Miles v. Simmons Univ.

• Decision Date: 20 January 2021
• Docket Number: File No. 20-cv-2333 (ECT/KMM)
• Citation: 514 F.Supp.3d 1070
• Court: U.S. District Court — District of Minnesota
• Parties: Jennifer MILES, Plaintiff, v. SIMMONS UNIVERSITY and Kyle D. Killian, Defendants.

514 F.Supp.3d 1070

Jennifer MILES, Plaintiff,

v.SIMMONS UNIVERSITY and Kyle D. Killian, Defendants.

File No. 20-cv-2333 (ECT/KMM)

United States District Court, D. Minnesota.

Signed January 20, 2021

Cassandra B. Merrick, Christopher W. Madel, and Mack H. Reed, Madel PA, Minneapolis, MN, for Plaintiff Jennifer Miles.

Raphael Coburn and Sean R. Somermeyer, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant Simmons University.

Andrew L. Marshall, Bassford Remele, PA, Minneapolis, MN, for Defendant Kyle D. Killian

OPINION AND ORDER

Eric C. Tostrud, United States District Judge While participating in an online class for her graduate program through Simmons University, Jennifer Miles used the restroom unaware that she was visible to other class participants via her webcam. In this diversity case removed from Minnesota state court, Miles claims that the professor who taught the class, Kyle Killian, recorded a video of the incident on his cell phone and then posted it online, where it went viral. Miles alleges that Killian committed several torts and that Simmons is vicariously liable for Killian's torts, all under Minnesota law. Simmons has moved to dismiss the claims against it under Federal Rule of Civil Procedure 12(b)(6). The motion will be granted because Miles has not plausibly alleged that Killian acted within the scope of his employment when he recorded and posted the video. The dismissal will be without prejudice because discovery may ultimately reveal evidence that allows Miles to plead a plausible claim against Simmons.

I

According to the Complaint,¹ Miles enrolled as a graduate student in the School of Social Work at Simmons University, a Massachusetts-based institution, in 2017. Compl. ¶¶ 2–3, 8 [ECF No. 1-1]. She participated in some "clinical internships" in person, but all of her classes were online. Id. ¶ 8. Around January 2019, Simmons began using Zoom—an online platform that provides "teleconferencing, telecommuting, and distance education services"—for its remote courses. Id. ¶¶ 13–15. Students would participate in live virtual class sessions from their homes, and the sessions would be recorded for "study purposes only." Id. ¶¶ 16, 24. Those recordings were "confidential" and "restricted to class participants." Id. ¶¶ 24–25.

In the winter spanning 2018 and 2019, Killian taught an online course through Simmons called "Family Approaches," and Miles was one of the enrolled students. Id. ¶¶ 9–10. In this "particularly privacy-sensitive course," Killian would lead the students in discussions that centered around "therapeutic approaches for oppressed and marginalized clients, working with diverse populations, cultural humility, and ethics and boundaries in social work." Id. ¶¶ 11–12, 19, 27–28.

At one point during a virtual class session in February of 2019, Miles needed to use the restroom. Believing that her webcam was off and that she was not visible to the other course participants, she took her laptop to the restroom with her "to ensure she did not miss any discussion." Id. ¶¶ 17, 21. It turned out, unfortunately, that Miles was visible, so Killian and the other students could see her using the restroom. Id. ¶ 22. As soon as she realized this, she immediately moved the laptop. Id. Although "embarrassed by the incident," Miles thought it was "in the past." Id. ¶ 23.

The incident resurfaced in March 2020 when the COVID-19 pandemic caused Zoom usage to "increase[ ] dramatically." Id. ¶ 30. After receiving a "flurry of calls and text messages from family and friends," Miles discovered that someone had posted a cell phone video of the February 2019 Zoom meeting in which she was seen using the restroom to Twitter. Id. ¶¶ 31–32, 40. Miles's full name is visible throughout the video. Id. ¶¶ 34, 38. Killian's image appears in the upper left hand corner of the Zoom window. Id. ¶¶ 36–37. According to Miles, this means that the cell phone video was taken from Killian's computer screen and therefore that he was the one to record the video and post it online. Id. ¶¶ 35, 42. Killian's employment with Simmons was terminated sometime "after March 2020." Id. ¶ 43.

Meanwhile, the video went "viral." Id. ¶ 31. It was viewed more than 7 million times and led to "countless" tweets, Facebook posts, YouTube videos, and other reposts. Id. ¶¶ 32–33, 44. Celebrities have referenced the video on television, and Saturday Night Live aired a parody of it in April 2020. Id. ¶¶ 48–49. Although Twitter eventually removed the video and Miles has made "efforts to demand removal of the video from all platforms," the video "continues to be reposted," and an internet search of Miles's name reveals "thousands of results" related to the video. Id. ¶¶ 33, 45–47. Miles was understandably humiliated, and she is worried that the video will jeopardize her employment prospects in the social work field. Id. ¶¶ 51–52.

