Plaintiff Stephanie Rosenfeld brings this action under the Electronic Communications Privacy Act ("ECPA"),
Defendants the City, Thompson, Gonzalez, Schaeffer, and Donohue (the "City Defendants") now move to dismiss the complaint
I. BACKGROUND
A. Facts
The following facts are drawn from Plaintiff's complaint and are assumed to be true for purposes of the motion to dismiss.
Plaintiff joined the Kings County District Attorney's Office ("KCDA") as an Assistant District Attorney ("ADA") in January 2006. (FAC ¶ 20.) She worked with Lenich in KCDA's "Red Zone Trial Bureau," a general practice bureau, from approximately 2007 until 2012, when Lenich transferred to the Special Investigations Bureau. (Id. ¶ 23.) Plaintiff was transferred to the KCDA School Advocacy Bureau in July 2016, where she remained until she left KCDA in May 2017. (Id. ¶ 24.)
From 2014 until his death on October 9, 2016, Thompson served as the District Attorney for Kings County, and Gonzalez served as the Deputy District Attorney. (Id. ¶¶ 8-9.) Since October 9, 2016, Gonzalez has served as the District Attorney. (Id. ¶ 9.) At all relevant times, Schaeffer was an Executive Bureau Chief and Donohue was an Assistant Deputy Chief Investigator, both within KCDA. (Id. ¶¶ 10-11.) John/Jane Does 1-5 are alleged to have been employees of KCDA with responsibility for setting and implementing KCDA policy with respect to overseeing wiretap operations. (Id. ¶ 12.) John/Jane Does 6-10 are alleged to have been employees of
From May 2015 through November 28, 2016, Lenich was the Deputy Bureau Chief in charge of Special Investigations at KCDA. (Id. ¶ 25.) Plaintiff alleges the following upon information and belief: Lenich reported to Schaeffer, but had the authority to report and make requests directly to the District Attorney (id. ¶¶ 26-27); Schaeffer, Thompson, and later Gonzalez were responsible for supervising Lenich and overseeing the investigations she was conducting and overseeing (id. ¶ 28); Lenich supervised between two and six ADAs as well as the KCDA wire room staff, which included KCDA employees and members of the New York City Police Department (id. ¶¶ 29-30); Lenich had the authority to set KCDA policy with respect to the operation of a wiretap, the oversight of wiretaps, the documentation required when conducting wiretaps, and reporting requirements of individuals working in the wire room (id. ¶ 32); and Lenich had final decision-making authority within KCDA over whether to seek a wiretap, how a wiretap was set up, and the operation of a wiretap (id. ¶ 33).
Plaintiff alleges that in order to conduct a wiretap, ADAs at KCDA were required to file a wiretap application with a court, along with an affidavit demonstrating the requisite probable cause. (Id. ¶ 34.) Pursuant to KCDA policy, a supervisor, such as Lenich, was required to approve these wiretap applications. (Id. ¶ 35.) Plaintiff alleges upon information and belief that once an order authorizing a wiretap is signed and sealed by a court, it is given to Donohue, who is responsible for ensuring that the order has all necessary signatures and a raised judicial seal and for setting up the wiretap in the KCDA wire room. (Id. ¶¶ 36-37.) She also alleges upon information and belief that all KCDA wiretaps must be conducted out of the KCDA wire room (id. ¶ 38), and that KCDA policy did not permit wiretaps to be conducted using personal laptops (id. ¶ 39). Finally, she alleges upon information and belief that a wiretap order typically authorizes a minimum of two ADAs, as well as all supervisors above them, to review the intercepted communications. (Id. ¶ 40.) Only the individuals named in an authorizing order are permitted to review the communications intercepted pursuant to that order. (Id. )
Plaintiff further alleges upon information and belief that Lenich used KCDA equipment and facilities to intercept, record, and review the oral and electronic communications sent to and/or from Plaintiff's cell phone. (Id. ¶ 58.) Specifically, between approximately June 2015 and December 2015, Lenich intercepted and recorded communications sent to and from Plaintiff's private cell phone. (Id. ¶ 41.) To do so, Lenich forged the signature of New York State Supreme Court Justices on documents purporting to be judicial wiretap orders. (Id. ¶ 42.) Plaintiff alleges upon information and belief that Lenich showed these forged orders, none of which had raised judicial seals, to Donohue, who reviewed and accepted them. (Id. ¶¶ 43-44.) Plaintiff also alleges upon information and belief that Lenich and/or Donohue sent seven forged orders (or caused them to be sent) to Plaintiff's cell phone provider to allow for the interception and recording of the communications transmitted to and from Plaintiff's private cell phone. (Id. ¶¶ 45-46.) Lenich recorded and reviewed Plaintiff's private conversations with friends and family, none of whom consented to having those communications intercepted or recorded. (Id. ¶¶ 47-50.) In or about and between May 2015 and November 2016, Lenich also forged multiple search warrants authorizing the seizure of text messages sent to
Plaintiff also alleges upon information and belief that Lenich used information contained in Plaintiff's communications to harass and/or direct others to harass Plaintiff and her family and "alienate affections." (Id. ¶ 53.)
