robert j. lanza (rl4488) richard c. ebeling (re1481)...

Robert J. Lanza (RL4488) Richard C. Ebeling (RE1481) Lanza Reich & Daniel, LLP 221 W. 37th Street-4th Floor New York, NY 10018 212-602-1160 Attorneys for Defendant UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X ASHLEY LEBRON, Plaintiff Case No. 16-civ-4666 (ADS) (ARL) -against- EDWIN ELPIDIO ENCARNACION, Defendant ------------------------------------------------------------------X

DEFENDANT EDWIN ELPIDIO ENCARNACION’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DISMISS THE COMPLAINT

Robert J. Lanza, Esq. Richard C. Ebeling, Esq. Attorneys for Defendant

LANZA REICH & DANIEL, LLP 221 W. 37th Street-4th Floor

New York, NY 10018

Case 2:16-cv-04666-ADS-ARL Document 6-1 Filed 10/18/16 of 32 PageID #: 73

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................................... i

TABLE OF AUTHORITIES ....................................................................................................................... iii

INTRODUCTION ........................................................................................................................................ 1

STATEMENT OF FACTS ........................................................................................................................... 2

ARGUMENT ................................................................................................................................................ 3

I THIS COURT LACKS PERSONAL JURISDICTION OVER THE DEFENDANT. ..................... 3

A. The Court Lacks General Jurisdiction. ......................................................................................... 4

B. The Court Lacks Specific Jurisdiction. ......................................................................................... 5

C. Even if the Long Arm Statute Were to be so Widely Interpreted, Hauling Defendant into a New York Court under the Facts Alleged in the Complaint Would Offend Due Process. ........................... 7

II THIS COURT SHOULD DISMISS THE COMPLAINT UNDER THE DOCTRINE OF FORUM NON CONVENIENS. .............................................................................................................................. 9

A. This Court Should Not Afford Plaintiff the Degree of Deference Often Given to Plaintiff’s Choice of Forum Because None of the Operative Facts Occurred in the State of New York. ........... 10

B. The DR is an Adequate Alternative Forum. ............................................................................... 11

C. The Balance of Private and Public Interest Factors Weigh Decisively in Favor of the Alternative Forum. .............................................................................................................................. 12

III THE COURT SHOULD DISMISS THE COMPLAINT UNDER Fed. R. Civ. P. 12(b)(6) and 9(b)…………………………………………………………………………………………………………………………………………………..15

A. Legal Standard for a Motion Under Fed. R. Civ. P. 12(b)(6). .................................................... 15

B. This Court Should Dismiss Plaintiff's First Claim Alleging Battery Because Plaintiff Alleged She Consented to Sex with Defendant. ............................................................................................... 16

C. This Court Should Dismiss All of Plaintiff's Remaining Five Claims Because She Failed to Allege Facts – as Opposed to Legal Conclusions – Even Suggesting Actual or Constructive Knowledge, Essential Elements of Each Cause of Action, and Therefore She Failed to State a Claim Under the Supreme Court’s Decisions in Twombly and Iqbal and their Progeny. ............................. 18

D. Plaintiff Second Claim for Negligent Transmission of STDs Also Fails Because She Failed to Plead Facts Establishing a Duty. ......................................................................................................... 19

E. Plaintiff Third Claim for Fraud Also Fails Because the Complaint Lacks the Requisite Particularity, and Relies Solely on “After the Fact” Alleged Misrepresentations. ............................. 20

F. Plaintiff’s Fourth Claim for Breach of Fiduciary Duty Fails Because She Failed to Plead Facts Showing that Her Relationship Was Characterized by Dominance and Control. ............................... 21

G. This Court Should Dismiss Plaintiff’s Sixth Claim for Intentional Infliction of Emotional Distress Because She Failed to Allege Facts Showing (i) Extreme and Outrageous Conduct and (ii) Defendant Intended to Cause Severe Emotional Distress. .................................................................. 23


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H. This Court Should Also Dismiss Plaintiff’s Fifth Claim for Negligent Infliction of Emotional Distress Because She Failed to Plead Facts Showing (i) Extreme and Outrageous Conduct and (ii) a Duty Owed to Plaintiff. ....................................................................................................................... 24

CONCLUSION ......................................................................................................................................... 25


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TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................... 15-16, 18-19 Atlantis Info. Tech.v. CA, Inc., 485 F. Supp. 2d 224 (E.D.N.Y. 2007) ....................................................... 22 Banco Mercantil, S.A. v. Arencibia, 927 F. Supp. 565 (D.P.R. 1996) ........................................................ 12 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................... 15-16, 18-19 Best Van Lines, Inc. v. Walker, 490 F.3d 239 (2nd Cir. 2007) ....................................................................... 3 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .............................................................................. 9 Chanko v American Broadcasting Cos. Inc. 27 N.Y.3d 46 (2016) ............................................................. 23 Coopersmith v. Gold, 172 A.D.2d 982 (1st Dept. 1991) ............................................................................. 17 Corporacion Tim v. Schumacher, 418 F. Supp. 2d 529 (S.D.N.Y. 2006) .................................................. 11 Davis v. Billick, No. 03 Civ. 1964D, 2002 U.S. Dist. LEXIS 11504 (N.D. Tex. June 26, 2002) ................. 5 Deutsch v. Novartis Pharmaceuticals Corp., 23 F. Supp. 2d 521 (E.D.N.Y. 2010) ................................... 13 Dixon v Ford Motor Company, No. 14 Civ. 6135, 2015 U.S. Dist. LEXIS 146263 (E.D.N.Y. September

30, 2015) ................................................................................................................................................. 19 Doe v. Roe, 157 Misc. 2d 690, 693 (Just. Ct. Town of Haverstraw Rockland Co. 1993)........................... 20 Doe v. Roman Catholic Diocese of Rochester, 12 N.Y.3d 764 (2009) ...................................................... 22 Dominguez v. Pyrgia Shipping Corp., No. 98 Civ. 529, 1999 U.S. Dist. LEXIS 9799 (E.D. La. June 28,

1999) ....................................................................................................................................................... 12 Donatelli v. Nat’l Hockey League, 893 F.2d 459 (1st Cir. 1990) ................................................................. 5 Eurycleia Partner, L.P. v. Seward & Kissel, LLP, 12 N.Y.3d 553 (2009) ................................................. 20 Evans v. Boston Red Sox, No. 13 Civ. 00262, 2013 U.S. Dist. LEXIS 166307 (D. Haw. November 22,

2013) ......................................................................................................................................................... 5 Francis v. Kings Park Manor, Inc, 91 F. Supp. 3d 420 (E.D.N.Y. 2015) .............................................. 25


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Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013) .................................................................................... 19 Gaines v. Dickerson, No. 15 Civ. 7173, 2016 U.S. Dist. LEXIS 50424 (E.D.N.Y. April 14, 2016) ........... 7 Gates Technologies v Delphix Capital Markets, No. 12 Civ. 7075, 2013 U.S. Dist. LEXIS 95368

