Wade v. Kay Jewelers Inc. et al

Filing 105

ORDER. For the reasons set forth in the attached, Sterling's 42 and GGP's 45 motions to dismiss the 36 amended complaint are GRANTED in part and DENIED in part. The claims for violation of 42 U.S.C. § 1981 (Count One) and intenti onal infliction of emotional distress (Count Four) are DISMISSED in full. The defamation per se claim against GGP (Count Three) is DISMISSED. In addition, PSC's 70 motion to dismiss the 57 third-party complaint is GRANTED in part and DENIED in part. GGP's negligence claim (Count One) against PSC is DISMISSED. Finally, the Clerk is directed to terminate Kay Jewelers, Inc. as a defendant.Signed by Judge Michael P. Shea on 9/17/2018. (Barclay, Michael)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FABIAN WADE,
No. 3:17-cv-990 (MPS)

Plaintiff,
v.
KAY JEWELERS, INC., STERLING JEWELERS,
INC., GGP, INC., AND JANE & JOHN DOES, 1–5
Defendant.

RULING ON MOTIONS TO DISMISS
Plaintiff Fabian Wade (“Wade”) brings this suit based on an incident at the Buckland Hills
Mall where he was identified by employees of Kay Jewelers as a suspect in a prior theft and credit
card fraud and questioned by mall security personnel and police. (ECF No. 36.) Wade sued the
owner of the Kay Jewelers store, defendant Sterling Jewelers, Inc. (“Sterling”),1 the mall owner,
GGP, Inc. (“GGP”), and numerous Jane and John Does, asserting six claims arising from the
incident: (1) violation of 42 U.S.C. § 1981; (2) false imprisonment; (3) defamation per se; (4)
intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6)
negligent supervision. Defendant GGP impleaded Professional Security Consultants, Inc. (“PSC”)
as the alleged employer of mall security personnel and asserted claims for negligence, common
law indemnification, and contractual indemnification. (ECF No. 57.) Sterling and GGP now move
to dismiss Wade’s amended complaint under Rule 12(b)(6) (ECF Nos. 42, 45), and PSC moves to
dismiss part of GGP’s third-party complaint under Rule 12(b)(6). (ECF No. 70.) For the reasons
that follow, I GRANT in part and DENY in part all three motions.

Sterling has repeatedly asserted that there is no such entity as “Kay Jewelers, Inc.,” which
is simply a trade name for Sterling. The Amended Complaint likewise alleges that Kay Jewelers,
Inc. is a “non-existent” entity (ECF No. 36 at ¶ 9). Accordingly, the Clerk is directed to terminate
Kay Jewelers, Inc. as a defendant.
1

I.

Factual Background
I briefly recite the relevant factual background as set forth in Wade’s amended complaint.

(ECF No. 36 (hereinafter “Am. Compl.”).) Wade, a black, African-American male, went to the
Kay Jewelers store/booth at Buckland Hills Mall in Manchester, CT on Saturday, March 18, 2017.
(Am. Compl. at ¶¶ 13–15.) Wade asked an employee if he could look at some earrings, which the
attending employee showed him but refused to take out of their glass case. (Id. at ¶¶ 16–18.)
Wade decided not to buy the earrings and walked away from the Kay Jewelers store/booth. (Id. at
¶ 19.)
Within a few minutes, an undercover security or loss prevention officer for the mall, Jane
Doe 3, stopped Wade and told him that one of the Kay Jewelers Individual Defendants2 (either
defendant Jane Doe 1 or Jane Doe 2) had identified Wade as an individual they suspected had been
robbing Kay Jewelers over the past few months. (Id. at ¶¶ 20–22.) According to the police report
of the incident, one of the Kay Jewelers Individual Defendants had called mall security, who in
turn called the police, to report Wade for possible ID theft and credit card fraud. (Id. at ¶ 35.)
Wade believed that the Kay Jewelers Individual Defendants had “identified [Wade] because of his
skin color and because [he] fit their idea of a shoplifter.” (Id. at ¶ 41.)
Shortly after Wade was stopped, Jane Doe 3 was joined by another mall security officer,
John Doe 1, and Officer Decker of the Manchester Police. (Id. at ¶ 23.) Jane Doe 3, John Doe 1,
and Officer Decker surrounded Wade, “with Officer Decker in front facing [Wade] and Jane Doe
3 on one side of [Wade] and John Doe 1 on the other side of [Wade], confining [Wade] . . . [and]
forcing [Wade] to stay in the space, from where he could not leave.” (Id. at ¶ 26.) Officer Decker

For ease of reference, I refer to defendants Jane Doe 1 and Jane Doe 2 as the “Kay
Jewelers Individual Defendants” and defendants Jane Doe 3, John Doe 1, and John Doe 2 as the
“Mall Security Individual Defendants.” (Am. Compl. at ¶¶ 11–12, 24–25.)
2

2

told that Wade that a Kay Jewelers employee had told Officer Decker when he responded to the
call that Wade was the suspect. (Id. at ¶ 27.) Officer Decker demanded to see Wade’s ID and
asked about Wade’s credit cards. (Id. at ¶ 28.) Officer Decker radioed in Wade’s ID and, while
holding onto the ID, “forc[ed] [Wade] to walk downstairs with him” to the Kay Jewelers
booth/store, despite Wade’s repeated requests to return his ID. (Id. at ¶¶ 29–31.) At some point,
Wade called his lawyer, soon after which the stop ended and Wade left. (Id. at ¶ 34.). Wade was
shaken up by the incident, has had flashbacks, believes his reputation has been harmed, and alleges
that he now has a public record as a result Officer Decker running his ID through the Manchester
Police system. (Id. at ¶¶ 47–51.)
The amended complaint pleads on information and belief that Kay Jewelers “top
management practice and believe in discrimination . . . creating a corporate culture where Kay
Jewelers store employees routinely and disproportionately” discriminate against AfricanAmericans for suspicion of criminal activity. (Id. at ¶ 52.) The amended complaint further asserts
that the Kay Jewelers’ “employees and loss prevention/security personnel were not properly
trained or supervised to prevent Kay Jewelers’ employees from targeting African-Americans and
people of color” for suspected criminal activity, and were also not “properly trained or supervised”
in connection with “accusing customers” of criminal activity and alerting law enforcement
personnel of the same. (Id. at ¶ 53.)
Sterling deposed Wade about the incident before Wade filed the complaint; Wade was
represented by his counsel at the deposition. (See, e.g., ECF No. 43-1 at 2–147 (“Wade Tr.”).)
After Wade filed suit, Wade amended his complaint, and Sterling and GGP moved to dismiss.
(ECF Nos. 36, 42, 45.) GGP filed a third party complaint against PSC, and PSC then moved to
dismiss part of the GGP’s third party complaint against it. (ECF No. 57, 70.)

