Diego Beekman Mutual Housing Association housing Development Fund Corporation HDFC v. Dish Network, L.L.C. et al
Filing
69
OPINION AND ORDER re: 51 MOTION for Attorney Fees pursuant to the order filed July 28, 2015 filed by Dish Network Service L.L.C., 53 MOTION to Dismiss Third Amended Complaint. filed by Directv L.L.C., 49 MOTION to Dismiss the third amended complaint filed by Dish Network Service L.L.C., 57 MOTION for Attorney Fees filed by Directv L.L.C.: For the reason given in this Opinion, Defendants' motions to dismiss are GRANTED; th eir motions for attorneys' fees and costs are DENIED; and the remaining negligence claim against John Does 1 through 10 is DISMISSED without prejudice to refiling in state court. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 3/15/2016) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DIEGO BEEKMAN MUTUAL HOUSING
:
ASSOCIATION HOUSING DEVELOPMENT :
:
FUND CORPORATION HDFC,
:
:
Plaintiff,
:
v.
:
:
:
DISH NETWORK, L.L.C, et al.,
:
Defendants. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 15, 2016
______________
15 Civ. 1094 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Diego Beekman Mutual Housing Association Housing
Development Fund Corporation HDFC (“Diego Beekman,” or “Plaintiff”) has
filed suit against two satellite television service providers, Dish Network Service
L.L.C. (“Dish”) and DirecTV, L.L.C. (“DirecTV,” and together with Dish,
“Defendants”), as well as ten John Doe agents, employees, or subcontractors of
Defendants. Plaintiff’s Third Amended Complaint (or “TAC”) asserts claims for
common law trespass and negligence, and seeks compensatory, consequential,
punitive, and treble damages. Defendants have each filed motions to dismiss
Plaintiff’s TAC, and to recover the attorneys’ fees and costs incurred in the
preparation of their motions to dismiss Plaintiff’s now-defunct Second
Amended Complaint (or “SAC”). For the reasons stated in this Opinion,
Defendants’ motions to dismiss are granted, and their motions for attorneys’
fees and costs are denied.
BACKGROUND 1
A.
Factual Background
Plaintiff is the fee title owner of thirty-eight residential apartment
buildings in Bronx County, New York. Plaintiff alleges that Defendants,
“through their agents, servants, employees, contractors or subcontractors,”
entered Plaintiff’s buildings and installed a total of 377 satellite dishes, as well
as antennae and other equipment. (TAC ¶ 7 & Ex. 1). Plaintiff specifically lists
302 satellite dishes bearing the DirecTV mark, and 75 dishes bearing the Dish
mark. (Id. at Ex. 1). Plaintiff alleges that Defendants did not seek or receive
permission from Plaintiff prior to the installation of any of this equipment. (Id.
at ¶ 11).
Plaintiff alleges substantial damage to its buildings as a result of the
improper installation of Defendants’ respective satellite dishes. Specifically,
Plaintiff lists “[e]xtensive damage to the roof and exterior walls of the
Buildings,” which damage has led to “[w]ater leakage and seepage within
various portions of the Buildings.” (TAC ¶¶ 17, 20). Plaintiff attributes these
1
The facts contained in this Opinion are primarily drawn from Plaintiff’s Third Amended
Complaint (the “TAC”) (Dkt. #41), and are taken as true for purposes of this motion.
See Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (when reviewing a
complaint for failure to state a claim, the court will “assume all well-pleaded factual
allegations to be true” (internal quotation marks omitted)). For convenience,
Defendants’ briefs in support of their respective motions to dismiss (Dkt. #49-50, 53,
55) will be referred to as “[Name] Br.”; Plaintiff’s combined opposition brief (Dkt. #60) as
“Pl. Opp.”; and Defendants’ reply briefs (Dkt. #64, 66) as “[Name] Reply.”
Facts pertaining to Defendants’ motions for attorneys’ fees are drawn from the
declarations submitted in support of and in opposition to those motions, which
declarations are referred to using the convention “[Name] Decl.” or “[Name] Reply Decl.”
Defendants’ briefs in support of their motions for fees and costs are referred to as
“[Name] Fee Br.” (Dkt. #51, 57, 59); Plaintiff’s opposition is referred to as “Pl. Fee Opp.”
