JANET BOND ARTERTON, District Judge.
Plaintiffs Lonny and Lea Bowers filed suit against Defendants United States of America, Andrew Tingley in his official and individual capacity as the Supervisory Deputy United States Marshal for the District of Connecticut, and Deputy U.S. Marshals John Does 1-4 in their individual and official capacities,
Plaintiffs allege the following in their Complaint. Plaintiff Lonny and Lea Bowers reside and work in Connecticut. Mr. Bowers is an engineer who specializes in acoustics and professional sound, and was the president and a director of Wideband Solutions, Inc. ("Wideband"). (Compl. [Doc. #1] ¶ 9.) Mr. Bowers and Wideband were defendants in several lawsuits filed by ClearOne Communications, Inc. ("ClearOne"), a Utah Corporation, in which ClearOne alleged misappropriation of trade secrets. (Id. ¶ 11.) In the course of that litigation, ClearOne sought, and the United States District Court for the District of Utah granted, a confidentiality order prohibiting the dissemination of various materials deemed by ClearOne to contain sensitive information regarding its trade secrets. (Id. ¶ 11.)
On September 2, 2010, Mr. Bowers was stopped by two Deputy U.S. Marshals as he was leaving his office. They blocked his car to prevent him from leaving, and "explained that lawyers would be coming and would explain the reason for the detainment." (Id. ¶ 15.) Twenty minutes later, a lawyer arrived and provided Mr. Bowers with a redacted copy of the Order. (Id.) John Does 1 and 2 "compelled" Plaintiff to return to the building and "confined" him to a common area, "telling him he was not free to leave." (Id. ¶ 16.) During this time, a lawyer, data recovery specialist, and two ClearOne agents entered his office "with the help and assent of John Does 1 and 2." (Id.) The agents then "ransacked" his office and took computers, hard drives, data storage files, and documents, many of which Plaintiff alleges "were not ordered to be seized" in the Amended Rule 65 Order. (Id.)
At around the same time, two other U.S. Marshals, John Does 3 and 4, came to the Bowers residence and "confined Lea to the second floor of the house." (Id. ¶¶ 17-18.) An attorney and another ClearOne agent entered the Bowers residence with the "knowledge and assent" of Does 3 and 4 and "took numerous items which were not authorized by the [Amended Rule 65 Order]." (Id. ¶ 18.)
Plaintiffs allege that the documents that were taken included "tax return documents, privileged communications between Bowers and his attorneys, research and development memoranda regarding technology being developed by Lonny Bowers and his associates, attorney work-product, financial records, stock certificates, and a memory stick containing personal photographs," all of which were not authorized to be taken by the Amended Rule 65 Order. (Id. ¶ 19.)
The U.S. Marshals are alleged to have acted without a warrant or writ of attachment authorizing them to enter and search the premises of the Bowers' office or home. (Id. ¶ 20.) The Marshals did not
Plaintiffs allege that as a result of Defendants' conduct, ClearOne has "manufactured and sold a product .... which utilizes a headset interface technology co-developed by Lonny Bowers and described in research documents wrongfully seized and appropriated by ClearOne." (Id. ¶ 23.) Mr. Bowers has been deprived of "any and all copies of proprietary acoustic calculation software which he developed personally and used in his business prior to the seizure." (Id. ¶ 24.) Plaintiffs claim lost revenue, misappropriation of trade secrets, false imprisonment, trespass, and severe emotional distress on account of Defendants' conduct.
Defendants have moved to dismiss Plaintiffs' Complaint in its entirety, arguing that Plaintiffs have failed to state a valid Bivens claim against Defendant Tingley and Does 1-4, and that Defendants Tingley and Does 1-4 are entitled to quasi-judicial absolute immunity for their actions taken in enforcing a valid court order or, alternatively, are entitled to qualified immunity. Defendants also assert that Plaintiffs have failed to state any tort claim against the United States under the FTCA.
