Ben Robinson v. Family Dollar Inc
Opinion of the Court
Ben and Maxine Robinson appeal the District Court’s order dismissing with prejudice their second amended complaint alleging that Family Dollar Stores of Pennsylvania, Inc. committed various torts under federal and Pennsylvania law. We will affirm.
I.
This case involves an incident that allegedly occurred on April 29, 2013, while Ben Robinson was shopping at a Family Dollar store in Philadelphia.
The Robinsons filed their initial complaint on June 4, 2014, naming as defendants Family Dollar, Inc. (hereinafter “FDI”), the City of Philadelphia, then-Philadelphia Police Commissioner Charles Ramsey, and John Does 1-10.
The first amended complaint contained six counts: (1) assault and battery against the Family Dollar defendants;
Family Dollar and FDI moved to dismiss the first amended complaint on several grounds, including under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
The Robinsons filed their second amended complaint on June 8, 2015.
At the close of its opinion, the District Court stated that it was “troubled” by the Robinsons’ second amended complaint.
This timely appeal followed.
II.
The District Court had subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1367. We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s dismissal of the Robin-sons’ second amended complaint under Rule 12(b)(6) is plenary.
A.
Turning to the merits, we note at the outset that the Robinsons’ brief is of such poor quality that it is difficult for us (and for Appellees
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,, the-defendant-unlawfully-harmed me accusation.”
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
In accordance with the pleading requirements outlined in Twombly and Iqbal, we have formulated a three-step process for district courts to follow in reviewing the sufficiency of a complaint.
The District Court’s analysis is entirely consistent with these principles. For each count of the complaint, the court noted the elements of the Robinsons’ claims. The court then pointed out the conclusory nature of the Robinsons’ factual allegations. There being a complete absence of well-pleaded factual allegations, the court concluded that none of the Robinsons’ claims could plausibly give rise to an entitlement to relief.
Citing the statement from our Fowler decision that “a plaintiff is not required to establish the elements of a prima facie case but instead, need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element,”
B.
A few brief words in response to our good colleague’s partial dissent. The Rob-insons’ assault claim can move forward on a respondeat superior theory, Judge Am-bro reasons, because “[i]t is plausible—not speculative—that an employer might expect its employees to use force to protect an employer’s property.”
But why? Iqbal and Twombly require courts to identify all nonconclusory factual allegations before determining whether they give rise to a plausible claim for relief. The Robinsons’ operative complaint merely offers conclusory assertions that the employees assaulted Ben Robinson “for the purpose of serving Family Dollar,”
Judge Ambro views this case as “a classic example of vicarious liability, similar to what many law students come across in their first year torts' class.”
IV.
Like the District Court, we are troubled by the manner in which the Robinsons have proceeded throughout this litigation. When the court dismissed their first amended complaint, it identified the factual deficiencies in the Robinsons’ pleading. Rather than fix these shortcomings, the Robinsons’ second amended complaint failed to plead additional factual allegations, and in some instances repleaded verbatim claims that were previously dismissed. All of this led the District Court to order the Robinsons’ counsel to show cause why sanctions should not be imposed.
Notwithstanding the District Court’s warning, counsel continues his errant behavior on appeal. After the District Court chastised counsel for abjuring the pleading of factual allegations in favor of a brief containing “two and a half pages purporting to educate the Court on Twombly and Iqbal,”
V.
For the reasons set forth above, we will affirm the District Court’s order.
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
. Second Am. Compl. ¶ 10, App. 116a.
. Id. ¶ 12, App. 116a.
. Id. ¶¶ 12-13, App. 116a.
. Id. ¶ 14, App. 116a.
. Id.
. Id. ¶ 15, App. 116a.
. Id. ¶¶ 16-17, App. 116a-117a.
. Id. ¶¶ 22-23, App. 117a.
. Id. ¶ 25, App. 118a.
. Compl. ¶¶[ 4-7, E.D. Pa. ECF No, 1.
. First Am. Compl. ¶¶ 4-5, 8, App. 267a.
. Id. ¶¶ 27-32, App. 270a.
. Id. ¶¶ 33-42, App. 271a-272a.
