Reinhardt v. The City of Buffalo

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

JAKE M. REINHARDT, TAYLOR M. )

SCHMIEDER, KEVIN R. HARRINGTON, _ )

CASEY E. CARMINATTI, and )

KRYSTYNA KIMBRELL, )

)

Plaintiffs, )

)

v. ) Case No. 1:21-cv-206

)

THE CITY OF BUFFALO, CLAYTON )

REED, MELISSA KURDZIEL, JAE S. )

MURPHY, SPENCER T. GEORGE, )

ROBERTO J. TORRES, COLIN KEENAN, _ )

DEVON SALTER-BROWN,, individually )

and in their capacities as City of Buffalo )

Police Officers, )

BAIL SHOP, LLC, ADEL MIKHEAIL, )

individually and in his capacity as a bail )

recovery agent for Bail Shop, LLC, )

BUFFALO BAIL BONDS AGENCY, INC., _)

DENNIS WHITE, individually and in his )

capacity as a bail recovery agent for Buffalo )

Bail Bonds Agency, Inc., JOHN DOE, )

individually and in his capacity as a bail )

recovery agent for Buffalo Bail Bonds +

Agency, Inc., )

)

Defendants. )

ORDER ON BAIL SHOP LLC AND ADEL MIKHEAIL’S MOTION TO DISMISS

(Docs. 57)

Plaintiffs Jake M. Reinhardt, Taylor M. Schmieder, Kevin R. Harrington, Casey E.

Carminati, and Krystyna Kimbrell (“Plaintiffs”) have sued Defendants Bail Shop, LLC (“Bail

Shop”) and Adel Mikheail, a bail recovery agent for Bail Shop (collectively, “Bail Shop

Defendants”), along with several other defendants,! for claims arising from searches of

' This action originally included City of Buffalo Police Commissioner Byron Lockwood

as a defendant. In response to a motion by the City and Commissioner Lockwood, the court

Plaintiffs’ residences on the nights of January 9, 2021 and January 10-11, 2021. (Doc. 41.)

According to the Amended Complaint, bail recovery agents employed by Bail Shop Defendants

and aided by City of Buffalo police officers “engaged in a violent, terrifying, warrantless search”

while trying to locate an alleged bail jumper, Luke Reinhardt, brother of Plaintiff Jake Reinhardt.

(Doc. 41 § 1.)

On April 27, 2021, Bail Shop filed a motion to dismiss all claims under Fed. R. Civ. P.

12(b)(6) for failure to state a claim. (Doc. 17 at 7.) In their response, Plaintiffs agreed to the

dismissal of Counts I-V with respect to Bail Shop. (Doc. 31 at 2-3.) Prior to a ruling on this

motion, Plaintiffs filed an Amended Complaint, which among other changes added Adel

Mikheail as a defendant. (Doc. 41.) In response, Bail Shop and Adel Milkheail filed a motion to

dismiss all claims under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction and 12(b)(6) for

failure to state a claim. (Doc. 57.)

Facts

Plaintiffs have brought constitutional and tort claims against the City of Buffalo, Clayton

Reed, Melissa Kurdziel, Jae S. Murphy, Spencer T. George, Roberto J. Torres, Colin Keenan,

and Devon Salter-Brown (in their individual and official capacities as City of Buffalo Police

Officers), Bail Shop LLC, Adel Mikheail (individually and in his capacity as a bail recovery

agent for Bail Shop, LLC), Buffalo Bail Bonds Agency, Inc., Dennis White (individually and in

dismissed without prejudice Plaintiffs’ claims against Commissioner Lockwood and, with

prejudice, certain claims against the City of Buffalo. (See Doc. 30.) The City remains a

defendant in connection with Plaintiffs’ Monell claim only. Ud.) The action also originally

included Financial Casualty & Surety, Inc., who was dismissed as a defendant and cross-

defendant pursuant to stipulations by the parties. (See Docs. 37, 39.) Plaintiffs’ Amended

Complaint names seven City of Buffalo Police Officers as defendants. (See Doc. 41.) Buffalo

Bail Bonds Agency, Inc. replaces “Corporation X” as a defendant and Dennis White and John

Doe, bail recovery agents for Buffalo Bail Bonds Agency, Inc., are also added as defendants.

(d.)

his capacity as a bail recovery agent for Buffalo Bail Bonds Agency, Inc.), and John Doe

(individually and in his capacity as a bail recovery agent for Buffalo Bail Bonds Agency, Inc.).

The court reviewed many of the relevant facts in its prior orders. (See Doc. 30.) The following

allegations are relevant to the pending motion.

At some point prior to January 9, 2021, the District Attorney of Lebanon County,

Pennsylvania charged Luke Reinhardt, brother of Plaintiff Reinhardt, with misdemeanor simple

assault, retail theft, and driving with revoked operating privileges. (Doc. 41 ff 36-37.) Luke

Reinhardt did not appear in court on the scheduled date and time, and his bail was revoked. (/d.

4 33.) Bail Shop, LLC, a surety bail bonds company domiciled in Lebanon, Pennsylvania (id.

{ 20), hired Pennsylvania bail recovery agent Adel Mikheail to locate and return Luke Reinhardt.

(Id. J 38.) After Adel Mikheail learned that Luke Reinhardt was likely traveling in Buffalo, he

contacted Dennis White, an agent employed by Buffalo Bail Bonds Agency, Inc., to assist him

with locating and returning Luke Reinhardt. (/d. {| 22, 39-40.)

In pursuit of Luke Reinhardt, bail recovery agents from Pennsylvania and Buffalo,

accompanied by City of Buffalo police officers, entered and searched Plaintiffs’ homes. (Doc. 41

{ 1.) During the first search on January 9, 2021, Dennis White, accompanied by John Doe and

Buffalo Police Officers Clayton Reed and Melissa Kurdziel, gained access to Plaintiff Kimbrell’s

home at 1329 Clinton Street in Buffalo, New York and performed a search. Ud. JJ 129-134.)

During this search, Dennis White and John Doe carried firearms and dressed in clothing similar

to that worn by law enforcement officers. (/d. § 137-138.) One of these pieces of clothing was a

jacket that read “United States Fugitive Task Force.” (/d. { 137.) Defendants performed the

search without permission or consent from Plaintiff Kimbrell. (Ud. ¢ 139.) The Amended

Complaint further alleges that they had neither a search warrant nor probable cause. (Id. {J 140,

142.)

On January 10, 2021, Defendants performed a similar search at 31 Oakdale Place in □

Buffalo, New York, where Plaintiffs Reinhardt, Schmieder, Carminati, and Harrington reside

with their children. (/d. §{] 26-31.) Agents Dennis White and John Doe approached the front

door and, upon finding it locked, began to knock on it to be let inside. (/d. J 32, 52, 60-63.) The

Buffalo Police Department Defendants stood on the sidewalk near 31 Oakdale Place, assisting in

the operation. (/d. § 64.) The noise awakened Plaintiffs and they heard Agent Dennis White say,

“lo]pen it up or we’ [Il] kick it in!” (Ud. §] 67-68.) Agent Dennis White saw Plaintiff Reinhardt

through a window and ordered him to open the door. (/d. 69-74.) After seeing Buffalo police

officers through his window, Plaintiff Reinhardt thought it would be safe to open the door. (/d.

q 75.) After he did so, Dennis White and John Doe forced Plaintiff Reinhardt out of his home,

pointing their guns at him. (/d. § 76-77.) Defendants then entered and searched the residence

without presenting a warrant and without consent or permission. (/d. {| 87.)

Upon observing Defendants about to enter his home, Plaintiff Reinhardt warned them

that his wife and his three-year-old daughter were sleeping inside. (Jd. | 90.) Dennis White

ordered Plaintiff Reinhardt to “secure his family,” but after asking Plaintiff Reinhardt whether he

had any weapons, Dennis White told him to stay outside. (/d. {] 91, 95.) Plaintiff Reinhardt

asked Dennis White to show him his search warrant, to which White responded, “You will see it

soon.” (Id. J 94.) Throughout this exchange, Plaintiff Reinhardt was standing outside in the cold

winter air without a shirt or shoes. Ud. 95.)

Dennis White, John Doe, Jae S. Murphy, and one other City of Buffalo police officer

entered the property through both the front and back doors. (/d. J] 96-97.) They were startled to

see the pregnant Plaintiff Schmieder and her three-year-old daughter. (/d. 4] 102-103.) They

pointed their guns at Plaintiff Schmieder and ordered her to put her daughter down. (/d. {| 104.)

Defendants then searched the entire lower apartment for Luke Reinhardt, even though they had

been told that he did not reside at this address. (Id. J 106.) They also questioned Plaintiffs at

gunpoint about Luke Reinhardt’s whereabouts. (Jd. §{] 107-109.) Plaintiff Reinhardt suffered

emotional distress on account of not knowing whether his family was safe. Ud. § 110.)

Later in the search, Dennis White and John Doe broke the door to the upstairs apartment

and entered and searched the upstairs apartment occupied by Plaintiffs Harrington and

Carminati. (Id. 112.) Dennis White and John Doe pointed their guns, mounted with flashlights,

directly at Harrington and Carminati’s five-year-old child. (/d. § 113.) During this time, Buffalo

police officers continued to assist the bail agents. (/d. {| 114-116.) When Defendants exited the

property, Plaintiff Reinhardt again asked to see the bail agents’ warrant. (/d. {J 118-120.)

