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July 9, 2004.

KENYA MASSEY, Plaintiff,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Kenya Massey brings this action against Starbucks Corporation to recover damages for injuries she suffered when she was assaulted by two Starbucks employees.*fn1 Starbucks now moves for summary judgment on the ground that its employees were not acting within the scope of employment when they assaulted Massey. For the reasons set forth below, Starbucks's motion is granted.

  II. BACKGROUND*fn2 On the evening of February 18, 2003, Kenya Massey and her fiancee, Raymond Rodriquez, visited a Starbucks store located at 750 Seventh Avenue in Manhattan. The couple ordered two beverages from Starbucks employee Okang Wilson, and paid for their drinks. Rodriquez and Massey moved towards the seating area while they waited for their drinks to be prepared.*fn3

  Karen Morales, the shift supervisor at the store, told Massey and Rodriquez that they could not sit down because the store was closing. Massey asked Morales what time the store closed, and Morales told her that it closed at ten o'clock. Massey pointed out that a large digital clock across the street read nine fifty-two. Morales responded that it was ten o'clock according to her watch, and that she was closing the store.*fn4

  Massey, who had still not received her drinks, informed Morales that she had paid for her beverages, and that she and Rodriquez intended to sit and enjoy them in Starbucks. Morales instructed Starbucks employee Louis Suriel to cancel Massey's beverage order and refund Massey's money. Massey asked to speak with a manager. Morales identified herself as the manager. Massey asked for the supervisor's name. Morales identified herself as the supervisor, and told Massey to "get a life."*fn5 Massey insisted that she was not leaving until she could file a complaint about Morales's behavior.*fn6

  At that point, Starbucks employee Melissa Polanco became involved in the argument between Massey and Morales. She told Massey: "I get off at ten o'clock and we can go outside."*fn7 Polanco gestured aggressively, as if she were going to physically remove Massey from the premises. Rodriquez suggested to Massey that they leave voluntarily, and Massey agreed.*fn8

  As Rodriquez and Massey started to leave the store, Suriel went over to them and apologized. Polanco, Morales and Wilson held the door open for Rodriquez and Massey as they exited. The couple walked away from the store and towards a nearby subway station, while Massey and the employees yelled profanities at each other.*fn9 As Massey continued to walk away, Polanco ran after and caught up with her, and punched her in the face. Morales then jumped on Massey's back. Massey and Morales fell into a snowbank on the sidewalk, and a physical altercation ensued. A pedestrian passerby finally separated the two women. Massey's face was bleeding when she got up.*fn10

  Massey pressed charges against Polanco and Morales the next morning, February 19, 2003. Morales and Polanco each pled guilty to two counts of assault. All three Starbucks employees who were involved in the altercation — Wilson, Polanco, and Morales — were terminated within four days of the incident.*fn11


  A. Legal Standard for Summary Judgment

  Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn12 "An issue of fact is `genuine' if `the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn13 "A fact is `material' for these purposes if `it might affect the outcome of the suit under the governing law.'"*fn14

  The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn15 Accordingly, the non-moving party can defeat summary judgment by raising a genuine issue of material fact. However, she "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn16 and she "may not rely on conclusory allegations or unsubstantiated speculation."*fn17 Rather, the non-moving party must produce admissible evidence that supports her pleadings.*fn18 In this regard, "`[t]he mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."*fn19

  Ordinarily, "the determination of whether a particular act was within the scope of the servant's employment is . . . heavily dependent on factual considerations."*fn20 Therefore, it typically cannot be resolved on a motion for summary judgment.*fn21 "However, where . . . there is no conflicting evidence as to the essential ...

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