(S.D.N.Y. July 9, 2013) .......................................................................................................................... 22 Genpharm Inc. v. Pliva-Lachema, 361 F. Supp. 2d 49 (E.D.N.Y. 2005) ..................................................... 9 Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114 (9th Cir. 2002) ................ 4 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ................................................... 4 Gulf Oil Corp. v. Gilbert, 220 U.S. 501 (1947) ............................................................................................ 9 Hack v. Stang, No. 13 Civ. 5713, 2014 U.S. Dist. LEXIS 132128 (S.D.N.Y. September 18, 2014) .......... 3 Howell v. New York Post Co., 81 N.Y. 2d 115 (1993)................................................................................ 23 IKB Int'l S.A. in Liquidation v. Bank of Am. Corp., 584 Fed. Appx. 26 (2d Cir. 2014) ............................. 21 In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195 (2d Cir. 1987) ........................................... 14 In Re: Air Crash Near Clarence Center, New York, On February 12, 2009, 798 F. Supp. 2d 481

(E.D.N.Y. 2011) ...................................................................................................................................... 13 International Shoe Co. v. Washington, 326 U.S. 317 (1945) ........................................................................ 4 Iragorri v, United Techs. Corp., 274 F.3d 65 (2d Cir. 2001) ........................................................... 9, 10, 12 Krock v. Lipsay, 97 F.3d 640 (2d Cir. 1996) .............................................................................................. 13 Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52 (2nd Dept. 1990) ............................................................ 17 Licci v. Lebanese Canadian Bank, 673 F.3d 50 (2d Cir. 2012) ..................................................................... 3 Maines v. Croner Val Fire Dept., 50 N.Y.2d 535 (1980) ........................................................................... 17 Manton v. Cal. Sports, Inc., 493 F. Supp. 496 (N.D. Ga. 1980) ................................................................... 5 Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15

(2008) ...................................................................................................................................................... 22 Milne v. Navigant Consulting, No. 08 Civ. 8964, 2009 U.S. Dist. LEXIS 112632 (S.D.N.Y. November

30, 2009) ................................................................................................................................................. 19


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Morales v. Schofield, 174 F.R.D. 253 (E.D.N.Y. 1997) ............................................................................... 3 Napora v. Longnecker, NO. 97 Civ. 0202E(F), 1998 US Dist. LEXIS 2123 (W.D.N.Y. February 20,

1998) ......................................................................................................................................................... 6 Nationwide Mut. Ins. Co. v. Morning Sun Bus Co., No. 10 Civ. 1777, 2011 U.S. Dist. LEXIS 10131

(E.D.N.Y. February 2, 2011) .................................................................................................................... 7 O’Brien v. Nat’l Property Analysts Partners, 936 F.2d 674 (2d Cir. 1991) ............................................... 21 O'Brien v. Marriot Int'l, Inc., No. 04 Civ. 3369, 2006 U.S. Dist. LEXIS 44446 (E.D.N.Y. June 29, 2006) ........................................................................................................................ 13 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ................................................................................. 10-11 Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003) ............................................. 11 Rigroup LLC v. Trefonisco Mgmt., 559 Fed. Appx. 58 (2d Cir. 2014) ....................................................... 10 Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994) ...................................................... 3 Ross v. A.H. Robins Co., 607 F.2d 545 (2d Cir. 1979) ............................................................................... 21 Schultz v. Boy Scouts of Amer., Inc., 65 N.Y.2d 189 (1985) ...................................................................... 13 Scottish Air Intn’l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224 (2d Cir. 1996) ......................... 12 Senne v. Kansas City Royals Baseball Corp., 105 F. Supp. 3d 981 (N.D. Cal. 2015) .................................. 5 Silver v. Levittown Union Free Sch. Dist., 180 Misc. 2d 1015 (Sup. Ct. Nassau Co. 1999) ...................... 20 Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009) ................................................................. 16 Smith v. City of New York, No. 14 Civ. 4982, 2015 U.S. Dist. LEXIS 85224 (E.D.N.Y. June 30, 2015) ........................................................................................................................ 24 Smith v. District of Columbia, 674 F. Supp. 2d 209 (D.D.C. 2009) ........................................................... 19 Thomas v. Ashcroft, 470 F.3d 491 (2d Cir. 2005) ......................................................................................... 3 Walden v. Fiora, 2014 U.S. LEXIS 1635; 134 S. Ct. 1115; 188 L. Ed. 2d 12 (2014) .................................. 8 Welter v. Feigenbaum, No. 127969-2002, 2013 N.Y. Misc. LEXIS 176 (Sup. Ct. New York Co. January

16, 2013) ................................................................................................................................................. 16


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Wenzel v. Marriott Int'l, Inc., No. 13 Civ. 8335, 2014 U.S. Dist. LEXIS 166062 (S.D.N.Y. November 17, 2014) ....................................................................................................................................................... 10

Yung v. Lee, 160 Fed. Appx. 37 (2d Cir. 2005) .......................................................................................... 11

Statutes

CPLR 301 ..................................................................................................................................................... 9 CPLR 302 .............................................................................................................................................. 5-7, 9

Other Authorities

McLaughlin, Practice Commentary, McKinney’s Cons. Laws of NY, Book 7B CPLR 302 ....................... 6

Rules

Fed. R. Civ. P. 12(b)(2) ......................................................................................................................... 1, 3, 9 Fed. R. Civ. P. 12(b)(6) ..................................................................................................................... 2, 15, 25 Fed. R. Civ. P. 45(c)(1)(A) ......................................................................................................................... 14 Fed. R. Civ. P. 8(a)(2) ................................................................................................................................. 15 Fed. R. Civ. P. 9(b) ................................................................................................................................. 2, 15


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INTRODUCTION

This diversity action alleges that Edwin Encarnacion (“Defendant”) committed various

torts in the Dominican Republic (“DR”) causing Ashley Lebron (“Plaintiff”) personal injury.

Defendant is a citizen of the DR and maintains his principal residence there. The sole

connection between Plaintiff’s claims and New York is that Plaintiff resides here. There is no

contact alleged between Defendant and New York related to the torts. Given the identity of the

parties, the locus of the alleged torts, and the failure to state any cognizable claim, this Court

should dismiss the complaint for the following reasons:

(a) Plaintiff alleges no facts which, if proven, establish that Defendant is subject to

the in personam jurisdiction of this Court. Rather, the complaint makes clear that no statutory

basis to assert jurisdiction exists and, even if there were, exercising jurisdiction would violate the

Due Process Clause of the United States Constitution. Accordingly, the complaint should be

dismissed pursuant to Fed. R. Civ. P. 12(b)(2);

(b) In the alternative, this Court should dismiss the complaint on grounds of forum

non conveniens. While Plaintiff’s choice of forum merits some deference, the DR, which is an

adequate, alternative forum, is where Plaintiff alleges all misconduct occurred, where she alleged

she suffered harm, and where all the liability, causation and damages evidence is located. In

particular, all material witnesses identified in the complaint, none of whom is subject to this

Court's compulsory process, are located in the DR. As detailed below, all the public and private

interest factors that this Court must analyze tip decidedly in favor of dismissal;

(c) While Defendant respectfully submits that this case is governed by Dominican

law, to the extent that Plaintiff bases her claims on New York law, Plaintiff failed to adequately


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plead a viable claim under Fed. R. Civ. P. 12(b)(6) with respect to any of her stated causes of

action, and failed to plead her fraud claim with the specificity required by Fed. R. Civ. P. 9(b).

