Wright-Upshaw v. Nelson et al

Filing 42

OPINION AND ORDER: Defendants' motions to dismiss are granted. Plaintiff lacks standing to pursue claims for A New New Beginning's expenses and lost income. To the extent that plaintiff's complaint can be construed to raise i ndividual claims of emotional distress or racial discrimination, plaintiff's own version of events establishes that she is not entitled to relief on those grounds. The Court therefore finds it unnecessary to address defendants' remaining grounds for dismissal, including lack of personal jurisdiction, improper service, failure to allege a basis for individual liability against various defendants, or failure to allege a contractual, tort, or statutory duty owed to plaintiff. The comp laint is dismissed in its entirety with prejudice, and the Clerk of Court is directed to close the case. SO ORDERED by Judge Allyne R. Ross, on 2/19/2014. C/mailed by Chambers to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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){

f"ROOKLYN OFFICE

FAYE WRIGHT-UPSHAW,
Plaintiff,
-against13-CV-3367 (ARR) (LB)

RONALD L. NELSON , Avis Budget Rental Car Corp.
aka Avis Budget Group, Inc.; JOSEPH FINEO, Avis
Budget Car Rental, LLC, aka Avis Budget Group, Inc.;
CRYSTAL NIXON, JOSEPHINE C. ADAMS, Avis
Budget Car Rental, LLC aka A vis Budget Group, Inc.;
LISA LARION, Avis Budget Car Rental, LLC aka Avis
Budget Group, Inc.; AVIS BUDGET CAR RENTAL,
LLC AKA AVIS BUDGET GROUP, INC.; MARGARET
WARNER, et aI., PROGRESSIVE INSURANCE CO.,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION AND ORDER

Defendants.

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){

ROSS, United States District Judge:
Plaintiff Faye Wright-Upshaw, proceeding pro se, brings this diversity action seeking
compensation for losses incurred as a result of damage to her non-profit organization's vehicle.
Now before the court are motions to dismiss filed by two groups of defendants. For the reasons
set forth below, I find that plaintiffs claims for losses incurred by the non-profit organization
must be dismissed because plaintiff lacks standing to bring those claims. To the extent that the
complaint can also be construed to raise individual claims, I find that plaintiff has failed to state a
claim upon which relief can be granted. Furthermore, the facts that plaintiff has alleged foreclose
the possibility that the complaint could be amended to state a claim for relief. Accordingly, both
motions are granted and the complaint is dismissed in its entirety.

1

BACKGROUND
Plaintiff, a citizen of New York, invokes the Court's diversity jurisdiction under 28

V.S.C § l332. CompI., Dkt. #1, at ECF 2-3. Plaintiff brings claims against Avis Budget Car
Rental LLC ("Avis"), a company incorporated under the laws of Delaware with headquarters in
New Jerseyl; Avis C.E.O. Ronald L. Nelson, listed at corporate headquarters in New Jersey;
Avis employees Joseph Fineo, Josephine Adams, Crystal Nixon, and Lisa Larion, all listed in the
complaint as residing and working in Virginia; and Margaret Warner, et aI., Progressive
Insurance Company ("Progressive,,).2
The following facts are drawn from the complaint and are taken as true for the purpose of
these motions. Plaintiff runs A New New Beginning, a non-profit organization that sells items at
street fairs, festivals, and other events. 3 Id. at ECF 3. On July 27, 2011, plaintiff and a worker for
the organization were en route to New York in the organization's vehicle, a 2002 14-foot GMC
Series 4500 Box Work Truck. Id. In the parking lot of the Econo Lodge Hotel in Fredericksburg,
Virginia, another car backed into A New New Beginning's parked vehicle. Id. The car was
operated by a driver from the Netherlands who had rented the car from Avis. Id. Plaintiff
1 The Court takes judicial notice of Avis's state of incorporation and headquarters based on Securities and Exchange
Commission filings. See EDGAR Company Filings, https://www.sec.gov/edgar/searchedgar/companysearch.htmI.
The complaint refers to Avis as "Avis Budget Rental Car Corporation," "Avis Budget Car Rental," or "Avis Budget
Group, Inc," but the company's registered name is "Avis Budget Car Rental LLC." Avis Mem. of Law in Supp. of
Mot. to Dismiss, Dkt. #37, Ex. 9, at 1 n.1.
2 It is unclear from the complaint whether plaintiff intends to sue Progressive as a corporate entity in addition to the
individual Margaret Warner. A motion to dismiss has been filed on behalf of "Margaret Warner, et aI., Progressive
Insurance Co." Dkt. #33. The accompanying memorandum of law states that the U.S. Marshals Service mailed the
summons and complaint to "Progressive Insurance Co. c/o Margaret Warner" in Wilmington, North Carolina.
Progressive Mem. of Law in Supp. of Mot. to Dismiss, Dkt. #33, at ECF 26. The memorandum asserts that service
was improper because Margaret Warner is no longer a Progressive employee and the entity "Progressive Insurance
Co." does not exist. Id. at ECF 26-27. The underwriting company Progressive Southeastern is located in North
Carolina, and Progressive's corporate headquarters are located in Ohio. Id. at ECF 27. Based on these assertions, the
Court is satisfied that complete diversity exists between plaintiff and the Progressive defendant(s). In light of the
Court's disposition of the motions to dismiss, it is unnecessary to address the allegation of improper service.
3 The Court takes judicial notice of the fact that A New New Beginning, Inc., is registered with the Internal Revenue
Service (IRS) as a 50 1(c)(3) organization with the Employer Identification Number 11-3217638. The IRS record
lists plaintiff as the principal officer and lists themailingaddressas9602GlenwoodRoad.Suite 150, Brooklyn, NY
11236. The IRS record is based on the organization's most recent filing in 2010. See IRS Exempt Organizations
Select Check, http://apps.irs.gov/app/eos/.

