Azzarmi v. Key Food Stores Co-Operative Inc.
| Decision Date | 25 March 2022 |
| Docket Number | 20-CV-6835 (GBD) (BCM) |
| Parties | AASIR AZZARMI, Plaintiff, v. KEY FOOD STORES CO-OPERATIVE INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. GEORGE B DANIELS
In this diversity action, plaintiff Aasir Azzarmi, proceeding pro se, alleges that an employee at a Key Food grocery store located at 55 Fulton Street in Manhattan (the Store) defamed him by falsely accusing him of being a thief; that the incident took place in front of other customers and employees, some of whom discussed it among themselves (and with plaintiff) the next day; and that six months later he was denied admission to the Store. Now before me for report and recommendation are defendants' motions (Dkt. Nos. 39 and 42), made pursuant to Fed.R.Civ.P. 12(b)(5) and (6), to dismiss plaintiff's Amended Verified Complaint for Damages (Am. Compl.) (Dkt. No. 34) for insufficient service of process (as to one individual defendant) and for failure to state a claim upon which relief can be granted (as to all defendants). For the reasons that follow, I recommend that the motions be granted as to three of the five defendants named by plaintiff.
Plaintiff filed this action on August 1, 2020, naming as defendants Key Food Stores CoOperative, Inc. (Key Food) and Does 1-10. According to the Verified Complaint for Damages (Compl.) (Dkt. No. 2), the "original defamer," known to plaintiff only as "Angel," was a "Store Manager" who falsely accused plaintiff of being a thief in front of customers and other employees on October 20, 2019, and then "republished" his false accusations to, among others, a manager known to plaintiff as "Charmaine" and another manager known to plaintiff as "Kim." Compl. ¶¶ 3, 6A, 6B. Angel later admitted that he had confused plaintiff with someone else. Id. ¶ 19. Plaintiff sent a complaint email to Key Food, through its website, but the company "never responded." Id. ¶¶ 28-29. Thereafter, "[a]round April/May 2020," plaintiff was denied admission to the Store by another (unnamed) employee, who told plaintiff that he was "on our list of customers who steal" and was "banned from this store." Id. ¶ 22. Alleging that Angel and the other managers were agents of Key Food (which he apparently assumed to be the owner of the Store), plaintiff asserted a single claim of defamation per se against "ALL Defendants." Id. ¶¶ 32-45. Nothing in the Complaint suggested that any employee outside of the Store republished the allegedly defamatory statements.
After this action was referred to me (Dkt. No. 8) and Key Food answered (Dkt. No. 15), I permitted early written discovery designed to identify the Doe defendants, see Initial Case Mgmt. Order dated Feb. 25, 2021 (Dkt. No. 17), ¶ 2, and gave plaintiff a deadline of June 1, 2021, to amend his pleading. See Case Mgmt. Order dated April 22, 2021 (Dkt. No. 20), ¶ 1.
Key Food's discovery responses revealed that "Angel" was Angel Parma; "Charmaine" was Shamin Chaitram, a cashier and floor manager at the Store; and "Kim" was Jin Kim, the general manager of the Store. (Dkt. No. 12; Dkt. No. 21 at ECF pages 36, 40, 44, 64; Dkt. No. 24 at ECF page 31.) Additionally, in its interrogatory responses, Key Food stated that the Store is owned and operated by 55 Fulton Market, Inc. (55 Fulton) rather than by Key Food, "which is a separate entity" providing "franchisor services" to 55 Fulton and other owner-operators. (Dkt. No. 24 at 16-17.) Defendant suggested that plaintiff "correct the name of the defendant in this action when he amends." (Id.) In a letter dated May 12, 2021, counsel set forth substantially the same facts, adding that 55 Fulton was the "sole employer of Angel Parma" and offering to provide plaintiff with substantiating documentation. (Dkt. No. 25.)
Plaintiff filed his Amended Complaint as scheduled on June 1, 2021. Rather than substitute 55 Fulton for Key Food, plaintiff named both corporations, along with three individuals, for a total of five defendants: (1) Key Food, a New York corporation headquartered in New Jersey, see Am. Compl. ¶ 2; (2) Madeline Donohue, employed by Key Food as a support services manager, see id. ¶¶ 6, 136, 138-39; (3) 55 Fulton, a New York corporation headquartered in New York, see id. ¶ 3; (4) Angel Parma, employed by 55 Fulton as a "managing agent" at the Store, see id. ¶¶ 4, 13; and (5) Shamin Chaitram, employed by 55 Fulton as a floor manager at the Store. Id. ¶ 214. Plaintiff, who once lived in New York, alleges that he now resides in California. Id. ¶ 1. Once again, plaintiff asserts a single claim of defamation per se against all defendants. Id. ¶ 217.[1]
Where the original Complaint was reasonably concise, the Amended Complaint (exclusive of exhibits) is 49 pages long - most of them single-spaced - prolix, internally inconsistent at times, and larded with legal argument and case citations. Nonetheless, plaintiff's basic factual allegations, which I am required to accept as true for the purpose of the pending Rule 12(b)(6) motions, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), are relatively simple.
