Doe v. Draftkings, Inc.

Filing 41

MEMORANDUM & ORDER: For the reasons stated, defendant's motion to dismiss 33 is GRANTED in part, DENIED in part. Plaintiff's claims for negligent and intentional infliction of emotional distress are DISMISSED without prejudice. ORDER ATTACHED. Ordered by Judge Natasha C. Merle on 3/7/2025. (ERB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

STEVEN JACOBS,
Plaintiff,

MEMORANDUM & ORDER
24-cv-03077 (NCM) (VMS)

– against –
DRAFTKINGS INC.,
Defendant.

NATASHA C. MERLE, United States District Judge:
Before the Court is defendant’s motion to dismiss plaintiff’s amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). 1 Plaintiff Steven Jacobs brings this
action pursuant to the Court’s diversity jurisdiction against DraftKings Inc.
(“DraftKings”) for several alleged common law torts relating to the treatment of his
personal information and alleged threatening behavior aided by DraftKings’ employees.
Am. Compl., ECF No. 20. For the reasons stated below, defendant’s Motion is GRANTED
in part and DENIED in part.
BACKGROUND
Plaintiff is a former customer of defendant DraftKings, a prominent sports betting
company. Am. Compl. ¶¶ 4–5. Plaintiff alleges that DraftKings assisted several third
parties, including a bettor named Gadoon “Spanky” Kyrollos, in threatening plaintiff by

The Court hereinafter refers to the Memorandum of Law in Support of Defendant’s
Motion to Dismiss the Complaint, ECF No. 33-1, as the “Motion”; plaintiff’s
Memorandum of Law in Opposition to the Motion, ECF No. 33-4, as the “Opposition”;
and the Reply Brief in support of the Motion, ECF No. 33-6, as the “Reply.”

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gaining access to his personal information, waiting outside his home, and assaulting him
on his way to the subway. Am. Compl. ¶¶ 1–2.
Plaintiff was a “VIP” customer at DraftKings for over a year and worked with a “VIP
host,” Joe Di Chiaro, to place his bets during that time. Am. Compl. ¶¶ 17, 19. Around
February 2023, plainitff alleges that Spanky “began extorting” him by claiming
entitlement to “funds held in Plaintiff’s DraftKings account.” Am. Compl. ¶¶ 20, 22. As
part of this campaign, Spanky “indicated he had dangerous associates” as well as
“acquaintances in the ‘upper echelon’ of DraftKings.” Am. Compl. ¶¶ 23, 25. Plaintiff
further alleges that Spanky told him he planned to attend a sports betting conference 2
“where DraftKings would provide him any and all information he requested regarding
Plaintiff’s account.” Am. Compl. ¶ 23.
Plaintiff alleges that he reported his conversations with Spanky to Di Chiaro, who
“seemed shocked” and “said that he would do everything he could to help ensure that
nothing was improperly leaked to Spanky or anyone else.” Am. Compl. ¶ 28. Despite this
assurance, Spanky’s “associate,” Oscar Jones, “made it abundantly clear in emails and text
messages that he and Spanky had received Plaintiff’s personal and financial information
from DraftKings.” Am. Compl. ¶ 31. Shortly thereafter in late March 2023, plaintiff alleges

