Doe v. Jackson et al

Filing 69

OPINION AND ORDER re: 60 MOTION to Dismiss . filed by Joshua Jackson. For the foregoing reasons, Defendant Jackson's motion to dismiss the Amended Complaint is GRANTED in part and DENIED in part. The Court grants Plaintiff leave to file a Second Amended Complaint and ORDERS Plaintiff to file the Second Amended Complaint in thirty (30) days. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/10/25) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JANE DOE,
Plaintiff,
-against-

23-cv-04910 (ALC)

JOSHUA JACKSON, DEGUENE KEITA,
FATOUMATA KEITA a/k/a NAOMI KEITA,
JEOFFREY JANVIER, and LOWELL
ULMER

OPINION AND ORDER

Defendant.
ANDREW L. CARTER, JR., United States District Judge:
Plaintiff Jane Doe brings this action against Defendants Joshua Jackson, Deguene Keita,
Fatoumata Keita a/k/a Naomi Keita, Jeoffrey Janvier, and Lowell Ulmer based on violations of
the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. §§ 1591, 1595, the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, and various New York
state laws. Plaintiff alleges that Defendant Jackson enticed her to come to his hotel room and
then raped her. After Plaintiff left Defendant Jackson’s room, the Defendants engaged in a
pattern of racketeering activity against Plaintiff, including robbery, assault, battery, and
harassment.
To date, Plaintiff has not served Defendants Deguene Keita, Naomi Keita, Janvier, and
Ulmer. Defendant Jackson waived service and now moves to dismiss Plaintiff’s Amended
Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the
reasons outlined below, Defendant Jackson’s motion to dismiss is GRANTED in part and
DENIED in part.

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BACKGROUND
I.

Factual Background
On February 13, 2022, Plaintiff went with an acquaintance, Debbie Torres, to a Super

Bowl afterparty that several NBA players, including Defendant Jackson, also attended. ECF No.
52 (“Am. Compl.”) ¶ 22. Plaintiff was invited to the party by another NBA player in whom she
had a romantic interest. Id. ¶ 24. During the afterparty, Plaintiff asked Defendant Jackson to call
her phone because she had misplaced it. Id. ¶ 26.
After Plaintiff went home, she received text messages in the early morning of February
14, 2022 from Defendant Jackson telling Plaintiff “COME THROUGH” and “I GOT $1500 FOR
YOU IF YOU PULL UP.” Id. ¶¶ 30–31. Plaintiff was under the impression that there was still a
party and that party attendees were gathered in Defendant Jackson’s hotel room. Id. ¶ 32. After
arriving at Defendant Jackson’s hotel room, Plaintiff realized that there was no one else in the
room and that Defendant Jackson was shirtless and wearing only a pair of basketball shorts. Id.
¶¶ 41–42. Plaintiff told Defendant Jackson that he should not expect sex. Id. ¶ 43. Defendant
Jackson told Plaintiff that he used money to help him have sex with girls, to which Plaintiff
responded that she would never do that. Id. ¶¶ 48–49. Plaintiff then laid on the bed with her
back to Defendant Jackson and fell asleep. Id. ¶¶ 50–51.
Later, Plaintiff woke up to Defendant Jackson ripping her clothes off, climbing on top of
her, and exposing his penis to her, to which she shouted, “NO!” Id. ¶¶ 53–55. Despite her
efforts to push him away, Defendant Jackson overpowered her as he penetrated her vagina with
his penis and raped her. Id. ¶ 57. Plaintiff fainted and woke up sometime around 8:00 a.m. Id.
¶¶ 59–60. When Plaintiff tried to leave the room, Defendant Jackson climbed back on top of
Plaintiff and touched her breasts. Id. ¶ 61. Plaintiff broke free and started screaming at

