United States District Court, E.D. Pennsylvania
GERALD J. PAPPERT, J.
Plaintiff Ben Robinson (“Robinson”) and his wife, Maxine Robinson, (collectively “Plaintiffs”) allege that employees of Family Dollar Stores of Pennsylvania, Inc. (“Family Dollar”) beat Robinson, then in an effort to cover up the beating, falsely reported to the Philadelphia Police that Robinson assaulted Family Dollar employees and committed retail theft. Family Dollar moves to dismiss all claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Family Dollar’s motion to dismiss is granted.
Factual and Procedural Background
Robinson was shopping at the Family Dollar store near 48th Street and Girard Avenue in Philadelphia, Pennsylvania on April 29, 2013. (Am. Compl. ¶ 10, Doc. No. 13.) As Robinson exited the store, he was stopped by Family Dollar employee Braheem Wilkins, a Family Dollar security guard and two other unidentified Family Dollar employees. The four employees accused Robinson of shoplifting. (Id. ¶ 12.) Robinson denied stealing anything and one of the employees hit him. (Id. ¶ 13.) Robinson was then “gang beaten, ” thrown to the ground, and struck over the left eye with a tire iron. (Id. ¶ 14.) The employees laughed and continued to strike Robinson. (Id.) The entire incident was captured on store surveillance video and on video recorded by a bystander. (Id. ¶ 15.) Robinson was transported to the hospital and treated for his injuries. (Id. ¶¶ 16-17.) Philadelphia Police Officer Wilfrid Etienne arrested Robinson upon his release from the hospital and charged him with aggravated assault, robbery, retail theft, theft by unlawful taking, receiving stolen property, and simple assault based on Family Dollar employees’ reports to the police. (Id. ¶¶ 18-20, 25, 35.) The Philadelphia County Court of Common Pleas dismissed the charges, concluding that the store surveillance video showed that Robinson did not pick up any merchandise in the store and that the employees attacked Robinson. (Id. ¶ 22; see also Ex. A.)
Plaintiffs filed this action on June 4, 2014. (Comp., Doc. No. 1.) Family Dollar, Inc.moved to dismiss the complaint and, in response, Plaintiffs filed an amended complaint on October 30, 2014, which added Family Dollar and Braheem Wilkins as defendants. Plaintiffs allege six counts in the amended complaint against three sets of defendants. Five counts are alleged against Family Dollar, Family Dollar, Inc., and the employees of Family Dollar: Assault and Battery (Count I); Malicious Prosecution/False Arrest/False Imprisonment (Count II); Negligence/Negligent Supervision (Count IV); Intentional Infliction of Emotional Distress (Count V); and Loss of Consortium (Count VI). Plaintiffs also allege three counts against the City of Philadelphia, Police Commissioner Ramsey, Police Officer Etienne, and John Doe Police Officers (“Philadelphia Defendants”): Count II; Count III–Monell Claim; and Count VI.
The Philadelphia Defendants answered the amended complaint and filed a cross-claim for contribution and indemnification against all other defendants. (Doc. No. 20.) Family Dollar and Family Dollar, Inc. moved to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(6), 12(b)(7) and 12(f). (Mot. Dismiss, Doc. No. 15.) In response, Plaintiffs voluntarily dismissed Family Dollar, Inc., (Doc. No. 23), and answered Family Dollar’s arguments in support of dismissal. (Opp’n Mot. Dismiss, Doc. No. 24). In their opposition to Family Dollar’s motion to dismiss, Plaintiffs asserted that they pled Counts II and IV against Family Dollar pursuant to 42 U.S.C. § 1983 and not pursuant to Pennsylvania common law. (See Am. Compl. ¶¶ 33-42; Opp’n Mot. Dismiss 10-12.) The Court accordingly ordered Plaintiffs and Family Dollar to brief whether Family Dollar and its employees may be considered state actors pursuant to 42 U.S.C. § 1983. The parties filed the requested briefing on May 15, 2015.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” Siwulec v. J.M. Adjustment Servs., LLC, 465 F. App’x 200, 202 (3d Cir. 2012). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing the pleader is entitled to relief, “in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). The court must “accept all factual allegations as true” and “construe the complaint in the light most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, the complaint must allege more than plaintiff’s entitlement to relief-it has to “show” this entitlement with facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This requires “‘sufficient factual matter’ to show that the claim is facially plausible.” Id. at 210 (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible if it states “enough factual matter (taken as true) to suggest the required element.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). A motion to dismiss will be granted when the factual allegations in the complaint are insufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56.
