Doe v. Bin Fahd Alsaud et al
Filing
37
OPINION. For the reasons set forth in this Opinion, Defendant Saudi Oger's motion to dismiss is granted. The FAC's First, Second and Third causes of action against Saudi Oger are dismissed without prejudice with leave to replead within twenty days. It is so ordered. Re: 23 MOTION to Dismiss THE FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(b)(6) filed by Saudi Oger Ltd. (Signed by Judge Robert W. Sweet on 4/3/2014) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRI
OF NEW YORK
-------------- ----------------- --x
JANE DOE,
Plaintiff,
-against-
OPINION
HRH PRINCE ABDULAZIZ BIN FAHD ALSAUD,
SAUDI OGER LTD,
MUSTAPHA OUANES,
Defendants.
--------- ------------- ----X
A P PEA RAN C E S:
At
13 Civ. 571
for Pia inti
MORELLI ALTERS RATNER,
950 Thi
Avenue, 11th
oor
New York, NY 10022
By: Martha M. McBrayer, Esq.
Jeremy J. Troxel, E
Attorneys for Defendant
Saudi
QUINN EMANUEL URQUHART & SULLIVAN LLP
51 Madison Avenue, 22 nd
New York, NY 10010
Michael B. Carlinsky,
Rex Lee, Esq.
William A. Burck, Esq.
Nicholas A.S. Hoy, Esq.
Sweet, D.J.
Defendant Saudi Oger Ltd.
pursuant to
rei
"Plaintiff")
for
"FAC" )
led by plaintiff Jane
ilure to state a cia
f can be granted. Based upon t
below,
udi OgerU) has moved
ral Rule of Civil Procedure 12 (b) (6) to dismiss
the First Amended Complaint
Doe
("
motion is granted,
upon whi
conclusions set
h
the FAC is dismissed.
Prior Proceedings
Pia
original complaint on January 25,
iff filed
2013. On February 14, 2013, PI
service claiming to have se
iff filed an affi
t of
"Saudi Oger Ltd d/b/a Hari
Interests" on February 5, 2013. Non-party Hariri Interests moved
to dismiss the compla
on April 1, 2013, pursuant to Federal
Rules of Civil Procedure 12 (b) (2), 12 (b) (5) and 12 (b) (6). In her
Hariri Interests' argument
opposition, Plaintiff conceded t
that it was not a d/b/a of Saudi Oger was "persuas
" and
cross-moved to amend her complaint to remove Hariri Interests as
a defendant. Plaintiff also admitted that
"lacks any
evidence suggesting that Saudi Oger knew or should have known of
1
fendant Mustapha Ouanes'
Defendant")] propens
("Ouanes" or the "Individual
ies before he was hired," and therefore
proposed to withdraw her negligent hir
intiff
compla
claim. On May 2,
Hariri Interests stipulated to
against
ri Interests with
iff fi
smiss the
udice.
the FAC on May 7, 2013, removing
Hariri Interests from the lawsuit and withdrawing the negligent
hiring claim
inst Saudi Oger and t
Prince.
Allegations of the FAC
The FAC contends the
llowing all
ions.
On January 26, 2010, defendant Ouanes invited
Plaintiff and her
in
~
at
le friend to accompany him from a lounge
West Village to his hotel room at the Plaza Hotel.
(FAC
24.) At about 5:30 a.m., Plaintiff was drugged by Ouanes (id.
~
29), and awoke some time later to "realize [Ouanes] was
raping her" (id. at
~
30). In February 2012, after a two-week
trial in New York (Manhattan) Cr
1 Court, Ouanes was
convicted of rape and sexual abuse, and was sentenced to ten
in prison.
(Id.
at
~~
54-55.)
2
defendants Saudi Oger
Ouanes was a former empl
HRH Prince Abdulaziz
"Pr
saud (the
n
") at the time of Plaintiff's injury and was living in
New York temporarily at the Plaza Hotel as an employee of Saudi
's "VIP unit," which served as
entourage.
(Id.
Prince's traveling
r "was and remains a
at '3l'3l 4, 6.) S
ia and one of the leading
global corporation based in S
construction, facilities management, real estate development,
structure project deve
Ouanes was a "trained
ical engineer" whose specific
duties as an employee
ensuring that the "climate" of
the floor inhabited by t
properly regulated.
providers in the world,"
(Id.
Prince at the Plaza Hotel was
at '3l'3l 4-5.) In addition, Ouanes' duties
included "luring unsuspect
women" to "gratify the sexual
pleasure" of the Prince
s entourage.
least three employees of S
(Id.
at '3l 5.) At
Oger's VIP Unit were with Ouanes
when she was raped in Ouanes' room (Id. '3l'3l 2-3, 25-29), and DNA
evidence suggests
Ouanes was not the only Saudi
employee who sexually assaulted the Plaintiff on or
January 26, 2010.