. 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
. First Am. Compl. ¶¶ 43-46, App. 272a.
. Id. ¶¶ 47-51, App. 272a-273a.
. Id. ¶¶ 52-54, App. 273a.
. Id. ¶¶ 55-57, App. 273a-274a.
. App. 14a.
. Stipulation and Order, E.D. Pa. ECF No. 23.
. App. 112a.
. App. 102a-103a.
. App. 103a-106a.
. App. 106a-108a.
. App. 107a n.10.
. App. 108a-109a.
. App. 109a-110a.
. App, 111a.
. App. 113a.
. App. 125a.
. Robinson v. Family Dollar, Inc., Civ. No. 14-03189, 2015 WL 6689850, at *1 (E.D. Pa. Nov. 3, 2015).
. Id. at *2.
. Id. at *2-6.
. See id. at *3 (noting with regard to the Robinsons' assault and battery claim that their new allegation that “ 'the use of force by these Family Dollar employees was not unexpected by Family Dollar,’ ” “simply allege[d] a conclusion," rather than “plead 'facts' "(quoting Second Am. Compl. ¶ 20, App, 117a)); id. at *4 (noting with regard to the Robinsons' malicious prosecution, false arrest, and false imprisonment claims, that their two new allegations failed to “allege specific facts,” but instead “merely [took] the Court's reasoning [from its opinion dismissing the first amended complaint] and subsumed it into their second amended complaint”); id. (noting with regard to the Robinsons' negligent supervision claim that their new allegation “is the same allegation the Court dismissed in its first opinion as dispositive," and calling “[t]he reiteration of a previously dismissed claim .., improper at best and legally frivolous at worst”); id. at *5 (noting with regard to the Robinsons’ intentional and negligent infliction of emotional distress claims that their new allegations "merely parrot those referenced by the Court” in its first opinion); see also id. at *4 (noting that the Robinsons repleaded their negligence claim ‘without supplementing their second amended complaint with "anything factually supportive of a negligence claim”).
. Id. at *6.
. Id.
. Id. at *7.
. See id.; Order, E.D. Pa. ECF No, 54,
. Show Cause Hearing, E.D. Pa. ECF No. 65,
. App. 264a.
. Notice of Voluntary Dismissal, E.D. Pa. ECF No, 57.
. In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 131 (3d Cir. 2016).
. See Family Dollar Br. 11 (“It is difficult to ascertain what Appellants’ alleged particular points of error on appeal are from their Brief.”).
. Robinsons’ Br. 17.
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
. Id.
. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
. Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
. Id.
. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (brackets in original) (quoting Fed. R. Civ. P. 8(a)(2)).
. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016).
. Id. (brackets in original) (quoting Iqbal, 556 U.S. at 675, 129 S.Ct. 1937).
. Id. (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937); see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) ("Mere restatements of the elements of a claim are not entitled to the assumption of truth." (alterations and internal quotation marks omitted)).
. Connelly, 809 F.3d at 787 (brackets in original) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
. 578 F.3d at 213 (internal quotation marks omitted).
. Robinsons’ Br. 19-20.
. Ambro Op. 2-3.
. Id. at 4.
. Second Am. Compl. ¶ 18, App. 117a.
. Id. ¶ 55, App. 121a.
. Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
. Ambro Op. 1.
. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.
. Robinson, 2015 WL 6689850, at *7.
. Compare Robinsons’ Br. 18-20 with App. 258a-261a.
. App. 261a-262a.
. Robinsons' Br. 23 (italics and underlining in original).
Concurring in Part
concurring in part and dissenting in part,
The Robinsons allege a classic example of vicarious liability, similar to what many law students come across in their first year torts class: a store’s employees suspect a customer of shoplifting, then confront and assault the customer. Were the Robinsons’ counsel competent, this case would not have been close. The District Court dismissed the first amended complaint and identified its factual deficiencies. If possible, counsel should have replied with additional factual allegations or, if
That noted, I nonetheless believe that the Robinsons have made out a plausible basis to hold Family Dollar liable for its employees’ assault, either under a respon-deat superior liability theory or under negligence. Thus, while I agree with my colleagues that the § 1983 and infliction-of-emotional-distress claims are not plausible, I concur in part and dissent in part.