From August 2015 through November 2016, Lenich also used forged court orders and other documents to intercept and record oral and electronic communications from another cell phone not belonging to Plaintiff. (Id. ¶ 54.) The communications intercepted from this other phone included communications sent to and/or from Plaintiff. (Id. ¶ 55.) Plaintiff did not authorize the interception of such communications. (Id. ¶ 56.)
Upon information and belief, Plaintiff alleges that Defendants Thompson, Gonzalez, Schaeffer, and John/Jane Does 1-5 knew or should have known that Lenich was conducting an unlawful wiretapping scheme because Lenich submitted forged judicial orders to Donohue, these forged orders were stored in KCDA, she used KCDA equipment and facilities to conduct her operation, she claimed she was conducting a confidential law enforcement investigation that did not exist, and she needed the assistance of other KCDA employees to conduct this wiretapping operation. (Id. ¶ 63.) Plaintiff alleges upon information and belief that Lenich told other KCDA employees that the wiretapping operation against Plaintiff was part of a confidential law enforcement investigation, which was not true. (Id. ¶¶ 59-60.) Plaintiff alleges that Schaeffer, Thompson, and Gonzalez knew that Lenich was not conducting any law enforcement operation against Plaintiff and that they were responsible for knowing what investigations Lenich was conducting at all times. (Id. ¶¶ 61-62.)
Plaintiff also alleges upon information and belief that Lenich was the subject of multiple EEOC complaints concerning her allegedly erratic and aggressive behavior from fellow ADAs during this period, and that Lenich was ordered to undergo sensitivity training. (Id. ¶ 64.) Plaintiff alleges that these complaints and training alerted or should have alerted the Supervisory Defendants to monitor Lenich more closely. (Id. ¶ 65.) Plaintiff further alleges that the Supervisory Defendants' "deliberate indifference" to Lenich's misconduct violated Section 3-1.3 of the National Prosecution Standards, Third Edition, issued by the National District Attorneys Organization, which requires prosecutors who become aware that "evidence has been illegally obtained" to "take affirmative steps to investigate and remediate such problems." (Id. ¶ 67.) Plaintiff also alleges that their behavior violated Section 2.12(f) of the American Bar Association's Standards on Prosecutorial Investigations, which states that prosecutors need to stay informed about the activities of personnel using electronic surveillance and ensure that required procedures are being followed. (Id. )
On or around November 28, 2016, KCDA filed a criminal complaint in Kings County Criminal Court charging Lenich with two counts of eavesdropping under Penal Law § 250.05 and two counts of criminal possession of a forged instrument in the second degree under Penal Law § 170.25. (Id. ¶ 68.) The complaint alleged that Lenich forged court orders authorizing eavesdropping and "requested and was provided computerized access to review" and did review communications over Plaintiff's cell phone. (Id. ¶¶ 69-70.) Plaintiff
Lenich's arrest was covered extensively in the media. (Id. ¶ 74.) Plaintiff's name and the fact that Lenich had wiretapped her phone was leaked to the media and her name appeared in stories for multiple days. (Id. ) Reporters staked out Plaintiff's home and "accosted" her and her family. (Id. )
Neither Plaintiff nor any party to the intercepted communications consented to anyone from KCDA using or disclosing Plaintiff's private communications. (Id. ¶ 78.) Nonetheless, Plaintiff alleges upon information and belief that Schaeffer, Gonzalez, Donohue, and Does 1-10 received, used, reviewed, and disclosed to one another and to others copies of communications that they knew had been unlawfully intercepted from Plaintiff's phone. (Id. ¶¶ 75-77.)