The issue of whether United States Marshals acting to execute a valid court order are immune from suit on the basis of quasi-judicial immunity appears to be one of first impression in the Second Circuit. Because of this, the Court will first address the allegations of Plaintiffs' Fourth Amendment claim, which the Court concludes fail to state a plausible claim under Iqbal. However, as discussed below, even if the allegations were found to state a plausible Fourth Amendment claim, Defendants are entitled to either absolute quasi-judicial immunity or qualified immunity and Count One must be dismissed.
Plaintiffs allege that Tingley and Does 1-4 deprived them of their rights to be free from unreasonable searches and seizures in violation of the Fourth Amendment because Defendants had no warrant, the searches and seizures of their home and office were "not authorized by federal law," the Marshals "confined" Plaintiffs without a warrant or probable cause, they did not "comply with federal statutes and regulations regarding the service of process... and searches and seizures," "the order of the court was an order for civil contempt issued by the District of Utah, and the order was improperly served outside of the State of Utah," Defendants failed to supervise the third parties authorized to execute the order," and that the Marshals "failed to ensure as required by ... order, that the agents of ClearOne take only those items that were authorized to be taken by the order." (Compl. ¶ 34a-g.)
The facts alleged in paragraph 34 of Plaintiffs' Complaint do not state plausible violations of Plaintiffs' Fourth Amendment rights. As an initial matter, Plaintiffs seem to be alleging that the Amended Rule 65 Order was invalid (see Compl. ¶ 34a, b, d, e, f, g), though they concede that they "do not dispute that the Amended Rule 65 Order from the District of Utah is `valid legal process.'" (Pls.' Sur-Reply [Doc. #34] at 1.) Plaintiffs also allege that they were confined and "effectively" arrested by Defendants, during the entirety of the ClearOne agents' search of their home and offices. The Amended Rule 65 Order authorized the Marshals accompanying ClearOne to "use all reasonable force necessary to gain access to the business office and storage unit, and to defend ClearOne's agents while executing this order." (Ex. C to Defs.' Mot. at ¶ 4.) Plaintiffs allege no facts suggesting that Defendants' conduct in accompanying and defending ClearOne's agents in execution of the court order was unreasonable and therefore unconstitutional. Rather, the facts as pled state that the U.S. Marshals were present, did not "actually supervise[] the agents of ClearOne" (see Compl. ¶ 21), and confined Mr. and Mrs. Bowers in the office and house, respectively, for a limited period of time so that the ClearOne agents could complete their search pursuant to the court order. Such a limited detention has been held not to be an unreasonable use of force. See Muehler v. Mena, 544 U.S. 93, 100, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (A two-to three-hour detention in handcuffs, where there was a valid search warrant, did not outweigh the government's "continuing safety interests" and therefore the detention was reasonable).
As alleged, the Complaint lacks any facts to support a plausible claim of unreasonable search and seizure as to the Marshals' use of force against Plaintiffs, particularly where the force used was pursuant to stated obligations under the Amended Rule 65 Order. Thus, the Complaint fails on its face to state a plausible claim for a violation of the Fourth Amendment as to Defendant Tingley and Does 1-4.
