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)
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
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