The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
Plaintiff Bettina DePippo commenced this action against Kmart
Corporation and Kmart of NY Holdings, Inc. (collectively,
"Kmart"), and Michael Morrone (collectively, the "defendants")
alleging that defendants' policies and practices resulted in a
violation of plaintiff's constitutional rights by denying her the
right to contract to buy goods, services and personal property
solely because of her race. Specifically, plaintiff alleges that:
(1) defendants' actions deprived her of her right to make and
enforce contracts in violation of 42 U.S.C. § 1981; (2)
defendants' actions were motivated primarily by intentional
racial discrimination in violation of 42 U.S.C. § 1981; (3)
defendants' actions constituted malicious prosecution and
intentional infliction of emotional distress; and (4) Kmart was
negligent in its hiring, recruiting, training, retaining and
supervising of Morrone. In the present motion, defendants move
for summary judgment arguing that plaintiff's claims are barred
by: (1) discharge in bankruptcy; (2) res judicata; (3)
collateral estoppel; and (4) lack of subject matter and personal
jurisdiction because plaintiff failed to file an administrative
expense claim with the United States Bankruptcy Court for the
Northern District of Illinois (the "Bankruptcy Court") on or
before June 20, 2003, the deadline for filing claims against
Kmart (the "Bar Date") as set by Kmart's bankruptcy
reorganization plan.*fn1 For the reasons stated hereinafter,
defendants' motion for summary judgment is granted in part and
denied in part. BACKGROUND
On December 22, 2002, plaintiff, an African-American woman, was
shopping at the Big Kmart Store (the "Store"),*fn2 located
at 399 Tarrytown Road, Greenburgh, New York, when she was stopped
by Morrone, the loss prevention manager at the Store, who accused
her of shoplifting. (Pl. Mem. Opp. Summ. J. at 1.) Morrone told
plaintiff that he observed her shoplifting via a video
surveillance camera. (Complt. ¶ 54.) Plaintiff denied any
wrong-doing, but Morrone brought her to the store's security
office and called the police. (Pl. Mem. Opp. Summ. J. at 1.)
Plaintiff was confined in a small room for approximately one
hour, during which time she alleges Morrone "verbally harassed
and berated" her and "accused her of defrauding Kmart" despite
her pleas of innocence. (Complt. ¶¶ 10, 11.) Furthermore,
plaintiff alleges that defendants refused her request to view the
surveillance tape purporting to show her criminal activity.
(Id. ¶ 12.) Plaintiff was arrested and charged with petit
larceny. (Id. ¶¶ 13, 16.)
Plaintiff's criminal trial was pending for one year. After
three adjournments on February 25, 2003, April 4, 2003 and June
17, 2003, plaintiff had a bench trial on September 5, 2004. (Pl.
Mem. Opp. Summ. J. at 1.) The presiding judge reserved decision
following the trial and, on October 3, 2003, found plaintiff not
guilty. (Complt. ¶ 20.) The sole evidence against plaintiff in
the criminal trial was the uncorroborated testimony of Morrone,
leading to plaintiff's claim that defendants procured her
prosecution for petit larceny after her arrest. (Id. ¶ 16.) The
surveillance camera videotape was not produced during discovery
or trial; defendants represent that the surveillance tape was
destroyed. (Id. ¶¶ 21, 22, 23.)
As a result of the above-described incident, on October 1,
2004, plaintiff filed a Complaint in the United States District Court for the Southern District of
New York, alleging five distinct causes of action: (1) violation
of 42 U.S.C. § 1981; (2) malicious prosecution; (3) intentional
infliction of emotional distress; (4) negligence; and (5)
violation of 42 U.S.C. § 1982. (Pl. Mem. Opp. Summ. J. at 2.) She
alleges that she "was forced to disrupt her education to attend
her criminal trial" and was required to disclose the charges and
pending trial to her work and school associates." (Id. ¶¶ 17,
18, 19.)
