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Wade v. Kay Jewelers Inc.

United States District Court, D. Connecticut

September 17, 2018

FABIAN WADE, Plaintiff,


          Michael P. Shea, U.S.D.J.

         Plaintiff Fabian Wade (“Wade”) brings this suit based on an incident at the Buckland Hills Mall where he was identified by employees of Kay Jewelers as a suspect in a prior theft and credit card fraud and questioned by mall security personnel and police. (ECF No. 36.) Wade sued the owner of the Kay Jewelers store, defendant Sterling Jewelers, Inc. (“Sterling”), [1] the mall owner, GGP, Inc. (“GGP”), and numerous Jane and John Does, asserting six claims arising from the incident: (1) violation of 42 U.S.C. § 1981; (2) false imprisonment; (3) defamation per se; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) negligent supervision. Defendant GGP impleaded Professional Security Consultants, Inc. (“PSC”) as the alleged employer of mall security personnel and asserted claims for negligence, common law indemnification, and contractual indemnification. (ECF No. 57.) Sterling and GGP now move to dismiss Wade's amended complaint under Rule 12(b)(6) (ECF Nos. 42, 45), and PSC moves to dismiss part of GGP's third-party complaint under Rule 12(b)(6). (ECF No. 70.) For the reasons that follow, I GRANT in part and DENY in part all three motions.

         I. Factual Background

         1 briefly recite the relevant factual background as set forth in Wade's amended complaint. (ECF No. 36 (hereinafter “Am. Compl.”).) Wade, a black, African-American male, went to the Kay Jewelers store/booth at Buckland Hills Mall in Manchester, CT on Saturday, March 18, 2017. (Am. Compl. at ¶¶ 13-15.) Wade asked an employee if he could look at some earrings, which the attending employee showed him but refused to take out of their glass case. (Id. at ¶¶ 16-18.) Wade decided not to buy the earrings and walked away from the Kay Jewelers store/booth. (Id. at ¶ 19.)

         Within a few minutes, an undercover security or loss prevention officer for the mall, Jane Doe 3, stopped Wade and told him that one of the Kay Jewelers Individual Defendants[2] (either defendant Jane Doe 1 or Jane Doe 2) had identified Wade as an individual they suspected had been robbing Kay Jewelers over the past few months. (Id. at ¶¶ 20-22.) According to the police report of the incident, one of the Kay Jewelers Individual Defendants had called mall security, who in turn called the police, to report Wade for possible ID theft and credit card fraud. (Id. at ¶ 35.) Wade believed that the Kay Jewelers Individual Defendants had “identified [Wade] because of his skin color and because [he] fit their idea of a shoplifter.” (Id. at ¶ 41.)

         Shortly after Wade was stopped, Jane Doe 3 was joined by another mall security officer, John Doe 1, and Officer Decker of the Manchester Police. (Id. at ¶ 23.) Jane Doe 3, John Doe 1, and Officer Decker surrounded Wade, “with Officer Decker in front facing [Wade] and Jane Doe 3 on one side of [Wade] and John Doe 1 on the other side of [Wade], confining [Wade] . . . [and] forcing [Wade] to stay in the space, from where he could not leave.” (Id. at ¶ 26.) Officer Decker told that Wade that a Kay Jewelers employee had told Officer Decker when he responded to the call that Wade was the suspect. (Id. at ¶ 27.) Officer Decker demanded to see Wade's ID and asked about Wade's credit cards. (Id. at ¶ 28.) Officer Decker radioed in Wade's ID and, while holding onto the ID, “forc[ed] [Wade] to walk downstairs with him” to the Kay Jewelers booth/store, despite Wade's repeated requests to return his Id. (Id. at ¶¶ 29-31.) At some point, Wade called his lawyer, soon after which the stop ended and Wade left. (Id. at ¶ 34.). Wade was shaken up by the incident, has had flashbacks, believes his reputation has been harmed, and alleges that he now has a public record as a result Officer Decker running his ID through the Manchester Police system. (Id. at ¶¶ 47-51.)