STATEMENT OF FACTS

These facts are taken from the complaint filed in this action on August 22, 2016 (Docket

Entry #1) (the “Complaint”) and are assumed to be true for purposes of this motion.

Plaintiff alleges she met Defendant approximately three years ago. Complaint ¶7. The

parties’ families knew each other for years and Defendant grew up across the street from a house

owned by Plaintiff’s Aunt in the DR. Id. Defendant invited Plaintiff to come visit in the DR.

Plaintiff agreed, and arrived there on February 12, 2016. Id. at 23. She stayed at her Aunt’s

house. Id. Plaintiff left the DR to return to New York on February 16, 2016. Id. at 33. The

Complaint alleges various activities the parties engaged in during these few days, including the

allegation she and Defendant had “unprotected sex” on February 13, 2016 and twice on February

15, 2016. Id. at 29, 31-32.

During the flight back to New York on February 16, 2016, Plaintiff claims she suffered

headaches, body aches, and chills associated with a high fever. Id. at 33. During the week of

February 22, 2016, Plaintiff was first diagnosed with genital herpes and later with Chlamydia.

Id. at 37. She alleges, upon information and belief, that she contracted these two sexually

transmitted diseases (“STDs”) from Defendant, and such is the entire predicate for this action.

The Complaint is devoid of a single fact supporting her conclusory allegations that

Defendant knew or should have known that he had herpes and/or chlamydia.

The Complaint contains six claims for relief: (1) Battery (Id. at ¶¶52-58); (2) Negligent

Transmission of STDs (Id. at ¶¶59-64); (3) Fraud (Id. at ¶¶65-68); (4) Breach of Fiduciary Duty


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(Id. at 69-73); (5) Negligent Infliction of Emotional Distress (Id. at ¶¶74-77); and (6) Intentional

Infliction of Emotional Distress (Id. at ¶¶78-81).

ARGUMENT

I THIS COURT LACKS PERSONAL JURISDICTION OVER THE DEFENDANT.

It is axiomatic that Plaintiff bears the burden of establishing that this Court has

jurisdiction over Defendant’s person. See, e.g., Best Van Lines, Inc. v. Walker, 490 F.3d 239,

242 (2nd Cir. 2007) (complaint dismissed under Rule 12(b)(2) because plaintiff failed to

establish, even prima facie, that the Court had jurisdiction over the defendant), citing, Thomas v.

Ashcroft, 470 F.3d 491 (2d Cir. 2005) (same).

"A prima facie case for personal jurisdiction has three elements: (1) the plaintiff's service

of process upon the defendant must have been procedurally proper, (2) there must be a statutory

basis for personal jurisdiction that renders such service of process effective, and (3) the exercise

of personal jurisdiction must comport with constitutional due process." Hack v. Stang, No. 13

Civ. 5713, 2014 U.S. Dist. LEXIS 132128 (S.D.N.Y. September 18, 2014), citing, Licci v.

Lebanese Canadian Bank, 673 F.3d 50 (2d Cir. 2012).

In determining whether it has personal jurisdiction over a non-domiciliary, a Federal

Court applies the law of the State in which it sits; here, New York. Robinson v. Overseas

Military Sales Corp., 21 F.3d 502 (2d Cir. 1994); Morales v. Schofield, 174 F.R.D. 253

(E.D.N.Y. 1997).

As stated by the Second Circuit:

“There are two types of personal jurisdiction: general and specific. General jurisdiction is authorized where the defendant's affiliations with the State are so continuous and systematic as to


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render [it] essentially at home in the forum State. A court asserts general jurisdiction over a defendant when the court is permitted to hear any and all claims against that defendant. Specific jurisdiction, however, depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. Such jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.”

Licci v. Lebanese Canadian Bank, supra, 673 F.3d at 61 (internal quotation marks and citations

omitted), quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).

A. The Court Lacks General Jurisdiction.

Plaintiff here did not allege that there is a general jurisdictional predicate over Defendant.

Nor could she do so in good faith because a court may assert general jurisdiction over a non-

resident defendant only when that defendant’s “affiliations with the State are so ‘continuous and

systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop Tires

Operations, S.A. v. Brown, supra, 564 U.S. at 919, quoting International Shoe Co. v.

Washington, 326 U.S. 317 (1945).

Here, Defendant is a citizen of the DR. He maintains no residence in the State of New

York, he owns no property here, he has no bank accounts here, and has virtually no contacts with

New York at all. He is a professional baseball player, working for a team located in Toronto

Canada, and comes to New York a handful of days a year when his team in visiting one of the

two New York baseball teams. (See Declaration of Edwin Elpidio Encarnacion dated October

13, 2016).

It is settled that mere “visits” to the forum state are not enough; rather, there must be

some “indication that [the defendant] has sat down and made itself at home.” Glencore Grain

Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1124-25 (9th Cir. 2002). Indeed,


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a claim of general jurisdiction would savage consistently decided cases holding that no such

jurisdiction exists in the context of athletes and their teams. Davis v. Billick, No. 03 Civ.

1964D, 2002 U.S. Dist. LEXIS 11504 (N.D. Tex. June 26, 2002); Manton v. Cal. Sports, Inc.,

493 F. Supp. 496, 496-98 (N.D. Ga. 1980); Sullivan v. Tagliabue, 785 F. Supp. 1076, 1081 (D.

R.I. 1992); Evans v. Boston Red Sox, No. 13 Civ. 00262, 2013 U.S. Dist. LEXIS 166307, at *10-

12 (D. Haw. November 22, 2013); Donatelli v. Nat’l Hockey League, 893 F.2d 459 (1st Cir.

1990). Senne v. Kansas City Royals Baseball Corp., 105 F. Supp. 3d 981 (N.D. Cal. 2015).

B. The Court Lacks Specific Jurisdiction.

Specific jurisdiction, also known as “long arm” jurisdiction, is governed by statute in

New York. With respect to tort actions, CPLR 302 states in pertinent part as follows:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

* * * * 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce

This case arises from sexual contact allegedly occurring over the course of a few days in

the DR. There is no allegation that Defendant committed any actionable tort while in the State of

New York. Accordingly, for there to be a statutory basis for long arm jurisdiction here, Plaintiff


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must plead and prove that the tortious conduct caused injury “to person or property within the

state”.

