Opinion
24-CV-0079 (GHW) (RFT)
03-28-2024
PETRA CHRISTINA BETER, Plaintiff, v. DUANE BAUGHMAN, et al., Defendants.
REPORT AND RECOMMENDATION
ROBYN F. TANOFSKY, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE:
Plaintiff began this action on November 20, 2023, by filing a summons and complaint in in New York Supreme Court, New York County, against Defendants Duane Baughman (“Baughman”), Edward Skyler (“Skyler”), and Douglas Schoen (“Schoen”), alleging, among other claims, intentional infliction of emotional distress, assault and battery, discrimination, and violation of the Gender Motivated Violence Protection Act and the Adult Survivors Act (“ASA”), as revived by the ASA. (See ECF 1-1, Compl.) The claims arise out of an alleged sexual assault of Plaintiff by Baughman in September of 2001; Baughman, who allegedly was Michael Bloomberg's top mayoral campaign strategist, had arranged for Plaintiff to photograph Bloomberg for the campaign.
On January 5, 2024, Baughman filed a notice of removal to this Court based on diversity jurisdiction. (See ECF 1.) On January 17, 2024, Your Honor referred this matter to me for General Pretrial Supervision and Dispositive Motions. (See ECF 3.) On February 2, 2024, Plaintiff filed a timely motion to remand to state court. (See ECF 12, Mot. To Remand.) Baughman filed an opposition to that motion. (See ECF 14, Opp. to Mot. To Remand.) Plaintiff filed a reply memorandum in further support of the motion to remand. (See ECF 18, Reply.) I held oral argument on February 23, 2024, and requested supplemental briefing, which Baughman provided on March 1, 2024, and which Plaintiff provided on March 5, 2024. (See ECF 20, Baughman's Supp. Memo.; ECF 21, Pl.'s Supp. Memo.)
Having carefully considered the parties' arguments and filings, for the reasons set forth below, I respectfully recommend that Plaintiff's motion to remand to state court be DENIED, provided that, by March 20, 2024, Defendant Baughman files an amended petition for removal that corrects the technical flaws in the original petition, which flaws are identified herein.
In this Circuit, a motion to remand pursuant to 28 U.S.C. § 1447 is considered a dispositive motion. See Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008) (“A motion to remand is not a ‘pretrial matter' under § 636(b)(1)(A) and a magistrate judge presented with such a motion should provide a report and recommendation to the district court.”).
Background
Plaintiff is a citizen of Massachusetts, while Baughman is a citizen of California, Skyler resides in New York, and Schoen resides in Florida. (See ECF 1, Not. of Removal ¶¶ 5-6; ECF 13, Response to Statement of Omitted Information in Not. of Removal.) As to the amount in controversy, Plaintiff alleges that she suffered “numerous damages as a result” of Defendants' conduct (ECF 1-1, Compl. ¶¶ 68, 73, 80, 84), and the Complaint demands “an amount which exceeds the jurisdiction of all lower courts for all damages including but not limited to compensatory damages, punitive damages, statutory damages, attorney's fees, costs, interest and all other damages,” (id. at 16 (“wherefore” clause after paragraph 80)).
On December 9, 2023, Plaintiff's process server served Duane Baughman at his residence, located at 2373 Washington Street, San Francisco, California 94115. (See ECF 12-5, Mot. To Remand Ex. E, Aff. of Service for Duane Baughman.) On January 5, 2024, at 10:15 am, Plaintiff's process server served Douglas Schoen at his residence, located at 350 S. Collier Blvd., Unit 308, Marco Island, Florida 34145. (See ECF 12-6, Mot. To Remand Ex. F, Aff. of Service for Douglas Schoen.) Baughman contends that Schoen has not been properly served, or alternatively that he had not been properly served at the time of removal. (See ECF 14, Opp. to Mot. To Remand at 12.) Baughman argues that Plaintiff merely described the process server's actions vis-a-vis Schoen without arguing that the method of service used was proper “under any cognizable legal theory.” He goes on to say that, while “Plaintiff's theory of proper service on Mr. Schoen is not clear, it is clear that Mr. Schoen was not ‘personally served'” because the process server checked the “other” box on the affidavit of service, rather than the box indicating personal service. (Id. at 12-13.)
In the affidavit of service, the process server states that a man opened the door at Schoen's residence and, on being asked his identity, said he was “Doug.” The process server told the individual he was being served with a summons and complaint, and the individual said he was “not interested” and quickly slammed the door at the same time the process server told the individual he was being “drop served.” (See ECF 12-6, Mot. To Remand Ex. F, Aff. of Service for Douglas Schoen.) “Drop service” is a colloquial term for serving someone who refuses to take the documents. The process server did not indicate that he mailed a copy of the papers to Schoen or filed proof of service on the docket. (See ECF 14, Opp. to Mot. To Remand at 12-13.)
On November 29, 2023, Plaintiff's process server attempted to serve Defendant Edward Skyler at his primary residence, located at 88 Lexington Avenue, Apt. 706, New York, NY 10016. (See ECF 12-2, Mot. To Remand Ex. B, Aff. of Service for Edward Skyler (“Skyler Service Aff.”).) The affidavit of service notes that the process server spoke to the doorman who “refused name” and “refused to allow” the process server up to Skyler's apartment. (Id.) The affidavit of service also states that the unnamed doorman “called tenant/recipient [Mr. Skyler] and was advised to accept the documents.” (Id.)
Upon receiving the affidavit of service from the process server, Plaintiff's counsel on January 3, 2024 mailed copies of the summons, complaint, and notice of electronic filing to Skyler via certified mail, return receipt requested; the documents were delivered and signed for on January 10, 2024. (See ECF 12-3, Mot. to Remand Ex. C, Aff. of Mailing to Edward Skyler.) Proof of service was filed on January 2, 2024. (See ECF 12-4, Mot. To Remand Ex. D, Timestamped Aff. of Service for Edward Skyler.) Plaintiff obtained an amended affidavit from the process server, who clarified that “doorman confirmed Edward Skyler resides here.” (ECF 12-7, Mot. To Remand Ex. G, Amended Aff. of Service for Edward Skyler.)
