The opinion of the court was delivered by: Sand, J.
Before the Court are Plaintiff Samaad Bishop's Motion for Reconsideration of this Court's October 13, 2010 Order deciding Defendants' motions to dismiss; Plaintiff's Motion for Certification of the Order for interlocutory appeal to the United States Court of Appeals for the Second Circuit; and a separate motion for reconsideration filed by Defendants Best Buy Co., Inc., (Fict) Best Buy Co. of Minnesota, Peter Troupas, Ricardo Quiles, Brian Placek, Brian Legister, and Carl Larsen ("Best Buy Defendants").
For the following reasons, Plaintiff's motion for reconsideration is denied. Defendants' motion for reconsideration is granted in part and denied in part. Plaintiff's Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-Second, Twenty-Third, Twenty-Fifth, and Twenty-Sixth Claims are dismissed. Plaintiff's motion for interlocutory appeal is denied.
I.Background and Standard of Review
The factual background of this case is set forth in this Court's Memorandum and Order dated October 13, 2010. Bishop v. Best Buy Co., Inc., et al., No. 08 Civ. 8427 (LBS), 2010 WL 4159566 (S.D.N.Y. Oct. 13, 2010).
"Reconsideration of a previous order by the court is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Hinds Cnty., Miss. v. Wachovia Bank N.A., 700 F. Supp. 2d 378, 407 (S.D.N.Y. 2010) (internal quotation marks omitted). "The major grounds justifying reconsideration are "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks omitted). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The moving party "may not advance new facts, issues or arguments not previously presented to the Court." Aikman v. Cnty. of Westchester, 691 F. Supp. 2d 496, 498 (S.D.N.Y. 2010) (internal quotation marks omitted). A motion for reconsideration "is not intended as a vehicle for a party dissatisfied with the Court's ruling to advance new theories that the movant failed to advance in connection with the underlying motion, nor to secure a rehearing on the merits with regard to issues already decided." Montanile v. Nat'l Broad. Co., 216 F. Supp. 2d 341, 342 (S.D.N.Y. 2002).
The legal standard governing motions to certify an order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) will be discussed infra Part II.C.
A.Plaintiff's Motion for Reconsideration
i.Plaintiff's Fourth Amendment Claims under 42 U.S.C. § 1983
Plaintiff argues that this Court wrongly found that Defendants Morales and Green had probable cause to ask to see his sales receipt because the Court mistakenly assumed that Defendants Troupas, Quiles, Placek, Legister, and Larsen (the "Best Buy employees") requested his sales receipt because they suspected him of shoplifting. He argues that this Court relied on facts outside the Complaint and overlooked certain allegations in the Complaint that allegedly disprove these assumptions. Pl. Mem. Supp. Mot. Reconsideration at 7--11; Compl. ¶¶ 44, 50, 51.*fn1 Therefore, he argues, this Court's dismissal of his Fourth Amendment claims constitutes clear error.
Plaintiff is mistaken. This Court carefully considered the factual allegations made in paragraphs, 44, 50, and 51 of Plaintiff's Complaint, and its decision does not state or rely upon the assumption that Plaintiff was accused of shoplifting.*fn2 See Bishop, 2010 WL 4159566, at *1 (citing Compl. ¶ 44); *6 (citing Compl. ¶¶ 50--60). This Court ruled that Defendants Morales and Green's own information and observations gave them probable cause to question Plaintiff and ask to see his sales receipt. They were called to the Best Buy store by Plaintiff, who called 9-1-1 "in connection to" being allegedly "attacked by a mob of Best Buy employees . . . ." Pl. Mem. Supp. Mot. Reconsideration at 2; Compl. ¶ 48. Plaintiff claims that this Court improperly assumed that the 9-1-1 call mentioned shoplifting, but does not and cannot cite any such language in the Court's October 2010 Order. Therefore, Plaintiff's citation of United States v. Colon, 250 F.3d 130, 138 (2d Cir. 2001) is inapposite.
When Defendants Morales, Green, and the other police officers responding to Plaintiff's 9-1-1 call ("Police Officer Defendants") arrived at the Best Buy store, Plaintiff alleges that Defendants Morales and Green conferred with the Best Buy employees, Compl. ¶ 50, and after a request from Best Buy, asked Plaintiff to see his sales receipt. Compl. ¶¶ 51--52. In other words, Defendants Green and Morales had been told that the Best Buy employees had a physical altercation with Plaintiff concerning his sales receipt. These facts alone were "sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed . . . , and that evidence bearing on that offense will be found in the place to be searched." Safford United Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2639 (2009) (internal quotation marks omitted). Plaintiff's sales receipt constituted that evidence, and Defendants Green and Morales' request to see it was part of the normal course of a police investigation.
None of Plaintiff's allegations contradict this conclusion. To claim that Defendants Morales and Green did not have probable cause to detain him and that he was never accused of shoplifting, Plaintiff cites his allegation that the Best Buy employees informed him that he was not being charged with a crime. Compl. ¶ 44. However, Plaintiff himself alleges that this exchange took place before the police officers arrived. Therefore, it had nothing to do with whether the officers had probable cause to question him and ask to see his sales receipt. In any event, a statement by a complainant that he or she does not intend to press charges does not dissipate probable cause, because the decision to prosecute rests with the Government, not with the complainant.*fn3 See Rutigliano v. City of New York, No. 07 Civ. 4614 (JSR), 2008 WL 110946, at *3 (S.D.N.Y. 2008) (statement that alleged victim was not pressing charges does not establish that probable cause dissipated); United States v. Sanders, 211 F.3d 711, 716 (2d Cir. 2000) ("[T]he decision as to whether to prosecute generally rests within the broad discretion of the prosecutor . . . ."). Plaintiff wrongly assumes otherwise without citing any relevant authority.*fn4
Next, Plaintiff contends that upon arrival at the scene, Defendants Green and Morales had a discussion with the Best Buy employees, Compl ¶ 50, and that Defendant Green informed Plaintiff that Best Buy was not pressing charges against Plaintiff. Compl. ¶ 51. Plaintiff argues that Best Buy's alleged decision not to press charges dissipated any probable cause, and therefore Defendants Morales and Green no longer had the right to question him or seek to see his sales receipt. Again, Plaintiff's assumption that a complainant's decision not to press charges dissipates probable cause is incorrect.