3

II.

Legal Standard
On a motion to dismiss, I take the plaintiff’s factual allegations in the complaint “to be true

and [draw] all reasonable inferences in” his favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
“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) (citation and quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A court need not accept legal conclusions as true and
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In addition, the “court need not feel constrained to accept as truth
conflicting pleadings that . . . are contradicted either by statements in the complaint itself or by
documents upon which its pleadings rely.” In re Livent, Inc. Noteholders Sec. Litig., 151 F. Supp.
2d 371, 405–06 (S.D.N.Y. 2001)
“In adjudicating a motion to dismiss, a court may consider only the complaint, any written
instrument attached to the complaint as an exhibit, any statements or documents incorporated in it
by reference, and any document upon which the complaint heavily relies.” In re Thelen LLP, 736
F.3d 213, 219 (2d Cir. 2013) (citation omitted). In the last category, a document is deemed integral
to the complaint, and thus appropriately considered on a motion to dismiss, “where the complaint
relies heavily upon its terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002); see Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (“Merely mentioning a
document in the complaint will not satisfy this standard; indeed, even offering ‘limited
quotation[s]’ from the document is not enough.”).

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III.

Discussion
As a threshold issue, both Sterling and GGP attach the transcript of Wade’s sworn pre-suit

deposition testimony to their motions to dismiss and argue that the Court should treat the transcript
as incorporated because the amended complaint heavily relies on it. (ECF No. 43 at 7–19; ECF
No. 45-1 at 2–3.) Wade concedes that the transcript should be incorporated for the purposes of
the parties’ motion to dismiss. (ECF No. 50 at 4 (“GGP correctly argues Mr. Wade’s sworn
deposition is proper for consideration for GGP’s Motion to dismiss.”).) The amended complaint
does not cite or reference the deposition transcript itself; however, large portions of the complaint
either quote without attribution (Am. Compl. at ¶¶ 14, 16, 17, 18, 20, 21, 22, 28, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 43, 46, 47, 48, 49, 50, 51) or paraphrase Wade’s deposition testimony
(id. at ¶¶ 13, 15, 19, 23, 27, 29, 41, 47). In other words, not only does Wade agree that he heavily
relied on the transcript in drafting the complaint, but the deposition transcript supplies almost onethird of the allegations in the complaint either verbatim or in paraphrased form. Though usually
incorporation of “integral” documents is applied to legal documents like contracts, I conclude that
the transcript should be considered here because of Wade’s extensive reliance on it in drafting the
complaint. See Washington v. Gonyea, 538 F. App’x 23, 26 n.3 (2d Cir. 2013) (“[I]ncorporation
of the transcript is proper because the complaint relies heavily on the hearing transcript.”); cf.
Allstate Ins. Co. v. Rozenberg, 771 F. Supp. 2d 254, 268 (E.D.N.Y. 2011) (declining to consider
deposition transcript because the complaint did not make any reference to it and the plaintiffs did
not “purport to have relied on [the] deposition in crafting the allegations”).
However, I only consider the transcript for a limited purpose: if the complaint incorrectly
quotes or paraphrases the transcript, I may consider Wade’s testimony for the contents of his
statements, but I may not consider Wade’s deposition testimony for its truth or to contravene a

5

statement in the amended complaint. See Roth v. Jennings, 489 F.3d 499, 511 (2d Cir. 2007)
(“[S]uch documents may properly be considered only for ‘what’ they contain, ‘not to prove the
truth’ of their contents.”); see also Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d
150, 156 (2d Cir. 2006) (reversing district court’s dismissal where district court considered nonintegrated transcript “to make a finding of fact that controverted the plaintiff’s own factual
assertions set out in its complaint”). A lawyer is not confined to the personal knowledge of his
client when he drafts a complaint. He may also rely on other sources of evidence, and he may
further investigate a claim after his client testifies to correct or supplement his client’s own
personal knowledge of the facts. Thus, the Court is not free to disregard an allegation in a
complaint simply because it contradicts the plaintiff’s pre-complaint testimony. Nonetheless,
because I may consider the transcript, I decline Sterling’s alternative request to convert its motion
into one for summary judgment.3
Wade’s amended complaint asserts six causes of action against Sterling and GGP: (1) an
“equal benefit” claim under 42 U.S.C. § 1981; (2) false imprisonment; (3) defamation per se; (4)
intentional infliction of emotional distress (“IIED”); (5) negligent infliction of emotional distress
(“NIED”); and (6) negligent supervision. (Am. Compl. at ¶¶ 54–97.) Sterling and GGP have
moved to dismiss the six counts for failure to state a claim. (ECF Nos. 42, 45.) GGP also moves
to dismiss on the grounds that Wade has not properly pleaded that GGP is vicariously liable for
the mall security personnel, who were independent contractors and not employees of GGP. (ECF
No. 45-1 at 4–6.) After GGP filed its motion to dismiss, Wade withdrew his 42 U.S.C. § 1981 and

3

I also decline that invitation because the plaintiff had not had a full opportunity to conduct
discovery when Sterling’s motion was filed. (See Fed. R. Civ. P. 56(d); see ECF Nos. 48, 51
(listing necessary discovery to oppose summary judgment motion).)
6

IIED claims against GGP. (See ECF No. 50 at 5–6, id. at n.1.) After addressing the issue of GGP’s
vicarious liability, I will address the remaining claims against each defendant.
A.

Vicarious Liability (GGP)

GGP argues that three of the state law tort claims pending against it should be dismissed
because the Amended Complaint does not properly plead vicarious liability against GGP, and the
only basis for liability against GGP on those counts consists of the actions of defendants John Doe
1, John Doe 2, and Jane Doe 3 as alleged mall “security/loss prevention personnel and/or agents
of the Defendants Kay Jewelers and/or GGP . . . .” (ECF No. 45-1 at 5 (citing Am. Compl. at ¶
12).)4 Under Connecticut law, “a master is liable for the willful torts of his servant committed
within the scope of the servant’s employment and in furtherance of his master’s business” under
the doctrine of respondeat superior. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500
(1995). On the other hand, “an employer is not liable for the negligence of its independent
contractors” as a general rule. See Pelletier v. Sordoni/Skanska Const. Co., 264 Conn. 509, 517
(2003). GGP attaches to its motion to dismiss a copy of an agreement purporting to demonstrate
that defendants John Doe 1, John Doe 2, and Jane Doe 3 were independent contractors, not
employees, of GGP. (ECF No. 45-1 at 5, 192–194.) This exhibit is not a document the Court may
consider on a motion to dismiss, however, as the Court is limited to the well-pleaded allegations
in Wade’s complaint and documents incorporated or relied on therein. The Amended Complaint
alleges that these defendants were “security/loss prevention personnel and/or agents” of Sterling
and GGP, and asserts claims against GGP based on their role as employees or agents of GGP.
(Am. Compl. at ¶ 12; id. at ¶¶ 65 (alleging in Count 2 that “the security/loss prevention personnel

