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denying motion to dismiss malicious prosecution claim where plaintiff argued that defendant falsely alleged that he had stolen computers
Summary of this case from Smalls v. City of N.Y.Opinion
Civil Action No. CV-07-5441(DGT) (RML).
March 27, 2009
MEMORANDUM AND ORDER
Plaintiff, Dewayne Rivers ("Rivers"), has filed a complaint against defendants The City of New York, Commissioner Raymond W. Kelley, Commissioner Martin F. Horn, Assistant District Attorney Saland ("A.D.A Saland"), New York County District Attorney Detective Squad Police Detective Mark Weber ("P.O. Weber"), New York Police Department ("NYPD") Officers John Does #1-#10 ("P.O. John Does #1-#10"), New York City Department of Corrections Officers John Does #1-#10 ("Correction Officer John Does #1-10"), Towers, Perrin, Forster Crosby, Inc. ("Towers Perrin") and John Doe Private Investigative Firm #1 ("P.I. Firm"). Plaintiff alleges that he was unlawfully subject to false arrest and imprisonment, excessive force, unlawful search and seizure, unlawful strip search, malicious prosecution, assault and battery, intentional and negligent infliction of emotional distress, retaliation for free speech, fabricated evidence, conspiracy, harassment, defamation, libel, slander, unconstitutional conditions of confinement, conversion of chattels, abuse of process, negligence, gross negligence, negligent hiring and retention of incompetent employees and implementation of an unlawful municipal policy, practice or custom. Rivers asserts that he is entitled to relief under 42 U.S.C §§ 1983 and 1985(3), the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and various elements of state law.
Defendant Towers Perrin has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Mr. Rivers' claims of defamation, false arrest and imprisonment, malicious prosecution, intentional and negligent infliction of emotional distress, fabricated evidence, conspiracy, harassment, negligence, gross negligence, negligent hiring and retention of incompetent and unfit employees and negligent supervision, training and instruction of employees. Towers Perrin argues, with respect to all of these causes of action, that the plaintiff has failed to state a claim upon which relief may be granted. In the alternative, defendant Towers Perrin moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss plaintiff's state law defamation claim for lack of subject matter jurisdiction. For the following reasons, Towers Perrin's motion is granted in part and denied in part.
Background
In his First Amended Complaint ("Am. Compl."), plaintiff claims that his arrest and subsequent prosecution arose from events surrounding the loss or theft of a number of laptop computers containing sensitive information from the office of his former employer, defendant Towers Perrin. Am. Compl. at ¶¶ 36-37. The following facts are included in plaintiff's complaint and, for the purposes of this order, are presumed to be true.
On December 28, 2006, P.O. Weber and P.O. John Does #1-#10 illegally entered the home of plaintiff Dewayne Rivers without a search warrant, probable cause or reasonable suspicion that plaintiff had committed a crime. Id. at ¶¶ 17-19. Once inside the home, P.O. Weber and P.O. John Does #1-10 used excessive force in arresting plaintiff for the theft of a number of computers from the offices of his former employer Towers Perrin. Id. at ¶ 21, 24.
Following his arrest, plaintiff was arraigned at Central Booking and then transferred to the Manhattan Detention Center.Id. at ¶ 27. While at the Detention Center, Commissioner Martin F. Horn and Correction Officer John Does #1-10 publically strip searched plaintiff and forced him to provide a DNA sample without justification or a court order. Id. Additionally, A.D.A Saland endeavored to circumvent Mr. Rivers' Sixth Amendment right to an attorney by initiating a discussion with him after he had invoked his right to have an attorney present. Id. at ¶ 28. A.D.A Saland proceeded with a criminal prosecution against the plaintiff until it was dismissed in its entirety on July 9, 2007, thereby terminating in plaintiff's favor. Id. at ¶ 24.
Plaintiff claims that his arrest and the charges brought against him arose from a conspiracy between Towers Perrin, the P.I. Firm, Officers John Does #1-#10, P.O. Weber and A.D.A Saland. Id. at ¶¶ 24-25. Specifically, Towers Perrin and the P.I. firm intentionally, falsely and maliciously accused plaintiff of stealing the computers. Id. at ¶ 25. Plaintiff further claims that Towers Perrin defamed him by falsely and maliciously communicating to third parties that Rivers had stolen their laptop computers. Id. at ¶¶ 36-47. Towers Perrin wanted to convey the impression that the thief had been apprehended and its computers would soon be recovered. Id. at ¶ 37.