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Defendant Jackson, who aggressively told Plaintiff to lower her voice or he would call security.
Id. ¶¶ 62–68. As Plaintiff was getting ready to leave, she heard Defendant Jackson speaking on
the phone with someone and saying, “SHE WILL NOT FUCKING LEAVE MY ROOM!” Id. ¶
72.
Plaintiff left the room and, by around 10:03 a.m., she had begun receiving texts from
Defendant Janvier accusing her of stealing a watch from Defendant Jackson’s room. Id. ¶ 76.
Plaintiff alleges that one of the Defendants intimidated or threatened Torres—the acquaintance
with whom Plaintiff attended the Super Bowl party—into providing Plaintiff’s address and
apartment number. Id. ¶ 79. Plaintiff responded to the texts claiming that she did not know
anything about the missing watch. Id. ¶ 83. Defendant Janvier continued texting Plaintiff
repeatedly asking for the watch, threatening to take further action if she did not return it, and
texting Plaintiff “JOSH [JACKSON] IS NOT GONNA LET THIS SHIT GO TRUST ME!” Id.
¶ 87.
By around 11:07 a.m., Plaintiff began allegedly receiving texts from other numbers,
presumably from Defendants Ulmer, Degeune Keita, or Naomi Keita, who continued to threaten
her and texted her address back to her. Id. ¶¶ 90–96. At around 2:00 p.m., Plaintiff woke up to
Defendants Degeune Keita and Naomi Keita (one of whom appeared to hold a gun) breaking into
her apartment through her front door. Id. ¶ 100–01. One of the intruders allegedly yelled out
that Defendant Jackson had sent them and that they were there to collect “collateral.” Id. ¶ 104.
The intruders then grabbed Plaintiff’s cell phone—preventing her from calling for help—and
began rounding up Plaintiff’s expensive handbags to steal them. Id. ¶¶ 105–06. Plaintiff
screamed for help and the intruders pulled her into the hallway and elevator. Id. ¶¶ 108–10. The
intruders then pulled Plaintiff into the lobby and two doormen tackled one of the intruders and

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pinned them to the floor. Id. ¶¶ 111–14. NYPD officers then arrived at the scene and arrested
Defendants Degeune Keita and Naomi Keita. Id. ¶ 114.
II.

Procedural Background
On June 12, 2023, Plaintiff filed her Complaint. ECF No. 1. On October 12, 2023,

Plaintiff requested additional time to serve Defendants and, on October 13, 2023, the Court
granted Plaintiff a 90-day extension. ECF Nos. 35–36. On December 12, 2023, Defendant
Jackson waived service. ECF No. 43. On December 18, 2023, Defendant Jackson filed a letter
requesting a premotion conference and setting forth the bases for his anticipated motion to
dismiss the Complaint. ECF No. 45. On December 28, 2023, Plaintiff responded to the letter.
ECF No. 48. On January 18, 2024, the Court granted Defendant Jackson leave to file his motion
to dismiss. ECF No. 49.
On March 1, 2024, after Defendant Jackson had filed his motion to dismiss, Plaintiff filed
an Amended Complaint and its opposition to the motion to dismiss. ECF Nos. 50, 52–53. On
March 5, 2024, Defendant Jackson filed another letter requesting a premotion conference and
asked the Court whether he should reply to Plaintiff’s opposition or seek a renewed motion to
dismiss. On March 16, 2024, Defendant Jackson filed a letter requesting a premotion conference
and setting forth the bases for his anticipated motion to dismiss the Amended Complaint. ECF
No. 55. On March 21, 2024, the Court granted Defendant leave to file their motion to dismiss
the Amended Complaint. ECF No. 58. On April 11, 2024, Defendant Jackson filed his motion.
ECF No. 60. On May 9, 2024, Plaintiff filed her opposition. ECF No. 65. On May 28, 2024,
Defendant Jackson filed his reply. ECF No. 66.