(Dkt. #62); and Defendants’ reply briefs are referred to as “[Name] Fee Reply” (Dkt. #63,
68).
2
conditions to Defendants’ improper construction, installation, and
maintenance of its satellite dishes, antennae, and other unspecified
“apparatuses.” (Id. at ¶ 17). Plaintiff states that it will need to hire a
contractor to remove Defendants’ installations, in order to repair and prevent
further occurrences of the “flooding, accumulations of water, mold, dampness,
discolorations, [and] foul and other musty odors” caused by the improperly
installed and maintained equipment. (Id. at ¶¶ 20-21).
Finally, Plaintiff asserts that “Defendants had both actual and
constructive notice of the conditions aforedescribed and/or the conditions have
existed for so long a period of time that the Defendants knew or should have
known of such conditions.” (TAC ¶ 22).
B.
Procedural Background
Plaintiff filed its initial Complaint in New York State Supreme Court,
Bronx County, on January 6, 2015. (See Dkt. #1). On February 17, 2015,
DirecTV removed the case to federal court on the basis of diversity jurisdiction,
pursuant to 28 U.S.C. §§ 1332(a) and 1441. (Id.). Plaintiff filed its First
Amended Complaint on April 10, 2015 (Dkt. #16), and, after the parties had
exchanged pre-motion letters and the Court held a conference on Defendants’
proposed motions to dismiss, Plaintiff filed its Second Amended Complaint on
May 26, 2015 (Dkt. #27).
On the consent of all parties, the Court set a briefing schedule for
Defendants to file their respective motions to dismiss Plaintiff’s SAC on
June 11, 2015. (Dkt. #29). On June 23, 2015, DirecTV filed its motion to
3
dismiss the SAC, and Dish filed its motion to dismiss on the following day.
(Dkt #34-35, 37-38). Plaintiff then filed its Third Amended Complaint, without
having received consent from its adversaries or leave from the Court, on July
21, 2015. (Dkt. #41). The Court struck the improperly-filed TAC, and directed
Plaintiff to either “obtain Defendants’ written consent to the amendment or
explain to the Court why justice required the Court to grant leave to amend.”
(Dkt. #42). After receiving a written explanation for Plaintiff’s improper filing,
the Court granted Plaintiff’s request to file its TAC, noting that, “[a]bsent
compelling cause, this will be Plaintiff’s last amendment.” (Dkt. #48). The
Court further stated that, “[b]ecause Plaintiff’s delinquency has caused some
cost to Defendants … the Court will entertain Defendants’ applications for
costs associated with the initial motion to dismiss[.]” (Id.).
Defendants filed their motions to dismiss Plaintiff’s TAC on August 27,
2015 (Dkt. #49, 53), as well as separate motions seeking attorneys’ fees and
costs incurred in preparing their previously-filed motions (Dkt. #51, 57).
Plaintiff filed its responses to Defendants’ motions — in regards to both
dismissal and attorneys’ fees — on September 15, 2015 (Dkt. #60, 62), and
Defendants concluded the briefing on October 12, 2015, with the filing of their
respective replies (Dkt. #63-64, 66, 68).
4
DISCUSSION
A.
Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court should “draw all reasonable inferences in [the
plaintiff’s] favor, assume all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). Thus, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While Twombly does not
require heightened fact pleading of specifics, it does require enough facts to
‘nudge [a plaintiff’s] claims across the line from conceivable to plausible.’” In re
Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550
U.S. at 570). “Where a complaint pleads facts that are ‘merely consistent with’
a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557). Moreover, “the tenet that a court must accept a complaint’s
allegations as true is inapplicable to threadbare recitals of a cause of action’s
elements, supported by mere conclusory statements.” Id. at 663.
“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
5
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable LLC, 622
F.3d 104, 111 (2d Cir. 2010). “Even where a document is not incorporated by
reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the
complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)).
B.
Plaintiff Fails to State a Claim for Trespass
1.
