Bowers et al v. USA et al

Filing 36

ORDER: Defendants' Motion 25 to Dismiss is GRANTED. The Clerk is directed to close the case. Signed by Judge Janet Bond Arterton on 03/13/2013. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LONNY BOWERS and LEA BOWERS,
Plaintiffs,

Civil No. 3:12cv264 (JBA)

v.
UNITED STATES OF AMERICA, et al.,
Defendants.

March 13, 2013

RULING ON DEFENDANTS’ MOTION TO DISMISS
Plaintiffs Lonny and Lea Bowers filed suit against Defendants United States of
America, Andrew Tingley in his official and individual capacity as the Supervisory
Deputy United States Marshal for the District of Connecticut, and Deputy U.S. Marshals
John Does 1–4 in their individual and official capacities,1 alleging violations of their
Fourth Amendment rights to be free from unreasonable search and seizure pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (Count One), and
violations of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 (Count Two).
Under the FTCA, Plaintiffs claim false imprisonment/false arrest, trespass to chattels,
conversion, intentional and negligent infliction of emotional distress, and negligent
supervision.2 Defendants move [Doc. # 25] to dismiss Plaintiffs’ Complaint for failure to
state a claim. For the reasons that follow, Defendants’ motion is granted.

1

Plaintiffs had also filed suit against the United States Marshal Service, but
concede in their opposition brief that any Federal Tort Claims Act claims against the
agency or individual officers are improper. Thus, the only FTCA claims asserted are
against the United States. (See Pls.’ Opp’n [Doc. # 32] at 5.)
2

Plaintiffs have withdrawn their claims of trespass and civil conspiracy under the
FTCA. (See Pls.’ Opp’n at 12, 24.)

I.

Factual Allegations

Plaintiffs allege the following in their Complaint. Plaintiff Lonny and Lea Bowers
reside and work in Connecticut. Mr. Bowers is an engineer who specializes in acoustics
and professional sound, and was the president and a director of Wideband Solutions, Inc.
(“Wideband”). (Compl. [Doc. # 1] ¶ 9.) Mr. Bowers and Wideband were defendants in
several lawsuits filed by ClearOne Communications, Inc. (“ClearOne”), a Utah
Corporation, in which ClearOne alleged misappropriation of trade secrets. (Id. ¶ 11.) In
the course of that litigation, ClearOne sought, and the United States District Court for the
District of Utah granted, a confidentiality order prohibiting the dissemination of various
materials deemed by ClearOne to contain sensitive information regarding its trade
secrets. (Id. ¶ 11.)
On August 17, 2010, ClearOne filed an ex parte motion to enforce the
confidentiality order, alleging that Mr. Bowers “might have certain documents and
information in his possession in violation of the confidentiality order.” (Id. ¶ 12.) The
motion was reviewed by a magistrate judge, and an order was issued on August 23, 2010.
(Id. ¶¶ 13–14.)3 Defendant Tingley received a copy of the order, and reviewed it with the
United States Attorney’s Office for the District of Connecticut. The U.S. Attorney’s office
“proposed an indemnification clause which compels ClearOne to indemnify the U.S.
Marshals Service for any judgment arising from the execution of the order by the U.S.

3

A report and recommendation was also filed under seal in the Utah Action,
ClearOne Communications v. Chiang et al., 7cv37(TC-DN), finding that given Mr.
Bowers’s past deceptions in the Utah action, ex parte relief was appropriate: “providing
Bowers notice of the motion and the relief sought would enable Bowers’s further
concealment and cause ClearOne to continue to suffer the very type of immediate and
irreparable injury that it seeks to avoid or minimize by the issuance of the order sought.”
(See Ex. E to Defs.’ Mot. at 30.)
2

