Jennifer Miles, Plaintiff, v. Simmons University and Kyle D. Killian, Defendants.
File No. 20-cv-2333 (ECT/KMM)
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
January 20, 2021
Eric C. Tostrud
CASE 0:20-cv-02333-ECT-KMM Doc. 23 Filed 01/20/21
OPINION AND ORDER
Raphael Coburn and Sean R. Somermeyer, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant Simmons University.
Andrew L. Marshall, Bassford Remele, PA, Minneapolis, MN, for Defendant Kyle D. Killian
While participating in an online class for her graduate program through Simmons University, Jennifer Miles used the restroom unaware that she was visible to other class participants via her webcam. In this diversity case removed from Minnesota state court, Miles claims that the professor who taught the class, Kyle Killian, recorded a video of the incident on his cell phone and then posted it online, where it went viral. Miles alleges that Killian committed several torts and that Simmons is vicariously liable for Killian‘s torts, all under Minnesota law. Simmons has moved to dismiss the claims against it under
I
According to the Complaint,1 Miles enrolled as a graduate student in the School of Social Work at Simmons University, a Massachusetts-based institution, in 2017. Compl. ¶¶ 2–3, 8 [ECF No. 1-1]. She participated in some “clinical internships” in person, but all of her classes were online. Id. ¶ 8. Around January 2019, Simmons began using Zoom—an online platform that provides “teleconferencing, telecommuting, and distance education services“—for its remote courses. Id. ¶¶ 13–15. Students would participate in live virtual class sessions from their homes, and the sessions would be recorded for “study purposes only.” Id. ¶¶ 16, 24. Those recordings were “confidential” and “restricted to class participants.” Id. ¶¶ 24–25.
In the winter spanning 2018 and 2019, Killian taught an online course through Simmons called “Family Approaches,” and Miles was one of the enrolled students. Id. ¶¶ 9–10. In this “particularly privacy-sensitive course,” Killian would lead the students in discussions that centered around “therapeutic approaches for oppressed and marginalized clients, working with diverse populations, cultural humility, and ethics and boundaries in social work.” Id. ¶¶ 11–12, 19, 27–28.
At one point during a virtual class session in February of 2019, Miles needed to use the restroom. Believing that her webcam was off and that she was not visible to the other course participants, she took her laptop to the restroom with her “to ensure she did not miss any discussion.” Id. ¶¶ 17, 21. It turned out, unfortunately, that Miles was visible, so Killian and the other students could see her using the restroom. Id. ¶ 22. As soon as she realized this, she
The incident resurfaced in March 2020 when the COVID-19 pandemic caused Zoom usage to “increase[] dramatically.” Id. ¶ 30. After receiving a “flurry of calls and text messages from family and friends,” Miles discovered that someone had posted a cell phone video of the February 2019 Zoom meeting in which she was seen using the restroom to Twitter. Id. ¶¶ 31–32, 40. Miles‘s full name is visible throughout the video. Id. ¶¶ 34, 38. Killian‘s image appears in the upper left hand corner of the Zoom window. Id. ¶¶ 36–37. According to Miles, this means that the cell phone video was taken from Killian‘s computer screen and therefore that he was the one to record the video and post it online. Id. ¶¶ 35, 42. Killian‘s employment with Simmons was terminated sometime “after March 2020.” Id. ¶ 43.
Meanwhile, the video went “viral.” Id. ¶ 31. It was viewed more than 7 million times and led to “countless” tweets, Facebook posts, YouTube videos, and other reposts. Id. ¶¶ 32–33, 44. Celebrities have referenced the video on television, and Saturday Night Live aired a parody of it in April 2020. Id. ¶¶ 48–49. Although Twitter eventually removed the video and Miles has made “efforts to demand removal of the video from all platforms,” the video “continues to be reposted,” and an internet search of Miles‘s name reveals “thousands of results” related to the video. Id. ¶¶ 33, 45–47. Miles was understandably humiliated, and she is worried that the video will jeopardize her employment prospects in the social work field. Id. ¶¶ 51–52.
