[,506 U.S. at 278,] does not support the proposition that §§ 1981 or 1982 claims can form the basis of a § 1985(3) claim or the notion that the contract and property rights protected by §§ 1981 and 1982 fall within the category of "involuntary servitude" violations that may support a § 1985(3) claim.Id. at 805-06 (internal citations and footnote omitted). Thus, the strong language used indicates how the Third Circuit Court of Appeals would resolve this issue. Because plaintiff has failed to allege that defendants conspired to violate her fundamental rights protected by the Constitution against private encroachment, her section 1985(3) claim cannot stand.
Section 1986 constitutes an additional safeguard against the wrongs prohibited by section 1985. Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994). It provides a cause of action for recovery against anyone who with knowledge of a section 1985 conspiracy and the power to prevent its violation, neglects or refuses to do so. To state a claim under section 1986, plaintiffs must show the existence of a section 1985 conspiracy.Id. As discussed above, plaintiff has failed to state a cause of action under section 1985; consequently, her section 1986 claim is untenable.
Section 1986 provides, in relevant part:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented. . . .42 U.S.C. § 1986.
I therefore conclude that the claims under sections 1985 and 1986 will be dismissed.
2. Intentional Infliction of Emotional Distress
The tort of intentional infliction of emotional distress is defined under Pennsylvania law as "'[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.'" Shaner v. Synthes, 204 F.3d 494, 507 (3d Cir. 2000) (quoting Hoy v. Angelone, 554 Pa. 134, 150, 720 A.2d 745, 753 (1998) (quoting Restatement (Second) of Torts § 46)). "'[C]ourts have been chary to allow recovery for a claim of intentional infliction of emotional distress. Only if conduct which is extreme or clearly outrageous is established will a claim be proven.'"Id. (quoting Hoy, 720 A.2d at 753-54). In addition, the complaint must allege physical injury in order to support a claim for intentional infliction of emotional distress. See Atkinson v. City of Philadelphia, C.A. No. 99-1541, 2000 U.S. Dist. LEXIS 8500, at **19-21 (E.D.Pa. June 20, 2000); Corbett v. Morgenstern, 934 F. Supp. 680, 684 (E.D.Pa. 1996) (citing Rolla v. Westmoreland Health Sys., 438 Pa. Super. 33, 38, 651 A.2d 160, 164 (1994); Armstrong v. Paoli Memorial Hosp., 430 Pa. Super. 36, 43, 633 A.2d 605,608 (1993); Abadie v. Riddle Memorial Hosp., 404 Pa. Super. 8, 13, 589 A.2d 1143, 1146 (1991)). The complaint here fails to allege any physical injury suffered by plaintiff. Therefore, I conclude that plaintiff has failed to state a claim for intentional infliction of emotional distress.
The Court of Appeals for the Third Circuit has noted that the Pennsylvania Supreme Court has not explicitly adopted the Restatement; however, the court assumed the existence of the tort and appeared to have relied on the Restatement. See Shaner, 204 F.3d at 508 n. 18 (citingHoy, 720 A.2d at 753 n. 10).
3. Defunct Corporate Defendants
Defendant has moved to dismiss the claims against the corporate defendants that are now defunct. Plaintiff has expressly stated that she has no objection to this dismissal. Therefore, the motion of defendants to dismiss the claims against all defendants other than those against defendant Boscov's Department Stores, LLC will be granted.
4. Paragraphs 20, 21 and 23 of the Complaint
Defendant has moved to strike paragraphs 20, 21 and 23 from the complaint as immaterial, impertinent and scandalous material. Rule 12(f) permits a court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "While courts possess considerable discretion in weighing Rule 12(f) motions, such motions are not favored and will be generally be denied unless the material bears no possible relation to the matter at issue and may result in prejudice to the moving party." Miller v. Group Voyagers, Inc., 912 F. Supp. 164, 168 (E.D.Pa. 1996) (citingNorth Penn Transfer v. Victaulic Co. of Am., 859 F. Supp. 154, 158 (E.D.Pa. 1994); Great W. Life Assurance Co. v. Levithan, 834 F. Supp. 858, 864 (E.D.Pa. 1993)); see also Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1380 at 647 (2d ed. 1995). Paragraphs 20, 21 and 23 describe the actions of Steward towards plaintiff's daughter and the threats of an unidentified security guard towards the companion of plaintiff's daughter. Defendants have demonstrated no prejudice that would result should the allegations remain. Accordingly, the motion to strike paragraphs 20, 21, and 23 will be denied.