Discussion (1) The Standard Governing Motions to Dismiss
When deciding a motion to dismiss, the central question is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. . . . " Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quotation omitted). In evaluating a motion for summary judgment, the court "must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007) (quotation omitted). For a claim to survive a motion to dismiss, the complaint has to contain "enough facts to state a claim to relief that is plausible on its face."Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1973 (2007). A pleader must "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claimplausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original).
(2) Plaintiff's Claims
a. Malicious Prosecution
Plaintiff has properly stated a claim against Towers Perrin for malicious prosecution. Under New York law, a plaintiff must establish four elements: "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice." Smith-Hunter v. Harvey, 95 N.Y.2d 191, 195, 734 N.E.2d 750, 753, 712 N.Y.S.2d 438, 441 (2000) (quotation omitted).
Towers Perrin argues that this claim should be dismissed on three grounds. First, Towers Perrin argues that the plaintiff has not adequately plead that Towers Perrin commenced the criminal prosecution. Mem. in Supp. of Mot. to Dismiss at 4 ("Mot. to Dis."). Towers Perrin argues that it merely provided information to the police and that the government made an independent decision to bring charges — one for which Towers Perrin cannot be held responsible. Id. A civilian defendant can be deemed to have commenced a criminal prosecution when that defendant "play[ed] an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act."Lupski v. County of Nassau, 32 A.D.3d 997, 998, 822 N.Y.S.2d 112, 114 (2d Dep't 2006) (quotation omitted). Giving information to the police that is known to be false qualifies as the commencement of a prosecution. See id.
"Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney." Lupski, 32 A.D.3d at 998, 822 N.Y.S.2d 112.
In the instant case, the plaintiff adequately alleges that Towers Perrin commenced the prosecution. Specifically, plaintiff claims that the defendant "intentionally, falsely and maliciously asserted that plaintiff had committed various crimes to purposely cause plaintiff's false arrest. . . ." Am. Compl. at ¶ 25. Though the plaintiff has not alleged, in so many words, that Towers Perrin knew that the information was false, the Federal Rules of Civil Procedure requires that the pleadings be construed to do justice. See Fed.R.Civ.P. 8(e). By alleging that Towers Perrin intentionally made a false allegation against him, plaintiff has effectively alleged that Towers Perrin knowingly made a false allegation. Accordingly plaintiff has adequately plead that Towers Perrin commenced the criminal proceeding.
Second, Towers Perrin claims that Rivers has not sufficiently alleged actual malice. Mot. to Dis. at 5. Malice, under New York law, "'means that the defendant must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than the desire to see the ends of justice served.'"Mitchell v. County of Nassau, No. CV-05-4957 (SJF) (WDW), 2007 WL 1580068, at *9 (E.D.N.Y. May 24, 2007) (quoting Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir. 1994)). As noted above, plaintiff claims that Towers Perrin knew that its allegations against plaintiff were false and that Towers Perrin made the allegations to provide a false assurance that the laptops — which allegedly contained sensitive data — would be recovered quickly. Am. Compl. at ¶¶ 36-37. If true, these motives are wrongful on their face and are sufficient to make out a claim of malice.
Towers Perrin also argues that the complaint does not sufficiently allege actual malice because it does not plead "specific facts." Mot. to Dis. at 5-6. However, under the Federal Rules of Civil Procedure, a general averment of malice is sufficient. Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 410 (2d Cir. 2000) (citing Fed.R.Civ.P. 9(b)); cf. Pirre v. Printing Devs., Inc., 432 F. Supp. 840, 843 (S.D.N.Y. 1977).
Third, Towers Perrin contends that plaintiff has not sufficiently plead that the prosecution was terminated in his favor. Mot. to Dis. at 7. Plaintiff's pleadings state that "the case against plaintiff was dismissed in its entirety on July 9, 2007, terminating in plaintiff's favor." Am. Compl. at ¶ 24. In essence, the plaintiff has asserted that the standard is met without alleging specific facts. Towers Perrin argues that plaintiff's description is too vague because it does not specify that the prosecution was terminated with prejudice. Mot. to Dis. at 6-7.
