Animal Rights

Roxy the Bed Bug Dog: The End of Secure Property Rights in Working Animals?

A N.Y. court applies a "best for all concerned" standard to hold that the employer (which owns the dog) can't get the dog back from the ex-employee with whom the dog worked and lived.

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Not Roxy at all, but Buster, a dog with no useful skills whatsoever.

Roxy is a "specially trained bed bug sniffing dog," owned by M & M Environmental—a bed bug exterminator—and kept for four years at the home of M & M employee Barry Myrick; Myrick and Roxy "work[ed] together visiting homes and business to determine whether bed bugs were present." Myrick had agreed at the outset that he "must return Roxy to M&M immediately upon the request of the Employer or upon the conclusion of my employment." The company paid for Roxy's food and medical care.

In March 2020, Myrick was either laid off or quit (there's a dispute about), but never returned Roxy. M & M sued to get Roxy back so she could "resume her bed bug sniffing duties" (M & M Environmental v. Myrick), but Monday New York trial court Judge Paul A. Goetz said no:

Traditionally under New York law, dogs and other companion animals such as Roxy have been treated as personal property. However, in light of the many protections afforded animals under the law, a growing body of case law has started to recognize that dogs fall within a special category of property that is treated differently from other types of personal inanimate property (Ferger v Warwick Animal Shelter, 59 AD3d 68 [2nd Dept 2008] [observing that trusts may now be created for pets upon the death or incapacitation of their human companions and pets may now be included in orders of protection issued by Family Court]). The question then arises what standard should be applied when determining custody and ownership of this special category of personal property.

In Travis v Murray, the court, in the context of a divorce action, was called upon to decide with whom Joey, a miniature dachshund, should live. After a thoughtful and extensive survey of the law concerning pets, the Travis Court determined that the most appropriate standard to apply when deciding with whom a pet should reside is the one found in the First Department case, Raymond v Lachmann (264 AD2d 340, 341 [1st Dept 1999]), the "best for all concerned" standard.

{Other courts have cited Raymond for the proposition that the appropriate standard is a "best interest of the animal" standard. (Feger, 59 AD3d at 72 [deciding appropriateness of a protective order to prevent disclosure of the identities of the donor and adoptive owner of a cat sought by plaintiff]; LeConte v Lee, 35 Misc. 3d 286, 288 [Civ Ct, NY Co 2011] [deciding replevin action between former paramours]).}

The Travis court detailed the factors to consider when applying the "best for all concerned" standard and indicated that it would hold a hearing at which the parties would be given an opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. The factors the Court set out include who bore the major responsibility for meeting Joey's needs (i.e. feeding, walking, grooming and taking him to the veterinarian) and who spent more time with Joey on a regular basis. Outside the matrimonial action context, trial courts have also applied the best for all concerned standard when determining ownership and custody of pets (Mitchell v Snider, 51 Misc 3d 1229 [Civ Ct NY Co 2016] [replevin action between former paramours]; Ramseur v Askins, 44 Misc 3d 1209 [A] [Civ Ct Bx Co 2014] [replevin action between nephew and aunt]; see also Hennet v Allan, 543 Misc 3d 542 [SC Albany Co 2014] [citing Travis in determining that the dispute between two former paramours required a hearing as to which party "has the most genuine right of possession"])….

[T]he question is not whether [M & M] holds "title" to her but rather whether [M & M] or [Myrick] has the superior right to custody of Roxy taking into account that she falls within a "special category of property." When resolving competing claims of who owns a dog, application of the best for all concerned standard is appropriate because it takes into account the special nature of dogs—their needs and well-being—as well as the competing claims by the parties.

Applying the best for all concerned standard and the straightforward factors set out by the court in Travis, on this record, [M & M] has not established a likelihood of success on the merits to warrant ordering Roxy's return to [M & M]. [M & M] does not submit evidence that it endeavored to meet any of Roxy's needs such as feeding, walking and grooming her. [M & M] merely reimbursed [Myrick] for food and veterinarian care; [Myrick] has been the party responsible for ensuring that Roxy has been properly feed and kept in good health.

Footing the bill for food and veterinarian care, without more, is insufficient to establish that [M & M] was meeting Roxy's needs. Nor does [M & M] allege that any of its other employees or [owners] spent any time with Roxy on a regular basis and there is no dispute that she has lived with [Myrick] for the past four years.