Baughman filed a notice of removal around 11:40 am on January 5, 2024, arguing that he did not need consent from Defendants Skyler and Schoen, because they had not been properly served at the time of removal. (ECF 1, Not. of Removal ¶¶ 8(a)-(c); see also CM/ECF Receipt for ECF 1.) The notice of removal also states that although Skyler is a citizen of New York State, and although 28 U.S.C. § 1441 bars removal of a case based on diversity of citizenship if a defendant “is a citizen of the State in which such action is brought,” that bar applies only when such a defendant has been “properly joined and served,” which Baughman contends is not the case here. (See ECF 1, Not. of Removal ¶¶ 8(a)-(c).)
The CM/ECF Docket provides a receipt for docket entries that contains the time of filing.
In Plaintiff's motion to remand, she argues that the forum-defendant rule precluded removal, since Skyler, a citizen of New York State, had been properly served at the time of removal; and that removal was improper for the additional reason that not all defendants had joined or consented to the removal. (See ECF 12, Mot. To Remand at 6-9.)
Legal Standard for Removal from State Court
“A civil action brought in state court may be removed to a federal district court only if it could have originally been commenced in federal court on either the basis of federal question jurisdiction or diversity jurisdiction.” Nix v. Office of Comm'r of Baseball, No. 17-CV-1241 (RJS), 2017 WL 2889503, at *3 (S.D.N.Y. July 6, 2017) (internal quotation marks and citation omitted); see also 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”). However, “[a] civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). “The statute plainly provides that an action may not be removed to federal court on the basis of diversity of citizenship once a home-state defendant has been ‘properly joined and served.'” Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705 (2d Cir. 2019) (quoting 28 U.S.C. § 1441(b)(2)).
The statute setting the procedure for removal states that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). Courts in the Second Circuit “have consistently interpreted the statute ‘as requiring that all defendants consent to removal within the statutory thirty-day period, a requirement known as the ‘rule of unanimity.'” Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012) (quoting Beatie & Osborn LLP v. Patriot Scientific Corp., 431 F.Supp.2d 367, 383 (S.D.N.Y. 2006)). As a result, non-removing defendants “must independently express their consent to removal,” Pietrangelo, 686 F.3d at 66, and so “[t]he failure of any defendant to provide its written consent within the thirty-day period constitutes a fatal procedural defect in the removal procedure and warrants a remand of the case.” In re Vill. of Kiryas Joel, N.Y., No. 11-CV-8494 (ER), 2012 WL 1059395, at *3 (S.D.N.Y. Mar. 29, 2012).
The party who removes bears the burden of showing that removal was proper. See California Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004); Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000). Under Second Circuit law, affidavits of service establish a prima facie case that service was carried out as described. See Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002). However, the Second Circuit has held that “[a] defendant's sworn denial of receipt of service . . . rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing.” Id. It then becomes the plaintiff's burden to prove it validly served each defendant. See Hudson Priv. LP v. Creative Wealth Media Fin. Corp., 629 F.Supp.3d 237, 245 (S.D.N.Y. 2022).
“In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994); see also In re Methyl Tertiary Butyl Ether (“MTBE” Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (“[O]ut of respect for the limited jurisdiction of the federal courts and the rights of states, we must resolve any doubts against removability.”).
“If a case is removed and the district court determines that it lacks subject jurisdiction over the matter, it must be remanded.” See 28 U.S.C. § 1447(c).
Analysis
I. The Notice of Removal Has Curable Defects Relating to Diversity Jurisdiction
The notice of removal has curable defects relating to diversity jurisdiction. Plaintiff does not raise this issue in connection with the motion to remand. However, it is my obligation to address this question sua sponte. “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. ” 28 U.S.C. § 1447(c). “This provision authorizes a district court to remand a case sua sponte at any time upon finding that it lacks subject matter jurisdiction.” Herlihy v. Hyatt Corp., No. 20-CV-10885 (MKV), 2022 WL 826151, at *3 (S.D.N.Y. Mar. 18, 2022) (citing Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 133 (2d Cir. 2006)).
A. The Parties' Citizenship
Baughman avers on information and belief that Plaintiff is a citizen of Massachusetts. (See ECF 1, Not. of Removal ¶ 5.) He is a citizen of California. (See ECF 13, Response to Statement of Omitted Information in Not. of Removal.) As to Defendants Schoen and Skyler, he merely quotes the Complaint, which says that Schoen resides in Florida and Skyler resides in New York. (See ECF 1, Not. of Removal ¶ 5.) In his Notice of Removal, he argues that Skyler should not be considered a citizen of New York for purposes of the forum-defendant rule, because the Complaint alleges only that Skyler resides in New York and does not say that he is a citizen of this State. (See id. ¶ 8(b).) But if he is contesting that the allegation in the Complaint that Skyler resides in New York is sufficient to establish Skyler's citizenship, then there is nothing before me to allow me to assess Skyler's citizenship (and by the same logic, Schoen's citizenship). Under those circumstances, I cannot conclude that Baughman has established that Schoen and Skyer are citizens of States other than the Commonwealth of Massachusetts, as required for this Court to have diversity jurisdiction over this matter. See Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (holding that “a statement of the parties' residence is insufficient to establish their citizenship”); Mackason v. Diamond Fin. LLC, 347 F.Supp.2d 53, 55 (S.D.N.Y. 2004) (explaining that allegations of the plaintiffs' residences were insufficient to establish diversity jurisdiction).
This issue could, however, be remedied by an amendment of the petition for removal, even though the 30-day period for addressing a substantive problem with a petition for removal has lapsed. A petition for removal may be amended freely within the statutory 30-day period calculated from the date of service. While a defendant generally “may not amend its notice of removal after this thirty-day period to remedy a substantive defect in the petition,” Briarpatch Ltd. v. Pate, 81 F.Supp.2d 509, 517 (S.D.N.Y. 2000), a defendant may amend its notice of removal more than 30 days after receiving the complaint if the amendment is technical in nature. See, e.g., Lombardi v. Paige, No. 00-CV-2605 (RCC), 2001 WL 303831, at *2 (S.D.N.Y. Mar. 28, 2001) (concluding that defects in removal petition's allegations of citizenship were “technicalities” and approving late amendment); CBS Inc. v. Snyder, 762 F.Supp. 71, 73 (S.D.N.Y. 1991) (distinguishing between “fundamental” defects, which cannot be cured with a late amendment, and “technical” defects, which can, and holding that an amendment to clarify citizenship of the parties that was not inconsistent with the original petition of removal was technical and permissible).