Here, all the claims arise from a sexual encounter in the DR that allegedly resulted in

personal injury caused by the transmission of STDs. Plaintiff alleges that Defendant infected her

in the DR and that symptoms manifested themselves on the flight home before she reached the

United States. Complaint at ¶¶29, 32. In consequence, for Defendant to be subject to the New

York long arm statute, Plaintiff would have to establish that her injury occurred in New York

within the meaning of CPLR 302(a)(3), solely because she will allegedly suffer consequences

here from transmission of STDs that took place in the DR. This Plaintiff cannot do under

governing law.

Courts uniformly and consistently hold, in personal injury cases, that the injury occurs

simultaneously with the event giving rise to it, and not where the Plaintiff resides, even if she

continues to suffer from injuries while living there. As Judge Joseph M. McLaughlin stated in

the Practice Commentaries to CPLR 302:

An injury does not occur in New York simply because the plaintiff is domiciled there. * * * For example, it was held in Black v. Oberle Rentals, Inc., 1967, 55 Misc. 2d 398, 285 N.Y.S.2d 226, that an injury received in Massachusetts does not become a New York injury simply because the plaintiff is a New York resident who comes back to this state with permanent scars and who suffers a permanent loss of income in New York. This is an eminently sound holding for to have concluded otherwise would, in effect, subject all the world to jurisdiction in New York anytime a New York domiciliary was injured.

McLaughlin, Practice Commentary, McKinney’s Cons. Laws of NY, Book 7B CPLR 302.

In Napora v. Longnecker, NO. 97 Civ. 0202E(F), 1998 US Dist. LEXIS 2123 (W.D.N.Y.

February 20, 1998), the Court dismissed on jurisdictional grounds a case alleging continuing


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injuries suffered by a New York plaintiff arising from an accident that had occurred in Indiana.

The Court quoted Judge McLaughlin, and went on to observe:

Judge McLaughlin's interpretation of section 302(a)(3) is consistent with substantial case law. See, e.g., Morales v. Schofield, 174 F.R.D. 253, 257-258 (E.D.N.Y. 1997) (Massachusetts motor vehicle accident resulting in injury to a New York resident); Lancaster v. Colonial Motor Freight Line, Inc., 177 A.D.2d 152, 581 N.Y.S.2d 283, 287-288 (1st Dept. 1992) (South Carolina accident); Bissinger v. DiBella, 141 A.D.2d 595, 529 N.Y.S.2d 516, 517 (2d Dept. 1988) (New Jersey accident); Bramwell v. Tucker, 107 A.D.2d 731, 484 N.Y.S.2d 92, 93 (2d Dept. 1985) (same).

Id. at *10-11; accord, Gaines v. Dickerson, No. 15 Civ. 7173, 2016 U.S. Dist. LEXIS 50424

(E.D.N.Y. April 14, 2016) (dismissing personal injury case against New Jersey defendants

arising from out of state accident injuring New York plaintiffs); Nationwide Mut. Ins. Co. v.

Morning Sun Bus Co., No. 10 Civ. 1777, 2011 U.S. Dist. LEXIS 10131, at *26 (E.D.N.Y.

February 2, 2011), quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 209 (2d Cir. 2001)

(“Courts apply a situs-of-the-injury test to determine where the injury occurred, which in the tort

context is the location of the original event which caused the injury, not the location where the

resultant damages are felt by the plaintiff.”) (internal quotation marks and citation omitted”);

Morales v. Schofield, 174 F.R.D. 253 (E.D.N.Y. 1997) (Holding that a New York plaintiff

injured by actions of a non-domiciliary out of state does not give rise to long arm jurisdiction)

In short, there is no question but that Plaintiff failed to allege any facts that stablish, even

prima facie, that Defendant is subject to the New York long arm statute.

C. Even if the Long Arm Statute Were to be so Widely Interpreted, Hauling Defendant into a New York Court under the Facts Alleged in the Complaint Would Offend Due Process.


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In Walden v. Fiora, 2014 U.S. LEXIS 1635; 134 S. Ct. 1115; 188 L. Ed. 2d 12 (2014),

the Supreme Court recently limited the circumstances under which a Court could constitutionally

exercise jurisdiction over a non-domiciliary defendant. There, the Nevada-domiciled plaintiffs

brought an action in Nevada asserting a Georgia-based drug enforcement agent violated their

constitutional rights. Plaintiff argued that “a defendant creates sufficient minimum contacts with

a forum when he (i) intentionally targets (2) a known resident of the forum (3) for the imposition

of an injury (4) to be suffered by the plaintiff while she is residing in the forum state”. Id. at *21.

The Supreme Court categorically rejected this argument, holding:

This approach to the “minimum contacts” analysis impermissibly allows a plaintiff’s contacts with the defendant and forum to drive the jurisdictional analysis. Petitioner’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning improperly attributes a plaintiff’s forum connections to the defendant and makes those connections decisive in the jurisdictional analysis. It also obscures the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself.

Id.

The Court underscored that the focus of the "minimal contacts" inquiry is "the

relationship among the defendant, the forum, and the litigation," not the defendant's contacts

with persons who reside in the forum. "The proper question is not where the plaintiff

experienced a particular injury or effect but whether the defendant's conduct connects him to the

forum in a meaningful way." Id. The Court rejected the plaintiffs' "injury-based" argument that

jurisdiction should be conferred based on the foreseeability of the defendant's action causing

injury in the forum holding "an injury is jurisdictionally relevant only insofar as it shows that the

defendant has formed a contact with the forum." Id. at *22.


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Here, to exercise long arm jurisdiction consistent with due process, Defendant's "suit-

related conduct" must create a "substantial connection" with New York, the forum State. Id. at

*20. This connection must arise from contacts that the "defendant himself" creates with New

York. Id. at *12, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). The

"minimum contacts" analysis looks to the defendant's contacts with the forum state itself, not the

defendant's contacts with persons who reside there. Id. "Due process requires that a defendant be

haled into court in a forum State based on his own contacts with the State, not based on the

random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated

with the State.” Id. at *16 (internal quotation marks omitted).

In sum, there is no in personam jurisdiction over the Defendant here. Plaintiff has not

alleged a single fact giving rise to general jurisdiction pursuant to CPLR 301, or to long arm

jurisdiction pursuant to CPLR 302(a)(3). Further, even if these statutes could somehow be

stretched to encompass the conduct alleged here, such an exercise of jurisdiction would be

unconstitutional. The Complaint should be dismissed pursuant to Rule 12(b)(2).

II THIS COURT SHOULD DISMISS THE COMPLAINT UNDER THE DOCTRINE OF FORUM NON CONVENIENS.

“The principle of forum non conveniens is simply that a Court may resist imposition upon

its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf

Oil Corp. v. Gilbert, 220 U.S. 501, 507 (1947). “A district court has the inherent power to dismiss an

action under the doctrine of forum non conveniens when it appears that a foreign forum would be more

convenient”. Genpharm Inc. v. Pliva-Lachema, 361 F. Supp. 2d 49, 59 (E.D.N.Y. 2005).