As the Majority recognizes, to state a plausible claim a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Maj. Op. 132 & n.56. Though the allegations are spare, in this context I believe they are sufficient to make out a claim. The District Court faulted the Robinsons for failing to allege facts that' are not publicly available—the employer’s subjective state of mind, such as its expectations of how its employees should handle suspected shoplifters. It would not be reasonable to expect this information before discovery, and there was none here.
As the District Court noted, Family Dollar may be liable for its employees’ intentional torts under the respondeat superior theory if the employees’ conduct “(1) [ ] is of a kind and nature that the employee[s] [are] employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally, used by the employeefs] against another, the use of force is not unexpected by the employer.” 2015 WL 6689850, at *3 (citation omitted). The District Court faulted the Robinsons for failing to allege “any facts demonstrating that Family Dollar expected its employees to use such intentional force.” Id.
I disagree. The second amended complaint alleged that the employees confronted and assaulted Ben Robinson on suspicion of shoplifting, at least in part, “for the purpose of serving Family Dollar.” SAC ¶ 44. It is plausible—not speculative—that an employer might expect its employees to use force to protect an employer’s property. Moreover, it is reasonable to expect discovery to reveal Family Dollar’s policy for how its employees should handle suspected shoplifters, what training Family Dollar gives its employees to handle these situations, and the extent it authorizes the use of force. Hence I would hold that the Robinsons have pled facts sufficient to invoke the respondeat superior doctrine at the motion-to-dismiss stage.
As for the negligent-supervision claim, the District Court faulted the Robinsons for alleging that the employees were acting within the scope of employment, whereas an employer can be liable only for employee conduct outside the scope of employment. “Rather than cure this deficiency,” the second amended complaint’s negligence count alleged that “ ‘[m]onitoring for theft is within the scope of ... employment.’ ” 2015 WL 6689850, at *4 (quoting SAC ¶ 55). However, a plaintiff may plead in the alternative. Construing the allega
It is plausible that an employer is negligent in training or supervising its employees if its employees attack customers on suspicion of shoplifting. The District Court ruled, however, that the first amended complaint failed to allege a basis for negligence because it had not “allege[d] any facts showing that Family Dollar employees had dangerous propensities warranting Family Dollar’s supervision or that the assault ... [was] reasonably likely to occur.” 2015 WL 3400836, at *5. The Court then faulted the second amended complaint for “fail[ing] to allege anything factually supportive of a negligence claim.” 2015 WL 6689850, at *4. I disagree with this analysis. It is plausible to infer that employees who attack customers might have dangerous propensities. In addition, it is plausible to infer that if an employee has those propensities the situation might escalate when he confronts a shoplifter. Accordingly, the factual allegations, though bare, make out a plausible claim of negligence.
In summary, the main problem with the District Court’s reasoning is that it seems to fault the Robinsons for failing to allege facts that at the complaint stage are unavailable but would be reasonably expected to be discovered. What an employer expects an employee to do when it suspects a customer of shoplifting, how an employer trains its employees to confront potential shoplifters, and what an employer may know about its employees or their dangerous propensities, are uniquely in the control of the employer. To the extent this information is public, a plaintiff should allege it. But here, all Ben Robinson appears to know is that he went to Family Dollar, was suspected of shoplifting, and then was assaulted by Family Dollar employees. The allegations, spare as they may be, suffice in this context. I thus respectfully dissent as to the assault and negligence claims.
Reference
- Full Case Name
- Ben ROBINSON; Maxine Robinson, Appellants v. FAMILY DOLLAR INC; Charles Ramsey, Individually and in His Official Capacity as Commissioner of the Philadelphia Police Department; City of Philadelphia, Doing Business as Philadelphia Police Department; John Does 1-10; Family Dollar Stores of Pennsylvania Inc, D/B/A Family Dollar Inc; Braheem Wilkins, D/B/A Family Dollar, Inc. & Family Dollar Stores of Pennsylvania, Inc.; Wilfrid Etienne, Individually and in His Official Capacity as Police Officer in the Philadelphia Police Department
- Cited By
- 11 cases
- Status
- Unpublished