“[M]ost cases indicate that [after 30 days have elapsed] defendants may amend the notice only to set out more specifically the grounds for removal that already have been stated, albeit imperfectly, in the original notice”: a defendant “may correct an imperfect statement of citizenship, state the previously articulated grounds more fully, or clarify the jurisdictional amount.” 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3733 (Rev. 4th ed. 2023). And including allegations in the petition for removal of the parties' “residency” as opposed to their “citizenship” is merely a technical defect that could be cured, even with an untimely amendment. See Dominguez v. Rogers, No. 16-CV-6888 (VSB), 2017 WL 3381894, at *4 (S.D.N.Y. Aug. 4, 2017) (holding that an allegation about residence rather than citizenship was merely technical and therefore permitting amendment); Fulfree v. Manchester, No. 95-CV-7723 (DC), 1996 WL 1997, at *2 (S.D.N.Y. Jan. 3, 1996) (same).
B. Amount in Controversy
“The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by plaintiff controls if the claim is apparently made in good faith.” Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 115 (2d Cir.2002); see also 28 U.S.C. § 1446(c)(2) (“If removal of a civil action is sought on the basis of [diversity jurisdiction], the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy . . . .”). However, the Complaint does not specify the amount in controversy; New York law prohibits a plaintiff in a personal injury case from pleading a specific monetary demand. See N.Y.C.P.L.R. § 3017(c).
The defendant in such cases may demand that the plaintiff set forth the total damages she is claiming within fifteen days of the request. See id.
Where a complaint is inconclusive as to the damages amount because state law “does not permit demand for a specific sum,” removal is appropriate based on the amount in controversy stated in the removal petition, 28 U.S.C. § 1446(c)(2)(A)(ii), “if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the [jurisdictional threshold].” 28 U.S.C. § 1446(c)(2)(B). While a defendant need not “prove the amount in controversy to an absolute certainty,” he has “the burden of proving that it appears to a reasonable probability that the claim is in excess of the statutory jurisdictional amount.” Villafana v. So, No. 13-CV-0180 (KNF), 2013 WL 2367792, at *1 (S.D.N.Y. May 29, 2013) (quoting Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000) (internal quotation marks omitted). “[I]f the jurisdictional amount is not clearly alleged in the plaintiff's complaint, and the defendants' notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff's action from state court.” Villafana, 2013 WL 2367792, at *1.
I conclude that the notice of removal does not demonstrate by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount. Baughman argues that “it appears to a reasonable probability that the amount in controversy exceeds $75,000” based on, among other considerations, “the jurisdictional limits of the lower courts of the State of New York,” since the Complaint demands “an amount which exceeds the jurisdiction of all lower courts for all damages” and on the serious nature of the claims against Defendants and the significant harm allegedly suffered by Plaintiff. (ECF 1, Not. of Removal ¶ 7 (quoting ECF 1-1, Compl. at 16 (wherefore clause after paragraph 80)).) But the reference to the jurisdictional amounts of the lower New York State Courts is unavailing, since the jurisdictional threshold for New York civil courts is $50,000. See, e.g., N.Y. City Civ. Ct. Act § 202 (limiting New York City Civil Court's jurisdiction to matters seeking less than $50,000). The reference to the jurisdictional amounts of the lower New York State Courts suggests that the amount in controversy is more than $50,000, but it does not demonstrate that more than $75,000 is at stake. See Ma v. United Rentals (N. Am.), Inc., No. 23-CV-1503 (KHP), 2023 WL 4102684, at *3 (S.D.N.Y. June 21, 2023) (finding that an allegation that the plaintiff alleged damages “in an amount which exceeds the monetary jurisdictional limits of all Courts having jurisdiction save the Supreme Court of New York” was insufficient to demonstrate that the amount in controversy exceeded the jurisdictional amount for federal diversity jurisdiction because at the time the lower civil courts of New York State could hear cases seeking to recover only up to $25,000).
And while it is true that Plaintiff alleges that she suffered “numerous damages” and asserts eleven causes of action against the three Defendants (ECF 1-1, Compl. ¶¶ 68, 73, 80, 84), those allegations do not place a value on her damages. “Allegations of injury themselves, without any statement of damages, also do[ ] not give rise to a finding that the amount in controversy exceeds $75,000.” Ma, 2023 WL 4102684, at *3; see also Doe v. Warner, 659 F.Supp.3d 293, (S.D.N.Y. 2023) (collecting cases remanding “for failure to establish amount in controversy, even where permanent, serious, and fatal injuries were alleged because allegations did not particularize extent of injuries or damages”); Baisley v. Slade Indus., Inc., No. 22-CV-0116 (PMH), 2022 WL 92778, at *2 (S.D.N.Y. Jan. 10, 2022) (holding that allegations in the complaint that the plaintiff had sustained serious injuries “to and about his/her head, limbs, spine and body,” which required “medical care and treatment,” and left her “unable to attend to . . . [her] usual duties” were insufficient to demonstrate that the amount in controversy exceeded the jurisdictional amount). The defendants wanting to remove in these cases were not without recourse: Section 3017(c) of the Civil Practice Law and Rules (“CPLR”) provides a mechanism for making a supplemental demand that the plaintiff specify the damages amount. See Cadmen v. CVS Albany, L.L.C., No. 22-CV-0046 (PKC) (SJB), 2022 WL 138056, at *2 n.2 (E.D.N.Y. Jan. 14, 2022) (finding that removal was “premature” when the defendant had failed before removing to make a supplemental demand under CPLR § 3017(c) for the damages amount).
However, a late amendment of the removal petition could cure the failure to demonstrate that the amount in controversy exceeds the jurisdictional amount, see 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3733. At oral argument, counsel for Plaintiff conceded that the Complaint seeks more than $75,000 in damages. That concession provides Baughman with a basis for amending the petition to cure its failure to adequately allege that the case satisfies the jurisdictional amount for diversity jurisdiction. See Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010) (holding that, when the plaintiff represented to the defendant that “the amount in controversy was satisfied at the time of removal,” the plaintiff “effectively conceded that amount in controversy” exceeded the jurisdictional amount and that, “[w]ith nothing in the record suggesting [her] assertions were made in bad faith or that the true value of the claim was to a ‘legal certainty' less than the jurisdiction threshold,” she could not subsequently change her position on the amount in controversy to “deprive the district court of jurisdiction that it properly possessed”).