On December 6, 2016, Plaintiff's counsel sent a letter to KCDA requesting that KCDA: (1) provide her with a copy of all intercepted communications; (2) provide her with copies of all documentation used by Lenich to obtain and record her private communications; (3) destroy copies of the intercepted communications in the possession of KCDA or maintain all other copies under seal; (4) identify all individuals to whom copies of Plaintiff's private communications had been provided; (5) reveal the results of KCDA's search of Lenich's home and the likelihood that Lenich maintained copies of Plaintiff's communications; and (6) provide Plaintiff's counsel with notice of any attempt to review or obtain Plaintiff's intercepted communications. (Id. ¶ 79.) In response, KCDA refused to identify the individuals who reviewed Plaintiff's communications, return her communications, or confirm that copies had been destroyed. (Id. ¶ 80.) Plaintiff alleges, upon information and belief, that Gonzalez disclosed or directed the disclosure of Plaintiff's communications to the United States Department of Justice ("DOJ"). (Id. ¶ 81.) Plaintiff also alleges that in or around January 2018, KCDA disclosed her communications to a Justice of the New York Supreme Court (Justice Chun) without Plaintiff's authorization. (Id. ¶ 83.) She alleges upon information and belief that the Supervisory Defendants authorized this disclosure, knowing that they had been illegally obtained. (Id. ¶ 83.) KCDA currently maintains copies of Plaintiff's communications. (Id. ¶ 82.)
On or about March 27, 2017, a federal grand jury indicted Lenich on two counts of illegal interception of communications in violation of
Plaintiff was forced to leave her job at KCDA in May 2017. (Id. ¶¶ 87, 89.) She felt she could no longer remain at KCDA because KCDA employees were gossiping about her, her supervisors looked at her differently, and defense attorneys and judges treated her differently. (Id. ¶ 88.) Plaintiff has made significant efforts, but
Plaintiff served a written and sworn Notice of Claim upon Defendants within ninety days of Plaintiff's discovery of the unlawful wiretapping scheme. (Id. ¶ 96.)
B. Procedural History
Plaintiff commenced this action on December 14, 2017. (See Compl. (Dkt. 1).) She filed an amended complaint on February 1, 2018. (See FAC.) The amended complaint asserts six causes of action. Plaintiff alleges first that all Defendants violated the ECPA,
Lenich answered the amended complaint on February 15, 2018. (Answer (Dkt. 24).) City Defendants now move for the dismissal of all claims against them. (Mem.)
II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of a plaintiff's complaint. Patane v. Clark,
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
III. DISCUSSION
A. ECPA Claim
Subject to certain exceptions, Title III of the ECPA makes it unlawful to "intentionally intercept[ ], endeavor[ ] to intercept, or procure[ ] any other person to intercept" a wire, oral, or electronic communication, or to "disclose" or "use" "the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained in violation of [the ECPA]." 18U.S.C. § 2511(1)(a), (c), (d). The ECPA defines "contents" as "any information concerning the substance, purport, or meaning of [the intercepted] communication."
Plaintiff alleges that the City Defendants violated the ECPA in several ways. First, she claims "[u]pon information and belief" that Schaeffer, Gonzalez, and Donohue all unlawfully disclosed her communications "to one another, as well as others." (FAC ¶ 77.) Second, she alleges upon information and belief that Gonzalez unlawfully "disclosed, or directed the disclosure of, Plaintiff's private communications" to the DOJ. (Id. ¶ 81.) Third, she alleges "[u]pon information and belief" that Thompson, Gonzalez, and Schaeffer authorized the disclosure of Plaintiff's private communications to a Justice of the New York Supreme Court (the "Supreme Court Justice"). (Id. ¶ 83.) Finally, she asserts that the City is responsible for the alleged misconduct by Schaeffer, Gonzalez, Donohue, Thompson, and Lenich under the doctrine of respondeat superior. (Pl. Opp'n at 9.) The court first discusses Plaintiff's claim against the individual City Defendants and then her claim against the City.