Miles sued Simmons and Killian in state court to recover for her injuries. She claims that Killian is personally liable for the torts of publication of private facts, intrusion upon seclusion, negligent infliction of emotional distress, and intentional infliction of emotional distress. Id. ¶¶ 54–59, 67–72, 82–86, 95–100. And she claims that Simmons is vicariously liable for Killian‘s commission of each one of those torts. Id. ¶¶ 60–66, 73–81, 87–94, 101–09. Killian, who was originally pro se but is now represented by counsel, filed an answer in which he denied Miles‘s allegations. ECF No. 6. After Defendants removed the case to federal court, Simmons moved to dismiss the claims against it under
II
In reviewing a motion to dismiss for failure to state a claim under
III
Simmons raises essentially two issues in its motion. The first is whether Miles has adequately alleged a basis to hold Simmons liable for Killian‘s actions. See Def.‘s Mem. at 5–9 [ECF No. 11]. If Simmons prevails on this issue, then it must be dismissed as a defendant because all of
Under Minnesota law,2 “an employer is vicariously liable for the torts of an employee committed within the course and scope of employment.” Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999) (citation omitted); see also Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 745 (Minn. Ct. App. 2000). Simmons argues that Miles has not plausibly alleged that Killian was acting within the scope of his employment when he recorded and posted the video of Miles‘s Zoom class session. Def.‘s Mem. at 6–8. Miles has three responses: (1) that the scope of Killian‘s employment “cannot be resolved on a motion to dismiss“; (2) that she has plausibly alleged
that Killian acted within the scope of his employment; and (3) that she has plausibly alleged an alternative basis for vicarious liability—i.e., that Killian‘s misconduct was aided by his agency relationship with Simmons. Pl.‘s Mem. at 9–15 [ECF No. 15].
A
Miles‘s argument that the scope of Killian‘s employment “cannot be resolved on a motion to dismiss” seems to be the subject of competing authorities, but the better interpretation of the interplay between federal pleading standards and Minnesota law is that this issue may be resolved on a
A rule excluding fact questions from consideration on a
Miles must therefore plead enough facts to make it plausible that Killian was acting within the scope of his employment with Simmons. If she has not done so, then dismissal is appropriate. See Davis, 2019 WL 174911, at *2–3; see also Deleski Ins. Agency, 2013 WL 6858573, at *6; cf. Snilsberg, 614 N.W.2d at 745 (explaining that
B
The next step is to apply the plausibility standard to Miles‘s Complaint. Although she states multiple times in the Complaint that Killian acted within the scope of his employment, that conclusory allegation alone is not enough. See Compl. ¶¶ 42, 63, 80, 93, 108; see also Iqbal, 556 U.S. at 680–81. Under Minnesota law, the standard for determining whether an employee‘s conduct occurred within the scope of employment depends on whether the conduct was intentional or negligent. “[A]n employer is liable for an employee‘s intentional misconduct if ‘(1) the source of the [tort] is related to the duties of the employee,’ and (2) ‘the [tort] occurs within work-related limits of time and place.‘” Frieler, 751 N.W.2d at 583 (Gildea, J., opinion and dissent, Part II, writing for the court on this issue) (quoting Fahrendorff, 597 N.W.2d at 910). When the alleged conduct is negligent, courts consider two additional factors: (1) whether the “conduct was to some degree in furtherance of the employer‘s interests“; and (2) whether the “employee was authorized to perform the type of conduct.” Snilsberg, 614 N.W.2d at 745. Both standards will be applied here because Miles alleges both intentional and negligent conduct.
Start with Miles‘s allegations of intentional conduct. “The critical inquiry to determine if the source of the harm is related to the duties of the employee is whether the employee‘s acts were foreseeable.” Yath, 767 N.W.2d at 47; see also Hartford Fire Ins. Co., 727 F. Supp. 2d at 770 (“The Court cannot overstate the importance of the foreseeability requirement under Minnesota law.“). An employer need not actually foresee the misconduct so long as it is “not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer‘s business.” Hagen, 633 N.W.2d at 505 (quoting Fahrendorff, 597 N.W.2d at 912). “[F]oreseeability is commonly proven, or a question of fact is raised, when a party establishes that the type of tortious conduct involved is a well-known industry hazard.” Id. To determine whether an employee‘s conduct occurred within the work-related limits of time and place, courts usually “consider whether the alleged conduct occurred on the employer‘s premises, whether the employee had finished working for the day and ‘clocked out,’ and whether the employee was in that location for job-related purposes.” Cruz v. TMI Hospitality, Inc., No. 14-cv-1128 (SRN/FLN), 2015 WL 5996383, at *18 (D. Minn. Oct. 14, 2015); see also Rau v. Roberts, 640 F.3d 324, 328–29 (8th Cir. 2011); Radmer v. OS Salesco, Inc., 218 F. Supp. 3d 1023, 1033–34 (D. Minn. 2016).