The parties each ask the Court to take judicial notice of several exhibits not
contained in plaintiff’s amended pleading, including online information about the sports
betting conference and DraftKings’ privacy notice. See ECF Nos. 33-2, 33-5. While the
Court may take judicial notice of certain matters pursuant to Federal Rule of Evidence
201, it declines to do so here for two reasons. See Dwyer v. Allbirds, Inc., 598 F. Supp. 3d
137, 148 (S.D.N.Y. 2022). First, judicially noticed materials may “be considered only for
the fact that” the information was presented—not for the truth of the information
contained therein. Id. While styled as a request for judicial notice, plaintiff’s filing consists
of factual statements supported by additional exhibits, thereby improperly requesting
that the Court consider the truth of the matters asserted in those exhibits. See Pl.’s Req.
Jud. Not., ECF No. 33-5. Second, the Court finds that the materials defendant presents
for judicial notice are not necessary to consider when evaluating the Motion.
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that he was attacked by an unnamed, masked man on the subway platform while
commuting to work. Am. Compl. ¶ 32. Plaintiff alleges that, upon hearing about this
incident, “Di Chiaro’s attitude appeared to have changed completely” and he
“stonewalled” plaintiff by refusing to provide information on DraftKings’ “investigation
regarding the information that it provided to Spanky.” Am. Compl. ¶¶ 35–37. Plaintiff
alleges that his “life has not been the same” since the incident, which caused him “severe
emotional distress.” Am. Compl. ¶ 39.
Plaintiff further alleges that in October 2023, his DraftKings account email address
had been changed such that he could no longer access the account online. Am. Compl.
¶¶ 43–44. According to the complaint, “DraftKings intentionally changed the address to
assist a bad actor” or “completely neglected to follow its own procedures with respect to
changing Plaintiff’s registered email.” Am. Compl. ¶ 48. Plaintiff alleges that he initially
spoke with a DraftKings VIP host, Taylor O’Brien, who at first “appeared to understand
the seriousness of the situation,” but O’Brien was later “ordered” by the “upper echelon”
at DraftKings “not to provide any further information” to plaintiff. Am. Compl. ¶¶ 50–55.
Plaintiff believes that “the upper echelon of DraftKings assisted Spanky” with the October
2023 “hack” of plaintiff’s account. Am. Compl. ¶ 67.
Plaintiff alleges that the March and October 2023 incidents were part of a “yearlong deliberate and malicious campaign of harassment and intimidation against” plaintiff
and, as a result, plaintiff “has been terrified for his safety ever since.” Am. Compl. ¶¶ 70–
71. Thus, plaintiff brought this action against DraftKings seeking monetary damages for
several common law torts arising out of these alleged incidents: aiding and abetting

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assault and battery, intentional and negligent infliction of emotional distress, and
negligent supervision and retention. 3 Am. Compl. ¶¶ 72–106.
LEGAL STANDARD
When deciding a motion to dismiss, a district court must “accept[] all factual
claims in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s
favor.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014). 4
Factual disputes are typically not the subject of the Court’s analysis, as Rule 12 motions
“probe the legal, not the factual, sufficiency of a complaint.” Plastic Surgery Grp., P.C. v.
United Healthcare Ins. Co. of N.Y., Inc., 64 F. Supp. 3d 459, 468–69 (E.D.N.Y.
2014). That is, “the issue” on a motion to dismiss “is not whether a plaintiff will ultimately
prevail,” but instead whether a plaintiff is “entitled to offer evidence to support the
claims.” Sikhs for Just. v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly,
“[d]ismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove
no set of facts which would entitle him or her to relief.” Fat Brands Inc. v. Ramjeet, 75
F.4th 118, 125 (2d Cir. 2023).
In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must
state “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim is

The Amended Complaint lists the following under one cause of action:
“Negligence, Negligent Supervision and Retention, Negligent Infliction of Emotional
Distress.” Am. Compl. 18. In his opposition brief, plaintiff does not address any
standalone negligence claim. See Opp’n 24–27. Accordingly, the Court does not consider
whether plaintiff has stated a claim for negligence other than negligent supervision and
retention and negligent infliction of emotional distress.

3

Throughout this Opinion, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.
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plausible ‘when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Matson v.
Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal, 556
U.S. at 678). Although the Court takes all factual allegations contained in the complaint
as true, it does not do so for legal conclusions or “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements” in a complaint. Iqbal, 556
U.S. at 678. Furthermore, although the Court generally “construe[s]” a pro se plaintiff’s
“submissions liberally,” Whitfield v. City of New York, 96 F.4th 504, 518 (2d Cir. 2024),
the Court “does not give special solicitude to pro se litigants who are themselves
attorneys,” Chevron Corp. v. Donziger, 990 F.3d 191, 203 (2d Cir. 2021).
Federal courts sitting in diversity apply the substantive law of the forum state. Burt
Rigid Box, Inc. v. Traveler’s Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
I.