Applicable Law
A claim for trespass to real property requires “an intentional entry onto
the land of another without justification or permission.” Marone v. Kally, 971
N.Y.S.2d 324, 327 (2d Dep’t 2013) (citation omitted). To constitute a trespass,
the entry must “involve[] an invasion of a person’s interest in the exclusive
possession of land.” Copart Indus., Inc. v. Consol. Edison Co. of N.Y., 41 N.Y.2d
564, 570 (1977). Indeed, “[t]he essence of trespass to real property is injury to
the right of possession.” Bloomingdales, Inc. v. N.Y. City Transit Auth., 13
N.Y.3d 61, 66 (2009); accord Romeo v. Sherry, 308 F. Supp. 2d 128, 142-43
(E.D.N.Y. 2004) (citing 104 N.Y. Jur. 2d, Trespass § 10). Proof of ownership is
not sufficient to establish the possessory right required to bring a trespass
claim; on the contrary, an action for trespass “may be maintained even against
an owner by the one entitled to possession.” Bower v. Weisman, 639 F. Supp.
532, 540 (S.D.N.Y. 1986) (quoting Meadow Point Properties v. Nick Mazzoferro &
Sons, 219 N.Y.S.2d 908, 909 (Sup. Ct. Suffolk Co. 1961)).
6
2.
Analysis
Dish argues that Plaintiff’s assertions of trespass amount to no more
than “boilerplate — the same kind of threadbare recitals proscribed by
Twombly, Iqbal, and their progeny.” (Dish Br. 9 (citations omitted)). 2 DirecTV
contends that Plaintiff’s trespass claim fails for the additional reason that
Plaintiff has failed to plead its exclusive possession of the properties as to
which trespass is alleged. (DirecTV Br. 8-9). Plaintiff responds by arguing that
it has sufficiently alleged the elements of trespass, including Plaintiff’s
ownership of and right to repair the property at issue, so as to apprise
Defendants of the claims against them. (Pl. Br. 5-11).
Nowhere in Plaintiff’s TAC does Plaintiff claim to be in exclusive
possession of the allegedly trespassed-upon buildings. That deficiency dooms
Plaintiff’s trespass claim to fail. Plaintiff argues that, “[w]hile the apartments
within the buildings are leased to tenants, the common areas of the buildings,
including the roof tops and facades where these installations took place, are all
maintained by Diego Beekman.” (Pl. Br. 7-8). This contention fails to save
Plaintiff’s trespass claim for multiple reasons. First, and most importantly, the
TAC makes no mention of “common areas” or of Plaintiff’s right to maintain
them, and Plaintiff cannot supplement its fourth attempt at pleading with new
facts asserted in its opposition brief. See Wright v. Ernst & Young LLP, 152
F.3d 169, 178 (2d Cir. 1998) (noting that a party cannot cure pleading defects
2
While Dish and DirecTV have individually submitted motions to dismiss, they
additionally join in each other’s arguments. (See Dish Br. 2; Direct Br. 2).
7
by advancing allegations in opposition to a motion to dismiss). Second, even if
Plaintiff retained the right to maintain common areas, such right does not
constitute exclusive possession (indeed, to consider Plaintiff as being in
“exclusive possession” of the buildings’ “common areas” would be a
contradiction in terms).
The closest the TAC comes to even hinting at some possessory right
retained by Plaintiff is its statement that Plaintiff “will be compelled … to
remediate the damage to the Buildings and to render the same habitable and
secure and free of all water infiltration.” (TAC ¶ 21). In other words, Plaintiff
alleges its duties pursuant to the warranty of habitability that applies to all
landlords. See N.Y. Real Prop. Law § 235-b. A landlord’s duty to remediate
unsafe conditions is a far cry from the exclusive possession required to
maintain an action for trespass — to find otherwise would effectively be to give
every landlord standing to sue for trespass, regardless of whether he or she has
any possessory interest in the property at all. Cf. Cornick v. Forever Wild Dev.
Corp., 659 N.Y.S.2d 914, 916 (3d Dep’t 1997) (“A trespass action may only be
maintained by one entitled to possess that property; ownership alone is
insufficient.”); Stay v. Horvath, 576 N.Y.S.2d 908, 911 (3d Dep’t 1991) (finding
that a tenant stated a trespass claim against its landlord, where the landlord
interfered with the tenant’s right of possession). Furthermore, even a right of
entry to repair extending beyond the minimal duty to repair unsafe conditions
would not provide the necessary possessory interest: A landlord might reserve
8
the right to enter her tenant’s apartment to repair the oven, but she is not, by
virtue of that right, also entitled to dictate who gets invited over for dinner.