Dennis White walked towards his car without showing Plaintiff Reinhardt a warrant. Plaintiff

Reinhardt began to walk towards the car as well (id. § 121), at which point Buffalo police

officers told Plaintiff Reinhardt “not to walk up on them.” (/d. § 123). Shortly afterwards, the

bail agents showed Plaintiff Reinhardt a bail bond contract. (/d. § 124.) After Defendants left,

Plaintiffs Reinhardt, Schmieder, Harrington and Carminati tried to comfort their children, but no

one could go back to sleep. Ud. § 128.)

Analysis .

I. Legal Standards

To survive a Rule 12(b)(6) motion to dismiss, a pleading “must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));

see also Fed. R. Civ. P. 8(a)(2). The court must make all reasonable inferences in favor of the

non-moving party. Lanier v. Bats Exch., Inc., 838 F.3d 139, 150 (2d Cir. 2016). Dismissal is

appropriate when “it is clear from the face of the complaint, and matters of which the court may

take judicial notice, that the plaintiff’s claims are barred as a matter of law.” Conopco, Inc. v.

Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000). The court is not required to take conclusory statements

or unsupported inferences as true. See Twombly, 550 U.S. at 557.

On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears

the burden of showing that the court has jurisdiction over the defendant. Robinson v. Overseas

Mil. Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). Where no evidentiary hearing has been held,

“the plaintiffs prima facie showing, necessary to defeat a jurisdiction testing motion, must

include an averment of facts that, if credited by [the ultimate trier of fact], would suffice to

establish jurisdiction over the defendant.” Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d

194, 197 (2d Cir. 1990). By requiring “fair warning” that an individual’s activities in a state may

subject him to suit there, the Due Process Clause protects an individual’s liberty interest and

a degree of predictability to the legal system that allows potential defendants to structure

their primary conduct with some minimum assurance as to where that conduct will and will not

render them liable to suit.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985)

(quotation marks omitted).

When confronted by a motion raising both jurisdictional and substantive defenses, the

court considers the jurisdictional issues as a preliminary matter, since “without such jurisdiction

[a court] lacks power to dismiss a complaint for failure to state a claim.” Arrowsmith v. United

Press Int’l, 320 F.2d 219, 222 (2d Cir. 1963).

Il. Personal Jurisdiction

A. Bail Shop

A defendant must object to the court’s exercise of personal jurisdiction in the first

Rule 12 motion or in the first responsive pleading or else the defense is considered waived. Fed.

R. Civ. P. 12(h)(1); 2 Moore’s Federal Practice — Civil § 12.31 (3d ed. 2021). Once a defendant

has waived personal jurisdiction, this defense “may not be resurrected merely because a plaintiff

has amended the complaint.” Gilmore v. Shearson/Am. Express Inc., 811 F.2d 108, 112 (2d Cir.

1987), overruled on other grounds by Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

U.S. 271 (1998).

By failing to object to the court’s exercise of personal jurisdiction in its first Rule 12

motion, Bail Shop has waived this defense. The addition of Adel Mikheail as a defendant does

not revive it. Bail Shop’s motion to dismiss for lack of personal jurisdiction under Federal Rule

of Civil Procedure 12(b)(2) is denied.

B. Adel Mikheail

Mr. Mikheail is a citizen and domiciliary of Pennsylvania. (Doc. 41 4 21.) As this is Mr.

Mikheail’s first Rule 12 motion, he has not waived the defense of lack of jurisdiction. Fed. R.

Civ. P. 12(h)(1)(A).

A two-step inguiry governs whether personal jurisdiction exists over a non-domiciliary.

Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010). First, the court

determines whether the long-arm statute of the forum state permits the exercise of jurisdiction

over the defendant. If the laws of the forum state permit jurisdiction, the court next determines

whether the exercise of such jurisdiction comports with the requirements of due process. Id.; Best

Van Lines, Inc. v. Walker, 490 F.3d 239, 244 (2d Cir. 2007).

In ruling on a motion to dismiss under Rule 12(b)(2) on the basis of affidavits, the court

assumes the truth of the plaintiffs’ factual allegations for purposes of the motion and “construe[s]

the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their

favor.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013); see also

Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013) (‘In

evaluating whether the requisite showing has been made, we construe the pleadings and any

supporting materials in the light most favorable to the plaintiffs.”). Blanket denials are generally

insufficient to overcome this deferential standard. See, e.g., Jenkins v. Miller, No. 2:12-cv-184,

2017 WL 4402431, at *25 (D. Vt. Sept. 29, 2017) (finding defendants’ affidavits “flatly

deny[ing] all the tortious conduct Plaintiffs allege” inadequate to defeat plaintiffs’ prima facie

showing of personal jurisdiction). Where parties submit conflicting affidavits to establish

personal jurisdiction, “all factual disputes are resolved in the plaintiff's favor, and the plaintiffs

prima facie showing is sufficient notwithstanding the contrary presentation by the moving

party.” Seetransport Wiking Trader Schiffarhtsgesellschaft MHB & Co., Kommanditgesellschaft

v. Navimpex Centrala Navala, 989 F.2d 572, 580 (2d Cir. 1993) (quoting Taylor v. Phelan,

912 F.2d 429, 431 (10th Cir. 1990)).

Plaintiffs argue the court has specific personal jurisdiction to adjudicate Mr. Mikheail’s

involvement in this dispute because he “coordinated and supervised the raids of Plaintiffs’

homes,” via telephone or in-person in Buffalo. (Doc. 58-1 at 8.) In response, Mr. Mikheail avers

that he was not physically present in the state of New York when the alleged searches took place

and “did not participate in, supervise, or control the alleged operation described in Plaintiffs’

Amended Complaint.” (Doc. 57-1 at 5—6.) Plaintiffs respond that even if Mr. Mikheail was not

physically present in the state to commit a tortious act as alleged, he engaged in a transaction of

business or a contract in the state, formed an agency relationship with an entity within the state,

or committed a tort outside the state causing injury within New York—any of which would

support specific jurisdiction under New York’s long-arm statute. (Doc. 58-1 at 6-10 (citing N.Y.

C.P.L.R. § 302(a)(1)-(2).)

The court begins by addressing New York’s long arm statute.

1. N.Y. C.P.L.R. § 302(a)(1) — Transaction of Business or Contract to

Supply Goods or Services in New York

Under New York State’s long-arm statute, “a court may exercise personal jurisdiction

over any non-domiciliary ... who in person or through an agent . . . (1) transacts any business

within the state or (2) contracts anywhere to supply goods or services in the state.” N.Y. C.P.L.R.

§ 302(a)(1)-(2). This subsection has two prongs, “either one of which can form a basis for the

exercise of personal jurisdiction over a non-domiciliary.” Bank Brussels Lambert v. Fiddler

Gonzalez & Rodriguez, 171 F.3d 779, 786 (2d Cir. 1999).

The question of whether an out-of-state defendant transacts business in New York is

based on the totality of the circumstances, guided by four factors:

(i) whether the defendant has an on-going contractual relationship with a New York

corporation; (ii) whether the contract was negotiated or executed in New York, and

whether, after executing a contract with a New York business, the defendant has

visited New York for the purpose of meeting with parties to the contract regarding

the relationship; (iii) what the choice-of-law clause is in any such contract; and

(iv) whether the contract requires franchisees to send notices and payments into the

forum state or subjects them to supervision by the corporation in the forum state.

Agency Rent A Car System, Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996)

(internal citations omitted).

Bail Shop Defendants argue that a defendant not physically present in a state cannot be

subject to jurisdiction in that state. (Doc. 57 at 11.) This conclusion is unfounded. It is well-

settled that a party need not be physically present in New York at the time the contract was

formed to be subject to jurisdiction in the state. See Parke-Bernet Galleries, Inc. v. Franklyn,

26 N.Y.2d 13, 16 (1970). However, remote communications into New York “will only be

sufficient to establish personal jurisdiction if they were related to some transaction that had its

‘center of gravity’ inside New York, into which a defendant ‘projected himself.’” Maranga v.

Vira, 386 F. Supp. 2d 299, 306 (S.D.N.Y. 2005) (quoting Wilhelmshaven Acquisition Corp. v.

Asher, 810 F. Supp. 108, 112 (S.D.N.Y. 1993)). For example, § 302(a)(1) supports jurisdiction

over a foreign resident who participates in an art auction held in New York via telephone, or who

retains a New York attorney for bankruptcy proceedings in New York. See Parke-Bernet

Galleries, 26 N.Y.2d at 16; Otterbourg, Steindler, Houston & Rosen, P.C. v. Shreve City

Apartments Ltd., 543 N.Y.S.2d 978 (N.Y. App. Div. 1989). For a single interstate

communication to “constitute a transaction of business subjecting the defendant to section

302(a)(1) jurisdiction, it is essential in each case that there be some act by which the defendant

purposefully avails [himself] of the privilege of conducting activities within the forum State.”

Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 766 (2d Cir. 1983) (cleaned up).

