Bah v. Apple, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 21-10897-RGS

OUSMANE BAH

v.

APPLE INC. and

SECURITY INDUSTRY SPECIALISTS, INC.

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTIONS TO DISMISS

AND CROSS-MOTIONS FOR SANCTIONS

September 27, 2021

STEARNS, D.J.

Plaintiff Ousmane Bah brings state-law tort claims against defendants

Apple Inc. (Apple) and its security contractor, Security Industry Specialists,

Inc. (SIS), for falsely accusing him of theft. Although the thefts occurred in

Apple retail stores in Pennsylvania, New Jersey, New York, Connecticut, and

Massachusetts between April of 2018 and February of 2019, the only claims

in this action relate to shoplifting incidents in Boston and Holyoke,

Massachusetts in May and December of 2018, respectively. Bah alleges that

defendants misidentified him from a stolen learner’s permit and perpetuated

that misidentification through facial recognition software. Apple and SIS

now move to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

BACKGROUND

On March 26, 2018, Bah obtained a temporary learner’s permit issued

by New York State. See Compl. (Dkt # 1) ¶ 9. The temporary permit had no

photograph, but included Bah’s height, weight, date of birth, eye color, and

the following disclaimer: “THIS TEMPORARY DOCUMENT IS NOT

VALID FOR IDENTIFICATION PURPOSES.” Compl. Ex. 1 (Dkt # 1-1).

Bah’s temporary permit went missing at some point prior to May of 2018,

but by then he had received a permanent permit containing his photograph.

In April of 2018, an individual was detained in Greenwich,

Connecticut, for stealing merchandise from one of Apple’s retail stores.

Apple identified the individual as Bah based on a temporary learner’s permit

“that was likely . . . Bah’s.” Compl. ¶ 12. The shoplifter, however, was not

Bah, but rather Bah’s “friend,” Mamadou Barrie. Id. ¶ 91.1 Barrie did not

match the permit’s physical description of Bah. For example, Barrie (6’ 1”)

was half a foot taller than Bah (5’ 7”). See id. ¶ 14. Bah alleges that that Apple

1 Although Bah suggests that his identity was falsely attributed to

multiple shoplifters, his Complaint alleges that the shoplifter involved in the

Massachusetts thefts “was the same imposter who committed the

Connecticut and New Jersey thefts.” Compl. ¶ 33; see also id. ¶¶ 131-132,

134.

created a record from this incident identifying Barrie as Bah, which it

circulated among its stores in the Northeast. See id. ¶ 15.

Bah alleges that SIS employee Steven Yhap apprehended Barrie, who

“was carrying the above-referenced learner’s permit,” following a theft from

an Apple store in Paramus, New Jersey, on May 24, 2018. Id. ¶ 20.2 SIS

mistakenly identified Barrie as Bah and reported Bah to the Paramus Police.

SIS then sent “Be on the Lookout” notices based on the mistaken

identification to other Apple stores and police departments.

Barrie continued to shoplift from Apple retail stores, including two in

Massachusetts, throughout 2018.3 On May 31, 2018, he stole twelve Apple

Pencils, valued at roughly $100 each, from Apple’s store on Boylston Street

in Boston. Bah alleges that this theft was “discovered by Apple and/or SIS,

likely through technological means,” id. ¶ 29, specifically Apple’s facial

2 SIS asserts that “[i]t is fatal to Plaintiff’s entire theory that he relies

on the misidentification in Paramus, NJ due to the learner’s permit as the

lynchpin for his claims against SIS because this event never happened.” SIS

Mot. (Dkt # 13) at 8. However, the court cannot consider evidence at this

stage, such as SIS’s incident report of this theft, Ex. 1 to SIS Mot. (Dkt # 13-

1), that is not “sufficiently referred to in the complaint,” and is inconsistent

with the Complaint’s allegations. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.

1993).

3 Barrie’s other alleged thefts took place in Apple stores in Cherry Hill

and Freehold, New Jersey (September 18, 2018); Rockaway, New Jersey

(October 18, 2018); Staten Island, New York (October 22 and 24, 2018); and

Trumbull, Connecticut (October 28, 2018).

recognition database, which contained a record falsely identifying Barrie as

Bah (based on the stolen learner’s permit), see id. ¶¶ 32, 46-61. Based on the

record, an Apple employee reported Bah as the thief to the Boston Police.

On December 1, 2018, SIS employees apprehended Barrie attempting

to steal merchandise from Apple’s store in Holyoke. See id. ¶ 126. When the

Holyoke Police fingerprinted the culprit, the FBI’s National Criminal

Identification Center identified the prints not as Bah’s, but rather those of

Barrie. See id. ¶ 131.4

Bah alleges that the Apple and SIS misidentifications of him as Barrie

and the resulting false accusations of theft led to his detention and

prosecution in several municipalities, jeopardizing his application for U.S.

citizenship. See id. ¶ 158. The Suffolk County District Attorney’s Office

eventually dismissed the shoplifting charge against Bah without any further

intervention by Apple or SIS. See id. ¶ 154.