II. The Forum-Defendant Rule Is Not a Barrier to Removal
If Your Honor agrees with the analysis above and concludes that Baughman can remedy the defects in the removal petition relating to diversity jurisdiction through a late amendment, the forum-defendant rule would not present a barrier to removal. The Second Circuit has held that the forum-defendant rule does not prevent removal of a state court action on diversity grounds before a forum-state defendant has been properly served. See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 704-07 (2d Cir. 2019). Baughman has demonstrated that removal was proper notwithstanding the forum-defendant rule because service on the forum-state defendant (Skyler) was not completed at the time of removal.
A. Service on Skyler's Doorman Could Lead to Effective Service
CPLR § 308 provides, as relevant here, that service on a natural person may be made by “delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . . .” CPLR § 308(2) further provides that: (a) the “mailing” of a summons shall occur within 20 days of the hand delivery of the complaint; (b) “proof of service shall be filed with the clerk of court designated in the summons” within 20 days “of either such delivery or mailing, whichever is effected later”; and (c) “service shall be complete ten days after such filing” of proof of service. CPLR § 308(2). This type of service is known as substituted service.
Service that is left with a doorman, followed by a mailing, is valid where access to the building is prohibited. See F.I. duPont, Glore, Forgan & Co. v. Chen, 41 N.Y.2d 794, 797-98 (1977); see also Rosenberg v. Haddad, 617 N.Y.S.2d 330 (1st Dep't 1994). The affidavit of service for Skyler states that on November 29, 2023, the doorman “refused to allow” the process server up to Skyler's apartment, and that the doorman “called tenant/recipient [Mr. Skyler] and was advised to accept the documents.” (See ECF 1-2, Not. of Removal Ex. B, Skyler Service Affidavit.) Under these circumstances, Plaintiff successfully took the first step toward serving Skyler.
B. Plaintiff Failed To Timely Send Skyler a Copy of the Summons and Complaint
Plaintiff did not, however, mail a copy of the summons and complaint to Skyler within 20 days of the hand delivery of the summons and complaint, as required by CPLR § 308(2). Plaintiff concedes that she did not mail the summons and complaint to Skyler until January 3, 2024, which is 35 days after the summons and complaint were left with the doorman. (See ECF 1-3, Not. of Removal Ex. C, Affidavit of Mailing for Edward Skyler.)
Plaintiff's motion to remand does not address whether the delay in sending Skyler a copy of the complaint and summons means that service on Skyer was not properly effected at the time of removal. Instead, Plaintiff argues that the delay in filing proof of service was a procedural irregularity, not a jurisdictional defect, and therefore that the delay in filing proof of service did not cause service to have been ineffective as of the date of removal. However, filing proof of service can be accomplished only after service is complete. And service under CPLR § 308(2) includes mailing the summons and complaint to the defendant within 20 days of leaving the summons and complaint with a suitable person at the defendant's home. See Vincent C. Alexander, Supplementary Practice Commentaries, N.Y.C.P.L.R. 308 (McKinney 2023) (explaining that “the two service acts of CPLR 308(2) - the delivery and the mailing of process - must be performed within 20 days of each other, and this 20-day requirement has been held to be jurisdictional, citing In re Estate of Perlman v. Kelley, 108 N.Y.S.3d 28, 31 (2d Dep't 2019), for the proposition that failure to timely mail the summons and complaint meant that the court lacked personal jurisdiction over the defendant because “the mailing of process . . . more than 20 days after the delivery to a person of suitable age and discretion” was “not a ‘mere technicality' that the court could overlook,” but rather was “a critical component of the noticegiving function of process” and therefore was “jurisdictional”)); see also Williams v. MTA Bus Co., 203 N.Y.S.3d 90, 91 (1st Dep't 2024) (concluding that a late mailing under CPLR § 308(2) was a jurisdictional defect).
As the court went on to explain in Estate of Perlman, the statutory requirements of service are treated as jurisdictional when they seek to diminish the possibility of failed notice of a legal proceeding, and "[i]f the delivery and mailing required by [CPLR § 308(2)] are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond . . . .” 108 N.Y.S.3d at 31. Thus, Plaintiff's tardy mailing of the complaint and summons to Skyler means that she has not yet properly served him under the New York's substituted service provision, CPLR § 308(2).
C. Plaintiff Failed To Timely File Proof of Service for Sklyer
Even if Plaintiff had timely sent the summons and complaint to Skyler, she did not file proof of service until January 2, 2024, meaning that service was not complete until January 12, 2024, after the case was removed to this Court. Her citations to Reporter Co., Inc. v. Tomicki, 401 N.Y.S.2d 322, 323 (3d Dep't 1978), and Lancaster v Kindor, 471 N.Y.S.2d 573, 578 (1st Dep't 1984), for the proposition that “[t]he purpose of requiring the filing of proof of service pertains to the time within which the defendant must answer and does not relate to the jurisdiction acquired by the court upon service of the summons” (ECF 12, Mot. To Remand at 7) are unavailing. Lancaster stands for the proposition that, where the defendant was served with the summons and complaint before the statute of limitations had run, but proof of service was filed outside the limitations period, the court nevertheless had personal jurisdiction over the defendant, because an action is commenced with delivery of the summons, and the plaintiff could request a nunc pro tunc extension of time to file proof of service. See Lancaster, 471 N.Y.S.2d at 578. And Reporter Company affirmed the lower court's refusal to dismiss a complaint for late filing of proof of service, because an extension could be granted nunc pro tunc. See Reporter Co., 401 N.Y.S.2d at 323. Neither of these cases arose in the context of removal from state court, which requires analysis of when service is complete (as opposed to when an action was started). There are many cases in this District holding that, for purposes of determining whether removal based on diversity is timely or otherwise appropriate, “substituted service in New York is only ‘complete' upon the expiration of ten days after proof of service is filed.” E.g., Creative Kids Far E. Inc. v. Griffin, No. 15-CV-06027 (NSR), 2016 WL 8710479, at *2 (S.D.N.Y. Jan. 22, 2016). Those cases teach that, “prior to the filing of proof of service, service under § 308(2) is not ‘complete,' and is therefore not ‘proper' within the meaning of § 1441(b),” which governs removal based on diversity of citizenship. Stop & Shop Supermarket Co. LLC v. Goldsmith, No. 10-CV-3052 (KMK), 2011 WL 1236121, at *3-6 (S.D.N.Y. Mar. 31, 2011); see also Lewis v. Permanent Mission of Cote D'Ivoire to United Nations, No. 19-CV-1375 (GBD), 2019 WL 4198943, at *2 (S.D.N.Y. Aug. 7, 2019); cf. C.Q. v. Est. of Rockefeller, No. 20-CV-2205 (VSB), 2020 WL 5658702, at *3 (S.D.N.Y. Sept. 23, 2020) (holding that “ Gibbons - which interpreted 28 U.S.C. § 1441(b)(2)'s ‘properly joined and served' language to incorporate state service of process law - applies to the identical ‘properly joined and served' language in 28 U.S.C. § 1446(b)(2)(A),” which codifies the procedures for removing civil actions).