In sum, Plaintiff fails to allege any possessory interest in the purportedly
trespassed-upon buildings, let alone the exclusive possession required to
maintain an action for trespass. As a result, Plaintiff’s trespass claim is
dismissed.
C.
Plaintiff Fails to State a Claim for Negligence Against Defendants
1.
Applicable Law
A plaintiff asserting a negligence claim under New York law “must
establish three elements … [i] the existence of a duty on defendant’s part as to
plaintiff; [ii] a breach of this duty; and [iii] injury to the plaintiff as a result
thereof.” Pasternack v. Lab. Corp. of Am., 892 F. Supp. 2d 540, 552 (S.D.N.Y.
2012) (citation omitted). Where “the defendant owes no duty to the plaintiff,
the action must fail. Although juries determine whether and to what extent a
particular duty was breached, it is for the courts first to determine whether any
duty exists.” Drake v. Lab. Corp. of Am. Holdings, No. 02 Civ. 1924 (FB) (RML),
2007 WL 776818, at *2 (E.D.N.Y. Mar. 13, 2007) (quoting Darby v. Compagnie
Nat’l Air France, 96 N.Y.2d 343, 347 (2001), opinion after certified question
answered, 13 F. App’x 37 (2d Cir. 2001) (summary order)), aff’d, 417 F. App’x
84 (2d Cir. 2011) (summary order).
While an employer may be held vicariously liable for the acts that its
employees commit within the scope of their employment, an employer is not
usually liable for the negligent acts of its independent contractors. Rivera v.
9
Fenix Car Serv. Corp., 916 N.Y.S.2d 169, 170 (2d Dep’t 2011); see also
Rosenberg v. Equitable Life Assur. Soc. of U.S., 79 N.Y.2d 663, 668 (1992).
However, this rule is not absolute: Public policy concerns dictate that an
employer may be found liable for its independent contractor’s negligence where
the employer
[i] is under a statutory duty to perform or control the
work, [ii] has assumed a specific duty by contract, [iii] is
under a duty to keep premises safe, or [iv] has assigned
work to an independent contractor which the employer
knows or has reason to know involves special dangers
inherent in the work or dangers which should have been
anticipated by the employer.
Rosenberg, 79 N.Y.2d at 668; see also Robinson v. Gov’t of Malaysia, 269 F.3d
133, 145 (2d Cir. 2001). To determine whether an employer-employee
relationship exists between two parties, courts consider “whether the alleged
employer exercise[d] control over the results produced, or the means used to
achieve the results. Control over the means is the more important
consideration.” Chuchuca v. Chuchuca, 890 N.Y.S.2d 573, 575 (2d Dep’t 2009)
(quoting Abouzeid v. Grgas, 743 N.Y.S.2d 165, 166 (2d Dep’t 2002)).
Additionally, where a party cannot be held vicariously liable for an
independent contractor’s conduct due to the lack of an employer-employee
relationship, the party may in some circumstances be held directly liable for
negligently hiring, retaining, or supervising its contractor. Bellere v. Gerics,
759 N.Y.S.2d 105, 107 (2d Dep’t 2003). Under New York law, a claim for
negligent hiring, supervision, or retention requires, in addition to the basic
elements of negligence, that “the party knew or should have known of the
10
contractor’s propensity for the conduct which caused the injury.” Schiffer v.
Sunrise Removal, Inc., 879 N.Y.S.2d 518, 522 (2d Dep’t 2009) (quoting Bellere,
759 N.Y.S.2d at 107)).
2.