Vicarious Liability

Plaintiff brings several claims against DraftKings under a theory of vicarious
liability. Pursuant to New York law, “an employer may be vicariously liable for the tortious
acts of its employees only if those acts were committed in furtherance of the employer’s
business and within the scope of employment.” A.W. by E.W. v. New York Dep’t of Educ.,
702 F. Supp. 3d 46, 52 (E.D.N.Y. 2023). An employee acting within the scope of
employment generally acts in furtherance, or in service, of the employer’s interests. See
Rosenfeld v. Lenich, 370 F. Supp. 3d 335, 350 (E.D.N.Y. 2019) (“[A] plaintiff must plead
facts that plausibly allege that the predicate torts were committed within the scope of the
employee’s duties to the employer and was thus in furtherance of the employer’s
interests.”). Defendant contends that it cannot be held vicariously liable for the claims of
aiding and abetting battery or assault, or intentional infliction of emotional distress,
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because plaintiff failed to allege that DraftKings’ employees acted within the scope of their
employment. Mot. 11.5 Conduct is within an employee’s scope of employment if it “is
generally foreseeable and a natural incident of the employment.” A.W. by E.W., 702 F.
Supp. 3d at 52. This inquiry is “fact-dependent” and “typically left to the jury.” Id. at 53.
Relevant factors include “the time, place[,] and occasion for the act” and the employeremployee relationship “as spelled out in actual practice,” although foreseeability is
generally provided more weight. Id.
Plaintiff contends that the “only reasonable inference” based on the allegations in
the complaint is that defendant “made a business decision” to work with Spanky to
threaten plaintiff. Opp’n 15 (emphasis in original). To support this inference, plaintiff
alleges that he “reported” to Di Chiaro that:
Spanky (i) was a very dangerous individual; (ii) had claimed
to be connected all the way up to the ‘upper echelon’ of
Draftkings; (iii) had claimed that he was going to attend a
conference in Boston at which DraftKings would provide him
with Plaintiff’s private personal and sensitive financial
information, including Plaintiff’s address, as well as his
financial, banking, and betting history; and (iv) that he
intended to use information that he received from DraftKings
to extort Plaintiff, threaten Plaintiff, and/or potentially injure
or kill Plaintiff.
Am. Compl. ¶ 26.
The fact that this exchange was anticipated at a sports betting “conference” where
DraftKings employees would be in attendance supports a reasonable inference that the
leak may have occurred during a work function. Of course, several factual gaps remain
regarding where, when, or how Spanky intended to obtain plaintiff’s personal information

Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.
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at the conference—for example, during a panel discussion, private meeting, or an afterhours dinner. These details are relevant to the fact intensive inquiry as to whether
DraftKings’ employees provided Spanky with plaintiff’s information during the scope of
their employment, which would support vicarious liability for aiding and abetting battery
or assault, or intentional infliction of emotional distress. But plaintiff’s allegations
nonetheless support a plausible inference that they did so during a work function and
therefore could have been acting within the scope of their employment. See Doe v. Hilton
Cent. Sch. Dist., 720 F. Supp. 3d 184, 197 (W.D.N.Y. 2024) (noting that “discovery could
swing this entire analysis the other way” regarding an employer’s vicarious liability).
Furthermore, these allegations bear directly on whether the alleged tortious
conduct in 2023 was foreseeable to DraftKings. Specifically, plaintiff alleges that prior to
the March 2023 incident on the subway platform he reported his conversation with
Spanky to Di Chiaro, who represented that he would take steps to safeguard plaintiff’s
information. Am. Compl. ¶ 28. That report and reaction by Di Chiaro suggest that
defendant was on actual notice that its “upper echelon” might somehow “provide
[Spanky] with Plaintiff’s private personal and sensitive financial information.” See Am.
Compl. ¶ 26. With respect to the October 2023 incident, plaintiff also alleges that he
exchanged messages with several DraftKings employees, including Di Chiaro and O’Brien,
regarding the allegedly erroneous change to his account email address. Am. Compl.
¶¶ 43–45, 50. Thereafter, plaintiff requested information regarding the nature of the
email address change and received email responses from DraftKings, including its privacy
department, regarding “its investigation” and related files, which plaintiff alleges was a
“systematic cover-up.” Am. Compl. ¶¶ 52–68. These exchanges plausibly suggest that the
alleged provision of plaintiff’s private information to third parties, including Spanky, was
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“generally foreseeable” to DraftKings and therefore plausibly occurred during the scope
of its employees’ employment. See A.W. by E.W., 702 F. Supp. 3d at 52.
Defendant also contends that its privacy rules protect against disclosure of
customers’ personal information, and therefore any disclosure in violation of those rules
would necessarily fall outside of the employee’s scope of employment. Mot. 13. However,
even if DraftKings’ privacy rules require employees to “use reasonable efforts to protect”
customer information, defendant provides no authority that a potential violation of a
written company policy is a per se bar to the fact-specific vicarious liability determination.
See Mot. 13. In fact, “an employee’s disregard of instructions is an almost inevitable
feature of vicarious liability claims involving intentional torts.” Norwood v. Simon Prop.
Grp., Inc., 159 N.Y.S.3d 482, 486 (2d Dep’t 2021) (noting that employee’s conduct
“prohibited by the [] defendants’ policy was not necessarily unforeseeable”); see also A.W.
by E.W. v. New York Dep’t of Educ., 519 F. Supp. 3d 128, 140–41 (E.D.N.Y. 2021) (noting
that violation of state regulations “does not necessarily mean that a[ state] employee’s
actions were outside the scope of employment”); Rosenfeld, 370 F. Supp. 3d at 352
(finding that employee’s “forgery of judicial orders and subpoenas and unlawful
wiretapping” did not foreclose employer’s vicarious liability). Moreover, DraftKings’
employees may have been using “reasonable” efforts to protect plaintiff’s information, as
plaintiff alleges Di Chiaro promised to do, and therefore complying with company policy
when the information was nonetheless leaked to a third party. Indeed, the allegations that
Di Chiaro responded to plaintiff’s report by promising to “do everything he could to help
ensure that nothing was improperly leaked to Spanky or anyone else,” Am. Compl. ¶ 28,
suggests that the leak may have occurred despite DraftKings’ employees’ compliance with
the privacy policy.
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Accepting the allegations in the complaint as true, and drawing all reasonable
inferences in plaintiff’s favor, the Court finds that plaintiff has sufficiently pled vicarious
liability. 6 Furthermore, for the reasons stated below, plaintiff has sufficiently alleged a
claim for aiding and abetting assault and battery but has failed to adequately plead a claim
for intentional infliction of emotional distress.
A. Aiding & Abetting
Pursuant to New York law, claims for aiding and abetting tortious conduct require
a plaintiff to plead “(1) the existence of an underlying tort; (2) the defendant’s knowledge
of the underlying tort; and (3) that the defendant provided substantial assistance to
advance the underlying tort’s commission.” Bigio v. Coca-Cola Co., 675 F.3d 163, 172 (2d
Cir. 2012); see also Naughright v. Weiss, 826 F. Supp. 2d 676, 691 (S.D.N.Y. 2011) (“New
York specifically recognizes a cause of action for aiding and abetting an assault and
battery.”). Aiding and abetting claims “stand[] or fall[] with the underlying tort” claim.
Naughright, 826 F. Supp. 2d at 692. Here, plaintiff alleges assault and battery in the form
of a “death threat”: “a man” approached him on the subway, “grab[bed] his arm,” and told
plaintiff that if he did not pay money owed to Jones, plaintiff “did not want to know what

