Opinion
INDEX NO. 160630/2017
03-28-2019
JASON BOYCE, Plaintiff, v. BRUCE WEBER, JASON KANNER, SOUL ARTIST MANAGEMENT, LITTLE BEAR INC. Defendant.
NYSCEF DOC. NO. 58 PRESENT: HON. ALEXANDER M. TISCH Justice MOTION DATE 02/20/2019 MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 51, 52, 53, 54 were read on this motion to/for AMEND CAPTION/PLEADINGS.
Upon the foregoing papers, plaintiff moves, pursuant to CPLR Rule 3025 (b), for an order granting him leave to amend his complaint to include a claim under the Trafficking Victims Protection Act (TVPA) 18 USC § 1591.
BACKGROUND
The Complaint
The following allegations are presumed to be true for the purposes of the instant motion (see Mendelovitz v Cohen, 37 AD3d 670, 671 [2d Dept 2007]). In 2013, plaintiff Jason Boyce (plaintiff) signed a modeling contract with defendant Soul Artist Management (Soul Artist) (NYSCEF Doc. No. 2, [Complaint] ¶ 19). Defendant Jason Kanner (Kanner) oversaw all of Soul Artist's agents and was involved in booking jobs for plaintiff (id.). Per the terms of the contract, plaintiff was not allowed to obtain or seek modeling work on his own (id. at ¶ 20). Bruce Weber (Weber) is a prominent and powerful photographer known for jumpstarting the careers of male models (id. at ¶ 21) Weber does so in part, by casting the models in campaigns for which he is hired to shoot (id.). Defendant Little Bear Inc. (Little Bear) is a business that supports Weber's work by handling all of the casting (id. at ¶ 22) Little Bear is run by Weber's wife Nan Bush, although Weber still has managerial authority (id.).
Plaintiff alleges that on December 14, 2014, Kanner called him and told him to meet Weber at a jewelry store in Midtown Manhattan (id. at ¶ 23). Plaintiff knew that this was an important career opportunity and agreed to the meeting (id.). Plaintiff met with Weber and alleges that after a ten-minute conversation, Weber told him that he wanted to photograph him (id. at ¶ 24). Plaintiff then went and met with Kanner, who told him that Weber wanted to schedule a photoshoot with him for the next day (id. at ¶ 25). Kanner told plaintiff that "this is big for you...you have to nail this" (id.).
On December 15, 2014, the next day, plaintiff went to the offices of Little Bear for his photoshoot (Complaint at ¶ 26). Upon arrival, plaintiff was taken to a back room, which functioned as Weber's studio, and Weber closed the door behind them (id. at ¶ 27). Plaintiff and Weber were the only ones in the room (id.). Plaintiff alleges that once in the studio, he was subjected to a series of practices that were unlike any he had experienced before (id. at ¶ 28). A few minutes into the shoot Weber told plaintiff that he was "very tense" (id. at ¶ 30). He then pulled up a chair in front plaintiff and put his legs around plaintiff's (id.). Without seeking consent, Weber began rubbing oil on plaintiff's forehead, making him "extremely uncomfortable" (id. at ¶ 31). Weber then instructed plaintiff to remove his shirt, which plaintiff did (id. at ¶ 33). Weber approached plaintiff, placed Weber's hand on the plaintiff's chest, and told him to breathe (id. at ¶ 34). Weber then told plaintiff to "put your hands on me, wherever your energy tells you to go" (id.).
Plaintiff was unsure how to respond and placed his hand on Weber's chest (id. at ¶ 35). Weber guided plaintiff's hand down his chest and then moved his hand down plaintiff's chest (id. at ¶ 36). Weber then asked plaintiff to take off his pants, which plaintiff did because he knew he had to "nail" the photoshoot (id. at ¶ 37). Once plaintiff's pants were off, Weber said "I want you to decide to pull your underwear higher or lower" in an effort to expose his genitals (id. at ¶ 38). Plaintiff became increasingly uncomfortable and froze, at which point Weber told him to "relax" (id. at ¶ 38). Again, without consent, Weber took plaintiff's hands in his and placed them on the waistband of plaintiff's underwear (id. at ¶ 40). Weber placed his hands on top of plaintiff's and pulled down the plaintiff's underwear (id.). Weber then stepped back (id.).
Weber took a few more photographs and then instructed plaintiff to put his hands on himself and move them "wherever you feel your energy to" (Complaint at ¶ 42). Plaintiff placed his hands on his chest, face, and shoulders (id.). Weber then approached plaintiff and put his hands on plaintiff's (id. at ¶ 43). He then pulled the hands down and placed them over plaintiff's genitals (id.). Weber began moving his and plaintiff hands back and forth so that plaintiff was forced to rub his own genitals (id. at ¶ 44). Weber then took plaintiff's hands and placed them on Weber's trousers, over his own genitals (id.). Weber placed his fingers in plaintiff's mouth (id. at ¶ 45). Plaintiff opened his eyes out of shock and Weber told him to close his eyes and kept his fingers in plaintiff's mouth (id. at ¶ 45). Weber said "If you just had confidence, you'd go really far...How far do you want to make it? How ambitious are you?" (id.). Plaintiff did not respond or move (id.).