Marshals.” (Id. ¶ 14.) A revised order including a hold harmless clause was issued on
September 1, 2010. (Compl. ¶ 14; see also Ex. C. to Def.’s Mot. [Doc. # 25] ¶ 5.) 4
On September 2, 2010, Mr. Bowers was stopped by two Deputy U.S. Marshals as
he was leaving his office. They blocked his car to prevent him from leaving, and
“explained that lawyers would be coming and would explain the reason for the
detainment.” (Id. ¶ 15.) Twenty minutes later, a lawyer arrived and provided Mr. Bowers
with a redacted copy of the Order. (Id.) John Does 1 and 2 “compelled” Plaintiff to return
to the building and “confined” him to a common area, “telling him he was not free to
leave.” (Id. ¶ 16.) During this time, a lawyer, data recovery specialist, and two ClearOne
agents entered his office “with the help and assent of John Does 1 and 2.” (Id.) The agents
then “ransacked” his office and took computers, hard drives, data storage files, and
documents, many of which Plaintiff alleges “were not ordered to be seized” in the
Amended Rule 65 Order. (Id.)
At around the same time, two other U.S. Marshals, John Does 3 and 4, came to the
Bowers residence and “confined Lea to the second floor of the house.” (Id. ¶¶ 17–18.) An
attorney and another ClearOne agent entered the Bowers residence with the “knowledge
and assent” of Does 3 and 4 and “took numerous items which were not authorized by the
[Amended Rule 65 Order].” (Id. ¶ 18.)
Plaintiffs allege that the documents that were taken included “tax return
documents, privileged communications between Bowers and his attorneys, research and

4

Because the Amended Rule 65 Order is referenced and relied on in the
Complaint, the Court may consider it as part of Defendants’ motion to dismiss. See
Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991) (“In considering a motion
to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must
limit itself to facts stated in the complaint or in documents attached to the complaint as
exhibits or incorporated in the complaint by reference.”).
3

development memoranda regarding technology being developed by Lonny Bowers and
his associates, attorney work–product, financial records, stock certificates, and a memory
stick containing personal photographs,” all of which were not authorized to be taken by
the Amended Rule 65 Order. (Id. ¶ 19.)
The U.S. Marshals are alleged to have acted without a warrant or writ of
attachment authorizing them to enter and search the premises of the Bowers’ office or
home. (Id. ¶ 20.) The Marshals did not “actually supervise[]” the ClearOne agents present
at either location. (Id. ¶ 21.)
Plaintiffs allege that as a result of Defendants’ conduct, ClearOne has
“manufactured and sold a product . . . . which utilizes a headset interface technology co–
developed by Lonny Bowers and described in research documents wrongfully seized and
appropriated by ClearOne.” (Id. ¶ 23.) Mr. Bowers has been deprived of “any and all
copies of proprietary acoustic calculation software which he developed personally and
used in his business prior to the seizure.” (Id. ¶ 24.) Plaintiffs claim lost revenue,
misappropriation of trade secrets, false imprisonment, trespass, and severe emotional
distress on account of Defendants’ conduct.
II.

Discussion5

Defendants have moved to dismiss Plaintiffs’ Complaint in its entirety, arguing
that Plaintiffs have failed to state a valid Bivens claim against Defendant Tingley and Does

5

“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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although detailed allegations are not required, a claim will be found facially
plausible only if “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Conclusory allegations are not sufficient. Id. at 678–79; see also Fed. R. Civ. P.
12(b)(6).
4

1–4, and that Defendants Tingley and Does 1–4 are entitled to quasi–judicial absolute
immunity for their actions taken in enforcing a valid court order or, alternatively, are
entitled to qualified immunity. Defendants also assert that Plaintiffs have failed to state
any tort claim against the United States under the FTCA.
A.

Count One: Violations of the Fourth Amendment

The issue of whether United States Marshals acting to execute a valid court order
are immune from suit on the basis of quasi–judicial immunity appears to be one of first
impression in the Second Circuit. Because of this, the Court will first address the
allegations of Plaintiffs’ Fourth Amendment claim, which the Court concludes fail to state
a plausible claim under Iqbal. However, as discussed below, even if the allegations were
found to state a plausible Fourth Amendment claim, Defendants are entitled to either
absolute quasi–judicial immunity or qualified immunity and Count One must be
dismissed.
1.

