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, 679 F. App'x 126

Source: United States Court of Appeals for the Third Circuit

Date: 2017-02-09

Jurisdiction: United States

Docket: No. 15-3736

Citation: 679 F. App'x 126

Opinion

OPINION FISHER, Circuit Judge. 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. As Robinson was leaving the store, he was approached by Family Dollar employee Braheem Wilkins, an unidentified Family Dollar security guard, and two unidentified Family Dollar employees.

The four employees accused Robinson of shoplifting, which Robinson denied. After one of the employees hit Robinson, he was “severely gang beaten” and thrown to the ground. The employees laughed at Robinson as they continued to strike him; one of the employees used a tire iron. The entire incident was captured on store surveillance video and independently on video by a bystander. An ambulance transported Robinson to the hospital, where his injuries were treated.

Philadelphia Police Officer Wilfred Etienne arrested Robinson upon his release from the hospital and charged him with aggravated assault, robbery, retail theft, theft by unlawful taking, receiving stolen property, and simple assault. On August 9, 2013, the Philadelphia Municipal Court dismissed all charges brought against Robinson. 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.

On October 30, 2014, the Robinsons filed a first amended complaint adding as defendants Family Dollar Stores of Pennsylvania, Inc. (hereinafter “Family Dollar”), Braheem Wilkins, and Officer Wilfred Etienne.

We will refer to the City of Philadelphia, Commissioner Ramsey, and Officer Etienne collectively as “the Philadelphia defendants.” We will likewise refer to Family Dollar, FDI, Braheem Wilkins, and John Does 1-10 collectively as “the Family Dollar defendants.” The first amended complaint contained six counts: (1) assault and battery against the Family Dollar defendants; (2) malicious prosecution, false arrest, and false imprisonment against all defendants; (3) municipal liability under Monell v.

Department of Social Services against the City of Philadelphia and Commissioner Ramsey; (4) negligence and negligent supervision against the Family Dollar defendants; (5) intentional/negligent infliction of emotional distress against the Family Dollar defendants; and (6) loss of consortium against all 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. While the motion was pending, the Robinsons voluntarily dismissed FDI without prejudice.

On May 27, 2015, the District Court granted Family Dollar’s motion to dismiss under Rule 12(b)(6) and dismissed all claims against Family Dollar without prejudice.

In its opinion, the court held: (1) that the Robinsons’ assault and battery claim failed to sufficiently allege Family Dollar’s potential liability under the theory of respondeat superior, (2) that for purposes of the malicious prosecution, false arrest, and false imprisonment claims, the Robinsons failed to allege that Family Dollar was a state actor subject to liability under 42 U.S.C. § 1983; (3) that the negligent supervision claim was legally insufficient because it alleged that the Family Dollar employees were acting within the scope of their employment; (4) that the negligence claim failed to allege any fact necessary to maintain a cause of action for negligence; (5) that the Robin-sons failed to allege any theory upon which they could support their claim of intentional infliction of emotional distress; and (6) that the loss of consortium claim could not be supported since every other tort claim would be dismissed.

The District Court nevertheless granted the Robinsons leave to amend “to the extent they can allege facts” necessary to remedy the pleading deficiencies identified in the court’s opinion. The Robinsons filed their second amended complaint on June 8, 2015. Family Dollar again moved to dismiss on several grounds, including under Rule 12(b)(6). On November 3, 2015, the District Court granted the Rule 12(b)(6) motion and dismissed all claims against Family Dollar with prejudice.

At the outset of its opinion, the court noted that the Robinsons’ second amended complaint was almost identical to their first, containing, only six new factual allegations. The court went on to dismiss each of the Robinsons’ claims against Family Dollar, largely for the reasons that the first amended complaint was dismissed. As to the Robinsons’ new factual allegations, the court noted several times that they were woefully insufficient, At the close of its opinion, the District Court stated that it was “troubled” by the Robinsons’ second amended complaint.

The court explained: “The document lacks any new factual allegations; it instead contains six conclusory statements that parroted the Court’s reasoning in its first opinion dismissing the claims against Family Dollar.

Additionally, the second amended complaint names FDI as a Defendant, despite the previous stipulation dismissing FDI from the case,” “Rather than heed the Court’s direction and make the changes necessary to meet the Rule 12(b)(6) standard,” the District Court noted that the Robinsons “decided to spend two and a half pages purporting to educate the Court on Twombly and Iqbal,” and “continued] to disregard the importance of factual allegations at the 12(b)(6) stage.” The court then sua sponte ordered the Robinsons’ counsel to show cause why sanctions should not be imposed under Federal Rule of Civil Procedure ll.

A show cause hearing, was held, where the District Court declined to impose sanctions. On November 3, 2013, the Robinsons stipulated to the dismissal of the Philadelphia defendants. The Robin-sons also filed a notice voluntarily dismissing Braheem Wilkins and John Does 1-10 with prejudice. 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. III. 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) to discern the reasons why we are asked to reverse the District Court’s order. As best we can tell, the Robinsons contend that the District Court dismissed the second amended complaint under “an improperly heightened plausibility analysis.” We reject this argument.

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.” A pleading that asserts mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” And “on the assumption that all the allegations are true (even if doubtful in fact),” the factual allegations pleaded “must be enough to raise a right to relief above the speculative level.” “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 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.’ ” “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” This plausibility determination “will be ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” 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.

First, the court “must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim.’ ” Second, it “should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.’ ” And third, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 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,” the Robinsons contend that the District Court employed an improperly heightened evidentiary standard. But the District Court did not dismiss the Robinsons’ second amended complaint because they could not prove a prima facie case.

Rather, the court emphasized that the Robinsons consistently failed to allege specific facts—or for some claims, any facts—sufficient to raise a right to relief above the speculative level. We agree with the District Court’s conclusion and will therefore affirm its order dismissing the Robinsons’ second amended complaint with prejudice. 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.” Judge Ambro next says that the Robinsons’ negligent supervision claim passes muster because “[i]t is plausible to infer that employees who attack customers might have dangerous propensities.” 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,” and that “[mjonitoring for theft is within the scope of the John Does’ employment.” What the Robinsons altogether fail to allege is a single fact—much less a well-pleaded one—suggesting that Family Dollar should have anticipated that its employees would intentionally use force against a customer or that its employees used force in the past so that Family Dollar knew about of their dangerous propensities.

Without more by way of factual content, the Robinsons have failed to “nudg[e] their claims across the line from conceivable to plausible.” 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.” True enough. But what this case also illustrates is a basic lesson from first year civil procedure: Rule 8 simply “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” 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,” he filed the exact same 6ne/with this Court.

To make matters worse, while counsel at least attempted to defend the factual plausibility of the second amended complaint before the District Court, here the Robinsons’ brief contains not a word— much less a single citation to the operative complaint—suggesting that the court below overlooked something in ordering dismissal with prejudice.

Instead, after repeating the same rote mention of Iqbal and Twombly that concerned the District Court, counsel’s entire affirmative argument consists of a single sentence: “The District Court should not have dismissed any let alone all causes against Family Dollar.” Conclusory factual allegations are not made any more plausible by con-clusory appellate arguments. We hope that such a practice will not be repeated by counsel in the future. 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).

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