1. Individual City Defendants
Plaintiff alleges "[u]pon information and belief" that (1) Schaeffer, Gonzalez, and Donohue, and Does 1-10 "received, used, reviewed, and disclosed copies of telephonic and electronic communications that were unlawfully intercepted from Plaintiff's private cellular phone" (FAC ¶ 75); (2) Schaeffer, Gonzalez, Donohue, and Does 1-10 "knew Plaintiff's communications had been unlawfully obtained at the time they received, used, reviewed, and disclosed them because they knew Lenich had forged court orders to wiretap Plaintiff's cell phone (id. ¶ 76); and (3) Schaeffer, Gonzalez, Donohue, and Does 1-10 disclosed these communications "to one another, as well as others, without Plaintiff's
Plaintiff describes the complaint as alleging that individual City Defendants had access to her communications, that they knew her communications had been unlawfully intercepted, and that "characterizations about the content of her communications ended up in newspaper articles and became a part of office and legal community gossip." (Id. at 10 (citing FAC ¶¶ 74, 95).) "These rumors arose," Plaintiff explains in her opposition brief, "because those who had access to Plaintiff's communications-the [individual City Defendants and Lenich] and other KCDAO employees (John Does)-illegally disclosed information about their contents." (Pl. Opp'n at 10.) However, this description of the complaint is overly optimistic. With respect to "access," Plaintiff points the court to paragraph 40 of the complaint, in which she merely asserts that "[u]pon information and belief, a [legal] wiretap order typically authorizes a minimum of two ADAs, as well as all of the supervisors above those ADAs in the chain of command, to review the intercepted communications." (FAC ¶ 40; see Pl. Opp'n at 10.)
Without additional factual allegations suggesting that there was in fact an unlawful disclosure of Plaintiff's communications, Plaintiff's conclusory statement "[u]pon information and belief" that a group of Defendants "all disclosed" her communications "to one another and to others" (FAC ¶ 77) does not "[ ]cross the line from conceivable to plausible." See Iqbal,
A litigant cannot merely plop 'upon information and belief' in front of a conclusory allegation and thereby render it non-conclusory. Those magic words will only make otherwise unsupported claims plausible when 'the facts are peculiarly within the possession and control of the defendant or where the belief is based on factual information that makes the inference of culpability plausible.'
Similarly, Plaintiff's allegation "[u]pon information and belief" that "Gonzalez disclosed, or directed the disclosure of," Plaintiff's communications to the DOJ, knowing that they had been obtained unlawfully,
The only other allegation relevant to this disclosure is Plaintiff's allegation that on March 27, 2017, a federal grand jury indicted Lenich on two counts of illegal interception of communications, (Id. ¶ 84.) However, this fact does not give rise to the inference that the contents of her communications were unlawfully disclosed to the DOJ at any point-or that Gonzalez was involved with that disclosure. Instead, the indictment of Lenich is entirely consistent with lawful conduct: either a disclosure to the DOJ of unprotected information about the wiretapping scheme-for example, Lenich's forged orders and record information concerning the date, time, and target of the unlawful wiretaps-or the disclosure of Plaintiff's communications pursuant to a valid grand jury subpoena-which would be shielded by the ECPA's good faith exception (see
Plaintiff also alleges that in January 2018 KCDA disclosed Plaintiff's communications to a Justice of the New York Supreme Court. (Id. ¶ 83.) She asserts "[u]pon information and belief" that Thompson, Gonzalez, Schaeffer, and Does 1-5 authorized this disclosure. (Id. ) City Defendants counter that they are shielded by the ECPA's good faith defense because the disclosure was made pursuant to the court's order. (Mem. at 8) (citing
Accordingly, the court grants City Defendants' motion to dismiss Plaintiff's ECPA claim with respect to Thompson, Gonzalez, Schaeffer, Donohue, and Does 1-10 and does not consider whether these individual Defendants are entitled to absolute or qualified immunity.
2. Vicarious Liability of the City
Plaintiff also asserts that the City is liable for Lenich's misconduct in unlawfully intercepting Plaintiff's communications under the doctrine of respondeat superior. (FAC ¶ 103.)
Under the New York common law doctrine of respondeat superior, "an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Sclafani v. PC Richard & Son,
"[B]ecause the determination of whether a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury." Haybeck v. Prodigy Servs. Co.,
"There is no single mechanical test to determine whether at a particular moment an employee is engaged in the employer's business." Rausman,
[1] connection between the time, place and occasion for the act; [2] the history of the relationship between employer and employee as spelled out in actual practice; [3] whether the act is one commonly done by such an employee; [4] the extent of departure from normal methods of performance; and [5] whether the specific act was one that the employer could reasonably have anticipated.
Riviello v. Waldron,
Applying these factors and taking as true all factual allegations set forth in the complaint, the court cannot conclude at this stage that Plaintiff's unlawful acts were committed outside the scope of her employment.