However, two years earlier, on January 22, 2002, Kmart and
certain of its subsidiaries and affiliates each had filed a
voluntary petition in the Bankruptcy Court for relief under
Chapter 11 of Title XI of the United States Code,
11 U.S.C. § 101, et seq., as amended. (Defs. Rule 56.1 Stmt. ¶ 3.) On April
23, 2003, the Bankruptcy Court entered its Findings of Fact,
Conclusions of Law and the Confirmation Order under
11 U.S.C. § 1129(a), (b) and FED. R. BANKR. P. 3020, confirming Kmart's
Reorganization Plan, which set a June 20, 2003 deadline for
creditors to file post-petition administrative claims against
Kmart. (Id. ¶¶ 5, 6.) The effective date of the Reorganization
Plan was May 6, 2003. (Defs. Mem. Supp. Summ. J. at 2.)
Furthermore, pursuant to the Bankruptcy Court's Confirmation
Order, "Kmart caused Notice of the Confirmation Order, Effective
Date and Bar Date to be published in the May 12, 2003 issues of
the New York Times, the Wall Street Journal and USA Today."
(Id. ¶ 7.)
The order specifically provides that: "[a]ny Administrative
Claim that is not timely filed and served will be disallowed
automatically without the need for any objection from the
Debtors." (Defs. Mem. Supp. Summ. J. at 2 (quoting Confirmation
Order ¶ 25, § 10.4).) The Confirmation Order explicitly
discharged "all claims and interests arising from incidents
occurring prior to the Confirmation Date of May 6, 2003." (Defs.
Mem. Supp. Summ. J. at 3 (citing Confirmation Order ¶ 11; Reorganization Plan § 12.2).) Moreover, pursuant to its
Confirmation Order, the Bankruptcy Court issued "a permanent
injunction as to any and all claims for incidents occurring prior
to May 6, 2003." (Defs. Mem. Supp. Summ. J. at 3 (citing
Confirmation Order ¶ 12; Reorganization Plan § 12.11).)
Defendants maintain that plaintiff failed to file an
administrative expense claim prior to the June 20, 2003 deadline
and that, to date, she has neither filed a claim with the
Bankruptcy Court, nor sought leave to do so. (Defs. Rule 56.1
Stmt. ¶ 8.) Consequently, defendants contend that plaintiff's
claims are barred and therefore should be dismissed.
Specifically, defendants assert dismissal is required because:
(1) her claims were discharged by the Bankruptcy Court; (2)
plaintiff's action and each individual claim are barred by the
doctrine of res judicata and collateral estoppel; (3) this
Court lacks subject matter and personal jurisdiction as a result
of the permanent injunction provisions of the Bankruptcy Court's
Confirmation Order; and (4) plaintiff's claim of intentional
infliction of emotional distress is barred by the statute of
limitations. (Defs. Mem. Supp. Summ. J. at 5, 7, 8, 9.)
Additionally, defendants request that, if this Court declines to
dismiss this action on summary judgment, partial summary judgment
be granted dismissing any claims as to which there are no
material issues of fact.
Under FED. R. CIV. P. 56, summary judgment may be granted where
there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 (1986).
A fact is material only if, based on that fact, a reasonable jury could find in favor of the
non-moving party. See Anderson, 477 U.S. at 248. The burden
rests on the movant to demonstrate the absence of a genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In deciding whether summary judgment is appropriate,
the court resolves all ambiguities and draws all permissible
factual inferences against the movant. See Anderson,
477 U.S. at 255. However, to defeat summary judgment, the nonmovant must
go beyond the pleadings and "do more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The court's role at this stage of the litigation is not
to decide issues of material fact, but to discern whether any
exist. See Gallo v. Prudential Residential Servs., L.P.,
22 F.3d 1219, 1224 (2d Cir. 1994).
II. Defendants' Motion for Summary Judgment
Defendants move for summary judgment on the basis that
plaintiff's claims were discharged by the Bankruptcy Court due to
plaintiff's failure to file an administrative expense claim
request prior to the Bar Date. (Defs. Mem. Supp. Summ. J. at 5.)
Plaintiff, however, contends that she did not receive adequate
notice of the ...