Desardouin v. United Parcel Service, Inc.

• Decision Date: 29 September 2003
• Docket Number: No. CIV.A.3:02CV2086(JCH).,CIV.A.3:02CV2086(JCH).
• Citation: 285 F.Supp.2d 153
• Court: U.S. District Court — District of Connecticut
• Parties: Audrin DESARDOUIN, Plaintiff v. UNITED PARCEL SERVICE, INC., Defendant

285 F.Supp.2d 153

Audrin DESARDOUIN, Plaintiff v. UNITED PARCEL SERVICE, INC., Defendant

No. CIV.A.3:02CV2086(JCH).

United States District Court, D. Connecticut.

September 29, 2003.

Lorenzo J. Cicchiello, Chicchiello & Cicchiello, Norwich, CT, for plaintiff.

Mark P. Ladner, Theresa M. Parietti, Morrison & Foerster, New York City, for defendant.

RULING ON DEFENDANT'S MOTION TO DISMISS [DKT. NO. 13]

HALL, District Judge.

Plaintiff Audrin Desardouin, a black male of Haitian descent who owns and operates a men's clothing store, filed this federal action against Defendant United States Parcel Service, Inc., alleging state tort law violations and causes of action for racial and ethnic discrimination under a number of federal and state statutes in connection with the defendant's treatment of him as its customer and addressee. Specifically, the plaintiff's complaint alleges: in the First Count, a cause of action for discrimination based on race, national origin, and ethnicity pursuant to Connecticut General Statutes sections 46a-64, 46a-65, and 46a-66; in the Second Count, various federal causes of action brought pursuant to 42 U.S.C. §§ 1981 and 1982 and Title II and Title VII of the Civil Rights Act of 1964;¹ in the Third Count, a state law claim for negligent infliction of emotional distress; and, in the Fourth Count, a claim for intentional infliction of emotional distress. See Complaint [Dkt. No. 18]. The defendants have moved to dismiss the state law claims that make up the First, Third, and Fourth Counts but do not include in their motion the federal claims alleged in the Second Count. See Defendant United Parcel Service's Notice of Motion to Dismiss Under Rule 12(b)(6) and Motion for a More Definite Statement Under Rule 12(e) ("Def's Mot. Dismiss") [Dkt. No. 8].² The court grants the motion to dismiss only with respect to the First Count, which is dismissed in its entirety, with leave to replead.

I. FACTS

The plaintiff owns and operates a men's clothing store called A-D Fine Men's Store in Norwich. On or about February of 2001, the plaintiff placed an order with Giorgio Cosani Imports of California (GCI) for the delivery of men's suits at a cost of approximately $11,000.00. The plaintiff arranged for the suits to be shipped collect on delivery ("C.O.D."). Thus, the payment was to be collected at the time of delivery: half of the cost was to be paid with a money order and the remainder with a business check postdated five weeks after the delivery date. Defendant United Parcel Service, Inc. ("defendant" or "UPS"), had made deliveries to the plaintiff before without incident. However, on or about July of 2001, at around 10 a.m., a UPS driver named Robert Allen arrived at the plaintiff's store stating that he had been instructed by his supervisor to leave the plaintiff's shipment at the UPS facility because the plaintiff did not have enough money to pay for the merchandise. Allen allegedly made this remark "in the presence of other people in [the plaintiff's] shop, including customers." Complaint ¶ 5. The plaintiff immediately telephoned Allen's supervisor at UPS, David Pellerin, to inquire about the situation, and Pellerin apologized but also may have "hung up" on the plaintiff.³ Id. Allen then called Pellerin from the plaintiff's store and received authorization to deliver the goods later that day.

When Allen arrived with the packages later on the same day, he repeated his previous remark about the plaintiff's inability to pay, again in front of people present in the store, who expressed concern and wonder about the situation. One of them asked whether the plaintiff "was being treated this way because he was a black, small business owner." Id. ¶ 6. Consistent with the plaintiff's arrangement with GCI, the plaintiff gave the driver the money order and postdated business checks. Also as arranged, the packages bore labels indicating C.O.D. delivery and the correct amount and form of payment.

