Johnston et al v. Apple, Inc.

Filing 18

REPLY MEMORANDUM OF LAW in Support re: 14 MOTION to Dismiss NOTICE OF MOTION TO DISMISS THE AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) OR FOR JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(D). MOTION to Dismiss NOTICE OF MOTION TO DISMISS THE AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) OR FOR JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(D)., 7 MOTION for Judgment PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) AND 12(D).. Document filed by Apple, Inc.. (Crispi, Thomas)

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
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:
BRIAN JOHNSTON and NILE CHARLES,
:
:
Plaintiffs,
:
v.
:
:
:
APPLE INC.,
:
:
Defendant.
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1:11-cv-03321-JSR

REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR JUDGMENT
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) AND 12(D)

Of counsel:
Thomas M. Crispi
Kellen G. Ressmeyer

SCHIFF HARDIN LLP
666 Fifth Avenue, 17th Floor
New York, New York 10103
Telephone: [phone]
Facsimile: [phone]
Attorneys for Apple Inc.

TABLE OF CONTENTS
Page
1.

PRELIMINARY STATEMENT ....................................................................................... 1

2.

THE ABSENCE OF ANY ALLEGATION OF A RELATIONSHIP OF
CONTROL BETWEEN APPLE INC. AND OMNISCIENT IS FATAL TO
PLAINTIFFS’ CIVIL RIGHTS CLAIMS......................................................................... 2
a.

Plaintiffs Fail to Offer a Factual Basis For A Joint Employment
Relationship Between Apple, Inc. and Any Alleged Perpetrator of
Discriminatory Conduct......................................................................................... 2

b.

Plaintiffs Fail to Offer a Factual Inference In Support of a Common Law
Employment Relationship Between Apple and Any Alleged Perpetrator of
Discriminatory Conduct......................................................................................... 4

c.

Plaintiffs Allege No Discriminatory Conduct on the Part of the Apple
Manager. ................................................................................................................ 5

3.

PLAINTIFFS FAIL TO ALLEGE AN INJURY COGNIZABLE UNDER 42
U.S.C. § 1981..................................................................................................................... 5

4.

PLAINTIFFS FAIL TO STATE A CLAIM FOR NEGLIGENT HIRING OR
RETENTION. .................................................................................................................... 7

5.

JUDGMENT FOR APPLE INC. IS PROPER UNDER RULES 12(B)(6) AND
12(D). ................................................................................................................................. 8

6.

CONCLUSION................................................................................................................ 10

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Cases
Anderson v. Liberty Lobby, Inc.
477 U.S. 242, 256-57 (1986) ...................................................................................................... 9
Ashcroft v. Iqbal
129 S.Ct. 1937, 1949-50 (2009)................................................................................................... 5
Barbosa v. Continuum Health Partners, Inc.,
716 F. Supp. 2d 210, 216-17 (S.D.N.Y. 2010) ........................................................................... 3
Bishop v. Best Buy, Co., Inc.
2010 WL 4159566 *4-5 (S.D.N.Y. Oct. 13, 2010)..................................................................... 6
Bishop v. Henry Modell & Co.
2009 WL 3762119 *10-11 (S.D.N.Y. Nov. 10, 2009)................................................................ 6
Bishop v. Toys ‘R Us-NY LLC,
414 F. Supp. 2d 385, 393 (S.D.N.Y. 2006)................................................................................. 6
Bravo v. Eastpoint Int’l, Inc.
2001 WL 314622 (S.D.N.Y. March 30, 2001) ........................................................................... 3
Brown v. Bronx Cross County Med. Gp.
834 F. Supp. 105, 109-10 (S.D.N.Y. 1993) ............................................................................ 7, 8
Brown v. New York
12 Misc.3d 633, 814 N.Y.S.2d 492 (New York Court of Claims February 10, 2006) ................. 8
Clinton’s Ditch Coop. Co., Inc. v. Nat’l Labor Relation Bd.
778 F.2d 132, 138 (2d Cir. 1985)................................................................................................ 4
Davis v. Contel of New York Inc.
187 A.D.2d 898, 590 N.Y.S.2d 307 (3d Dept. 1992)................................................................. 10
Domino’s Pizza, Inc. v. McDonald
546 U.S. 470, 472 (2006)............................................................................................................ 7
Drayton v. Toys ‘R Us Inc.
645 F. Supp. 2d 149, 157-58 (S.D.N.Y. 2009) ........................................................................... 6
Ginx, Inc. v. Soho Alliance
720 F. Supp. 2d 342, 361 (S.D.N.Y. 2010)................................................................................. 6
Grimes v. Fremont Gen. Corp.
––– F. Supp. 2d ––––, 2011 WL 1899403 *17 (S.D.N.Y. Mar. 31, 2011)................................. 5
Kennedy v. Empire Blue Cross & Blue Shield
989 F.2d 588 (2d Cir.1993)......................................................................................................... 9
Perry v. Burger King Corp.
924 F. Supp. 548, 553 (S.D.N.Y. 1996)................................................................................... 7, 8
Runyon v. McCrary
427 U.S. 160, 168-171 (1976) .................................................................................................... 7
Sahu v. Union Carbide Corp.
418 F. Supp. 2d 407, 410 (S.D.N.Y. 2005)............................................................................. 8, 9
Salamon v. Our Lady of Victory Hosp.
514 F.3d 217, 220 (2d Cir. 2008)................................................................................................ 4
Tillman v. Wheaton-Haven Recreation Assn., Inc.
410 U.S. 431, 439 (1973)............................................................................................................ 7
Statutes
42 U.S.C. § 1981.................................................................................................................... passim