All but the first Agency Rent A Car factors weigh against finding Mr. Mikheail transacted

business in New York. Construed in the light most favorable to Plaintiffs, the facts establish that

Mr. Mikheail contacted New York citizen Dennis White to assist in the search for Luke

Reinhardt in New York. (Doc. 41 § 40.) In their Amended Complaint, Plaintiffs allege that “bail

enforcement agent Adel Mikheail ordered, supervised, conducted, and participated in the acts

complained of.” (Jd. { 20.) Mr. Mikheail had an ongoing contractual relationship with a New

York citizen, albeit a loosely defined one, as Mr. Mikheail had “regularly employed and utilized

the services of Defendants Dennis White and John Doe for engaging in the business of bail

recovery agents.” (/d. § 45.) As there are no allegations as to a written contract, the factors

10

concerning choice-of-law and other contractual terms are irrelevant here. Although it would be

fair to construe this verbal contract as having its “center of gravity” inside New York because the

hunt for Luke Reinhardt was to take place there, the totality of the circumstances do not support

a finding that this business transaction alone shows that Mr. Mikheail had sufficiently availed

himself of the privilege of doing busines in New York. Because either one of the two prongs of

section 302(a)(1) “can form a basis for the exercise of personal jurisdiction,” the court turns to

whether the “supply goods or services” prong of § 302(a)(1) would support personal jurisdiction

over Mr. Mikheail. Fiddler, 171 F.3d at 786.

To satisfy the “supply services” prong of New York’s long-arm statute, a Plaintiff must

only show that defendant contracted to furnish services in New York, even if the contract

creating that obligation was performed out-of-state. See Island Wholesale Wood Supplies, Inc. v.

Blanchard Indus., Inc., 476 N.Y.S.2d 192, 195 (N.Y. App. Div. 1984). Given the expansive

nature of this grant of jurisdiction, courts have stressed that “it is essential in each case that there

be some act by which the defendant purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its laws.” George

Reiner & Co. v. Schwartz, 41 N.Y.2d 648, 651 (1977).

Construed in the light most favorable to Plaintiffs, Plaintiffs have not established a prima

facie showing of personal jurisdiction over Mr. Mikheail under the second prong of § 302(a)(1).

Mr. Mikheail contacted New York citizen Dennis White to perform the service of locating Luke

Reinhardt in New York. Dennis White performed this service wholly within New York state.

This service was not a “one-off transaction,” but was rather part of an on-going relationship

whereby Mr. Mikheail “regularly employed and utilized the services of Defendants Dennis

White and John Doe for engaging in the business of bail recovery agents.” (Doc. 41 at { 45);

11

Chloe, 616 F.3d 158 (emphasizing importance of the repeat nature of services). However, under

this reading, Mr. Mikheail himself did not actually perform any services in New York, but rather

contracted with a New York domiciliary to provide those services. According to the Amended

Complaint, Mr. Mikheail was physically present in New York state for at least part of the search.

(Doc. 41 §§ 144-145.) But the Amended Complaint does not allege with any specificity whether

Mr. Mikheail’s actions in New York were taken pursuant to his agreement with Dennis White.

Indeed, the Amended Complaint does not allege that Mr. Mikheail was present at any of the

home searches, only that he, Dennis White, or John Doe “stalked” and “followed” one of the

Plaintiffs the morning after the 1329 Clinton Street search. (/d.) These allegations would be

sufficient to establish specific personal jurisdiction over Dennis White, but not Mr. Mikheail.

The court turns to whether the Amended Complaint supports a finding that Dennis White was

acting as an agent of Mr. Mikheail in a manner that supports jurisdiction under the long-arm

statute.

At common law, “[a]gency is the fiduciary relationship that arises when one person (a

‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the

principal’s behalf and subject to the principal’s control, and the agent manifests assent or

otherwise consents so to act.” In re Tribune Co. Fraudulent Conveyance Litig., 946 F.3d 66 (2d

Cir. 2019) (quoting Restatement (Third) of Agency § 1.01 (2006)); see also Comm. Union. Ins.

Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 462 (2d Cir. 2003) (“Establishment of [an agency]

relationship requires facts sufficient to show (1) the principal’s manifestation of intent to grant

authority to the agent, and (2) agreement by the agent. In addition, the principal must maintain

control over key aspects of the undertaking.”) (internal citations omitted). The “hallmark of an

agency relationship” is the principal’s power to give “interim instructions” to its agent. Jackson

12

v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 138 (E.D.N.Y. 2015) (quoting Restatement

(Third) of Agency § 1.01 cmt. f(1)).

Here, Mr. Mikheail manifested his intent to grant authority to Dennis White by

contacting him to pursue Luke Reinhardt in Buffalo, New York. He did so because he was not

personally licensed as a bail agent in New York and could not lawfully pursue Luke Reinhardt

himself. (Doc. 41 4 41.) Dennis White, in turn, manifested his assent by effectuating the

searches. However, even viewing the allegations in a light most favorable to Plaintiffs and

drawing all reasonable inferences in its favor, Plaintiffs’ non-conclusory allegations regarding

the agency relationship between Mr. Mikheail and Dennis White fail to “nudge” the assertion of

an agency relationship “across the line from conceivable to plausible.” Twombly, 550 U.S.

at 555. The Amended Complaint does not clarify whether Mr. Mikheail continued to maintain

control over “key aspects” of the home searches beyond the conclusory allegation that he

“supervised and coordinated” the searches. (/d.) Mr. Mikheail did not give interim instructions to

Dennis White. For example, there is no allegation that Mr. Mikheail directed Dennis White to

specific addresses in Buffalo or provided detailed directions regarding how and when the

searches were to be effectuated. A directive to “locate[] and return[] Luke Reinhardt” to

Pennsylvania falls short of the requisite control necessary to establish an agency relationship.

(Id. 41.) Accordingly, Mr. Mikheail did not himself provide services within New York state,

nor did an agent. Although subsequent discovery might unearth evidence showing an agency

relationship between Mr. Mikheail and Dennis White, at this time the court cannot conclude this

theory supports jurisdiction as a matter of law. The “goods and services” prong of section

302(a)(1) does not therefore convey jurisdiction over Mr. Mikheail.

13

2. N.Y. C.P.L.R. § 302(a)(2)—-(3) — Tortious Acts

Plaintiffs argue that Bail Shop Defendants committed a tortious act within the state or

through an agency relationship, or committed a tort outside of New York causing injury within

the state, either of which would support personal jurisdiction. N.Y. C.P.L.R. § 302(a)(2)(3).

In support of their assertion of jurisdiction under § 302(a)(2), Plaintiffs argue Mr.

Mikheail committed torts in New York. Specifically, they write that he “coordinated and

supervised the raids of Plaintiffs’ homes,” and “followed plaintiff Taylor Schmieder in an SUV.”

(Doc. 58 at 8-9.) Taken alone, neither of these allegations are tortious acts. Plaintiffs surmise

that Mr. Mikheail’s coordination and supervision “by phone,” is enough for § 302(a)(2)

jurisdiction. (/d. at 9.) However, a negligent act that takes place outside of New York—such as

negligent hiring—that causes an injury in the state does not confer jurisdiction under § 302(a)(2).

Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 461 (N.Y. 1965); see also

Fox v. Boucher, 794 F.2d 34 (2d Cir. 1986) (federal district court had no jurisdiction under §

302(a)(2) where defendant allegedly committed a tort during a telephone conversation from New

Jersey).

A better argument for jurisdiction under § 302(a)(2) arises under a conspiracy theory.

Courts regularly grant personal jurisdiction under § 302(a)(2) where a defendant is part of a

conspiracy involving the commission of a tortious act in New York. See Wimbledon Fin. Master

Fund, Ltd. v. Weston Cap. Met. LLC, 76 N.Y.S.3d 121 (N.Y. App. Div. 2018) Gurisdiction under

§ 302(a)(2) was proper where defendants were not present in New York but were co-conspirators

in a fraudulent scheme carried out in New York); Lawati v. Montague Morgan Slade Ltd., 102

A.D.3d 427, 428 (N.Y. App. Div. 2013) (section 302(a)(2) established jurisdiction over

defendant co-conspirator who was aware of torts being committed by other defendant co-

14

conspirators in New York); see also 1 Weinstein, Korn & Miller CPLR Manual, § 3.06(d) (2021)

(‘jurisdiction can be found where defendants are part of a conspiracy that involved the

commission of a tortious act in New York.”).

To establish jurisdiction over a non-domiciliary on the basis of the New York acts of a

co-conspirator, plaintiff must “(1) establish a prima facie case of conspiracy; (2) allege specific

facts warranting the inference that the defendant was a member of the conspiracy; and

(3) demonstrate the commission of an overt act in New York during, and pursuant to, the

conspiracy.” Best Cellars Inc. v. Grape Finds at Dupont, Inc., 90 F. Supp. 2d 431, 446 (S.D.N.Y.

2000). “The requisite relationship between the defendant and its New York co-conspirators is

established by a showing that (a) the defendant had an awareness of the effects in New York of

its activity; (b) the activity of the co-conspirators in New York was to the benefit of the out-of-

state conspirators; and (c) the co-conspirators acting in New York acted at the direction or under

the control, or at the request of or on behalf of the out-of-state defendant.” Jd. (quoting Chrysler

Capital Corp. v. Century Power Corp., 778 F. Supp. 1260, 1269 (S.D.N.Y. 1991)).