Bivens Claim

Plaintiffs allege that Tingley and Does 1–4 deprived them of their rights to be free
from unreasonable searches and seizures in violation of the Fourth Amendment because
Defendants had no warrant, the searches and seizures of their home and office were “not
authorized by federal law,” the Marshals “confined” Plaintiffs without a warrant or
probable cause, they did not “comply with federal statutes and regulations regarding the
service of process . . . and searches and seizures,” “the order of the court was an order for
civil contempt issued by the District of Utah, and the order was improperly served
outside of the State of Utah,” Defendants failed to supervise the third parties authorized
to execute the order,” and that the Marshals “failed to ensure as required by . . . order,

5

that the agents of ClearOne take only those items that were authorized to be taken by the
order.” (Compl. ¶ 34a–g.)
“A Bivens action enables a plaintiff to recover damages against federal defendants
acting in their individual capacities where their conduct is found to violate constitutional
rights.” Pimental, 411 F. Supp. 2d at 127. “[T]he absence of any deprivation of a
constitutional right is a basis for dismissal . . . under a Rule 12(b)(6) inquiry.” Van Eck v.
Gallucci, 321 F. Supp. 2d 368, 374 (D. Conn. 2004). The Fourth Amendment guarantee
that the “right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,” U.S. Const. Amend. IV,
carries a “central requirement . . . of reasonableness.” Illinois v. McArthur, 531 U.S. 326,
330 (2001).
The facts alleged in paragraph 34 of Plaintiffs’ Complaint do not state plausible
violations of Plaintiffs’ Fourth Amendment rights. As an initial matter, Plaintiffs seem to
be alleging that the Amended Rule 65 Order was invalid (see Compl. ¶ 34a, b, d, e, f, g),
though they concede that they “do not dispute that the Amended Rule 65 Order from the
District of Utah is ‘valid legal process.’” (Pls.’ Sur–Reply [Doc. # 34] at 1.) Plaintiffs also
allege that they were confined and “effectively” arrested by Defendants, during the
entirety of the ClearOne agents’ search of their home and offices. The Amended Rule 65
Order authorized the Marshals accompanying ClearOne to “use all reasonable force
necessary to gain access to the business office and storage unit, and to defend ClearOne’s
agents while executing this order.” (Ex. C to Defs.’ Mot. at ¶ 4.) Plaintiffs allege no facts
suggesting that Defendants’ conduct in accompanying and defending ClearOne’s agents
in execution of the court order was unreasonable and therefore unconstitutional. Rather,
the facts as pled state that the U.S. Marshals were present, did not “actually supervise[]
6

the agents of ClearOne” (see Compl. ¶ 21), and confined Mr. and Mrs. Bowers in the
office and house, respectively, for a limited period of time so that the ClearOne agents
could complete their search pursuant to the court order. Such a limited detention has
been held not to be an unreasonable use of force. See Muehler v. Mena, 544 U.S. 93, 100
(2005) (A two– to three–hour detention in handcuffs, where there was a valid search
warrant, did not outweigh the government’s “continuing safety interests” and therefore
the detention was reasonable).
As alleged, the Complaint lacks any facts to support a plausible claim of
unreasonable search and seizure as to the Marshals’ use of force against Plaintiffs,
particularly where the force used was pursuant to stated obligations under the Amended
Rule 65 Order. Thus, the Complaint fails on its face to state a plausible claim for a
violation of the Fourth Amendment as to Defendant Tingley and Does 1–4.
2.

Quasi–Judicial Absolute Immunity

Defendants Tingley and Does 1–4 contend that as officials executing a facially
valid court order, they are entitled to judicial immunity. “The entitlement of a
government official to absolute immunity, protecting him from liability, from suit, and
from any scrutiny of the motive for and reasonableness of his official actions, depends on
the function he performs. Absolute immunity is rarely granted; qualified immunity is the
norm.” Dorman v. Higgins, 821 F.2d 133, 136 (2d Cir. 1987); see also Mireles v. Waco, 502
U.S. 9, 13 (holding that the fact that a judge’s order was carried out by a police officer did
not transform the order from a judicial action, and that therefore, the judge was
absolutely immune from suit relating to that order).
“[S]ome officials who are not judges but ‘who perform functions closely
associated with the judicial process’ have . . . been accorded such immunity.” Dorman v.
7