Analysis
Defendants argue that Plaintiff’s negligence claim fails as against Dish
and DirecTV on the basis of the TAC’s failure to plead that either Defendant
controlled the actors who negligently installed the offending equipment. (Dish
Br. 6). Defendants additionally contend that they owed Plaintiff no duty of
care. (DirecTV Br. 9-10). Plaintiff responds by arguing that it has clearly
pleaded negligence, so it need not expressly allege the existence of a duty; and
in any event, a duty clearly existed. (Pl. Opp. 12-14). More specifically,
Plaintiff suggests in its opposition brief that the TAC’s lack of any pleaded duty
is wholly irrelevant, as “[i]t is clear from a plain reading of the document that
Plaintiff’s second claim is for negligence, of which duty is an element” — the
theory being that, because Defendants were on notice of the negligence charge,
they were implicitly on notice that Plaintiff was alleging duty and breach. (Pl.
Opp. 12).
The Court notes, as a threshold matter, that all elements of a claim must
be pleaded; they may not be inferred from the recitation of a cause of action’s
title. Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide the
grounds of his entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
(internal quotation marks omitted)). That said, the failure to use the particular
11
word “duty” is not a per se bar to Plaintiff’s negligence claim, so long as
sufficient factual matter has been alleged to establish that Defendants did in
fact owe Plaintiff a duty of care. The TAC falls short, however, in that it fails to
allege facts sufficient to raise its assertions of negligence — and the constituent
elements of duty and breach — above the purely speculative level.
Defendants themselves are not alleged to be the direct tortfeasors:
Rather, the TAC states that “either or both of the Defendants, through their
agents, servants, employees, contractors or subcontractors, including without
limitation John Does 1 through 10 … entered upon the various Buildings of the
Plaintiff and installed various equipment … including … satellite dishes on the
exteriors of Plaintiff’s Buildings[.]” (TAC ¶ 7). This formulation is problematic;
it is so broad as to encompass every possible theory of employer liability, and
as such fails to provide Defendants with an indication of the grounds upon
which Plaintiff claims entitlement to relief. While the TAC need not provide
“detailed factual allegations” to survive a Rule 12(b)(6) motion to dismiss, postTwombly, “[t]he test is no longer whether there is ‘no set of facts’ that plaintiff
could prove ‘which would entitle him to relief.’” Abdelhamid v. Altria Grp., Inc.,
515 F. Supp. 2d 384, 391 (S.D.N.Y. 2007) (quoting Twombly, 550 U.S. at 561).
Rather, a complaint must provide “the grounds upon which [the plaintiff’s]
claim rests through factual allegations sufficient ‘to raise a right to relief above
the speculative level.’” Twombly, 550 U.S. at 555 (emphasis added). The TAC
in this matter is devoid of any facts, or even a clear statement, indicating the
theory upon which Defendants are alleged to be liable for the negligent
12
installations performed by the John Does. Consequently, it fails to raise
Plaintiff’s right to relief above the merely speculative, and cannot survive
Defendants’ motion to dismiss.
First, the TAC states that “either or both of the Defendants” acted
through the John Does installers to affix equipment to Plaintiff’s buildings.
Thus the TAC does not even make clear which Defendant is being charged with
liability; certainly this falls short of providing Defendants with reasonable
notice of the claims against them. See Fed. R. Civ. P. 8(a); Ideal Steel Supply
Corp. v. Anza, 652 F.3d 310, 323 (2d Cir. 2011) (stating that under Rule 8,
pleadings must “give the defendant fair notice of what the ... claim is and the
grounds upon which it rests”). It is true that New York law permits a Plaintiff
to hold two tortfeasors jointly and severally liable where it is unclear how
responsibility should be apportioned between two actors; but “[t]he rationale
for such liability is that the wrongdoers are considered part of a joint enterprise
and a mutual agency ‘such that the act of one is the act of all and liability for
all that is done is visited upon each.’” Matter of Seagroatt Floral Co., Inc., 78
N.Y.2d 439, 448 (1991) (quoting Ravo v. Rogatnick, 70 N.Y.2d 305, 309 (1987)).