2

reported the accident to Progressive, the insurer of A New New Beginning's vehicle. Id. A
Progressive representative told plaintiff to pursue a claim with Avis and that Progressive would
pay if Avis "failed to compensate." Id.
Plaintiff filed a claim with Avis and asserts numerous complaints regarding the way Avis
handled the claim. Plaintiff alleges that Avis caused an "inordinate and deliberate delay" in
processing the claim and did not appoint an insurance adjustor to assess the damage to the
vehicle until September 8, 2011. Id. at ECF 8. Between July 27 and September 8, plaintiff made
"repeated requests" for A vis to arrange a rental vehicle as a replacement, but Avis denied the
requests because the claim had not yet been approved. Id. at ECF 8. In September 2011 , Avis
reimbursed plaintiff for the costs of repairs to the vehicle and for a two-day rental truck as a
replacement. Id. at ECF 4. Avis denied plaintiffs request for reimbursement for other costs
incurred during this period, including the rental of storage space for the goods and equipment
that are normally stored in the vehicle. Id. at ECF 5. Avis also denied plaintiffs request for
reimbursement for the organization's lost income during the "down time." Id. Plaintiff alleges
that Avis engaged in "bad faith business practices" including withholding information, making
misleading statements, ignoring plaintiff s requests, and questioning "my right to have our truck
repaired at the shop of our choice." Id. at ECF 4. Plaintiff also asserts that Progressive did not
intervene to resolve the dispute with Avis, "began to distance themselves from the claim," and
told plaintiff that the organization only had "liability coverage." Id. at ECF 3-4.
Plaintiff alleges that, as a result of defendants' actions, A New New Beginning has
experienced "a severe decline," resulting in "lost wages and business income" and
"embarrassment caused to our Corporation's business character and reputation." Id. at ECF 9.
Plaintiff also asserts that she has "suffered physical and emotional pain due to the deliberate

3

delays and the attempted conspiracy to cover up the incident ... along with the infliction of
emotional distress." Id. Plaintiff seeks $225,000 from the defendants "for continued losses, pain
and suffering, plus costs." Id. 4
Two sets of defendants have filed motions to dismiss plaintiff's complaint pursuant to
various provisions of Federal Rule of Civil Procedure 12(b). The first motion is filed on behalf of
Avis, Joseph Fineo, Josephine Adams, Lisa Larion, and Ronald Nelson (collectively, the "Avis
Defendants,,).5 Dkt. #37. The second motion is filed on behalf of Margaret Warner, et aI.,
Progressive Insurance Co. (collectively, the "Progressive Defendants"). Dkt. #33. Plaintiffhas
filed an opposition to the motions to dismiss along with numerous exhibits. Dkt. #34. 6

DISCUSSION
I.