Whether jurisdiction over Mr. Mikheail exists is therefore bound to the question of

whether Plaintiffs have established a prima facie case of a conspiracy involving the commission

of tortious acts. For the reasons discussed in more detail in Sections III and V, the court finds

Plaintiffs have plausibly alleged that Mr. Mikheail was a participant in a § 1983 conspiracy, and

that tortious acts were committed in New York in the course of or as a result of the conspiracy.

This satisfies the three requirements of the Best Cellars test. 90 F. Supp. at 446.

Plaintiffs have also established the “requisite relationship” between Mr. Mikheail and his

New York-based co-conspirators. Chrysler, 778 F. Supp. 2d at 1269. Construed in the light most

favorable to Plaintiffs, the Amended Complaint supports the inference that Mr. Mikheail had an

15

awareness of the effects of his activity in New York. Believing Luke Reinhardt to be traveling in

New York, he contacted and conspired with a New York-based bail agent to locate and return

Luke Reinhardt to Pennsylvania. It is also reasonable to infer that the manhunt in New York was

to the financial or professional benefit of Mr. Mikheail, who was hired by Bail Shop to locate

and return Luke Reinhardt. (Doc. 41 § 38.) Last, the Amended Complaint plainly alleges that the

acts of co-conspirators in New York were performed under the control of, or at the request of, or

on behalf of Mr. Mikheail. Mr. Mikheail hired Dennis White to pursue Luke Reinhardt in New

York. Dennis White’s alleged tortious acts as an agent or co-conspirator were therefore at the

request of, or on behalf of, Mr. Mikheail. Accordingly, this court may assert personal jurisdiction

over Mr. Mikheail under N.Y. C.P.L.R. § 302(a)(2).

Because this court finds that there is jurisdiction pursuant to § 302(a)(1) and (2),

Plaintiffs’ claims regarding § 302(a)(3) need not be addressed.

3. Due Process

Having determined that jurisdiction over Mr. Mikheail is permitted under the New York

long-arm statute, the court turns to the due process inquiry. The due process test for personal

jurisdiction has two related components: the “minimum contacts” inquiry and the

“reasonableness” inquiry. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567

(2d Cir. 1996). Sufficient minimum contacts with the forum state exist for out-of-state

defendants when the defendant “purposefully avails [him or herself] of the privilege of

conducting activities within the forum State, thus invoking the benefits and protections of its

laws.” Burger King, 471 U.S. at 474 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958).

Where the defendant “deliberately” has engaged in activities giving rise to the facts in dispute in

the forum state, Keeton v. Hustler Mag., Inc., 465 U.S. 770, 781 (1984), or has contracted to

. 16

perform business in the forum state, Travelers Health Ass’n v. Commonwealth of Va. ex rel.

State Corp. Comm’n, 339 U.S. 643, 647 (1950), it is presumptively reasonable to require the

defendant “to submit to the burdens of litigation in that forum as well.” Burger King, 471 U.S. at

475.

“The New York long-arm statute does not extend in all respects to the constitutional

limits.” Licci ex rel. Licci vy. Lebanese Canadian Bank, SAL, 673 F.3d 50, 60-61 (2d Cir. 2012).

See also Allied Dynamics Corp. v. Kennametal, Inc., 965 F. Supp. 2d 276 (E.D.N.Y. 2013);

Topps Co. v. Gerrit J. Verburg Co., 961 F. Supp 88, 90 (S.D.N.Y. 1997). Because the New York

long-arm statute is more restrictive than the federal due process requirements, by virtue of

satisfying the long-arm statute, the minimum contacts and reasonableness requirements of due

process are likewise satisfied.

For these reasons, Mr. Mikheail’s motion to dismiss for lack of personal jurisdiction

under Federal Rule of Civil Procedure 12(b)(2) is denied.

C. Motion for Limited Discovery on Personal Jurisdiction

Defendants request limited jurisdictional discovery. (Doc. 56 at 11.) Having already

concluded that New York’s long-arm statute grants specific jurisdiction over Mr. Mikheail on the

facts available to the court, it is unnecessary to initiate jurisdictional discovery. Defendants’

request for jurisdictional discovery is denied. □

Ill. Fed. R. Civ. P. 4(m) .

Before turning to the other claims raised in Bail Shop Defendants’ Motion to Dismiss, the

court pauses to raise the issue of timely service. “If a defendant is not served within 90 days after

the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must

dismiss the action without prejudice against that defendant or order that service be made within a

17

specified time.” Fed. R. Civ. P. 4(m). If the plaintiff makes a showing of good cause for the

delay, a mandatory extension of time to perfect service must be issued. Jd.

The Amended Complaint was filed on September 1, 2021. The 90-day window for

Plaintiffs to serve all defendants lapsed on November 30, 2021. All Defendants except John Doe

have been named and served. (See Docs. 45, 46, 48.) Although Defendants have not moved for

dismissal as against John Doe, the Rules empower the court to dismiss sua sponte any defendants

who have not been served, after notice to the parties. Thompson v. Maldonado, 309 F.3d 107,

110 (2d Cir. 2002) (“As indicated by the plain language of Rule 4(m), notice to the plaintiff must

be given prior to a sua sponte dismissal.”). The deadline to identify and serve John Doe has

passed. This order serves as notice to Plaintiffs that failure to effect service will result in

dismissal without prejudice of John Doe. Plaintiffs have 30 days from the date of entry of this

order to either (1) identify and serve John Doe, or (2) file a motion for an extension of time for

service in reliance on the “good cause” standard of Rule 4(m), no more than 10 pages in length.

IV. Federal Claims

Defendants Bail Shop and Adel Mikheail seek dismissal of Plaintiffs’ 42 U.S.C. § 1983

conspiracy claim (Count V). (Doc. 57 at 7.) Plaintiffs agreed to dismiss their constitutional

claims against Bail Shop, including Count V. (Doc. 31 at 1; Doc. 58-1 at 2, n.1.) The court grants

Bail Shop’s motion to dismiss Count V as to Bail Shop.

Plaintiffs have not agreed to dismiss their constitutional claims against Adel Mikheail.

(Doe. 58-1 at 23-25.) Accordingly, the court considers whether Plaintiffs have stated a plausible

§ 1983 conspiracy claim against Mr. Mikheail.

Adel Mikheail makes two arguments against the 42 U.S.C. § 1983 conspiracy claim.

First, he argues that the facts pertaining to the § 1983 claim in the Amended Complaint are mere

18

recitations of the elements of conspiracy and thus too sparse to survive a Rule 12(b)(6) motion to

dismiss. (Doc. 57 at 9-10.) Second, he argues that Plaintiffs have failed to establish that he is a

state actor acting under color of state law necessary to support § 1983 liability. (/d. at 10-11.)

The court considers these arguments in turn.

To state a conspiracy claim under § 1983, a plaintiff must show “(1) an agreement

between two or more state actors or between a state actor and a private entity; (2) to act in

concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal

causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Private entities and

individuals cannot be held vicariously liable under § 1983 for the constitutional violations of

employees or agents. Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d Cir.

1990). Although “completely unsubstantiated allegations of conspiracy are insufficient to state a

claim for relief under § 1983,” Covington v. City of New York, No. 99 Civ. 4234(SAS), 1998 WL

226183, at *3 (S.D.N.Y. May 4, 1998), “conspiracies are by their very nature secretive

operations, and may have to be proven by circumstantial, rather than direct, evidence.”

Pangburn, 200 F.3d at 72 (cleaned up); see also Leatherman v. Tarrant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163, 166 (1993) (proscribing the application of a “heightened

pleading standard” in civil rights cases).

Plaintiffs’ Amended Complaint plausibly alleges a § 1983 conspiracy involving Mr.

Mikheail. First, Plaintiffs allege that Mr. Mikheail formed an agreement with Dennis White to

locate Luke Reinhardt in Buffalo, New York, who in turn worked with Buffalo Police

Department Defendants to unlawfully search Plaintiffs’ homes. Mr. Mikheail allegedly “ordered,

supervised, conducted, and participated in” the home searches and “supervised and coordinated”

19

the raids. (Doc. 41 4 20, 52.) Taken alone, the court agrees that these allegations amount to no

more than a recitation of the elements of conspiracy.

However, the Amended Complaint further details specific communications between Mr.

Mikheail and Dennis White, and later between Dennis White, John Doe, and the Buffalo Police

Department Defendants, which plausibly allege the formation of an agreement to conduct

warrantless searches of Plaintiffs’ private residences. (Id. J] 40-41 (‘Adel Mikheail contacted

Dennis White to assist him with locating and returning Luke Reinhardt”); Id. § 66 (the Buffalo

Police Department Defendants’ actions were performed in furtherance of the operation

“coordinated and planned by Bail Shop, Adel Mikheail, and Buffalo Bail Bonds with Defendants

Dennis White, John Doe, and the other Defendants.”); Jd. [§ 57-58, 134-136 (detailing pre-raid

“huddles” and strategic discussions between Dennis White and Buffalo Police Department

Defendants).)? The Amended Complaint also details concerted acts to inflict an unconstitutional

injury and overt acts done in furtherance of the conspiracy, including communications and

cooperation among municipal Defendants, Mr. Mikheail, Dennis White, and J ohn Doe and the

ensuing warrantless searches of Plaintiffs’ homes. Finally, Mr. Reinhardt’s repeated—and

ignored—requests to bail agents and municipal police to see a valid search warrant at the very

least give rise to an inference that the alleged co-conspirators shared knowledge that the home

searches were unlawful. (/d. 92-94, 100, 105.)