Plaintiff also argues that the “only plausible reason for DraftKings risking their
reputation to send a team of employees to work with Spanky is that a close relationship
with Spanky . . . is profitable for DraftKings.” Opp’n 16. However, plaintiff has failed to
allege a direct connection between the provision of plaintiff’s private information and a
financial benefit to DraftKings. His arguments that defendant and Spanky had a business
relationship, see Opp’n 15, are not based on his allegations in the complaint, and such a
conclusory allegation would be nonetheless insufficient to plausibly suggest that
defendant financially benefitted from the alleged information leak. Indeed, as defendant
points out, plaintiff alleges that a customer information leak “could cause a major
problem for the company.” Am. Compl. ¶ 28; see Reply 8. Nevertheless, such a potential
issue does not foreclose DraftKings’ vicarious liability, as plaintiff has sufficiently alleged
that defendant’s employees were not acting on “wholly personal motives.” See N.X. v.
Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002).
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[the man] would do to” him. Am. Compl. ¶¶ 32–34; Opp’n 11. This is sufficient to plead
the underlying torts of assault and battery pursuant to state law.
New York law defines assault as “an intentional placing of another person in fear
of imminent harmful or offensive contact” and battery as “an intentional wrongful
physical contact with another person without consent.” Freeman v. Jacobson, No. 20-cv10040, 2021 WL 3604754, at *9 (S.D.N.Y. Aug. 13, 2021). As to battery, plaintiff alleges
physical violence on the subway platform: the man (who allegedly received plaintiff’s
information from Spanky or Jones) “twisted Plaintiff’s arm and aggressively spun Plaintiff
around on the subway platform.” Am. Compl. ¶ 32. As to assault, plaintiff alleges “fear of
imminent harmful or offensive contact,” Freeman, 2021 WL 3604754, at *9, by way of the
man’s statement that he knew where plaintiff lived and worked and threatened plaintiff
by stating that he “did not want to know” what would happen if plaintiff did not pay money
to Jones, Am. Compl. ¶ 33.
However, defendant contends that plaintiff has failed to allege substantial
assistance to support aiding and abetting of assault or battery. Mot. 16. A defendant
provides “substantial assistance” if it “affirmatively assists, helps conceal or fails to act
when required to do so, thereby enabling” the tortious conduct. Lerner v. Fleet Bank,
N.A., 459 F.3d 273, 295 (2d Cir. 2006). Inaction may constitute substantial assistance
only where a defendant “owes a fiduciary duty directly to the plaintiff.” Id. The parties
dispute whether plaintiff has pled (i) affirmative assistance or (ii) inactive assistance.
As to affirmative assistance, plaintiff claims that defendant substantially assisted
the assault and battery by providing “Spanky and/or others” with plaintiff’s personal
information, “which gave Spanky the means and desire to send ‘muscle’ to make the Death
Threat.” Am. Compl. ¶ 35; see Opp’n 18–19 (“The only reasonable inference is that
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DraftKings intended [to] aid the assault and battery.”) (emphasis in original). As noted
supra, plaintiff also alleges that he warned defendant that Spanky was planning to obtain
plaintiff’s personal information from DraftKings and use it to threaten plaintiff. Am.
Compl. ¶¶ 17, 26. However, plaintiff alleges that DraftKings’ employee, Di Chiaro,
responded to plaintiff’s warning by implementing “added security” for plaintiff’s
information. Am. Compl. ¶ 29. The complaint then leaps ahead, asking the Court to draw
an inference that the “security measures” put in place to safeguard his information “did
not work” and instead DraftKings leaked plaintiff’s private information. Am. Compl. ¶¶
29–30, 35. These allegations are conclusory. The Court cannot reasonably infer that
DraftKings provided the missing link—substantial affirmative assistance—by disclosing
plaintiff’s private information to a third party in furtherance of the masked man’s assault
and battery of plaintiff.
Plaintiff also argues that inactive substantial assistance is adequately pled because
defendant owed him a fiduciary duty. Opp’n 19–20. Specifically, plaintiff contends that
DraftKings carries “similar responsibilities” and regulatory requirements as banks, which
owe fiduciary duties to their customers. Opp’n 19. However, a “conventional business
relationship” is insufficient to support a fiduciary relationship. 42-50 21st St. Realty LLC
v. First Cent. Sav. Bank, No. 20-cv-05370, 2022 WL 1004187, at *6 (E.D.N.Y. Apr. 4,
2022). Instead, “[t]o establish the existence of a fiduciary relationship, a plaintiff must
allege that it has reposed trust or confidence” in defendant such that “the relationship”
between plaintiff and defendant “exhibit[s] the characteristics of de facto control and
dominance.” Id.; see also Neogenix Oncology, Inc. v. Gordon, 133 F. Supp. 3d 539, 554
(E.D.N.Y. 2015)(“[A] fiduciary relationship exists only when a person reposes a high level