In Iragorri v, United Techs. Corp., 274 F.3d 65 (2d Cir. 2001) (en banc) (“Iragorri”), the

Second Circuit clarified the criteria to be considered in weighing the respective convenience of a


10

foreign forum as opposed to one located in the United States. The first level of inquiry is to

establish the level of deference to be given the Plaintiff’s choice of forum. Thereafter, the Court

must determine whether there is an adequate alternative forum and, if so, must then balance

various private and public interest factors to weigh which of the two fora is the more convenient

one. Id. at 73; accord, Rigroup LLC v. Trefonisco Mgmt., 559 Fed. Appx. 58, 59 (2d Cir. 2014)

(“At step one, a court determines the degree of deference properly accorded the plaintiff's choice

of forum. At step two, it considers whether the alternative forum proposed by the defendants is

adequate to adjudicate the parties' dispute. Finally, at step three, a court balances the private and

public interests implicated in the choice of forum.”).

A. This Court Should Not Afford Plaintiff the Degree of Deference Often Given to Plaintiff’s Choice of Forum Because None of the Operative Facts Occurred in the State of New York.

As a general rule, a plaintiff’s choice to bring suit in the forum in which she resides is

entitled to more deference that the choice of a nonresident plaintiff. Iragorri, 274 F.3d at 73.

"However, many courts have held that where none of the operative facts of the action occurred in

the plaintiff's chosen forum, the choice is afforded less weight." Wenzel v. Marriott Int'l, Inc.,

No. 13 Civ. 8335, 2014 U.S. Dist. LEXIS 166062, at *3 (S.D.N.Y. November 17, 2014), aff’d,

629 Fed. Appx. 122 (2d Cir. 2015). “[W]e are led to understand that this deference is not

dispositive and that it may be overcome. Notwithstanding the deference, dismissal should not be

automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance

of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for

the defendant or the court, dismissal is proper”. Iragorri at 71 (internal quotation marks and

citation omitted), quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 n.23 (1981).


11

Here, there is no connection between this litigation and the State of New York. All the

operative events alleged in the Complaint took place in the DR; all the witnesses and evidence is

there, and the Defendant is domiciled there. Further, as shown by her Complaint, Plaintiff has

family, and substantial ties in that forum, and visits there frequently.

It is respectfully submitted that under the guidance provided by the Supreme Court and

by the Second Circuit, the instant action is a perfect example of a case in which Plaintiff’s choice

of the forum in which she resides should not stand in the way of dismissal in favor of a decidedly

more convenient forum.

B. The DR is an Adequate Alternative Forum.

An alternative forum is adequate if (a) the defendant is subject to suit there and (b) the

forum permits the subject matter of the dispute to be litigated on the merits. See Yung v. Lee,

160 Fed. Appx. 37 (2d Cir. 2005), citing, Pollux Holding Ltd. v. Chase Manhattan Bank, 329

F.3d 64, 75 (2d Cir. 2003).

Submitted on this motion is the October 12, 2016 Declaration of José Benjamín

Rodríguez Carpio, (the “Carpio Decl.”), an attorney who has practiced in the DR for 23 years,

served as a Magistrate Judge for 15 years, and is thoroughly familiar with the workings of the

Dominican Courts. Mr. Carpio establishes that as a Dominican citizen and domiciliary,

Defendant is subject to suit there. Carpio Decl. ¶4. Moreover, the claims made by Plaintiff

seeking damages for the alleged transmission of STDs would be entertained on the merits in the

Dominican Courts. Id. ¶¶5-6. Accordingly, the DR indisputably offers an adequate alternative

forum.

Indeed, Courts have expressly so held. See, e.g., Corporacion Tim v. Schumacher, 418 F.

Supp. 2d 529 (S.D.N.Y. 2006) (breach of fiduciary duty and other torts); Banco Mercantil, S.A.


12

v. Arencibia, 927 F. Supp. 565, 568 (D.P.R. 1996) (contract dispute); Dominguez v. Pyrgia

Shipping Corp., No. 98 Civ. 529, 1999 U.S. Dist. LEXIS 9799, at *4 (E.D. La. June 28, 1999)

(personal injury case)

C. The Balance of Private and Public Interest Factors Weigh Decisively in Favor of the Alternative Forum.

As noted by the Second Circuit, once the Court has determined that the alternative forum

is adequate, it then addresses the private and public interest factors set forth in Gulf Oil Corp. v.

Gilbert, supra, 220 U.S. at 507 (1947), Iragorri, 274 F.3d at 73. Public factors to be assessed

include:

The administrative difficulties flowing from court congestion, the ‘local interest in having localized controversies decided at home’, the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action,; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.

Piper Aircraft, 454 U.S. at 241, n.6. The public interest factors include “the relative ease of

access to sources of proof,” the availability of compulsory service of unwilling witnesses, the

cost of obtaining attendance of willing witnesses, “and all other practical problems that make

trial of a case easy, expeditious and inexpensive.” Id.

1. The Public Interest Considerations Strongly Favor Dismissal.

All Claims are Governed by Dominican Law.

The need to apply foreign law weighs heavily in favor of dismissal. See, e,g., Scottish

Air Intn’l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224 (2d Cir. 1996). Here, the

alleged torts all occurred within the DR during a three-day period in February of 2016. It is clear


13

that even if adjudicated here, this Court should resolve the claims under Dominican law. As this

Court has observed:

For tort cases, New York courts apply an "interest analysis" which focuses on applying the law of the state with the greatest interest in the litigation and is determined by evaluating the "facts or contacts which . . . relate to the purpose of the particular law in conflict.". This requires two separate inquiries: (1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law is to regulate conduct or allocate loss." As to the second prong, where the law in conflict is classified as conduct-regulating and "the parties are domiciled in different states, the locus of the tort will almost always be determinative . . . .

O'Brien v. Marriot Int'l, Inc., No. 04 Civ. 3369, 2006 U.S. Dist. LEXIS 44446 at*4 (E.D.N.Y.

June 29, 2006) (internal quotation marks and citations omitted), citing, Krock v. Lipsay, 97 F.3d

640, 646 (2d Cir. 1996); Schultz v. Boy Scouts of Amer., Inc., 65 N.Y.2d 189, 197, (1985);

Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 521 (1994). See also, Cooney v. Osgood

Machinery, Inc., 81 N.Y.2d 66 (1993); In Re: Air Crash Near Clarence Center, New York, On

February 12, 2009, 798 F. Supp. 2d 481 (E.D.N.Y. 2011) (collecting cases).

Here, if this case were to proceed, this Court would be burdened with determining

whether there are conflicts between the substantive laws governing the conduct alleged in the

Complaint and, if there are, would be constrained to apply Dominican law. “In diversity

jurisdiction cases, federal courts must look to the choice of law rules of the forum state. In New

York the first question to resolve in determining whether to undertake a choice of law analysis is

whether there is an actual conflict of laws”. Deutsch v. Novartis Pharmaceuticals Corp., 23 F.

