Livingstone v. Hugo Boss Store
| Decision Date | 01 September 2021 |
| Docket Number | CIVIL 21-01971 (RBK/AMD) |
| Court | U.S. District Court — District of New Jersey |
| Parties | MICHAEL LIVINGSTONE, Plaintiff, v. HUGO BOSS STORE, ATLANTIC CITY, NJ; HUGO BOSS FASHION, INC. USA.; HUGO BOSS RETAIL, INC., USA; MARINA DISTRICT DEVELOPMENT CO., LLC D/B/A BORGATA HOTEL CASINO & SPA; KIMBERLY KERN; Defendants. |
NOT FOR PUBLICATION
This matter comes before the Court on the Motions to Dismiss by Hugo Boss Fashion, Inc., USA, Hugo Boss Retail, Inc., USA Hugo Boss Store, Atlantic City, NJ, and Kimberly Kern (Doc No. 26) and by Marina District Development Co., LLC (“the Borgata”) (Doc. No. 27). In response Plaintiff has filed several motions: a Motion to Compel Defendant Borgata to file Corporate Disclosure Statement and disclose proper legal name of Hugo Boss Store and to postpone Defendants' Motions to Dismiss and terminate the entry of appearance for Hugo Boss Store's attorney (Doc. No. 35) a Motion to Strike, Quash, or Invalidate the Borgata's Motion to Dismiss (Doc. No. 40); and a Motion to Vacate and a Motion to Stay (Doc. No. 68). For the reasons articulated in this Opinion, Defendants' Motions to Dismiss are GRANTED and Plaintiff's pending motions are DENIED as moot.
This case arises from Plaintiff Michael Livingstone's personal communications and interactions with an employee at the Hugo Boss Store at the Borgata Hotel in Atlantic City, New Jersey. Mr. Livingstone has been banned from the Borgata, and he seeks to have the ban removed as well as $40 million in damages.
The following background information is taken from the amended complaint. (Doc. No. 7) (“Complaint”). Factual statements in the Complaint are assumed true and viewed in the light most favorable to Mr. Livingstone. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The Complaint is 131 pages long, and it contains a detailed account of Mr. Livingstone's experience shopping at the Hugo Boss store in the Borgata, pursuing a Hugo Boss employee romantically, doubting the sincerity of her rejections, contacting her continually, and ultimately getting banned from the Borgata.
Mr. Livingstone is a black man of indigenous West African descent. For five years, Mr. Livingstone was a customer at the Borgata and at the Hugo Boss store there. Ms. Kern is a white woman and a sales employee at Hugo Boss. Mr. Livingstone and Ms. Kern first met around 2015 at Hugo Boss. Mr. Livingstone shopped regularly at Hugo Boss and spoke frequently with Ms. Kern. Mr. Livingstone sometimes went to Hugo Boss only to visit Ms. Kern. Their relationship was cordial. In the Complaint, Mr. Livingstone discusses his relationship with Ms. Kern at length, including itemized lists of personal details about her that he has gleaned from their pleasantries. Mr. Livingstone feels that Ms. Kern's conversations with him evinced a meaningful personal relationship beyond typical salesperson-clientele chatter.
There are several incidents that Mr. Livingstone interprets as indicating that he was “more than” a customer. On October 27, 2020, Ms. Kern showed Mr. Livingstone the excess supply in the restricted back section of the Hugo Boss store. That same day, Mr. Livingstone gave Ms. Kern a copy of his Borgata Hotel room key and invited her to his room; Ms. Kern declined, stating that as an employee she would not be permitted. Mr. Livingstone then gave Ms. Kern his phone number, but she did not call or text him. The next day, Mr. Livingstone visited at store close to drop off a gift of wine for Ms. Kern and invite her to a different hotel. On October 29, 2020, Ms. Kern sent Mr. Livingstone a text message to thank him for the wine.