Here, the Complaint does not allege facts plausibly establishing these elements. The Complaint does not allege facts plausibly showing that Killian‘s acts were or should have been foreseeable to Simmons. The Complaint never mentions this requirement explicitly. It neither uses the word “foreseeable” nor any of its variants, and it does not otherwise seem to acknowledge this element of Miles‘s claims against Simmons. Miles does not allege, for example,
Nor has Miles plausibly alleged that Killian was acting within the “work-related limits of time and place” when he recorded and posted the video. She alleges only that the video appeared online before March 23, 2020, Compl. ¶¶ 31–32, and that “[o]n information and belief, Killian‘s employment with Simmons was terminated after March 2020[,]” id. ¶ 43. These dates (really, date ranges) are not informative. The first only identifies a date by which the video appeared online, and the second describes a very indefinite period. Neither says anything about the time Killian was working unless one assumes he was working all the time, but the Complaint doesn‘t allege that. Granting that defining the work-related limits of place may prove unconventional when an employee is working from home, the Complaint alleges nothing about this question. It alleges nothing about the circumstances under which Killian posted the video. Something more is required to “nudge[]” Miles‘s vicarious-liability claim “across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (citation omitted); see Davis, 2019 WL 174911, *3 (granting a motion to dismiss where a plaintiff pleaded no facts demonstrating that a retail store should have reasonably foreseen that its employee would get into a physical altercation at work).
The additional factors that apply when a plaintiff alleges negligent conduct do not change this result. Because Miles alleges that Killian violated Simmons‘s policies, it is clear that he was not “authorized to perform the type of conduct” at issue. Snilsberg, 614 N.W.2d at 745. Moreover, nothing in the Complaint suggests that Killian‘s alleged actions were “to some degree in furtherance of the employer‘s interests.” Id. It is difficult to imagine how they could have been.
C
In her brief, Miles recites Minnesota‘s standards for determining the scope of employment but then pivots to argue that
The aided-by-agency theory appears in the Restatement (Second) of Agency § 219. That section first states the familiar rule that “[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” Id. § 219(1). It then provides a list of exceptions to the rule that “[a] master is not subject to liability for the torts of his servants acting outside the scope of their employment.” Id. § 219(2). Among those exceptions is when an agent “was aided in accomplishing the tort by the existence of the agency relation.” Id. § 219(2)(d). So, as an initial matter, Miles‘s argument that the aided-by-agency theory is a vehicle for concluding that Killian acted within the scope of his employment is flawed, because the theory seems to start with the premise that an employee is acting outside the scope of employment.
There are two other problems with this argument. First, Minnesota courts have, so far, only recognized the aided-by-agency theory in a specific, narrow context: to establish an employer‘s vicarious liability “for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over a victimized employee.” Frieler, 751 N.W.2d at 570; see also Schmitz v. U.S. Steel Corp., 831 N.W.2d 656, 672–73 (Minn. Ct. App. 2013). Miles has cited no Minnesota cases—and research has identified none—that apply the theory to tort liability more broadly. See Popovich v. Allina Health Sys., 946 N.W.2d 885, 890–91 (Minn. 2020) (reviewing the Minnesota Supreme Court‘s “vicarious liability precedent” and mentioning only “respondeat superior“—i.e., actions taken within the scope of employment—and “apparent authority,” without mentioning the aided-by-agency theory). Miles relies on federal cases recognizing the theory for claims under the federal Driver‘s Privacy Protection Act, see, e.g., Orduno v. Pietrzak, 932 F.3d 710, 718–19 (8th Cir. 2019), but those cases did not involve Minnesota law. To apply the theory here would be novel.
There is reason to believe that the Minnesota Supreme Court would not adopt the aided-by-agency theory as an alternative to scope-of-employment liability for torts more generally, as Miles suggests. See Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010) (“When there is no state supreme court case directly on point, our role is to predict how the state supreme court would rule if faced with the [same issue] . . . .” (internal quotation marks and citation omitted)). Multiple state high courts, when presented with the opportunity, have declined to do so. See Zsigo v. Hurley Med. Ctr., 716 N.W.2d 220, 223–27 (Mich. 2006); Groob v. KeyBank, 843 N.E.2d 1170, 1179–80 (Ohio 2006). The Michigan Supreme Court explained that such a broad exception would “swallow[]” the general rule of nonliability for actions outside the scope of employment and would functionally “subject[] employers to strict liability.” Zsigo, 716 N.W.2d at 226–27. Moreover, those states that have adopted the theory have—consistent with Frieler—generally limited their holdings to cases involving unique power dynamics between the employee and the victim. Compare Doe v. Forrest, 853 A.2d 48, 60–67 (Vt. 2004) (applying the aided-by-agency theory to a sexual assault by a police officer, based in part on the “extraordinary power that a law enforcement officer has over a citizen“), with Doe v. Newbury, 933 A.2d 196, 198–99 (Vt. 2007) (declining to apply the theory where a pastor had allegedly sexually abused a minor parishioner); see also Spurlock v. Townes, 368 P.3d 1213, 1216–17 (N.M. 2016); Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183, 1199 (Alaska 2009). Finally, although perhaps not dispositive, it is worth noting that the Restatement (Third) of Agency omits the aided-by-agency theory as a “distinct basis” of vicarious liability. See Restatement (Third) of Agency § 7.08 cmt. b (Oct. 2020 Update). Given these authorities, the better conclusion is that Miles cannot rely on the theory to establish vicarious liability for the torts in this case.