Plaintiff's Standing To Bring Claims on Behalf of A New New Beginning
Both sets of defendants argue that plaintiff lacks standing to assert claims for losses

incurred by A New New Beginning. Avis Defs.' Mem. of Law in Supp. of Mot. to Dismiss, Dkt.
#37, Ex. 9, at 9-11; Progressive Defs.' Mem. of Law in Supp. of Mot. to Dismiss, Dkt. #33, at
ECF 3-4.

In plaintiff's opposition to defendants' motions to dismiss, plaintiff appears to change the amount she is seeking.
She demands $75,000 from Progressive and $100,000 from Avis, for a total of $175,000 plus costs. Dkt. #34, at
ECF8.
S The Avis Defendants' motion to dismiss is not submitted on behalf of Crystal Nixon, another Avis employee
named in the complaint. Counsel for the Avis Defendants does not represent Nixon. Dkt. # 17. It is unclear whether
Nixon has been served with process, as there is no return of service indicated on the docket sheet. Nixon has not
filed an answer or any other submissions in this case.
6 The Court will consider the exhibits submitted by plaintiff and defendants in deciding the instant motions. Since
the standing inquiry considers whether the Court has jurisdiction over the suit, the Court can "refer to evidence
outside the pleadings." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In order to determine whether
the complaint survives a motion to dismiss under Rule l2(b)(6), a district court may consider "the pleading itself,
documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are
either in the plaintiff's possession or that the plaintiff knew of when bringing suit, and matters of which judicial
notice may be taken." Arrocha v. City Univ. of N.Y., 878 F. Supp. 2d 364,368 (E.D.N.Y. 2012). The documents
submitted as exhibits are all ones that plaintiff relied on in bringing suit and had in her possession.
4

4

"Standing is a federal jurisdictional question 'detennining the power of the court to
entertain the suit.'" Carver v. City of N.Y., 621 F.3d 221,225 (2d Cir. 2010) (quoting Warth v.
Seldin, 422 U.S. 490, 498 (1975». A plaintiff who invokes federal jurisdiction based on diversity
of citizenship must establish standing under both Article III of the Constitution and applicable
'state law. Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168,
173 (2d Cir. 2005). Where, as here, standing is challenged at the pleadings stage, the court must
accept all material facts alleged in the complaint as true and draw all reasonable inferences in
favor of the plaintiff. Sharkey v. Ouarantillo, 541 F.3d 75,83 (2d Cir. 2008).
To satisfy the requirements of Article III standing, a party must establish three elements:
(1) an "injury in fact," (2) "a causal connection between the injury and the conduct complained
of," and (3) a likelihood that a favorable decision will redress the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). For the first element, the "injury in fact" must be "concrete
and particularized," meaning that "the injury must affect the plaintiff in a personal and individual
way." Lujan, 504 U.S. at 560 & n.l. "Demonstrating that the defendant's allegedly unlawful
conduct caused injury to the plaintiff herself is thus generally an essential component of Article

III standing." Mahon v. Ticor Tile Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012); accord Raines v.
Byrd, 521 U.S. 811, 819 (1997) ("We have consistently stressed that a plaintiffs complaint must
establish that he has a 'personal stake' in the alleged dispute, and that the alleged injury suffered
is particularized as to him. "). Even if a plaintiff meets all of these constitutional requirements, a
court can still deny standing based on prudential considerations. "Foremost among the prudential
requirements is the rule that a party must 'assert his own legal rights and interests, and cannot
rest his claim to relief on the legal rights or interests of third parties. '" Wight v. BankAmerica
Corp., 219 F.3d 79,86 (2d Cir. 2000) (quoting Warth, 422 U.S. at 499). Accordingly, a plaintiff