On December 8, 2020, Mr. Livingstone wrote a proposal letter to begin a “proper relationship” with Ms. Kern and gave it to her, along with a $400 customized Tumi bag and other gifts, at Hugo Boss. Ms. Kern texted Mr. Livingstone later that evening thanking him for the gift. The following day, Ms. Kern sent him an additional text message declining Mr. Livingstone's romantic advances. Mr. Livingstone sent Ms. Kern Christian materials and voice memos, and uploaded videos to YouTube.com of himself praying for her. Mr. Livingstone describes these videos as “travailing fervent warriorship intercessory Prayers to the extent that Plaintiff was even sweating in the prayer video.” Mr. Livingstone maintains that the voice memos could not be construed as harassment because Ms. Kern thanked him for sending them.
On January 5, 2021, Ms. Kern texted Mr. Livingstone stating that she was “still processing” things he had sent her. Mr. Livingstone construed this statement as Ms. Kern still deciding on his proposal to begin a relationship. On January 8, 2021, Ms. Kern texted Mr. Livingstone stating that they did not know each other well, which Mr. Livingstone construed as an invitation to get to know her better and a sign that Ms. Kern was interested in a relationship with him.
On January 10, 2021, Mr. Livingstone believed that Ms. Kern was discussing their personal communications with her coworkers. Mr. Livingstone texted Ms. Kern and sent a voice memo asking her to tell the coworkers “the whole story without bias.” Mr. Livingstone told Ms. Kern that if she did not do same, he would tell the coworkers “his side of the whole story” personally.
On January 11, 2021, Ms. Kern texted Mr. Livingstone pointing out his actions as harassment and stating “I can no longer have you as a client in the Atlantic City store” and “please do not contact me further.” Mr. Livingstone replied, Ms. Kern said she would contact Borgata Security.
Mr. Livingstone believes that Ms. Kern was motivated only to prevent Mr. Livingstone from telling her coworkers “the whole story” and to protect herself from having alleged violations of store policy (showing Mr. Livingstone backstock merchandise) exposed. Mr. Livingstone felt personally insulted by Ms. Kern's messages, believing them to be inconsistent with the prior kindness she had shown him. Mr. Livingstone felt that Ms. Kern was lying about feeling unsafe, and that other workers at Hugo Boss did not feel unsafe around him.
On January 16, 2021, Mr. Livingstone met with the Hugo Boss store manager to “clear up [] tension.” The store manager told Mr. Livingstone that Ms. Kern would no longer assist Plaintiff in the store.
On January 17, 2021, Ms. Kern texted Mr. Livingstone stating the following:
Many of Mr. Livingstone's claims hinge on this text message's mention of his other ongoing lawsuits and the fact that Ms. Kern searched his name online. Mr. Livingstone continued to text Ms. Kern afterward, emphasizing that he has a right to go to the store, accusing her of stalking, and threatening legal action against her.
On or around January 19, 2021, Ms. Kern contacted Borgata Security about Mr. Livingstone. Mr. Livingstone was then banned from the Borgata. He called the Borgata that day to make a reservation, and his call was transferred to Borgata Security who told him that Ms. Kern had reported ongoing harassment. A Borgata Security staff member emailed Mr. Livingstone stating he is “no longer welcome at the Borgata property and if you are observed on property are subject to charges of trespassing.” On January 22, 2021, Mr. Livingstone sent a twelve-page memorandum and PDF of text message images (totaling about ninety pages) to two Borgata Security staff members. Mr. Livingstone asked them to forward these materials to the Hugo Boss store manager. On January 25, 2021, a Borgata Security staff member called Mr. Livingstone to acknowledge receipt of the materials and to confirm that they had been sent to the store manager. He advised Mr. Livingstone to stay away from the Borgata for six months, after which they would review the matter and reinstate Mr. Livingstone. Mr. Livingstone then filed the instant lawsuit against various Hugo Boss entities, the Borgata, and Ms. Kern.
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler, 578 F.3d at 210 (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To make this determination, a court conducts a three-part analysis. Santiago v. Warminster Twp., 629 F.3d...
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