Second, if Miles could rely on the aided-by-agency theory, her allegations do not seem plausible. When recognizing the theory in the context of sexual harassment by an employee‘s supervisor, the Court in Frieler emphasized “the power a supervisor wields over those being supervised.” Frieler, 751 N.W.2d at 570; accord Spurlock, 368 P.3d at 1217. The justification for applying the theory is that “the tortfeasor has capitalized on the power that the employer gave the tortfeasor, and not merely the opportunity.” Spurlock, 368 P.3d at 1217 (quoting Pena v. Greffet, 110 F. Supp. 3d 1103, 1135 (D.N.M. 2015)). Although it is true that Killian, as a professor, was in a position of authority over Miles, there is no indication in the Complaint that this authority was what enabled him to commit the alleged torts. The tortious conduct did not, for example, require Killian to exert any pressure over Miles. And, as noted above, Miles alleges that the virtual class sessions were recorded for “students’ study purposes” and that “access to the recordings was restricted to class participants.” Compl. ¶ 24. In other words, Killian‘s position of authority didn‘t give him any more access to the recordings—or, presumably, any greater ability to record the video on his cell phone—than any student enrolled in his course.
IV
There is a question whether the dismissal of Miles‘s claims against Simmons should be with or without prejudice. After removal and after Simmons filed its motion to dismiss, Miles could have, but did not, amend her complaint. See
Federal courts have disagreed to some extent over whether a dismissal under
Whichever default rule applies, however, courts ultimately have discretion to decide between a with-prejudice and without-prejudice dismissal. See Paisley Park Enters. v. Boxill, 361 F. Supp. 3d 869, 880 n.7 (D. Minn. 2019). A dismissal with prejudice is typically appropriate when a plaintiff has shown “persistent pleading failures” despite one or more opportunities to amend, Milliman, 2013 WL 5426049, at *16; see Reinholdson v. Minnesota, 01-cv-1650 (RHK/JMM), 2002 WL 32658480, at *5 (D. Minn. Nov. 21, 2002) (adopting report and recommendation), or when the record makes clear that any amendment would be futile, see Paisley Park, 361 F. Supp. 3d at 880 n.7. On the other hand, when a plaintiff‘s claims “might conceivably be repleaded with success,” particularly where discovery directed toward other, non-dismissed defendants might reveal yet-unknown evidence implicating a dismissed defendant, dismissal without prejudice may be justified. Washington v. Craane, No. 18-cv-1464 (DWF/TNL), 2019 WL 2147062, at *5 (D. Minn. Apr. 18, 2019), report and recommendation adopted, 2019 WL 2142499 (D. Minn. May 16, 2019).
The better answer is to dismiss Miles‘s claims against Simmons without prejudice. To survive a motion to dismiss, Miles must plausibly allege that Killian was acting within the scope of his employment, and she has not done so. But because the claims against Killian will proceed into discovery, it is possible that Miles will ultimately uncover evidence that allows her to plead a plausible claim against Simmons. At the hearing on Simmons‘s motion, Miles‘s counsel acknowledged that there were no more relevant factual allegations to add at this point, and he requested that any dismissal be without prejudice in case discovery revealed more. Under these circumstances, Miles‘s failure to pursue a preemptive amendment does not require a dismissal with prejudice.
ORDER
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS ORDERED that:
- Defendant Simmons University‘s Motion to Dismiss [ECF No. 9] is GRANTED.
- Counts II, IV, VI, and VIII of the Complaint [ECF No. 1-1] are DISMISSED WITHOUT PREJUDICE.
Date: January 20, 2021
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court