5

asserting a claim on behalf of a third party must satisfy all of the constitutional standing
requirements and must additionally demonstrate "a close relation to the injured third party and a
hindrance to that party's ability to protect its own interests." Mid-Hudson, 418 F.3d at 174.
Here, the majority of plaintiff's claims do not satisfy the first constitutional standing
requirement because plaintiff fails to assert an individual and personal "injury in fact." The
complaint raises various tort and contract claims against the defendants. Plaintiff appears to
argue that Avis is vicariously liable for the negligence of the rental car driver, directly liable for
renting to an international driver without requiring certain documentation, and directly liable for
the expenses and lost income incurred during the delay in processing the claim. PI. 's Opp'n to
Mots. to Dismiss ("Opp'n"), Dkt. #34, at ECF 5. Plaintiff also asserts a breach of contract claim
against Progressive. Id. at ECF 7. Yet there is no dispute that the vehicle at issue belonged to A
New New Beginning, not to plaintiff personally, and that the organization was the holder of the
vehicle's Progressive insurance policy. See Compi. at ECF 3; Progressive Southeastern
Insurance Policy, Dkt. #33, Ex. A. The asserted damages consist primarily of "unexpected
expenses" incurred by the organization, "a great loss of income" for the organization, and harm
to the organization's reputation. Compi. at ECF 5, 9. Therefore, in essence, this litigation
concerns damage to A New New Beginning's vehicle that resulted in additional expenses and
lost business for the organization. Plaintiff lacks standing as an individual to raise these claims
for injury to the organization. See Caravella v. City ofN.Y., 79 F. App'x 452,453 (2d Cir. 2003)
(affirming dismissal of breach of contract claim for lack of standing where corporation, not
plaintiff, was party to the contract); Dore v. Wormley, 690 F. Supp. 2d 176, 186 (S.D.N.Y. 2010)
(finding that individual plaintiff lacks standing to bring claims of misrepresentation and misuse
of funds where alleged injuries are to congregation); Blakely v. Cardozo, No. 07 Civ. 3951 DLC,

6

2007 WL 2702241, at *3 (S.D.N.Y. Sept. 17,2007) (finding that plaintifflacks standing to
challenge foreclosure because corporation, not plaintiff, is the property's legal owner).
Plaintiff argues that she has standing because she handled the claims with Avis and
Progressive. She states that Avis recognized her as the "[p]arty of record" and issued payments
to her for the vehicle repair and rental truck. Opp'n at ECF 2. She also asserts that Progressive
evaluated her driving record and creditworthiness as a basis for issuing the insurance policy on
the organization's vehicle and that she made the premium payments. Id. at ECF 1-2. But these
dealings with Avis and Progressive are insufficient to grant plaintiff individual standing, since a
non-profit organization must necessarily act through its officers. Plaintiff s exhibits make clear
that plaintiff interacted with defendants as a representative of ANew New Beginning, not in her
personal capacity. Plaintiff submitted the claim to Avis on behalf of A New New Beginning,
describing herself as "an Officer in the Corporation, with signatory authority." Opp 'n, Ex. 1, at
ECF 21. In her ongoing correspondence with Avis, plaintiff repeatedly characterized the claim as
one for reimbursement of the organization's losses and expressed the need for the organization to
be "made whole." Id., Ex. 1, at ECF 29, 45,50. Moreover, plaintiff submitted documentation for
expenses incurred by the organization, including storage space rented in the organization's name
and petty cash disbursements from the organization's funds. Id., Ex. 2, at ECF 37, 40, 42, 45, 49,
53,56,58,64-65. The fact that plaintiff pursued claims with Avis and Progressive as a
representative of A New New Beginning does not change the conclusion that these claims belong
to the organization, not to plaintiff individually.
To the extent that plaintiff alleges personal financial losses, she still lacks standing
because those claims derive from the losses to the organization. Plaintiff states that the incident
has "taken its toll ... financially on my behalf' and asserts a claim for "lost wages." CompI. at

7

ECF 5, 9. In her opposition, plaintiff elaborates on this claim, stating that she suffered "serious,
extensive and overwhelming financial loss," and that she was "precluded from engaging in her
regular work activities and pursuits [and] her regular religious activities and social pursuits,
because of the loss of ability to earn money and of actual earnings." Opp'n at ECF 6. Since
plaintiff runs A New New Beginning, it is entirely plausible that her personal financial outlook
would be bound up with the financial success of the organization. Yet plaintiff has not alleged
any personal financial losses other than those stemming from the organization's losses. "A
plaintiff does not have individual standing where he or she alleges injuries that are indirectly
caused by the harm to the corporation." Royal Crown Day Care LLC v. Dep't of Health &
Mental Hygiene of City ofN.Y., No 10-CV-5442 (MKB), 2012 WL 2992124, at *5 (E.D.N.Y.
2012) (citing Jones v. Niagara Frontier Transp. Auth., 836 F.2d 731, 736 (2d Cir. 1987)); see
also Robinson v. Davis, No. 1:07-cv-00265-jgm, 2010 WL 4062863, at *2 (D. Vt. Oct. 15,2010)
(claim by non-profit organization's director for reduced personal earnings "is not cognizable as it
is derivative of [the organization's] damage claims and [plaintiffs] status as an employee");
Ludwig v. City of Jamestown. N.Y., No. 05-CV-353(A), 2009 WL 483164, at *4 (W.D.N.Y.
Feb. 25, 2009) (owner lacks standing to sue in individual capacity because damages "consist
solely of 'financial damage' that she suffered 'co-extensively' with losses that the corporation
allegedly suffered").
Therefore, the Court finds that the claims for A New New Beginning's expenses and lost
income must be dismissed because plaintiff lacks individual standing. These claims belong to the
organization, and the organization is the entity that would have a right to recover if the claims
were successful. 7 See Bingham v. Zolt, 66 F.3d 553,561-62 (2d Cir. 1995) ("When the claim is