This caselaw make clear that even if Skyler has been properly served, such service was not complete until ten days after proof of service was filed, which was January 12, 2024 - after Baughman removed the case to this Court. Accordingly, Baughman's removal was proper notwithstanding the forum-defendant rule.
III. Remand Is Not Required Due to Lack of Unanimity on the Notice of Removal
The law in this Circuit is that, absent an exception to the rule of unanimity, nonremoving defendants “must independently express their consent to removal,” Pietrangelo, 686 F.3d at 66, and “[t]he failure of any defendant to provide its written consent within the thirtyday period constitutes a fatal procedural defect in the removal procedure and warrants a remand of the case.” Kiryas Joel, 2012 WL 1059395, at *3. Baughman did not secure consent of Skyler or Schoen. I analyze below whether an exception to the rule of unanimity is applicable under the circumstances of this case.
A. The Exception to the Rule of Unanimity for Defendants
Who Have Not Been Served Applies to Skyler but Does Not Apply to Schoen
One exception to the rule of unanimity that permits a defendant to forgo securing consent from a co-defendant is for a co-defendant who “‘has not been served with service of process at the time the removal petition is filed.” L.Y.E. Diamonds Ltd. v. Gemological Inst. of America, Inc., No. 16-CV-3766 (VSB), 2017 WL 1207839, at *4 (S.D.N.Y. Mar. 31, 2017). As discussed above, Skyler had not been properly served at the time of removal, and so there was no need to request his consent to removal. However, the same cannot be said for Schoen.
The affidavit from the process server said that Schoen was served at 10:15 am on January 5, 2024, a little more than an hour before Baughman filed his notice of removal. (See ECF 12-6, Mot. To Remand Ex. F, Affidavit of Service for Douglas Schoen; see also CM/ECF Receipt for ECF 1). While the process server checked to box for “other” service, his written description of what he did to serve Schoen states that the man who opened the door at Schoen's residence identified himself as “Doug”; that the individual, on being told the process server was there to serve him with a summons and complaint, said he was “not interested”; and that the individual then quickly slammed the door at the same time the process server told the him he was being “drop served.” (See ECF 12-6, Mot. To Remand Ex. F, Aff. of Service for Douglas Schoen.)
When, as apparently happened here, a defendant tries to avoid being served, “it suffices to leave the summons in his general vicinity.” Jane Doe I v. Karadzic, No. 93-CV-0878 (PKL), 1996 WL 194298, at *1-2 (S.D.N.Y. Apr. 22, 1996) (quoting McDonald v. Ames Supply Co., Inc., 238 N.E.2d 726, 728 (N.Y. 1969) (internal quotation marks omitted). In Karadzic, the Court quoted Siegel's New York Practice 2d, to explain that:
At oral argument, Baughman took the position that Florida law governed the service on Schoen, but he has abandoned that position in his supplemental briefing (see ECF 20, Baughman's Supp. Memo. at 1 n.1).
All the process server has to do is tender the summons to the defendant . . . . The normal reaction of anyone to whom a paper is tendered, except in certain parts of Manhattan, is to extend a hand to receive it. But if the defendant does not do that, the process server need only leave the summons on a table or other item nearby, or on the floor in front of the defendant (or behind him as he walks away).Karadzic, 1996 WL 194298, at *2 (quoting Siegel, New York Practice 2d, § 66, at 82 (1991) and holding that the process server had been diligent in trying to deliver the process to the defendant by approaching him, offering the papers to him, and, after the papers were knocked to the floor, leaving them near the defendant and calling out “you've been served”).
Schoen's process server was similarly diligent in bringing the summons and complaint to Schoen. As a result, the service on Schoen was proper, and qualifies as personal service, notwithstanding that the process server checked the box for “other” service (presumably because Schoen refused to take the papers the process server tried to hand him). Thus, the cases cited by Baughman for the proposition that “methods of service other than personal service generally require the filing of proof of service to render such service proper for purposes of the rule of unanimity” (ECF 14, Opp. to Mot. To Remand at 13 (emphasis supplied)) are inapposite.
Because Plaintiff has demonstrated that Schoen was served personally before Baughman filed the notice of removal, the exception to the rule of unanimity for a codefendant who has not been served would not apply.
Absent the applicability of another exception to the rule of unanimity, Schoen's consent was required even though Baughman was unaware at the time of removal that Schoen had been served. Williams v. Beemiller, Inc., No. 05-CV-836S (WJS) (LGF), 2009 WL 1812819 (W.D.N.Y. June 25, 2009), is instructive on this point. In Williams, the removing defendants argued that they did not need to obtain the consent of their codefendants, because they lacked actual or constructive notice that the non-removing codefendants had been served: no proof of service had been filed when the removing defendants checked at the Erie County Clerk's office the day before removing the case to federal court. See Williams, 2009 WL 1812819, at *6. As the Court in Williams explained:
In an action involving multiple defendants and sought to be removed upon diversity of citizenship, the relevant inquiry in determining whether removal was proper is not whether the defendants seeking to remove the action had actual or constructive notice of service of process on the other served defendants but, rather, whether the other defendants had in fact been served.Id. A removing defendant's ignorance about service on a co-defendant is “irrelevant,” since the codefendant was obligated either to timely file a removal petition or join the one filed by the removing defendant. Tate v. Mercedes-Benz USA, Inc., 151 F.Supp.2d 222, 225 (N.D.N.Y. 2001). That “the operation of this rule requires the Court to hold [the non-removing defendant's] late consent against [the removing defendant] is simply a function of the fact that the carefully crafted mandates of the removal statute are interpreted strictly in order to balance a plaintiff's right to select its forum against the need to promote unanimity among defendants.” Id.