Supp. 2d 521 (E.D.N.Y. 2010) (Spatt, J.) (internal quotation marks and citations omitted).

Clearly this factor alone strongly suggest that this case should be dismissed.

No New York Nexus


14

As is plain from the face of the Complaint, New York has no connection to this case. All

the alleged events occurred in the DR and were alleged to have been performed by a Dominican

citizen and domiciliary. The DR has a far greater interest in addressing the conduct alleged to be

wrongful than does the State of New York.

Administrative Burden

This case would unnecessarily burden the valuable and limited resources of the Eastern

District of New York. The Complaint contains a jury demand, and, unless dismissed, this Court

and local jurors would all need to divert time and resources to resolve claims that have no

relationship with this State.

2. The Private Interests Also Weigh Strongly in Favor of Dismissal.

First, as in In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, (2d Cir.), cert.

denied, 484 U.S. 871, (1987), the vast majority of witnesses and evidence bearing on the facts

surrounding the alleged torts occurred in the DR. See Complaint ¶¶23-33.

Second, none of the potential witnesses is subject to compulsory process. The DR is far

beyond the 100-mile subpoena power exercised by this Court. See Fed. R. Civ. P. 45(c)(1)(A).

Third, the cost of bringing willing witnesses from the DR to New York would be

prohibitive. Beyond the travel costs, the witnesses will require interpreters in order to present

live testimony before this Court and for depositions. Conversely, there is no comparable burden

in the DR. Plaintiff has not identified a single material witness living in New York other than

Plaintiff.

In sum, Plaintiff’s choice of forum is entitled to relatively little deference; the DR

represents an adequate, alternative forum, and the private and public interest factors all weigh

decidedly in favor of dismissal.


15

III THE COURT SHOULD DISMISS THE COMPLAINT UNDER Fed. R. Civ. P. 12(b)(6) and 9(b).

A. Legal Standard for a Motion Under Fed. R. Civ. P. 12(b)(6).

A properly pled complaint must provide "a short and plain statement of the claim

showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“Twombly”). While Rule 8 does not require detailed factual

allegations, it demands more than "labels and conclusions or a formulaic recitation of the

elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted)

(“Iqbal”). "Factual allegations must be enough to raise a right to relief above the speculative

level." Twombly, 550 U.S. at 555. Thus, "[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter to state a claim for relief that is plausible on its face." Iqbal, 556

U.S. at 678 (internal quotation marks and citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts apply. First, a

district court must accept as true all well-pled factual allegations in the complaint; however, legal

conclusions or mere recitals of the elements of a cause of action, supported only by conclusory

statements, are not entitled to the assumption of truth. Id. at 678. Second, a district court must

consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at

679. A claim is facially plausible only when a plaintiff's complaint alleges facts that allow the

court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at

678. Further, where the complaint does not permit the court to infer more than the mere

possibility of misconduct, the complaint has "alleged—but it has not show[n]—that the pleader

is entitled to relief." Id. at 679 (internal quotation marks omitted). Thus, when claims in a

complaint have not crossed the line from conceivable to plausible, the complaint must be

dismissed. Twombly, 550 U.S. at 570. (“Threadbare recitals of the elements of a cause of


https://casetext.com/case/bell-atl-corp-v-twombly#p555

https://casetext.com/case/ashcroft-v-iqbal-4#p678





16

action, supported by mere conclusory statements, do not suffice.”). “Nor does a complaint

suffice if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at

678 (internal quotations omitted). While when ruling on a motion to dismiss, courts are required

to accept all factual allegations as true, they “are not bound to accept as true a legal conclusion

couched as a factual allegation.” Id., quoting Twombly, 550 U.S. at 555); see also Sinaltrainal v.

Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (“[U]nwarranted deductions of fact in a

complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's

allegations.”).

B. This Court Should Dismiss Plaintiff's First Claim Alleging Battery Because

Plaintiff Alleged She Consented to Sex with Defendant.

Plaintiff's first claim, alleging battery, fails because New York law does not recognize

informed consent in connection with battery claims outside of the context of medical

malpractice. Rather, "[i]n order to maintain a cause of action for battery, plaintiff must provide

evidence that the sexual contact with defendant, as opposed to the consequences of such contact,

was not consensual." Welter v. Feigenbaum, No. 127969-2002, 2013 N.Y. Misc. LEXIS 176 at

*3 (Sup. Ct. New York Co. January 16, 2013). Here, as in Welter, this is something which

Plaintiff, "by her own admission ... failed to do." Id.

Plaintiff avers throughout her Complaint that she consented to sex with Defendant. See,

e.g., Complaint ¶¶ 29, 31-32. She then attempts to vitiate this consent by arguing that she did not

give “informed” consent. Id. ¶56. This ruse fails, however, because New York Courts firmly

reject the doctrine of informed consent in cases alleging battery in the context of the alleged

transmission of STDs, instead limiting this doctrine solely to batteries arising from alleged

medical malpractice.


17

Welter, supra, is virtually on all fours with the instant case. There, the Court granted

summary judgment on a five-count complaint, including battery, where plaintiff alleged the

defendant transmitted herpes to her during unprotected sex. In granting summary judgment on

the battery claim, the court reasoned:

In order to recover damages for battery, the plaintiff must prove that there was bodily contact, that the contact was non-consensual, and that the defendant intended to make the contact. In the case at bar plaintiff admitted that she consented to have sexual contact with defendant, but asserts that she did not consent to acquire a sexually transmitted disease. While plaintiff's urging is tantamount to an argument applying the concept of informed consent to her battery claim, this Court finds no precedent for the application of the doctrine of informed consent as it relates to a battery claim outside of the context of medical malpractice."

Welter, supra at *2 (internal quotation marks and citations omitted), citing Laurie Marie M. v.

Jeffrey T.M., 159 A.D.2d 52 (2nd Dept. 1990), Maines v. Croner Val Fire Dept., 50 N.Y.2d 535

(1980).

Coopersmith v. Gold, 172 A.D.2d 982 (1st Dept. 1991) is also instructive. There, as here,

the defendant sought damages for battery in connection with the transmission of an STD

sustained during consensual sexual intercourse. The Court summarily rejected the battery claim,

reasoning:

Plaintiff claims, nevertheless, that her consent [to intercourse] was invalid because it was fraudulently induced. While plaintiff denominates her cause of action as one for rape and battery, she has, in reality, pleaded a cause of action for seduction which contemplates any conduct on the part of a man, without the use of force, in wrongfully inducing a woman to surrender to his sexual desires (see, Tuck v Tuck, 18 AD2d 101, 104, rev’d 14 NY2d 341). That cause of action has been abolished in this State (Civil Rights Law § 80-a).