Miles sued Simmons and Killian in state court to recover for her injuries. She claims that Killian is personally liable for the torts of publication of private facts, intrusion upon seclusion, negligent infliction of emotional distress, and intentional infliction of emotional distress. Id. ¶¶ 54–59, 67–72, 82–86, 95–100. And she claims that Simmons is vicariously liable for Killian's commission of each one of those torts. Id. ¶¶ 60–66, 73–81, 87–94, 101–09. Killian, who was originally pro se but is now represented by counsel, filed an answer in which he denied Miles's allegations. ECF No. 6. After Defendants removed the case to federal court, Simmons moved to dismiss the claims against it under Rule 12(b)(6). ECF No. 9.

II

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Gorog v. Best Buy Co. , 760 F.3d 787, 792 (8th Cir. 2014) (citation omitted). Although the factual allegations need not be detailed, they must be sufficient to "raise a right to relief above the speculative level ...." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The complaint must "state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III

Simmons raises essentially two issues in its motion. The first is whether Miles has adequately alleged a basis to hold Simmons liable for Killian's actions. See Def.’s Mem. at 5–9 [ECF No. 11]. If Simmons prevails on this issue, then it must be dismissed as a defendant because all of Miles's claims against it are predicated on Killian's conduct. The second issue is whether Miles has plausibly alleged a claim for negligent infliction of emotional distress, see Def.’s Mem. at 9–10, but this issue is no longer in dispute. Even assuming that Miles could otherwise proceed with that claim against Simmons, she stipulated to its dismissal without prejudice at the hearing on Simmons's motion.

Under Minnesota law,² "an employer is vicariously liable for the torts of an employee committed within the course and scope of employment." Fahrendorff ex rel. Fahrendorff v. North Homes, Inc. , 597 N.W.2d 905, 910 (Minn. 1999) (citation omitted); see also Snilsberg v. Lake Washington Club , 614 N.W.2d 738, 745 (Minn. Ct. App. 2000). Simmons argues that Miles has not plausibly alleged that Killian was acting within the scope of his employment when he recorded and posted the video of Miles's Zoom class session. Def.’s Mem. at 6–8. Miles has three responses: (1) that the scope of Killian's employment "cannot be resolved on a motion to dismiss"; (2) that she has plausibly alleged that Killian acted within the scope of his employment; and (3) that she has plausibly alleged an alternative basis for vicarious liability—i.e. , that Killian's misconduct was aided by his agency relationship with Simmons. Pl.’s Mem. at 9–15 [ECF No. 15].

A

Miles's argument that the scope of Killian's employment "cannot be resolved on a motion to dismiss" seems to be the subject of competing authorities, but the better interpretation of the interplay between federal pleading standards and Minnesota law is that this issue may be resolved on a Rule 12(b)(6) motion. Under Minnesota law, whether an employee's acts are within the scope of her employment is a question of fact for the jury. Hagen v. Burmeister & Assocs., Inc. , 633 N.W.2d 497, 505 (Minn. 2001) ; see also Frieler v. Carlson Mktg. Grp., Inc. , 751 N.W.2d 558, 583 (Minn. 2008) (Gildea, J., opinion and dissent, Part II, writing for the court on this issue); Yath v. Fairview Clinics, N.P. , 767 N.W.2d 34, 47 (Minn. Ct. App. 2009). Citing this proposition, at least one court in this District has said that it is inappropriate to "resol[ve]" disputes about the scope of employment at the pleading stage. Wendt v. Charter Commc'ns, LLC , No. 13-cv-1308 (RHK/TNL), 2013 WL 12221823, at *1 (D. Minn. Sept. 4, 2013) (concluding that the scope-of-employment issue "presents an evidentiary burden, not a pleading one[ ]" and "is simply not amenable to resolution on a motion to dismiss[ ]"). Other cases from within this District reflect disagreement with this position. See Davis v. Dollar Tree, Inc. , No. 18-cv-1118 (WMW/HB), 2019 WL 174911, at *2–3 (D. Minn. Jan. 11, 2019) (dismissing a vicarious-liability claim because the plaintiff alleged no facts to support it); see also Deleski Ins. Agency, Inc. v. Allstate Ins. Co. , No. 13-cv-1780 (JRT/JJK), 2013 WL 6858573, at *6 (D. Minn. Dec. 30, 2013) (granting a motion to dismiss because "nothing in the preliminary record" supported a reasonable inference that an employee was acting outside the scope of employment, which was a requirement for the claim at issue).³ Still ...