Baughman argues that requiring a defendant to seek consent of a codefendant before the plaintiff has filed proof of service on the codefendant would lead to improper gamesmanship:
It cannot be the case that Mr. Baughman was required to seek the consent of a non-removing defendant that he had no way of knowing Plaintiff had even attempted to serve. A contrary ruling would incentivize plaintiffs facing removal to conceal the fact that non-removing defendants had been served.(ECF 14, Opp. to Mot. To Remand at 13.) This argument might be more persuasive were it not for the requirement that federal courts construe the removal statute narrowly and resolve “any doubts against removability.” Lupo, 28 F.3d at 274 (2d Cir. 1994). Additionally, Baughman is conjuring a parade of horribles based on the implausible premise that a plaintiff could successfully hide from one defendant whether a codefendant has been served. A plaintiff has no way of preventing a defendant from learning a codefendant's service status if the defendant simply asks the codefendant before filing a notice of removal. The caption identifies all the defendants. Baughman could have reached out to Schoen to determine whether Schoen had been served before Baughman filed the notice of removal. Baughman did not do so. He gambled on the fact that Schoen had not yet been served, and he lost. It turns out that Schoen was served around an hour before Baughman filed the notice of removal. As a result, the exception to the rule of unanimity for a codefendant who was not yet served is inapplicable here.
B. The Exception to the Rule of Unanimity for Nominal Defendants Applies to Schoen
Baughman argues that the rule of unanimity does not require remand in this matter because of a second exception to that rule for “nominal defendants,” whose consent is not needed for removal. (ECF 14, Opp. to Mot. To Remand at 14 (citing Zerafa v. Montefiore Hosp. Housing Co., Inc., 403 F.Supp.2d 320, 328 (S.D.N.Y. 2005)).) In this context, a nominal defendant is one for whom there is no legally cognizable theory of liability based on the allegations in the complaint. See Zerafa, 403 F.Supp.2d at 327-28. The removing party bears the burden of demonstrating by clear and convincing evidence that a defendant qualifies as nominal. See Lucas v. Verizon Commc'ns, Inc., No. 20-CV-5542 (AJN), 2021 WL 1226889, at *5 (S.D.N.Y. Mar. 31, 2021). Plaintiff brings claims against Schoen for negligent infliction of emotional distress (“NIED”), for aiding and abetting sex discrimination and sexual harassment, for retaliation, and for aiding and abetting the alleged sexual assault. (See ECF 21, Pl.'s Supp. Memo at 1.) I address below Baughman's argument that Schoen is a nominal defendant because all claims against Schoen would be time barred and because Plaintiff fails to state any claims against Schoen. For the reasons set out herein, I conclude that Baughman has met his significant burden of demonstrating that Schoen is a nominal defendant.
Because I conclude that Skyler had not been properly served at the time of removal, his consent to removal is not required under the rule of unanimity, L.Y.E. Diamonds, 2017 WL 1207839, at *4, and so I do not address the alternative theory that Skyler's consent is not required under the exception for nominal defendants.
1. The Timeliness of Plaintiff's Claims Against Schoen
All of Plaintiff's claims against Schoen would be time barred, unless they were revived by the ASA, which revives, for a window of time, certain otherwise time-barred claims, as described below.
The limitations periods for Plaintiff's claims against Schoen have long since passed. See AB ex rel. EF v. Rhinebeck Cent. Sch. Dist., 361 F.Supp.2d 312, 317 (S.D.N.Y. 2005) (three-year limitations period for NIED claim); Kornmann v. City of New York Bus. Integrity Comm., 467 F.Supp.3d 54, 60 (E.D.N.Y. 2020) (three-year limitations period for discrimination and retaliation claims under the New York State and New York City Human Rights Laws); Canosa v. Ziff, No. 18-CV-4115 (PAE), 2019 WL 498865, at *12 (S.D.N.Y. Jan. 28, 2019) (one-year statute of limitations for intentional tort applies to claim of aiding and abetting sexual assault).
The ASA applies to “every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years of age or older.” CPLR § 214-j. Baughman argues that Plaintiff fails to allege any conduct by Schoen that constitutes a sexual offense under the penal law. (See ECF 20, Baughman's Supp. Memo. at 5.) Plaintiff counters that the ASA revives her claim against Schoen for aiding and abetting Baughman's alleged sexual assault. (See ECF 21, Pl.'s Supp. Memo. at 1-2.) By the same logic, she can rely on Baughman's alleged sexual assault to support a conclusion that the ASA would revive her other claims against Schoen if 1) Baughman's alleged treatment of Plaintiff would constitute a sexual offense under the relevant penal law and 2) the ASA revives claims against one party (here Schoen) that are related to a sexual offense under the relevant penal law by another party (here Baughman).
Baughman's behavior as alleged in the Complaint would constitute an offense under the relevant penal law. See Morrison v. Scotia Cap. (USA) Inc., No. 21-CV-1859 (SHS), 2023 WL 8307930, at *3 (S.D.N.Y. Dec. 1, 2023) (describing the low threshold for acts sufficient to constitute forcible touching under N.Y. Penal Law § 130.52); People v. Guaman, 22 N.Y.3d 678, 684 (N.Y. 2014) (discussing the requirements of the misdemeanor of forcible touching).
With regard to whether the ASA revives claims against Schoen predicated on a sexual offense under the relevant penal law by Baughman, Plaintiff argues that the reference to “any party” for injuries caused by conduct that qualifies as a sexual offense means that the ASA revives claims against one person predicated on a sexual offense by another person. (See ECF 21, Pl.'s Memo. at 2.) Plaintiff cites one case, PB-36 Doe v. Niagara Falls City Sch. Dist., 152 N.Y.S.3d 242, 245 (Sup. Ct. Niagra Cty. 2021), in which the court accepted that the otherwise time-barred claims against the school district for negligent hiring and related claims were revived by the New York's Child Victims Act, which has substantially similar language to the ASA, based on alleged sexual abuse of the plaintiff by a teacher in the district. Other New York State courts have reached the same conclusion. See, e.g., Forbes v. Poly Prep Country Day Sch., 198 N.Y.S.3d 147, 149 (2d Dep't 2023). I conclude that the ASA revives Plaintiff's claims against Schoen.