On October 20, 2019, plaintiff was shopping on the lower level of the Store when Parma, "acting in his capacity as a Managing Agent of Def. Fulton Market," pointed at plaintiff while "loudly publishing," to numerous customers and employees of the Store within earshot, that plaintiff was "a thief" and that Parma had "caught him stealing from this store many times in the past and had him arrested a few times for loading up carts and garbage bags and running out of the store and stealing." Am. Compl. ¶¶ 13-14. Parma told plaintiff to "put down" the groceries he was holding "and leave now." Id. ¶ 14. Among the customers who heard these accusations was plaintiff's friend Stephanie Acosta, who attests that she was shopping with plaintiff that day and generally corroborates his account. See Acosta Decl. (Dkt. No. 34 at ECF pages 52-55) ¶¶ 2-3. Also present was plaintiff's former neighbor Teresa Sorrento, who attests that she too "witnessed the entire incident." Sorrento Decl. (Dkt. No. 34 at ECF page 56) ¶¶ 3-4.[2]
In fact, plaintiff alleges, he has never been arrested, for theft or otherwise, Am. Compl. ¶¶ 12, 15, and had no previous interactions with Parma. Id. ¶¶ 11, 206. He was "humiliated, publicly shamed, mortified, degraded, and defamed" as Parma accused him of shoplifting in front of Store employees, customers, and "other members of the community." Id. ¶ 15.
Attempting to ignore Parma, plaintiff went upstairs to pay for his groceries. Am. Compl. ¶ 17. While he was checking out, an (unidentified) cashier told him that "Defendant Angel had already told all of us cashiers that you are a known thief, to make sure you aren't stealing, and that Angel personally witnessed you stealing from this store on multiple times throughout the years and you were supposed to be banned from the store because Angel had you arrested and you went to jail for stealing from Key Foods in the past." Id. ¶ 17; see also Acosta Decl. ¶ 6 (). Plaintiff then "went to look for Angel," who retracted his prior statements, telling plaintiff, "I think I was confused, the person I'm thinking of had your same skin color and my other worker told me it was you." Acosta Decl. ¶ 7; see also Am. Compl. ¶ 19 (). Plaintiff paid for his groceries and left the Store without further incident. Acosta Decl. ¶ 9.
The following month, Parma again admitted - to Acosta - that he had made a "personal mistake." Am. Compl. ¶ 20; see also Acosta Decl. ¶ 10 ().
Defendant Chaitram knew plaintiff as a "regular customer." Am. Compl. ¶¶ 8, 131. She was not on duty on October 20, 2021. Id. ¶¶ 60, 214. However, on October 21, 2019, Chaitram and plaintiff "had a conversation" about the October 20 incident, during which Chaitram (acting "in her professional capacity on behalf of Def. 55 Fulton Market") told him that defendant Parma had "published to her" the false statements he had previously made about plaintiff being a thief, but assured plaintiff that "she personally" did not recall him being caught or arrested for stealing from the Store. Am. Compl. ¶ 29.[3]
On October 20, 2019 - the day of the incident with Parma - plaintiff sent a "Cease and Desist email letter" to Key Food through its website, complaining about Parma's conduct. Am. Compl. ¶¶ 38, 47, 83; id. Ex. 1 (Dkt. No. 34 at ECF page 50). At 1:53 p.m. that same day, plaintiff's "'complaint' email" was "forwarded and/or copied and/or cc'd" to Donohue at her Key Food email address. Id. ¶¶ 87, 151. That was when Donohue "became aware of the 10/20/19 incident." Id. ¶¶ 99, 102. At 8:25 a.m. the next day, October 21, 2019, Key Food responded to plaintiff in an email from its "Social Media Administrator," reading, Id. ¶ 152 & Ex. 1. The apology email was also "carbon copied or cc'd" to Donohue. Id. ¶ 48.[4]
Plaintiff alleges, on information and belief, that Key Food failed to forward his complaint email to the owner of the Store; that it negligently failed to make the owner "aware of the situation,"...
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