With respect to the first factor-time, place, and occasion for the act-the complaint plausibly alleges that Lenich's employment as an ADA and access to KCDA equipment enabled her to commit the illegal acts at issue. See Adorno v. Corr. Servs. Corp.,
As to past employment practices, the complaint also plausibly alleges that Lenich had authority at KCDA to open investigations and initiate and oversee wiretaps. (See FAC ¶¶ 30-33.) And while the complaint does not suggest that forging judicial orders to initiate wiretaps was a common practice at KCDA, AD As such as Lenich did regularly initiate and monitor wiretaps. (See FAC ¶¶ 31-40.)
Finally, the court considers the extent of Lenich's departure from the normal methods of performing her job, and whether the act of unlawfully intercepting and accessing Plaintiff's communications was one that KCDA "could reasonably have anticipated." Riviello,
Here, nothing on the face of the complaint suggests that forgery of judicial orders and subpoenas and unlawful wiretapping was not an egregious "departure from normal methods of performance" of an ADA's duties. Riviello,
B. 1983 Claim
"[A] municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Department of Social Services,
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policy makers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.
Skates v. Incorporated Village of Freeport,
Plaintiff asserts a § 1983 claim against the City under two theories: (1) the City is responsible for Lenich's unlawful wiretapping scheme because she was an official with final decision-making authority over wiretaps at KCDA, and (2) the City is responsible because Lenich's supervisors failed to properly supervise her. (Pl. Opp'n at 21-24; see FAC ¶¶ 25-33.) Defendants counter that Plaintiff has not plausibly alleged that (1) Lenich was a municipal policymaker, (2) that any widespread custom or usage within KCDA caused Lenich's alleged violations or that any policymaking official was aware that Lenich was violating Plaintiff's constitutional rights, or (3) that any KCDA employee, including anyone at the policymaking level, was aware of Lenich's scheme-let alone that they tolerated or condoned it. (Mem. at 16-20.)
Where a plaintiff seeks to hold a municipality liable for a "decision by [a] municipal policymaker[ ]," Pembaur v. City of Cincinnati,
Whether an official has final policymaking authority is a legal question, determined on the basis of state law, but "it involves a fact-intensive inquiry." Canner v. City of Long Beach, No. 12-CV-2611 (DRH),
The decisions that City Defendants cite in opposition, several of which discuss the issue at the summary judgment stage, do not compel dismissal. See Schwab v. Smalls,
The court thus declines to dismiss the Monell claim against the City. Since the Monell claim survives on this ground, the court need not consider whether Plaintiff sufficiently alleged her other purported basis for this claim-that the City's failure to properly supervise Lenich caused the alleged constitutional violations. See Canner,
C. State Law Claims
City Defendants also move to dismiss Plaintiff's claims for negligent retention and/or supervision, negligence, and tortious interference.
1. Negligent Retention/Supervision
Plaintiff asserts a claim for negligent retention/supervision against the City, Thompson, Gonzalez, Schaeffer, and Does 1-5. (FAC ¶¶ 115-20.)
To state a claim for negligent retention or supervision under New York law, a plaintiff must show: "(1) that the tort-feasor and the defendant were in an employee-employer relationship; (2) that the employer knew or should have known of the employee's propensity for the conduct which caused the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels." Ehrens v. Lutheran Church,
City Defendants focus on the second element, arguing that the complaint contains "no allegations whatsoever" that Lenich had a propensity to fabricate judicial orders and illegally wiretap her coworkers, "let alone that any [KCDA] official was on notice of any such propensity prior to [the commencement of her scheme]." (Mem. at 21.) Under New York law, an employer will be liable to an injured party for an employee's tort when the employer knew or should have known that the employee was unfit for the job. See Steinborn v. Himmel,
As an initial matter, the court finds that Plaintiff's allegations relating to prior EEOC complaints against Lenich-none of which concerned unlawful interception of communications (see FAC ¶¶ 64-65)-are insufficient to establish that City Defendants were on notice of her propensity to wiretap Plaintiff. See, e.g., Doe v. Alsaud,
Plaintiff's other allegations, however, fare slightly better. Plaintiff alleges that Lenich's unlawful wiretapping scheme unfolded over eighteen months (FAC ¶¶ 41, 51, 54) and involved the submission of at least seven forged judicial orders and multiple forged search warrants (id. ¶¶ 46, 51). Plaintiff also alleges that (1) Lenich told other KCDA employees that she was "conducting a confidential law enforcement investigation" into Plaintiff (id. ¶¶ 59, 63); (2) Thompson, Gonzalez, and Schaeffer "were responsible for knowing what investigation Lenich was conducting at all times" (id. ¶ 61); and (3) these same Defendants knew that Lenich was not actually conducting a confidential investigation into Plaintiff, a fellow ADA, on behalf of KCDA (id. ¶ 62). The court thus finds that Plaintiff has plausibly alleged that Lenich's supervisors-Thompson, Gonzalez, Schaeffer, and Does 1-5-would have discovered at least some of Plaintiff's unlawful acts-and therefore learned that she was unfit for her position-but for their negligent supervision.