• '3l'3l 16, 50.)
3
r
The FAC asserts causes of action for negligent
supe
sion
~~
at
58-69), negligent retention (id. at
70-84), and respondeat superior (id. at
~~
~~
85 89) against Saudi
Oger. In support of these claims, the FAC alleges that Saudi
Oger "knew or should have known of [Ouanes'J predisposition to
sing women, his vi
ent propensities, and of his status as a
~
sexual predator." (Id. at
13.)
The Applicable Standard
On
12 (b) (6),
as true,
lls
1993).
a
motion
to
pursuant
ar Mol
v.
"The
issue
ar
is
not
the
If
cia
c
12
Corp.,
whether
imant
Coun ty
F . 3d
a
R.
Ci v.
P.
of
Suffolk,
Villager Pond,
Town of Darien,
cert.
denied,
v.
519 U.S.
808,
(1996)).
4
---_._._--_.. __•........•.-._--_.
__ --_._-----
.
11 7 4
will
(2 d
Ci r .
ult
ly
is entitled to offer evidence
261 F.3d 179, 187
Inc.
11 7 0 ,
aintiff
Real Estate Solutions,
14
Fed.
and all inferences are drawn in favor of the pleader.
support
1995),
to
all factual allegations in the complaint are accepted
prevail but whether the
to
dismiss
v.
N.Y.
(2d Cir.
2001)
56 F.3d 375,
117 S.
Ct.
50,
First
378
136 L.
Am.
ing
(2d Cir.
Ed.
2d
To
12 (b) (6),
survive
a
motion
"a complaint must
accepted as true,
to
(2007)).
This
plaintiffs
"nudger]
plaus
need
their
544,
is
not
only
claims
le." Twombly,
pursuant
contain sufficient
570,
556 U.S.
Iqbal,
1937, 1940, 173 L. Ed. 2d 868
550 U.S.
smiss
to
factual
Rule
matter,
'state a claim to relief that is plausible
on its face.'" Ashcroft v.
Twombly,
to
(2009)
127 S.
intended
across
663,
129 S.
ct.
(quoting Bell Atl. Corp. v.
ct.
to
allege
662,
cts
the
1955,
be
an
167 L.
onerous
s
ficient
line
from
Ed.
2d 929
burden,
as
order
to
conceivable
to
in
550 U.S. at 570.
Respondeat Superior Is Not Adequate1y A11eged
To state claim for respondeat superior, a plaintiff
must plead facts showing, among other things, t
the tortious
conduct causing the injury was undertaken within the scope of
the employee's duties to the employer and was thus in
furtherance of t
York
ty
employer's interests. See, e.g., K.I. v. New
Bd. of Educ., 256 A.D.2d 189, 191 (1st Dep't 1998)
(noting no respondeat superior where tortuous conduct was
outside of scope of volunteer's duties). "An employer will not
be held liable under [the doctrine of respondeat superior] for
actions which were not taken in furtherance of the employer's
5
personal motives." Galvani v. Nassau Cty.
Review
"
omitted)
242 A.D.2d 64, 68
Police Indemnification
(2d Dep't 1998)
(citation
Ouanes' own deplorable motivations were not part of
any conce
duty he had to Saudi Oger. For this reason, the
v. Prodigy Servs. Co., 944
dismissed. See
claim must
F. Supp. 326, 329 (S.D.N.Y. 1996)
court ta
for wholly
aken by the empl
and which were
(Sotomayor, J.)
("[WJhere a
s as true all the facts alleged by plaintiff and
the conduct complained of cannot be considered as
concludes t
a matter of law within the s
must dismiss
of employment, then the court
complaint for fai
(citations
to state a claim.")
tted) .
"New York courts consistently have held that sexual
misconduct and related tortious
r arise from personal
motives and do not further an empl
committed
's business, even
hin the employment context." Ross v. Mitsui
Fudosan, 2 F.
. 2d 522, 531 (S.D.N.Y. 1998)
omitted). No decision in New York has
which the doct
en cited to date in
ne of respondeat superior was held to apply to
sexual assault. See
2d 505, 516-17
(citations
rno v. Corr. Servs.
(S.D.N.Y. 2004)
found no vicarious Ii
., 312 F. Supp.
("New York courts have repeatedly
ility for claims invol
6
ng sexual
misconduct, including sexual assault.")