5. Injunctive Relief, Medical Expenses, Lost Wages
Defendant has further moved to strike plaintiff's request for injunctive relief, medical expenses, and lost wages as unavailable under the asserted causes of action and facts alleged. Plaintiff has failed to address this request in her response. Equitable relief is not available when a plaintiff has an adequate remedy at law. Barnes v. Am. Tobacco Co., 989 F. Supp. 661, 667 (E.D.Pa. 1997); Doe v. Provident Life Accident Ins. Co., 936 F. Supp. 302, 305 (E.D.Pa. 1996). Plaintiff has not alleged any facts that would warrant the grant of injunctive relief, nor has she alleged that she has either incurred medical expenses or lost any wages as a result of the alleged incident. Accordingly, defendant's motion to strike the requested injunctive relief, medical damages and lost wages will be granted.
6. Amended Complaint
Defendants have requested that plaintiff file an amended complaint pursuant to Federal Rule of Civil Procedure 12(e) repleading all averments concerning damages. "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." Fed.R.Civ.P. 12(e). "The class of pleadings that are appropriate subjects for a motion under Rule 12(e) is quite small — the pleading must be sufficiently intelligible for the court to be able to make out one or more potentially viable legal theories on which the claimant might proceed." Sun Co. v. Badger Design Constructors, 939 F. Supp. 365, 368 (E.D.Pa. 1996) (citing 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1376 (1990)). Granting the motion is appropriate only when the pleading is "so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith, without prejudice to itself." Id. (citation and internal brackets omitted). I find that even with the requested remedies of injunctive relief, medical expenses and lost wages stricken from the complaint, the pleading is not so vague or ambiguous that defendants could not respond. Accordingly, the request for an amended complaint is denied.
D. Conclusion
For the foregoing reasons, I conclude that plaintiff has failed to state a claim for relief under sections 1985(3) and 1986 and under Pennsylvania law for intentional infliction of emotion distress. Consequently, paragraphs 29 and 30 of Count I and all of Count II of the complaint will be dismissed. Further, all claims against the defendants other than those against Boscov's Department Stores, LLC, will be dismissed, as will plaintiff's request for injunctive relief, medical expenses and lost wages. The motion of defendants to strike paragraphs 20, 21 and 23 from the complaint and for an amended complaint will both be denied.
An appropriate Order follows.
ORDER
AND NOW, this 17th day of July, 2002, upon consideration of the motion of defendants Boscov's Inc., Boscov's Department Store, Inc., Boscov's Department Store, LLC, Ports of the World, Inc., Ports of the World LLC to dismiss for failure to state a claim pursuant to Rule 12(b)(6), for a more definite statement pursuant to Rule 12(e), and to strike pursuant to Rule 12(f) of the Federal Rules of Civil Procedure (Document No. 6), and the response of plaintiff Olivia Dixon thereto (Document No. 10), and for the reasons set forth in the foregoing memorandum, IT IS HEREBY ORDERED that the motion of defendants to dismiss plaintiff's claims under 42 U.S.C. § 1985 and 1986 and under Pennsylvania law for intentional infliction of emotional distress is GRANTED; to dismiss the claims against all defendants other than defendant Boscov's Department Store, LLC, is GRANTED; to strike plaintiff's request for injunctive relief, medical expenses and lost wages is GRANTED; to strike paragraphs 20, 21 and 23 from plaintiff's complaint is DENIED; and for an amended complaint is DENIED. Accordingly, plaintiff's claims under 42 U.S.C. § 1985 and 1986 in paragraphs 29 and 30 of Count I and for intentional infliction of emotion distress in Count II of the complaint are DISMISSED as to all defendants and plaintiff's claim under 42 U.S.C. § 1981 in paragraph 31 of Count I of the complaint is DISMISSED as to defendants Boscov's Inc., Boscov's Department Store, Inc., Ports of the World, Inc., and Ports of the World LLC.
IT IS FURTHER ORDERED that defendant Boscov's Department Store, LLC, shall answer the remaining allegations of a violation under 42 U.S.C. § 1981 in the complaint no later than August 19, 2002.