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John and Kellie Kaminski v. Mydatt Services Inc

June 8, 2012

JOHN AND KELLIE KAMINSKI PLAINTIFFS,
v.
MYDATT SERVICES INC, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION RE: DEFENDANTS' MOTION TO DISMISS (DOC. NO. 25)

I. Introduction

Presently before the Court is Defendants Simon Property Group, Inc., Penn Ross Joint Venture, and Mydatt Services, Inc.'s ("corporate Defendants'") Motion to Dismiss Plaintiffs John and Kellie Kaminski's ("Plaintiffs'") Amended Complaint. Doc. No. 25. The parties' dispute centers on the actions of Gregory Lattera and Officer Joseph Serowik ("individual Defendants") towards Plaintiff John Kaminski on November 26, 2010. On March 23, 2012, Plaintiffs filed suit in this Court based on the federal questions involved and this Court's supplemental jurisdiction. Doc. No. 1.

On April 25, 2012, corporate Defendants filed a Motion to Dismiss Counts V and VI of the Complaint because: (1) Lattera was not acting within the scope of his employment; (2) Serowik was not an employee of corporate Defendants; and (3) the Complaint did not allege sufficient facts to demonstrate that corporate Defendants knew, or should have known, that individual Defendants posed a risk of harm to third parties. Doc. No. 18, 4. Plaintiffs then filed an Amended Complaint. Doc. No. 22.

Counts V and VI of the Amended Complaint allege that Mydatt, Penn Ross Joint Venture, and Simon Property Group negligently hired, trained, and supervised Defendant Lattera. Doc. No. 22, ¶¶ 124-146. Count VI of the Amended Complaint further alleges that Penn Ross Joint Venture and Simon Property Group negligently hired, trained, and supervised Serowik and Mydatt. Id., ¶¶ 136-146.*fn1 Corporate Defendants filed a renewed Motion to Dismiss. Doc. No. 25. After careful consideration of the Motion to Dismiss (Doc. No. 25), Brief in Support (Doc. No. 26), Plaintiffs' Response in Opposition (Doc. No. 29), and Reply Brief (Doc. No. 30), and for the reasons that follow, Defendants' Motion to Dismiss (Doc. No. 25) will be GRANTED in PART and DENIED in PART.

II. Factual Background

When reviewing a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts all factual allegations in the Amended Complaint as true and draws all reasonable inferences in favor of Plaintiffs. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Taking Plaintiffs' factual allegations to be true for the purposes of this Memorandum Opinion, the facts of this case are as follows:

On November 26, 2010, Defendant Lattera, an employee of Mydatt (who had a contract to provide security at Ross Park Mall), was directing traffic at the intersection of Old McKnight Rd. and Cheryl Drive. Doc. No. 22, ¶¶ 27-40. Plaintiff John Kaminski made a turn without waiting for a signal from Lattera. Id., ¶ 42. Lattera struck the rear passenger door of Plaintiffs' car as it was proceeding through the intersection. Id., ¶ 44. Lattera falsely broadcast a report to other Ross Park Mall security guards and the Ross Township Police that he had been struck by Plaintiffs' car. Id., ¶ 46.

Lattera falsely identified himself as a police officer to Plaintiffs and told John Kaminski he was under arrest. Id., ¶ 51. When John Kaminski asked Lattera for identification, Laterra placed him in a choke hold, threw him up against a car, and otherwise assaulted him. Id., ¶¶ 52-53. Serowik, who was working an extra security detail for Ross Park Mall, arrived on scene and used a taser on the unarmed and subdued John Kaminski. Id., ¶¶ 57-60. Lattera admitted that he had fabricated the story about being assaulted because he was cold, sore, and tired. Id., ¶ 76. On December 8, 2010, Lattera was charged with, inter alia, false imprisonment, simple assult, unlawful restraint, harassment, impersonating a public servant, and filing a false report to law enforcement. Id., ¶ 8.

III. Standard of Review

In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Fed. R. Civ. P. 8(a)(2) requires only "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds on which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Building upon the landmark United States Supreme Court decisions in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit explained that a District Court must undertake the following three steps to determine the sufficiency of a complaint:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Third, "whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the Complaint to strike conclusory allegations, and then (3) looking ...


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