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of confidence and reliance in another, who thereby exercises control and dominance over
him.”).
Here, plaintiff alleges that DraftKings’ VIP host Di Chiaro “recruit[ed]” and
“induced” plaintiff to engage in legal sports betting with defendant “by offering bonuses
and other VIP perks.” Am. Compl. ¶ 17. Plaintiff characterizes his relationship with
Di Chiaro as one of trust and “akin to a friendship.” Am. Compl. ¶ 18; see also Am. Compl.
¶ 26 (alleging that plaintiff “fully trusted” Di Chiaro). Plaintiff further alleges that after he
reported his conversation with Spanky, Di Chiaro “reassured” plaintiff that his
information was “completely safe and secure” and DraftKings would “put a stop” to any
efforts to gain access to plaintiff’s personal information. Am. Compl. ¶ 29. Viewed in the
light most favorable to plaintiff, these allegations suggest that defendant built a
relationship of trust and promised that plaintiff’s personal information would be secure.
See Marini v. Adamo, 995 F. Supp. 2d 155, 202 (E.D.N.Y. 2014), aff’d, 644 F. App’x 33
(2d Cir. 2016) (summary order) (finding fiduciary duty based on relationship of
“confidence and reliance”). At the pleading stage, this is sufficient to support plaintiff’s
contention that defendant owed him a fiduciary duty.
Furthermore, defendant’s alleged failure to act to protect plaintiff’s private
information, see Am. Compl. ¶ 30, could plausibly constitute substantial assistance in
light of the alleged fiduciary relationship between plaintiff and DraftKings. See Lerner,
459 F.3d at 295. While plaintiff has not alleged exactly how Spanky or the masked man
obtained his personal information, plaintiff has alleged that he put defendant on notice
of potential criminal activity to gain access to plaintiff’s information, which then allegedly
came to fruition. See Am. Compl. ¶¶ 26–35. The Court finds the inference that DraftKings
knew of this potential and failed to act to safeguard that information reasonable based on
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these allegations. Accordingly, plaintiff has sufficiently pled claims against DraftKings for
aiding and abetting assault and battery.
B. Intentional Infliction of Emotional Distress
Plaintiffs asserting intentional infliction of emotional distress (“IIED”) claims
must clear an “extremely high” bar by plausibly alleging: “(1) extreme and outrageous
conduct, (2) intent to cause severe emotional distress, (3) a causal connection between
the conduct and the injury, and (4) severe emotional distress.” Sesto v. Slaine,
171 F. Supp. 3d 194, 201 (S.D.N.Y. 2016). Conduct satisfies the first element only if it is
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.”
Id. Claims for IIED are “highly disfavored and almost never successful.” Doe 1 v. Deutsche
Bank Aktiengesellschaft, 671 F. Supp. 3d 387, 415 (S.D.N.Y. 2023). This is so in part
because such claims are often duplicative of claims for negligence and dismissed on that
ground alone. 7 Id.
Defendant contends that plaintiff has failed to plead extreme and outrageous
conduct. Mot. 18. Plaintiff responds by pointing to his allegations that DraftKings assisted
in the “attack and Death Threat on one of its customers, the gaslighting of that customer,
assisting a hack into his account, and engaging in a systematic year-long coverup.”
Opp’n 21. These allegations relate to the incidents in March and October 2023, neither of