7 Plaintiff appears to suggest in her opposition that the court should grant her standing because hann has occurred

and the organization's officers "might not be able to ask a Court for relief." Opp'n at ECF 8. Yet there is no reason

8

that corporate property has been removed from the corporation, it is the corporation-having an
independent legal identity-that must seek, on its own or derivatively, to redress its injury.");
V.E.C. Corp. of Del. v. Hilliard, No. 10 CV 2542(VB), 2011 WL 7101236, at *5 (S.D.N.Y. Dec.
13,2011) (finding sole shareholder lacks standing because complaint alleges injuries to the
corporation under its lease agreements and the corporation has the right to recover). Nor can
plaintiff assert these claims on behalf of the organization. Under 28 U.S.C. § 1654, litigants have
a statutory right to bring claims in federal court on their own behalf, but a pro se litigant cannot
represent the rights and interests ofa corporation. See Lattanzio v. COMTA, 481 F.3d 137, 139
(2d Cir. 2007) ("[A] layperson may not represent a separate legal entity such as a corporation.");
Brojer v. Kuriakose, No. ll-CV-3156 (JS)(WDW), 2011 WL 3043778, at *3 (E.D.N.Y. July 20,
2011) (stating that § 1654 "has been consistently construed to permit parties to only represent
their own rights and interests and not the rights and interest of others or of organizations. ").
The Court is mindful that plaintiff is proceeding pro se and must consider whether she
should be given an opportunity to replead her claims. "A court generally should not dismiss a
pro se complaint 'without granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.'" Vansertima v. Dep't of
Corr., No. 10 CV 3214(RJD)(RER), 2012 WL 4503412, at *7 (E.D.N.Y. Sept. 28, 2012)
(quoting Thompson v. Carter, 284 F.3d 411,416 (2d Cir. 2002)). However, leave to amend need
not be given where it is clear that amendment would be futile. E.g., Hill v. Curcione, 657 F.3d
116, 123 (2d Cir. 2011); Xiang Li v. Morrisville State Coll., 434 F. App'x 34,35 (2d Cir. 2011).

to think that A New New Beginning would be unable to pursue its own claims in court. Under New York law, a notfor-profit corporation has the right "[t]o sue and be sued in all courts ... as natural persons." N.Y. Not-for-Profit
Corp. Law § 202(a)(2). Plaintiff also asserts that the Honorable Lois Bloom, United States Magistrate Judge, has
already detennined that plaintiff is bringing this suit individually, not on behalf of A New New Beginning. Id. This
is incorrect. Magistrate Judge Bloom issued an order cautioning plaintiff that she cannot raise claims on behalf of A
New New Beginning unless she retains counsel. Dkt. #16. Magistrate Judge Bloom made no decision regarding
whether plaintiff has standing as an individual.

9

Amendment would be futile if, even when better pleaded, the claim would not survive a motion
to dismiss. Lucente v. IBM Corp., 310 F.3d 243,258 (2d Cir. 2002); see also Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Here, it is clear that amendment would be futile,
since plaintiff lacks individual standing to pursue the claims for the organization's expenses and
lost income and cannot represent the organization as a pro se litigant. Accordingly, the claims are
dismissed with prejudice. 8

II.