Bah initially filed a lawsuit in the Southern District of New York in

April of 2019. See Bah v. Apple Inc., No. 19-cv-03539 (S.D.N.Y.) (New York

litigation). Following the dismissal of his Massachusetts claims from that

4 Barrie’s identity was also discovered by New York Police

Department’s Facial Identification Section following the Staten Island, New

York thefts. See id. ¶ 132.

action for lack of personal jurisdiction, see Bah v. Apple Inc., 2020 WL

614932, at *6, *7, *8 (S.D.N.Y. Feb. 10, 2020), Bah filed a second Complaint

in this court on May 28, 2021, alleging four Massachusetts state-law claims

jointly against Apple and SIS: (1) defamation (Counts I and II); (2) malicious

prosecution (Counts III and IV); (3) intentional or negligent

misrepresentation (Counts V and VI); and (4) negligence (Counts VII and

VIII). On August 9, 2021, SIS moved to dismiss the Complaint, followed by

Apple on August 20, 2021. Apple and SIS also moved for sanctions against

Bah. For the following reasons, the court will allow the motions to dismiss

and deny the motions for sanctions.

DISCUSSION

To survive a motion to dismiss, a complaint must allege “a plausible

entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).

“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions, and a formulaic recitation

of a cause of action’s elements will not do.” Id. at 555 (internal citations

omitted). A claim is facially plausible if the factual allegations in the

complaint “allow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

Defamation (Counts I & II)

To prove defamation, a plaintiff must establish that “the defendant was

at fault for the publication of a false statement regarding the plaintiff, capable

of damaging the plaintiff’s reputation in the community, which either caused

economic loss or is actionable without proof of economic loss.” White v. Blue

Cross & Blue Shield of Massachusetts, Inc., 442 Mass. 64, 66 (2004)

(footnote omitted); see also Flagg v. AliMed, Inc., 466 Mass. 23, 37 (2013).

A conditional privilege applies to statements made for the purpose of

reporting a crime to the police, see Correllas v. Viveiros, 410 Mass. 314, 322

(1991), or protecting a legitimate business interest (such as store security),

see Zeigler v. Rater, 939 F.3d 385, 393 (1st Cir. 2019), which immunizes a

defendant from liability unless he or she acted with malice or reckless

disregard of the truth, see Tosti v. Ayik, 386 Mass. 721, 726 (1982).5 Reckless

disregard – the more lenient of the two standards – requires a showing of

something more than mere negligence; it requires that the author of the

statement “in fact entertained serious doubts as to the truth of his

5 SIS’s statement that this privilege is absolute rather than qualified is

incorrect. See SIS Mot. at 6. “[T]he report of a crime is only conditionally

privileged” when “defendants went to the police . . . on their own initiative

and published an accusation which might otherwise never have been

known.” Correllas, 410 Mass. at 322 (collecting cases).

publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968); see also

Murphy v. Boston Herald, Inc., 449 Mass. 42, 48 (2007).

In moving to dismiss, Apple and SIS assert that Bah has failed to

overcome the conditional privilege shielding the reports to the various police

departments regarding the thefts. Put differently, defendants argue that Bah

does not adequately plead recklessness or malice because “there are no facts

to support . . . that Apple knew Barrie impersonated [Bah],” Apple Mot. (Dkt

# 22) at 10, or, similarly, that SIS “genuinely did not believe that the thief

observed stealing merchandise” was Bah, SIS Mot. at 7. The court agrees.

Bah’s allegations concerning defendants’ mental state are conclusory,

see, e.g., Compl. ¶¶ 89, 112, 183, or unrelated to Apple’s or SIS’s subjective

belief about the shoplifter’s identity.6 At best, Bah theorizes that Apple and

6 One Massachusetts court has defined recklessness more broadly in

the context of a false accusation of theft: “Recklessness can also be shown by

a failure to verify in circumstances where verification is practical and the

matter is sufficiently weighty to call for safeguards against error.” Mendez v.

M.S. Walker, Inc., 26 Mass. App. Ct. 431, 433-434 (1988). Under this

standard, Bah’s theory of recklessness – namely, that defendants’ reliance on

a document “not valid for identification purposes” with marked differences

between its description of Bah and Barrie’s appearance was unreasonable –

might be adequately pled.