Defendants Tingley and Does 1-4 contend that as officials executing a facially valid court order, they are entitled to judicial immunity. "The entitlement of a government official to absolute immunity, protecting him from liability, from suit, and from any scrutiny of the motive for and reasonableness of his official actions, depends on the function he performs. Absolute immunity is rarely granted; qualified immunity is the norm." Dorman v. Higgins, 821 F.2d 133, 136 (2d Cir.1987); see also Mireles v. Waco, 502 U.S. 9, 13, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (holding that the fact that a judge's order was carried out by a police officer did not transform the order from a judicial action, and that therefore, the judge was absolutely
"[S]ome officials who are not judges but `who perform functions closely associated with the judicial process' have ... been accorded such immunity." Dorman v. Higgins, 821 F.2d at 137 (2d Cir.1987) (citation omitted) (holding that federal probation officers are entitled to quasi-judicial absolute immunity when preparing presentence reports, because "in preparing presentence reports, a federal probation officer acts as an arm of the court and that that task is an integral part of one of the most critical phases of the judicial process.") (quoting Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985)). Several district courts in this Circuit have found the execution of valid court orders to entitle sheriffs and others to absolute quasi-judicial immunity. See, e.g., Morris v. Katz, 11-CV-3556 (JG), 2011 WL 3918965 (E.D.N.Y. Sept. 4, 2011) (finding defendant city marshal was entitled to absolute quasi-judicial immunity: "[s]ince [plaintiff] seeks to hold Marshal Essock liable based upon his execution of a facially valid warrant of eviction in accordance with his duty to carry out mandates of the court, the action against him must be dismissed on the basis of quasi-judicial immunity."); Maldonado v. New York County Sheriff, No. 05 Civ. 8377(JGK), 2006 WL 2588911, at *5 (S.D.N.Y. Sept. 6, 2006) ("because the function being performed is deemed integral to the judicial process, persons who faithfully execute valid court orders are absolutely immune from liability for damages in actions challenging conduct authorized by the order."); Caporicci v. Nassau Cty. Police Dept., CV 05-5764, 2007 WL 764535(LDW) (E.D.N.Y. Mar. 6, 2007) ("When relying upon a facially valid warrant, a sheriff is "afforded complete protection from liability for any proper act done in its execution."... In view of this complete protection and the fact that Sheriff Reilly is sought to be held liable based upon his execution of a facially valid warrant, the action against him must be dismissed on the basis of quasi-judicial immunity."); Tornheim v. Eason, 363 F.Supp.2d 674, 676-77 (S.D.N.Y.2005) (same).
Other circuits have also recognized that where a defendant is acting pursuant to court order, he or she is absolutely immune. For instance, in Roland v. Phillips, 19 F.3d 552, 556 (11th Cir.1994), the Eleventh Circuit held that "law enforcement personnel, acting in furtherance of their official duties and relying on a facially valid court order, are entitled to absolute quasi-judicial immunity." The Roland Court concluded that a Sheriff "acting under a verbal judicial order" to incarcerate the plaintiff "after her reiterated refusal to activate water service for the Robinwood Subdivision," id. at 557, was protected by absolute quasi-judicial immunity. The court reasoned, "[t]he proper procedure for a party who contests a judicial order is to appeal that order and not to sue the official responsible for its execution." Id. (internal citations and punctuation omitted); see also Valdez v. City & County of Denver, 878 F.2d 1285, 1288 (10th Cir. 1989) ("Enforcing a court order or judgment is intrinsically associated with a judicial proceeding.... Absolute immunity for officials assigned to carry out a judge's orders is necessary to insure that such officials can perform their function without the need to secure permanent legal counsel.").
The Court finds that the facts alleged here — that Defendants were present at Plaintiffs' residence and workplace to execute a valid order from the Utah District Court — claim conduct that has "an integral relationship with the judicial process," see Roland, 19 F.3d at 556 (internal citation omitted), and thus the nature of the function
However, even if Defendants were not entitled to absolute immunity, Defendants are nevertheless entitled to qualified immunity.
Government officials are immune from liability for civil damages when their conduct "`does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 230, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The two-pronged qualified immunity inquiry asks whether "the facts alleged show the officer's conduct violated a constitutional right," and if so, "whether the right was clearly established," such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citations omitted).
As discussed above, the conduct alleged does not state a claim for a Fourth Amendment violation, but even if it did, Defendants are alleged to have been acting pursuant to a court order — one which provides that "ClearOne shall inspect the premises," "ClearOne may conduct the inspection without prior notice," "ClearOne shall carry out the inspection through its counsel of record," and "the United States Marshal, [and] the Marshal's personnel,... are authorized to ... defend ClearOne's agents while executing this order." (Ex. C ¶ 4). It would not be clear to reasonable officers in Defendants' position that their conduct in detaining Plaintiffs for a limited time was unlawful, given that they were acting pursuant to a valid court order under which they were not responsible for the inspection and seizure of particular documents and information, and were required to "defend" the agents who were to conduct the inspection. Therefore, Defendants are entitled to qualified immunity.