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STANDARD OF REVIEW
To survive a motion to dismiss, a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The pleading
“need not include detailed factual allegations, but must contain sufficient factual matter . . . to
state a claim to relief that is plausible on its face.” Corona Realty Holding, LLC v. Town of N.
Hempstead, 382 F. App’x 70, 71 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal quotations omitted). When considering a motion to dismiss, the Court accepts
as true all factual allegations in the complaint and draws all reasonable inferences in the
plaintiff’s favor. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.
2010). However, the incantation of the elements of a cause of action, “supported by mere
conclusory statements,” is not enough to show plausibility. Id. at 72. Instead, “[f]actual
allegations must be enough to raise the right of relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007).
DISCUSSION
Plaintiff alleges federal question jurisdiction because she has filed claims under the
TVPA and RICO; she also alleges supplemental jurisdiction over her state law claims. Am.
Compl. ¶ 7. The Court first considers Plaintiff’s TVPA claim and finds that Plaintiff has
plausibly stated a claim. The Court next weighs Plaintiff’s state law claims and finds that
Plaintiff has properly pleaded all but one claim. The Court then turns to Plaintiff’s RICO claim
and concludes that Plaintiff abandoned the claim, warranting dismissal.
I.

Plaintiff’s TVPA Claim Survives
Plaintiff brings her first cause of action against Defendant Jackson under Section 1591 of

the TVPA. The TVPA provides that:

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Whoever knowingly—
(1) in or affecting interstate or foreign commerce ... recruits, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits by any
means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a
venture which has engaged in an act described in violation of paragraph (1)
knowing . . . that means of force, threats of force, fraud, coercion . . ., or any
combination of such means will be used to cause the person to engage in a
commercial sex act, . . . shall be punished . . . .
18 U.S.C. § 1591 (emphasis added). For her claim to survive, Plaintiff must show that
Defendant Jackson (1) enticed Plaintiff and (2) by means of force and threats of force (3) caused
Plaintiff to engage in a commercial sex act. See Eckhart v. Fox News Network, LLC, No. 20-CV5593, 2021 WL 4124616, at *8–11 (S.D.N.Y. Sept. 9, 2021), on reconsideration in part, No. 20CV-5593, 2022 WL 4579121 (S.D.N.Y. Sept. 29, 2022) (collecting cases).
The archetypical example of sex trafficking includes “prostitution, pornography, sex
tourism, and other commercial sexual services.” 22 U.S.C § 7101(b)(2); see also Eckhart, 2021
WL 4124616, at *7 (collecting cases). However, the numerous allegations brought against film
producer Harvey Weinstein in recent years have led courts to defer to the plain meaning of the
TVPA: “[I]n light of the plain text of the statute, numerous courts in this Circuit—including this
one—have also applied the TVPA to cases where a victim claims to have been forced or
defrauded into sexual activity with the promise of career advancement.” Id. (citing David v.
Weinstein Co. LLC, 431 F. Supp. 3d 290, 299 (S.D.N.Y. 2019); Geiss v. Weinstein Holdings
LLC, 383 F. Supp. 3d 156 (S.D.N.Y. 2019); Noble v. Weinstein, 335 F. Supp. 3d 504 (S.D.N.Y.
2018); Canosa v. Ziff, 18-CV-4115, 2019 WL 498865 (S.D.N.Y. Jan. 28, 2019) (collectively,
“the Weinstein cases”)).

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Defendant Jackson seeks to differentiate the instant case from both the “archetypical” sex
trafficking cases and the line of Weinstein cases in this district. Defendant Jackson centers on
the commerciality prong under the TVPA, arguing that Plaintiff has not alleged that “anything of
value” was exchanged “on account of” forced sex. ECF No. 61 (“Def. Br.”) at 10. Defendant
Jackson argues that even if he had raped Plaintiff—which he denies—Plaintiff has not alleged
that the sex acts were premeditated and commercial in nature. Id. at 11.
In turn, Plaintiff argues that she was lured by Plaintiff with the false promises of $1,500
and an opportunity to network with athletes, emphasizing that courts have found a commercial
sex act to have occurred even if the “benefit . . . did not materialize.” ECF No. 65 (“Pl. Opp.”) at
4 (citing Eckhart, 2021 WL 4124616, at *9). Indeed, Plaintiff alleges that “Defendant
[Jackson’s] offer of time spent with a professional athlete was successful in enticing and
maintaining Plaintiff in [Defendant Jackson’s] hotel room for a short time.” Am. Compl. ¶ 134.
In his reply, Defendant Jackson continues to distinguish the facts from the Weinstein
cases because here “the alleged promise was not for sex, but instead ‘to make an appearance.’”
ECF No. 66 (“Def. Reply”) at 2. Defendant Jackson argues that Plaintiff conflates the
enticement and commercial exchange prongs under the TVPA. But with all inferences drawn in
Plaintiff’s favor, and considering the TVPA case law in this circuit, Plaintiff has adequately
alleged the three elements for a TVPA claim.
a. Defendant Jackson Enticed Plaintiff
“For the purposes of a Section 1591 claim, courts have interpreted the word ‘entice’
based on its ordinary meaning, which is to attract artfully or adroitly or by arousing hope or
desire, and [to] attract or tempt by offering pleasure or advantage.” David, 431 F. Supp. 3d at
300 (cleaned up) (citing Noble, 335 F. Supp. 3d at 517); see also Ardolf v. Weber, 332 F.R.D.