However, “there is little to distinguish such a broad definition of

[recklessness] from simple negligence,” and, accordingly, the court does not

adopt this disfavored “language of exceptional breadth.” Fowler v. Sohio Oil

Co., 1990 WL 320042, at *6 n.5 (D. Mass. Jan. 9, 1990), quoting Conroy,

SIS likely received notice of the misidentification from the New York Police

Department on November 29, 2018 – months after the Boston theft and a

mere two days before the Holyoke theft – and failed to correct the error in its

video surveillance database. See id. ¶¶ 123, 148; see also id. ¶ 107.7 However,

these allegations amount to no more than speculation “upon information

and belief” that Apple and SIS, in the ordinary course, would have been

informed of Bah’s arrest and release in New York. This surmise falls well

short of supporting any plausible allegation that defendants were aware of

the robber’s true identity.

Malicious Prosecution (Counts III & IV)

Bah’s malicious prosecution claims fail on similar grounds. Under

Massachusetts law, a malicious prosecution claim requires proof that the

defendant, “(i) instituted criminal proceedings (ii) with malice and (iii)

without probable cause, and (iv) that the proceedings were terminated in the

Defamation in the Workplace: The Law of Massachusetts, 74 Mass. L. Rev.

84, 91 (1989).

7 Bah also characterizes the failure of Apple and SIS to retain

surveillance footage of the shoplifting incidents, including the Boston theft,

as reckless disregard for the truth of the accusations against him. See, e.g.,

Compl. ¶¶ 64-70, 76. Whatever the reason for defendants’ failure to retain

video footage as potentially exculpatory evidence in subsequent legal

matters, these allegations are too attenuated from defendants’ subjective

belief about the shoplifter’s identity at the time of the thefts to constitute

“recklessness” as defined by the tort.

accused’s favor.” Limone v. United States, 579 F.3d 79, 89 (1st Cir. 2009).

While Bah was never arrested (let alone prosecuted) for the Holyoke

shoplifting incident, he was criminally charged in connection with the

Boston shoplifting and won a favorable termination of the case by way of a

prosecutorial nolle prosequi. See Compl. ¶ 154. The court need not,

however, reach the thorny first element of Bah’s claim (whether as a matter

of law Apple or SIS – as opposed to the Suffolk District Attorney – initiated

the Boston criminal proceedings against him).

Just as Bah fails to plead actual malice in his defamation claim, he also

fails to sufficiently plead that Apple or SIS acted with the requisite mental

state required by the tort. Bah does not allege that Apple or SIS “knew there

was no probable cause for the prosecution, and . . . acted with an improper

motive.” Foley v. Polaroid Corp., 400 Mass. 82, 100 (1987). Rather, Bah

states there were “objective reasons to doubt the accuracy of the allegation”

against him, Compl. ¶ 45, as examples, “records naming a different

individual from Montreal as Ousmane Bah; the absence of reliable

identification; and the inconsistency between the description on the learner’s

permit of the Plaintiff and the impostor’s own physical characteristics,” id.

¶ 23.8 As Bah’s Complaint admits, SIS did not receive actual notice of the

misidentification until months after Bah was charged for the Boston theft.9

Even with a generous reading, these allegations do not plead, for instance,

that SIS accused Bah of theft “primarily for a purpose other than that of

properly adjudicating” the alleged crime, G.S. Enters., Inc. v. Falmouth

Marine, Inc., 410 Mass. 262, 273 (1991), or an “attempt[] to achieve an

unlawful end or a lawful end through an unlawful means,” Beecy v.

Pucciarelli, 387 Mass. 589, 594 n.9 (1982).

Negligence (Counts VI & VIII)

Bah’s claims for negligence and intentional or negligent

misrepresentation also fail for several reasons. Most notably, SIS owed Bah

no personal duty of care. Bah alleges in general terms that SIS (and by

8 The court does not consider Bah’s conclusory allegation that “[a]t the

time the Boston thefts occurred . . . both Apple and SIS knew or were

constructively aware that its identification of the thief as Bah was based upon

unreliable evidence.” Compl. ¶ 35.

9 Bah does not allege that Apple or SIS committed any affirmative act

to preserve or encourage the continuance of the Boston prosecution after

they received actual notice of Bah’s misidentification. See Limone, 579 F.3d

at 91 (noting that “[t]he SJC has left open the possibility that an individual

may be held liable for malicious prosecution if he pursues a prosecution after

it has become clear to him that there is no probable cause to support it,” but

indicating “that the mere provision of false information cannot alone ground

a malicious continuation finding” and that, instead, “[m]ore is required, such

as an insistence that the prosecution go forward even after it has become

clear that probable cause is lacking”).

extension Apple) owed him a duty to conduct a reasonable inquiry

concerning any allegation of theft, to avoid making a false accusation of theft,

and to correct mistaken information in their records. See Compl. ¶¶ 211, 215.

