Anonymous v. Simon

Filing 27

OPINION. Given the reasoning in this Opinion, Defendant's motion to restore for consideration is granted, Defendant's motion to compel Plaintiff to file an amended complaint containing her name is granted, and Defendant's motion to dismiss is granted. The FAC is dismissed with leave to replead within twenty days. It is so ordered. re: 21 MOTION to Dismiss First Amended Complaint filed by Arnold H. Simon. (Signed by Judge Robert W. Sweet on 2/25/2014) (rjm)

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UNITED STATES DISTRICT COURT SOUTHERN DI OF NEW YORK ANONYMOUS, Plaintiff, 13 . 2927 - aga OPINION ARNOLD H. SIMON, Defendant. --------------------------- ------------x A P PEA RAN C E S: ROBERT JOSEPH TOLCHIN 225 Broadway New York, NY 10007 By: Robert J. Tolch ,Esq. At for the Defendant LEVINE & BLIT, PLLC ire State Buil 350 Fifth Avenue New York, NY 10118 Matthew Blitt, Esq. 1 Sweet, D.J. Defendant Arnold Simon ("Defendant" or "Simon") moved via letter to restore for consideration De to compel Plaintiff Anonymous ("Plaintiff" or has 's motion "Anonymous") to file an amended complaint containing her name as required by the Fed. R. First Civ. P. Amended 12 (b) (6). 10. Defendant Complaint ("FAC") reasons set For t has also moved pursuant forth below, to compel and De dismiss R. to consideration is grant to restore to the Civ. P. ndant' s motions Defendant's mot smiss are granted. Prior Proceedings This action was initiated by the Plaintiff in Supreme Court, County of New York, the State of New York, March 2013 alleging that Defendant ged in unprotect t sexual intercourse with Plaintiff despite knowing that he was with He HSV-II De s Simplex II as a result ("HSV-II"), and that Plaintiff contracted of her sexual encounter with Defendant. deral court on May 1, removed the action to the basis of diversity. 2 2013 on On May 6, 2013, Defendant moved to compel Plaintiff to fi an amended complaint containing her actual name pursuant to Fed. R. Civ. 10. P. filed a motion to Two days on May 8, later, smiss pursuant to R. 2013, Civ. De 12 (b) (6). P. On September 18, 2013, Defendant's motion to dismiss was and Defendant's opinion (the motion "September Opinion granted to compel 2013 aintiff leave to submitted De denied Opinion"). iff filed the 2013, the was The as moot an September lead, and on Sept 2013 r 23, rst Amended Complaint ("FAC"). a letter on September 24, 2013, moving the court to reconsider its motion to compel Plaintiff to file an amended this mot complaint. The rties submitted brie and oral arguments were held on October on 2013. on the same day. The motion was marked fully s ss the FAC pursuant to Fed. R. Defendant moved to Civ. P. 12(b) (6) on November 14, 2103. This notion was marked 9, ng lly submitted on January 22, 2014. Di.scussi.on a. The FAC Vio.lates Ru.le 10 3 rd and R. the P. 10 (a) requires aint must name all the parties. rties to seal. 185 Civ. (2d Cir. appear under pseudonyms Sealed Plaintiff v. 2008). or II that "[t] he Courts have permitted with their names Sealed Defendant! interest fil 537 F. When determining whether a plaintiff allowed to maintain an action under a pseudonym, rest title in anonymity must be balanced against ntiff's both public in disclosure and any prejudice to at 189. Sealed Plaintiff identified ten ermining whether a plaintiff can proceed Id. ors to cons ly: (1) whether the litigation involves matters that are highly sensi ti ve and [of a] sonal nature i (2) whether identification poses a risk of retaliatory physical or mental harm to t rty [seeking to proceed anonymously] or even more c tically, to innocent non-parties; (3) r identification presents other harms and the seve ty of those harms, including whether the inj ury litigated against would be incurred as a result of t sclosure of the plaintiff's ident y; (4) r t plaintiff lS particularly vulnerable to t possible harms of disclosure. . particularly in light of his age; (5) whether the suit is llenging the actions of the government or that of i vate rties; (6) whether the defendant is prejudi by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if ) differs at any particular stage of the lit , and whether any prejudice can be mitigated by st ct court; (7) whether the plaintiff's ity has thus far been kept confidential; r the public's interest in the litigation is by requiring the plaintiff to disclose his (9) whether, because of the purely 1 1 nature of the issues presented or otherwise! there is an atypically weak public interest 4 when in knowing the litigants' identities; and (10) whether there are any al ternati ve mechanisms for protecting the confidentiality of the plaintiff. Id. at 189-90 (internal quotations and citations omitted). As its FAC an initial matter, which reconsideration continues of given that name to Defendant's Plaintiff has Plaintiff motion to filed "Anonymous," compel Plaintiff to file an amended complaint containing her name is appropriate at this time. It Plaintiff is allowed is anonymously. apparent that to Defendant continue will to be prejudiced press her if claims Plaintiff has sought to proceed anonymously because her allegation that she contracted