2. Negligence
Plaintiff also asserts a claim of negligence against the City, Thompson, Gonzalez, Schaeffer, Does 1-5, and Donohue. (FAC ¶¶ 121-27.) She claims that Thompson, Gonzalez, Schaeffer, and Does 1-5 had a duty to ensure that proper protections, policies, and protocols were in place to prevent the unlawful interception of Plaintiff's private communications by Lenich or any other KCDA employee, but that they breached this duty by failing to implement such protections, policies, or protocols, thereby allowing Lenich to unlawfully wiretap Plaintiff's phone. (Id. ¶¶ 122-23.) Plaintiff also asserts that Donohue had a duty to review the forged judicial orders submitted to him by Lenich to ensure that they were not forgeries. (Id. ¶ 124.) She alleges that he breached this duty when he "failed to use reasonable care to notice that the orders Lenich presented to him had forged signatures and lacked the required judicial seal." (Id. ¶ 125.) Finally, Lenich claims that the City is responsible for the misconduct of these individual defendants under the doctrine of respondeat superior.
Under New York law, a plaintiff must establish three elements to prevail on a negligence claim: (1) that the defendant owed plaintiff a duty of care; (2) that the defendant breached that duty; and (3) that as a result of the breach, plaintiff suffered damages. See Pasternack v. Lab. Corp. of Am.,
a. Thompson, Gonzalez, and Schaeffer
City Defendants seek to dismiss the negligence claim against Thompson, Gonzalez, Schaeffer, and Does 1-5 exclusively on the ground that there was no breach. (Mem. at 24.) City Defendants point out that the complaint alleged that there were certain policies in place for approving and executing wiretaps (id. ), and contend that "there was no reason for any KCDA[ ] official to believe that the safeguards in place ... were in any way deficient" (id. ). The court agrees with Plaintiff, however, that City Defendants' argument is "purely factual in nature" (Pl. Opp'n at 26) and thus inappropriate for resolution on a motion to dismiss.
b. Donohue
City Defendants also move to dismiss Plaintiff's negligence claim against Donohue on the grounds that Donohue did not owe Plaintiff a duty, and that, in any case, the complaint fails to allege a breach. (Mem. at 25.)
"The existence of a duty is an essential element of a negligence claim because, '[i]n the absence of a duty, as a matter of law, no liability can ensue.' " Farash,
The question for the court is thus whether Donohue owed Plaintiff a duty to
"The court determines the duty of care owed by one member of society to another as a matter of law." Korean Air Lines Co. v. McLean,
[W]henever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense ... would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances[,] he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
Havas v. Victory Paper Stock Co.,
Here, Plaintiff alleges that Donohue "was responsible for reviewing all judicial orders authorizing the [KCDA] to conduct wiretaps to ensure they contained proper signatures and seals, as well as physically setting up the wiretaps in a designated, controlled location." (FAC ¶ 11; see id. ¶¶ 34-37.) In other words, "draw[ing] all reasonable inferences in [Plaintiff's] favor," L-7 Designs, Inc.,
Additionally, there are strong policy-based considerations that counsel in favor of finding that Donohue owed a duty to Plaintiff under these circumstances, to the extent that the complaint's characterizations of his responsibilities are correct. The unlawful interception of private communications works a "grievous[ ] infringe[ment]" on fundamental privacy rights. S.E.C. v. Rajaratnam,
Finally, finding a duty on the part of Donohue would not create a risk of "limitless liability to an indeterminate class of persons," Hamilton,
It is possible, of course, that discovery will reveal that Donohue's job and responsibilities, particularly as to how he fits into the process for approving and reviewing wiretap orders at KCDA, do not accord with Plaintiff's characterizations. However, at this stage, the court finds that the complaint plausibly alleges that Donohue owed a duty to Plaintiff to exercise reasonable care in reviewing wiretap orders to ensure that they bore the proper indicia of authorization.