2. Plaintiff Fails To State a Claim Against Schoen
Plaintiff claims that the Complaint alleges that Schoen “assisted Mr. Baughman in committing the sexual assault by pressuring Ms. Beter to stay quiet about it, threatening her employment if she reported it, and attempting to cover it up.” (ECF 18, Reply at 4.) This is not an entirely accurate summary of the relevant allegations in the Complaint. However, the Complaint does allege that Schoen, who had introduced Plaintiff to Baughman, did so knowing that Baughman had a history of improperly touching women, and that Schoen told Plaintiff not to tell anyone about the alleged sexual assault because she wanted to work for Bloomberg. (See ECF 1-1, Compl. ¶ 38.)
Baughman originally argued that Plaintiff fails to allege that Schoen “participated in this alleged assault or otherwise took any adverse actions against Plaintiff as a result thereof” and that Schoen's status as a defendant “is at best[ ] legally and factually tenuous.” (ECF 14, Opp. to Mot. To Remand at 14.) This fell short of an argument that there is no legally cognizable claim against Schoen based on the allegations in the Complaint. However, in his supplemental briefing, Baughman addressed in more detail the substance of Plaintiff's claims against Schoen. (See generally ECF 20, Baughman's Supp. Memo.) As set forth below, Baughman has shown that the allegations in the Complaint cannot support any of Plaintiff's claims against Schoen under any legally cognizable legal theory.
a. Negligent Infliction of Emotional Distress
Baughman demonstrates that Plaintiff has no possible claim against Schoen for NIED. To state a claim for NIED under New York law, a plaintiff must allege “(1) extreme and outrageous conduct, (2) a causal connection between the conduct and the injury, and (3) severe emotional distress.” Truman v. Brown, 434 F.Supp.3d 100, 122 (S.D.N.Y. 2020) (internal quotation marks and citation omitted). In addition, a plaintiff must plead “facts making out one of three theories: (1) a bystander theory, (2) a direct duty theory, or (3) a special circumstances theory.” Id. at 122-23 (internal quotation marks and citation omitted). The bystander theory requires injury from witnessing death or serious injury of a family member, and the special circumstances theory is limited to being negligently informed of one's own terminal illness or the death of a family member. See id.
The only theory of NIED that could conceivably apply to Schoen's alleged conduct is the “direct duty” theory, which requires a plaintiff to allege “an emotional injury from defendant's breach of a duty which unreasonably endangered her own physical safety.” Id. at 123 (internal quotation marks and citation omitted). The direct duty “must be specific to the plaintiff, not some amorphous, free-floating duty to society.” Id. Courts in this Circuit have not hesitated to dismiss NIED claims in the absence of an allegation of that the defendant owed the plaintiff a direct duty. See, e.g., Mortise v. U.S., 102 F.3d. 693, 696 (2d Cir. 1996) (dismissing NIED claim because, “while [the defendant] may have had a generalized duty to prevent unreasonable risks of harm to passers-by, this duty was not specific to [the plaintiff]”); Wahlstrom v. Metro-North Commuter R.R. Co., 89 F.Supp.2d 506, 531 (S.D.N.Y. 2000) (dismissing NIED claim because the plaintiff failed to allege any special duty owed to her by [the defendant] other than the duty to obey the law); Kojak v. Jenkins, No. 98-CV-4412 (RPP), 1999 WL 244098, at *9 (S.D.N.Y. Apr. 26, 1999) (dismissing claim of NIED where the plaintiff failed to allege a special duty owed to her by the defendant); Drankwater v. Miller, 830 F.Supp. 188, 190 n.5 (S.D.N.Y. 1993) (same).
Plaintiff has not alleged any facts suggesting that Schoen owed her a such a duty. She alleges that Schoen was a friend - not a fiduciary or someone else in a relationship of confidence with her. (See ECF 1-1, Compl. ¶¶ 9-12.) And she does not allege that Schoen was present during the assault, so he could not have intervened and therefore had no duty to do so.
Plaintiff has no possible NIED claim against Schoen for the additional reason that the claim requires allegations of conduct “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.” Goldstein v. Mass. Mut. Life Ins. Co., 875 N.Y.S.2d 53, 55 (1st Dep't 2009); see also McCollum v. Baldwin, No. 22-CV-7328 (ER), 2023 WL 5392684, at *10 (S.D.N.Y. Aug. 22, 2023) (explaining that there is an extremely high standard for pleading extreme and outrageous conduct). Plaintiff's description of Schoen's behavior fails to clear this high bar.
Plaintiff alleges that Schoen introduced her to Baughman in the hope of getting her a photography engagement for the Bloomberg campaign, even though he knew that Baughman was a sexual predator; warned Baughman not to touch her; expressed anger about Baughman's behavior when Plaintiff told Schoen that Baughman had assaulted her; and advised her on the potential consequences of disclosing the alleged assault. (See ECF 1-1, Compl. ¶¶ 9-16, 36-38.) This conduct does not rise to the level of “extreme and outrageous.” Truman, 434 F.Supp.3d at 121-22 (finding that plaintiff's allegation that defendant manipulated her vulnerabilities was not extreme and outrageous).
b. Discrimination and Retaliation
Baughman also demonstrates that Plaintiff has no possible claims against Schoen for discrimination and retaliation (or aiding and abetting discrimination and retaliation) under any cognizable legal theory pursuant to the New York State Human Rights Law (“NYSHRL”) or the New York City Human Rights Laws (“NYCHRL”), because she has not adequately alleged that Schoen or Baughman was her employer. (See ECF 20, Baughman Supp. Memo. at 9-10.) Plaintiff does not even try to allege that she was employed by Schoen; instead, she claims that “Defendants” hired her with Schoen's “assistance.” (ECF 21, Pl.'s Supp. Memo. at 2.) And her allegation that Baughman was her employer is wholly conclusory.
Plaintiff does not address Baughman's argument that the version of the employment discrimination laws in effect at the time of the alleged incident required an employment relationship; besides her conclusory assertion that she was an employee, she notes (presumably in the alternative) that the current versions of the NYSHRL and the NYCHRL cover independent contractors as well as employees. (See id.)