Prime evidence on this record that Roxy is well cared for by [Myrick] was not submitted by [Myrick] but rather by [M & M]. The YouTube video [M & M] linked to in its papers demonstrates that [Myrick] and Roxy have developed a deep mutual bond between them over the last four years. Removing Roxy from the home where she has grown and thrived, as evidenced in the YouTube video, for the past four years would likely cause her a great deal of distress and would not be in her or [Myrick]'s best interest.

[M & M]'s expense in acquiring Roxy and any compensable quantifiable business loses incurred as result of her not being deployed on [M & M]'s behalf may be awarded at a future date and do not outweigh the harm it will likely cause to Roxy and [Myrick] by ordering Roxy's return to [M & M]….

I can see the arguments  for the law recognizing the interests of dogs and similar animals, including their bonds with people they've lived with; perhaps this New York approach is indeed better than the traditional approach, where the owners have control over where and with whom the dog lives and works.

But I wanted to flag this, because it does seem like a serious departure from the traditional approach—and one that would apply to a wide range of working animals (at least as long as they are working for a company, rather than just for a sole proprietor). After all, in most companies that use such animals, the animal will be taken care of by employees and not the company owners; and often the animal will be taken care of by one particular employee more than by others. The sort of human-animal bonding that the judge found here will likely happen in many such cases; and, if this decision is followed, companies will no longer be able to have any confidence that, when the employee quits, they'll be able to continue using the animal. Maybe that's fine, but it strikes me as worth thinking about.

NEXT: Are Some of the State Attorneys General Supporting the Texas Election Suit Getting Cold Feet? [UPDATED in Light of Ohio Filing]

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  1. Next up a pet chicken.

  2. If this holds, companies will kennel their working animals rather than send them home with an employee.

    Lose/lose.

    1. That was my immediate reaction as well. The negative consequences of this decision will far outweigh and theoretical benefits.

    2. I’m not sure that a kenneled animal would be effective.

      And be far more expensive.

      1. More expensive than acquiring and training a new dog every time an employee who was hosting a dog decided they wanted to keep it as a pet?

        1. I think you skipped the final bit of the quoted text:

          [M & M]’s expense in acquiring Roxy and any compensable quantifiable business loses incurred as result of her not being deployed on [M & M]’s behalf may be awarded at a future date […]

          It’s seems quite likely to me that they court is going to award losses to the company, and basically require the former employee to purchase the dog (and since it’s a trained animal, presumably at considerable expense).

          So yeah. The company calculus will change a little, where they’ll consider that losing an employee may include losing the animal, but it’ll be something they can plan for, and the contract will quantify the cost of.

    3. How does this work with other places?

      What happens when the long time caretaker of an animal at a zoo moves to a different zoo? Does the animal now need to go with them?

  3. Um, it’s one thing to say that when two people have a basically equal claim to ownership of the dog, and the law REQUIRES that one or the other get it, yes sure dig a little deeper. But there’s no question of that here, ownership is clear.

    1. Ownership? What ownership?
      Biden got elected in a landslide. Didn’t you read all about it?
      The worker’s paradise has arrived.

      1. Biden was elected in a landslide, as even a half-educated bigot such as Longtobefree should be able to comprehend.

  4. I’ve been raising a steer on my property, but recently, through no one’s fault, it escaped and wandered onto the property of my neighbor, an ardent vegan and animal-rights activist. Said neighbor refuses to return the animal, citing ample evidence that I intend to kill and eat it. Would the best-interest-of-the-animal standard apply here and lead to a judgement against me? If not, how does this differ from the bedbug-dog case?

    1. If not, how does this differ from the bedbug-dog case?

      Besides that American law and courts have long distinguished between food-animals and other kinds of domesticated critters?

      How ’bout this:

      The factors the Court set out include who bore the major responsibility for meeting Joey’s needs (i.e. feeding, walking, grooming and taking him to the veterinarian) and who spent more time with Joey on a regular basis.