4

GGP also argues that the negligent supervision claim (Count 6) should be dismissed on
similar grounds, which I address in the discussion of that claim. (ECF No. 45 at 6.)
7

for Kay Jewelers and GGP, Jane Doe 3, who stopped Plaintiff, pulled him aside and with John Doe
1, along with Police Officer Decker, surrounded Plaintiff . . .”), 73 (alleging in Count 3 that the
“direct and proximate cause of the injuries and damages suffered by the Plaintiff as hereinafter
described were the actions of the Defendants and their agents, servants and/or employees”). Of
note, GGP does not argue that Wade has insufficiently pleaded the existence of an agency or
employee relationship, but in effect argues that Wade’s pleading must be read in light of its
agreement. Since the Court may not consider the agreement, I must reject GGP’s argument and
assess the claims against GGP on their merits.
B.

False Imprisonment (Sterling and GGP)

“[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of
another.” Berry v. Loiseau, 223 Conn. 786, 820 (1992) (citation omitted). “To prevail on a claim
of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the
defendant and that the restraint was against his will, that is, that he did not consent to the restraint
or acquiesce in it willingly.” Id. In addition, “the detention must be wholly unlawful . . . .” Lo
Sacco v. Young, 20 Conn. App. 6, 19 (1989).

“Any period of such restraint, however brief in

duration, is sufficient to constitute a basis for liability.” Green v. Donroe, 186 Conn. 265, 267
(1982) (“The fact that there was no formal arrest of the plaintiff . . . and that he remained in the
custody of the police for only ten minutes would not necessarily defeat his cause of action for false
imprisonment.”). However, “[a] person is not liable for false imprisonment unless his act is done
for the purpose of imposing a confinement, or with knowledge that such confinement will, to a
substantial certainty, result from it.” Rivera v. Double A Transp., Inc., 248 Conn. 21, 31 (1999)
(citing Donroe, 186 Conn. at 268). “Nothing less than a rather extreme brand of recklessness will
substitute for the standard requirement of intention in false imprisonment cases.” Id.

8

1.

Sterling

Sterling moves to dismiss the false imprisonment claim on the grounds that (1) the
amended complaint does not allege that Sterling detained Wade, because the Kay Jewelers
Individual Defendants did not call the police or themselves detain Wade; and (2) the amended
complaint does not allege that the Kay Jewelers Individual Defendants acted with the requisite
intent in misidentifying Wade to mall security. (ECF No. 43 at 27–31.) Wade responds that the
amended complaint alleges that Sterling detained Wade because the Mall Security Individual
Defendants are Sterling’s employees or agents, and in any event the complaint alleges that Kay
Jewelers Individual Defendants acted with the requisite intent in identifying Wade to both mall
security and the police as a suspect in previous incident of attempted credit card fraud. (ECF No.
46 at 19–21 (citing Am. Compl. at ¶¶ 20–22, 27).)
First, drawing all inferences in Wade’s favor, I conclude that the Amended Complaint
alleges that Sterling detained Wade. Although the Amended Complaint does not affirmatively
allege that the Kay Jewelers Individual Defendants detained Wade, it does allege that the Mall
Security Individual Defendants are employees or agents of Sterling. (See Am. Compl. at ¶ 12 (the
Mall Security Individual Defendants are “security/loss prevention personnel and/or agents of the
Defendants Kay Jewelers and/or GGP . . . .”); id. at ¶¶ 24, 25 (identifying Jane Doe 3 and John
Doe one as “providing [] security/loss prevention services to Kay Jewelers”).)5 The amended
complaint alleges that the Mall Security Individual Defendants (specifically Jane Doe 3 and John
Doe 1) detained Wade. (Am. Compl. at ¶¶ 23, 44, 49.) The amended complaint thus adequately
pleads that Sterling detained Wade.

5

Sterling argues that Wade conceded in his pre-suit deposition that none of individuals
involved in detaining him worked for Kay Jewelers, but as discussed above the Court may not use
the transcript to contravene Wade’s complaint. (ECF No. 53 at 7.)
9

Second and in any event, the Amended Complaint alleges that the Kay Jewelers Individual
Defendants acted “for the purpose of imposing a confinement, or with knowledge that such
confinement will, to a substantial certainty, result from it.” Donroe, 186 Conn. at 268. When all
inferences are drawn in Wade’s favor, the Amended Complaint alleges that: (1) the Kay Jewelers
Individual Defendants called mall security to identify Wade as a suspect who had attempted to
commit credit card fraud the previous week (Am. Compl. at ¶¶ 20–22, 35), and mall security called
the police (Am. Compl. at ¶¶ 35, 51)6; (2) a Kay Jewelers employee “directed the security/loss
prevention personnel for Kay Jewelers and GGP, Jane Doe 3, who stopped Plaintiff” (Am. Compl.
at ¶ 65) and that (3) the Kay Jewelers Defendants “intended for Plaintiff to be stopped or detained”
because they “had to know” he would be detained as a result of the police being called. (Am.
Compl. at ¶¶ 38–40.) Though allegations (2) and (3) would be conclusory on their own, they are
supported by specific acts the Kay Jewelers Individual Defendants took, namely: (4) after leaving
Kay Jewelers, defendant Jane Doe 3 informed Wade that one of the Kay Jewelers Individual
Defendants had identified him as the suspect (Am. Compl. at ¶¶ 20–22); and (5) after Wade was
allegedly confined, Officer Decker told Wade that “a Kay Jeweler employee downstairs told

6

Although some allegations imply that a Kay Jewelers Individual Defendant called the
police (Am. Comp. at ¶¶ 38–40), others contradict that assertion and state that mall security called.
(Am. Compl. at ¶¶ 20, 35.) Moreover, these particular allegations (Am. Compl. at ¶¶ 38–40) quote
Wade’s testimony, which he acknowledges is based exclusively on the police report of the
incident. (See ECF No. 43-1, Wade Tr. 27:2–29:23.) The police report, which Wade’s amended
complaint adopts, states that the police were “CALLED BY THE MALL SECURITY.” (Am.
Compl. at ¶ 35.) Accordingly, I need not accept these particular allegations as true. See In re
Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d 371, 405–06 (S.D.N.Y. 2001) (“[A] court
need not feel constrained to accept as truth conflicting pleadings that . . . are contradicted either by
statements in the complaint itself or by documents upon which its pleadings rely.”).
10

