Madden v. Creative Services, Inc., 92-CV-6425T.

• Decision Date: 20 August 1993
• Docket Number: No. 92-CV-6425T.,92-CV-6425T.
• Citation: 872 F. Supp. 1205
• Parties: George MADDEN and Roseanne Cohen, v. CREATIVE SERVICES, INC., Alan T. Sklar, Individually and as an Officer and Director of Creative Services, Inc., et al.
• Court: U.S. District Court — Western District of New York

872 F. Supp. 1205

George MADDEN and Roseanne Cohen, v. CREATIVE SERVICES, INC., Alan T. Sklar, Individually and as an Officer and Director of Creative Services, Inc., et al.

No. 92-CV-6425T.

United States District Court, W.D. New York.

August 20, 1993.

A. Vincent Buzard, Rochester, NY, for George Madden, Rosanne Cohen.

Norman M. Spindelman, Karl S. Essler, Fix, Spindelman, Turk, Himelein & Shukoff, Rochester, NY, for Creative Services, Inc., Alan T. Sklar, Ralph Douglas Howe, Jr., Michael Sean Cole.

Kenneth A. Payment, Harter, Secrest & Emery, Rochester, NY, for Nat. Amusements, Inc., Sumner Redstone.

DECISION AND ORDER

TELESCA, Chief Judge.

INTRODUCTION

Plaintiffs, George Madden and Roseanne Cohen ("plaintiffs"), brought this diversity action following a much-publicized break-in by defendants Ralph Douglas Howe, Jr. ("Howe") and Michael Sean Cole ("Cole") into the office of an attorney representing a citizens group lead by plaintiff Madden. This group, the Suburban Public Safety Coalition, opposed defendant National Amusements, Inc.'s plan to build a 12-screen theater complex in a residential area of Pittsford, New York. Defendant Creative Services, Inc., which employed Howe and Cole, was hired by National Amusements, purportedly to investigate whether competitors of National Amusements were financing the opposition to the theater complex.

In their Amended Complaint, plaintiffs allege nine causes of action, including claims of Intentional Infliction of Emotional Distress, Conversion and Intentional Interference with the Attorney-Client Privilege. Defendants National Amusements and Redstone now move for summary judgment and dismissal of the Amended Complaint pursuant to Rules 56 and 12(c) of the Federal Rules of Civil Procedure. In lieu of serving an Answer, defendants Creative Services, Sklar, Howe and Cole move pursuant to Rule 12(b)(6) to dismiss for failure to state a claim upon which relief may be granted. In addition, defendant Sklar has moved to dismiss on grounds of lack of personal jurisdiction. For the reasons set forth below, defendants' motions pursuant to Rules 12(c) and 12(b)(6) are granted, and the Complaint is dismissed.

BACKGROUND

In 1991, National Amusements sought permission to construct a 12-screen theater complex in Pittsford, New York. During the course of zoning proceedings before the Pittsford Town Board, a local citizens group, led by plaintiff Madden and represented by Francis Kenny ("Kenny") of the law firm of Nixon, Hargrave, Devans & Doyle ("Nixon, Hargrave"), opposed rezoning of the proposed site of the theater complex. For a variety of reasons, National Amusements suspected that Nixon, Hargrave, which claimed to be acting pro bono in opposition to the rezoning, was in fact being paid by its client Loew's Theaters, Inc. to lend its legal advice and local prestige to the effort. Towey Affidavit, at ¶ 6.¹

In order to inform the Town Board, as part of its decision-making process, that "powerful anti-competitive interests were covertly backing the opposition and supporting it financially," Id., officials at National Amusements (other than defendant Redstone) retained Creative Services "to conduct a lawful and appropriate investigation" of the role played by Loew's. Id. Prior to this assignment, Creative Services had worked for National Amusements in the evaluation and design of security services and procedures for National Amusements's theaters. Id., at 3-4. In hiring Creative Services to investigate the potential extent of Loew's involvement, the National Amusements officials dealt exclusively with Creative Services's President, defendant Sklar.

In November, 1991, defendants Howe and Cole of Creative Services came to Rochester in the course of their investigation. On the false pretext that they had left a ring in the building in which Nixon, Hargrave is located, Howe and Cole gained access to Kenny's 9th floor office. A building worker subsequently found the investigators photographing documents which presumably related to the zoning dispute. Although security guards escorted Howe and Cole to the lobby, they managed to flee the scene, but not before one of the guards made note of their automobile's license plate.

