id. § 12203(b) ("It shall be unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter").
If the officers arrested plaintiffs for offenses committed before the officers' arrival at Utopia, in reasonable reliance on statements by the restaurant owners, it would be difficult to infer joint action because under that view of events, it would not appear that the officers shared the unlawful goal of Tsopelas. But that story is implausible, because the officers waited 20 minutes before arresting Laura Bang. If there were facts establishing probable cause to arrest plaintiffs for criminal trespass when the officers arrived at Utopia, it should not have taken 20 minutes for the restaurant owners to explain those facts to the officers. If Tsopelas represented that an offense already had been committed, and the officers credited his story, the officers could have made a prompt arrest after a brief discussion with Tsopelas. Moreover, the officers would be held in that situation to a duty to make at least a minimal inquiry to confirm the accuracy of Tsopelas' allegations, perhaps by asking the Bangs if they had heard and understood an earlier order to leave. Plaintiffs allege that the officers made no such inquiry. Cf. Moore v. Marketplace Restaurant, Inc. 754 F.2d 1336, 1352 (7th Cir. 1985) (when police, pursuant to pre-arranged plan, agree to arrest anyone designated by private party without making independent inquiry as to probable cause for arrest, private party is a state actor).
Construing the Amended Complaint liberally, Fed. R. Civ. P. 8(f), and drawing all reasonable inferences from the facts therein alleged in favor of plaintiffs, Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991), the joint action allegations clear the low hurdle of Rule 12(b)(6).
Plaintiffs do not allege any link whatsoever between defendant Tsoukalas and the police. Tsoukalas makes only a cameo appearance in the Amended Complaint -- plaintiffs vaguely charge him with witnessing and "assenting to" the harassment of Laura Bang by others prior to February 1994. (Am. Compl. P 15) The Amended Complaint does not even allege that Tsoukalas was present at the restaurant on February 12, 1994.
Nevertheless, it would be inappropriate to dismiss Tsoukalas as a defendant at this time because he might still be held to answer for the liabilities of the restaurant. Plaintiffs have sued the restaurant owners both in their individual capacities and as owners of the restaurant. (Id. at 1) (caption) Plaintiffs allege that Utopia Restaurant was a corporation at the time of the events giving rise to their claims, that the corporation was later dissolved, and that the business was resumed as a partnership. (Id. P 6) It is not clear whether the partnership has taken on the liabilities of the corporation.
Plaintiffs' attorney attempted personal, in-hand service on both defendants at their restaurant. In affidavits, the parties offer differing accounts of his attempts to serve process.
A. Plaintiffs' Account of Service of Process
Plaintiffs' version is as follows: On July 22, 1995, plaintiffs' attorney Gilbert Offenhartz learned that Tsopelas was on duty at Utopia and went to the restaurant at about 2:15 p.m. Offenhartz met his clients outside the door. After Laura and Betty Bang looked inside and identified Tsopelas, Offenhartz entered the restaurant and ordered a pastry. Betty Bang entered the restaurant shortly afterwards and again indicated to Offenhartz which person was Tsopelas. Some time later, Offenhartz approached Tsopelas at the restaurant's counter. Offenhartz inquired, "Mr. Tsopelas?" Tsopelas answered, "Yes. What do you want?" Offenhartz reached inside his pocket to pull out the process papers, stated, "I am serving you and the restaurant with a federal summons and complaint," and attempted to hand over the papers. Tsopelas said "I don't want them." Offenhartz put the process on a table in front of Tsopelas and declared, "Here, you've been served. You better give this to your lawyer."
Offenhartz then walked over to another man and asked him if he was Peter Tsoukalas. The man, waiter Andrew Pappas, said that he was not.
That evening at around 10:45 p.m., one of the Bangs called Offenhartz to inform him that Tsoukalas was on duty at Utopia. Offenhartz again met his clients outside the restaurant. The Bangs pointed inside and identified the man at the cash register as Tsoukalas. Offenhartz walked in, approached the register and asked, "Mr. Tsoukalas?" The man at the register acknowledged the identification and Offenhartz personally served him with process. Tsoukalas took the papers and put them under the counter at exactly 11:25 p.m. (Offenhartz Aff. at 1-6)
B. Defendants' Account of Service of Process
Defendants' version of the attempts at service is entirely different. Tsopelas explains that "the fellow that tried to serve us rudely barged into the restaurant, shouted 'Here,' and dropped the Complaint onto a table where none of the officers of the corporation were present." Tsopelas claims in his affidavit that he was not served and that he has never received a copy of the complaint. (Tsopelas Aff. P 3) Oddly, in the same affidavit, Tsopelas discusses specific allegations in the document he claims he has never seen. (Id. P 4)
Waiter Andrew Pappas states that a short while later, Offenhartz served him with the summons intended for Tsoukalas. (Pappas Aff. P 2) Tsoukalas says that he was working at the counter on the evening of July 22 and that Offenhartz walked in, said nothing, dropped certain unidentified documents on the counter, and left. (Tsoukalas Aff. P 3)
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The two stories are irreconcilable. Because there is a factual dispute as to whether service was properly effected, a traverse hearing will be scheduled to resolve this issue.
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For the reasons set forth above, defendants' motion to dismiss is denied.
Dated: New York, New York
April 24, 1996
Michael B. Mukasey,
U.S. District Judge
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