      1. Since dogs are regularly kept as food-animals (Korean tradition, etc) and pigs are regularly kept as pets (Vietnamese pot bellied, etc), I do not belief that the distinction you claim is either especially strong or defensible. You’d have to claim that this animal is a pet and not a food-animal – and that claim is subject to arbitrary game-playing. The vegan in Egg’s hypothetical just claims to adopt the steer.

        Your other argument also (probably) fails because it becomes one of mere time. How much feeding, walking, grooming and veterinary trips does it take to “convert” the farmer’s ownership into the vegan’s ownership? You’re basically saying that if the vegan keeps the stolen property long enough it somehow becomes not stolen. Applied to humans, you’re saying that if I kidnap a child and hold him long enough (and treat him well in the meantime), that will at some point extinguish the parents’ rights. That is not and should not be a defensible standard.

        1. Since dogs are regularly kept as food-animals (Korean tradition, etc) and pigs are regularly kept as pets (Vietnamese pot bellied, etc)

          This might surprise you, but New York state law isn’t terribly concerned with Korea or Vietnam. That said, the distinct relationships aren’t actually hard to distinguish, and people have shown that even when it involves an animal they wouldn’t normally consider, they can recognize it.

          So yeah, that’s not a problem. A US court has no problem distinguishing between when your neighbor steals your meat-pig and eats it, versus when it steals your pet-pig and eats it.

          You’re basically saying that if the vegan keeps the stolen property long enough it somehow becomes not stolen.

          Sure. If you lose track of your steer, and someone finds it and starts taking care of it, and you show up five years later saying “I want my steer back” and they’re like “who the fuck are you, get off my property I’m calling the cops”, I wouldn’t be surprised if the courts go with the vegan.

          If you show up the next day? They’ll probably tell the vegan “tough luck”.

          Timliness of claims is hardly a novel criteria.

          Applied to humans […]

          Human rights aren’t animal rights, so there’s no reason to do this. But sure, let’s go down this road as if it were reasonable (it’s not).

          […] that will at some point extinguish the parents’ rights.

          I have a fun story about this, actually!

          The mother in this story straight-up abandoned her kids. Left them in a motel and went on a three-month bender. No one knew where she was. In the meantime, her sister (the kid’s aunt) drove across state lines to pick up the kids. After some decision-making with the family memers that showed up (aka, not the mother) the kids went to live with grandma in another state.

          By the time mom sobered up and showed up, the kids were enrolled in school two states away and living with grandma. If she’d tried to press it, she could have made a legal claim that the kids were “kidnapped” by her sister and mother (the kids’ aunt and grandmother) and “smuggled” across state lines. And she probably would have lost, because the courts can recognize abandonment.

          Similarly, she could have tried to go to court to get her kids back from her mother, saying that she never relinquished custody, and her mother had no right to the kids. And the courts would have said “bitch, you abandoned them in bum-fuck Texas, and she’s been taking care of them for months while you were drunk and high off your ass”.

          All of which it to say… yes, courts will absolutely consider why the kids have been taken care of, for years, by someone that’s not their legal guardian, even if it can be described as “kidnapping”.

          1. “Sure. If you lose track of your steer, and someone finds it and starts taking care of it, and you show up five years later saying “I want my steer back” and they’re like “who the fuck are you, get off my property I’m calling the cops”, I wouldn’t be surprised if the courts go with the vegan.”

            Or, in some parts of the country, charge the vegan with cattle rustling 🙂

      2. My direct personal involvement with this particular steer was minimal. I gave it some routine vaccinations, which might be seen as part of meeting its needs. On the other hand, I performed the business of transforming it into a steer, which arguably was not in the critter’s best interests, and may have offset the vaccination business. The only thing I did in the way of feeding it was to turn it loose in my pasture.

        The steer in question was one of several hundred that I was raising. I had no individual relationship with it, and only recognized it as my #113 by its ear tag. By contrast, my vegan neighbors named it, bathed it, took it for walks, fed it special treats, and generally treated it as a pet. They now argue that the intensity of their personal relationship with the creature, brief though it might be, makes them its proper guardians.

  5. Why didn’t the court rule that Roxy be split down the middle, with 1/2 going to each Party?

    1. Because that was a bluff to get one side to relinquish it’s claim or in the alternative to see which side put the child’s interest first.

      In this day and age you can’t be sure you don’t have a couple of nutcases that will accept half a baby.