         The amended complaint pleads on information and belief that Kay Jewelers “top management practice and believe in discrimination . . . creating a corporate culture where Kay Jewelers store employees routinely and disproportionately” discriminate against African-Americans for suspicion of criminal activity. (Id. at ¶ 52.) The amended complaint further asserts that the Kay Jewelers' “employees and loss prevention/security personnel were not properly trained or supervised to prevent Kay Jewelers' employees from targeting African-Americans and people of color” for suspected criminal activity, and were also not “properly trained or supervised” in connection with “accusing customers” of criminal activity and alerting law enforcement personnel of the same. (Id. at ¶ 53.)

         Sterling deposed Wade about the incident before Wade filed the complaint; Wade was represented by his counsel at the deposition. (See, e.g., ECF No. 43-1 at 2-147 (“Wade Tr.”).) After Wade filed suit, Wade amended his complaint, and Sterling and GGP moved to dismiss. (ECF Nos. 36, 42, 45.) GGP filed a third party complaint against PSC, and PSC then moved to dismiss part of the GGP's third party complaint against it. (ECF No. 57, 70.)

         II. Legal Standard

         On a motion to dismiss, I take the plaintiff's factual allegations in the complaint “to be true and [draw] all reasonable inferences in” his favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citation and quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court need not accept legal conclusions as true and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. In addition, the “court need not feel constrained to accept as truth conflicting pleadings that . . . are contradicted either by statements in the complaint itself or by documents upon which its pleadings rely.” In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 405-06 (S.D.N.Y. 2001)

         “In adjudicating a motion to dismiss, a court may consider only the complaint, any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies.” In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013) (citation omitted). In the last category, a document is deemed integral to the complaint, and thus appropriately considered on a motion to dismiss, “where the complaint relies heavily upon its terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (“Merely mentioning a document in the complaint will not satisfy this standard; indeed, even offering ‘limited quotation[s]' from the document is not enough.”).

         III. Discussion

         As a threshold issue, both Sterling and GGP attach the transcript of Wade's sworn pre-suit deposition testimony to their motions to dismiss and argue that the Court should treat the transcript as incorporated because the amended complaint heavily relies on it. (ECF No. 43 at 7-19; ECF No. 45-1 at 2-3.) Wade concedes that the transcript should be incorporated for the purposes of the parties' motion to dismiss. (ECF No. 50 at 4 (“GGP correctly argues Mr. Wade's sworn deposition is proper for consideration for GGP's Motion to dismiss.”).) The amended complaint does not cite or reference the deposition transcript itself; however, large portions of the complaint either quote without attribution (Am. Compl. at ¶¶ 14, 16, 17, 18, 20, 21, 22, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 46, 47, 48, 49, 50, 51) or paraphrase Wade's deposition testimony (id. at ¶¶ 13, 15, 19, 23, 27, 29, 41, 47). In other words, not only does Wade agree that he heavily relied on the transcript in drafting the complaint, but the deposition transcript supplies almost one-third of the allegations in the complaint either verbatim or in paraphrased form. Though usually incorporation of “integral” documents is applied to legal documents like contracts, I conclude that the transcript should be considered here because of Wade's extensive reliance on it in drafting the complaint. See Washington v. Gonyea, 538 Fed.Appx. 23, 26 n.3 (2d Cir. 2013) (“[I]ncorporation of the transcript is proper because the complaint relies heavily on the hearing transcript.”); cf. Allstate Ins. Co. v. Rozenberg, 771 F.Supp.2d 254, 268 (E.D.N.Y. 2011) (declining to consider deposition transcript because the complaint did not make any reference to it and the plaintiffs did not “purport to have relied on [the] deposition in crafting the allegations”).

         However, I only consider the transcript for a limited purpose: if the complaint incorrectly quotes or paraphrases the transcript, I may consider Wade's testimony for the contents of his statements, but I may not consider Wade's deposition testimony for its truth or to contravene a statement in the amended complaint. See Roth v. Jennings, 489 F.3d 499, 511 (2d Cir. 2007) (“[S]uch documents may properly be considered only for ‘what' they contain, ‘not to prove the truth' of their contents.”); see also Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006) (reversing district court's dismissal where district court considered non-integrated transcript “to make a finding of fact that controverted the plaintiff's own factual assertions set out in its complaint”). A lawyer is not confined to the personal knowledge of his client when he drafts a complaint. He may also rely on other sources of evidence, and he may further investigate a claim after his client testifies to correct or supplement his client's own personal knowledge of the facts. Thus, the Court is not free to disregard an allegation in a complaint simply because it contradicts the plaintiff's pre-complaint testimony. Nonetheless, because I may consider the transcript, I decline Sterling's alternative request to convert its motion into one for summary judgment.[3]