Plaintiff contends that “[a]lthough the assault, battery and Death Threat is
certainly part of Plaintiff’s IIED claim, as is [the] hack into his account, the claim also
extends to DraftKings’ systematic and ongoing campaign of lies and betrayal over the
course of nearly a year.” Opp’n 24 (emphasis in original). However, the Court discerns no
difference between these allegations—plaintiff’s IIED claim is based on the same
allegations relating to the March and October 2023 incidents that underlie his other
claims. Accordingly, the IIED claim is duplicative of the others, which itself provides
“sufficient grounds for dismissal.” Doe 1, 671 F. Supp. 3d at 415.
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which is sufficiently pled to meet the high bar for extreme and outrageous conduct. Cf.
Truman v. Brown, 434 F. Supp. 3d 100, 119 (S.D.N.Y. 2020) (noting that even “false
accusations of criminal conduct, or conduct that society deems reprehensible, do not
inherently establish IIED”); Blanco v. Success Acad. Charter Sch., Inc., 722 F. Supp. 3d
187, 220 (S.D.N.Y. 2024) (explaining that even conduct that is “humiliating, insulting and
intended to intimidate” is not sufficient for an IIED claim).
First, plaintiff alleges that DraftKings provided substantial affirmative assistance
in the release of his private information in March 2023. However, as discussed above,
these allegations are not sufficiently pled. For example, plaintiff alleges that Jones “made
it abundantly clear in emails and text messages that he and Spanky had received Plaintiff’s
personal and financial information from DraftKings.” Am. Compl. ¶ 31. Yet, plaintiff’s
allegations in this regard are thin. He does not allege, for instance, how Jones made this
“abundantly clear” despite plaintiff receiving the communications from Jones and
presumably having the factual basis for his conclusion. This information is crucial as
affirmatively providing plaintiff’s secure information is fundamentally different than
inadvertently leaking plaintiff’s information. Thus, even viewing this allegation in the
light most favorable to plaintiff, the complaint fails to provide more than a conclusory
statement as to whether defendant intentionally released plaintiff’s private information
to Spanky or Jones and does not support an allegation of extreme or outrageous conduct
on behalf of DraftKings.
Second, plaintiff alleges that in October 2023 defendant “intentionally assisted a
hacker in taking control of Plaintiff’s DraftKings account,” Am. Compl. ¶ 49, and “engaged
in a systematic cover-up” of the March information leak and the October hack.
Am. Compl. ¶ 68. Similar to the allegations concerning disclosure of his personal
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information, plaintiff does not allege any facts to support these conclusory allegations.
For example, plaintiff alleges that he complained about his account security once his
DraftKings email address was changed and was told by DraftKings that his account was
safe, but that DraftKings somehow gave Spanky his information nevertheless. However,
plaintiff does not explain how he believes DraftKings leaked his information or the intent
behind the leak. See Am. Compl. ¶¶ 26–31. Nor does plaintiff allege that the change to his
registered email address was made with any intent to cause him harm. See Am. Compl.
¶¶ 43–49. These allegations are simply conclusory and, regardless, fail to allege action
that would clear the “extremely high” bar to establish conduct that reaches “beyond all
possible bounds of decency.” Sesto, 171 F. Supp. 3d at 201 (S.D.N.Y. 2016).
Accordingly, plaintiff has failed to sufficiently plead an IIED claim.
II.