Whether bail bond enforcement agents are categorically state actors for purposes of

§ 1983 is unsettled in the Second Circuit? Regardless, courts have long held that private

2 The Order on City Defendants’ Motion to Dismiss provides a fuller accounting of the

alleged collaboration between bail agents and police officers to conduct warrantless searches of

Plaintiffs’ private residences. (See Doc. 30 at 12-15.)

3 At least one decision suggests that bail enforcement agents who enlist law enforcement

in arresting individuals are state actors. Marshall v. Reyes, No. 16-CV-5715 (PKC) (LB), 2016

20

individuals who conspire with government officials to deprive an individual of their

constitutional rights are transformed into state actors subject to § 1983 liability. This is because

proof of such a conspiracy establishes that the private action was taken under color of state law.

See Dennis v. Sparks, 449 U.S. 24 (1980) (finding a private person to act under color of state law

where he conspired with a judge to violate due process rights of plaintiffs); Adickes v. S.A. Kress

& Co., 398 U.S. 144, 152 (1970) (where a private restaurant “is a willful participant in joint

activity with the State or its agents,” to discriminate against Black customers, proof of the

conspiracy established the restaurant acted under color of state law and could be held liable

under § 1983); see also 5 Martin A. Schwartz, Section 1983 Litigation Claims and Defenses, §

5.16 Joint Participation Doctrine (4th ed. 2022) (“[S]tate action is present when private persons

act jointly or in concert with public officials.”). At least one court in the Second Circuit has

applied this “joint action” test in the context of bail enforcement agents, concluding that an agent

who “operated as a willful participant in a joint activity with the State or its agents, or act[ed]

together with state officials or with significant state aid,” is transformed into a state actor for

purposes of § 1983. Lopez, 2015 WL 5657361, at *6 (quoting Abdullahi v. Pfizer, Inc., 562 F.3d

163, 188 (2d Cir. 2009)).

WL 6603994, at *2 n.4 (E.D.N.Y. Nov. 8, 2016) (citing Lopez v. Zouvelos, No. 13-CV-6474

(MKB), 2015 WL 5657361 (E.D.N.Y. Sept. 23, 2015)). A majority of circuits have adopted

similar rules. See United States v. Poe, 556 F.3d 1113, 1124 (10th Cir. 2009) (where “bounty

hunters did not intend to assist law enforcement, they are not state actors”); Dean v. Olibas, 129

F.3d 1001, 1003, 1005—06 (8th Cir. 1997) (bondsman who “did not rely on governmental

assistance” in search was not state actor); Landry v. A-Able Bonding, Inc., 75 F.3d 200, 204-05

(5th Cir. 1996) (bail agent who did not act pursuant to a warrant and did not enlist the aid of

police in effecting arrest is not a state actor); Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547,

552-53 (9th Cir. 1974) (same). Only one circuit has found that bail bondsmen are state actors for

purposes of § 1983 regardless of law enforcement involvement. See Jackson v. Pantazes, 810

F.2d 426, 428 (4th Cir. 1987).

21

Here, the bail recovery agent defendants—including Bail Shop Defendants, Dennis

White, and John Doe—can be considered state actors. Dennis White contacted the Buffalo Police

Department and “huddled” with them to coordinate the home searches. (Doc. 41 55, 134—

136.) Defendants White and John Doe directed Buffalo Police Officers’ actions during the raids,

relying on law enforcement assistance to monitor entrances and exists to the buildings. (/d. at □□

53, 60-64.) Mr. Mikheail acted pursuant to a warrant for Luke Reinhardt’s arrest and either

directly or through co-conspirators enlisted the aid of police to attempt to effect an arrest. Cf

Landry, 75 F.3d at 204-05 (bail agent who did not act pursuant to a warrant and did not enlist the

assistance of police is not a state actor). Accordingly, Defendants’ argument that Plaintiffs’

failed to establish that Bail Shop Defendants were state actors acting under color of state law

does not support dismissal of this claim.

Last, Bail Shop Defendants contend the court must apply a heightened pleading standard

to civil rights conspiracy claims, citing several cases in support. (Doc. 57 at 9-10.) While

Defendants are correct to note that a plaintiff asserting a § 1983 conspiracy claim must allege

more than conclusory allegations, this standard is not exceptional. Indeed, the court finds no

appreciable difference between the standards expressed in the cases cited by Defendants and the

Twombly-Igbal pleading standard which demands more than “an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Although the Amended Complaint

does not contain direct evidence of a conspiratorial agreement, the foregoing facts provide

enough specific and circumstantial evidence of a conspiracy for the claim to survive the present

12(b)(6) motion to dismiss. See Pangburn, 200 F.3d at 72; Rounseville v. Zahl, 13 F.3d 625, 632

(2d Cir. 1994) (“[C]onspiracies are by their very nature secretive operations that can hardly ever

be proven by direct evidence.”). Last, while it is true that private individuals cannot be held

22

vicariously liable under § 1983 for the constitutional violations of employees, see Rojas,

924 F.2d at 408-09, the same cannot be said for private individuals who directly participate in a

§ 1983 conspiracy. Because the Amended Complaint details Mr. Mikheail’s direct involvement

in the conspiracy, the bar against respondeat superior liability under § 1983 does not apply.

For the foregoing reasons, Defendants’ motion to dismiss the § 1983 conspiracy claim

(Count V) against Adel Mikheail is denied.

V. Supplemental Jurisdiction

Plaintiffs invoked federal question jurisdiction under 28 U.S.C. § 1331 as the basis for

this court’s subject-matter jurisdiction over their § 1983 claims, and supplemental jurisdiction

under 28 U.S.C. § 1367(a) as the basis for its jurisdiction over their state-law claims. Having

dismissed Plaintiffs’ federal claims against Bail Shop but not Mr. Mikheail, the court now

considers whether 28 U.S.C. § 1367(a) supports its retention of jurisdiction over Plaintiffs’ state-

law claims.

Section 1367(a) provides that

[e]xcept as provided in subsections (b) and (c) .. . in any civil action of which the

district courts have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action within

such original jurisdiction that they form part of the same case or controversy under

Article III of the United States Constitution.

28 U.S.C. § 1367(a) (emphasis added). Subsection (c) in turn allows the court to decline to

exercise supplemental jurisdiction if:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the

district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction,

or

(4) in exceptional circumstances, there are other compelling reasons for declining

jurisdiction.

Id. § 1367(c).

23

The court has original jurisdiction over Plaintiffs’ federal constitutional claims. 28 U.S.C.

§ 1331. Both the federal and state-law claims arise from “a common nucleus of operative fact.”

Cohill, 484 U.S. at 349 (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)).

Consequently, the court must exercise supplemental jurisdiction over Plaintiffs’ state-law claims

against Bail Shop Defendants unless a discretionary exception from § 1367(c) applies and

weighs against the court’s exercise of supplemental jurisdiction. For the following reasons, the

court concludes that this case implicates none of the circumstances identified in 28 U.S.C.

§ 1367(c) that could transform its exercise of supplemental jurisdiction from mandatory to

discretionary.

Although the court has dismissed all federal claims against Bail Shop, it has not

dismissed “all claims over which it had original jurisdiction.” The court retains jurisdiction over

federal claims against several other defendants, including Bail Shop employee Mr. Mikheail.

Due to their common factual core, adjudicating all claims against all Defendants in a single

proceeding will serve the interests of judicial economy and convenience. Moreover, the state law

tort claims do not raise novel or complex issues of state law, and concerns about comity between

state and federal courts therefore do not weigh strongly in favor of declining to exercise

supplemental jurisdiction. See Drake v. Lab’y Corp. of Am. Holdings, 290 F. Supp. 2d 352, 375

(E.D.N.Y. 2003) (“[I]ssues of comity would not be offended in exercising jurisdiction over the

plaintiff's basic, non-novel state law claims.”), aff'd, 458 F.3d 48 (2d Cir. 2006). Finally, Bail

Shop Defendants have not objected to the court’s exercise of supplemental jurisdiction over

. Plaintiffs’ state-law claims on the basis of fairness, or identified any “exceptional circumstances”

that would counsel against the exercise of supplemental jurisdiction. The court correspondingly

considers any such arguments to be waived. See Catzin v. Thank You & Good Luck Corp., 899

24

F.3d 77, 83 (2d Cir. 2018) (“Hearing from the parties in person or on the papers is typically an

essential component of the inquiry into whether to decline to exercise supplemental jurisdiction

because . . . [it] enhances the fairness of the proceedings.”).

VI. = State-Law Claims

Bail Shop Defendants seek dismissal with prejudice of “all purported causes of action

contained within Plaintiffs’ Complaint.” (Doc. 57 at 1.) The Amended Complaint includes state-

law tort claims for trespass (Count VII), false imprisonment (Count VII), assault (Count IX),

battery (Count X), and intentional infliction of emotional distress (Count XI) for which Plaintiffs

seek to hold Bail Shop Defendants vicariously liable. The Amended Complaint also includes □

claims for torts committed by Bail Shop employee Adel Mikheail (Counts XI, XIII, XIV), for

which Plaintiffs seek to hold Adel Mikheail and Bail Shop liable. With the exception of Count

XIV, all claims for relief against Bail Shop are brought under the doctrine of vicarious liability.