It is true that plaintiff must ultimately show that the disposition was with prejudice and that this may require more specifics at a later stage of the litigation. See Smith-Hunter, 95 N.Y.2d at 195, 734 N.E.2d 750, 712 N.Y.S.2d 438. However, the requirement for specific evidence of the nature of the termination generally attaches at the summary judgment phase — not on a motion to dismiss. Compare Neal v. Fitzpatrick, 250 F. Supp. 2d 154, 155 (E.D.N.Y. 2003) (motion for summary judgment) with Hill v. City of New York, No. 05 Civ. 9473 RMB JCF, 2006 WL 2347739, at *3 (S.D.N.Y. Aug. 14, 2006) (motion to dismiss). At the pleading stage, the plaintiff need only state a claim — and need only plead specific facts where necessary to render the claim plausible. Iqbal, 490 F.3d at 157-158. There is nothing implausible about a bare allegation that the prosecution terminated in plaintiff's favor and hence there is no need to amplify that allegation by pleading specific facts. See, e.g., Hill, 2006 WL 2347739, at *3 (finding that a malicious prosecution claim survives a motion to dismiss even where the exact basis of the dismissal is "unclear" and collecting cases).
In sum, the amended complaint as plead is sufficient to support a claim for malicious prosecution to withstand a 12(b)(6) motion to dismiss.
b. False Arrest
Plaintiff has properly stated a claim for false arrest. Towers Perrin contends that Mr. Rivers' false arrest claim is insufficient because it does not allege that Towers Perrin played an active role in his arrest. Mot. to Dis. at 7-8. Under New York law, an action for false arrest does not arise when a private individual "merely seek[s] police assistance or furnishes information to law enforcement authorities." Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128, 131, 688 N.Y.S.2d 12, 15 (1st Dep't 1999). However, an action in false arrest "will lie where the defendants 'lacked reasonable cause for their belief in the plaintiff's culpability'". Weintraub v. Board of Educ. of City of New York, 423 F. Supp. 2d 38, 56 (E.D.N.Y. 2006) (quotingDeFilippo v. County of Nassau, 183 A.D.2d 695, 696-97, 583 N.Y.S.2d 283, 284 (2d Dep't 1992)).
Plaintiff properly alleges that Towers Perrin lacked reasonable cause for their belief in his culpability. Specifically, he claims that Towers Perrin "intentionally, falsely and maliciously asserted that plaintiff had committed various crimes to purposely cause plaintiff's false arrest. . . ." Am. Compl. at ¶ 25. While plaintiff's complaint does not specifically assert that Towers Perrin "lacked reasonable cause" for its belief that plaintiff was guilty, it accomplishes the same end. Id. ¶ 36. Because the pleadings must be construed to do justice, Fed.R.Civ.P. 8(e), the plaintiff's failure to use the precise form of words found in the cases does not invalidate his claim. The motion to dismiss is therefore denied with respect to plaintiff's false arrest claim.
c. Abuse of Process
Plaintiff has properly stated a claim for abuse of process. Under New York law, abuse of process has three essential elements: "'(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective.'" Silver v. Kuehbeck, No. 05 Civ. 35(RPP), 2005 WL 2990642, at *6 (S.D.N.Y. Nov. 7, 2005) (quoting Curiano v. Suozzi, 63 N.Y.2d 113, 116, 469 N.E.2d 1324, 1326, 480 N.Y.S.2d 466, 467 (1984)). "The torts of malicious prosecution and abuse of process are closely allied. While malicious prosecution concerns the improper issuance of process, [t]he gist of abuse of process is the improper use of process after it is regularly issued." Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (quotation omitted, brackets in original). Towers Perrin argues that the abuse of process claim should be dismissed because (1) Towers Perrin did not issue process, (2) plaintiff has not sufficiently alleged that Towers Perrin intended to do harm and (3) plaintiff has not sufficiently alleged that Towers Perrin had a collateral objective. See Mot. to Dis. at 10-12.