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467, 474 (S.D.N.Y. 2019) (“[T]he use of the term ‘entice’ in the TVPA means that the
perpetrator attracts the victim by offering something that arouses hope or desire.”).
Defendant Jackson argues that Plaintiff has not satisfied this element because the promise
was not conditioned on sex, but rather on Plaintiff making an appearance at Defendant Jackson’s
hotel room. Def. Reply at 2. He also argues that Plaintiff does not claim she was “tricked into
having sex” by Defendant Jackson but rather that he raped her after she had fallen asleep. Def.
Br. at 11. However, courts in this district have allowed claims based on similar facts. In
Eckhart, the court found that defendant “lure[d] [the plaintiff] back to his hotel room, [inviting]
her to ‘further discuss her career opportunities at his hotel.’” Eckhart, 2021 WL 4124616, at *8.
Immediately after plaintiff arrived at the hotel room, the defendant raped the plaintiff. See id. at
*3, *9. In David, the court found that plaintiff met with Harvey Weinstein on a few occasions on
which he dangled the promise of future work, thereby arousing hope and desire in plaintiff.
David, 431 F. Supp. 3d at 301. In the instant case, too, the Court finds that regardless of whether
the promise was for money or an appearance in Defendant Jackson’s hotel room, Plaintiff
plausibly alleges that she was enticed by Defendant Jackson.
b. Defendant Jackson Knew Means of Force or Fraud Would Be Used
Plaintiff must also “plausibly allege knowledge, or a modus operandi, associated with
[the] ‘enticement,’ that [Defendant Jackson] enticed Plaintiff with knowledge that means of force
or fraud would be used to cause a commercial sex act to take place.” Noble, 335 F. Supp. 3d at
517–18. “In other words, Plaintiff must allege that [Defendant Jackson] had an awareness or
understanding that ‘if things go as he has planned, force, fraud or coercion will be employed to
cause his victim to engage in a commercial sex transaction.’” David, 431 F. Supp. 3d at 301
(quoting United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010)). Plaintiff must also allege

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that this knowledge existed “at the initial recruitment or enticement stage.” Noble, 335 F. Supp.
3d at 518.
Plaintiff has plausibly alleged that Defendant Jackson knew that means of force or fraud
would be used when he first attempted to entice her. Plaintiff states that “Defendant [Jackson]
knew that the promise of time spending with him or the use of his influence and notoriety would
entice Plaintiff into his hotel room and knew that once there he was in a position to force the
sexual activity he desired.” Am. Compl. ¶ 134. Moreover, she alleges that “Defendant [Jackson]
actively had no intention of following through with his promise of just time spent together.
Instead, he used this ploy as a fraudulent means of obtaining sexual gratification.” Id. ¶ 137.
Most plainly, Plaintiff has alleged that Defendant Jackson used force to cause a sexual act to take
place. See Am. Compl. ¶ 54 (“Defendant [Jackson] ripped open Plaintiff’s clothing, exposed his
erect penis and forced himself on top of Plaintiff.”); ¶ 57 (“Defendant [Jackson] overpowered
Plaintiff and held down both of Plaintiff’s hands as he penetrated her vagina with his penis and
raped her.”); ¶ 61 (“Defendant [Jackson] overpowered Plaintiff and held down both of Plaintiff’s
hands as he penetrated her vagina with his penis and raped her.”).
Further supporting this element is Plaintiff’s allegation that “Defendant [Jackson] has
engaged in similar sexual assaults of other women in the past, where the women were
intoxicated, unable or unwilling to consent to sex, then the [sic] he forcibly raped them, and in at
least one case causing the victim to become impregnated.” Id. ¶ 75. When Plaintiff’s principal
allegations are “viewed in combination with the allegations that [Defendant Jackson] had
engaged in a pattern of doing the same with other women” it is “plausible [to infer] that
[Defendant Jackson] knew that force and fraud would be used to cause Plaintiff to engage in a
commercial sex act.” See David, 431 F. Supp. 3d at 301.