(citations omitted);
Haybeck, 944 F. Supp. at 330 (employee's failure to disclose
HIV-positive status to plaintiff was not attributable to
employer); Judith M. v. Sisters
96 (N.Y. 1999)
Cha
ty
Hosp., 715 N.E.2d 95,
(holding that a hospital orderly who was tasked
with bathing the p
intiff was acting outside the scope of his
duties when he sexually abused her while doing so); Kirkman v.
Astoria Gen. Hosp., 204 A.D.2d 401, 402 (2d Dep't 2004)
(dismissing complaint alleging employer liability for rape of
child patient by hospital security guard)
206 A.D.2d 839, 839 (4th Dep't 1994)
i
Joshua S. v. Casey,
(upholding dismissal of
respondeat superior claim for sexual abuse of a child by a
priest); Koren v. Weihs r 190 A.D.2d 560, 560-61 (1st Dep't 1993)
(dismissing claim alleging employer liability for hospital
psychotherapist who engaged in "sex therapy" with a patient) .
In addition, the FAC does not contain allegations that
establish that the assault furthered Saudi Oger's business
interests, even if those interests somehow included luring women
to the Plaza Hotel for the benefit of the Prince and his
entourage. If Plaintiff had suffi
ently pleaded that Saudi Oger
had direct knowledge of prior sexual misconduct on the part of
Ouanes, which she has not, that still would not give rise to
7
ility in the absence of an allegation
respondeat superior 1
that the misconduct was part of any actual responsibility Ouanes
had to Saudi Oger.
rd & Son,
Sclafani v. PC Ri
S u pp . 2 d 423, 4 4 7 4 8 ( E . D. N . Y. 2009 )
(" I f P
credited, a rational jury could find t
668 F.
iff's facts are
Piscopo's assault was
le, but a rational jury could not find t
reasonably fore
the assault was within the scope of Piscopo's employment at PCR.
t occurred in the PCR parking lot before
Although the as
work, the assault
omi tted) ;
0,
no way further PCR's business.")
312 F. Supp. 2d at 517-18
of these principles is not alt
(ci tat
("The appli
1
merely because CSC alle
had notice of Correa's propensity to commit sexual acts . .
'What is reasonably foreseeable
t
context of respondeat
superior is quite a different thing from the foreseeable
unreas
sk of harm that
Ils negligence. When we talk
of vicarious liability we are not looking for the empl
fault but rather for risks
's
may fairly be regarded as
typical of or broadly incidental to the enterprise [
ting Cronin v. Hertz Corp.,
employer] has undertaken.''')
818
F.2d 1064, 1068 (2d Cir. 1987)).
Plaintiff has
prohibit respondeat supe
that "New York law does not
claims in cases invo
8
sexual
sconduct" (Opp. at 9-10), but no authority to support
argument or decision ho
an employer liability for sexual
assault under respondeat s
rior has been cited. The
also contends that the pre
aintiff
s cited by Saudi Oger do not
apply to her claim because this case involves an "unusual"
situation in which the empl
iness purpose-to help S
e's sexual misconduct had a
Oger's client, the Prince,
women. However, the Plaintiff must plead more than conclusory
and present s
all
that Ouanes'
sex cr
ent
job and
s. See Sgaliordich v.
cts to create a reasonable
Oger's business included
oyd's Asset Mgmt., No. 1:10 cv
03669(ERK), 2011 U.S. Dist. LEXIS 12183, at *12
8, 2011)
(granting motion to dismiss
permit "a reasonable inference that
(E.D.N.Y. Feb.
cause complaint did not
[employees were]
acting consistently with [their] normal job duties with the
purpose of
ring [the employer's] interests.").
However, the support Plaintiff alleges is merely the
accusation itself. In particular, Plaintiff alle
•
s:
"At all relevant times herein, Defendant Mustapha
Ouanes was employed by Saudi Oger's 'VIP' unit, which
exi
the purpose of travelling with and
catering to
needs and desires of [the Prince]."
(FAe ~ 6 (formatting altered from origi
).)
9
•
"This lawsuit arises out of an ongoing wrong
scheme
by [the Prince] and Saudi Oger, Ltd. to harass and
se women.
fendants [the Prince] and Saudi Oger
knew or should have known of Defendant Mustapha
Ouanes' predisposition to abusing women, his violent
propensities, and his sexual harassment of women."
( . at ~ 12 (formatting altered from original).)
•
Defendants [
Prince] and Saudi Oger .
encouraged [Ouanes'] misconduct so that other
employees could similarly abuse, sexually harass
and/or molest unsuspecting women lured by Defendant
Mustapha Ouanes to [
Prince's] rooms at The Plaza
Hotel under
Ise pretenses." (Id. at ~ 14 (formatting
alte
from original).)