The TAC presents no facts suggesting that Dish and DirecTV acted in concert
such that joint and several liability could appropriately be alleged, nor does it
contain any indication that joint and several liability is in fact being asserted,
beyond the single phrase “either or both of the Defendants.” Rather, the TAC
alleges that Dish and DirecTV are wholly separate companies, with no apparent
connection to each other at all (except perhaps as competitors, insofar as both
13
companies are alleged to conduct similar businesses). (TAC ¶¶ 3-4). Thus, a
joint and several liability theory does not apply to the present matter, and the
allegation that “either or both of the Defendants” should be liable for the
purportedly negligent installations fails to provide either Defendant with
sufficient notice of their potential liability, or to present a claim that rises above
the speculative level. 3
Turning to the TAC’s statements regarding the relevant negligent acts,
Plaintiff alleges that some unidentified actors carelessly and improperly
performed installations on Defendants’ behalf, thereby causing significant
damage to Plaintiff’s property. (TAC ¶¶ 7, 17). However, by stating that
Defendants acted “through their agents, servants, employees, contractors or
subcontractors,” the TAC fails to specify under what theory Defendants should
be held liable for the actions of these John Doe installers. (Id. at ¶ 7). The
vague nature of Plaintiff’s allegation might be remedied if the TAC provided
additional information from which the applicable theory of liability could be
discerned. There are several possible theories available: (i) if Defendants have
an employer-employee relationship with the negligent actors, the Defendants
may be held vicariously liable for their employees’ negligence; (ii) Defendants
may be found to have a non-delegable duty of care to perform the installations
3
Plaintiff includes a spreadsheet with its TAC, listing 302 dishes bearing a DirecTV logo
and 75 dishes bearing a Dish Network logo as having been removed from Plaintiff’s
buildings. (TAC Ex. 1). However, Plaintiff does not allege the significance of this
information: Whether, for instance, each company only oversees installation of dishes
bearing its own brand, or whether customers seeking to use one Defendant’s
telecommunication — and installation — services can choose to provide equipment
produced by the other, is simply not alleged. Thus, the spreadsheet fails to clarify the
TAC’s ambiguous assertion regarding each Defendant’s liability.
14
in an appropriate manner, regardless of whether the installers were
Defendants’ employees; or (iii) Defendants may be found directly liable, not for
the installations themselves, but for negligent hiring, retention, or supervision
of the John Doe actors. But the TAC provides no basis upon which to discern
which, if any, of these theories is being alleged.
Under New York law, “there is no absolute rule for determining whether
[an actor] is an independent contractor or an employee.” Makarova v. United
States, 201 F.3d 110, 114 (2d Cir. 2000) (quoting Mace v. Morrison & Fleming,
44 N.Y.S.2d 672, 674 (3d Dep’t 1943)). Courts focus their inquiries, however,
on the extent to which the employer exercises control over the hired party, and
whether the employer has “the right to direct what will be done and when and
how it will be done.” Id.; accord Jurgens v. Poling Transp. Corp., 113 F. Supp.
2d 388, 400 (E.D.N.Y. 2000). The TAC alleges virtually nothing about the
connection between Defendants and the John Does who installed the relevant
equipment, beyond the vague statement that Defendants acted “through their
agents, servants, employees, contractors or subcontractors, including without
limitation John Does 1 through 10.” (TAC ¶ 7).
The TAC does not clearly allege that the actors were “employees,” even in
conclusory form — a deficiency compounded by the absence of facts from
which the Court could discern whether and to what extent Defendants
exercised control over the direct actors. Rather, the TAC describes the John
Doe parties as “individuals and/or corporations and/or entities … who
performed the illegal installations[.]” (TAC ¶ 5). The paragraph of the TAC
15
describing these “individuals and/or corporations and/or entities” does not
allege an employment relationship between the John Does and Defendants;
indeed, one might plausibly infer that they are wholly separate entities, insofar
as the John Does are alleged to “have offices located within the State of New
York,” while Defendants are not. (Id.). The Court does, of course, resolve all
ambiguities in Plaintiff’s favor at this stage of the proceedings; but the TAC
provides no indication that Defendants had an employer-employee relationship
with the John Doe actors, and the Court cannot speculate concerning facts
that are wholly absent from the pleadings. The TAC thus fails to allege
negligence predicated on an employer-employee relationship between
Defendants and the John Doe actors.
Considering next whether Defendants might nevertheless be vicariously
liable for the John Does’ actions, even absent any employment relationship, the
Court again finds that the TAC fails to allege facts to support such a finding.
