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Jaafar v. City of Dearborn Heights

United States District Court, E.D. Michigan, Southern Division

May 1, 2018

Nehme Jafaar, Plaintiff,
v.
City of Dearborn Heights, et al., Defendants.

          District Judge Mag. Judge Anthony P. Patti

          ORDER GRANTING DEFENDANT PIZZA HUT'S MOTION FOR JUDGMENT ON THE PLEADINGS [24]

          JUDITH E. LEVY United States District Judge

         This case arises out of an altercation between plaintiff Nehme Jafaar and defendant Brian Ziolkowski that occurred in the alley behind their workplaces. Ziolkowski called the Dearborn Heights police after he and plaintiff had a heated exchange of words, and the police arrested plaintiff. Plaintiff then brought this action against the City of Dearborn Heights, the officers involved in the arrest, Ziolkowski, and Pizza Hut, as Ziolkowski's employer. Plaintiff improperly named Pizza Hut as Ziolkowski's employer, as Ziolkowski's actual employer is Redberry Resto Brands, Int'l, Inc. (“Redberry”). (Dkt. 24 at 2.) Redberry now brings a motion for judgment on the pleadings, asking the Court to dismiss each of the three counts against it. (Dkt. 24.)

         For the reasons stated below, Redberry's motion is granted.

         I. Background[1]

         Plaintiff is the manager of the Lava Lounge, a hookah bar located in Dearborn Heights, Michigan. On February 21, 2016, one of plaintiff's employees called him outside to the dumpster area behind the bar so that plaintiff could ask the manager of the Pizza Hut next door, defendant Ziolkowski, to stop moving boxes from the Pizza Hut dumpster into the Lava Lounge dumpster.

         When plaintiff arrived on the scene, Ziolkowski told him to “stop throwing away his ‘fucking hallal boxes' into Pizza Hut's dumpster.” (Dkt. 1 at 5.) Plaintiff explained to Ziolkowski that the offending boxes were not from Lava Lounge, but were instead from Dynasty Chicken, a neighboring restaurant. This explanation agitated Ziolkowski, who then “approached plaintiff in a threatening manner” and “wouldn't let plaintiff leave the area.” (Id.) In response, plaintiff “identified himself as a Wayne County Sherriff Deputy Reserve” and showed Ziolkowski his badge, to which Ziolkowski responded “fuck the police.” (Id. at 6.)

         As the altercation continued, plaintiff attempted to film Ziolkowski's conduct using his cell phone camera. When Ziolkowski saw plaintiff filming, he knocked the camera out of plaintiff's hand. Plaintiff pushed Ziolkowski away to prevent him from picking up plaintiff's phone, and plaintiff told the other Lava Lounge employees in the alley not to engage with Ziolkowski. Ziolkowski then began “verbally challenging anyone to hit him, ” and, when no one did, he called the Dearborn Heights police. (Id. at 7.) The officers arrived on the scene, took Ziolkowski's statement, and arrested plaintiff. Ziolkowski eventually declined to press charges.

         Plaintiff brought this action against those involved in this incident, including the City of Dearborn Heights, the officers involved, Ziolkowski, and Redberry. Plaintiff asserted three claims against Redberry: intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent hiring and retention. (Dkt. 1 at 17-18, 21.) Redberry moves to dismiss each of those claims.

         II. Legal Standard

         Redberry brings this motion under Fed.R.Civ.P. 12(c). Courts review motions brought under Fed.R.Civ.P. 12(c) under the same standard as those brought pursuant to Fed.R.Civ.P. 12(b)(6). Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d 383, 389 (6th Cir. 2007). When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint 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). A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         III. Analysis

         a. Intentional Infliction of Emotional Distress

         Redberry argues that plaintiff's intentional infliction of emotional distress claim fails for two reasons: first, it cannot be vicariously liable when Ziolkowski's acts were beyond the scope of his employment with Redberry, and, second, even if they were within the scope of his employment, they were not extreme and outrageous. (Dkt. 24 at 16.) The Court need not reach the threshold issue of whether Ziolkowski acted within the scope of his employment because, for the reasons set forth below, plaintiff has not ...


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