Thus, for the reasons discussed above, the Court finds that Count One of the Complaint must be dismissed.
In Count Two, Plaintiffs sue under the FTCA, which waives the Government's liability for certain torts committed by federal employees. See 28 U.S.C. § 2674. Plaintiffs allege false imprisonment, intentional or negligent infliction of emotional distress, negligent selection, supervision, and retention of agents and employees, negligent failure to supervise parties accompanying U.S. Marshals, trespass to or interference with chattels, conversion, and misappropriation of trade secrets. (See Compl. ¶ 38.) The liability of the United States under the FTCA is subject to a discretionary function exception, see 28 U.S.C. § 2680(a); United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), which Defendants argue is applicable here.
The discretionary function exception, codified at 28 U.S.C. § 2680(a), exempts from liability under the FTCA:
Defendants contend that the negligent supervision/failure to supervise claims should be dismissed on account of the discretionary function exception to the FTCA. "[T]here is no doubt that planning-level decisions establishing programs are protected by the discretionary function exception.... In addition, the actions of Government agents involving the necessary element of choice and grounded in the social, economic, or political goals of the statute and regulations are protected." Gaubert, 499 U.S. at 323, 111 S.Ct. 1267.
Defendant Marshals were tasked with supervising the execution of the Amended Rule 65 Order, which provided that the Marshals were "to use all reasonable force necessary ... and to defend ClearOne's agents while executing this Order." (Ex. C to Defs.' Mot. ¶ 4.) Further, 28 U.S.C. § 566(a) states that "[i]t is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts." Neither of these directives "specifically prescribes a course of action for an employee to follow." Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ("the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.").
In Callahan, 329 F.Supp.2d at 407, the district held that the plaintiffs' claims of trespass and nuisance — allegations that the U.S. Marshal Service committed these torts while providing security to the plaintiffs' next door neighbor, Judge Mukasey — met both prongs of the discretionary function test, and thus that their claims had to be dismissed for lack of subject matter jurisdiction. The district court reasoned that:
329 F.Supp.2d at 408.
Plaintiffs' claims involve contentions that the Defendant Marshals did not execute the Amended Rule 65 Order in the manner Plaintiffs thought appropriate. Defendants' chosen manner of executing the order, however, is subject to the discretionary function exception, as the order did not "specifically prescribe a course of action" for Defendants to follow. Because Plaintiffs' claims of negligent selection and supervision
As to the remaining claims, Defendants contend that Plaintiffs have failed to state any claim that would meet the plausibility requirements of Iqbal.
In Connecticut, "[f]alse imprisonment, or false arrest, is the unlawful restraint by one person of the physical liberty of another." Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982). In a false arrest action, "Connecticut law places the burden of proving an unlawful arrest on the plaintiff." Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir.2007). In opposition, Plaintiffs argue that there was no arrest warrant authorizing the Marshals to place Plaintiffs under arrest. The Complaint only alleges that Plaintiffs were confined by the Marshals during the period of time in which ClearOne's agents were searching the Bowers home and office and does not allege that the Marshals were acting unlawfully in executing the Amended Rule 65 Order. Though Plaintiffs argue that an order pursuant to Rule 65 is not the same as a search warrant and that comparatively "[a] search warrant ... requires very detailed procedures" (Pls.' Opp'n),
Under Connecticut law, trespass to chattels is defined as "intentionally dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another." Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (Conn.2006). There are no facts alleged here that suggest that Defendants themselves "intentionally dispossessed" Plaintiffs of any items taken, nor that they "used or intermeddled" with the items taken by ClearOne agents.