Negligence

Plaintiff also brings claims for negligence directly against DraftKings. Specifically,
plaintiff alleges claims of negligent supervision and retention of its employees and
negligent infliction of emotional distress. A claim for negligence requires: “(i) a duty owed
to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially
caused by that breach.” Pasternack v. Lab’y Corp. of Am. Holdings, 807 F.3d 14, 19 (2d
Cir. 2015). Employers generally owe a “duty of care in supervising an employee” that
“extends to any person injured by the employee’s misconduct.” Sokola v. Weinstein, 187
N.Y.S.3d 493, 500 (Sup. Ct.), appeal withdrawn, 194 N.Y.S.3d 474 (1st Dep’t 2023).
Thus, an employer may be held liable for negligence if its duty of supervision is breached
and causes harm to a third party. See id. Such a claim for negligent hiring, supervision or
retention requires a plaintiff to plead: “(1) that the tortfeasor and the defendant were in
an employee-employer relationship; (2) that the employer knew or should have known of
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the employee’s propensity for the conduct which caused the injury prior to the injury’s
occurrence; and, (3) that the tort was committed on the employer’s premises or with the
employer’s chattels.” Naughright v. Robbins, No. 10-cv-08451, 2014 WL 5315007, at *8
(S.D.N.Y. Oct. 17, 2014); see also Charlier v. 21 Astor Place Condo., No. 22-cv-05903,
2024 WL 4026253, at *7 (S.D.N.Y. Sept. 3, 2024).
As to plaintiff’s claim of negligent supervision or retention, defendant contends
plaintiff does not plead that DraftKings knew or should have known that its employees
were allegedly allowing third parties to access plaintiff’s personal information. Mot. 20–
22. Plaintiff alleges that he informed defendant that the “upper echelon” of employees
were in contact with a “dangerous individual” and that providing plaintiff’s private
information to Spanky risked extortion and physical violence to plaintiff. Am. Compl.
¶ 26. Plaintiff further alleges that defendant’s employees allowed an unknown individual
to change his account settings despite plaintiff’s immediate efforts to inform defendant of
the invalid change and protect his account. Am. Compl. ¶¶ 42–58. At this stage, these
allegations sufficiently allege the “notice or prior knowledge element” of a claim for
negligent supervision or retention. See Sokola, 187 N.Y.S.3d at 502. Furthermore, these
allegations support a reasonable inference that any breach made use of DraftKings
“chattel” through use of its technology systems. See Naughright, 2014 WL 5315007, at *8.
Defendant also argues that plaintiff’s failure to plead the identity of the
employee(s) makes the negligent retention claim “impossible.” Mot. 21. However,
plaintiff alleges that employees at DraftKings’ “upper echelon” were involved with the
information leak and that plaintiff emailed DraftKings and texted with Di Chiaro and
another VIP host. Am. Compl. ¶ 43. Plaintiff therefore adequately alleges that the
individuals responsible for the alleged breach of defendant’s duty of care were employees
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at DraftKings. See Thornton v. City of New York, No. 950356/2020, 2023 WL 4748983,
at *1 (N.Y. Sup. Ct. July 19, 2023) (finding failure to identify employee by name was an
inadequate ground to dismiss claim for negligent supervision and retention). Plaintiff’s
allegations that he put defendant on actual notice of the imminence and danger of a
potential release or hack of his personal information by a DraftKings employee is
sufficient at the pleading stage to allege that defendant owed him a duty of care, breached
that duty, and caused plaintiff harm by its negligent supervision and retention of
employees.
However, plaintiff’s claim for negligent infliction of emotional distress must be
dismissed. These claims “shall not be permitted to proceed separately” if they “mirror[]”
or are otherwise “duplicative” of another cause of action sounding in tort. C.T. v. Valley
Stream Union Free Sch. Dist., 201 F. Supp. 3d 307, 327 (E.D.N.Y. 2016). Although
plaintiff makes no argument as to this claim, see generally Opp’n, the Court construes the
complaint as alleging that DraftKings negligently allowed the release of his personal
information causing him injury. That is precisely the same ground for plaintiff’s negligent
supervision and retention claim. Accordingly, the claim for negligent infliction of
emotional distress is dismissed.

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CONCLUSION
For the reasons stated above, defendant’s motion to dismiss is GRANTED in
part, DENIED in part. Plaintiff’s claims for negligent and intentional infliction of
emotional distress are DISMISSED without prejudice.

SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated:

March 7, 2025
Brooklyn, New York

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