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c. Plaintiff Engaged in a Commercial Sex Act
Here, Defendant Jackson enticed Plaintiff to visit his hotel room by promising a payment
and the “opportunity to network with famous sports stars.” Pl. Opp. at 4. Defendant Jackson
rests on the argument that the TVPA requires Plaintiff to “allege that Jackson sold her for sex or
that there was an exchange of ‘anything of value’ ‘on account of’ allegedly forced sex[,]” which
he claims Plaintiff failed to do. See Def. Br. at 10. Indeed, under the TVPA a “commercial sex
act” is defined as “any sex act, on account of which anything of value is given to or received by
any person.” 18 U.S.C. § 1591(e)(3).
But “Congress’s use of expansive language in defining commercial sex act—using such
terms as ‘any sex act,’ ‘anything of value,’ ‘given to or received by any person’—requires a
liberal reading.” Noble, 335 F. Supp. 3d at 521. “In fact, the sex act itself need not occur to state
a cause of action under the TVPA.” David, 451 F. Supp. 3d. at 303 (citing United States v.
Alvarez, 601 F. App’x 16, 18 (2d Cir. 2015) (“The [TVPA] criminalizes certain means when
they are ‘used to cause’ an act, and thus is concerned with the means and not with the result.”))
“A plaintiff’s sex trafficking claim thus survives if she pleads that the defendant enticed her
while knowing that he would cause her to engage in a commercial sex act, regardless of whether
that act ultimately occurs.” Id. (citing United States v. Corley, 679 F. App’x 1, 7 (2d Cir. 2017)
(“[T]he plain meaning of the statute . . . requires only that the defendant ‘know’ that the victim
‘will be caused’ to engage in a commercial sex act; the statute does not require that an actual
commercial sex act have occurred.”).
Moreover, Defendant Jackson’s promises qualify as “thing[s] of value” under the TVPA.
See Noble, 2019 WL 3940125, at *4 (“Indeed, on Defendant’s account, the promise of money for
a sex act would not constitute a ‘thing of value’ if the individual soliciting the sex never intended

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to pay and acted accordingly. It is hard to square such a reading with the statute’s purpose of
punishing sex trafficking, which may often involve deceitful actors and false promises. It also
runs counter to Congress’s intent to cast a wide net by employing the term ‘any.’”); Geiss, 383 F.
Supp. 3d at 168 (holding that “the TVPA extends to enticement of victims by means of
fraudulent promises of career advancement, for the purpose of engaging them in consensual or . .
. non-consensual sexual activity”); David, 431 F. Supp. 3d at 304 (concluding that plaintiff
received a “thing of value” from a meeting to discuss a role she ultimately did not receive).
The Court finds that although Defendant Jackson did not explicitly promise something of
value in exchange for sex, the cases in this district have not required “an explicit quid pro quo in
order to establish that a sex act was ‘commercial.’ Indeed, in none of the Weinstein cases was
the defendant accused of offering the plaintiffs movie roles only on the condition that they have
sex with him, and the courts in those cases did not find this lack of explicit quid pro quo fatal to
the plaintiffs’ claim.” See Eckhart, 2021 WL 4124616, at *9. The Court therefore finds that
Plaintiff has met this element, thereby plausibly alleging a TVPA claim.
II.

Plaintiff’s State Law Claims Survive
The Court now turns to Plaintiff’s state law claims over which the court may exercise

supplemental jurisdiction. Under 28 U.S.C. § 1367, federal courts enjoy “a broad grant of
supplemental jurisdiction over other claims within the same case or controversy, as long as the
action is one in which the district courts would have original jurisdiction.” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 558 (2005). Where “all federal-law claims are eliminated
before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. at 350 n. 7 (1988).