Rules
Federal Rule of Civil Procedure 12(b)(6) ............................................................................... passim
Federal Rule of Civil Procedure 12(d) ............................................................................... 1, 8, 9, 10
Federal Rule of Civil Procedure 56(e) ............................................................................................ 9

Apple Inc. (“Apple” or “Apple Inc.”) respectfully submits this memorandum of law in
reply to Plaintiffs’ Memorandum of Law in Opposition to Defendant Apple’s Motion to Dismiss
(“Opposition” or “Opp.”).
1. PRELIMINARY STATEMENT
Undeterred by the absence of any basis for their suit against Apple Inc., Plaintiffs now
grasp at straws in an attempt to maintain a cause of action. Following Apple’s Memorandum of
Law in Support of Motion for Judgment Pursuant to Federal Rule of Civil Procedure 12(b)(6) and
12(d) (“Apple Mem.”), Plaintiffs amended their Complaint to add an additional party, additional
allegations, and an additional theory of recovery. A review of the Amended Complaint’s edits to
Plaintiffs’ original filings affirms that their claims have no legal basis and thus the Amended
Complaint, too, fails to state a claim for relief.
First, neither state nor federal law imposes legal liability on Apple Inc. for any alleged
racial discrimination on the part of its independent contractor, Omniscient Investigation
Corporation (“Omniscient”). And, Plaintiffs have offered no allegation to color the connection
between Apple Inc. and Omniscient with the hue of an employment or agency relationship.
Second, Plaintiffs’ failure to plausibly allege any interference with a cognizable
contractual interest renders its pursuit of relief under 42 U.S.C. § 1981 untenable. As the
Complaint (as amended) (together, the “Complaint”) makes clear, Plaintiffs completed their
purchases prior to the alleged misconduct. Thus, at the time of the alleged misconduct, any
contract performance was complete and no contractual interest remained to be infringed.
Third, Plaintiffs’ state law negligent hiring and retention claims fail to allege either (a) a
cognizable duty owed by Apple or (b) a cognizable injury resulting from the duty’s breach. New
York charges Apple Inc. with no duty to protect Plaintiffs from racial harassment under a

negligent hiring and supervision theory.

Further, state recognition of negligent hiring and

retention claims is limited to cases of “significant physical injury”—not emotional distress.
In sum, Plaintiffs have followed their Complaint’s failure to state a claim with an
Opposition that cannot legitimize their claims. No actionable relationship exists between Apple
Inc. and the perpetration of discrimination alleged in this case. Plaintiffs have, therefore, stated
no cause of action against Apple.
2. THE ABSENCE OF ANY ALLEGATION OF A RELATIONSHIP OF CONTROL
BETWEEN APPLE INC. AND OMNISCIENT IS FATAL TO PLAINTIFFS’ CIVIL
RIGHTS CLAIMS.1
Although Apple Inc.’s Opening Brief may have called for conversion, pursuant to Federal
Rule of Civil Procedure (“Rule”) 12(d), Plaintiffs’ Amended Complaint confirms dismissal
pursuant to Rule 12(b)(6). In their Amended Complaint, Plaintiffs concede that the alleged
perpetrator (“the security guard”) was an employee of Omniscient. Am. Compl. ¶ 23. And
Plaintiffs’ nomination of Omniscient as a defendant in this case carries their concession that
Omniscient controlled the methods and means of the security guard’s conduct. Id. It is thus
incumbent upon the Plaintiffs to establish that Apple Inc. is properly subject to suit herein as a
joint employer, employer, or principal of the alleged perpetrators. For the reasons set forth
below, Plaintiffs have failed to plead the requisite joint-employer, employment, or agency
relationship with the alleged perpetrators necessary to sustain a civil rights claim against Apple Inc.
Plaintiffs have, therefore, failed to state a claim against Apple for any violation of civil rights.