The New York Court of Appeals elaborated on the distinction between malicious prosecution and abuse of process in Hauser:
If he uses the process of the court for its proper purpose, though there is malice in his heart, there is no abuse of the process. He may be liable for malicious prosecution. . . . As soon as the actor uses the process of the court . . . to accomplish through it some collateral object, he commits [abuse of process]. . . . If one resorts to legal process to have another declared incompetent, and uses it for that purpose, he does not commit the wrong . . . no matter what his motives. . . . But if he makes use of that process . . . to extort money, or to coerce action, that is a perversion of process.Hauser v. Bartow, 273 N.Y. 370, 374, 7 N.E.2d 268, 269-70 (1937).
Plaintiff properly alleges that Towers Perrin issued process for similar reasons to those applicable to the malicious prosecution claim. In order to be found to have issued process, a defendant must have promoted or facilitated the prosecution. See Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003). As with the malicious prosecution claim, Towers Perrin argues that they did not actively participate in the issuance of process because they merely gave information to the police. See Mot. to Dis. ¶ D. As noted above, plaintiff alleges that defendants "intentionally, falsely and maliciously asserted that plaintiff had committed various crimes to purposely cause plaintiff's false arrest. . . ." Am. Compl. at ¶ 25. This is sufficient to constitute issuance of process. Cf. Lupski, 32 A.D.3d at 998, 822 N.Y.S.2d 112 (considering the equivalent issue in the context of malicious prosecution).
Plaintiff has also adequately plead both an intent to do harm and a collateral objective. Regarding defendant's intent to do harm, "'that regularly issued process was perverted to the accomplishment of an improper purpose is enough.'" Webster v. City of New York, 333 F. Supp. 2d 184, 208 (S.D.N.Y 2004) (quoting Dean v. Kochendorfer, 237 N.Y. 384, 390, 143 N.E. 229, 231 (1924)). For the collateral objective element to be satisfied, the plaintiff "must claim that they aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution." Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003). By alleging that defendants "wished to give the false impression that the laptops would soon be recovered," Am. Compl. at ¶ 37, and therefore allowed process to proceed "even though it knew its claims were false," Am. Compl. at ¶ 36, plaintiff has sufficiently pled both a collateral objective and an intent to do harm. Conveying this false impression was both an objective in addition to the prosecution itself and also improper on its own.
d. Defamation
i. Failure to State a Claim
Plaintiff's amended complaint does not state a claim for defamation. Because it appears that plaintiff may be able to plead additional facts that could make out a claim for defamation, this claim will be dismissed without prejudice and leave will be granted to amend the complaint. See Van Buskirk v. The New York Times Co., 325 F.3d 87, 91 (2d Cir. 2003). While a complaint for defamation need not be absolutely specific with regard to the statements at issue, it must give a defendant "sufficient notice of the communications complained of to enable [it] to defend [itself]." Reilly v. Natwest Markets Group Inc., 181 F.3d 253 (2d Cir. 1999) (quotation omitted, brackets in original). A complaint for defamation must "adequately identif[y] the purported communication, and [provide] an indication of who made the statement, when it was made, and to whom it was communicated." Mehrhoff v. William Floyd Union Free Sch. Dist., No. 04-C-3850 (JS) (MLO), 2007 WL 4591741, at *5 (E.D.N.Y. Dec. 18, 2007); see also Mahmud v. Bon Secours Charity Health Sys., 289 F. Supp. 2d 466, 476 (S.D.N.Y. 2003); Reeves v. Continental Equities Corp. of America, 767 F.Supp. 469, 473 (S.D.N.Y. 1991). "Once the defendant has sufficient notice of the nature of the communications complained of it is the function of the jury rather than of rigidly applied pleading rules to ascribe weight to the inexactness of such complaints." Pirre, 432 F. Supp. at 843.
Plaintiff's first amended complaint does not provide sufficient notice regarding the relevant communications. In one portion of plaintiff's complaint, he alleges that Towers Perrin published "false claims and statements" and "falsely and maliciously claim[ed] that plaintiff had stolen its personal property, namely laptop computers. . . ." Am. Compl. at ¶ 36. However, regarding the recipient of the communications, the complaint only alleges that they were made to "one other person," for example id. at ¶ 39, and "electronic broadcasts, the media, the internet, newspapers, and letters to the public. . . ." Id. at ¶ 36. Plaintiff also makes no allegation regarding which specific person made the comments in question. Id. In his reply papers, plaintiff points to his allegations that Towers Perrin made accusatory statements to cause plaintiff's arrest. Mem. of Law in Opp. to Def. Towers Perrin's Mot. to Dismiss at 17 ("Rep. to Mot."). However, these statement say nothing about the identity of the individual who made the allegations. Accordingly, plaintiff's complaint does not give Towers Perrin enough information to prepare its defense.