Plaintiff's motion for reconsideration with respect to his Fourth Amendment claims under 42 U.S.C. § 1983 is denied.
ii.Plaintiff's Fourteenth Amendment Claims under 42 U.S.C. § 1983
Plaintiff argues that this Court erroneously dismissed his Fourteenth Amendment claims based on the conclusion that the Police Officer Defendants had probable cause to detain and question him in response to his 9-1-1 call alleging a group assault. He contends that his Fourteenth Amendment claim is actually based on Defendants Morales and Green' continued questioning and alleged seizure of his sales receipt after learning that Best Buy Defendants did not intend to press charges against him. For the reasons stated supra Part II.A.i, these arguments are meritless.
Plaintiff's motion for reconsideration with respect to his Fourteenth Amendment claims is denied.
iii.Plaintiff's § 1983 Claims and the State Action Requirement
Plaintiff first argues that his claim of state action under § 1983 was improperly dismissed because this Court refused to credit his allegations that the Best Buy Defendants were clothed with state authority and were deputized by the City of New York in a paid detail program. See Compl. ¶¶ 267--70. Second, Plaintiff claims that this Court overlooked his allegation that the Best Buy employees instructed Defendants Morales and Green to inspect Plaintiff's sales receipt. These contentions are without merit.
Plaintiff's first argument misapprehends this Court's basis for dismissing his allegations of a paid detail program and the applicable standards under Fed. R. Civ. P. 8(a) and 12(b)(6). In Ashcroft v. Iqbal, the Supreme Court announced two principles underpinning the scrutiny of a plaintiff's allegations on a Rule 12(b)(6) motion. 129 S.Ct. 1937 (2009). "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss . . .where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]-'that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
Plaintiff's allegations of a paid detail program fail both tests. He alleges that "through the Paid Detail Program or some other program, New York police officers are place[d] throughout Best Buy stores to assist, aid, and promote Defendant Best Buy's asset protection and loss prevention programs, policies, and practices." Compl. ¶ 69. Even if accepted as true, this allegation has no bearing on the conduct of the Police Officer Defendants. Plaintiff does not allege that the Police Officer Defendants were previously detailed to the Best Buy store or themselves involved in any paid detail program or agreement. Moreover, the police officers arrived at the store in response to a 9-1-1 call placed by Plaintiff, not Best Buy. Compl. ¶ 48. Therefore, this allegation fails to adequately plead liability even if accepted as true.
To save his allegations, Plaintiff next claims that "[a]s a direct and proximate cause of Defendants['] agreement under the Paid Detail Program or some other agreement, Defendants GREEN and MORALES were predisposed, biased, and took the side of BEST BUY . . . not fil[ing] criminal charges against Defendants . . . ." Compl. ¶¶ 70--71. These allegations "do not permit the court to infer more than the mere possibility of misconduct . . . ." Iqbal, 129 S.Ct. at 1950. Plaintiff does not allege that Defendants Green and Morales-or any of the other Police Officer Defendants-were actually enrolled in a paid detail program, and fails to allege or explain how the mere existence of such a program would engender bias among police officers not enrolled in it. In other words, this Court dismissed Plaintiff's allegations of a paid detail program not because it refused to accept them as true, but because we determined that these allegations "stop short of the line between possibility and plausibility of entitlement to relief[,]" even if accepted as true. Iqbal, 129 S.Ct. at 1949 (internal quotation marks and citation omitted).
Given Plaintiff's failure to plausibly allege unconstitutional state action on the part of the Police Officer Defendants, he has no basis for claiming that Defendant the City of New York created any policies or performed any actions which harmed him or violated his civil rights.
Plaintiff's second argument for state action portrays Defendants Morales and Green's request to see Plaintiff's sales receipt as an act performed at the behest of Best Buy. Plaintiff alleged in his Complaint that the Best Buy employees "requested" the police officers to examine his sales receipt, Compl. ¶ 51, but now claims that the Best Buy employees "instructed" the police officers to do so. Pl. Mem. Supp. Mot. Reconsideration at 24. Here Plaintiff embellishes, and thereby misrepresents, his factual allegations.*fn5 Even if this Court accepted Plaintiff's argument, it would nevertheless fail the stringent requirements for state action under § 1983. State action can be found "if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). The Second Circuit has noted that "the Supreme Court has narrowed the scope of its state-action jurisprudence" so that "the Court has found on more than one occasion that an entity was not engaged in state action even though it was extensively regulated, obtained governmental approval, received substantial governmental assistance, and performed an important societal function." Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 314 (2d Cir. 2007) (quoting 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 5.12, at 5-88 (4th ed.2003)). In light of the strict requirements for finding state action, and the failure of Plaintiff's allegations of a paid detail program, Plaintiff cannot plausibly assert against the weight of all authority that the single act of examining Plaintiff's sales receipt transformed Best Buy's receipt verification policy into state action.
Plaintiff's motion for reconsideration of this Court's finding of no state action under 42 ...