Conversion is the "unauthorized assumption and exercise of the right of ownership that interferes and harms the owner's rights to that property." Yeomans v. Wallace, 291 F.Supp.2d 70, 76-77 (D.Conn.2003) (citing Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521, 705 A.2d 215 (1998)). "The plaintiff need not allege that the unauthorized possession of the property was intentional," but must allege "that he was harmed in order to state a claim for conversion." Id. "[A]t a minimum,
There are no allegations that the Defendant Marshals took Plaintiffs' property and retained possession of the items seized. Thus, Plaintiffs' conversion claims must be dismissed.
Section 35-51(b) of CUTSA defines misappropriation as
Plaintiffs argue that Defendants violated Conn. Gen.Stat. § 35-51(b)(2)(B)(ii) — that is, that Defendants knew or had reason to know that their knowledge of the trade secrets was "acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use." (Pls.' Opp'n at 17.) However, there are no allegations that Defendants had any knowledge of Plaintiffs' trade secrets.
"[A] a violation of CUTSA occurs only if the defendant either wrongfully acquired the plaintiff's trade secret or used or disclosed the trade secret." Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 750 (2d Cir.1998). Defendants are not alleged to have acquired, used or disclosed Plaintiffs' protected information, and while Plaintiffs assert in their opposition (but do not allege in their Complaint) that Defendants were under a duty to protect the information because there was an agency relationship between Defendants and ClearOne, the Complaint alleges no facts that would establish a plausible agency relationship of this kind. Thus, Plaintiffs' misappropriation of trade secrets claim is also dismissed.
For a plaintiff to state a claim for intentional infliction of emotional distress ("IIED"), he or she must allege facts showing:
Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine." Appleton v. Bd. of Educ. of Town
The conduct alleged in the Complaint, i.e., that Defendants "confined" Plaintiffs while ClearOne agents inspected their personal property, falls far short of the level of extreme and outrageous conduct required to state a claim for IIED, nor do Plaintiffs allege that it was specifically Defendants' conduct, as opposed to the ClearOne agents "ransacking" Plaintiffs' office and home, that was the cause of their distress. As such, Plaintiffs' allegations do not state a plausible IIED claim.
To state a claim for negligent infliction of emotional distress ("NIED"), a plaintiff must plead: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress. Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
Plaintiffs allege that "[a]s a direct and proximate result of the actions of the defendants, Lonny Bowers and Lea Bowers have suffered severe emotional distress, mental anguish, humiliation and embarrassment." (Compl. ¶ 30.) These allegations are, at most, threadbare recitations of an NIED cause of action and do not allege facts that could show that the emotional distress suffered "was severe enough that it might result in illness or bodily harm," Carrol, 262 Conn. at 444, 815 A.2d 119, nor that Defendants' conduct created an "unreasonable risk" of causing Plaintiffs emotional distress. Thus, as it lacks plausibility, the NIED claim will be dismissed.
Even if the discretionary function exception were not to bar Plaintiffs' negligent supervision claims, the Complaint fails to state a claim for negligent supervision.
Under Connecticut law, an employer may be liable for negligent supervision of its employees:
Roberts v. Circuit-Wise, Inc., 142 F.Supp.2d 211, 214 (D.Conn.2001); see also Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988).
Here, there are no allegations that the Defendant Marshals had any duty to supervise the ClearOne agents, or to protect Plaintiffs from ClearOne. Indeed the Amended Rule 65 Order charges Defendants with "defend[ing] ClearOne's agents while executing this order" (Ex. C to Defs.' Mot. ¶ 4), and the Complaint alleges no existence of a duty to supervise ClearOne's agents, nor that Defendants "knew or reasonably should have known" of ClearOne's propensity to engage in tortious conduct. Plaintiffs' negligent supervision claims must be dismissed for failure to state a negligent supervision claim.
For the reasons discussed above, Defendants' motion to dismiss is granted in its
IT IS SO ORDERED.