Plaintiffs agree to dismissal for intentional and negligent infliction of emotional distress claims

against the Bail Shop Defendants “to the extent this Court agrees that there are more traditional

tort theories available.” (Doc. 58-1 at 2 n.1.)

The court first addresses the law of vicarious liability in the state of New York and

evaluates whether the Amended Complaint plausibly alleges a theory of Bail Shop’s vicarious

liability for its independent contractors’ torts. Concluding that it does, the court then considers

whether the Amended Complaint plausibly alleges the requisite elements of each tort for which

Plaintiffs seek to hold the Bail Shop Defendants vicariously liable. For the reasons that follow,

the court denies the motion to dismiss Plaintiffs’ claims for the “traditional tort theories” of

trespass (Count VII), false imprisonment (Count VID, and assault (Count IX). The court will

25

therefore grant the motion to dismiss Count XI against Bail Shop and Count XII against Bail

Shop and Adel Mikheail. The remaining state-law claims are before the court.

A. Vicarious Liability

Plaintiffs argue that Bail Shop and Adel Mikheail are vicariously liable for the actions of

Dennis White and John Doe because their tortious acts occurred under the actual or apparent

authority of the Bail Shop Defendants. (Doc. 58-1 at 15.)

Bail Shop Defendants fail to put forth specific arguments about either the scope-of-

employment standard or the applicability of vicarious liability to intentional as well as

unintentional torts. (Doc. 57 at 12.) Rather, Bail Shop Defendants argue that Dennis White and

John Doe were agents or employees of Buffalo Bail Bonds Agency, or else were independent

contractors of Bail Shop, and so Bail Shop cannot be held vicariously liable for their actions

during the alleged incidents. (/d. at 11 (citing Doc. 41 §[ 23—24).)

The Bail Shop Defendants’ liability under state law for its agents, contractors, and

employees’ actions is governed by New York law. In New York, an employer is generally liable

for the negligence of its agents and employees acting in the scope of their employment. Riviello

v. Waldron, 391 N.E.2d 1278, 1280-81 (N.Y. 1979); Mott v. Consumer's Ice Co., 73 N.Y. 543,

543 (N.Y. 1878). Unlike agents and employees, an individual who hires an independent

contractor is generally not liable for the torts of the independent contractor or the independent

contractor’s employees. Dean v. City of Buffalo, 579 F. Supp. 2d 391, 398 (W.D.N.Y. 2008).

There are three exceptions to the general rule of non-liability of an employer for the torts of their

independent contractor: (1) the employer negligently hired, instructed, or supervised the

contractor; (2) the work assigned to the independent contractor involved a non-delegable duty; or

26

(3) the work assigned to the contractor was inherently dangerous. Aflantic Container Line AB v.

Aref Hassan Abul, Inc., 281 F. Supp. 2d 457, 465 (N.D.N.Y. 2003) (internal citations omitted).

For the reasons explained in more detail supra in Section I(B)(1), the facts presented to

the court in the Amended Complaint do not support a finding that Dennis White and John Doe

acted as agents or employees of the Bail Shop Defendants. Rather, the apparent lack of day-to-

day control over Dennis White and John Doe’s duties supports a finding that they acted as

independent contractors. Whether one of the three exceptions to general rule of non-liability for

independent contractors attaches will determine Bail Shop Defendants’ vicarious liability for the

torts of their contractors.

1. Negligent Hiring

To show negligent hiring, Plaintiffs must establish the standard elements of negligence as

to the employer, as well as “(1) that the tortfeasor and the defendant were in an employee-

employer relationship; (2) that the employer knew or should have known of the employee’s

propensity for the conduct which caused the injury prior to the injury’s occurrence; and (3) that

the tort was committed on the employer’s premises or with the employer’s chattels.” Ehrens v.

Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004). “To hold a party liable under theories of

negligent hiring, negligent retention, and negligent supervision, a plaintiff must establish that the

party knew or should have known of the contractor’s propensity for the conduct which caused

the injury. Bellere v. Gerics, 759 N.Y.S.2d 105, 107 (N.Y. App. Div. 2003) (internal citation

omitted). In other words, “[a] cause of action for negligent hiring or retention requires allegations

that the employer .. . failed to investigate a prospective employee notwithstanding knowledge of

facts that would lead a reasonably prudent person to investigate that prospective employee.”

27

Biggs v. City of New York, No. 08 CIV. 8123 (PGG), 2010 WL 4628360, at *9 (S.D.N.Y. Nov.

16, 2010) (cleaned up).

Plaintiffs allege that Bail Shop Defendants fell short of this duty by failing to properly

screen, supervise, and train Dennis White and John Doe regarding the “protections and rights

under the Fourth Amendment.” (Doc. 41 { 301.) Plaintiffs further allege that Defendants

committed the alleged torts due to lack of adequate training or supervision. (/d. {J 169-170,

300.) The Amended Complaint also alleges that Bail Shop Defendants maintained an employer-

employee relationship with Dennis White and John Doe (id. {{{ 41-45), and that Defendants used

a bail bond contract, presumably belonging or entrusted to Bail Shop, in the course of

committing the alleged torts. Ud. J 104).

These allegations come close to plausibly alleging negligent hiring under New York law,

but fall short on one element: The Amended Complaint does not allege that Bail Shop knew or

should have known of its employees’ propensities to engage in the alleged tortious conduct.

While the Amended Complaint plausibly alleges that the Bail Shop Defendants knew or should

have known that Dennis White and John Doe were not licensed as bail recovery agents in New

York (Doc. 41 45), there are no allegations that the Bail Shop Defendants knew that its

employees had engaged in tortious conduct in the past or would do so in this case. Although the

Amended Complaint’s allegations are sufficient to put Bail Shop on notice of Plaintiffs’ claim

that Bail Shop negligently hired, trained, retained, or supervised Dennis White and John Doe, see

Doe v. Intercont’l Hotels Grp., PLC, 146 N.Y.S.3d 247, 249 (N.Y. App. Div. 2021), the

Amended Complaint falls short of the Rule 12(b)(6) standard because Plaintiffs do not plausibly

allege all of the necessary elements of the tort.

28

2. Non-delegable Duty

“The ‘nondelegable duty’ exception may be invoked where a particular responsibility is

imposed upon a principal by statute or regulation.” Chainani by Chainani v. Bd. of Educ. of City

of New York, 87 N.Y.2d 370, 381 (N.Y. 1995). Plaintiffs argue New York law creates a statutory

duty to obtain a license issued in New York before doing “bail business” in New York, and

Defendants’ breach of this duty gives rise to liability for the torts of its independent contractors.

McKinney’s Insurance Law § 6802. As the Court of Appeals explained, statutes containing a

“snecific positive command” create a nondelegable duty, whereas those that merely incorporate

“the ordinary tort duty of care,” using terms like “adequate,” “effective,” or “suitable,” do not.

Morris v. Pavarini Constr., 9 N.Y.3d 47, 50 (N.Y. 2007).

Section 2806(a) of the New York Insurance Law mandates that all persons, firms, and

corporations doing “bail business” in New York “shall” be licensed by the superintendent as an

agent. The statute also stipulates that “[e]very corporation . . . engaging as an insurer doing a bail

business in this state shall procure a license . . . for each of its employees, officers and agents

acting for it in soliciting, negotiating or effectuating any such deposit or bail bond.” McKinney’s

Insurance Law § 2806(b). These sections impose specific positive commands to perform specific

tasks and so impose a nondelegable duty upon Bail Shop Defendants.

The problem for Plaintiffs is that this statutory provision does not create any affirmative

duty whose breach would give rise to tort liability. Engaging in bond business in New York

without a license is not a tortious offense; it is a misdemeanor.’ Although the Amended

4 The New York statute is meaningfully different from comparable statutes in other

contexts—such as construction—where the independent contractor’s failure to abide a

nondelegable statutory duty itself gives rise to the tortious action. See USAA Cas. Ins. Co. v.

Permanent Mission of Republic of Namibia, 681 F.3d 103, 110-11 (2d Cir. 2012) (holding the

employer could be held vicariously liable for independent contractors’ negligence where

29

Complaint plausibly alleges that the bond agents conducted searches without the licenses

required by statute, Dennis White and John Doe’s failure to obtain licenses would not, if proven,

give rise to any of the tortious activities alleged in the Amended Complaint. The nondelegable

duty exception does not render Bail Shop Defendants liable for the alleged torts of its

independent contractors.

3. Inherently Dangerous Activity

Finally, the court considers whether the “inherently dangerous activity” exception to non-

liability for independent contractors’ torts applies. “Where the activity performed by a contractor

is an inherently dangerous one, the negligence of the contractor may be imputed to the

employer.” Petition of Alva S. S. Co., Ltd., 616 F.2d 605, 610 (2d Cir. 1980). An activity is

inherently dangerous when it is “necessarily attended with danger—no matter how skillfully or

carefully it is performed.” 34 Am. Jur. Proof of Facts § 5 (2d ed. 1983). In determining whether

an activity is abnormally dangerous, the following factors are considered:

(a) existence of a high degree of risk of some harm to the person, land or chattel

of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous

attributes.

Restatement (Second) Torts § 520 (1965).

