Azzarmi v. 55 Fulton Market

Background

Aasir Azzarmi, proceeding without a lawyer, brought a defamation action based on diversity jurisdiction. He alleged that Angel Parma falsely accused him of being a thief in front of other customers on October 20, 2019. He further alleged that Shamin Chaitram and Madeline Donahue repeated the statements to customers and employees of Key Food Stores Co-operative Inc. and 55 Fulton Market by email, telephone, and in person.

The 55 Fulton defendants—55 Fulton Market, Shamin Chaitram, and Angel Parma—moved to dismiss the amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Key Food defendants—Key Food Stores Co-operative Inc. and Madeline Donahue—moved to dismiss: under Rule 12(b)(5) for insufficient service of process as to Donahue, and under Rule 12(b)(6) as to both defendants.

Report and objections

Magistrate Judge Barbara Moses recommended granting the Key Food defendants’ motion, granting the 55 Fulton defendants’ motion as to Chaitram, and denying that motion as to Parma and 55 Fulton Market. She also recommended denying leave to amend as to Donahue, Key Food, and Chaitram because amendment would be futile. Azzarmi filed a submission described as a motion for reconsideration, which the district court treated as objections to the report. The defendants did not object.

Court’s analysis

The court concluded that Donahue had not been properly served. One proof of service showed delivery to Judy Carkner, but the record did not show that Donahue had appointed Carkner or Carkner’s organization as an agent authorized to accept service. Another proof stated that the summons was left with a mailroom clerk at Key Food’s corporate headquarters, but the record did not establish that this was Donahue’s actual place of business or that she worked there. The court therefore upheld dismissal as to Donahue for insufficient service of process.

The court also upheld dismissal as to Key Food. The amended complaint alleged that Chaitram and Parma were Key Food employees or managing agents, but it did not provide facts supporting those conclusions. The court found that the complaint’s allegations that the relevant interactions occurred at 55 Fulton Market contradicted the unsupported assertions that Chaitram and Parma were Key Food employees. Because Azzarmi did not plausibly allege a claim against a Key Food employee, the court held that the claim against Key Food could not proceed on a vicarious-liability theory.

The court further upheld denial of leave to amend as to Donahue and Key Food. It found that the claims concerning Donahue and Key Food did not relate back to the original complaint because the amended complaint concerned different alleged conduct and Donahue had not been named or served in the original action. The court therefore agreed that amendment would be futile.

As to Chaitram, the court adopted the finding that her communications with 55 Fulton Market personnel about a shoplifter were presumptively protected by the common-interest privilege. The court also adopted the finding that Azzarmi stated a defamation claim against Parma and a vicarious-liability claim against 55 Fulton Market sufficient to survive dismissal at this stage.

Disposition

The court adopted Magistrate Judge Moses’s report and overruled Azzarmi’s objections. The Key Food defendants’ motion to dismiss was granted. The 55 Fulton defendants’ motion to dismiss was granted as to Shamin Chaitram and denied as to Angel Parma and 55 Fulton Market. Azzarmi’s motion for leave to amend the complaint as to Madeline Donahue and Key Food was denied. The opinion does not state that the surviving claims were resolved on their merits.