Armed with the license plate number and a description of the investigators' car, Kenny and his son scoured local motel parking lots in search of the trespassers. Howe and Cole were eventually located by Kenny, who had them arrested the next morning when they were about to enter their car.

The break-in and surrounding circumstances were publicized in Rochester, Boston and national newspapers. In an unsworn declaration, defendant Sklar maintained that no one at National Amusements ever suggested or requested that Creative Services or its investigators do anything unlawful or inappropriate. Plaintiff Madden told a local newspaper that he believed that Howe and Cole, in the guise of interested home buyers, telephoned plaintiffs' real estate agent and made an appointment to view their condominium, which was for sale. (see appendix to the Payment Declaration). As the appointment was for the morning after the break-in, when Howe and Cole were already in police custody, it was never kept. According to a Rochester police investigator, Howe admitted to having made the call. (See Ex. A to Buzard Affidavit). Howe also stated that "he had been directed by his boss to get into the victim sic offices, and see if they could gather any information, pertaining to this case." Id.

DISCUSSION

I. Legal Standards

A. Judgment on the Pleadings

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a party may move to dismiss an action for "failure to state a claim upon which relief may be granted." Under Rule 12(c), any party may move to dismiss on the pleadings "after the pleadings are closed...." Defendants National Amusements and Redstone have filed an Answer, and thus move under Rule 12(c), while the remaining defendants have moved under Rule 12(b)(6) in lieu of serving an Answer.

For purposes of these motions, judgment is appropriate only "where the material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). The court must take "the well-pleaded material facts alleged in the complaint ... as admitted," Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir.1974), and must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party. Falls Riverway Realty v. City of Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985). The claims in the Complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

II. Intentional Infliction of Emotional Distress

Plaintiffs allege that defendants Howe and Cole followed them, surreptitiously took their photograph and attempted to enter plaintiffs' residence illegally and under false pretenses. Upon learning of these events, and of the break-in of their attorney's office, plaintiffs "became extremely distraught emotionally, fearful for their personal safety and security, and acutely sensitive to any circumstances which appeared even slightly suspicious." Amended Complaint, ¶ 24. Plaintiffs suffer from "a fear of being followed, emotional distress, increased anxiety, nightmares, and were otherwise injured as a result of Defendants' conduct." Id., ¶ 25-26. These events and plaintiffs' reaction to them form the basis of their claim for intentional infliction of emotional harm.

To recover on a claim of intentional infliction of emotional distress under New York law, plaintiffs must prove:

1. an extreme and outrageous act by the defendants,

2. an intent to cause severe emotional distress,

3. resulting severe emotional distress,

4. caused by defendants' conduct.

Sabatowski v. Fisher Price Toys, 763 F.Supp. 705, 716 (W.D.N.Y.1991), quoting Burba v. Rochester Gas and Electric Corp., 90 A.D.2d 984, 456 N.Y.S.2d 578, 579 (4th Dep't, 1982).

The tort of intentional infliction of emotional distress "predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985). The conduct alleged "must consist of more than mere insults, indignities, and annoyances." Leibowitz v. Bank Leumi Co., 152 A.D.2d 169, 182, 548 N.Y.S.2d 513 (2d Dep't, 1989) (citations omitted). See also Owen v. Leventritt, 174 A.D.2d 471, 571 N.Y.S.2d 25-26 (1st Dep't, 1991) ("mere threats, annoyance or other petty oppressions, no matter how upsetting, are insufficient to constitute the tort of intentional infliction of emotional distress").

Accepting the pleadings as true, I do not find that the conduct complained of (the break-in scheme or the scheme to pose as home buyers), is, as a matter of law, so "atrocious," "intolerable" "extreme" or "outrageous" as to "transcend the bounds of decency." As such, I find that plaintiffs' pleading fails to satisfy the first element of the cause of action.

Learning of the break-in and the scheme to pose as home buyers was undoubtedly discomforting and annoying, but the Complaint does not allege that the plaintiffs were either participants in or observers of the acts complained of, nor were they subjected to direct contact with the defendants. The defendants, who were arrested almost immediately after the break-in into the Attorney's office, never even entered plaintiffs' home. While the alleged misconduct is offensive and certainly cannot...