Higgins, 821 F.2d at 137 (2d Cir. 1987) (citation omitted) (holding that federal probation
officers are entitled to quasi–judicial absolute immunity when preparing presentence
reports, because “in preparing presentence reports, a federal probation officer acts as an
arm of the court and that that task is an integral part of one of the most critical phases of
the judicial process.”) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)). Several
district courts in this Circuit have found the execution of valid court orders to entitle
sheriffs and others to absolute quasi–judicial immunity. See, e.g., Morris v. Katz, 11-CV3556 (JG), 2011 WL 3918965 (E.D.N.Y. Sept. 4, 2011) (finding defendant city marshal
was entitled to absolute quasi–judicial immunity: “[s]ince [plaintiff] seeks to hold
Marshal Essock liable based upon his execution of a facially valid warrant of eviction in
accordance with his duty to carry out mandates of the court, the action against him must
be dismissed on the basis of quasi-judicial immunity.”); Maldonado v. New York County
Sheriff, No. 05Civ. 8377(JGK), 2006 WL 2588911, at *5 (S.D.N.Y. Sept. 6, 2006) (“because
the function being performed is deemed integral to the judicial process, persons who
faithfully execute valid court orders are absolutely immune from liability for damages in
actions challenging conduct authorized by the order.”); Caporicci v. Nassau Cty. Police
Dept., CV 05-5764, 2007 WL 764535(LDW) (E.D.N.Y. Mar. 6, 2007) (“When relying
upon a facially valid warrant, a sheriff is “afforded complete protection from liability for
any proper act done in its execution.” . . . In view of this complete protection and the fact
that Sheriff Reilly is sought to be held liable based upon his execution of a facially valid
warrant, the action against him must be dismissed on the basis of quasi–judicial
immunity.”); Tornheim v. Eason, 363 F.Supp.2d 674, 676–77 (S.D.N.Y.2005) (same).
Other circuits have also recognized that where a defendant is acting pursuant to
court order, he or she is absolutely immune. For instance, in Roland v. Philips, 19 F.3d
8

552, 556 (11th Cir. 1994), the Eleventh Circuit held that “law enforcement personnel,
acting in furtherance of their official duties and relying on a facially valid court order, are
entitled to absolute quasi–judicial immunity.” The Roland Court concluded that a Sheriff
“acting under a verbal judicial order” to incarcerate the plaintiff “after her reiterated
refusal to activate water service for the Robinwood Subdivision,” id. at 557, was protected
by absolute quasi–judicial immunity. The court reasoned, “[t]he proper procedure for a
party who contests a judicial order is to appeal that order and not to sue the official
responsible for its execution.” Id. (internal citations and punctuation omitted); see also
Valdez v. City & County of Denver, 878 F.2d 1285, 1288 (10th Cir. 1989) (“Enforcing a
court order or judgment is intrinsically associated with a judicial proceeding. . . . Absolute
immunity for officials assigned to carry out a judge’s orders is necessary to insure that
such officials can perform their function without the need to secure permanent legal
counsel.).
The Court finds that the facts alleged here—that Defendants were present at
Plaintiffs’ residence and workplace to execute a valid order from the Utah District
Court— claim conduct that has “an integral relationship with the judicial process,” see
Roland, 19 F.3d at 556 (internal citation omitted), and thus the nature of the function
performed appears to entitle Defendants to quasi–judicial absolute immunity.
3.

Qualified Immunity

However, even if Defendants were not entitled to absolute immunity, Defendants
are nevertheless entitled to qualified immunity.
Government officials are immune from liability for civil damages when their
conduct “‘does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 230 (2009)
9

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The two–pronged qualified
immunity inquiry asks whether “the facts alleged show the officer’s conduct violated a
constitutional right,” and if so, “whether the right was clearly established,” such that “it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001) (citations omitted).
As discussed above, the conduct alleged does not state a claim for a Fourth
Amendment violation, but even if it did, Defendants are alleged to have been acting
pursuant to a court order—one which provides that “ClearOne shall inspect the
premises,” “ClearOne may conduct the inspection without prior notice,” “ClearOne shall
carry out the inspection through its counsel of record,” and “the United States Marshal,
[and] the Marshal’s personnel, . . . are authorized to . . . defend ClearOne’s agents while
executing this order.” (Ex. C ¶ 4). It would not be clear to reasonable officers in
Defendants’ position that their conduct in detaining Plaintiffs for a limited time was
unlawful, given that they were acting pursuant to a valid court order under which they
were not responsible for the inspection and seizure of particular documents and
information, and were required to “defend” the agents who were to conduct the
inspection. Therefore, Defendants are entitled to qualified immunity.
Thus, for the reasons discussed above, the Court finds that Count One of the
Complaint must be dismissed.
B. Count Two: Claims under the FTCA
In Count Two, Plaintiffs sue under the FTCA, which waives the Government’s
liability for certain torts committed by federal employees. See 28 U.S.C. § 2674. Plaintiffs
allege false imprisonment, intentional or negligent infliction of emotional distress,
negligent selection, supervision, and retention of agents and employees, negligent failure
10

to supervise parties accompanying U.S. Marshals, trespass to or interference with chattels,
conversion, and misappropriation of trade secrets. (See Compl. ¶ 38.) The liability of the
United States under the FTCA is subject to a discretionary function exception, see 28
U.S.C. § 2680(a); United States v. Gaubert, 499 U.S. 315, 322 (1991), which Defendants
argue is applicable here.
1.