Id. at *6


18

Here, just as in Welter and Coopersmith, Plaintiff cannot possibly maintain a claim for

battery because she admits on the face of her pleading the sex was consensual. Consequently,

this Court should dismiss the battery claim.

C. This Court Should Dismiss All of Plaintiff's Remaining Five Claims Because

She Failed to Allege Facts – as Opposed to Legal Conclusions – Even Suggesting Actual or Constructive Knowledge, Essential Elements of Each Cause of Action, and Therefore She Failed to State a Claim Under the Supreme Court’s Decisions in Twombly and Iqbal and their Progeny.

All of Plaintiff's remaining claims require that she allege facts, not just conclusions,

supporting her claim that Defendant knew or should have known that he had an STD. Here,

despite the clear mandates of Twombly and Iqbal, Plaintiff nowhere alleges even a single fact, as

opposed to a conclusion, which even suggests that Defendant knew or should have known that he

had an STD. Accordingly, she failed to state a viable claim.

The Supreme Court has made clear that "the tenet that a Court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions". Iqbal, 556 U.S. at

662, 678. In Twombly, the Court held that the allegation that the defendants "entered into a

contract, combination or conspiracy to prevent competitive entry...and had agreed not to compete

with one another" was a "legal conclusion " and so not entitled to the assumption of truth.

Twombly, 550 U.S. at 555-556. Two years later, the Court in Iqbal addressed the exact issue

presented here, relating to a conclusory allegation of knowledge, holding that the allegation that

petitioners "knew of, condoned and willfully and maliciously agreed to" violate Iqbal's

constitutional rights "amount to nothing more than a 'formulaic recitation of the elements'" and,

therefore, must be disregarded Iqbal, 556 U.S at 681. "It is the conclusory nature of

respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to a

presumption of truth." Id. at 681.


19

Following Twombly and Iqbal, Courts consistently and uniformly dismissed claims

where, as here, allegations are limited to conclusory assertions that a defendant knew or should

have known of a situation. See, e.g., Franklin v. Curry, 738 F.3d 1246, 1250-1251 (11th Cir.

2013) (“[B]y alleging Appellants ‘knew or should have known’ of a risk, [the Plaintiff-Appellee]

has merely recited an element of a claim without providing the facts from which one could draw

such a conclusion.”); Milne v. Navigant Consulting, No. 08 Civ. 8964, 2009 U.S. Dist. LEXIS

112632 (S.D.N.Y. November 30, 2009) (retaliation claim implausible where no facts supporting

allegation that defendant was aware that plaintiff intended to file Title VII claim); Smith v.

District of Columbia, 674 F. Supp. 2d 209, 212 (D.D.C. 2009) (allegation defendant knew of

systemic problems with medical care in prison was conclusory); Dixon v Ford Motor

Company, No. 14 Civ. 6135, 2015 U.S. Dist. LEXIS 146263 (E.D.N.Y. September 30, 2015)

(court granted motion to dismiss as to certain claims based on allegations based on "knew or

should have known" insufficient as a matter of law). There are dozens of additional cases

standing for this exact proposition.

Here. as in Iqbal and Twombly, this Court should dismiss these five claims because

Plaintiff failed to allege a single fact, as opposed to a conclusion, supporting her claim that

Defendant knew or should have known that he had an STD.

D. Plaintiff Second Claim for Negligent Transmission of STDs Also Fails Because She Failed to Plead Facts Establishing a Duty.

This Court should dismiss Plaintiff's second claim, for negligent transmission of STDs,

because she failed to allege, other than in conclusory fashion, that Defendant knew that he had

sexual diseases, i.e., he had been tested for or had symptoms of an STD and therefore had a duty

to inform her that he had an STD.


20

It is settled law in New York that “[a]s in any negligence action, the plaintiff [claiming

that the defendant infected her with an [STD] must demonstrate that the defendant owed a duty

of care to the plaintiff that was breached and proximately caused the condition alleged. A duty

to disclose has been held to exist only where the defendant knew or should have known that he

or she had a communicable disease. Absent such knowledge, no duty exists.” Silver v.

Levittown Union Free Sch. Dist., 180 Misc. 2d 1015 (Sup. Ct. Nassau Co. 1999) (citations

omitted). See also, Doe v. Roe, 157 Misc. 2d 690, 693 (Just. Ct. Town of Haverstraw Rockland

Co. 1993) (“In the case at bar, if there were proof by a preponderance of the evidence that the

defendant knew she had Chlamydia when she engaged in sexual relations with the plaintiff, the

court might be persuaded to uphold plaintiff's cause of action in negligence”); Enders v. Enders,

912 A.2d 975 (Vt. Sup. Ct. 2006) (affirming dismissal of wife’s complaint for battery and

negligence in connection with transmission of STD) (collecting cases from various jurisdictions).

Here, Plaintiff failed to allege that Defendant owed her a duty and that he breached it

because she did not -- indeed she could not -- allege facts supporting her claim that he knew or

should have known that he had STDs.

E. Plaintiff Third Claim for Fraud Also Fails Because the Complaint Lacks the Requisite Particularity, and Relies Solely on “After the Fact” Alleged Misrepresentations.

To state a claim for fraud, Plaintiff must plead with particularity that there was a material

misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable

reliance by the Plaintiff, and damages. See, e.g., Eurycleia Partner, L.P. v. Seward & Kissel,

LLP, 12 N.Y.3d 553 (2009). Here, Plaintiff failed to plead facts supporting these elements of a

fraud claim with the requisite particularity. Fed. R. Civ. P. 9 (b) states that, in “alleging fraud or

mistake, a party must state with particularity the circumstances constituting fraud or mistake”.


http://www.leagle.com/cite/12%20N.Y.3d%20553

21

The Second Circuit applies a strict standard, requiring fraud complaints to allege facts

that lead to a “strong inference” that the defendant had the requisite state of mind. See, e.g., IKB

Int'l S.A. in Liquidation v. Bank of Am. Corp., 584 Fed. Appx. 26, 27-28 (2d Cir. 2014) (“We

have repeatedly required plaintiffs to plead the factual basis which gives rise to a strong

inference of fraudulent intent.”). The Court has explained its rationale for the imposition of this

requirement by observing that it is a reasonable way to prevent baseless fraud claims that can

damage a defendant’s public reputation. See Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.

1979) (establishing the strong inference test because “[i]t is reasonable to require that the

plaintiffs specifically plead” scienter); See also O’Brien v. Nat’l Property Analysts Partners,

936 F.2d 674, 676 (2d Cir. 1991) (same).

Again, the Complaint merely alleges, in boilerplate fashion, that Defendant “knew or

should have known” he had an STD. For the reasons stated in Section III (C), supra, this Court

should dismiss this Claim.

Further, the sole specific misstatements that Plaintiff alleges Defendant made to her to the

effect that he did not have STDs, were in the form of text messages sent on February 22 and

February 26, 2016, well after she claims she was infected. Consequently, she could not possibly

have relied upon these statements before having sex with Defendant and they cannot possibly

support her claim that she was fraudulently induced to have sex. Likewise, Plaintiff failed to

allege facts showing how that she was damaged by these alleged ex post facto representations.