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Because Plaintiff’s TVPA claim stands, the Court must consider whether Plaintiff has properly
pleaded all her state law claims against Defendant Jackson.
a. Assault and Battery
Plaintiff’s second cause of action is for assault and battery. In New York, a “civil
‘assault’ is the intentional placing of another in apprehension of imminent harmful or offensive
contact. The elements of civil ‘battery’ are (1) bodily contact, which is (2) harmful or offensive
in nature, and (3) made with intent.” Biggs v. City of N.Y., No. 08-CV-8123, 2010 WL 4628360,
at *7 (S.D.N.Y. Nov. 16, 2010) (quoting Merzon v. Cty. of Suffolk, 767 F.Supp. 432, 448
(E.D.N.Y. 1991)). To establish a prima facie claim of assault under New York law, a plaintiff
must prove “physical conduct placing the plaintiff in imminent apprehension of harmful
contact”; to establish a prima facie claim of battery, a plaintiff must prove “that there was bodily
contact, that the contact was offensive, and that the defendant intended to make the contact
without the plaintiff’s consent.” Bastein v. Sotto, 299 A.D.2d 432, 433, 749 N.Y.S.2d 538 (2d
Dep’t 2002); see also Villanueva v. Comparetto, 180 A.D.2d 627, 629, 580 N.Y.S.2d 30 (2d
Dep’t 1992) (“[A] plaintiff seeking to establish a civil battery need only prove that the defendant
intentionally touched [her] person without . . . her consent.”). Plaintiff alleged that Defendant
Jackson forcibly assaulted and touched her without consent, thereby satisfying the elements of
her civil assault and battery claims.
b. Intentional Infliction of Emotional Distress
In her third cause of action, Plaintiff alleges intentional infliction of emotional distress
(“IIED”). Under New York law, a cause of action for IIED has four elements: (i) extreme and
outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing,
severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv)

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severe emotional distress.” Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993); see also
Johns v. Home Depot USA, Inc., No. 03-CV-4522, 2005 WL 545210, at *7 (S.D.N.Y. Mar. 8,
2005), aff’d sub nom. Johns v. Home Depot USA, Inc., 180 F. App’x 190 (2d Cir. 2006) (same).
Plaintiff alleges that Defenant Jackson assaulted and raped her in his hotel room which caused
her to suffer “severe emotional distress and anguish[.]” Am. Compl. ¶ 168. As a result, the
elements of Plaintiff’s IIED claim are met and the claim stands.
c. Violation of C.P.L.R. § 213-C
In her fourth cause of action, Plaintiff references various statutes under which an action
can be brought pursuant to C.P.L.R. § 213-c, which permits civil claims against an individual
who could be charged with criminal liability for certain enumerated sexual offenses. See N.Y.
C.P.L.R. § 213-c. In the Amended Complaint, Plaintiff specifically references two sections of
the New York Penal Law: 130.50 (criminal sexual act in the first degree, which deals with
unlawful oral and anal sexual conduct) and 130.70 (aggravated sexual abuse in the first degree,
which deals with insertion of foreign objects into the vagina, urethra, penis, rectum, or anus of
another person causing physical injury). Am. Compl. ¶¶ 153–54; see also N.Y. Penal Law §
130.50, 130.70.
Plaintiff then notes the enumerated sexual offenses under N.Y. C.P.L.R. § 213-c, which
reference these sections, as well as section 130.35 (rape). Am. Compl. ¶ 155; see also N.Y.
Penal Law § 130.35. Under New York Penal Law Section 130.35, “[a] person is guilty of rape in
the first degree when he or she engages in sexual intercourse with another person . . . [w]ho is
incapable of consent by reason of being physically helpless[.]” N.Y. Penal Law § 130.35.
Here, Plaintiff plainly alleges that she woke up to Defendant Jackson raping her. The
Court thus concludes that the rape claim stands. On the other hand, the Amended Complaint is