[Officer Decker] that Plaintiff, Wade, was the suspect and that he and others were walking around
the mall looking for Plaintiff, Wade, until they found him.” (Id. at ¶ 27.) 7
Bryans v. Cossette, which Sterling relies on, is distinguishable. No. 3:11-CV-01263 JCH,
2013 WL 4737310 (D. Conn. Sept. 3, 2013). Bryans addressed a motion for summary judgment,
not a motion to dismiss. In addition, the undisputed facts there showed that a hospital’s medical
staff asked its security personnel to stop a patient leaving the hospital, but did not ask the police
officers who were solely responsible for arresting him to do so. See 2013 WL 4737310, at *13 (D.
Conn. Sept. 3, 2013). Drawing all inferences in his favor, I conclude that Wade has plausibly
alleged that the Kay Jewelers Individual Defendants directed the Mall Security Individual
Defendants to stop plaintiff (Am. Compl. ¶¶ 20–22, 65), informed the police that he was the
suspect (Am. Compl. ¶ 27), and both the Mall Security Individual Defendants and police detained
him. (See Am. Compl. at ¶ 26.) Accordingly, I deny Sterling’s motion to dismiss the false
imprisonment count.
2.

GGP

GGP argues that the false imprisonment claim against it should be dismissed because Wade
fails to plead that the Mall Security Individual Defendants actually confined Wade or possessed
the requisite intent to do so. (ECF No. 45-1 at 14.) GGP’s first argument rests entirely on
admissions in Wade’s pre-deposition suit, which the Court may not consider to the extent they
contradict the allegations of the complaint. (Id.) In any event, those admissions—that Wade was
not handcuffed, placed under arrest, or told he could not leave—do not foreclose a false
imprisonment claim. See Donroe, 186 Conn. at 267 (formal arrest and lengthy detention not

Wade also argues in his opposition that the Kay Jewelers Individual Defendants “directed
the police to find and stop or detain the Plaintiff,” but this statement is not supported by the cited
portion of the complaint. (ECF No. 46 at 21.)
7

11

required). Wade’s complaint alleges facts showing that the Mall Security Individual Defendants
confined him, specifically:
Jane Doe 3 and John Doe 1 and Police Officer Decker surrounded Plaintiff, with Officer
Decker in front facing Plaintiff and Jane Doe 3 on one side of Plaintiff and John Doe 1 on
the other side of Plaintiff, confining Plaintiff within a space at Buckland Hills Mall, forcing
Plaintiff to stay in the space, from where he could not leave
(Am. Compl. at ¶ 26.) The case GGP cites, Richardson v. Costco Wholesale Corp., also addressed
a motion for summary judgment, which the Court granted because the undisputed evidence showed
that the plaintiffs knew that they could leave their supposed confinement by exiting through the
employee door, notwithstanding the fact it would set off an alarm. See 169 F. Supp. 2d 56, 61 (D.
Conn. 2001). By contrast, GGP does not point to any allegations in the complaint indicating that
Wade’s confinement was voluntary.
GGP’s second argument about its lack of intent is easily addressed. As discussed above,
the complaint alleges that the Mall Security Individual Defendants, along with Officer Decker,
confined Wade. Accordingly, Wade has sufficiently alleged that GGP acted with the “purpose of
imposing a confinement” on Wade. Accordingly, I will not dismiss the false imprisonment claim
against GGP.
C.

Defamation Per Se (Sterling and GGP)

“To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the
defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff
to a third person; (3) the defamatory statement was published to a third person; and (4) the
plaintiff’s reputation suffered injury as a result of the statement.” Gambardella v. Apple Health
Care, Inc., 291 Conn. 620, 627 (2009). For defamation per se, “the [defamation] must be one
which charges a crime which involves moral turpitude or to which an infamous penalty is
attached,” in other words, “that the crime be a chargeable offense which is punishable by
12

imprisonment.” Skakel v. Grace, 5 F. Supp. 3d 199, 206 (D. Conn. 2014) (citation omitted). “In
the case of a statement that is defamatory per se, injury to a plaintiff’s reputation is conclusively
presumed such that a plaintiff need neither plead nor prove it.” Id. at 207. “Whether a statement
is defamatory per se is a question of law for the court.” Id. (citation omitted). “[T]ruth is an
affirmative defense to defamation.” Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228–229
(2004)).
Sterling first argues that Wade has not alleged any harm to his reputation. (ECF No. 43 at
38.) But the complaint alleges that Sterling made the defamatory statements that Wade had “been
robbing [Kay Jewelers store] for three months” and “ATTEMPTED TO ILLEGALLY USE A
CREDIT CARD IN [KAY JEWELERS] STORE.” (ECF No. 36 at ¶ 73.)8 Sterling’s argument
must fail because Wade has alleged defamatory statements accusing him of crimes potentially
punishable by imprisonment, i.e. larceny or illegal use of a credit card, see Conn. Gen. Stat. §§
53a-119, 53a-128c et seq., and thus reputational harm is conclusively presumed.
Sterling next argues that Wade does not allege a defamatory statement was published about
him, reasoning that “[c]onfusing an innocent person with a guilty person does not constitute a
defamatory statement identifying the innocent person.” (ECF No. 43 at 38–39.) While it is true
that Wade has not alleged any facts showing that the Kay Jewelers Individual Defendants lied in
reporting their suspicions, deliberate falsity is not required to prove defamation per se where the
plaintiff is not a public figure or is not seeking punitive damages.9 See Gambardella, 291 Conn.
at 628, 630 (noting that a plaintiff who is a public figure or who is seeking punitive damages must

8

The Court notes that this paragraph selectively edits the statement provided in full
elsewhere in the complaint, but the distinction does not matter for these purposes.
9
Thus, while the lack of allegations suggesting deliberate falsity or reckless disregard
forecloses the plaintiff’s request for punitive damages (see Am. Compl. at 17, ¶ 3), it does not
defeat his claim altogether.
13

show that the defendant published a defamatory statement with at least “reckless disregard for its
truth”). Moreover, Sterling’s brief does not adequately argue that Wade failed to allege the
required mental state, because Sterling squarely raised the issue for the first time only on reply.
(ECF No. 53 at 6.)10 See United States v. Pepin, 514 F.3d 195, 203 n.13 (2d Cir. 2008) (stating
that generally, a court does “not consider issues raised in a reply brief for the first time because if
a [party] raises a new argument in a reply brief [the opposing party] may not have an adequate
opportunity to respond to it.”). Further, none of the cases cited by Sterling stand for the proposition
that a defamatory statement about a wrongly identified plaintiff is inactionable, as opposed to
statements that do not mention the plaintiff at all. See Sorensen v. Fayerweather Yacht Club, Inc.,
No. CV136033440S, 2013 WL 6989418, at *10 (Conn. Super. Ct. Dec. 13, 2013 (dismissing
defamation claims brought by two plaintiffs where “there are no allegations of defamatory
communications made to third parties concerning anyone other than [a third plaintiff]”); Devone
v. Finley, No. 3:13-CV-00377 CSH, 2014 WL 1153773, at *9 (D. Conn. Mar. 20, 2014)
(dismissing defamation claim to the extent the defamatory statements were about plaintiff’s son or
the police department, not the plaintiff); Glover v. Glover, No. CV085025507S, 2011 WL
3211180, at *2 (Conn. Super. Ct. June 22, 2011) (email “to the effect that the author agrees with
his sister, that the property should not be sold” did not identify plaintiff). Both allegedly
defamatory statements, read in full, do identify Wade (albeit not by name) as a suspect in the
robberies, credit card fraud, and possible ID theft at the Kay Jewelers Store. (See Am. Compl. at
¶¶ 20, 35, 73). Accordingly, the defamatory statements were about Wade.