Instead, she tries to tie them to her decision to have sex with Defendant – a factual impossibility.

F. Plaintiff’s Fourth Claim for Breach of Fiduciary Duty Fails Because She Failed to Plead Facts Showing that Her Relationship Was Characterized by Dominance and Control.


22

To establish that a defendant owes a fiduciary duty -- unless the relationship by its nature

gives rise to one, such as duties corporate officers owe to a corporation -- a party must establish

the following four elements: "(1) [t]he vulnerability of one party to the other which (2) results in

the empowerment of the stronger party by the weaker (3) which empowerment has been solicited

or accepted by the stronger party and (4) prevents the weaker party from effectively protecting

itself." Gates Technologies v Delphix Capital Markets, No. 12 Civ. 7075, 2013 U.S. Dist.

LEXIS 95368 at *22 (S.D.N.Y. July 9, 2013), citing, Atlantis Info. Tech.v. CA, Inc., 485 F. Supp.

2d 224, 231 (E.D.N.Y. 2007). Here, the facts do not even remotely suggest anything other than

consensual sex between two sexually active adults.

“A fiduciary relationship exists between two persons when one of them is under a

duty to act for or to give advice for the benefit of another upon matters within the scope of the

relation" Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community

Synagogue, 11 N.Y.3d 15, 21 (2008) (affirming dismissal of breach of fiduciary duty in

connection with a congregant’s entry into sexual relations with her Rabbi). “In undertaking

that determination, we have noted that two essential elements of a fiduciary relation are . . . de

facto control and dominance" Id. See also, Doe v. Roman Catholic Diocese of Rochester, 12

N.Y.3d 764, 766 (2009), (holding a cleric does not owe a fiduciary duty to a congregant in a

formal counseling relationship because “[t]he bare allegation that Jane Doe was "a vulnerable

congregant" is insufficient to establish that plaintiff was particularly susceptible to Father

DeBellis’s influence. Nor does the complaint provide any other allegations to show that the

parties had a relationship characterized by control and dominance.”)

Plaintiff’s claim for breach of fiduciary duty is fatally flawed and should be dismissed

because she did not – because she could not -- plead facts which even remotely suggest that there


23

was a relationship based on dominance and control.

G. This Court Should Dismiss Plaintiff’s Sixth Claim for Intentional Infliction of Emotional Distress Because She Failed to Allege Facts Showing (i) Extreme and Outrageous Conduct and (ii) Defendant Intended to Cause Severe Emotional Distress.

The elements of a claim for intentional infliction of emotional distress are:

(i) extreme and outrageous conduct, (ii) an intent to cause or reckless disregard of causing severe emotional distress, (iii) a causal connection between the conduct and the injury and (iv) the resultant severe emotional distress.

Howell v. New York Post Co., 81 N.Y. 2d 115, 121 (1993).

Here, Plaintiff s claim for intentional infliction of emotional distress fails for two

reasons: she failed to satisfy the legal standard that she plead “outrageous conduct" and she

did not allege that Defendant intended to transmit an S T D .

1. Plaintiff Failed to Allege Outrageous Conduct.

The New York Court of Appeals recently restated that it has never sustained a claim

for intentional infliction of emotional harm, because it had not been presented with a record

containing proof or allegations of conduct sufficiently outrageous to support the claim.

Chanko v American Broadcasting Cos. Inc. 27 N.Y.3d 46, 56 (2016) (internal quotations and

citations omitted) (“[Every one of the] "intentional infliction of emotional distress claims

considered by this Court. . . has failed because the alleged conduct was not sufficiently

outrageous". The Chanko Court further held:

Liability has been found only where the conduct has been 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 community.

* * *


24

Although these allegations facially address all of the required elements, they are not sufficient to support this cause of action because they do not rise to the level necessary to satisfy the outrageousness element – the element most susceptible to a determination as a matter of law - which is designed to filter out petty complaints and assure that the emotional distress is genuine

Id. at 57 (emphasis added).

Here, Plaintiff has failed to meet the heavy legal burden of pleading that the

alleged conduct is sufficiently outrageous as to give rise to liability.

2. Plaintiff Did Not Allege Defendant Intentionally Transmitted an STD.

Likewise, and as is evident from the Complaint, there is not a single fact pled which

even remotely suggests that Defendant intended to harm Plaintiff, and so Plaintiff has

failed to satisfy this element of the tort.

H. This Court Should Also Dismiss Plaintiff’s Fifth Claim for Negligent Infliction of Emotional Distress Because She Failed to Plead Facts Showing (i) Extreme and Outrageous Conduct and (ii) a Duty Owed to Plaintiff.

The Court should dismiss Plaintiff’s fifth claim, alleging negligent infliction of

emotional distress, for two reasons: failure to plead outrageous conduct and failure to

plead knowledge, thus creating a duty.

"Under New York law, the tort of negligent infliction of emotional distress has four

elements:( 1) breach of a duty owed to a plaintiff, which breach either unreasonably

endangered the plaintiff s physical safety or caused the plaintiff to fear for his or her physical

safety; (2) extreme and outrageous conduct; (3) a causal connection between the conduct and

the injury; and (4) severe emotional distress." Smith v. City of New York, No. 14 Civ.

4982, 2015 U.S. Dist. LEXIS 85224 at *6 (E.D.N.Y. June 30, 2015), quoting Francis v.


25

Kings Park Manor, Inc, 91 F. Supp. 3d 420, 434 (E.D.N.Y. 2015).

Here, as demonstrated in Section III (G) (1), supra, Plaintiff failed to plead

outrageous conduct. Further, as discussed in Section III (D), supra, for there to be a breach

of duty, an essential element of all negligence actions, Plaintiff was required but failed to plead

facts which, if true, would establish that Defendant knew or reasonably should have known

that he had an STD, and therefore owed a duty to her. Welter v. Feigenbaum, 2013 N.Y. Misc.

LEXIS 176 (Sup. Ct. New York Co. 2013). This Court should therefore dismiss this

claim because she failed to allege facts establishing knowledge.

CONCLUSION

For the reasons set forth above, it is respectfully submitted that the Complaint

should be dismissed pursuant to Fed. R. Civ. P. 12(2) for lack of jurisdiction or,

alternatively, pursuant to the doctrine of Forum Non Conveniens. In the alternative, the

Complaint should be dismissed under Rule 12(b)(6) for failure to state a legally

cognizable claim.

Dated: New York, New York October 17, 2016 /s/ Robert J. Lanza

Robert J. Lanza (RL4488) Richard C. Ebeling (RE1481) LANZA REICH & DANIEL, LLP Attorneys for Defendant

221 W. 37th Street-4th Floor New York, NY 10018 212-602-1160


robert j. lanza (rl4488) richard c. ebeling (re1481)...

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