No court in New York has had the opportunity to decide whether working as a bail

bondsman is an inherently dangerous activity. Courts in other jurisdictions have considered the

contractors ignored a statute mandating safety precautions around demolition sites). The

statutory duty in New York is also narrower than in other states such as South Carolina which

specifically require bail bondsmen to supervise their contractors’ work. See S.C. Code Ann. §

38-53-120.

30

issue with differing outcomes. The Supreme Court of Washington found that “fugitive defendant

apprehension” was not an “abnormally dangerous activity” but nevertheless posed “a peculiar

risk of harm” subjecting a principal to liability for the negligence of its independent contractor.

Stout v. Warren, 290 P.3d 972, 982 (Wash. 2012) (en banc) (citing Restatement (Second) of

Torts § 416 (1965)). Emphasizing that “there is an indisputable danger inherent in the

apprehension of one who has failed to answer to a charge levelled in a court of law,” an Ohio

court also concluded that the business of apprehending fugitives presents dangers to others “even

if undertaken with the utmost precaution.” Hayes v. Goldstein, 697 N.E.2d 224, 226 (Ohio Ct.

App. 1997). A Montana district court disagreed, finding that “bounty hunting is not an

abnormally dangerous activity,” because bond agents can take reasonable precautions to reduce

risks, and because cash bond provides an important social benefit. Mitchell v. First Call Bail &

Surety, Inc., 412 F. Supp. 3d 1208, 1220 (D. Mont. 2019).

The weight of the Restatement factors support a finding that the activities of armed bail

enforcement agents are inherently dangerous. Apprehending fugitives at large, as with most other

armed professions, carries a high degree of risk of some harm. See, e.g., Waugh v. Dow, No.

CIV-11-1419-C., 2014 WL 2807574, at *1 (W.D. Okla. Jun. 20, 2014) (fugitive was shot in leg

while fleeing agents); Mitchell, 412 F. Supp.3d at 1219 (“[b]ounty hunting creates a high degree

of risk of harm. As weapons are regularly used in the act, the risk contemplated is death or

serious bodily harm, which presents a likelihood that when harm occurs the harm will be great.”)

(Internal quotations omitted); Paull v. Park Cnty., 218 P.3d 1198, 1202 (Mont. 2009) (holding

that the “transportation of prisoners is, by its nature, a unique and inherently dangerous activity”

because “those being transported are often persons charged with or convicted of serious criminal

offenses.”). Although the exercise of reasonable care can render the activity safer—for instance

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through training or selection of the apprehension venue—the risk to the general public cannot be

altogether eliminated. Cf State v. Portnoy, 718 P.2d 805, 807 (Wash. Ct. App. 1986) (affirming

assault convictions of bail bondsman who injured bailee’s family members in attempt to capture

bailee). Moreover, there is a risk that the bail agent’s actions will cause the person being

apprehended—or others in the vicinity—to react in a manner causing physical harm to others.

The facts alleged in the Amended Complaint illustrate that even when bail enforcement agents

take care to conduct apprehensions at private residences rather than in public areas, harms to

third parties can still be expected to occur. This also weighs on the fifth factor since the activities

of bail enforcement agents are not rendered appropriate in private dwellings, presumably the

safest place to conduct searches and reduce collateral risks to others. The fourth factor also

weighs in favor of a finding of unusual risks. Members of the general public are not usually

subjected to the risk of others breaking into their homes or mistakenly apprehending them, nor

would one expect to encounter the risk of being caught between armed bail agents and fugitive

defendants in their home.

The final factor—whether the value to the community of apprehending those who fail to

appear after posting cash bail is outweighed by its dangerous attributes—is a complex issue

beyond the scope of this order. On the one hand, “the value of ensuring that those accused of a

crime may be released prior to trial is of the utmost importance,” and bail enforcement agents are

perhaps a necessary component of this system. Mitchell, 412 F. Supp. 3d at 1220. On the other

hand, deputizing private civilians to conduct armed home raids like those alleged here—with

little government oversight—cannot be considered an activity that has much positive value for

any community. On balance, this factor weighs in favor of finding bail enforcement to be an

inherently dangerous activity. The court concludes bail enforcement activities are inherently

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dangerous, and so Bail Shop Defendants can be held vicariously liable for the torts of their

independent contractors arising out of those activities.

4. Vicarious Liability for Unintentional Torts

Having concluded Bail Shop Defendants may be held vicariously liable for the torts of

independent contractors under the inherently dangerous activity exception, the court pauses to

address Plaintiffs’ contention that Bail Shop may be held vicariously liable for the intentional as

well as unintentional torts of its contractors. The Amended Complaint alleges that Bail Shop

employed Adel Mikheail, and that Adel Mikheail contracted with Dennis White, an employee of

Buffalo Bail Bonds Agency, to assist in the recovery of Luke Reinhardt. (Doc. 41 {§ 21-22, 40—

41.) The Amended Complaint further alleges that the Buffalo Bail Bonds and Police Defendants

committed various torts—unintentional and intentional—while searching Plaintiffs’ properties

for Luke Reinhardt. (Ud. [9] 32, 52, 63-87, 97, 99-105, 110, 132). Performing searches to find a

bail jumper is within the expected scope of employment for bail agents. Moreover, a factfinder

could conclude that the commission of the alleged intentional torts—trespass, false

imprisonment, assault, and battery—may be “reasonably expected” to occur during such

searches. Stewart, 25 N.Y.S.3d at 661; cf Fauntleroy v. EMM Grp. Holdings LLC, 20 N.Y.S.3d

22, 24 (N.Y. App. Div. 2015) (use of physical force was reasonably expected and within the

scope of employment for security guards and bouncers); Giambruno v. Crazy Donkey Bar &

Grill, 885 N.Y.S.2d 724, 728 (N.Y. App. Div. 2009) (same).

Because a reasonable factfinder could conclude Dennis White and John Doe committed

intentional torts while acting within the scope of their duties as independent contractors, the

Amended Complaint plausibly alleges the Bail Shop Defendants’ vicarious liability for

Defendants’ tortious acts.

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Of course, a prerequisite to Bail Shop’s vicarious liability for any tort is the actual

commission of a tort by Bail Shop agents or employees. The court next addresses whether the

Amended Complaint contains sufficient factual allegations to support a claim for relief based on

any of the tortious acts Defendants are alleged to have committed.

B. Intentional Torts of Unidentified Defendants

1. Trespass (Count VI)

The Amended Complaint states a plausible claim for trespass. In New York, the elements

of trespass are (1) an intentional (2) entry onto the land (3) of another (4) without permission.

See Ivory v. Int’l Bus. Mach. Corp., 983 N.Y.S.2d 110, 116 (N.Y. App. Div. 2014) (citing Hand

v. Stray Haven Humane Soc’y & S.P.C.A., Inc., 799 N.Y.S.2d 628 (N.Y. App. Div. 2005)). The

Amended Complaint alleges that Dennis White and John Doe entered Plaintiffs’ properties at

31 Oakdale Place and 1329 Clinton Street. (Doc. 41 99 53, 87, 101, 139.) Defendants indicated

to Plaintiffs that the purpose of their entry and search was locating Luke Reinhardt. (/d. { 124.)

Plaintiffs, who reside at the property, denied Defendants permission to enter. (See id. {{ 68-77,

87, 139). Defendants did not present a warrant when requested to do so, and instead provided

only a copy of a bail bond contract signed by Luke Reinhardt. (/d. § 124.) These allegations are

sufficient to state a plausible claim that Defendants intentionally entered Plaintiffs’ dwellings at

31 Oakdale Place and 1329 Clinton Street without Plaintiffs’ permission. Moreover, these

allegations support Plaintiffs’ claim that the trespass occurred in the scope of Defendants’

employment by Bail Shop. Consequently, the court denies Bail Shop’s motion to dismiss

Count VIL.

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2. False Imprisonment (Count VIID

In New York, the elements of false imprisonment are: “(1) the defendant intended to

confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not

consent to the confinement and (4) the confinement was not otherwise privileged.” Broughton v.

State, 335 N.E.2d 310, 314 (N.Y. 1975). Neither actual malice nor want of probable cause are

required. Jd. The unprivileged detention of individuals during the search of a premises qualifies

as “confinement.” Bacon v. Cnty. of Westchester, 539 N.Y.S.2d 951, 952-53 (N.Y. App. Div.

1989) (mem.). Under this standard, the Amended Complaint states a plausible claim for false

imprisonment.

The Amended Complaint alleges that Dennis White directed Plaintiffs not to move or

leave their homes during their search. (Doc. 41 □ 89.) The Defendants used guns to enforce their

orders. (Id. 4 90, 98, 101, 105-119.) These assertions support the inference that Defendants

intended to confine Plaintiffs. Second, the Amended Complaint plausibly alleges that Plaintiffs

were conscious of their confinement: it describes how Plaintiffs interacted with Dennis White

and John Doe, received their orders, and followed them. (/d.) Buffalo Police Officer Defendants,

at the direction and command of Dennis White and John Doe, surrounded the premises to make

sure that Plaintiffs and their young children could not escape the building during the raid. (/d.

4 61.)