As discussed above, a defendant may be held liable for the negligence of its
independent contractor where the defendant is under a statutory or
contractual duty to supervise or perform the relevant tasks; the defendant is
responsible for keeping the relevant premises safe; or the work being performed
on the defendant’s behalf poses inherent dangers, even when performed with
care. Rosenberg, 79 N.Y.2d at 668. The TAC alleges none of these factors.
Plaintiff makes no mention of any statute governing liability for the installation
of telecommunications equipment, nor of any contract between Plaintiff and
Defendants; Defendants are not alleged to have any responsibility for
16
maintaining safe conditions on the relevant premises (to the contrary, Plaintiff
alleges that it itself bears that responsibility); and nothing in the TAC suggests
that the installation work performed by the John Does posed inherent danger.
Thus a claim for Defendants’ vicarious liability cannot be discerned from the
TAC.
Finally, the TAC does not state any facts regarding Defendants’ hiring,
retention, or supervision of the John Doe installers. The TAC does assert that
“Defendants had both actual and constructive notice of the conditions [of the
buildings] and/or the conditions have existed for so long a period of time that
the Defendants knew or should have known of such conditions.” (TAC ¶ 22).
How Defendants, two large telecommunications companies, would or should
have known about water leakage that occurred in Plaintiff’s buildings after
their equipment was installed is not explained. Furthermore, the fact that
water damage has been present in Plaintiff’s buildings for some time now does
not support an inference that Defendants knew or should have known, at the
time they hired the John Does to perform the installations, “of the [John Does’]
propensity for the conduct which caused the injury.” Schiffer, 879 N.Y.S.2d at
522 (citation omitted). No timeline is given for the installation of the
equipment. Hence one cannot even infer that Defendants should have learned
of the John Does’ injurious propensities by supervising the earlier installations;
as far as one can glean from the TAC, the installations may have all occurred at
approximately the same time, leaving no opportunity for the fruits of the John
Does’ negligence to come to light. In short, the TAC does not allege facts that
17
suggest direct liability against Defendants for negligent hiring, supervision, or
retention, let alone facts sufficient to “nudge[] [Plaintiff’s] claim[] across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570.
This is Plaintiff’s fourth attempt at pleading, yet the TAC still fails to
specify how or why Defendants are allegedly responsible for the negligent
installations here at issue. The Court recognizes that “Fed. R. Civ. P. 8(a)(2)
requires only a short and plain statement of the claim showing that the pleader
is entitled to relief, in order to give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.” Ideal Steel Supply Corp., 652
F.3d at 323 (internal quotation marks omitted). The TAC fails to notify
Defendants of the ground upon which Plaintiff’s assertion of Defendants’
negligence rests. The only sentence in the TAC regarding the relationship
between Defendants and the direct tortfeasors is so broad as to encompass
every possible theory of employer liability, and the TAC contains no supporting
facts that would allow the Court to discern which of these theories — if any —
might plausibly apply. Thus, the TAC contains precisely the sort of
“speculative” claim proscribed by Twombly and its progeny; Defendants’ motion
to dismiss Plaintiff’s negligence claim is therefore granted.
D.
The Court Dismisses Any Remaining Claims Against the John Doe
Defendants
Plaintiff argues that the John Does have been properly named as parties
in this case, and that claims against them should remain active. (Pl. Opp. 4).
In regard to Plaintiff’s trespass claim, however, that cause of action fails
against the John Does for the reasons discussed in respect to the named
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Defendants. As for Plaintiff’s negligence claim, the Court dismisses that cause
of action because allowing amendment to name the John Does would be futile:
Specifically, substituting in named parties for the John Does would, according
to the pleadings, destroy the Court’s subject matter jurisdiction over this case.
Cf. Johnson v. City of N.Y., No. 12 Civ. 4431 (KPF), 2013 WL 6171937, at *8
(S.D.N.Y. Nov. 25, 2013) (granting summary judgment against John Does
where granting leave to amend to name the John Does would be futile).
Federal courts have original jurisdiction over civil actions in which the
parties have diversity of citizenship and the amount in controversy exceeds
$75,000. 28 U.S.C. § 1332(a). Diversity jurisdiction requires complete
diversity, meaning that no plaintiff has the same citizenship as any defendant.