Weber then took his fingers back and freed plaintiff's hands (id. at ¶ 46). As he did so, he told plaintiff "You know what? Put your underwear on...I think we're done here" (id.). Plaintiff put on his underwear and proceeded to leave (id. at ¶ 47). As he was leaving, Weber instructed him to come back and close his eyes; plaintiff did as instructed (id.). Weber then grabbed plaintiff and kissed him on the lips (id.). Shocked and frightened, plaintiff pulled away (id.). Weber left (id.).
After plaintiff left the studio, he received a text message from Kanner asking how it went (id. at ¶ 48). Plaintiff replied that it was weird (id.). Approximately one week later, per Kanner's instruction, plaintiff sent Weber a follow up message to check in (id. at ¶ 49). Weber responded to the text message by using Facetime (id. at ¶ 50). Plaintiff answered and noticed that Weber was alone, with a drink (id. at ¶ 50). Weber asked plaintiff where he was, and once plaintiff responded he was in public, Weber hung up (id.).
Following the incident plaintiff returned home to California (id. at ¶ 51). Weber contacted plaintiff by Facetime a few more times over the following months, but plaintiff did not answer unless he was in public (id. at ¶ 52). In or around March of 2015, plaintiff returned to New York City for a new casting season (id. at ¶ 53). Without his knowledge, Soul Artist signed plaintiff up for a casting call with Weber (id. at ¶ 54). Plaintiff went, thinking he would not be there alone as it was a general casting call (id. at ¶ 55). Weber was not there for plaintiff's casting call (id.). Plaintiff began to feel intense dread at the thought of a modeling career in an industry where Weber was a top photographer (id. at ¶ 56). He worried that he would run into Weber and experienced anxiety, depression, and stress (id.). Plaintiff went home to California in the summer of 2015 and never returned to model in New York (id. at ¶ 57).
Procedural History
Plaintiff commenced the instant action on December 1, 2017 asserting sexual harassment and discrimination claims under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Plaintiff now moves for leave to amend the complaint and add a claim under 18 USC § 1591. Plaintiff maintains that the statute is applicable to Weber because he enticed, through false promises and force, plaintiff to engage in a commercial sex act. In support of his claim the proposed amended complaint contains allegations that, inter alia, Weber made false promises that he would assist plaintiff's professional career. The proposed amended complaint contends that the false promises were the assertions that Weber would assist plaintiff's professional career (NYSCEF Doc. No. 28, [Proposed Amended Complaint] ¶ 120). It further alleges that Weber's modus operandi was to use the photoshoot as a guise for sexually touching, fondling, and kissing plaintiff (id. at ¶ 118); and that Weber used his hands to force plaintiff to fondle his and Weber's genitals (id. at ¶ 130).
In opposition, defendants Weber and Little Bear argue that an amendment is improper because the claim is patently devoid of merit. Additionally, as the complaint was filed roughly a year ago, plaintiff's motion is untimely and should be denied because it would be highly prejudicial. For the following reasons, the motion is granted.
DISCUSSION
It is well settled that leave to amend a pleading shall be freely granted absence prejudice or surprise resulting from the delay (CPLR Rule 3025 [b]). Leave to amend will be denied where "the proposed amendment is palpably insufficient or patently devoid of merit" (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640 [2d Dept 2015]). "[M]ere lateness . . . is not a barrier to amendment. Lateness must be coupled with significant prejudice to [the opposing party]" (Seda v New York City Hous. Auth., 181 AD2d 469, 470 [1st Dept 1992]). Moreover, "[p]rejudice does not occur simply because a defendant ... has to expend additional time preparing its case" (Jacobson v McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654 [1st Dept 2009]). Here, plaintiff adequately demonstrated that the defendants would not be surprised or prejudiced by the amendment, as plaintiff seeks to add another cause of action premised upon the same facts (see Foley v City of New York, 43 AD3d 702 [1st Dept 2007]; Jacobson v Croman, 107 AD3d 644 [1st Dept 2013]). Defendants acknowledge that the facts in the new claim are based on the same factual allegations (NYSCEF Doc. No. 31 at 11).
"Once a prima facie basis for the amendment has been established, that should end the inquiry, even in the face of a rebuttal that might provide the ground for a subsequent motion for summary judgment" (Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363, 365-66 [1st Dept 2007]). Contrary to the opponents' contention, the claim is not patently devoid of merit.