a. Plaintiffs Fail to Offer a Factual Basis For A Joint Employment Relationship
Between Apple, Inc. and Any Alleged Perpetrator of Discriminatory Conduct.

1

Plaintiffs’ civil rights claims include: 42 U.S.C. §§ 1981, 1982, New York State Executive Law 15 § 296,
and Administrative Code of the City of New York § 8-107

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In their Amended Complaint, Plaintiffs acknowledge the independent entity responsible
for the provision of security services and add Apple’s independent contractor, Omniscient. See
Am. Compl. ¶ 11-12, 25-28 (alleging a factual basis for discriminatory intent solely on the part
of an individual “believed to be a security guard”). The Amended Complaint concedes the
existence of an employment relationship between Omniscient and the alleged discriminator. See
id.

And, despite Plaintiffs’ assertions that the Complaint “mak[es] the same or similar

allegations,” Opp. at 1, the Amended Complaint goes on to advance a new theory of liability
against Apple: liability as a joint employer of the security guard. See Am. Compl. ¶¶ 12, 13
(“Defendants’ actions were jointly undertaken and Defendants’ employees are and were
operating together and indistinguishable from each other at all relevant times.”). In other words,
was the perpetrator “an employee for both Defendant Apple and Omniscient”? Memorandum of
Law in Opposition to Defendant Apple’s Motion to Dismiss (“Opp.”) at 2 (emphasis added); see
also Am. Compl. ¶ 13.
A review of this District’s precedent answers this question: No. Under the joint employer
doctrine, “an employee formally employed by one entity can be found to be constructively
employed by another entity . . . where there is sufficient evidence that the respondent had
immediate control over the other company’s employees.”

Barbosa v. Continuum Health

Partners, Inc., 716 F. Supp. 2d 210, 216-17 (S.D.N.Y. 2010).

To plead constructive

employment, however, Plaintiffs must plead a factual basis in support of Apple Inc.’s power to
control Omniscient’s employees. See Bravo v. Eastpoint Int’l, Inc., 2001 WL 314622 (S.D.N.Y.
March 30, 2001) (granting motion to dismiss because Plaintiffs failed to plead defendant’s power
to control); see also Barbosa, 716 F. Supp. 2d at 216-17 (recognizing the application of the joint
employer doctrine to claims under § 1981 and the New York State Human Rights Law).

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In Clinton’s Ditch Coop. Co., Inc. v. Nat’l Labor Relations Bd., the Second Circuit
articulated five factors relevant to a designation of a party as a “joint employer.” 778 F.2d 132,
138 (2d Cir. 1985). To support a finding of such status, the business entities must share or
codetermine matters governing the essential terms and conditions of employment: (a) hiring and
firing; (2) discipline; (3) pay, insurance, and records; (4) supervision; and (5) direction. See id.
at 138-139. The Complaint does not allege, much less provide a factual basis for, Apple’s
codetermination of any of the terms or conditions of the security personnel’s2 employment with
Omniscient, and thus, ipso facto, it does not provide a factual basis for such an inference.
b. Plaintiffs Fail to Offer a Factual Inference In Support of a Common Law
Employment Relationship Between Apple and Any Alleged Perpetrator of
Discriminatory Conduct.
In an effort to side-step the prohibitions on liability in the absence of a joint employment
relationship, Plaintiffs charge the security personnel as agents—and therefore common law
employees—of Apple Inc. See, e.g., Opp. at 3 (“[T]he legal definition of an employee . . .
follows the common law. ‘Whether a hired person is an employee under the common law of
agency depends on a fact-specific analysis of thirteen factors articulated by the Supreme Court in
Community for Creative Non-Violence v. Reid[.]” (quoting Salamon v. Our Lady of Victory
Hosp., 514 F.3d 217, 226 (2d Cir. 2008)); see also, Mem. at 6 (“[E]ven if the individual in
question was not the employee of Defendant Apple, there most certainly is a question of whether
that individual was his agent.”). But the Complaint establishes no relationship of common law
agency between Apple Inc. and Omniscient. Indeed, of the thirteen factors indicating an agency
relationship set forth by the Second Circuit in Salamon v. Our Lady of Victory Hosp., supra,—