I do not find that Sterling raised this argument in response to Wade’s opposition, and it
clearly differs from the “statements about Wade” argument raised in Sterling’s opening brief.
(ECF No. 43 at 39–40.)
10

14

The defamatory statements alleged against GGP, however, were literally true and thus are
not actionable. (See ECF No. 45-1 at 15.) Wade’s defamation count against GGP, read in light of
the rest of the complaint, is premised on two statements: (1) that Jane Doe 3 told Wade that “a Kay
Jewelers’ employee . . . called with a description of Plaintiff, Wade as the one that’s been robbing
them for three months” (Am. Compl. at ¶¶ 20, 73), and (2) the police were “CALLED BY THE
MALL SECURITY BECAUSE A MALE WAS IDENTIFIED BY AN EMPLOYEE OF KAYS
JEWELERS AS A SUSPECT WHO ATTEMPTED TO ILLEGALLY USE A CREDIT CARD
IN THEIR STORE LAST WEEK AND POSSIBLY ID THEFT.” (Am. Compl. at ¶¶ 51, 73.)
Drawing all inferences in Wade’s favor, both statements are true, as these allegations state that the
Kay Jewelers Individual Defendants identified Wade to the Mall Security Individual Defendants,
who reported to the police the fact of Wade’s identification.11 (Id.) Although truth is ordinarily
an affirmative defense to a defamation action, I find that the facts Wade alleges show that the
statements made by the Mall Security Individual Defendants—allegedly GGP’s agents—were
true. Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (“[W]hen all relevant facts are shown by
the court’s own records, of which the court takes notice, the defense may be upheld on a Rule
12(b)(6) motion without requiring an answer.”). Accordingly, I DISMISS Wade’s defamation per
se claim against GGP, but Wade may proceed on his claim against Sterling.
D.

42 U.S.C. § 1981 “Equal Benefits” Claim (Sterling)

42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the security of persons and

11

Jane Doe 3 made the first statement to Wade, not a third party, and so the defamation
claim against GGP based on that statement fails on this ground too.
15

property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981. To state a § 1981 claim, “plaintiff must allege facts in support of the following
elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the
basis of race by the defendant; and (3) the discrimination concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).”
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). When the
enumerated activity is plaintiff’s deprivation of the “full and equal benefit of all laws and
proceedings,” plaintiff must (1) allege racial animus; (2) “identify a relevant law or proceeding for
the ‘security of persons and property;’” and (3) allege “that defendants have deprived them of ‘the
full and equal benefit’ of this law or proceeding.” Phillip v. Univ. of Rochester, 316 F.3d 291, 298
(2d Cir. 2003) (citing 42 U.S.C. § 1981(a)).
Sterling argues that Wade’s “equal benefits” claim under 42 U.S.C. § 1981 must be
dismissed because Wade does not allege specific facts showing racial animus or allege that Sterling
deprived him of any law for the security of persons. (ECF No. 43 at 24–31.) Wade responds that
he has sufficiently alleged discriminatory intent and that his false imprisonment and defamation
per se tort claims supply the legal basis for his claim. (ECF No. 46 at 6–15.) Because Wade has
alleged that he is member of a racial minority (Am. Comp. at ¶¶ 7, 13), and because I have found
Wade has sufficiently alleged the torts of both false imprisonment and defamation per se against
Sterling, which I assume without deciding supply a sufficient basis to meet the second and third
elements of the Phillips test, I examine only whether Wade has sufficiently pleaded racial animus.
See Bishop v. Best Buy, Co. Inc., No. 08 CIV. 8427 LBS, 2010 WL 4159566, at *5 (S.D.N.Y. Oct.
13, 2010) (denying motion to dismiss 1981 claim where plaintiff “sufficiently allege[d] the torts

16

of assault and false imprisonment”), reconsideration on other grounds, 2011 WL 4011449
(S.D.N.Y. Sept. 8, 2011).
In order to survive a motion to dismiss on a section 1981 claim, a plaintiff must specifically
allege the “circumstances giving rise to a plausible inference of racially discriminatory intent.”
Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). “A plaintiff’s ‘naked allegation’ of racial
discrimination on the part of a defendant is too conclusory to survive a motion to dismiss.” Albert
v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988); see also Fouche v. St. Charles Hosp., 64 F. Supp.
3d 452, 457 (E.D.N.Y. 2014) (“[B]ald assertions of discrimination—unsupported by any
meaningful comments, actions, or examples of similarly-situated persons outside of the Plaintiff’s
protected class being treated differently—are insufficient to survive a motion to dismiss”).
Wade has made only conclusory allegations concerning the discriminatory intent of the
Kay Jewelers Individual Defendants (the only defendants against whom he asserts his § 1981
claim).

Wade’s allegations of the Kay Jewelers Individual Defendants’ racial animus are

essentially that (1) “even though [they] were blacks,” they identified Wade as the suspect because
“they . . . saw him as criminal because of the color of his skin and . . . Plaintiff fit their idea of a
shoplifter,” and (2) they “describ[ed] the shoplifter who attempted to illegally use a credit card and
who has been robbing Kay Jewelers for three months, as [Wade], the description consisting solely
of Plaintiff, himself, a black, African-American, male, constitute racial profiling and intent to
discriminate.” (ECF No. 36 at ¶¶ 41, 57 (alterations omitted).) These allegations are not sufficient
to plead racial animus, because they simply recast Wade’s belief that the Kay Jewelers Individual
Defendants singled him out because of his race. See Morales v. City of New York, 752 F.3d 234,
238 (2d Cir. 2014) (affirming dismissal of § 1981 claim containing only “conclusory allegations
that the defendants violated [plaintiff’s] rights ‘because of their discriminatory intent’ and ‘based

