Doe v. Wairi et al
Filing
27
Judge Richard G. Stearns: ORDER entered granting 26 Motion for Default Judgment. (Zierk, Marsha)
Case 1:22-cv-10091-RGS Document 27 Filed 01/19/23 Page 1 of 6
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 22-10091-RGS
JOHN DOE 1
v.
JOSH WAIRI, et al.
MEMORANDUM AND ORDER ON
MOTION FOR DEFAULT JUDGMENT
January 19, 2023
STEARNS, D. J.,
Defendant Josh Wairi taught children at the Arthur D. Healey School
(Healey), a public school in Somerville, Massachusetts. During his tenure as
a teacher, Wairi was charged with possession and transportation of child
pornography.
See United States v. Wairi, 14-cr-10143, Dkt. #91 (Jury
Verdict). Plaintiff John Doe was a student in Wairi’s fifth grade class at
Healey and one of Wairi’s victims. John Doe brought this civil action against
Wairi and his employer, the City of Somerville, to recover for his injuries.
In granting plaintiff’s motion to proceed under a pseudonym, the
court concluded that “Doe’s expressed fears -- of being exposed as a minor
victim of sexual abuse -- are both severe and reasonable. For the same
reasons, the court also finds that Doe has demonstrated good cause for
impounding the affidavit of his true name. Dkt. #6.
1
Case 1:22-cv-10091-RGS Document 27 Filed 01/19/23 Page 2 of 6
Wairi has failed to respond to the Complaint. John Doe has moved for
default judgment. 2
BACKGROUND
While in the fifth grade at Healey (in 2011), John Doe attended an
overnight fieldtrip to Nature’s Classroom. Compl. ¶ 18. Wairi served as a
chaperone and during the trip surreptitiously videotaped several of the male
students while they were showering. Id. ¶ 19. Wairi strategically positioned
his camera to best capture the boys’ genitals. Id. ¶ 20-21; United States v.
Wairi, No. 14-cr-10143-WGY, Dkt. #71, at 2.
Wairi edited the footage
(splicing some segments together and removing others), ultimately
comingling the footage with extracts from his child pornography collection.
Id.
Law enforcement eventually recovered more than 26,000 images and
500 videos from Wairi’s computer, including files containing the names of
the boys on the trip who appeared in the videos. Id., Dkt. #110, at 11. Wairi
admitted to officers that he masturbated while viewing these videos. Id. at
9.
Defendant City of Somerville is not in default and is not a subject of
this motion.
2
2
Case 1:22-cv-10091-RGS Document 27 Filed 01/19/23 Page 3 of 6
Based on the evidence, a jury convicted him of transportation of child
pornography (18 U.S.C. §2252A(a)(1)) and possession of child pornography
(18 U.S.C. §2252A(a)(5)(B)) Id., Dkt. #91, #143.
Wairi is currently
incarcerated.
John Doe filed civil claims against Wairi for intentional infliction of
emotional distress (Count 1); negligent infliction of emotional distress
(Count 2); violation of 18 U.S.C. § 2255 (Masha’s Law) (Count 3); and
invasion of privacy (Count 4). Compl. ¶¶ 35-53. Service of the Complaint
was made on Wairi at the Federal Correctional Institution, Schuylkill in
Minersville, Pennsylvania.
See Dkt. #15.
John Doe’s Complaint and
Requests for Admissions summarize the evidence from the criminal case.
Dkt. #1, #19. John Doe also filed an affidavit attesting to the facts of the
Complaint, describing the emotional impact of Wairi’s actions, and detailing
his damages. Dkt. #26.3 (Ex. 2, Doe Aff.) Wairi failed to respond to Doe’s
Complaint or any other pleadings.3 As a consequence, the court entered a
Pursuant to Fed. R. Civ. P. 36(a)(3), Wairi’s failure to respond to John
Doe’s Request for Admissions, requires the court to deem each request
admitted by Wairi.
3
3
Case 1:22-cv-10091-RGS Document 27 Filed 01/19/23 Page 4 of 6
default against Wairi, see Fed. R. Civ. P. 55(a), and now considers John Doe’s
request for an award of damages. 4
Having reviewed the record in this case and the pleadings in Wairi’s
criminal cases, the court takes special note of John Doe’s testimony that his
knowledge that Wairi has shared parts of his child pornography collection
with others is “particularly devastating.” Doe Aff. ¶ 10. Doe affirms that
“because I do not know where the images may be, who may currently have
them, if I am identifiable, and if they have continued to be distributed.” Id.
Doe states that the resultant anxiety causes “sleep disturbances, insomnia.
hopelessness, fear of crowds, intrusive memories, and disturbing memories.
. . . Because I don’t know where the images of me are, the abuse isn't a distant
memory. Instead, I worry that I will learn that the images are still out there
being shared.” Doe Aff. ¶¶ 12-14. The court also notes that no restitution
was made to Doe or the other victims in the federal criminal matter.5
Under Count 3, Doe alleges violation of 18 U.S.C. § 2255 (Masha’s
Law), which creates a civil cause of action for victims of child pornography.
“In support [of the motion for default judgment], Plaintiff relies on
the following: (1) record in this case; (2) enclosed memorandum; and (3)
enclosed affidavits.” Dkt. #26, at 1.
4
Counsel provides the court with “comparable” damages awards made
to victims of child sex abuse/assault and battery lawsuits. There is no
evidence, however, of an assault and battery in Doe’s case.
5
4
Case 1:22-cv-10091-RGS Document 27 Filed 01/19/23 Page 5 of 6
The statute lists several specific crimes related to child abuse and
exploitation, including the creation and transmission of sexually explicit
images of children, see 18 U.S.C. § 2251, for which victims are entitled to
compensation. Masha’s Law provides for liquidated damages in the amount
of $150,000, and the costs of the action, including reasonable attorney’s fees
and other litigation costs reasonably incurred.” 18 U.S.C. § 2255(a). Doe’s
counsel asks for $13, 300 in attorney’s fees based on 38 hours of legal work
at a rate of $350. The court finds the number of hours expended and the
hourly billing rate reasonable. Accordingly, the court awards $163,300 on
Count 3.
Recognizing the overlapping elements of the measures of damages that
attach in the remaining common-law counts, the court will award an
additional total of $150,000 consisting of $75,000 each on Count 1
(intentional infliction of emotional distress) and Count 4, (invasion of
privacy). The court notes that Count 2 (negligent infliction of emotional
distress) is subsumed in Count 1 and therefore duplicative.
ORDER
In sum, the court awards John Doe $300,000 in damages, $13,300 in
attorney’s fees and costs, and interest from the date of the filing of the
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Case 1:22-cv-10091-RGS Document 27 Filed 01/19/23 Page 6 of 6
Complaint.
The Clerk will enter a form of Default Judgment against
defendant Josh Wairi consistent with this Order.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE
6
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