2

For the reasons set forth in Section 2(a)-(b), infra, the only factual basis for discriminatory intent is
alleged against the security personnel. The absence of any relationship of control between Apple Inc. and the
security personnel in this case absolves Apple of liability for the personnel’s conduct.

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and reiterated in the Opposition, see Opp. at 3,—none appears in the Complaint to describe the
relationship between Apple Inc. and its independent contractor, Omniscient. Plaintiffs have,
therefore, failed to allege the security personnel’s status as common law employees of Apple Inc.
c. Plaintiffs Allege No Discriminatory Conduct on the Part of the Apple
Manager.
In the absence of any liability for the conduct of the Omniscient personnel identified in
Am. Compl. ¶¶ 25-29, 31, Plaintiffs’ sole accusation against an Apple employee proceeds against
the store manager. But no factual basis for discrimination on the part of the manager accompanies
Plaintiffs’ allegation that the manager requested a call to 9-11. Id. at 35. Instead, Plaintiffs
conclude that the manager issued the request “in order to further harass, degrade, humiliate, and
discriminate against the Plaintiffs”. See Am. Compl. ¶ 35. Without more, Plaintiffs’ conclusions
amount to no more than the threadbare recitals of a cause of action’s elements, supported by
conclusory statements, which are insufficient to withstand Rule 12 review. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949-50 (2009); Grimes v. Fremont Gen. Corp., No. 08–cv–1024, ––– F. Supp.
2d ––––, 2011 WL 1899403, at *17 (S.D.N.Y. Mar. 31, 2011) (collecting cases finding that
conclusory allegations of discrimination do not state a claim for discrimination under Section
1981) (dismissing Plaintiffs’ §§ 1981, 1982, 1985 claims that defendants inter alia “charg[ed]
them higher interest rates than those charges [sic] to similarly-situated Caucasian mortgagees”
due to Plaintiffs’ failure to “provide any facts in support of their contention that intentional
discrimination occurred” (internal quotation marks omitted)).
3. PLAINTIFFS FAIL TO ALLEGE AN INJURY COGNIZABLE UNDER 42 U.S.C. §
1981.
The Complaint’s concession that the alleged discrimination occurred after their purchases
were complete bars their pursuit of relief under 42 U.S.C. § 1981. As this Court has reiterated