Plaintiff's Individual Claims
While plaintiff lacks standing to bring claims on behalf of A New New Beginning, the

complaint can also be construed to assert individual claims. Defendants have moved to dismiss
the complaint under Rule 12(b)(6). Therefore, the Court will consider whether plaintiffs
assertions of individual harm state a claim for relief.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough
facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The court must accept all factual allegations in the complaint as true and draw
all reasonable inferences in favor of the plaintiff. Id. at 555-56; Freedom Holdings, Inc. v.
Spitzer, 363 F.3d 149, 151 (2d Cir. 2004). Courts are "not bound to accept as true a legal
conclusion couched as a factual allegation," and "[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). It is well settled that pro se complaints are held to less stringent standards than
pleadings drafted by attorneys, and the court is required to construe a plaintiffs pro se complaint
In the opposition to the motions to dismiss, plaintiff seeks leave to amend the complaint to add an additional
defendant, Gregory Batts, an employee of Progressive Southeastern. Opp'n at ECF 4. For the reasons stated in this
opinion, plaintiff's complaint is dismissed in its entirety for lack of standing and failure to state a claim. These
grounds for dismissal could not be cured by adding an additional Progressive employee as a defendant. Therefore,
the request is denied.
8

10

liberally and to interpret it as raising the strongest arguments it suggests. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d 185, 191 (2d
Cir. 2008). "Nonetheless, a pro se complaint must state a plausible claim for relief." Walker v.
Schult, 717 F.3d 119, 124 (2d Cir. 2013).
Plaintiffs complaint asserts an individual claim for emotional injuries. Plaintiff alleges
that she "suffered physical and emotional pain ... along with the infliction of emotional
distress." Compl. at ECF 9. In her opposition, plaintiff adds that she suffered "mental anguish,
substantial emotional distress, and a loss of the capacity for the enjoyment of her quality of life."
Opp'n at ECF 6. She also states that "she was embarrassed" because she "lost business
relationships." Id. Here, plaintiff is not claiming financial losses that are derivative of the harm to
A New New Beginning but instead asserts a claim for personal emotional damages. A "direct
and independent" claim for personal emotional damages can satisfy the constitutional standing
requirement, even if the alleged emotional injury "arose from the same conduct as the corporate
injuries." Robinson, 2010 WL 4062863, at *2 (finding plaintiff stated cognizable § 1983
emotional distress claim based on allegations that defendants retaliated against him and his
corporation for the exercise of First Amendment rights); see also Spinelli v. City of N.Y., No. 02
Civ. 8967(RWS), 2010 WL 4484525, at *2 (S.D.N.Y. Nov. 8,2010) (finding plaintiff has
standing to bring § 1983 claim for emotional damages caused by defendants' alleged failure to
provide due process regarding suspension of corporation's firearms license).
Even if plaintiff has standing to bring an individual emotional damages claim, however,
the allegations here are insufficient to state a viable claim for relief. Under New York law, to
state a tort claim for negligent infliction of emotional distress, plaintiff must allege that she
"suffer[ed] emotional distress caused by 'defendant's breach of a duty which unreasonably

11

endangered [plaintiffs] own physical safety." Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir.
2000) (quoting Mortise v. United States, 102 F.3d 693,696 (2d Cir. 1996)) (second alteration in
9

original). "The circumstances under which recovery may be had for purely emotional harm are
extremely limited." Peter T. v. Children's ViiI.. Inc., 819 N.Y.S.2d 44,47 (App. Div. 2006)
(quoting Lancellotti v. Howard, 547 N.Y.S.2d 654 (App. Div. 1989)). Here, plaintiff has not
alleged that defendants engaged in any conduct that could endanger plaintiffs physical safety.
According to plaintiffs own version of events, a car hit her organization's parked vehicle at a
time when she was not inside of it, and the vehicle was never unsafe to drive. See Opp'n, Ex. 1,
at ECF 24 (police report stating that car is drivable); id. at ECF 44 (plaintiff s correspondence
with Avis stating that "[a]t NO time did I ever tell [Avis representative] that our vehicle was
unsafely drivable"). There is no plausible way that defendants' alleged delays in processing the
claims or denials of reimbursement for certain costs could have placed plaintiff in physical
danger or caused plaintiffto fear for her safety.
Nor could plaintiff assert a claim for intentional infliction of emotional distress. Under
New York law, plaintiff must establish four elements: "(1) extreme and outrageous conduct; (2)
intent to cause, or reckless disregard of a substantial probability of causing, severe emotional
distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional
distress." Stuto v. Fleishman, 164 F.3d 820,827 (2d Cir. 1999) (citing Howell v. N.Y. Post Co.,
612 N.E.2d 699 (N.Y. 1993)). "Liability has been found only where the conduct has been 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 society." Id.
New York law also allows recovery for negligent infliction of emotional distress based on the "bystander" theory,
which is applicable when a plaintiff suffers "injuries ... in consequence of shock or fright resulting from his or her
contemporaneous observation of serious physical injury or death inflicted by the defendant's conduct on a member
of the plaintiffs immediate family in his or her presence." Baker, 239 F.3d at 422 (quoting Bovsun v. Sanperi, 461
N.E.2d 843 (N.Y. 1984)). This theory of recovery is obviously not applicable to this case.
9