However, plaintiff has requested that he be allowed to amend his pleading to include additional information. Rep. to Mot. at 19. Plaintiff's reply includes more specific allegations regarding the identity of the person who made the statements to law enforcement authorities, the fact that several letters were sent regarding the robbery in January of 2007 and that letters were sent to two companies. Id. It is not entirely clear whether these additional allegations will suffice to state a claim. However, leave to amend should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(1). Indeed, it will be easier to evaluate the additional allegations when they have been submitted in their final form rather than merely described in motion papers. Accordingly, the claim is dismissed without prejudice and plaintiff is granted leave to amend. Should Towers Perrin believe that the additional allegations are still insufficient, it may move to dismiss them at a later date.
ii. Lack of Supplemental Jurisdiction
Towers Perrin also moves to dismiss plaintiff's defamation claim for lack of supplemental jurisdiction. Were this motion granted, a dismissal with prejudice might be appropriate. However, plaintiff's defamation claim survives defendant's motion. "Supplemental jurisdiction allows federal courts to hear and decide state-law claims along with federal-law claims when they are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." Wisconsin Dep't. of Corr. v. Schacht, 524 U.S. 381, 387 (1998) (quotation and citations omitted). State law claims form part of the same case or controversy when they "'derive from a common nucleus of operative fact'" as the federal claims. City of Chicago v. Int. College of Surgeons, 522 U.S. 156, 165 (1997) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)); see also 28 U.S.C. § 1367(a). Though supplemental jurisdiction is not mandatory, the exercise of such jurisdiction "is a favored and normal course of action." Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir. 1991); see also 28 U.S.C. § 1367(c). Defendant argues that plaintiff's defamation claim should be dismissed because it does not arise out of a common nucleus of operative fact as plaintiff's federal claims against the New York Police Department. Am. Compl. at 19 (citing United Mine Workers, 383 U.S. at 724-25 (1966)).
Plaintiff's defamation claims, however, do arise out of the same nucleus of operative fact as plaintiff's federal claims. Whether a state claim arises out of a common nucleus of operative fact as a federal claim generally depends on the degree of factual overlap between the federal and state claims. See Rosario v. Amalgamated Ladies' Garment Cutters' Union, Local 10, I.L.G.W., 605 F.2d 1228, 1247 (2d Cir. 1979) For instance there generally is a common nucleus of operative fact on a particular state law claim when litigating a federal claim will shed light on a defendant's state of mind in a manner that is relevant to the state law claim. See id.
In our case, litigation of plaintiff's federal claims will necessarily shed light on Towers Perrin's state of mind in a manner relevant to plaintiff's state law claims. With respect to plaintiff's federal claims, he alleges that Towers Perrin was part of a conspiracy with several parties, including P.O. Weber and NYPD Officers John Does #1-#10 to "falsely and maliciously" assert that plaintiff had committed various crimes. Am. Compl. at ¶ 24. This assertion undoubtedly forms part of plaintiff's federal claims against the NYPD officers, which include a cause of action for conspiracy to deny plaintiff his civil rights under 42 U.S.C. § 1985(3). See Am. Compl. at ¶¶ 24, 51. With respect to plaintiff's state law claims, a key allegation of plaintiff's state law defamation claim against Towers Perrin is that Towers Perrin's public allegations were "false[] and malicious[]." See Am. Compl. at ¶ 36.
Accordingly, both the federal claims against the NYPD officers and the defamation claim against Towers Perrin rely partly on Towers Perrins state of mind with respect to the allegations against plaintiff. Therefore, a common nucleus of operative fact exists between the federal claims and the state defamation claim. Accordingly, the defamation claim will not be dismissed on jurisdictional grounds — though it will be dismissed without prejudice for failure to state a claim for the reasons discussed above.
e. Intentional Infliction of Emotional Distress
Part of plaintiff's claim for intentional infliction of emotional distress will be dismissed by this order. Another part of the claim will be dismissed if plaintiff does not file additional argument within 35 days of this order, as described more fully below. Though plaintiff's complaint is not entirely specific about what events form the basis of his claim, his complaint can be read to assert a cause of action arising out of (1) Towers Perrin's providing information to the police and (2) the same events involved in plaintiff's defamation claim. Rep. to Mot. at 21. "Under New York law, a claim of intentional infliction of emotional distress requires: (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Conboy v. AT T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quotation omitted).