17

on his race and color.’”). Wade alleges no specific facts to support this conclusion, such as
“meaningful comments, actions, or examples of similarly-situated persons outside of the Plaintiff’s
protected class being treated differently.” Fouche, 64 F. Supp. 3d at 457; cf. Bishop, 2010 WL
4159566, at *6 (denying motion to dismiss on equal benefit claim where plaintiff alleged that
Caucasian and non-African American were not subjected to discriminatory treatment and cited
specific, racially-motivated comments by defendants). Nor does he allege anything the Kay
Jewelers Individual Defendants did or said that suggests that they “saw him as a criminal because
of the color of his skin” or that he “fit their idea of a shoplifter.” Moreover, even his conclusory
allegations are expressly contradicted by other allegations that suggest that the Kay Jewelers
Individual Defendants identified Wade because he fit the description of a particular suspect, not
because of his race. (See Am. Compl. ¶¶ 20, 22, 42.)
Wade also points to his allegation that “Kay Jewelers’ top management practice and believe
in discrimination (see, e.g., Jock et al v. Sterling Jewelers Inc., before the American Arbitration
Association), creating a corporate culture where Kay Jewelers store employees routinely and
disproportionately discriminate leading to racial profiling of African-Americans and people of
color for suspicion of criminal activity.” (ECF No. 46 at 9 (citing Am. Compl. at ¶ 52).) This
allegation fares no better, because, in addition to pleading a vague “corporate culture” of racial
discrimination without specific examples, Wade does not supply any facts alleging a causal link
between the alleged “corporate culture” and the specific discriminatory actions taken by the Kay
Jewelers Individual Defendants. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62,
75 (2d Cir. 2000) (citation omitted) (“[I]n order to make out a claim for individual liability under

18

Section 1981, a plaintiff must demonstrate ‘some affirmative link to causally connect the actor
with the discriminatory action.’”).12
Wade cites Martin v. J.C. Penney Corp., 28 F. Supp. 3d 153 (E.D.N.Y. 2014), and Phillip,
316 F.3d 291, in support of his argument that the amended complaint sufficiently pleads racial
animus. (ECF No. 46 at 7–8.) Martin involved a summary judgment motion, and the Court
concluded that the jury could infer that “defendants’ surveillance of plaintiffs and their alleged
failure to conform with store policy” prior to detaining a suspected shoplifter could support a
finding of discriminatory intent. Id. at 157–58. Even if Martin had applicability to pleading
standards, the Kay Jewelers Individual Defendants are not alleged to have surveilled Wade, and
Wade does not allege any policy that the Kay Jewelers Individual Defendants failed to follow.
Moreover, Phillip, though pre-Twombly, actually supports my conclusion that Wade’s § 1981
claim fails. There, the Second Circuit vacated a grant of a motion to dismiss where the plaintiff
had specifically alleged that “the plaintiffs were singled out of a group that apparently also
contained non-minority students.” Phillip, 316 F.3d at 299. As discussed above, Wade makes no
allegations at all that he was singled out for disparate treatment relative to shoppers of other racial
groups.
Accordingly, Wade has not sufficiently pleaded racial animus, and so his “equal benefit”
claim against Sterling is DISMISSED.

12

The cited arbitration also appears to concern discrimination on the basis of gender, not
race. See Jock v. Sterling Jewelers Inc., 284 F. Supp. 3d 566, 568 (S.D.N.Y. 2018) (noting
allegations that “Sterling discriminated against them in pay and promotion on the basis of their
gender”).
19

E.

IIED (Sterling)

To prevail on a claim for intentional infliction of emotional distress under Connecticut law,
a plaintiff must show “(1) that the actor intended to inflict emotional distress or that he knew or
should have known that emotional distress was the 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.” Appleton v. Bd.
of Educ. of Town of Stonington, 254 Conn. 205, 210 (2000). Sterling argues that the Amended
Complaint does not allege the Sterling employees’ intent or allege that Sterling’s employees
committed extreme and outrageous conduct by calling mall security. (ECF No. 43 at 34–36; ECF
No. 53 at 6–7.) Wade argues that the amended complaint adequately pleads intent, and submitting
a false police report constitutes extreme and outrageous conduct. (ECF No. 46 at 25–28.)
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. See Appleton, 254 Conn. at 210.
Only where reasonable minds disagree does it become an issue for the jury. Id. The general rule
is that the conduct must “be[] so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Id. at 211.
Connecticut courts have held that a report to the police typically does not constitute the
type of “extreme and outrageous” conduct necessary to support a claim for intentional infliction
of emotional distress. See Crocco v. Advance Stores Co. Inc., 421 F. Supp. 2d 485, 504 (D. Conn.
2006) (collecting cases); see Pantaleo v. Ravski, No. CV 920326931, 1997 WL 94103, at *5 (Sup.
Ct. Feb. 14, 1997) (“[C]ourts in Connecticut and elsewhere have concluded that calling the police
to report suspected wrongdoing normally does not constitute ‘extreme and outrageous’ conduct

20

sufficient to impose liability for intentional infliction of emotional distress.”). There is of course
no bright line rule, and “the court must look to the specific facts and circumstances of each case in
making its decisions.” Menon v. Frinton, 170 F. Supp. 2d 190, 198 (D. Conn. 2001). Here, all the
complaint alleges is that the Kay Jewelers Individual Defendants made a report to mall security
that they believed Wade was the individual who they suspected committed various crimes in their
store and directed the police to Wade. (See, e.g., Am. Compl. at ¶¶ 20, 27, 35.) As discussed
above, there are no facts pled to suggest that the Kay Jewelers Individual Defendants deliberately
made false statements to anyone to induce Wade’s detention or arrest. Even if their report was
incorrect and negligently made, that conduct was not so extreme or outrageous to offend societal
norms. Stores must regularly report suspected shoplifters or other crimes, and no arrest or other
action against Wade allegedly resulted from the report.

See Bozelko v. Milici, No.

NNHCV115033844S, 2013 WL 1277295, at *14 (Conn. Super. Ct. Mar. 11, 2013) (collecting
cases for the proposition that “[w]hether such allegations are sufficiently extreme and outrageous
to survive a motion to strike depends, at least in part, on the seriousness of the offense reported to
the police”); Bremmer-McLain v. City of New London, No. CV115014142S, 2012 WL 2477921,
at *10 (Conn. Super. Ct. June 1, 2012) (granting motion to strike where plaintiffs did not allege
facts showing that the “report to the police was false and misleading” or “that either plaintiff was
arrested or that any other action was taken as a result of the false police report.”), aff’d, 143 Conn.
App. 904 (2013).
The two cases Wade cites in his complaint and opposition are not to the contrary. (Am.
Compl. at 15 n.3; ECF No. 46 at 27–28.) In Crocco, the Court found that reasonable minds could
differ on whether the undisputed evidence that defendants had “knowingly report[ed] false
information to [the police] so as to give the impression that [plaintiff] was stalking or threatening

21

them would constitute extreme and outrageous conduct” where plaintiff was ultimately arrested.
Crocco, 421 F. Supp. 2d at 505 (emphasis added). In Jezierny, the defendant made false
harassment report to the police “to achieve a vindictive goal,” i.e. to get plaintiff arrested and
criminally prosecuted for a dispute over a chicken coop. 2005 WL 2496525, at *3 (Conn. Super.
Ct. Aug. 24, 2005). Here, Wade has not alleged that the Kay Jewelers knowingly made a false
police report, or that any arrest or prosecution occurred as a result of that report. Because Wade
does not allege outrageous conduct, I grant the motion to dismiss his IIED claim.
F.