Moreover, contrary to City Defendants' argument, Plaintiff has plausibly alleged a breach by Donohue of that duty. (See
The court thus denies the motion to dismiss Plaintiff's claim for negligence against City Defendants.
3. Immunity
Defendants contend that City Defendants are entitled to immunity under New York State law in connection with Plaintiff's negligent retention and supervision and negligence claims because all of the alleged actions by City Defendants involved "the exercise of discretion or judgment in the performance of their official functions." (Mem. at 26.)
Under New York law, "[w]hether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment." Kirchner v. Cry. of Niagara,
The decision in Haddock is instructive. There, the plaintiff sued the City for negligent retention of an employee with a criminal record after he raped her.
Here, taking the well-pleaded allegations in the complaint at face value and drawing all reasonable inferences in favor of Plaintiff, none of the City Defendants appear to have exercised discretion in permitting Lenich to conduct her wiretapping scheme. Nor does the complaint show that any of the City Defendants, with knowledge of Lenich's wiretapping scheme, decided to retain Lenich while choosing not to properly supervise her. The court thus finds that City Defendants are not at this stage entitled to a finding of immunity.
4. Tortious Interference
Plaintiff also asserts a claim against Lenich for tortious interference with employment, and seeks to hold the City liable under the doctrine of respondeat superior. (FAC ¶¶ 128-33.)
City Defendants construe Plaintiff's claim as one for tortious interference with contract. (See Mem. at 27-28.) Accordingly, they argue that Plaintiff's claim against the City necessarily fails because Plaintiff cannot simultaneously make out a claim for tortious interference with contract-which requires a showing that Lenich acted outside the scope of her authority-and satisfy the requirements for vicarious liability-which requires an opposite showing. See, e.g., Albert v. Loksen,
Plaintiff's opposition, however, indicates that the court should construe her claim as one for tortious interference with business relations. (See Pl. Opp'n at 28.) Because Plaintiff is the "master of the complaint," her "allegations, submissions, and underlying theories of liability and damages should be taken at face value." Poventud v. City of New York,
To state a claim for tortious interference with business relations, "four conditions must be met: (1) the plaintiff had business relations with a third party; (2) the defendant interfered with those business relations; (3) the defendant acted for a wrongful purpose or used dishonest, unfair, or improper means; and (4) the defendant's acts injured the relationship."
Plaintiff contends that she has satisfied each of these elements. (Pl. Opp'n at 28.) She further argues that she is not required to show that Lenich acted outside the scope of her employment. (Id. ) City Defendants neglect to address any of Plaintiff's arguments in their Reply, nor do they cite any decisions in the Second Circuit-or elsewhere-suggesting that a claim for tortious interference with business relations (as opposed to contract) requires a showing that the individual defendant was acting outside the scope of her employment.
The court finds that Plaintiff has adequately stated a claim against Lenich for tortious interference with business relations. And as discussed, supra, the court cannot conclude with certainty at this stage whether or not Plaintiff acted outside the scope of her employment in pursuing her unlawful wiretap scheme. Accordingly, the court denies City Defendants' motion to dismiss the tortious interference claim with respect to the City.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part City Defendants' motion to dismiss (Dkt. 62).
City Defendants' motion to dismiss Plaintiff's ECPA claim against Thompson, Gonzalez. Schaeffer, Donohue, and Does 1-10 is granted. The ECPA claim is therefore dismissed as to those Defendants.
The following claims survive City Defendants' motion to dismiss:
• Plaintiff's ECPA claim against the City;
• Plaintiff's § 1983 claim against the City;
• Plaintiff's negligent retention and supervision claim against the City, Thompson, Gonzalez, Schaeffer, and Does 1-5;
• Plaintiff's negligence claim against the City, Thompson, Gonzalez, Shaeffer, Does 1-5, and Donohue; and
• Plaintiff's claim for tortious interference with employment against the City.14
SO ORDERED.
Notes
Schaeffer and Donohue's names appear to be misspelled in the case caption. The court adopts the spellings used by City Defendants in the motion to dismiss.
References herein to the "complaint" refer to Plantiff's first amended complaint (Dkt. 11).