Plaintiff has failed to state a claim for intentional infliction of emotional distress with respect to Towers Perrin's providing information to the police. As noted, plaintiff alleges that Towers Perrin "intentionally, falsely and maliciously asserted [to the police] that plaintiff had committed various crimes. . . ." Am. Compl. at ¶ 25. A claim of intentional infliction of emotional distress requires the alleged conduct be "so extreme in degree as to go beyond all possible bounds of decency." Hill v. City of New York, No. 5 Civ. 9473 RMB JCF, 2006 WL 2347739, at *5 (S.D.N.Y. Aug. 14, 2006) (quoting Conboy, 241 F.3d at 258). Allegations of providing false information to the police, however, do not suffice. For example, in Hill, the plaintiff claimed that she suffered emotional distress when her employer provided false information to the police that resulted in her arrest. Id. at *5. However, the Court ruled that, even taking her allegations as true, her employer's conduct was insufficiently outrageous to sustain a claim of intentional infliction of emotional distress. See id. (also collecting cases); see also Silver v. Kuehbeck, No. 05 Civ. 35 (RPP), 2005 WL 2990642, at *4, 7-8 (S.D.N.Y Nov. 7, 2005) (motion to dismiss granted on intentional infliction of emotional distress claim in case where plaintiff alleged defendants had made false statements to the police to cause his arrest); Brown v. Sears Roebuck Co., 297 A.D.2d 205, 211-12, 746 N.Y.S.2d 141, 147-48 (1st Dep't 2002). Accordingly, to the extent that plaintiff claims intentional infliction of emotional distress arising out of Towers Perrin's statements to the police, the claim is dismissed.
There is at least one case in which a New York court upheld a claim for intentional infliction of emotional distress arising from a false accusation of criminal conduct. Levine v. Gurney, 149 A.D.2d 473, 539 N.Y.S.2d 967 (2d Dep't. 1989). However, the Second Circuit has expressly discredited Levine, noting that "the unusual personal involvement of the police officer with the victim's husband makes that case a doubtful authority for inferring any generalized rule." Bender v. City of New York, 78 F.3d 787, 791 (2d Cir. 1996) (discussing whether an intentional infliction of emotional distress claim is permitted when the claim it falls within the ambit of a traditional tort).
It also appears that plaintiff's claim arising out of the alleged defamation should be dismissed on the court's own motion because the claim falls within the ambit of the tort of defamation. "The district court has the power to dismiss a complaint sua sponte for failure to state a claim so long as the plaintiff is given notice and an opportunity to be heard."Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (quotations and citations omitted). A claim for intentional infliction of emotional distress may be dismissed when the conduct complained of falls "within the ambit" of another tort.See Hirschfeld v. Daily News, L.P., 269 A.D.2d 248, 249, 703 N.Y.S.2d 123, 124 (1st Dep't 2000) (dismissing an intentional infliction of emotional distress claim because it fell within the ambit of the tort of defamation) (quotation omitted). In our case, plaintiff's allegations with respect to this portion of his intentional infliction of emotional distress claim overlap entirely with his defamation claim. Indeed, they arise from the same factual allegations in his complaint. Rep. to Mot. at 21.
The rationale for dismissing a claim falling within the ambit of a tradition tort is that "intentional infliction of emotional distress may encompass otherwise lawful conduct, it is a theory of liability that is to be invoked only as a last resort." Vione v. Tewell, 12 Misc.3d 973, 980, 820 N.Y.S.2d 682, 687-88 (Sup. Ct. New York County 2006).