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bereft of any factual allegations to give rise to civil liability under sections 130.50 and 130.70.
Plaintiff alleges neither any oral or anal sexual conduct by Defendant Jackson, nor his insertion
of any foreign object into her body.1 Accordingly, the Court grants (without prejudice)
Defendant’s motion to dismiss the cause of action to the extent Plaintiff relies on a theory of
aggravated sexual abuse in the first degree or of a criminal sexual act in the first degree.
d. Violation of the New York Gender Motivated Violence Protection Act
As a fifth cause of action, Plaintiff alleges violations of the New York Gender Motivated
Violence Protection Act (“GMVPA”). The GMVPA provides a cause of action for “any person
claiming to be injured by a party who commits, directs, enables, participates in, or conspires in
the commission of a crime of violence motivated by gender.” N.Y.C. Admin. Code § 10-1104.
The GMVPA defines a “crime of violence motivated by gender” as “a crime of violence
committed because of gender or on the basis of gender, and due, at least in part, to an animus
based on the victim’s gender.” Id. § 10-1103. A “crime of violence,” in turn, is defined as
[A]n act or series of acts that would constitute a misdemeanor or felony against
the person as defined in state or federal law or that would constitute a
misdemeanor or felony against property as defined in state or federal law if the
conduct presents a serious risk of physical injury to another, whether or not those
acts have actually resulted in criminal charges, prosecution, or conviction.
Id. To state a claim under the GMVPA, Plaintiff must show that “(1) the alleged act constitutes a
misdemeanor or felony against the person; (2) that was perpetrated because of plaintiff’s gender;
(3) in part because of animus against plaintiff’s gender; and (4) resulted in injury.” Baldwin v.
TMPL Lexington LLC, No. 23-CV-9899, 2024 WL 3862150, at *12 (S.D.N.Y. Aug. 19, 2024).

1

For the purposes of applying Section 130.70 of the New York Penal Law, the Court considers that any foreign
object that was inserted must be a detached, inanimate object. See People v. Peet, 64 N.Y.2d 914, 915 (1985)
(affirming appellate court’s conclusion that a defendant’s finger did not constitute a foreign object in part because
the terminology used in the statute “connotes something inanimate, detached and separate from any other
structure”).

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Defendant Jackson complains that “[P]laintiff’s claim for gender-motivated violence
(count 5) does not specify the allegedly discriminatory conduct at issue.” Def. Br. at 18. But for
the reasons detailed above, the Court concludes that Plaintiff adequately pleaded that Defendant
Jackson committed rape, an archetypical crime of gender-motivated violence. See Baldwin,
2024 WL 3862150, at *13 (“[A]llegations of rape and sexual assault state a claim under the
GMVPA because ‘[m]alice or ill will based on gender is apparent from the alleged commission
of the act itself.’”) (quoting Breest v. Haggis, 180 A.D.3d 83, 94 (1st Dep’t 2019)); see also Doe
v. Gooding, No. 20-CV-6569, 2021 WL 5991819, at *5 (S.D.N.Y. July 29, 2021) (granting
default judgment to plaintiff on GMVPA claim based on rape).
Gender-based animus is also inferred by Defendant Jackson’s alleged commission of
rape. See Breest, 180 A.D.3d at 94 (“Without consent, sexual acts such as [rape or sexual
assault] are a violation of the victim’s bodily autonomy and an expression of the perpetrator’s
contempt for that autonomy. . . . Animus inheres where consent is absent.”). Additionally,
Plaintiff’s allegations of emotional distress are sufficient to plead injury in the GMVPA context.
See Doe v. Olive Leaves, Inc., No. 18-CV-5734, 2024 WL 3048373, at *11 (E.D.N.Y. Feb. 16,
2024) (complaint pled injury under the GMVPA in alleging emotional distress). The GMVPA
claim as to Defendant Jackson therefore survives.
e. Sexual Assault and Sexual Abuse
Last, the Court considers Plaintiff’s sixth cause of action, titled simply “Sexual
Assault/Sexual Abuse.” In opposing this cause of action, Defendant Jackson asks the Court to
dismiss these claims by arguing that they “would be duplicate rather than permissible alternative
claims under Fed. R. Civ. P. 8(d) and would ‘rise and fall together.’”) Def. Br. at 18. (citing Doe
v. Indyke, 465 F. Supp. 3d 452, 459 (S.D.N.Y. 2020) (dismissing sexual assault claim as