         Wade's amended complaint asserts six causes of action against Sterling and GGP: (1) an “equal benefit” claim under 42 U.S.C. § 1981; (2) false imprisonment; (3) defamation per se; (4) intentional infliction of emotional distress (“IIED”); (5) negligent infliction of emotional distress (“NIED”); and (6) negligent supervision. (Am. Compl. at ¶¶ 54-97.) Sterling and GGP have moved to dismiss the six counts for failure to state a claim. (ECF Nos. 42, 45.) GGP also moves to dismiss on the grounds that Wade has not properly pleaded that GGP is vicariously liable for the mall security personnel, who were independent contractors and not employees of GGP. (ECF No. 45-1 at 4-6.) After GGP filed its motion to dismiss, Wade withdrew his 42 U.S.C. § 1981 and IIED claims against GGP. (See ECF No. 50 at 5-6, Id. at n.1.) After addressing the issue of GGP's vicarious liability, I will address the remaining claims against each defendant.

         A. Vicarious Liability (GGP)

         GGP argues that three of the state law tort claims pending against it should be dismissed because the Amended Complaint does not properly plead vicarious liability against GGP, and the only basis for liability against GGP on those counts consists of the actions of defendants John Doe 1, John Doe 2, and Jane Doe 3 as alleged mall “security/loss prevention personnel and/or agents of the Defendants Kay Jewelers and/or GGP . . . .” (ECF No. 45-1 at 5 (citing Am. Compl. at ¶ 12).)[4] Under Connecticut law, “a master is liable for the willful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business” under the doctrine of respondeat superior. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500 (1995). On the other hand, “an employer is not liable for the negligence of its independent contractors” as a general rule. See Pelletier v. Sordoni/Skanska Const. Co., 264 Conn. 509, 517 (2003). GGP attaches to its motion to dismiss a copy of an agreement purporting to demonstrate that defendants John Doe 1, John Doe 2, and Jane Doe 3 were independent contractors, not employees, of GGP. (ECF No. 45-1 at 5, 192-194.) This exhibit is not a document the Court may consider on a motion to dismiss, however, as the Court is limited to the well-pleaded allegations in Wade's complaint and documents incorporated or relied on therein. The Amended Complaint alleges that these defendants were “security/loss prevention personnel and/or agents” of Sterling and GGP, and asserts claims against GGP based on their role as employees or agents of GGP. (Am. Compl. at ¶ 12; Id. at ¶¶ 65 (alleging in Count 2 that “the security/loss prevention personnel for Kay Jewelers and GGP, Jane Doe 3, who stopped Plaintiff, pulled him aside and with John Doe 1, along with Police Officer Decker, surrounded Plaintiff . . .”), 73 (alleging in Count 3 that the “direct and proximate cause of the injuries and damages suffered by the Plaintiff as hereinafter described were the actions of the Defendants and their agents, servants and/or employees”). Of note, GGP does not argue that Wade has insufficiently pleaded the existence of an agency or employee relationship, but in effect argues that Wade's pleading must be read in light of its agreement. Since the Court may not consider the agreement, I must reject GGP's argument and assess the claims against GGP on their merits.

         B. False Imprisonment (Sterling and GGP)

         “[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another.” Berry v. Loiseau, 223 Conn. 786, 820 (1992) (citation omitted). “To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly.” Id. In addition, “the detention must be wholly unlawful . . . .” Lo Sacco v. Young, 20 Conn.App. 6, 19 (1989). “Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability.” Green v. Donroe, 186 Conn. 265, 267 (1982) (“The fact that there was no formal arrest of the plaintiff . . . and that he remained in the custody of the police for only ten minutes would not necessarily defeat his cause of action for false imprisonment.”). However, “[a] person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.” Rivera v. Double A Transp., Inc., 248 Conn. 21, 31 (1999) (citing Donroe, 186 Conn. at 268). “Nothing less than a rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases.” Id.