It could be argued that it is insufficiently clear that the New York courts would dismiss an intentional infliction of emotional distress claim on the grounds that it falls within the ambit of another tort. See Bender v. City of New York, 78 F.3d 787, 792 (2d Cir. 1996) (finding that it was "uncertain" whether a New York court would dismiss on these grounds). The seminal New York Court of Appeals case on this issue was at least arguably dicta.Id. (discussing Fischer v. Maloney, 43 N.Y.2d 553, 558, 373 N.E.2d 1215, 1217, 402 N.Y.S.2d 991, 993 (1978)).
However, since Bender, New York law has moved solidly in favor of the proposition that an intentional infliction of emotional distress claim may be dismissed when it falls within the ambit of a traditional tort. Bender noted that the strongest case supporting the view that an intentional infliction of emotional distress claim could not be dismissed because it fell within the ambit of another tort was Levine v. Gurney, 149 A.D.2d 473, 539 N.Y.S.2d 967 (2d Dep't. 1989). Bender, 78 F.3d at 792. However, the Bender court noted that Levine was decided on unusual facts and therefore was not a strong case for inferring a general rule. Id. Moreover, since Bender was decided, the Second Department — which decided Levine — has subscribed to the view that an intentional infliction of emotional distress claim may be dismissed when the conduct complained of falls within the ambit of another tort. See, e.g., Loenard v. Reinhardt, 20 A.D.3d 510, 510, 799 N.Y.S.2d 118, 118 (2d Dep't. 2005); Brancaleone v. Mesagna, 290 A.D.2d 467, 468, 736 N.Y.S.2d 685, 687 (2d Dep't 2002). There is therefore a consensus among the Appellate Departments that an intentional infliction of emotional distress claim may be dismissed if it falls within the ambit of another claim. See, e.g., Hirschfeld, 269 A.D.2d at 249, 703 N.Y.S.2d 123 (first department); Butler v. Delaware Otsego Corp., 203 A.D.2d 783, 610 N.Y.S.2d 664 (3d Dep't 1994).
Accordingly, it appears that plaintiff's intentional infliction of emotional distress claim should be dismissed because it is within the ambit of the tort of defamation. However, this ground was not urged by Towers Perrin and the plaintiff is entitled to notice and an opportunity to be heard.Wachtler, 35 F.3d at 82. Therefore, plaintiff will have thirty days from the date of this order to file a motion in opposition. Should plaintiff fail to do so, this portion of the claim will be dismissed as well. Should plaintiff file such a motion, Towers Perrin will then have 35 days to file a reply. Cf. Hill v. Goord, 63 F. Supp. 2d 254, 259-60 (E.D.N.Y. 1999) (employing a similar procedure with respect to a sua sponte motion to dismiss for failure to state a claim).
f. Negligent Infliction of Emotional Distress
Plaintiff has not adequately plead a claim for negligent infliction of emotional distress. Under New York law, negligent infliction of emotional distress requires the same standard of "extreme and outrageous" conduct as does intentional infliction of emotional distress. See Dawkins v. Williams, 413 F.Supp.2d 161, 178-179 (N.D.N.Y. 2006) (collecting cases). As discussed above, defendants conduct relating to plaintiff's arrest does not rise to the requisite level. With respect to the claims overlapping with plaintiff's defamation claim, these also fail to state a claim. Though a physical injury is no longer a prerequisite for a negligent infliction of emotional distress claim, there must be "breach of a duty owed to plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety." Id. at 179. Furthermore, absent a physical injury courts have been reluctant to allow recovery for "'emotional harm alone.'" Blake v. Race, 487 F.Supp.2d 187, 219 (E.D.N.Y. 2007) (quoting Armstrong ex rel. Armstrong v. Brookdale, 425 F.3d 126, 137 (2d. Cir 2005)). The plaintiff's complaint raises no plausible allegation of physical danger based on the claims arising from the alleged defamation. Accordingly, these claims will be dismissed.
This argument was raised in Towers Perrin's motion to dismiss.See Mot. to Dis. at 14.
e. Negligence/Gross Negligence
Plaintiff has failed to state a claim for negligence and gross negligence. Nowhere in his complaint does plaintiff distinguish his claims for negligence and gross negligence from his claims related to his arrest, prosecution and imprisonment. Accordingly, it appears that he is asserting that Towers Perrin acted negligently with respect to these events. Cf. Rep. to Mot. at 21-22.