      1. Well then neither party was the true owner. Sucks for Roxy, though.

  6. What an interesting case. This result strikes me as fine, as long as damages are available, and it appears that they are: “Plaintiff’s expense in acquiring Roxy and any compensable quantifiable business loses [sic] incurred … may be awarded at a future date.”

    At brass tacks, this is an action for conversion. In a conversion action, we allow the person to keep the object they unlawfully took, so long as they pay damages.

  7. If you live in New York now you’d better think twice about hiring a dog sitter when you go on vacation or hiring a dog walker to walk your dog during the day while you’re at work. The sitter or walker may develop a relationship with your dog and the courts might decide it’s in the best interests of the dog for the sitter or walker to take custody of the dog.

    When on vacation, it’s probably safer to kennel your dog in an environment that is clearly substandard to the dog (so the kennel can’t successfully claim the kennel is a better environment for your prized dog) and better to just lock your dog in the laundry room all day when you’re at work rather than hire a dog walker.

    Doesn’t seem good for dogs as a group. Won’t someone think of the dogs?

  8. The post is accompanied by a photo of a dog – I urge the professor to accompany posts about abortion cases with a photo of a child* in the womb.

    *As of 2:49 PM EST today, the Merriam-Webster online dictionary still included “unborn…person” among the definitions of “child.”

    https://www.merriam-webster.com/dictionary/child

    1. Just out of curiosity, how do you take a photo of a foetus in the womb? Shove a photo camera up a pregnant woman’s unmentionables? (Come to think of it, that sounds about on-brand for the anti-abortion crowd.)

      1. Hey, Martinned! Welcome to the 21st century! It must be quite a shock, catching up on the changes since the 1950s, but, wow, have there been improvements in the field of imaging technology.

        See, nowadays – as in, starting in the 1950s – there’s been this thing called “ultrasound”, that uses sound waves to generate an image of the child inside of the body. You just missed it before your time travel, but maybe you may have heard of some of the earlier uses, such as checking for brain tumors or monitoring the heart? Those only date back to the 1920s to 1940s, though. It’s entirely reasonable that you may be ignorant of technology developed that recently.

        1. “there’s been this thing called “ultrasound”, that uses sound waves to generate an image of the child inside of the body.”

          Agreed, but the image that thing produces is not a “photo”.

        2. Sound =/ light, ultrasound =/ photo.

  9. Does New Your allow non-compete agreements?

    Seems that Myrick is set up to go into competition with his former employer, using their dog.

    1. From a quick google, it looks like they’re not banned, but courts are skeptical of enforcing them, requiring a higher burden of proof that the non-compete is necessary to protect legitimate business interests.

      1. Fun fact: lawyers cannot sign non-competes in NY, and they actually risk Bar discipline if they do and fail to add a carve-out making the non-compete subject to applicable ethical rules.

        https://nysba.org/ethics-opinion-1151/

        1. “lawyers cannot sign non-competes in NY”

          Unenforceable in Ohio. I suppose we can sign them, but they are against public policy determined by that subset of lawyers we cal judges.

  10. Buster looks to me like he has acquired the excellent skill of being a family dog.

  11. Seems to me, quite aside from legal issues, that the company would be making a big mistake in reclaiming the dog, although, back to the legal issues for a second, I think that is their right. But I bet that dog is so accustomed to its handler/guardian than shifting to a new handler/guardian will reduce its efficacy at sniffing out bed bugs.

    1. Military, police, even shepherds are all able to change handlers when needed. It’s not ideal but only because there’s a retraining period during the transition, not because transition is impossible.

  12. If I were a race horse owner whose horses were being trained by a stable, I would certainly flag this opinion.

  13. I completely agree with this standard being used on a family pet in a divorce situation or something similar. But service animals are a different category than a pet. Many service animals are owned by an organization or company rather than an individual, and they may be kept by multiple handlers during their career. This guy agreed when he got the dog that it wasn’t his personally and it would have to stay with the company when he left. He should have to honor that. This is a ridiculous ruling that will cause more problems than it solves.

  14. Really, Welcome to the 21-st century! I have no words.

  15. Well, I have no words to say anything about it. https://dogseeks.com/

  16. Well, I have no words to say anything about it. https://dogseeks.com/

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