On July 23, 2001, Allen informed the plaintiff of Pellerin's comment that Allen had not properly collected the checks from the plaintiff and that the payment should have been in the form of money orders instead. Allen also told the plaintiff that in response to Pellerin's comment, Allen had told Pellegrin that he had acted in accordance with the instructions on the UPS packages' labels by accepting the plaintiff's checks.

On July 30, 2001, the plaintiff learned that one of the postdated business checks made payable to GCI had not cleared his account because UPS had allegedly attempted to cash this check before the date to which it had been postdated. Although the defendant has not contacted the plaintiff about this situation, according to the complaint, it is the plaintiff's "understanding that UPS continues to attempt to deposit the post dated check and [he] continues to incur processing charges" as a result. Id. ¶ 5. Upon being informed by the plaintiff of this situation, GCI expressed its displeasure and indicated that the defendant did not have the authority to cash the checks.

In August 2001, the plaintiff arranged for another shipment of men's suits, this time from Giorgio Borani, Maxman, Inc., in Los Angeles, California ("Maxman"). The arrangement between the plaintiff and Maxman, reflected in the shipping instructions, was that a payment of 25% of the total amount [of $9860.00] in the form of cashier's check or money order was to be made on delivery, and a check for the remainder, postdated for payment within 30 days, would also be presented at delivery. Id. ¶¶ 14-15.

On September 14, 2001, UPS driver Allen arrived with the shipment but indicated that Mr. Sheehan, a manager at UPS, had given him instructions not to make the delivery until he had collected money orders for each item. After being contacted by the plaintiff, Maxman allegedly faxed a letter to the defendant instructing it to make the delivery in accordance with the agreement between Maxman and the plaintiff. At some point, Mr. Sheehan falsely represented to Maxman that the plaintiff owed UPS $5400.00.

The plaintiff unsuccessfully tried to contact Sheehan, who refused to speak with him about the matter. However, the plaintiff did discuss the situation with Pellegrin, who claimed that he had told Allen to deliver the plaintiff's goods.⁴ Pellegrin denied cashing any of the plaintiff's checks made out to third parties, a denial which, according to the plaintiff, seems false in light of the defendant having contacted the plaintiff about its attempts to cash these checks.

On September 21, 2001, Allen again arrived at the plaintiff's shop and, in the presence of customers, asked for payment on the GCI shipment. Allen stated that, when he had checked with his supervisor, his supervisor had stated that he did not believe the plaintiff and that the plaintiff owed the defendant $3200.00. The plaintiff provided Allen with documentation suggesting that his supervisor was mistaken.

On October 29, 2001, the plaintiff learned that a UPS representative had remarked to Allen when transferring the plaintiff's goods to him: "This is for your boy, Audrin." On November 15, 2001, Allen stated to the plaintiff in the presence of a customer who was in the store at the time: "UPS does not like you." Allen also said that he had been instructed to hold the plaintiff's deliveries and first determine whether the plaintiff had any money with which to make payments. Id. ¶ 25.

In defendant's Motion, the defendant moves to dismiss all of the state law claims which comprise the First, Third, and Fourth Counts.

II. MOTION TO DISMISS STANDARD

Pursuant to Fed.R.Civ.P. 12(b)(6), the defendants have moved to dismiss three of the four counts for failure to state a claim. A motion to dismiss filed pursuant to Rule 12(b)(6) can be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering such a motion, the court accepts the factual allegations alleged in the complaint as true and draws all inferences in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). A Rule 12(b)(6) motion to dismiss cannot be granted simply because recovery appears remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id. (quotation omitted).

"While the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996). Rule 8 of the Federal Rules of Civil Procedure provides that a complaint "shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a)(2).

The rule also requires that each averment of a pleading shall be simple, concise, and

direct. Fed.R.Civ.P. 8(e)(1). Under the liberal pleading standards of the Federal Rules of Civil Procedure, a plaintiff must disclose sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. Dismissal is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.

Kittay v. Kornstein, 230 F.3d 531, 541 (2d. Cir.2000).

III. DISCUSSION

For the following reasons, the court grants the motion to dismiss, with leave to amend, only with respect to the First Count of the complaint, which alleges discrimination in violation of the Connecticut Fair Employment Practices Act (CFEPA), Connecticut General Statutes §...