In Montanile v. Botticelli, et al., 2008 WL 5101775 (E.D.Va. 2008), Plaintiff contracted with Defendant Botticelli to sell him baseball cards for $7,800. The facts alleged that Botticelli mailed a check to Plaintiff which was cashed and that Plaintiff insured and sent the cards to Botticelli via UPS the same day. According to the Plaintiff, UPS failed to obtain a delivery signature and just left the package which Botticelli never received. Plaintiff filed a claim with UPS and told Botticelli she would refund his money when she received the insurance remittance from UPS. Botticelli secured a warrant for Plaintiff's arrest. Plaintiff was arrested in New Jersey and spent two weeks there before being extradited to Virginia, where she was released after posting bail. She then filed suit against both Botticelli and UPS. Both Defendants filed Rule 12(b)(6) motions to dismiss. Botticelli's Motion was denied in part and granted in part and UPS's Motion was granted.
Botticelli's Motion to Dismiss alleged that Plaintiff had not sufficiently alleged facts to support two of the four elements of malicious prosecution: probable cause and malice. Although Botticelli had submitted evidence that may have granted him summary judgment, on a Rule 12(b)(6) Motion to Dismiss, the Court was concerned only with the facts pled in the Complaint. The Court held that the allegations pled by Plaintiff made it "at least plausible that Botticelli lacked knowledge of facts and circumstances that could give him probable cause to have Plaintiff arrested." 2008 WL 5101775, *3. The Court also held that malice can be inferred from the absence of probable cause and therefore Plaintiff had also sufficiently alleged facts to support that element. Botticelli's Motion to Dismiss Plaintiff's claim for malicious prosecution was therefore denied.
Botticelli's Motion to Dismiss also sought to dismiss Plaintiff's claim for false arrest. "False arrest is a species of false imprisonment." Id. at *4. Botticelli claimed that because the Complaint did not allege that he actually arrested or restrained Plaintiff, she had not pled a claim for false arrest. The Court disagreed and held that Plaintiff did not have to allege that Botticelli personally arrested her in order to state her claim. However, the Court did find that in order to state a claim for false arrest, a Complaint must allege that the arrest was made without lawful warrant or other form of lawful process. Because Plaintiff failed to allege any problems with the warrant or that the arrest was made without a lawful warrant, Botticelli's Motion to Dismiss Plaintiff's claim for false imprisonment was granted.
UPS's Motion to Dismiss was granted because Plaintiff's claims against UPS are pre-empted by Federal Law--specifically, the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. s14706.
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