The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is Defendant Just Marketing International's ("JMI" or "Defendant") motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure in this diversity of citizenship case. For the reasons that follow, the motion to dismiss is granted.
Plaintiff Jane Kaupp ("Kaupp" or "Plaintiff") asserts that, after ending her two-and-a-half year extramarital relationship with Defendant John Church ("Church") in June 2010, Church commenced stalking and threatening her through harassing phone calls, texts and emails. (Am. Compl. ¶¶ 10, 11). According to Kaupp, Church, while employed at JMI, called her hundreds of times -- in one instance, 110 times in one morning -- and would either hang up or leave a threatening message. (Id. ¶ 11). Additionally, Church reportedly called Kaupp's ten-year-old son and other family members, babysitter, and co-workers. (Id. ¶¶ 11, 37). As a result of the alleged harassment, Kaupp eventually sought psychiatric counseling for sleeplessness, nausea, vomiting, and fear. (Id. ¶ 49).
Kaupp maintains that JMI "knowingly and actively participated, and aided and abetted, in Defendant Church's pattern of harassment against Plaintiff and her family . . . ." (Pl. Mem. at 2). Some of Church's contact with Kaupp was undertaken using JMI facilities: Church made threatening phone calls from his JMI office and used his JMI email address to send harassing emails. (Am. Compl. ¶¶ 25, 42, 43). Kaupp alleges that JMI was aware of this conduct and failed to stop it. Further, Kaupp states that Church enlisted a JMI employee working in Germany to make "disturbing and threatening" phone calls to Kaupp and her family. (Id. ¶ 58).
According to Kaupp, JMI knew of Church's "propensity for drinking and/or substance abuse, [and] for losing self control at client events." (Id. ¶ 89). Kaupp alleges that JMI had received complaints that Church was "unstable and bordering on a nervous breakdown," (Id. ¶ 83) and that JMI sought counseling for Church, "to teach him how to behave properly toward actual and prospective employees and clients." (Id. ¶ 91).
Kaupp contends that JMI is liable for: (1) negligent hiring, retention, and supervision (referred to as "negligent retention"); (2) intentional infliction of emotional distress; and (3) prima facie tort. She also seeks a permanent injunction to enjoin JMI from influencing Church's relationship with Kaupp.
A. Legal Standard on Motion to Dismiss
Although Plaintiff mistakenly cites Conley v. Gibson's "no set of facts" standard, in evaluating a Rule 12(b)(6) motion, the Court follows Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which holds that only a complaint that states a "plausible" claim for relief will survive a motion to dismiss. Id. at 1950. In evaluating the plausibility of a claim, the "reviewing court [must] draw on its judicial experience and common sense." Id. A court must "read the complaint generously, and draw all inferences in favor of the pleader." Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The issue on a 12(b)(6) motion to dismiss is not whether the plaintiff will ultimately prevail, but whether she should be entitled to offer evidence on her behalf. Instead, the court's task is to determine "the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).
Plaintiff is a resident of New York, and Defendant JMI is headquartered in Indiana. (Am. Compl. ¶¶ 1, 2). Where federal jurisdiction is premised on diversity of citizenship, the district court applies the choice of law analysis of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Gilbert v. Seton Hall Univ., 332 F.3d 105, 109 (2d Cir. 2003). In New York, the forum state, "the first question in determining whether to undertake a conflict of laws analysis is whether there is an actual conflict of laws." Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998) (citing Matter of Allstate Ins. Co. & Stolarz, 597 N.Y.S.2d 904 (N.Y. Ct. App. 1993)). If there is no material conflict, however, the "court is free to bypass the choice of law analysis and apply New York law." Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 70 (E.D.N.Y. 2000) (citing Curley, 153 F.3d at 12)(noting that "a material conflict must have a significant possible effect on the outcome of the trial to bring into play choice of law rules").
The parties do not dispute that the substantive laws of New York and Indiana with respect to intentional infliction of emotional distress and prima facie tort are the same. Regarding the negligent retention claim, Defendant asserts that the laws of New York and Indiana diverge, and advocates the application of Indiana law. (Def. Mem. at 6-7). Plaintiff does not address whether a conflict exists, but proffers that New York substantive law should be applied. (Pl. Mem. at 8-9).
The laws of the two states are as follows: Indiana has set forth a three-step inquiry to analyze negligent retention, derived from the Restatement (Second) of Torts § 317: "1) a duty of care owed by an employer to a third person; 2) breach of that duty; and 3) injury to the third person proximately caused by the employer's breach." Scott v. Retz, 916 N.E.2d 252, 257 (Ind. Ct. App. 2008); see Restatement (Second) of Torts § 317 (noting that the employer is under a duty to control its employee if it "knows or should know of the necessity and opportunity for exercising such control"). In New York, to establish a cause of action based on negligent retention, it must be shown that the defendant "knew or should have known" of its employee's propensity to engage in the conduct that caused ...