Ditullio v. Boehm et al

Filing 124

ORDER granting in part and denying in part 117 Motion to Dismiss for Lack of Jurisdiction. Defendants motion for judgment on the pleadings pursuant to Rule 12(c) is GRANTED in part and DENIED in part as follows: Counts 1, 3, and 4 of plaintiff 9;s amended complaint are DISMISSED. Plaintiff's request for leave to amend her complaint is GRANTED. If plaintiff intends to pursue Count 4, an amended complaint shall be filed within 14 days from the date of this order. Signed by Judge John W. Sedwick on 5/9/12. (GMM, CHAMBERS STAFF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 11 12 MIRANDA DITULLIO, 13 Plaintiff, 14 15 vs. JOSEF F. BOEHM, Defendant. 16 ) ) ) ) ) ) ) ) ) ) 3:09-cv-00113 JWS ORDER AND OPINION [Re: Motion at Docket 117] 17 18 I. MOTION PRESENTED 19 At docket 117, defendant Josef F. Boehm (“defendant” or “Boehm”) renews his 20 motion for judgment on the pleadings. The court denied Boehm’s previous Rule 12(c) 21 motion without prejudice.1 Plaintiff Miranda Ditullio (“plaintiff” or “Ditullio”) opposes the 22 motion at docket 121. Boehm’s reply is at docket 122. Oral argument was not 23 requested and would not assist the court. II. BACKGROUND 24 25 26 In November 2004, Boehm entered into a plea agreement with the United States government. Boehm pled guilty to conspiring to recruit minor females to engage in 27 28 1 Doc. 100. -1- 1 commercial sex acts in violation of 18 U.S.C. §§ 371 and 1591(a)(1) and to conspiring 2 to distribute cocaine base to minors in violation of 21 U.S.C. §§ 846, 841(a)(1), 3 (b)(1)(A), and 859(a). Boehm admitted that the allegations in the plea agreement were 4 true. The plea agreement included an allegation that “[t]he following juveniles were 5 knowingly recruited by [Boehm] to engage in sex: S.P., E.A., J.M., K.W., L.H., C.R., 6 L.B., and M.D.”2 7 Ditullio is the victim identified in Boehm’s plea agreement by the initials “M.D.” 8 She filed suit in federal court in 2009. Her complaint alleges involuntary servitude in 9 violation of the Thirteenth Amendment (Count 1), sexual trafficking of a minor in 10 violation of 18 U.S.C. § 1591 (Count 2), distribution of a controlled substance to a minor 11 (Count 3), sexual assault of a minor (Count 4), and intentional infliction of emotional 12 distress (Count 5). Ditullio seeks compensatory and punitive damages (Count 6). 13 This court previously denied Ditullio’s motion for partial summary judgment and 14 ruled that 18 U.S.C. § 1591 did not apply to conduct occurring before its December 19, 15 2003 effective date and that punitive damages were unavailable under § 1591.3 Boehm 16 subsequently moved for judgment on the pleadings pursuant to Federal Rule of Civil 17 Procedure 12(c). The court denied that motion without prejudice and granted plaintiff’s 18 motion for an interlocutory appeal.4 On appeal, the Ninth Circuit affirmed the court’s 19 conclusion with respect to retroactivity and reversed the court’s determination with 20 respect to punitive damages under § 1591.5 Boehm now renews his motion for 21 judgment on the pleadings. 22 23 24 25 2 Ditullio v. Boehm, 662 F.3d 1091, 1095 (9th Cir. 2011). 26 3 27 4 28 5 Doc. 61. Doc. 100. Ditullio, 662 F.3d at 1102. -2- 1 2 III. STANDARD OF REVIEW “After the pleadings are closed but within such time as not to delay the trial, any 3 party may move for judgment on the pleadings.”6 Because “Rules 12(b)(6) and 12(c) 4 are substantially identical,”7 a motion for judgment on the pleadings is assessed under 5 the standard applicable to a motion to dismiss for failure to state a claim upon which 6 relief may be granted under Rule 12(b)(6).8 7 A motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil 8 Procedure 12(b)(6), tests the legal sufficiency of a plaintiff’s claims. In reviewing such a 9 motion, “[a]ll allegations of material fact in the complaint are taken as true and 10 construed in the light most favorable to the nonmoving party.”9 Dismissal for failure to 11 state a claim can be based on either “the lack of a cognizable legal theory or the 12 absence of sufficient facts alleged under a cognizable legal theory.”10 “Conclusory 13 allegations of law . . . are insufficient to defeat a motion to dismiss.”11 To avoid 14 dismissal, a plaintiff must plead facts sufficient to “state a claim to relief that is plausible 15 on its face.”12 “A claim has facial plausibility when the plaintiff pleads factual content 16 that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.”13 “The plausibility standard is not akin to a ‘probability 18 requirement’ but it asks for more than a sheer possibility that a defendant has acted 19 20 21 22 6 Fed. R. Civ. P. 12(c). 7 Strigliabotti v. Franklin Resources, Inc., 398 F. Supp. 2d 1094, 1097 (N.D. Cal. 2005). 8 23 See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). 9 24 25 Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). 10 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). 