NIED (Sterling and GGP)

To show negligent infliction of emotion distress under Connecticut law, plaintiff must
prove “(1) the defendant’s conduct created an unreasonable risk of causing the 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). “The foreseeability
requirement in a negligent infliction of emotional distress claim is more specific than the standard
negligence requirement that an actor should have foreseen that his tortious conduct was likely to
cause harm.” Stancuna v. Schaffer, 122 Conn. App. 484, 490 (2010). “In order to state a claim
for negligent infliction of emotional distress, the plaintiff must plead that the actor should have
foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress
likely to lead to illness or bodily harm.” Id.
Both Sterling and GGP argue that Wade does not allege that they should have foreseen that
their conduct was likely to cause emotional distress severe enough that it might result in illness or

22

bodily harm. (ECF No. 43 at 43; ECF No. 45-1 at 17–18.)13 Wade responds that the complaint
alleges that his emotional distress was foreseeable because both the Kay Jewelers Individual
Defendants and Mall Security Individual Defendants had to know that the police would come when
they reported his supposed crimes (ECF No. 46 at 29; ECF No. 50 at 16; Am. Compl. at ¶¶ 36, 38,
40; see also id. at ¶¶ 27, 39, 40, 44, 46–49.)
Although the Court acknowledges that Wade’s allegations are thin, they sufficiently allege
that it was foreseeable that the defendants’ conduct would cause Wade emotional distress likely to
lead to illness or bodily harm. Wade has alleged (1) that both the Kay Jewelers Individual
Defendants and the Mall Security Individual Defendants knew or should have known that Wade’s
detention was likely to result from their conduct (Am. Compl. at ¶¶ 38–40); (2) that at the time of
his detention, “[Wade] was shaking, shaking the whole entire time. Anxiety was [sic] take over.
[Wade] was so shaken . . . .” (id. at ¶ 49); (3) that Wade has “been scarred” and “look[s] [back at
the incident] at every day,” (id. at ¶ 48); and (4) that Wade suffers as a result of the incident, among
other things, “embarrassment, anxiety, stress, flashbacks, anger and emotional distress” requiring
medical attention. (Id. at ¶¶ 88, 90.) In combination with Wade’s allegation that the defendants’
conduct “was reasonably foreseeable to cause emotional distress and in fact caused emotional
distress to [Wade],” (id. at ¶ 86), I conclude that Wade has sufficiently pleaded that defendants

13

Sterling makes additional arguments that Wade does not allege the Kay Jeweler
Individual Defendants’ conduct created an “unreasonable risk” of harm or that such conduct
caused Wade’s injuries, but such arguments appear to be premised on Wade’s deposition
admissions. (See ECF No. 43 at 43.) GGP similarly argues that Wade’s reaction was
“unreasonable” in light of the Mall Security Individual Defendants’ good faith conduct, but in light
of Wade’s specific pleadings about the reasonable foreseeability of severe emotional distress
discussed below, it would be premature to decide this argument on a motion to dismiss. (ECF No.
45-1 at 22.)
23

should have foreseen that their conduct was likely to cause emotional distress severe enough that
it might result in illness or bodily harm.
I therefore reject Sterling and GGP’s arguments to dismiss the count for negligent
infliction of emotional distress against them.
G.

Negligent Supervision (Sterling and GGP)

To state a negligent supervision claim under Connecticut law, “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.” Brooks v. Sweeney, 299 Conn. 196, 209 n.12 (2010)
(citing Roberts v. Circuit–Wise, Inc., 142 F. Supp. 2d 211, 214 (D. Conn. 2001)). “Duty is a legal
conclusion about relationships between individuals, made after the fact, and [is] imperative to a
negligence cause of action.” Doe v. Saint Francis Hosp. & Med. Center, 309 Conn. 146, 174
(2013) (citation omitted). The “general rule” is that one has “no legal obligation to protect
another,” but an exception “may arise when the defendant’s own conduct creates or increases the
foreseeable risk that such other person will be harmed by the conduct of a third party.” Id.
Sterling argues that the amended complaint does not allege any facts to show that Sterling
knew or reasonably should have known of any of its employees’ propensity to engage in tortious
conduct. (ECF No. 43 at 39–40; see also ECF No. 54 at 8 (GGP raises same argument on reply).)
Wade responds that the Amended Complaint alleges that Sterling Jewelers “created a corporate
culture where Kay Jewelers store employees routinely and disproportionately discriminate leading
to racial profiling of African-Americans and people of color for suspicion of criminal activity.”
(ECF No. 46 at 32 (citing Am. Compl. at ¶ 51).) Accordingly, Wade argues that “Sterling Jewelers

24

knew or reasonably should have known of the employee’s propensity to engage in that type of
tortious conduct.” (Id.)14
Both parties are mistaken that Wade must plead that the defendants knew or should have
known of an employee’s “propensity” to engage in that type of tortious conduct to establish that
such conduct was foreseeable, and thus that the defendants had a duty to prevent it. In Saint
Francis Hosp. & Med. Ctr., the Connecticut Supreme Court held that the trial court did not need
to give a jury instruction on propensity in a negligent supervision claim against an employer
because “[t]he criminal misconduct of a third party may be foreseeable under the facts of a
particular case . . . without a showing that the defendant had such actual or constructive knowledge
of the third party’s criminal propensity.” 309 Conn. at 172. In other words, “proof of actual or
constructive knowledge of propensity is but one way to establish that the criminal misconduct of
the third party was foreseeable.” Id. at 173. Accordingly, Wade did not need to plead that the
defendants knew or should have known its employees had a “propensity” for the type of tortious
conduct alleged to establish defendants’ duty to prevent such conduct.
For its part, GGP argues that the Mall Security Individual Defendants are not GGP
employees, and both Sterling and GGP also assert that Wade has not adequately pleaded that their
employees committed any tortious conduct. (ECF No. 43 at 45; ECF No. 45 at 22–23.) Because
I have already concluded that Wade has pleaded that the Mall Security Individual Defendants were

14

Sterling also argues that the amended complaint does not allege any facts to show that
Sterling inadequately supervised its employees, but does not press this argument on reply (ECF
No. 53 at 9–10). In any event, notwithstanding Wade’s conclusory “corporate culture” allegation,
the amended complaint does plausibly allege that defendants failed to adequately train or supervise
its employees on how to prevent “targeting African-American or people of color . . . for suspected
criminal activity” or falsely accusing, reporting to law enforcement, or detaining customers for
shoplifting, credit card fraud, or other criminal activity. (See Am. Compl. at ¶¶ 53, 92, 93.)
25

the “security/loss prevention personnel and/or agents” of GGP (Am. Compl. ¶ 12), and that Wade
states false imprisonment and NIED claims against both defendants, I reject these arguments.
H.

