Bah v. Apple Inc., 19-cv-3539 (PKC)
| Decision Date | 08 September 2021 |
| Docket Number | 19-cv-3539 (PKC) |
| Parties | OUSMANE BAH, Plaintiff, v. APPLE INC. et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Presently before the Court are defendants' motions to dismiss the Third Amended Complaint (the “Complaint” or “TAC”) for failure to state a claim. This action stems from the misidentification of plaintiff Ousmane Bah as the individual who committed a series of thefts from Apple stores over the course of approximately eight months.
The Court previously held that the First Amended Complaint (Doc 23) stated claims for New York-based defamation and malicious prosecution against defendants Apple, Inc. (“Apple”) and a firm it employed, Security Industry Specialists, Inc. (“SIS”). (Doc 49 (“MTD Opinion”)). The Court concluded that the statements and actions of Apple and SIS were protected by New York's qualified privilege but that Bah plausibly alleged actual malice in connection with his defamation and malicious prosecution claims. The conclusion was based principally on allegations that Apple and SIS had identified two different individuals as Bah prior to reporting the New York-based thefts to police. “As such, any statement identifying Bah as a thief, which was based on this unreliable method of identification, was made with a reckless disregard for the truth and made with a high degree of awareness that the identification was probably inaccurate, based on defendants' own records.” (MTD Op. 24).
The Court dismissed the claims based upon non-New York incidents because of the limited reach of New York's long arm statute in cases sounding in defamation. (MTD Op. 12). The Court concluded that there is both a basis for personal jurisdiction and a plausible allegation of defamation and malicious prosecution arising out of the New York Incidents. (MTD Op. 7-10, 14-15).
After the Court's ruling on the first motion to dismiss, the case proceeded to discovery. Although discovery had been conducted for nine months prior to the Court's entry of a stay for the purposes of the present motions, it has not been concluded and documents or testimony obtained in discovery may not be permissibly considered on motions to dismiss. The present version of the complaint is Bah's fourth, and the Court has twice granted Bah leave to amend since the decision on the motion to dismiss the First Amended Complaint. (Docs 79, 133). Bah continues to assert claims for New York-based defamation and malicious prosecution against Apple and SIS and has added SIS's employee John Woodruff as a defendant. Notably, the Third Amended Complaint alleges that the individual who engaged in the series of thefts was Mamadou Barrie. (TAC ¶¶ 107-108), In addition, the Third Amended Complaint added claims under section 1983 against Detectives Reinhold, Pagan, White Granato and Patelli of New York Police Department (the “NYPD”) and defendant City of New York (the “City”). 42 U.S.C. §1983.
Each defendant has moved to dismiss the TAC.[1] For reasons to be explained, the motions to dismiss of Apple, SIS and Woodruff will be denied and the motions to dismiss by each of the NYPD detectives and the City will be granted.
Because the allegations in the Third Amended Complaint at times differ materially from those considered by the Court in its first MTD Opinion, they will be described in some detail.
The first theft identified in the Complaint occurred on April 16 2016, from an Apple store in Montreal, Canada. The Complaint alleges that an individual named “Ousmane Bah” was detained by Apple and SIS following an accusation that this individual had stolen merchandise from the Montreal store. (TAC ¶ 19). Bah alleges that his physical features do not match this individual's features. (TAC ¶ 20).
The next relevant event alleged did not occur until 2018. As the Court previously described, (MTD Op. at 2 (internal citations omitted)); (TAC ¶¶ 17-18). During 2018, Bah was a high-school student who resided in New York City.
Starting in April 2018 and continuing for approximately eight months, Bah alleges that Apple and SIS employees mistakenly identified him as the individual who committed a series of thefts at Apple Stores in New York, New Jersey, Massachusetts, and Connecticut. The Complaint asserts that the actual thief was Mamadou Barrie. (TAC ¶ 108). Bah alleges that his physical features do not match Barrie's features. (TAC ¶ 25).