Discretionary Function Exception

The discretionary function exception, codified at 28 U.S.C. § 2680(a), exempts
from liability under the FTCA:
[a]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused.
“The purpose of the discretionary function exception is to “prevent judicial ‘second–
guessing’ of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.’” Callahan v. United States, 329
F. Supp. 2d 404, 407 (S.D.N.Y. 2004) (citing Gaubert, 499 U.S. at 323). To determine
whether the discretionary function exception applies, one must consider whether (1) the
challenged conduct involves “an element of judgment or choice,” Gaubert, 499 U.S. at
322, and whether (2) the judgment is based on policy considerations, id. at 323.
Defendants contend that the negligent supervision/failure to supervise claims
should be dismissed on account of the discretionary function exception to the FTCA.
“[T]here is no doubt that planning–level decisions establishing programs are protected by
the discretionary function exception. . . . In addition, the actions of Government agents

11

involving the necessary element of choice and grounded in the social, economic, or
political goals of the statute and regulations are protected.” Gaubert, 499 U.S. at 323.
Defendant Marshals were tasked with supervising the execution of the Amended
Rule 65 Order, which provided that the Marshals were “to use all reasonable force
necessary . . . and to defend ClearOne’s agents while executing this Order.” (Ex. C to
Defs.’ Mot. ¶ 4.) Further, 28 U .S.C. § 566(a) states that “[i]t is the primary role and
mission of the United States Marshals Service to provide for the security and to obey,
execute, and enforce all orders of the United States District Courts.” Neither of these
directives “specifically prescribes a course of action for an employee to follow.” Berkovitz
by Berkovitz v. United States, 486 U.S. 531, 536 (1988) (“the discretionary function
exception will not apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow. In this event, the employee has no
rightful option but to adhere to the directive.”).
In Callahan, 329 F. Supp. 2d at 407, the district held that the plaintiffs’ claims of
trespass and nuisance—allegations that the U.S. Marshal Service committed these torts
while providing security to the plaintiffs’ next door neighbor, Judge Mukasey—met both
prongs of the discretionary function test, and thus that their claims had to be dismissed
for lack of subject matter jurisdiction. The district court reasoned that:
it is clear from the statutory scheme that Congress has left to the discretion
of the Marshals Service how to protect federal judges who are threatened.
See 28 U.S.C. § 566. The statute generally defines the Marshals Service’s
powers and duties and authorizes the Marshals Service to “provide for the
personal protection of Federal jurists.” 28 U.S.C. § 566(e)(1)(A). However,
the statute does not proscribe the manner in which the Marshals Service
should fulfill its protective obligations. Id. Also, the applicable federal
regulations do not require the Marshals Service to follow any particular
approach to the planning or carrying out of its protective assignments.

12

329 F. Supp. 2d at 408.
Plaintiffs’ claims involve contentions that the Defendant Marshals did not execute
the Amended Rule 65 Order in the manner Plaintiffs thought appropriate. Defendants’
chosen manner of executing the order, however, is subject to the discretionary function
exception, as the order did not “specifically prescribe a course of action” for Defendants
to follow. Because Plaintiffs’ claims of negligent selection and supervision and negligent
failure to supervise involve elements of judgment and choice as to how best to execute
this court order, these claims are dismissed pursuant to the discretionary function
exception.
2.

Plaintiffs’ Remaining FTCA Claims

As to the remaining claims, Defendants contend that Plaintiffs have failed to state
any claim that would meet the plausibility requirements of Iqbal.
a.