PSC’s Third-Party Motion to Dismiss

GGP impleaded PSC as the alleged employer of the Mall Security Individual Defendants
and asserted claims for negligence, common law indemnification, and contractual indemnification.
(ECF No. 57.) PSC moves to dismiss the negligence and common law indemnification counts for
failure to state a claim. (ECF No. 70.)
First, PSC argues that the negligence count does not state a claim because that count asserts
that PSC is liable to Wade, not GGP. (ECF No. 70-1 at 4; see also ECF No. 57 at ¶¶ 10–11
(alleging that “if the plaintiff [Wade]” was harmed, “it was due to the negligence . . . of PSC” and
any losses were “directly and caused proximately caused” by PSC).) I agree. While Rule 14
authorizes third-party complaints where the “third party’s liability must be dependent upon the
outcome of the main claim or the third party must be ‘secondarily liable to the defending party,’”
such claims must still assert that the third-party defendant is liable to the third-party plaintiff. See
Hopkins v. Kawasaki Rail Car, Inc., No. 3: 17-CV-839 (CSH), 2017 WL 3715247, at *10 (D.
Conn. Aug. 28, 2017) (asserting claims for indemnification, contribution, and apportionment to
the third-party plaintiff); Am. Nat. Fire Ins. Co. v. A. Secondino & Sons, No. CIV.A. 3:92629(JAC), 1995 WL 253085, at *3 (D. Conn. Apr. 28, 1995) (“[A] third-party plaintiff seeking to
implead a third party must allege that a third-party defendant is liable to the third-party plaintiff.”).
Because GGP asserts a direct negligence claim against PSC, but does not actually assert that PSC
is liable to GGP, GGP fails to state a claim. See, e.g., Toberman v. Copas, 800 F. Supp. 1239,
1242 (M.D. Pa. 1992) (“A defendant sued for negligence, for example, cannot implead a third
party whose negligence was totally responsible for plaintiff's injury. When a third party's conduct

26

furnishes a complete defense against the defendant's liability, the defendant may raise that conduct
defensively in his answer but may not use it as a foundation for impleader.” (internal quotation
marks and citation omitted).). GGP’s negligence claim is therefore dismissed.
Second, PSC argues that GGP’s common law indemnification claim should be dismissed
because the third party complaint does not contain any allegation about exclusive control by PSC.
(ECf No. 70-1 at 3.) To assert a common law indemnification claim under Connecticut law, a
defendant/third-party plaintiff must allege that: “(1) the party against whom the indemnification is
sought was negligent; (2) that party’s active negligence, rather than the defendant's own passive
negligence, was the direct, immediate cause of the accident and the resulting injuries and death;
(3) the other party was in control of the situation to the exclusion of the defendant seeking
reimbursement; and (4) the defendant did not know of the other party’s negligence, had no reason
to anticipate it, and reasonably could rely on the other party not to be negligent.” Smith v. City of
New Haven, 258 Conn. 56, 66 (2001) (citing Kaplan v. Merberg Wrecking Corp., 152 Conn. 405,
416 (1965). “While the question of exclusive control is ordinarily a question of fact to be
determined by a jury,” a claim may be dismissed as a matter of law where the allegations, evaluated
against the backdrop of the plaintiff’s complaint, “could not result in a jury finding that the thirdparty defendants were in exclusive control over the situation.” Pennsylvania Mfrs. Indem. Co. v.
Cintas Fire Prot. & Fire Sys. of Springfield, CT, No. 3:11-CV-650 VLB, 2012 WL 3779140, at
*5 (D. Conn. Aug. 30, 2012) (citations omitted).
This is not such a case. The Third-Party Complaint alleges that each count of Wade’s
complaint “alleges acts or omissions of security officers” who were “employed by, trained by, and
worked at the direction of PSC.” (ECF No. 57 at ¶¶ 16, 17.) If proven, the allegations in GGP’s
third-party complaint could result in a jury finding that PSC, not GGP, was in exclusive control of

27

the Mall Security Individual Defendants who committed the tortious conduct alleged in the
Amended Complaint. I further agree with GGP that this case is distinguishable from Pennsylvania
Mfrs. Indem. Co. v. Cintas Fire Prot. & Fire Sys. of Springfield. In that case, the court dismissed
an indemnification claim against the installer of a deficient sprinkler system where parties did not
dispute that the installer had no contact with the sprinkler system for almost a decade, and the
plaintiff’s negligence claims were premised on acts by the third-party plaintiff that would be
inconsistent with the installer’s exclusive control. Pennsylvania Mfrs. Indem. Co., No. 3:11-CV650 VLB, 2012 WL 3779140, at *6 (D. Conn. Aug. 30, 2012). Here, the parties actively dispute
PSC’s role, and Wade’s claims are not premised on any specific conduct by GGP that is
inconsistent with PSC’s exclusive control—in other words, Wade’s proving his allegations that
the Mall Security Individual Defendants falsely imprisoned him would not necessarily preclude a
finding that PSC had exclusive control of them. (See Am. Compl. at ¶ 12 (alleging only that the
Mall Security Individual Defendants were “security/loss prevention personnel and/or agents of . .
. GGP”). I therefore deny PSC’s motion to dismiss as to this count.

28

IV.

CONCLUSION
For the foregoing reasons, Sterling’s (ECF No. 42) and GGP’s (ECF No. 45) motions to

dismiss the amended complaint (ECF No. 36) are GRANTED in part and DENIED in part. The
claims for violation of 42 U.S.C. § 1981 (Count One) and intentional infliction of emotional
distress (Count Four) are DISMISSED in full. The defamation per se claim against GGP (Count
Three) is DISMISSED.

In addition, PSC’s motion to dismiss the third-party complaint is

GRANTED in part and DENIED in part. (ECF No. 70.) GGP’s negligence claim (Count One)
against PSC is DISMISSED. Finally, the Clerk is directed to terminate Kay Jewelers, Inc. as a
defendant.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
September 17, 2018

29