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duplicative of battery claim). In response, Plaintiff argues that “[t]he second claim for
assault/battery and the third claim for intentional infliction of emotional distress do not contain
any sexual component, thus making them non-duplicative since the plaintiff could prevail by
proving conduct not involving unlawful sexual contact. According [sic] the claims are
alternative and not duplicative.” Pl. Opp. at 8.
The case finds that dismissal of any claim as duplicative is premature at this stage. While
a sexual assault or sexual abuse common law claim appears to arise from Count Four (rape under
N.Y. C.P.L.R. § 213-C), the Court declines to dismiss the claim at the motion to dismiss stage,
finding “no basis to force [P]laintiff to elect one theory of recovery over the other at this time.”
U.S. Network Servs., Inc. v. Frontier Comm’ns of the W., Inc., 115 F. Supp. 2d 353, 358
(W.D.N.Y. 2000) (declining to dismiss the plaintiff’s breach of warranty claim as duplicative of
the breach of contract claim even though the plaintiff “clearly cannot obtain duplicative damage
awards”); see also Roelcke v. Zip Aviation, LCC, No. 15-CV-6284, 2018 WL 1792374, at *9,
13–14 (S.D.N.Y. Mar. 26, 2018) (allowing a claim under GMVPA and a claim under N.Y.
C.P.L.R. § 213-C for rape and sexual abuse against the same defendant to proceed at the motion
to dismiss stage).
III.

Plaintiff’s RICO Claim is Dismissed
The Court next considers whether Plaintiff’s RICO claim against Defendant Jackson can

be sustained and concludes that it cannot. Defendant Jackson argued in his opening that Plaintiff
failed to state a claim under RICO “because she did she did not adequately allege, inter alia: (1)
the existence of an ‘enterprise,’ which must be pled through facts showing common purpose and
ongoing organization among the defendants; (2) a “pattern” of racketeering activities,
characterized by at least two predicate acts posing a threat of continued criminal activity; or (3)

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facts supporting a RICO conspiracy.” Def. Reply at 1 (citing Def. Br. at 11–15). However,
Plaintiff did not respond to any of Defendant Jackson’s arguments against the RICO claim.
Therefore, the Court concludes that Plaintiff has abandoned her RICO claim and dismisses the
RICO action without prejudice. See Fantozzi v. City of New York, 343 F.R.D. 19, 32 (S.D.N.Y.
2022) (“Courts may, and generally will, deem a claim abandoned when a plaintiff fails to
respond to a defendant’s arguments that the claim should be dismissed.”) (cleaned up); see also
Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442, 2014 WL
4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage . . . a plaintiff
abandons a claim by failing to address the defendant’s arguments in support of dismissing that
claim.”).
IV.

Leave to Amend
Lastly, the Court grants Plaintiff leave to file a Second Amended Complaint. While

Plaintiff has already amended her Complaint once, Plaintiff could presumably plead facts that
cure the Amended Complaint’s defects. Because this case “is still in its infancy, there would be
minimal prejudice to Defendant” in granting leave to amend. Morales v. Kimberly-Clark Corp.,
No. 18-CV-7401, 2020 WL 2766050, at *10 (S.D.N.Y. May 27, 2020). Moreover, Plaintiff
should amend only if she is able to rectify the pleading deficiencies outlined in the Opinion and
Order. Plaintiff is cautioned that, absent good cause shown, further leave to amend will not be
granted.
CONCLUSION
For the foregoing reasons, Defendant Jackson’s motion to dismiss the Amended
Complaint is GRANTED in part and DENIED in part. The Court grants Plaintiff leave to file a

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Second Amended Complaint and ORDERS Plaintiff to file the Second Amended Complaint in
thirty (30) days.
SO ORDERED.
Dated:

New York, New York
March 10, 2025

____________________________________
ANDREW L. CARTER, JR.
United States District Judge

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