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time and again, Section 1981 claims do not lie “in the context of retail transactions . . . after a
purchase is completed [because] ‘there is no continuing contractual relationship.’” Drayton v.
Toys ‘R Us Inc., 645 F. Supp. 2d 149, 157-58 (S.D.N.Y. 2009) (dismissing plaintiffs’ Section
1981 contract claims alleging racial discrimination by a retail store after plaintiffs had completed
their purchases) (quoting Bishop v. Toys ‘R Us-NY LLC, 414 F. Supp. 2d 385, 393 (S.D.N.Y.
2006) (same)); Bishop v. Best Buy, Co., Inc., 2010 WL 4159566 *4-5 (S.D.N.Y. Oct. 13, 2010)
(same); Bishop v. Henry Modell & Co., 2009 WL 3762119 *10-11 (S.D.N.Y. Nov. 10, 2009)
(same); see also Opp. 7-8 and cases cited therein. The Complaint is clear that all instances of
alleged discrimination took place after Plaintiffs had “made their purchase” and “proceeded
upstairs” to the “entry level of the Defendants’ retail store.” Am. Compl. ¶¶ 24, 25.
In fact, the Complaint contains no allegation that any defendant interfered with Plaintiffs’
attempt to make purchases at the Broadway store at any time. To the contrary, Plaintiffs allege
that the security guard stopped them from loitering after they had completed their purchase,
telling them to leave the store unless they were planning to “purchase something.” Am. Compl.
¶ 27 (“Either you’re here to see a Mac Specialist or to purchase something. If you are not doing
either you have to leave the store.”). Thus, the Complaint offers no plausible inference of
discriminatory interference with a contractual relationship. See Ginx, Inc. v. Soho Alliance, 720
F. Supp. 2d 342, 361 (S.D.N.Y. 2010) (dismissing plaintiffs’ claim for failure to identify
defendants’ injury to a specific contractual interest).
Plaintiffs’ Opposition contains no rebuttal to this Court’s decisions in Drayton, et al.,
supra. Plaintiffs cite no case that permits a Section 1981 contract claim to go forward on the
basis of alleged discrimination subsequent to a completed retail transaction. Domino’s Pizza,
Inc. v. McDonald, for example, affirmed the dismissal of a plaintiff-shareholder’s suit alleging
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individual damages arising out of breach of a corporate contract, reasoning that the individual
plaintiff “lack[ed] any rights under [an] existing contractual relationship with the defendant, and
[was not] prevented from entering into such a contractual relationship.” 546 U.S. 470, 472
(2006). In Runyon v. McCrary, the Court confirmed that § 1981 prohibits private schools from
denying admission to minority students on the basis of race. 427 U.S. 160, 168-171 (1976). And
in Tillman v. Wheaton-Haven Recreation Assn., Inc., the Court affirmed that § 1981 prohibited a
swim club from denying entry to minority guests. 410 U.S. 431, 439 (1973). All cases named
in the Opposition involve the breach of an existing contract or a defendant’s race-based
interference with the formation of an agreement. None address (or affirm) Plaintiffs’ pursuit of
Section 1981 relief after a party’s retail transaction is complete.
4. PLAINTIFFS FAIL TO STATE A CLAIM FOR NEGLIGENT HIRING OR
RETENTION.
New York does not permit Plaintiffs to proceed with their discrimination claim under a
negligent hiring and retention theory for three reasons.

First, “New York courts have not

recognized claims for negligent hiring of an employee whose subsequent offense involved
racial harassment.” Brown v. Bronx Cross County Med. Gp., 834 F. Supp. 105, 109-110
(S.D.N.Y. 1993); Perry v. Burger King Corp., 924 F. Supp. 548 (S.D.N.Y. 1996) (dismissing
negligent hiring and supervision claim against employer because Plaintiffs’ allegations of racial
discrimination failed to state a claim for negligence). The Amended Complaint makes clear that
the only offense alleged against the defendants is that of racial harassment.
Second, New York’s recognition of negligent hiring and retention claims is limited to
negligent “hiring and retention of an employee known to be dangerous to the health and safety of
coemployees.” Id. at 110 (citations omitted). Plaintiffs do not allege that Apple Inc. had actual
or constructive knowledge of any employee’s danger to coemployees or to the Plaintiffs.
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Third and in the same vein, this Court has refrained from recognition of negligent hiring
and retention claims in the absence of “serious physical injury.” Perry, 924 F. Supp. at 553
(emphasis added); see also Brown, at 109-10. This court does not recognize emotional distress as a
serious physical injury sufficient to sustain a negligent hiring or retention claim. See Brown, at 110
(dismissing negligent hiring and retention claims because “Plaintiff does not allege that
defendants assaulted her or caused her personal injury [despite allegations of intentional
infliction of emotional distress].

Thus, regardless of what facts are ultimately proven by

plaintiff, she could not, as a matter of law, establish a claim for negligent hiring and retention of
an employee under New York law.”). In this case, Plaintiffs’ allegations of “serious injury”, Opp.
at 4, are limited to humiliation, degradation, victimization, embarrassment, ridicule, and emotional
distress. Am. Compl. ¶ 38. Brown and its progeny, therefore, compel dismissal.3
5. JUDGMENT FOR APPLE INC. IS PROPER UNDER RULES 12(B)(6) AND 12(D).
Alternatively, Rule 12(d) also compels judgment for Apple Inc. The Federal Rules vest
this Court with the discretion to convert Rule 12 dismissal motions to motions for summary
judgment. Sahu v. Union Carbide Corp., 418 F. Supp. 2d 407, 410 (S.D.N.Y. 2005) (“A Court
‘shall’ convert a motion to dismiss into one for summary judgment when ‘matters outside the
pleadings are presented to and not excluded by the court,’ . . . and where the non-movant ‘should
reasonably have recognized the possibility that such a conversion would occur.’” (internal
citations omitted)).4