26 11 27 12 28 13 Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Id. -3- 1 unlawfully.”14 “Where a complaint pleads facts that are ‘merely consistent’ with a 2 defendant’s liability, it ‘stops short of the line between possibility and plausibility of 3 entitlement to relief.’”15 “In sum, for a complaint to survive a motion to dismiss, the non- 4 conclusory ‘factual content,’ and reasonable inferences from that content, must be 5 plausibly suggestive of a claim entitling the plaintiff to relief.”16 6 In ruling on a Rule 12(c) motion, a court therefore must “determine whether the 7 facts alleged in the complaint, . . . taken . . . as true, entitle the plaintiff to a legal 8 remedy.”17 “If the complaint fails to articulate a legally sufficient claim, the complaint 9 should be dismissed or judgment granted on the pleadings.”18 A Rule 12(c) motion is 10 thus properly granted when, taking all the allegations in the pleading as true, the 11 moving party is entitled to judgment as a matter of law.19 12 13 IV. DISCUSSION Boehm argues that Counts 1, 3, and 4 of Ditullio’s amended complaint should be 14 dismissed. Boehm also argues that either Count 2 or Count 5 should be dismissed 15 “because they are duplicative, will confuse the jury, and could lead to double 16 recovery.”20 Ditullio does not oppose dismissal of Count 1 or Count 3. Indeed, it has 17 been clear that she is not pursing those claims for more than two years.21 To make it 18 clear for the record, those counts are dismissed. 19 20 21 22 14 Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). 15 Id. (quoting Twombly, 550 U.S. at 557). 16 23 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 17 24 25 Strigliabotti, 398 F. Supp. 2d at 1097. 18 Id. 26 19 27 20 28 21 Knappenberger v. City of Phoenix, 566 F.3d 936, 939 (9th Cir. 2009). Doc. 118 at 2. See doc. 31 at p.2 n.4. -4- 1 A. Count 4 2 Ditullio’s fourth claim is for sexual assault of a minor. Boehm argues that the 3 claim is insufficiently pled insofar as Ditullio did not recite grounds for jurisdiction or 4 grounds for relief. Ditullio’s complaint alleges that “[w]hen [p]laintiff was a minor . . . 5 defendant . . . knowingly engage[d] in sexual penetration with plaintiff without her 6 consent, while she was incapacitated and did not know a sexual act was being 7 committed against her.”22 Defendants are therefore correct that the complaint does not 8 identify whether Ditullio is seeking to recover under a federal or state statute, or 9 whether she intended to state a common law claim. Ditullio argues that because 10 defendant is aware that she intended to assert a state law claim,23 her complaint need 11 not be amended.24 Although the court is confident that it has supplemental jurisdiction 12 over plaintiff’s state law claim,25 Ditullio’s complaint does not comport with the federal 13 pleading standard–Ditullio did not state a legal basis for her claim. 14 1. Leave to Amend 15 “[I]n dismissing for failure to state a claim under Rule 12(b)(6), ‘a district court 16 should grant leave to amend even if no request to amend the pleading was made, 17 unless it determines that the pleading could not possibly be cured by the allegation of 18 other facts.”26 Ditullio requested leave to amend in the event the court dismissed 19 Count 4.27 20 21 22 Doc. 12 at 7. Plaintiff’s complaint also includes variations of the same general allegation–that Ditullio was raped by Boehm when she was a minor. Id. 22 23 23 See doc. 118 at 11. 24 24 25 26 27 28 Doc. 121 at 4 (citing Kittay v. Kornstein, 230 F.3d 531, 542 (2d Cir. 2000)). 25 28 U.S.C. § 1367(a). 26 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995)). 27 Doc. 121 at 4. -5- 1 2 B. Counts 2 and 5 Boehm argues that permitting Ditullio to pursue a claim under 18 U.S.C. § 1595 3 and a common law claim for intentional infliction of emotional distress would confuse 4 the jury and could lead to double recovery. Boehm’s argument stems from the premise 5 that he is only potentially liable under § 1595 for acts that occurred between 6 December 19, 2003 and December 22, 2003, but that prior conduct would be relevant 7 to Ditullio’s claim for intentional infliction of emotional distress. Boehm cites a portion of 8 Judge Singleton’s order issuing preliminary jury instructions in a similar case (in which 9 another of Boehm’s victims sued for damages).28 Judge Singleton stated that “[h]ere 10 we have a private right of action [§ 1595], which Congress has specifically established 11 to permit victims of juvenile sex trafficking to recover their damages caused by the 12 abuser’s conduct. Thus, it would seem that intentional infliction of mental anguish is 13 redundant to [the plaintiff’s] federal claim and adds nothing to her damage claim other 14 than to confuse the issues.”29 15 As defendant concedes, however, no consideration had been given in that case 16 to the statute’s effective date. In the case at bar, Ditullio can only recover under § 1595 17 for a three-day period. Consequently, there is very little overlap between her claim 18 under that section and her claim for intentional infliction of emotional distress–the 19 allegations against Boehm stem from March 2003 until December 22, 2003. Because 20 there is only slight overlap, the possibility of double recovery is virtually eliminated. The 21 court also sees very little possibility that the jury would be confused. The elements of a 22 claim under § 1595 are different than the elements of a claim for intentional infliction of 23 emotional distress. To the extent there might be some confusion, an instruction will 24 suffice. 25 26 27 28 28 29 Purser v. Boehm, 3:05-cv-85-JKS, doc. 228 at 7. Id. -6- 1 V. CONCLUSION 2 For the reasons above, defendant’s motion for judgment on the pleadings 3 pursuant to Rule 12(c) is GRANTED in part and DENIED in part as follows: Counts 1, 3, 4 and 4 of plaintiff’s amended complaint are DISMISSED. Plaintiff’s request for leave to 5 amend her complaint is GRANTED. If plaintiff intends to pursue Count 4, an amended 6 complaint shall be filed within 14 days from the date of this order. 7 DATED this 9th day of May 2012. 8 /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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