12

(quoting Howell, 612 N.E.2d 699). Plaintiff's claims of emotional injury are plainly insufficient
to meet this high standard. Plaintiff accuses defendants of being unresponsive, condescending,
and disdainful toward her. While plaintiff undoubtedly experienced considerable frustration in
her dealings with defendants, it is certainly not regarded as "beyond all possible bounds of
decency" for businesses to treat customers in this manner. Taking all of plaintiff's allegations as
true, defendants' actions could never constitute the "outrageous" and "extreme" conduct required
to sustain a cognizable claim for intentional infliction of emotional distress.
Plaintiff's complaint can also be construed as raising a claim of racial discrimination.
Plaintiff asserts that she is a member of a protected class because she is African American, a
senior citizen, a woman, and at the helm of a faith-based organization. Compl. at ECF 8-9. She
states that defendants "have perceived notions of our membership in a certain group or category"
and "deliberately and intentionally treated the Plaintiff(s) differently from others of similarly
situated incidents." Id. at ECF 8. She also alleges that she is the victim of a "suspected
longstanding policy of racial discrimination and intimidation in their dealings with individuals of
African American Ethnicity." Id. at ECF 9. Plaintiff asserts that "[o]ther than saving the
company money," she can "see no other reason" for defendants' actions besides "reasons of
prejudice and ethnic intimidation." Id. at ECF 7. Based on plaintiff's version of events, however,
there is no plausible basis to infer that defendants treated her differently because of her race.
Instead, on its face, the complaint concedes that there is a non-discriminatory explanation for
defendants' alleged conduct: a desire to save money. Under the facts that plaintiff has alleged,
plaintiff sought reimbursement for certain costs, and defendants delayed in processing the claim
and then refused to reimburse for all of the costs. These allegations establish a business dispute

13

over money, but they cannot support a claim of racial discrimination. to
Therefore, even though the complaint can be construed to raise individual claims of
emotional harm and racial discrimination, neither of these claims can survive the motions to
dismiss. The Court finds that granting leave to replead would be futile, since the facts that
plaintiff has alleged foreclose the possibility that she could state a claim for relief on either of
these grounds.

CONCLUSION
For the foregoing reasons, defendants' motions to dismiss are granted. Plaintiff lacks
standing to pursue claims for A New New Beginning's expenses and lost income. To the extent
that plaintiffs complaint can be construed to raise individual claims of emotional distress or
racial discrimination, plaintiffs own version of events establishes that she is not entitled to relief
on those grounds. The Court therefore finds it unnecessary to address defendants' remaining
grounds for dismissal, including lack of personal jurisdiction, improper service, failure to allege
a basis for individual liability against various defendants, or failure to allege a contractual, tort,
or statutory duty owed to plaintiff. The complaint is dismissed in its entirety with prejudice, and
the Clerk of Court is directed to close the case.
SO ORDERED.

/S/ Judge Allyne R. Ross
Allyne R. R~s
\ I
United Stat~ District In)1ge

Dated:

February 19,2014
Brooklyn, New York

10 Plaintiff's complaint refers to a prior case that appears to be Pugh v. Avis Rent a Car System. Inc., No. 7:96-CV00091-F (E.D.N.C. filed May 22, 1996). This case concerned a class action lawsuit alleging that Avis franchises in
North Carolina and South Carolina engaged in racially discriminatory practices toward African-American
customers. There is no basis to connect plaintiff's case to litigation that occurred over a decade ago and involved
specific Avis franchises that are not part of this case.

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SERVICE LIST:
Plaintiff
Faye Wright-Upshaw
1272 Blake Avenue
Brooklyn, NY 11208

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