3

Plaintiffs’ reference to Brown v. New York—a state Court of Claims case that dismissed Plaintiffs’ negligent
hiring and retention claims—provides no disruption to this court’s long-standing recognition of New York law. See
Brown v. New York, 12 Misc.3d 633, 649, 814 N.Y.S.2d 492 (New York Court of Claims Feb. 10, 2006) (“[T]he
causes of action for negligent hiring and supervision are not available to claimants.”).
4

Notice of conversion can be inferred from the circumstances. Sahu, at 410-411 (citing Kennedy v. Empire
Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir.1993)). Apple Inc.’s (a) specific request for conversion
pursuant to Rule 12(d), see June 2, 2011 Apple Inc. Motion for Judgment Pursuant to Rules 12(b)(6) and 12(d)

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With its June 2, 2011 Motion, Apple Inc. proffered documentary evidence establishing an
independent contractor relationship between itself and the security personnel named in the
Complaint. See June 2, 2011 Motion, Ex. A.1 (“Apple Inc. Services Agreement with Omniscient
Investigation Corporation” or the “Apple – Omniscient Contract”) ¶ 5.0. The Apple-Omniscient
Contract clearly sets forth the terms governing the relationship between Apple Inc. and
Omniscient.

Id. (“Relationship.

Supplier [Omniscient Investigation Corporation] is an

independent entity providing services to Apple. No employment relationship is created by this
Agreement.” (emphasis added)).
To survive conversion, Plaintiffs must present evidence of a genuine issue of fact that
requires a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (“Rule 56(e)
itself provides that a party opposing a properly supported motion for summary judgment may not
rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” (citing Rule 56(e)). In their Opposition, Plaintiffs failed to
come forward with any factual basis in support of an inference of an employment relationship.
Indeed, as noted in § 2(a)-(b), Plaintiffs fail to offer conclusory allegations—much less a factual
basis for the inference—of such a relationship.
Plaintiffs have thus failed to raise an issue of material fact that any alleged perpetrator(s)
(the “security personnel”) of discrimination were employees of Apple Inc. See Davis v. Contel of

(“June 2, 2011 Motion”); (b) the May 23, 2011 Declaration of Pierre Auguste identifying Omniscient Investment
Corporation as an independent contractor, see May 23, 2011 Declaration of Pierre Auguste (“Auguste Dec.”); and
(c) attachment of the Apple Inc. Services Agreement with Omniscient Investigation Corporation (the “Apple –
Omniscient Contract”) as an exhibit to its June 2, 2011 Motion, see Auguste Dec., Ex. A.1, provided the requisite
notice. Sahu, at 410 (“The moving party's submission of exhibits, affidavits, and the like gives the non-moving
party notice of possible conversion.”) (citing cases). Indeed, Plaintiffs acknowledged Apple Inc.’s notice of the
independent contractor relationship with their amendment of the Complaint to add the independent contractor and
alter the description of the parties to account for the independent contractor relationship. Plaintiffs can therefore
claim no ignorance of the possibility of conversion.

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New York Inc., 187 A.D.2d 898, 900 n.2, 590 N.Y.S.2d 307 (3d Dept. 1992) (“Plaintiff[s] b[ear]
the burden of proving that [Defendant] was not an independent contractor as a necessary part of
proving [their] prima facie case” (citing 57 N.Y.JUR.2D, EVIDENCE AND WITNESSES, §§ 165, 168,
170, at 378, 382, 384)) (dismissing the Complaint). Apple is, therefore, entitled to judgment. 14
N.Y.PRAC., NEW YORK LAW OF TORTS § 9:17 (“Where the proof on the issue of control presents
no conflict in evidence the matter may properly be determined by the court as a matter of law.”).
6. Conclusion
Accordingly, Apple Inc. respectfully requests that this Court dismiss the Complaint with
prejudice, pursuant to Rules 12(b)(6) and 12(d).

Date: June 22, 2011

Respectfully submitted,
SCHIFF HARDIN LLP
/s/ Thomas M. Crispi
Thomas M. Crispi
[e-mail]
Kellen G. Ressmeyer
[e-mail]
666 Fifth Avenue, 17th Floor
New York, New York 10103
Telephone: [phone]
Facsimile: [phone]

Attorneys for Apple Inc.

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