         1. Sterling

         Sterling moves to dismiss the false imprisonment claim on the grounds that (1) the amended complaint does not allege that Sterling detained Wade, because the Kay Jewelers Individual Defendants did not call the police or themselves detain Wade; and (2) the amended complaint does not allege that the Kay Jewelers Individual Defendants acted with the requisite intent in misidentifying Wade to mall security. (ECF No. 43 at 27-31.) Wade responds that the amended complaint alleges that Sterling detained Wade because the Mall Security Individual Defendants are Sterling's employees or agents, and in any event the complaint alleges that Kay Jewelers Individual Defendants acted with the requisite intent in identifying Wade to both mall security and the police as a suspect in previous incident of attempted credit card fraud. (ECF No. 46 at 19-21 (citing Am. Compl. at ¶¶ 20-22, 27).)

         First, drawing all inferences in Wade's favor, I conclude that the Amended Complaint alleges that Sterling detained Wade. Although the Amended Complaint does not affirmatively allege that the Kay Jewelers Individual Defendants detained Wade, it does allege that the Mall Security Individual Defendants are employees or agents of Sterling. (See Am. Compl. at ¶ 12 (the Mall Security Individual Defendants are “security/loss prevention personnel and/or agents of the Defendants Kay Jewelers and/or GGP . . . .”); Id. at ¶¶ 24, 25 (identifying Jane Doe 3 and John Doe one as “providing [] security/loss prevention services to Kay Jewelers”).)[5] The amended complaint alleges that the Mall Security Individual Defendants (specifically Jane Doe 3 and John Doe 1) detained Wade. (Am. Compl. at ¶¶ 23, 44, 49.) The amended complaint thus adequately pleads that Sterling detained Wade.

         Second and in any event, the Amended Complaint alleges that the Kay Jewelers Individual Defendants acted “for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.” Donroe, 186 Conn. at 268. When all inferences are drawn in Wade's favor, the Amended Complaint alleges that: (1) the Kay Jewelers Individual Defendants called mall security to identify Wade as a suspect who had attempted to commit credit card fraud the previous week (Am. Compl. at ¶¶ 20-22, 35), and mall security called the police (Am. Compl. at ¶¶ 35, 51)[6]; (2) a Kay Jewelers employee “directed the security/loss prevention personnel for Kay Jewelers and GGP, Jane Doe 3, who stopped Plaintiff” (Am. Compl. at ¶ 65) and that (3) the Kay Jewelers Defendants “intended for Plaintiff to be stopped or detained” because they “had to know” he would be detained as a result of the police being called. (Am. Compl. at ¶¶ 38-40.) Though allegations (2) and (3) would be conclusory on their own, they are supported by specific acts the Kay Jewelers Individual Defendants took, namely: (4) after leaving Kay Jewelers, defendant Jane Doe 3 informed Wade that one of the Kay Jewelers Individual Defendants had identified him as the suspect (Am. Compl. at ¶¶ 20-22); and (5) after Wade was allegedly confined, Officer Decker told Wade that “a Kay Jeweler employee downstairs told [Officer Decker] that Plaintiff, Wade, was the suspect and that he and others were walking around the mall looking for Plaintiff, Wade, until they found him.” (Id. at ¶ 27.)[7]

         Bryans v. Cossette, which Sterling relies on, is distinguishable. No. 3:11-CV-01263 JCH, 2013 WL 4737310 (D. Conn. Sept. 3, 2013). Bryans addressed a motion for summary judgment, not a motion to dismiss. In addition, the undisputed facts there showed that a hospital's medical staff asked its security personnel to stop a patient leaving the hospital, but did not ask the police officers who were solely responsible for arresting him to do so. See 2013 WL 4737310, at *13 (D. Conn. Sept. 3, 2013). Drawing all inferences in his favor, I conclude that Wade has plausibly alleged that the Kay Jewelers Individual Defendants directed the Mall Security Individual Defendants to stop plaintiff (Am. Compl. ΒΆΒΆ 20-22, 65), informed the police that he was the suspect ...

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