Third, the Amended Complaint includes multiple allegations that Plaintiffs expressly

objected to the overall search, including their confinement. (/d. {f{ 100.) For example, the

Amended Complaint alleges that Plaintiff Reinhardt said “‘Get off my property!’ and ‘Show me

your search warrant! ’” (Id.) Last, the Amended Complaint alleges that Defendants failed to

produce a warrant when requested to do so by Plaintiffs, and displayed only a bail bond contract

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pertaining to Luke Reinhardt. (/d. J 124—-126.). It is reasonably inferable that the bail bond

contract—to which Plaintiffs were not party—did not give the bail bond agents permission to

enter Plaintiffs’ property. Therefore, the Amended Complaint plausibly alleges that Defendants

lacked a privilege that would justify Plaintiffs’ confinement. The court denies Bail Shop’s

motion to dismiss Count VIII.

3. Assault (Count [X)

In New York, assault in a civil action is “an intentional placing of another person in fear

of imminent harmful or offensive contact.” United Nat’l Ins. Co. v. Waterfront N.Y. Realty

Corp., 994 F.2d 105, 108 (2d Cir. 1993). Other cases define the cause of action as “physical

conduct placing the plaintiff in imminent apprehension of harmful contact.” Bastein v. Sotto,

749 N.Y.S.2d 538, 539 (N.Y. App. Div. 2002). The plaintiff's fear of bodily harm must be

reasonable. See Carroll vy. Bayeriche Landesbank, 125 F. Supp. 2d 58, 65-66 (S.D.N.Y. 2000)

(“{C]ircumstances inducing a reasonable apprehension of bodily harm, such as movements of

drawing back a fist, aiming a blow, or the show of a weapon .. . .”). The Amended Complaint

includes numerous allegations that Defendants placed Plaintiffs in fear of imminent harmful or

offensive contact by pointing guns at them while asking threatening questions. (E.g., Doc. 41

1, 81, 89-99, 104-105, 108-110, 113, 139, 143-145.) Pointing a gun at a person will always

create a reasonable fear of imminent bodily harm. Moreover, Plaintiffs experienced this conduct

in the midst of an allegedly illegal home invasion in the middle of the night. Defendants alleged

conduct is subjectively and objectively frightening. Bail Shop’s motion to dismiss this count is

denied.

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4, Battery (Count X)

Under New York law, the elements of battery are (1) the unjustified touching of another

person, (2) without that person’s consent, (3) with the intent to cause a bodily contact that a

reasonable person would find offensive. Rivera v. State, 142 N.E.3d 641, 644-45 (N.Y. 2019).

Although the Amended Complaint alleges that “Defendants touched and caused Plaintiffs to be

touched in a harmful and offensive manner” (Doc. 41 210, 269), this is nothing more than a

recitation of the elements of the tort. The Amended Complaint lacks plausible, nonconclusory

allegations of each of the elements of battery.

The closest the Amended Complaint comes to making the necessary showing is its

allegation that Defendants “forced [Plaintiff] Reinhardt out of his home at gunpoint.” (Doc. 41

77.) However, even here, the Amended Complaint does not allege that Defendants actually

touched Plaintiff. While the Amended Complaint contains numerous allegations supporting the

claim that Defendants engaged in behavior that put Plaintiffs in fear of a battery, these

allegations support, at most, the separate and distinct tort of assault. Because the Amended

Complaint lacks sufficient allegations to support a plausible claim for battery against

Defendants, the court grants Bail Shop’s motion to dismiss this count.

C. Unintentional Torts

The Amended Complaint includes one remaining claim of the unintentional tort of

negligence (Count XIII). In support of their negligence claim, Plaintiffs argue that Defendants

“owed a duty to Plaintiffs to hire and utilize licensed bounty hunters who perform their bounty

hunter duties without the use of excessive force,” (Doc. 41 § 291), and that their “use of force

and threat to use force upon Plaintiffs” and “threat of bodily harm to imprison plaintiffs . ..

constitutes negligence.” Ud. {J 292, 294.)

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The court has determined that the Amended Complaint plausibly alleges that Defendants

committed several intentional torts during the searches, including trespass, false imprisonment,

and assault. Count XIII seeks to hold Defendants liable for the same conduct under the

alternative theory of negligence. But conduct that is intentional cannot also be negligent. See,

e.g., Wahlstrom v. Metro-N. Commuter R. Co., 89 F. Supp. 2d 506, 532 (S.D.N.Y. 2000)

(collecting cases holding that intentional conduct cannot form the basis of a negligence claim);

see also Robare Grp., Ltd. v. Sec. & Exch. Comm’n, 922 F.3d 468, 479 (D.C. Cir. 2019). Under

the Restatement (Second) of Torts, the definition of negligence “includes only such conduct” that

“involves a risk and not a certainty of invading the interest of another. It therefore excludes

conduct which creates liability because of the actor’s intention to invade a legally protected

interest of the person injured.” Restatement (Second) of Torts § 282 cmt. d (emphasis added).°

The Amended Complaint plausibly alleges that Defendants intentionally trespassed, assaulted,

and falsely imprisoned Plaintiffs during their search of the residences. But the Amended

Complaint does not articulate a theory or allege additional facts that would support the

alternative conclusion that Defendants’ trespass, assault, and intentional false imprisonment also

constitute negligence.

Nevertheless, Fed. R. Civ. P. 8(d)(2) permits a party to “set out 2 or more statements of a

claim . . . alternatively.” It is possible that a reasonable factfinder could conclude at a later date

that Plaintiffs’ intentional tort claims are unsuccessful, but that they could proceed on a

> The Restatement (Third) of Torts maintains this distinction between intentional and

negligent conduct. Under that Restatement, a person acts with intent if they “act[] with the

purpose of producing” a particular consequence or if they “act[] knowing that consequence is

substantially certain to result.” Restatement (Third) of Torts § 1; see also id. § 2 (describing how

recklessness can constitute intentional conduct). In contrast, a person is negligent where the

person “does not desire to cause harm,” id. § 1 cmt. d, but “does not exercise reasonable care

under all the circumstances,” id. § 3.

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negligence theory. Consequently, the Bail Shop Defendants are entitled to dismissal of the

negligence claim. The dismissal is without prejudice and Plaintiffs will be granted leave to

amend this claim if necessary.

D. Negligent Hiring, Supervision, Retention & Training Claim (Count XIV)

In addition to seeking to hold Bail Shop vicariously liable for torts committed by

Defendants, the Amended Complaint also includes a claim against Bail Shop, Adel Mikheail,

and Buffalo Bail Bonds for negligent hiring, supervision, retention, and training of Defendants

Dennis White and John Doe.

This tort “applfies] only in instances where an employer cannot be held vicariously liable

for an employee’s torts.” Harisch v. Goldberg, No. 14-CV-9503 (KBF), 2016 WL 1181711,

at *14 (S.D.N.Y. Mar. 25, 2016) (cleaned up). For an employer to be liable for negligent hiring,

supervision, or training, “[t]he employee . . . must not be acting within the scope of his or her

employment; in that situation the employer could only be liable, if at all, vicariously under the

theory of respondeat superior.” Gray v. Schenectady City Sch. Dist., 927 N.Y.S.2d 442, 446

(N.Y. App. Div. 2011); see also Rowley v. City of N.Y., No. 00 Civ. 1793 (DAB), 2005 WL

2429514, at *13 (S.D.N.Y. Sept. 30, 2005) (“[W]here a defendant employer admits its

employees were acting within the scope of their employment, an employer may not be held liable

for negligent hiring, training, and retention as a matter of law.”). Ultimately, therefore, Bail Shop

and Mr. Mikheail may only be liable for only their own negligence—in the hiring, training, or

supervision of its employees—or only for the intentional torts of their employees on a theory of

vicarious liability.

As discussed above, the court finds Plaintiffs have not plausibly alleged a negligent

hiring claim. At the motion to dismiss stage, however, the court need not conclusively determine

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on which theory the case moves forward. Fed. R. Civ. P. 8(d)(2) permits a party to “set out 2 or

more statements of a claim. . . alternatively or hypothetically.” See also Lawrence v. Wilder

Richman Sec. Corp., 417 F. App’x 11, 13 (2d Cir. 2010) (summary order); Woodnotch Farms,

Inc. v. Agri-Mark, Inc., No. 2:20-CV-180, 2021 WL 1387112, at *7 (D. Vt. Apr. 13, 2021). The

court has already determined that the Amended Complaint contains sufficient allegations to

support a factual finding that the Bail Shop Defendants are vicariously liable for the torts of the

alleged contractors. However, if the factfinder ultimately were to conclude that Defendants acted

outside the scope of their employment during the January 2021 searches, then a condition

precedent to vicarious liability would be absent. The question for the factfinder would then

become whether the Bail Shop Defendants are nevertheless liable for the negligent training,

supervision, retention, or hiring of Defendants Dennis White and John Doe. Consequently, the

court will dismiss the negligent training claim without prejudice, and allow Plaintiffs leave to

amend this claim if necessary.

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Conclusion

Bail Shop and Adel Mikheail’s second motion to dismiss (Doc. 57) is GRANTED IN

PART and DENIED IN PART. The motion is denied with respect to Counts VII-IX for both

Defendants and to Count V for Adel Mikheail. Count V is dismissed with prejudice against Bail

Shop. Counts X-XII are dismissed with prejudice against both Defendants. Counts XIII and XIV

are dismissed without prejudice. Plaintiffs have 30 days from the date of publication of this order

to either identify and serve John Doe, or file a motion for an extension of time for service, no

more than 10 pages in length.

Dated this □□ of July, 2022.

Geoffrey W. Crawford, Judge

United States District Court

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