HSV-II could be perceived as embarrassing disclosed, at 189. or place her under a stigma is "highly sensitive and [of a] But Defendant, Plaintiff and the information about instead making of alleges FAC that publicly Defendant both that she which, Plaintiff of publicly personal nature." Id. contracted HSV-II discloses is if a and "highly sensi ti ve" "personal Defendant from nature," anonymous. Plaintiff has also given an interview to the New York Post about her claims, in which identity anonymous. she names Defendant Plaintiff's allegations 5 but keeps her own and public comments embarrass Defendant and place him under the same stigma concerns Plaintiff. The sca s in invo Plaintiff's are Plainti physical Plaintiff favor. identification retaliatory Pia Sealed smatters nature, other other On or one highly does ors i ve lit and of a to the P identification iff, Plaintiff is would not parties, the actions of light of the Plaintiff. intiff, of and r. On the other rms to vulnerable to the or t of ced by allowing private Pia iff ims anonymously in the same manner that concerns Balancing all caused by personal r age, the suit is not government and Defendant is prej to press her c pose particularly possible harms particularly challenging not ion sk 's identity has been kept confidential thus hand, tip conceivable a harm ment not hand, sens pose do ing of t factors, Defendant's intiff anonymous outweighs PI prej udice iff's own erest in anonymity. Although which is "highly prejudice to P inti ff' s sensitive U Defendant he is exposed to allegations and of to maintain a contains "personal information nature U , the Plaintiff's anonymity while embarrassment and stigma Plaintiff wi s to protect herself of unfairly prejudices Defendant In a manner 6 that outweighs Plaintiff's own interest such, in anonymity. Defendant's motion to compel is granted. b. De£endant's Motion to Dismiss Is Granted On a motion to dismiss pursuant to Rule 12 (b) (6), factual allegations in the complaint are accepted as true, all inferences are drawn in favor of the pleader. Mills v. 12 F.3d 1170, is not whether a 378 (2d Cir. r to offer 12 (b) (6), "a Pond 1995) Inc. (quoting survive v. Town Scheuer a motion complaint must accepted as true, 1937, 1949, 173 L. Ed. Twombly, 550 U.S. (2007)). Plaintiffs claims Twombly, 550 544, '" issue must across U.S. the at 56 Rhodes, F.3d 375, 416 U.S. 232, to Rule (1974)). to I dismiss pursuant sufficient 556 U.S. (2009) 127 S. allege line 570. Darien ctual matter, claim to relief that is plausible 2d 868 570, of v. contain to state a 'on its face.'ff Ashcroft v. their 1993). Polar dence to support the claims 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 To (2d Cir. and plaintiff will ultimately prevail but whether the claimant is entitl . . 'ff ViII 1174 all Ct. from 7 , 678, 129 S. Ct. (quoting suffi Though 6 1955, ent 167 L. facts conceivable t Court to to must Ed. 2d 929 "nudge [ plausible." ac the factual allegations of a complaint as true, accept as true allegation. 'fl u.s. a legal Iqbal, conclusion 129 S. Ct. at it is "'not bound to couched 1950 as a factual (quoting Twombl 550 at 555). Plaintiff alleges sexual intercourse with her that she was suf (FAC 'll'll sexual 11, 16-18.) partners that fourteen Defendant, days Plaintiff's er her first physician told ring from an initial outbreak of HSV-II. Plaintiff other than further Defendant alleges from intercourse with Defendant to when she suf of HSV-II. a that when she had no she first had red from an outbreak Plaintiff has also submitted a laboratory blood test taken on February 25, 2013, in which she tests positive for HSV­ II by DNA-probe and negat indicates that by serologic HSV-II (antibody) test, which ction was a first-time infection, see Pl. Opp. Br., Ex. A). Defendant has submitted a laboratory blood test taken on May 5, 2013 indicating that Defendant has tested ne HSV-II. (Def. laration Br. from Ex. Dr. B.) Defendant Jeffrey Greene, specialist at NYU Medical Center, impossible Defendant. for Plaintiff to "In adj udicating a 8 an also it contracted 12 (b) (6) r submitted infection stating that have Rule has ive a disease is medically HSV-II motion, a from district its consideration to facts stated on the face court must of the in compla documents incorporated the which notice judicial Discount Bank (quotation documents of complaint by re may New marks be York, F.3d If the of the ngs, pIe to be material P. given a rea or and to matters of the Leonard 99, F. 107 court then Ie opportunity convert Leonard, is 12 (b) 199 F.3d at 107. The 1999) to consider motion must be rties would to present inent to the summary judgment motion. 12(d)i Israel Cir. (2d were the v. judgment and all treated as a motion for summa have aint to renee, taken." 199 omitted). outside appended Fed. court R. declines all Civ. to motion to one of summary judgment at this (6) time. Based solely on is plaus that aintiff's aIle Plaintiff Plaintiff alleges that "s commencement to "her prior negat " she had HSV-II was not infect r of tests contracted ions in the FAC, it relationship sexually never from with with transmitted experienced Defendant. [HSV-II] prior Defendant," diseases symptoms came of genital s," and her only sexual partner for at least the last prior to her test for HSV- I I was Defendant. 