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). While
the citizenship of John Does is disregarded for the purposes of ascertaining a
court’s subject matter jurisdiction over an action removed from state court, see
28 U.S.C. § 1441(b)(1), where a plaintiff seeks to substitute a diversitydestroying defendant after removal, district courts “may deny joinder, or permit
joinder and remand the action to the State court,” id. § 1447(e).
Plaintiff has specifically alleged that the John Does “are residents of the
State of New York.” (TAC ¶ 5). The Court recognizes that citizenship is the
touchstone for diversity, not residency. However, “[a]n individual’s residence at
the time a lawsuit is commenced provides prima facie evidence of his
domicile” — which in turn determines citizenship. BrandAid Mktg. Corp. v.
Biss, No. 03 Civ. 5088 (WHP), 2003 WL 21998972, at *2 (S.D.N.Y. Aug. 21,
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2003) (quoting Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y.
1986)). Here, the John Doe actors, who allegedly performed the installations,
are alleged to be New York citizens. Plaintiff also purports to be a New York
citizen. (TAC ¶ 2). Thus, rather than waiting for a potential motion to join and,
in the event such motion succeeds, subsequently remanding the matter to
state court, the Court dismisses Plaintiff’s negligence claim against the John
Does without prejudice to refiling in state court. 4
E.
Defendants’ Motions for Attorneys’ Fees Are Denied
In its July 27 Order, the Court stated that “[b]ecause Plaintiff’s
delinquency has caused some cost to Defendants — albeit not enough
prejudice to deny the request for leave to amend — the Court will entertain
Defendants’ applications for costs associated with the initial motion to
dismiss.” (Dkt. #48). The Court has accordingly reviewed Defendants’ motions
for attorneys’ fees and costs associated with their motions to dismiss the SAC,
and while it recognizes that imposing such fees and costs upon Plaintiff is
within its power, it declines to do so.
4
The citizenship of the John Does is potentially complicated by the fact that Plaintiff
alleges the John Does as “individuals and/or corporations and/or entities who are
residents of the State of New York.” This is because corporations are not typically
discussed as having “residency” for jurisdictional purposes, but rather are deemed
citizens of the state or states in which they are incorporated and have their principal
place of business or “nerve center.” Hertz Corp. v. Friend, 559 U.S. 77, 81 (2010); 28
U.S.C. § 1332(c)(1). However, should Plaintiff seek to substitute a named corporation or
entity for a John Doe, its claim will encounter a separate difficulty, inasmuch as
corporations can only act through their individual employees or contractors, and, just
as with Defendants, the TAC provides no facts indicating how a John Doe corporation
would be liable for the actions of the individuals who actually performed the defective
installations.
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Awarding attorneys’ fees as a condition of granting leave to amend
provides a means to “mitigate the additional expenses that [defendants] …
incurred … attributable to plaintiff’s counsel’s failure to plead his client’s case
properly.” Glob. Energy & Mgmt., LLC v. Xethanol Corp., No. 07 Civ. 11049
(NRB), 2009 WL 464449, at *4 (S.D.N.Y. Feb. 24, 2009). In the present matter,
however, the Court has concluded that any additional costs or prejudice to
Defendants was minimal in light of the substantial similarity between the
Second and Third Amended Complaints, and Defendants’ resulting ability to
largely recycle the motions prepared for the Second Amended Complaint when
responding to the Third. Furthermore, while ultimately unsuccessful,
Plaintiff’s amendments to its TAC constituted a good-faith effort to remedy
defects in its SAC. Thus while the Court acknowledges that Defendants may
have suffered an inconvenience, and perhaps modest incremental legal fees, as
a consequence of Plaintiff’s failure to follow proper procedure, it does not
believe that further mitigation is warranted. Defendants’ motions for attorneys’
fees and costs associated with their motions to dismiss the SAC are therefore
denied.
CONCLUSION
For the reason given in this Opinion, Defendants’ motions to dismiss are
GRANTED; their motions for attorneys’ fees and costs are DENIED; and the
remaining negligence claim against John Does 1 through 10 is DISMISSED
without prejudice to refiling in state court. The Clerk of Court is directed to
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terminate all pending motions, adjourn all remaining dates, and close this
case.
SO ORDERED.
Dated:
March 15, 2016
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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