At the time of the alleged incident, “[a]n essential element of a claim under the NYSHRL or the NYCHRL [was] the existence of an ‘employer-employee relationship.'” McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, 80-81 (S.D.N.Y. 2020). Although these statutes were amended in 2019 and 2020, respectively, to cover other persons, including independent contractors, neither amendment applies retroactively. See Franklin v. Whole Foods Mkt. Grp., 2022 WL 256460, at *3, n.4 (S.D.N.Y. Jan. 26, 2022). Plaintiff therefore cannot maintain a claim against Schoen under the NYSHRL or the NYCHRL. See Weerahandi v. Am. Statistical Case Ass'n, No. 14-CV-7688 (AT), 2015 WL 5821634, at *8 (S.D.N.Y. Sept. 30, 2015) (dismissing plaintiff's NYSHRL and NYCHRL claims because plaintiff “failed to allege the requisite employment relationship between himself and [the defendant]”); Wang v. Phoenix Satellite Television US, Inc., 976 F.Supp.2d 527, 537 (S.D.N.Y. 2013) (same under the NYCHRL).
c. Aiding and Abetting Sexual Assault
Plaintiff also has no conceivable claim against Schoen for aiding and abetting Baughman's alleged sexual assault. The elements of a claim for aiding and abetting sexual assault and battery under New York law are (1) the existence of the underlying assault; (2) the defendant's actual knowledge of the underlying assault; and (3) the defendant's substantial assistance in carrying out the underlying assault. See Doe 7015 v. Elektra Ent. Grp. Inc., No. 21-CV-6868 (JPC), 2023 WL 2744102, at *4 (S.D.N.Y. Mar. 31, 2023). In addition, aiding and abetting:
requires the defendant to know or intend that his conduct will substantially assist in its commission in order to be liable for aiding and abetting it. Oakley [v. MSG Networks, No. 17-CV-6903 (RJS)], 2021 WL 5180229, at *8 n.3 [(S.D.N.Y. Nov. 8, 2021)] (“An aiding-and-abetting claim requires demonstrating that a defendant knowingly and substantially assisted in a wrongful act . . . ."); Naughright [v. Weiss,] 826 F.Supp.2d [676,] 691 [(S.D.N.Y. 2011)] (requiring “the defendant's knowing and substantial assistance in the principal violation"); Kirschner v. Bennett, 648 F.Supp.2d 525, 544 (S.D.N.Y. 2009) (“[T]he Trustee must show that the defendants knowingly aided the insiders in converting the customers' funds . . . ."); IDX Cap., LLC v. Phoenix Partners Grp., 922 N.Y.S.2d 304, 307 (App. Div. 2011), aff'd, 970 N.E.2d 864 (N.Y. 2012) (dismissing a claim for aiding and abetting when the plaintiff's allegations were “clearly insufficient to draw an inference that [the defendants] took ‘common action for a common purpose by common agreement or understanding . . . from which common responsibility derives'" (ellipsis in original) (quoting Goldstein v. Siegel, 244 N.Y.S.2d 378, 382 (App. Div. 1963))); Scollo [v. Nunez], 874 N.Y.S.2d 380, at *2 [(App. Div. 2009)] (framing the dispositive question as “whether the appellants knowingly provided substantial assistance in furtherance of the alleged battery"); Nat. Westminster Bank USA v. Weksel, 511 N.Y.S.2d 626, 630 (App. Div. 1987) (explaining that allegations in support of a claim for aiding and abetting must show what the defendant “can be said to have done with the intention of advancing the [tort's] commission").Elektra Ent.Grp., 2023 WL 2744102, at *4-5 (dismissing claim for aiding and abetting sexual assault because, among other reasons, the defendants did not intend their actions to aid the perpetrator in committing the sexual assault) (some alterations supplied).
Nothing in the Complaint supports a conclusion that Schoen knew that his conduct would help Baughman sexually assault Plaintiff or that Schoen intended to help Baughman sexually assault Plaintiff. To the contrary, Plaintiff's allegation that Schoen said he told Baughman not to touch her demonstrates that Schoen sought to prevent Baughman from sexually assaulting Plaintiff, not to help Baughman commit the alleged sexual assault. That in itself is sufficient to support a conclusion that Plaintiff cannot plead a claim against Schoen for aiding and abetting sexual assault.
This claim against Schoen fails for the additional reason that Plaintiff has not alleged that Schoen substantially assisted Baughman in sexually assaulting her. Substantial assistance requires that:
“a defendant must have committed some overt act, either by words or conduct, in furtherance of the” tort. McKiernan v. Vaccaro, 91 N.Y.S.3d 478, 481 (App. Div. 2019). Crucially, this rule requires the overt act in question to further the underlying tort itself - a in this case, Euringer's alleged sexual battery of Plaintiff. See also Bigio [v. Coca Cola Co.], 675 F.3d [163,] 173 [(2d Cir. 2012)] (interpreting New York law to “require that the defendant's conduct bear some contributory relation to the primary tort”); Oakley v. MSG Networks, No. 17 Civ. 6903 (RJS), 2021 WL 5180229, at *8 n.3 (S.D.N.Y. Nov. 8, 2021) (“An aiding-and-abetting claim requires demonstrating that a defendant knowingly and substantially assisted in a wrongful act . . . .”); Naughright v. Weiss, 826 F.Supp.2d 676, 691 (S.D.N.Y. 2011) (interpreting the “cause of action for aiding and abetting an assault and battery” to require “the defendant's knowing and substantial assistance in the principal violation”); Scollo v. Nunez, 874 N.Y.S.2d 380, at *2 (App. Div. 2009) (affirming a denial of summary judgment on the grounds that “there exist triable issues of fact as to whether the appellants knowingly provided substantial assistance in furtherance of the alleged battery”).Elektra Ent. Grp. Inc., 2023 WL 2744102, at *4. To qualify as “substantial,” the assistance provided “must be directed at the tort itself.” Id. (“[A]bsent overt encouragement of the offensive behavior, merely . . . giving tacit approval cannot be deemed aiding or abetting the assault.” (emphasis added in Elektra Ent. Grp.) (citing Shea v. Cornell Univ., 596 N.Y.S.2d 502, 503-04 (App. Div. 1993)). Neither introducing Plaintiff to Baughman - particularly since Schoen told Baughman not to touch Plaintiff - nor counseling her not to report the assault after the fact would qualify as substantially assisting Baughman with the sexual assault.
Conclusion
For the foregoing reasons, I respectfully recommend that Plaintiff's motion to remand (ECF 12) be DENIED, provided that, by March 20, 2024, Baughman files an amended petition for removal that corrects the defects in the original petition identified herein.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO REPORT AND RECOMMENDATION
The parties shall have fourteen days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure to this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
THE FAILURE TO OBJECT WITHIN FOURTEEN DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140 (1985).