Count I-Assault & Battery
Plaintiffs seek to impose respondeat superior liability on Family Dollar for its employees’ beating of Robinson. (Am. Compl. ¶ 32.) Family Dollar appears to argue that respondeat superior liability is improper because its employees were acting outside the scope of their employment. (Mem. Supp. Mot. Dismiss 10, Doc. No. 15-1.) An employer may be held liable for its employees’ intentional or criminal acts causing injury to a third party if those acts occur during the course of and within the scope of employment. See Costa v. Roxborough Mem’l Hosp. 708 A.2d 490, 493 (Pa. Super. Ct. 1998); Fitzgerald v. McCutcheon, 410 A.2d 1270, 1271 (Pa. Super. Ct. 1979). The conduct of an employee is within the scope of his employment if: “(1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer.” Costa, 708 A.2d at 493.
Plaintiffs allege that one of the John Doe employees was a security guard, (Am. Compl. ¶ 12), but do not describe the positions of Defendant Wilkins or the other John Doe employees. Without a description of the defendants’ positions, Plaintiffs cannot plausibly show that the employees’ conduct was “of a kind and nature that [they were] employed to perform.” Costa, 708 A.2d at 493. Additionally, the amended complaint is devoid of any facts demonstrating that Family Dollar expected its employees to use such intentional force. Plaintiffs have not alleged facts showing that Family Dollar’s employees were acting within the scope of their employment, and thus have not alleged a claim of assault or battery pursuant to a theory of respondeat superior against Family Dollar. This claim is dismissed.
Count II-Malicious Prosecution, False Arrest, False Imprisonment
The Plaintiffs bring their Malicious Prosecution, False Arrest, and False Imprisonment claims against Family Dollar pursuant to 42 U.S.C. § 1983. (See Am. Compl. ¶¶ 33-42). Section 1983 “provides a remedy for deprivations of rights secured by the Constitution and the laws of the United States when that deprivation takes place ‘under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (quoting 42 U.S.C. § 1983). “The initial inquiry in a section 1983 suit is (1) whether the conduct complained of was committed by a person acting under the color of state law and (2) whether the conduct deprived the complainant of rights secured under the Constitution or federal law.” Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998). A private actor, such as Family Dollar, is only liable under § 1983 if “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar, 457 U.S. at 937; see also Cahill ex rel. L.C. v. Live Nation, 512 F. App’x 227, 230 (3d Cir. 2013). The Third Circuit Court of Appeals has outlined three broad tests to determine whether state action exists: “(1) ‘whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state’; (2) ‘whether the private party has acted with the help of or in concert with state officials’; and (3) ‘whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.’” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)). “Regardless of the test employed, the inquiry must be fact specific.” Cahill, 512 F. App’x at 230.
In its supplemental brief, Plaintiffs contend that they pled that Family Dollar was a state actor pursuant to the “conspiracy test.” (Doc. No. 41.) This reference to the “conspiracy test” appears to be an application of the “joint action” test, which asks “whether the private party has acted with the help of or in concert with state officials.” See Cahill, 512 F.App’x at 230. For claims against private parties that involve “suspected shoplifters, ” the Third Circuit delineated a two-part test to determine whether there has been joint action: “(1) the police must ‘have a prearranged plan with the store; and (2) under the plan, the police will arrest anyone identified as a shoplifter by the store without independently evaluating the presence of probable cause, ’ such that they have ‘substituted the ...