The court notes that, although Plaintiff uses the collective defined term, "City Defendants," in describing these allegations in her opposition brief (see Pl. Opp'n at 9), the complaint does not allege that Kenneth Thompson took part in these presumed disclosures.
The court notes that Plaintiff also alleges upon information and belief that Donohue was responsible for physically setting up wiretaps at KCDA. (FAC ¶¶ 11, 36.) This allegation at least raises the possibility that Donohue might have had the ability to access the contents of intercepted communications, including those of Plaintiff. It is nonetheless insufficient to state a claim under the ECPA because, as explained infra, Plaintiff fails to plausibly allege the existence of a disclosure.
Plaintiff cites paragraph 74 for her contention that the complaint contains allegations that "characterizations about the content of her communications ended up in newspaper articles." (Pl. Opp'n at 10.) Paragraph 74 reads:
Lenich's arrest was covered extensively in the media. Plaintiff's name was leaked to the media. which reported that one of the phones that Lenich wiretapped belonged to Plaintiff, Plaintiff's name appeared in multiple news sources for days. Reporters staked out Plaintiff's private residence and accosted her and her family in an effort to obtain more information about the wiretapping operation.
(FAC ¶ 74.) Plaintiff also points to allegations in paragraph 95 to bolster her claim that the complaint alleged a leak of her private communications; however, the relevant portions of paragraph 95 largely speak to Plaintiff's subjective beliefs about what others were thinking after they learned she was Lenich's victim. (See id. ¶ 95.) She describes feeling "mortified and humiliated" because of press attention and that she "could no longer walk through the lobby of the office building without people staring at me side-eyed wondering did she or didn't she have an affair with the police officer." (Id. (cited in Pl, Opp'n at 10, 11).) She also states that "defense attorneys and judges tr[ied] to talk to [her] about what happened," (Id. ) Neither of these paragraphs indicate that the contents of her communications leaked to the media or her colleagues.
For example, Plaintiff does not point to a single news article that discusses the contents of her communications, nor does she cite any comments by coworkers indicating awareness of the contents of her communications. Her subjective fears that her coworkers were silently speculating about her private life (see FAC ¶ 95) do not suffice.
Plaintiff labels this disclosure and the disclosure to the Supreme Court Justice, discussed infra, the "secondary disclosure violation." (Pl. Mem. at 9.)
Plaintiff nonetheless explains in a footnote that "the [c]omplaint references this incident because any disclosure of the content of those communications to other prosecutors or employees in KCDAO prior to or not in accordance with a court order violates the law." (Pl. Opp'n at 20 n.13 (emphasis in original).) The court agrees that well-pleaded allegations of unlawful disclosures prior to or not in accordance with this alleged court order could state a violation of the ECPA, but, as explained elsewhere, the complaint contains no such non-conclusory allegations.
Because, as explained above, the court has dismissed the ECPA claim against the individual City Defendants, the court does not consider whether the City could be held vicariously liable for their alleged misconduct. (See FAC ¶ 103.)
City Defendants also argue that Lenich was clearly acting outside the scope of her employment because she acted for "purely personal" reasons, and point the court to the transcript of Lenich's sentencing hearing, which they attached to their motion to dismiss. (See Mem. at 14.) The court declines to consider the transcript because it "is not integral to or otherwise incorporated in the complaint" (which was filed before the sentencing hearing was held), and because consideration of it may raise a material issue of fact that is inappropriate on a motion to dismiss-namely, Lenich's motivation in intercepting Plaintiff's communications. Nicosia v. Amazon.com. Inc.,
The court is not concerned that Plaintiff alleges these facts "on information and belief" since the exact contours of Thompson, Gonzalez, and Schaeffer's supervisory responsibilities with respect to Lenich are facts "peculiarly within the possession and control of the defendant." Arista Records, LLC,
City Defendants do not address the City's liability for Plaintiff's negligence claims under the doctrine of respondeat superior, stating instead that because no viable claims of negligence exist, the City cannot be held vicariously liable. Since the court has, however, denied City Defendants' motion to dismiss the negligence claims against the individual City Defendants, it will also deny it with respect to the City.
While tortious interference with employment claims are generally framed as claims for tortious interference with contract, Plaintiff's approach is not without precedent in the at-will employment context. See Chanicka v. JetBlue Airways Corp.,
Plaintiff's claims as to Lenich also remain outstanding. Lenich has indicated that she intends to file a motion for judgment on the pleadings with respect to certain claims. (See Jan. 30, 2019 Min. Entry.)