20 22, 25.) Moreover, treating physician intiff alleges t s was experiencing 9 t (FAC en:en: 12, initial r 15-18, she was told by an up r outbreak caused by her most recent sexual partner, she tested for pos serologic (antibody) HSV- I I test, by which P Defendant intiff, "was "knowingly sease." all however, knowingly ~~ (FAC 23-24 or concerning ) .) all by HSV-II t that herpes" venereal his iff makes these P and ions fection should have known of an that genital icted (emphasis support I negative iled to properly alle ions as mere concl usory statements, further and that see Pl. Opp. Br., Ex. A).l information withheld but indicates has a 18), l)[ DNA-probe ion was a first-time infection, in (id. s provided no Defendant knowingly had or clined to tell Plaintiff of this infection. Thus, while Plaintiff's allegations certainly render it conceivable that she contracted HSV-II from Defendant, FAC lacks the factual to [PI "nudge [] concei vable r v. iff's to plausible. Banana claims] lic Twombl 550 07 Civ. No. c im at for *2 (S.D.N.Y. containing concerning Services Co., Feb. "only 1 Plaintiff's DNA Probe reference in the FAC. Supp. and 2008) knowl 326, 332 c 10 (ant is necessary the U.S. at line 570; and from see 8526(WHP), (dismissing speculative Defendants' 944 F. 25, t across LLC, If ~~~~-------~~--~~--~~---- 490613, support also 2008 WL negligence implausible facts ") ; (S.D.N.Y. test 1996) is ligence incorporated via iff did not sufficiently allege that claim dismissed where pla was HIV posit defendant knew empl HIV status from his sex [the] ual support sufficient to meet the Twombly/Iqbal standard of plaus state a Svcs.-Ne. aim Inc. --------~------ (S.D.N.Y. Mar. No. aga st No. 24, 10 (N.D.N.Y. July 12, analogous Defendant. 09 Civ. 2011); Civ. situation his rtners) . the FAC \\ lacks S and was conceal Drarakis 1884 (LTS), see also 0129 ("AS in plaus e ABM WL S Group, in v. at *3 noted must r 0 Inc. 2873532, Court aintiff cIa Janitorial 2011 WL 1219843, at *7 2012 Twombly, ausibly suggesting a the v. Fahs Const. (GTS/DEP), 2012) ility," it fails to allege in the facts to proceed to discovery and cannot rest its Amended Complaint on the mere hope that t discovery process will provide necessary facts to support its claim."). Defendant has also raised the doctr of risk" as grounds r dismissal. of "assumption The doctrine of "assumption of risk" was abolished by the New York State Legislature as an absolute bar to recovery. See N.Y. C.P.L.R. § 1411. The New York Court of Appeals has allowed the narrow use of "sports and recreational activities." School Dis. 14 N.Y.3d 392, 927 N.E.2d 547 11 a v Lake de for ent. (NY 2010). Defendant should be extended assumption of risk doctr contends that t to consensual sex as a "recreational acti vi ty. /I (Def. Br. at 6­ 9. ) appl Court of Appeals has urged discretion a general rule, application the assumption of risk doctrine: ted to cases appropriate of assumption of the risk should be 1 for absolution of duty, from activities, or place signated at N.Y.3d 83, aware of, 89, 980 to and venues. N.E.2d and neither where recreational Custodi /I 933 (N.Y. pursu Town that take Amherst, the was sexual activity. ties are generally not engaged at signat doctrine Moreover, sexual as organized events or Court G risk doctrine risk" court 20 any "assumption of The s intiff nor Defendant has provided, construction of the doctrine, 2012). of recreat not act assumption of v. and is consensual venues. athletic sponsored athletic case post-Custodi applied such as personal inj ury claims arising events, sporting ng of Appeal's narrow the court declines to extend the as a de nse to consensual sexual activity.2 The court recognizes that Doe v. Roe 598 N.Y.S.2d 678 (N.Y. Justice Ct. 1993), applied the assumption of rine to unprotected sex. rd. at 681 ("A person assumes the risk where he voluntarily subjects himself to a peril known to him or genera observable by a person of ordinary in his situation. In the same persons who engage in unprotected sex, at a time of the ence of sexua:ly transmitted diseases, including some that are fatal, assume the risk of contracting such diseases. Both parties in an intimate relationship have a duty to y protect themse:ves. When one 2 12 All PIa of iff's Defendant that he was in As concluded this above, allegation. claims ct allege with HSV-II. aintiff Given has failed Defendant's knowl (See to <J[<J[ by 27 63.) adequately motion to state ss is granted. Conclusion reasoning Given restore compel for consi Plaintiff to file is an granted, amended ss 's De Defendant's complaint Defendant's motion to name is grant The FAC is ration above, with leave to replead w motion to motion to containing her ss is granted. n twenty days. It is so ordered. New York, NY February 1-.;)", 2014 ventures out in the rain without an uffibrella, should they complain when get wet?") (citation offiitted). But this case is pre-Custodi, and the Court of 's ffiore narrow interpretation of the doctrine is binding. 13

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