As a matter of public policy a negligence claim arising out of an investigation or prosecution will not be recognized under New York law. See Mitchell v. County of Nassau, No. CV-05-4957 (SJF) (WDW), 2007 WL 1580068, at *13 (E.D.N.Y. May 24, 2007) (considering claims against a company for its role in an investigation); See also Grennan v. Nassau County, No. 04-2158 (DRH) (WDW), 2007 WL 952067, at *22 (E.D.N.Y. March 29, 2007);Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013, 1014, 568 N.Y.S.2d 981, 982 (4th Dep't 1991). Therefore Plaintiff's negligence and gross negligence claims are dismissed.
g. Negligent Hiring, Retention and/or Supervising of Employees
The plaintiff has failed to state a claim for negligent hiring, retention and supervising of employees. So far as can be gleaned from the complaint, this claim rises out of the same facts and circumstances as plaintiff's general negligence cause of action. As such, the same policy against negligence claims for investigation applies to these other negligence related claims.Mitchell, 2007 WL 1580068 at *13; Jenkins v. City of New York, 91 Civ. 3639 (RLC), 1992 WL 147647, at *8 (S.D.N.Y. 1992).
i. Conspiracy
j. Harassment
See Pinero v. Long Island State Veterans Home,375 F. Supp. 2d 162164 See Bouchard v. New York Archdiocese, 2006 WL 1375232See Serby, 2006 WL 2853869
k. Fabricated Evidence
Defendant moves that plaintiff's fabricated evidence claim be dismissed because defendant could not locate any legal authority for any such state cause of action. See Mot. to Dis. at 16. The Court has been similarly unable to find a common law cause of action for fabricated evidence and will therefore dismiss this claim. Additionally, plaintiff has not clarified the nature of this claim in his motion papers — or indeed said anything about this claim at all. Given plaintiff's failure to respond to this deficiency in his opposition brief, the motion to dismiss is also granted on the independent ground of waiver. See Serby, 2006 WL 2853869, at *13.
l. Vicarious Liability
Towers Perrin moves to dismiss plaintiff's claim for vicarious liability. Specifically, Towers Perrin claims that plaintiff has failed to plead sufficient facts to show that Towers Perrin is vicariously liable for the actions of the P.I. Firm — whom Towers Perrin hired to look into the loss of the computers. Agency principles generally require that, for a putative principal to be liable for the actions of an agent, the principle must have control over the agent's actions. See Kleeman v. Rheingold, 81 N.Y.2d 270, 273-74, 614 N.E.2d 712, 15, 598 N.Y.S.2d 149, 152 (1993).
In the instant case, nowhere does plaintiff's complaint say that Towers Perrin should be held liable for the actions of the P.I. Firm — let alone make an allegation that Towers Perrin had control over the actions of the P.I. Firm or that an exception to the general rule applies. Indeed, the complaint never so much as uses the phrase "vicarious liability." Under these circumstances, the complaint does not even indicate that plaintiff intended to assert such a claim. It certainly does not provide Towers Perrin with adequate notice to prepare a defense. Accordingly, any such claim of vicarious liability on the part of Towers Perrin for actions committed by the P.I. Firm is dismissed. Moreover, plaintiff has offered no argument on this issue in his motion papers. This claim is therefore also dismissed on the independent ground that it has been waived. See Serby, 2006 WL 2853869, at *13.
Conclusion
Towers Perrin's motion to dismiss is granted in part and denied in part. Plaintiff's claims against Towers Perrin for harassment, fabricated evidence, negligent infliction of emotional distress and vicarious liability with respect to the P.I. Firm do not lie and are dismissed with prejudice. Plaintiff's claim for defamation is dismissed without prejudice and leave to amend his complaint is granted. Plaintiff's claim for intentional infliction of emotional distress is dismissed with prejudice with respect to the conduct arising out of Towers Perrin making their accusation to the police.With respect to his claim for intentional infliction of emotional distress arising out of the alleged defamation, this claim merits dismissal. Plaintiff shall have 35 days from the date of this order to file a motion in opposition to dismissal. In the event such motion is not filed, the claim will be dismissed with prejudice. Should plaintiff file such a motion, Towers Perrin will then have 35 days to file a reply. Towers Perrin's motions to dismiss Rivers' claims for malicious prosecution, false arrest, abuse of process and conspiracy are denied.
SO ORDERED: