United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Plaintiff Reginald Barnville brings a Section 1983 claim along with various state law claims against New York City, several police officers, a nightclub and its manager and bouncer, and a non-profit employment agency and its employee. Barnville alleges that he was falsely arrested after the private client for whom he was providing personal security left a New York City nightclub without paying his tab. As relevant to the instant motion, Barnville brings claims against the employment agency, Vocational Instruction Project Community Services, Inc. ("VIP"), and its account manager, Anthony Hernandez ("Hernandez") (collectively, "Defendants") for breach of a duty to investigate the private client; against VIP for negligent retention, training and hiring of Hernandez as an account manager; and against both VIP and Hernandez for malicious prosecution.
VIP and Hernandez moved to dismiss all of Barnville's claims against them. In response, Barnville withdrew his claims of malicious prosecution against VIP and Hernandez. Declaration of John P. Grill ¶ 3. Therefore, the Court does not reach the merits of that aspect of Defendants' motion. Hernandez also moved to dismiss a cross-claim brought by defendant Mimosa Cafe ("Mimosa") against him for contribution and indemnification. This cross-claim was pled in Mimosa's answer to the original complaint. See Dkt. No. 9. However, after the Court gave Barnville leave to file the second amended complaint ("SAC") and instructed all of the defendants, including Mimosa, to file new answers or to otherwise respond to the SAC, Mimosa did not plead this crossclaim in their answer to the SAC. See Dkt. No. 45. Mimosa did not submit any opposition in response to Hernandez's motion to dismiss the cross-claim. Because an amended answer supersedes the original answer, and there is no indication here that the cross-claim remains pending, the Court finds it unnecessary to reach this aspect of Hernandez's motion. See Goldstone v. Payne, 94 F.2d 855, 856 (2d Cir. 1938); Armstrong v. Davis, 275 F.3d 849, 878 n. 40 (9th Cir. 2001); see also District of Columbia, Dept. of Public Works v. L. G. Industries, Inc., 758 A.2d 950, 957 n. 6 (D.C. 2000).
For the reasons that follow, the remaining aspects of VIP and Hernandez's motion are granted, and Barnville's claims against Hernandez and VIP are dismissed with prejudice.
Barnville sought employment as a security guard through a career center run by VIP. Compl. ¶¶ 45, 51. He met with Hernandez, an account manager, who assigned Barnville to provide security for non-party Enrique Sanchez. Compl. ¶¶ 52, 54. On the evening and early morning of March 9-10, 2013, Barnville and another guard, Daniel Coy, provided security for Sanchez while he was at Mimosa. Compl. ¶¶ 54, 56. After Sanchez left Mimosa without paying his large tab, Mimosa's manager and bouncer presented Barnville and Coy with the bill and told them they could not leave until it was paid. Compl. ¶¶ 57-58. Barnville called the police, but when they arrived, he was arrested. Compl. ¶¶ 60-61.
Barnville comes to federal court through his Section 1983 claims against the City and the police officers, and he alleges various pendent state law claims including assault and battery, false arrest and imprisonment, malicious prosecution, abuse of process, negligent retention, training, and hiring, intentional infliction of emotional distress, and negligence.
A. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Mere "labels and conclusions" or "formulaic recitation[s] of the elements of a cause of action will not do"; rather, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Coo. v. Twombly, 550 U.S. 544, 555 (2007).
B. Negligent Hiring, Retention, and Training Claim (Count X against VIP)
Under New York law, where an employee acts within the scope of his or her employment, the employer cannot be held liable for a claim of negligent hiring, retention, or training. See, e.g., Talavera v. Arbil, 795 N.Y.S.2d 708, 708 (2d Dep't 2005) ("Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training."); Weinberg v. Guttman Breast & Diagnostic Inst., 679 N.Y.S.2d 127, 128 (1st Dep't 1998) ("[P]laintiff s claims against the [defendant] alleging that it negligently supervised and retained its employees should have been dismissed... where, as here, an employee is acting within the scope of his or her employment...."); Gurevich v. City of New York, No. 06 Civ. 1646 (GEL), 2008 WL 113775, at *6 (S.D.N.Y. Jan. 10, 2008) (where defendant conceded employees were acting within scope of employment, "plaintiff's claim for negligent hiring, training, and retention is barred as a matter of law"). The reason for this rule is that "if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training." Karoon v. New York City Transit Authority, 659 N.Y.S.2d 27, 29 (1st Dep't 1997). Here, Barnville's express allegation is that Hernandez was acting within the scope of his employment. Compl. ¶ 50.
Despite his own allegation, Barnville argues that it is nevertheless "premature" to dismiss this claim because "discovery may show" that Hernandez was, in fact, not acting within the scope of his employment. Pl. Br. at 11. Further, Barnville's brief lists several factual scenarios that "may" or "might" have happened - such as the possibility that Hernandez might have been involved in a similar incident at another job or previously at VIP. Pl. Br. at 10. In the context of this motion, however, the Court is required to accept the facts alleged in plaintiff's Complaint as true. The complaint states that Hernandez was acting within the scope of his employment. Compl. ¶ 50. The Complaint is devoid of any alleged facts that support the alternative, hypothetical factual scenarios posited in Barnville's brief.
Barnville's argument that discovery might yield evidence that disproves the express factual assertions in his complaint strongly suggests that his complaint against VIP and Hernandez is a fishing expedition. While Barnville fails to cite to Twombly, Iqbal, or their progeny, the pleading standards articulated in those cases "do not countenance such expeditions." Kalimantano GmbH v. Motion in Time, Inc., 939 F.Supp.2d 392, 409 n.4 (S.D.N.Y. 2013); see also Iqbal, 556 U.S. at 678-79 ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."); Twombly, 550 U.S. at 555-56 ("Factual allegations must be enough to raise a right to ...