False Imprisonment/False Arrest

In Connecticut, “[f]alse imprisonment, or false arrest, is the unlawful restraint by
one person of the physical liberty of another.” Green, v. Donroe, 186 Conn. 265, 267
(1982). In a false arrest action, “Connecticut law places the burden of proving an unlawful
arrest on the plaintiff.” Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). In
opposition, Plaintiffs argue that there was no arrest warrant authorizing the Marshals to
place Plaintiffs under arrest. The Complaint only alleges that Plaintiffs were confined by
the Marshals during the period of time in which ClearOne’s agents were searching the
Bowers home and office and does not allege that the Marshals were acting unlawfully in
executing the Amended Rule 65 Order. Though Plaintiffs argue that an order pursuant to
Rule 65 is not the same as a search warrant and that comparatively “[a] search warrant . . .

13

requires very detailed procedures” (Pls.’ Opp’n),6 they do not explain why the temporary
confinement undertaken by the Marshals pursuant to a valid Rule 65 Order would not
constitute “lawful” action. As the allegations of the Complaint show that Defendants’
actions were taken as a result of a court order, Plaintiffs fail to state a plausible claim of
false imprisonment or false arrest under Connecticut law.
b.

Trespass to Chattels and Conversion

Under Connecticut law, trespass to chattels is defined as “intentionally
dispossessing another of the chattel, or using or intermeddling with a chattel in the
possession of another.” Simms v. Chaisson, 277 Conn. 319, 331 (Conn. 2006). There are
no facts alleged here that suggest that Defendants themselves “intentionally dispossessed”
Plaintiffs of any items taken, nor that they “used or intermeddled” with the items taken by
ClearOne agents.7 Thus, Plaintiffs’ trespass to chattels claim must be dismissed.
Conversion is the “unauthorized assumption and exercise of the right of
ownership that interferes and harms the owner's rights to that property.” Yeomans v.
Wallace, 291 F. Supp. 2d 70, 76–77 (D. Conn. 2003) (citing Suarez–Negrete v. Trotta, 47
Conn. App. 517, 521 (1998)). “The plaintiff need not allege that the unauthorized
possession of the property was intentional,” but must allege “that he was harmed in order

6

Contrary to Plaintiffs’ assertion that a search warrant requires more “detailed”
process than those justifying an order under Rule 65, the Amended Rule 65 Order at issue
here was issued pursuant to a very detailed process: the Magistrate Judge in the District of
Utah issued a fifty–three–page Report and Recommendation listing the factual
determinations and legal conclusions supporting a grant of ClearOne’s ex parte motion
for an order pursuant to Rule 65. (See Report and Recommendation, Ex. E to Defs.’ Mot.)
7

Though Plaintiffs argue that the Marshals were required to “take precautions to
safeguard possessions taken during the execution of an authorized search,” they cite only
to the Federal Rules of Criminal Procedure in support of this statement, and the
Amended Rule 65 Order as well as the Complaint are both silent on this point.
14

to state a claim for conversion.” Id. “[A]t a minimum, the plaintiff must allege that the
defendants . . . have taken the plaintiff's property and retained possession of those items,
treating them as their own.”
There are no allegations that the Defendant Marshals took Plaintiffs’ property and
retained possession of the items seized. Thus, Plaintiffs’ conversion claims must be
dismissed.
c.

Misappropriation of Trade Secrets

Section 35-51(b) of CUTSA defines misappropriation as
(1) Acquisition of a trade secret of another by a person who knows or has
reason to know that the trade secret was acquired by improper means;
or (2) disclosure or use of a trade secret of another without express or
implied consent by a person who (A) used improper means to acquire
knowledge of the trade secret; or (B) at the time of disclosure or use,
knew or had reason to know that his knowledge of the trade secret was
(i) derived from or through a person who had utilized improper means
to acquire it; (ii) acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use . . . ; (iii) derived from or through a
person who owed a duty to the person seeking relief to maintain its
secrecy or limit its use; or (C) before a material change of his position,
knew or had reason to know that it was a trade secret and that
knowledge of it had been acquired by accident or mistake.
Plaintiffs argue that Defendants violated Conn. Gen. Stat. § 35-51(b)(2)(B)(ii)—
that is, that Defendants knew or had reason to know that their knowledge of the trade
secrets was “acquired under circumstances giving rise to a duty to maintain its secrecy or
limit its use.” (Pls.’ Opp’n at 17.) However, there are no allegations that Defendants had
any knowledge of Plaintiffs’ trade secrets.
“[A] a violation of CUTSA occurs only if the defendant either wrongfully acquired
the plaintiff's trade secret or used or disclosed the trade secret.” Nora Beverages, Inc. v.
Perrier Group of Am., Inc., 164 F.3d 736, 750 (2d Cir. 1998). Defendants are not alleged to
15

have acquired, used or disclosed Plaintiffs’ protected information, and while Plaintiffs
assert in their opposition (but do not allege in their Complaint) that Defendants were
under a duty to protect the information because there was an agency relationship between
Defendants and ClearOne, the Complaint alleges no facts that would establish a plausible
agency relationship of this kind. Thus, Plaintiffs’ misappropriation of trade secrets claim
is also dismissed.
d.