While plaintiff cites to numerous other allegations
the
Amended Complaint in support of her arguments, those al
in substance are all identical to the ones set
These assertions
cIa
ions
rth here.
11 short of "nudging [Plaintiff's
across the line from conceivable to plausible." Twombly,
550 U.S. at 570. Noticeably absent from the FAC is any fact that
could provide a basis from which to infer that Saudi Oger's
business, and Ouanes'
job duties, involved methodically luring
and drugging women so that they could be
his entourage. If the PIa
by the Prince and
iff is correct that her conclusory
assertions are sufficient to state a
10
im, then any employer
could be subject
to
carious liability for sexual assault
based on an allegation that the employer's business involved
facilitating rape.
Plaintiff's contention is also unpersuasive
cause
under her theory, Ouanes' crime (rape) has not been shown to be
within the scope of his purported job (to
for others). In Haybeck,
sex chat rooms.
and drug women
944 F. Supp. 326, the employer operated
employee-who was HIV positive-contacted the
plaintiff on one of those s
s and lured her into having sex.
Then-Judge Sotomayor dismissed t
complaint, reasoning that
"even if [the employee's] conduct arose in part out of his
intent to further t
[employer's] business.
sexual relationship with plaintiff
in that his
. arguably encouraged
plaintiff to use [more of the chat rooms],
re is no 'business
purpose' which 'alone' would have compelled [him] either to have
sex with plaintiff or to hide from her
AIDS."
fact that
had
. at 331.
The Plaintiff finally contends that whether Ouanes'
misconduct was within the scope of
s employment is a question
for a jury. However, respondeat superior claims are also
dismissed at the pleading stage. See, e.g., Haybeck,
11
944 F.
Supp. at 331
); Woods v.
(dismissing vicarious liability c
CVS, 2013 U.S. Dist. LEXIS 58764, at *7-8 (S.D.N.Y. Apr. 19,
2013)
inst [employer]
(finding that "sexual assault cla
cannot survive either a motion to di
summary judgment. If)
(internal citat
ss or a mot
t
for
).
The issue is not whether Ouanes' assault of Plaintiff
was within his dut
r,
s to
whether Plaintiff
adequately alleged that those duties included, as she claims,
In arguing that this motion
the facilitation of sexual
iff relies on Rivello v.
raises questions for a j
Waldron,
391 N.E.2d 1278 (N.Y. 1979), Patterson v. Khan, 240
A.D.2d 644
(2d Dep't. 1997), and Buck v. Zwelling, 272 A.D.2d
895 (4th Dep't. 2000). None of these cases, however, involved
the fundamental
suffi
rel
st
ently alle
what the employee's job was. Plaintiff also
s on Goldwater v. Metro-North Commuter R.R., 101 F.3d 296
that decision did not involve a claim for
(2d Cir. 1996),
vi
of whether the plaintiff had
s li
lity.
Plaintiff alleges that Ouanes' duties included
women to the plaza Hotel for the benefit of t
and
s entourage. plaintiff has not alleged any
12
Pr
s to
support this accusation, and it is therefore "naked assertion"
id of "further factual enhancement" that
a cause of action
susta
550 U.S. at 555; see also
r Iqal and Twombly.
asquez-Spillers v.
Broadcasting Corp., 51 A.D.3d 427, 427-28
ecting "conclusory" al
aga
sufficient to
lS
In
Twombly,
ni
(1st Dep't. 2008)
tions of vicarious liability
an employer arising from an intentional assault
committ
by its employee).
Negligent Supervision Or Retention Has Not Been Adequately Alleged
In New York, "a claim
supe
ligent hiring,
sion or retention, in addition to the standard elements
of negli
, requires a plaintiff [to J show:
tort feasor
injury pr
that the
the defendant were in an employee-employer
relationship;
the empl
(1)
(2) that the employer knew or should have known of
,s
y for the conduct which caused the
(3) that the tort
to the injury's occurrence;
was committed on
v. City of New York,
chattels."
121332, at *34
employer's premises or with the employer's
2010 U.S. Dist. LEXIS
(S.D.N.Y. Nov. 15, 2010)
quotations omitt
).
13
(cit
ons and internal
The FAC does not contain a factual all
have known of the
,s
ch caused the injury
r to the
t Saudi Oger "knew or
s
y for the conduct
tion showing
injury's occurrence." Biggs, 2010 U.S. Dist. LEXIS 121332, at
*34
" [dJ
rnal quotation mark omitted). The FAC asserts that
loyment, Defendants .
ng the course of his
should
known of [Mr. Ouanes' J predisposition for abusing
women, his
predator,
. knew or
lent propens
s, and his status as a sexual
it." (See FAC
t did nothing to
Ouanes' alleged
Notwithsta
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