In April 2018, Mamadou Barrie was detained in Greenwich, Connecticut, following an accusation by Apple and SIS that an individual had stolen merchandise from one of Apple's stores (the “First Connecticut Incident”). (TAC ¶ 22). The Complaint alleges that during the relevant period SIS provided security services at Apple's New Jersey stores and performed investigation and security services for Apple. (TAC ¶¶ 14-15). Barrie identified himself as “Ousmane Bah” using Bah's temporary New York State learner's permit. (TAC ¶¶ 23, 26). Though Barrie's apparent physical features did not match the physical features described in the temporary learner's permit (5'7” vs. 6'1”), Apple and SIS informed the police that the thief was “Ousmane Bah”. (TAC ¶ 26). Apple and SIS created an internal security record, matching surveillance footage from Apple's store of Barrie committing the theft with Bah's name and retained portions of surveillance footage showing the alleged theft. (TAC ¶¶ 26-27). They also “published” the allegation that Bah was the thief to their own employees. (TAC ¶¶ 27, 175, 188).
On May 24, 2018, Mamadou Barrie was detained for shoplifting from an Apple store in Paramus, New Jersey and identified himself as “Ousmane Bah” using Bah's temporary learner's permit (the “First New Jersey Incident”). (TAC ¶¶ 30-32). An SIS employee reported to the Paramus police that the name of the person detained by store security was “Ousmane Bah” but, in fact, the person was Barrie. (TAC ¶¶ 34, 37). Apple and SIS created a “Be on the Lookout, ” or “BOLO, ” notice under the name “Ousmane Bah” and internally matched surveillance footage of Barrie's theft with Bah's name. (TAC ¶¶ 39, 176). Apple and SIS sent the BOLO notice to their own employees, the police and unidentified others. (TAC ¶¶ 39, 175, 188). The Complaint asserts that using their identification from the Paramus theft, Apple and SIS mistakenly began attributing to “Ousmane Bah” prior thefts committed by Mamadou Barrie, including a May 5, 2018 theft from an Apple store in Short Hills, New Jersey that was reported to local police. (TAC ¶ 38).
On May 31, 2018, Apple and SIS employees reported to the Boston, Massachusetts police that a Boston Apple store had suffered a theft, committed by the same individual that committed the theft at the Connecticut store (the “Massachusetts Incident”). (TAC ¶¶ 41, 43). Bah alleges that the theft was in fact committed by Barrie. (TAC ¶ 45). Apple and SIS identified the thief to the Boston police as Bah based on the BOLO notice from the First New Jersey Incident as well as surveillance video and internal records from the Connecticut Incident. (TAC ¶¶ 44, 51, 69). They also “published” this allegation regarding the Massachusetts Incident to their employees and law enforcement. (TAC ¶¶ 175, 188).
The Complaint alleges that Barrie committed two thefts from Apple stores in Cherry Hill, New Jersey and Freehold, New Jersey on September 18, 2018 (the “Second New Jersey Incident”). (TAC ¶¶ 75, 77). Apple and SIS employees reported to the local police that these stores had suffered a theft and identified Bah as the thief. (TAC ¶¶ 76, 80). Bah also alleges that Apple and SIS “published” these allegations to their own employees and law enforcement. (TAC ¶¶ 175, 188). On December 6, 2018, plaintiff Bah received notice of charges against him relating to the theft of the Freehold Apple store. (TAC ¶ 142). On December 12, 2018, charges against Bah relating to theft of the Cherry Hill store were dropped after an individual who was not Bah appeared in response to a summons. (TAC ¶¶ 147-49).
The Complaint alleges that Barrie committed another theft at an Apple store in Rockaway, New Jersey on October 18, 2018 (the “Third New Jersey Incident”). (TAC ¶ 96). Defendant John Woodruff, an SIS employee providing security at the Rockaway store, identified the theft upon a review of surveillance footage. (TAC ¶ 96). Woodruff named Bah as the individual responsible to the Rockaway Police. (TAC ¶ 99). In addition, Apple employees reported the theft to a central database maintained by SIS called the “Global Security Operations Center, ” which maintained information tying Bah to multiple thefts. (TAC ¶¶ 97-98). Bah also alleges that Apple and SIS “published” this allegation to their own employees. (TAC ¶¶ 175, 188).
The foregoing chronology is the lead up to the New York arrest of Bah. The Complaint alleges that Mamadou Barrie committed thefts at an Apple store in Staten Island, New York on October 22, 2018 and October 24, 2018 (the “New York Incidents”). (TAC ¶¶ 100-01). On November 8 2018, defendant Detective John Reinhold of the NYPD issued a “METRORCA Alert, ” which requested information on the New York Incidents and included a description and photograph from store surveillance video of the thief. (TAC ¶ 102 & Ex. 2). In response to this alert, on November 15, 2018, Woodruff emailed Detective Reinhold informing him that the individual “is known to us as Ousmane Bah”...
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