Intentional and Negligent Infliction of Emotional Distress

For a plaintiff to state a claim for intentional infliction of emotional distress
(“IIED”), he or she must allege facts showing:
(1) that the actor intended to inflict emotional distress, or that he knew or
should have known that emotional distress was a likely result of his
conduct; (2) that the conduct was extreme and outrageous; (3) that the
Defendant's conduct was the cause of the Plaintiff's distress; and (4) that
the emotional distress sustained by the Plaintiff was severe.
Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). “Whether a defendant’s
conduct is sufficient to satisfy the requirement that it be extreme and outrageous is
initially a question for the court to determine.” Appleton v. Bd. of Educ. of Town of
Stonington, 254 Conn. 205, 210 (2000).
The conduct alleged in the Complaint, i.e., that Defendants “confined” Plaintiffs
while ClearOne agents inspected their personal property, falls far short of the level of
extreme and outrageous conduct required to state a claim for IIED, nor do Plaintiffs
allege that it was specifically Defendants’ conduct, as opposed to the ClearOne agents
“ransacking” Plaintiffs’ office and home, that was the cause of their distress. As such,
Plaintiffs’ allegations do not state a plausible IIED claim.
To state a claim for negligent infliction of emotional distress (“NIED”), a plaintiff
must plead: (1) the defendant’s conduct created an unreasonable risk of causing the
16

plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional
distress was severe enough that it might result in illness or bodily harm; and (4) the
defendant’s conduct was the cause of the plaintiff's distress. Carrol v. Allstate Ins. Co., 262
Conn. 433, 444 (2003).
Plaintiffs allege that “[a]s a direct and proximate result of the actions of the
defendants, Lonny Bowers and Lea Bowers have suffered severe emotional distress,
mental anguish, humiliation and embarrassment.” (Compl. ¶ 30.) These allegations are, at
most, threadbare recitations of an NIED cause of action and do not allege facts that could
show that the emotional distress suffered “was severe enough that it might result in illness
or bodily harm,” Carrol, 262 Conn. at 444, nor that Defendants’ conduct created an
“unreasonable risk” of causing Plaintiffs emotional distress. Thus, as it lacks plausibility,
the NIED claim will be dismissed.
e.

Negligent Supervision

Even if the discretionary function exception were not to bar Plaintiffs’ negligent
supervision claims, the Complaint fails to state a claim for negligent supervision.
Under Connecticut law, an employer may be liable for negligent supervision of its
employees:
[a] plaintiff must plead and prove that she suffered an injury due to the
defendant's failure to supervise an employee whom the defendant had a
duty to supervise. A defendant does not owe a duty of care to protect a
plaintiff from another employee's tortious acts unless the defendant knew
or reasonably should have known of the employee’s propensity to engage
in that type of tortious conduct.
Roberts v. Circuit–Wise, Inc., 142 F. Supp.2d 211, 214 (D. Conn. 2001); see also Gutierrez
v. Thorne, 13 Conn. App. 493, 500 (1988).

17

Here, there are no allegations that the Defendant Marshals had any duty to
supervise the ClearOne agents, or to protect Plaintiffs from ClearOne. Indeed the
Amended Rule 65 Order charges Defendants with “defend[ing] ClearOne’s agents while
executing this order” (Ex. C to Defs.’ Mot. ¶ 4), and the Complaint alleges no existence of
a duty to supervise ClearOne’s agents, nor that Defendants “knew or reasonably should
have known” of ClearOne’s propensity to engage in tortious conduct. Plaintiffs’ negligent
supervision claims must be dismissed for failure to state a negligent supervision claim.
III.

Conclusion

For the reasons discussed above, Defendants’ motion to dismiss is granted in its
entirety. The Clerk is directed to close the case.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 13th day of March, 2013.

18