United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, UNITED STATES DISTRICT JUDGE
Plaintiff Jane Doe (“Doe”) has filed this lawsuit against Frank Medeiros (“Medeiros”) and Ellis Management Services (“Ellis”). Doe alleges battery (Count I), assault (Count II), negligent infliction of emotional distress (Count III), intentional infliction of emotional distress (Count IV), negligence (Count VI) and violations of her federal and state constitutional rights against Medeiros (Counts V). D. 11 ¶¶ 27-38. Doe alleges vicarious liability (Count VII) and negligent hiring and training against Ellis (Count VIII). Id. ¶¶ 39-42. Ellis now moves to dismiss the counts against it in the amended complaint. D. 13. For the reasons stated below, the Court DENIES in part and ALLOWS in part the motion to dismiss.
II. Standard of Review
In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court “accept[s] the truth of all well-pleaded facts and draw[s] all reasonable inferences therefrom in the pleader's favor.” García-Catalán v. United States, 734 F.3d 100, 102 (1st Cir. 2013). In conducting its review, the Court must first distinguish between factual allegations and conclusory legal allegations. Id. at 103. While the court must accept the factual allegations in the complaint as true, the conclusory legal allegations are properly disregarded. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“This context-specific inquiry does not demand ‘a high degree of factual specificity.’” García-Catalán, 734 F.3d at 103. “[T]he plaintiff need not demonstrate that she is likely to prevail, ” but the complaint must nonetheless be “plausible on its face.” Id. at 102-03. The complaint must recite facts sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557) (alteration in original). Courts rely upon their judicial experience and common sense in conducting this analysis and determining whether the pleading crosses the plausibility threshold. See García-Catalán, 734 F.3d at 103 (internal citations omitted).
III. Factual Background
The following allegations are taken from the amended complaint, D.11, and the Court accepts them as true for the purposes of this motion. As alleged, in December 2011, Doe worked as a property manager for Community Builders (“Community”). D. 11 ¶ 6. During this time, Community had a contract with Ellis pursuant to which Ellis sent secret shoppers to view Community’s rental properties. Id. ¶ 7. During these viewings, the secret shoppers posed as potential tenants. Id. Ellis creates the secret shopping schedules, drafts detailed instructions for the secret shoppers and provides feedback to its secret shoppers. Id. ¶ 13. Ellis requires its secret shoppers to complete documents that include details such as the layout of leasing offices and eye color of agents. Id. Some of those documents contain minimum length writing requirements. Id. Ellis hired Medeiros as a secret shopper. Id. ¶ 8.
Doe alleges that on December 12, 2011, Medeiros contacted Doe to view a rental unit owned by Community. Id. ¶ 15. Later that morning, Doe met Medeiros in Fall River, Massachusetts for a showing. Id. ¶ 16. Once at the showing, Medeiros asked Doe if any other tenants were home. Id. ¶ 17. Medeiros held Doe’s hand for an extended period of time during their handshake. Id. Doe told Medeiros that there were income requirements to qualify for renting the apartment. Id. ¶ 18. In response, Medeiros told Doe that he would falsify his application form. Id. Medeiros asked Doe if she was “wearing a wire.” Id. ¶ 19. He then grabbed Doe’s collar with both of his hands and began to “feel her chest.” Id. At that point, Doe pulled away from Medeiros and left the building. Id. ¶ 20.
Doe further alleges that she immediately filed a police report. Id. ¶ 21. Medeiros was charged with indecent assault and battery on a person over 14. Id. During the Fall River Police Department’s investigation, Medeiros informed the officers that he was “working undercover for a private company called EMPS.” Id. ¶ 22. Medeiros further informed the officers that “he was hired by this private company to evaluate the performance of sales representatives.” Id. Medeiros produced “several documents with interview questions and a phone number for the company.” Id.
As alleged by Doe, in 2013, a state court continued the criminal action without a finding; the continuation was issued on the conditions that Medeiros serve two years of probation, undergoes intensive sex offender counseling and obeys a no contact order. Id. ¶ 23. Following the incident, Doe was diagnosed with post-traumatic stress disorder, major depressive disorder and generalized anxiety disorder. Id. ¶ 25. Doe has sought outpatient treatment, including therapy and medication. Id.
Doe alleges that public records that are available on the Internet show that Medeiros has a criminal record in his home state of Rhode Island, including one criminal case in 2004. Id. ¶ 10. As alleged, in 2004, Medeiros pled nolo contendere to one count of “Obtaining Money Under False Pretenses Less Than $1, 500/Misdemeanor” and one count of “Real Estate License Required.” Id. ¶ 11. In that same criminal case, one count of “Obtaining Money Under False Pretenses Greater Than $1, 500/Felony, ” one count of “Embezzlement Over $100, ” and two additional counts of “Real Estate License Required” were dismissed. Id. ¶ 11.
IV. Procedural History
Doe commenced this action on or about December 15, 2014 in the Bristol Superior Court. D. 1-1. On March 27, 2015, Ellis removed the case to this Court. D.1. Ellis has now moved to dismiss, D. 13, and the Court heard the ...