In making a reasonable inquiry, “[a]n investigator’s duty runs to the person

or entity on whose behalf the investigation is conducted, not to the person

being investigated.” O’Connell v. Bank of Boston, 37 Mass. App. Ct. 416, 419

(1994) (citations omitted). Even if, as alleged here, “the investigation results

in ill-founded allegations or charges of criminal conduct . . . . the law makes

[other] remedies available – actions for defamation, malicious prosecution,

tortious infliction of emotional distress – albeit under very circumscribed

conditions.” Id. at 419-420. Accordingly, while an “individual falsely

accused is thus not remediless,” that remedy does not lie in a claim of

negligence. Id. at 420.

Likewise, the duty of care in a misrepresentation claim runs to the

misled party, not to the subject of the misrepresentation. See Zimmerman v.

Kent, 31 Mass. App. Ct. 72, 77 (1991) (“To sustain a claim of

misrepresentation, a plaintiff must show a false statement of a material fact

made to induce the plaintiff to act, together with reliance on the false

statement by the plaintiff to the plaintiff’s detriment.”); see also Sebago,

Inc. v. Beazer E., Inc., 18 F. Supp. 2d 70, 86 (D. Mass. 1998) (requiring that

defendant “intended, or had reason to expect, that on repetition, the

statements would influence Plaintiff’s conduct” to support a claim for

misrepresentation to third parties), quoting Reed Paper Co. v. Procter &

Gamble Distrib. Co., 807 F. Supp. 840, 845 (D. Me. 1992). Of equally fatal

consequence to Bah’s claim, the tort of misrepresentation, as defined under

Massachusetts law, applies only in a business context. See Sampson v.

MacDougall, 60 Mass. App. Ct. 394, 400 (2004). There is no plausible

allegation that Bah was engaged in any business dealings with SIS (or Apple),

or being anything other than an interested bystander to the dealings between

the two defendants.

Sanctions

Under Rule 11, a court may “impose sanctions on a party or lawyer for

advocating a frivolous position, pursuing an unfounded claim, or filing a

lawsuit for some improper purpose.” CQ Int’l Co. v. Rochem Int’l, Inc. USA,

659 F.3d 53, 60 (1st Cir. 2011). A frivolous claim is “either not well-grounded

in fact or unwarranted by existing law or a good faith argument for an

extension, modification or reversal of existing law.” Cruz v. Savage, 896

F.2d 626, 632 (1st Cir. 1990). “[T]he mere fact that a claim ultimately proves

unavailing, without more, cannot support the imposition of Rule 11

sanctions.” CQ Int’l Co., 659 F.3d at 60, quoting Protective Life Ins. Co. v.

Dignity Viatical Settlement Partners, L.P., 171 F.3d 52, 58 (1st Cir. 1999).

Apple and SIS, seeking attorneys’ fees and reimbursement for costs,

argue that sanctions are warranted against Bah because document discovery

in the New York litigation “leaves no question that the allegations in the

[instant] Complaint are false.” Apple Mot. for Sanctions (Dkt # 24) at 2.

Defendants refer to certain documents implying that Bah knew of Barrie’s

shoplifting and did not disclose that information to the police.

Yet the circumstances here do not establish the “culpable carelessness”

that “is required before a violation of the Rule can be found.” CQ Int’l Co.,

659 F.3d at 60, quoting Citibank Global Mkts., Inc. v. Santana, 573 F.3d 17,

32 (1st Cir. 2009). Bah filed duplicative actions in this and other courts

because his claims had been dismissed for lack of personal jurisdiction, and

not because of preclusion on the merits. And even though Bah amended his

complaint in the New York litigation to abandon his theory of malice, he still

pled alternative — albeit unsuccessful — theories of liability in this case,

including recklessness. Nor has there been any disposition on the merits in

the New York litigation to put Bah on notice that his claims or theories have

been adjudged frivolous by a court.

Bah, in turn, asks the court to sanction Apple and SIS for bringing the

motion for sanctions. While the court notes that Apple and SIS appear to be

using the motions as a vehicle to prematurely present evidence outside the

Complaint in support of the motion to dismiss, see Apple Sanctions Mot. at

2 (“Plaintiff and his counsel included in the Complaint myriad allegations

that they know are false based on document discovery they either produced

or received in a parallel action involving these same general events.”), the

court cannot say that the motions for sanctions are so baseless, frivolous, or

outlandish as to trigger Rule 11 sanctions where, as here, the court has

otherwise determined that the pleadings fail to survive a motion to dismiss.

Accordingly, it denies both parties’ request for sanctions.

ORDER

For the foregoing reasons, Apple’s and SIS’s motions to dismiss are

ALLOWED, while the reciprocal motions for sanctions are DENIED.

SO ORDERED.

/s/Richard G. Stearns _____

UNITED STATES DISTRICT JUDGE