The TVPA provides a private right of action for victims of sex trafficking (18 USC § 1595). To state a claim under 18 USC § 1591 as relevant here, plaintiff must plead facts showing that Weber "knowingly and in interstate or foreign commerce: (1) recruited, enticed, harbored, transported, provided, obtained, or maintained by any means a person; (2) 'knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud ... or any combination of such means will be used'; (3) 'to cause the person to engage in a commercial sex act'" (Noble v Weinstein, 335 F Supp 3d 504, 515 [SDNY 2018] quoting 18 USC §1591). In reviewing the merits of the claim, "the facts as alleged in the complaint [are] accepted as true, [and] the plaintiff is [given] the benefit of every possible favorable inference" (Mendelovitz, 37 AD3d at 671). In the instant matter, plaintiff sufficiently alleges a claim under Section 1591 (a) as against defendant Weber.
I. Recruited, enticed, obtained, or solicited
Section 1591 applies to whoever knowingly "recruits, entices" and "does not lend itself to restrictive interpretation" (United States v Jungers, 702 F3d 1066, 1070 [8th Cir 2013]; see United States v Todd, 627 F3d 329, 336 [9th Cir 2010]). The word "entice" in Section 1591(a) is given its plain and ordinary meaning and is defined as "to attract artfully or adroitly or by arousing hope or desire," and "[to] attract or tempt by offering pleasure or advantage" (see Noble, 335 F Supp 3d at 517). Here, defendants' opposition is largely predicated on the assertion that Weber could not have enticed plaintiff because it was plaintiff and his agents that sought out Weber. Plaintiff does not dispute that it was plaintiff's agent who initially emailed Weber stating that plaintiff was looking to set up a meeting. However, plaintiff alleges that following their initial meeting at the jewelry store, Weber told plaintiff that he would contact Kanner and set up a photoshoot. In fact, the entire purpose of that first meeting was for Weber to assess if he would photograph plaintiff. The invitation for a photoshoot was solely within Weber's discretion.
The invitation aroused "hope or desire" in both plaintiff and his agents that the photoshoot could launch plaintiff's career. Weber is a famed photographer, known for launching the careers of several male models and whose work includes shooting for many major brands (Complaint at ¶ 12; 21). Plaintiff alleges that it is well known in the modeling industry that "all Weber had to do was choose a particular model for a prominent campaign and that model would achieve immediate success" (Proposed Amended Complaint at ¶ 123). Plaintiff believed that this was his opportunity to achieve that success and commercial gain (id. at ¶ 120). Prior to the shoot, Kanner texted plaintiff stating that plaintiff "had to nail this" and that "this is big for you" (Complaint at ¶ 25). Such statements evidence the hope that both plaintiff and Kanner had prior to the shoot.
Weber further argues that there cannot have been enticement since plaintiff sent Weber a text message prior to the shoot joking about his "love handles" (NYSCEF Doc. No. 31 at 13). This argument is irrelevant to the issue of enticement. As the Court finds that it is plausible Weber enticed plaintiff, there is no need to address Weber's argument that because there was no enticement, the mens rea requirement is not met (see United States v Estrada-Tepal, 57 F Supp 3d 164 [EDNY 2014]) ("[the statute] requires only that a person have knowledge that he or she is committing any of the seven prohibited actions"). Accordingly, accepting the allegations as true and according plaintiff every favorable inference, plaintiff plausibly alleges that Weber enticed him.
II. Knowing that means of force, threats of force or fraud
Section 1591, as relevant here, requires that the enticement be done with knowledge, or reckless disregard, that means of force or fraud would be used to cause a commercial sex act. Plaintiff must show a "modus operandi associated with [the] above-described enticement" (Noble, 335 F Supp 3d at 518). "The knowledge required of the defendant is such that if things go as he has planned, force, fraud or coercion will be employed to cause his victim to engage in a commercial sex transaction" (United States v Todd, 627 F3d 329, 334 [9th Cir 2010]). Actual causation is not required to violate Section 1591, rather, a plaintiff must show that the means of fraud and force were designed to bring about the sex act (see United States v Alvarez, 601 Fed Appx 16 [2d Cir 2015]; see also United States v Maynes, 880 F3d 110 [4th Cir 20181: Noble, 335 F Supp 3d 504). Stated otherwise, any fraud or force must be the kind "that would be used to cause that person to engage in a commercial sex act" (Maynes, 880 F3d at 114).
In the instant matter, plaintiff plausibly alleges that Weber, from the onset, knew that he would employ fraud or force to cause plaintiff to engage in a commercial sex act. As previously discussed, Weber is a high-profile photographer known for launching the careers of several male models. An invitation to shoot with him is a career-changing opportunity, a fact that is supported by Kanner's text messages to plaintiff. Additionally, once the two were alone in the studio, Weber said to plaintiff that "if you just had confidence, you'd go really far...How far do you want to make it? How ambitious are you?" (Complaint at ¶ 45).
Defendants argue that such comments were not promises for value, but rather encouragements to get a good picture (NYSCEF Doc. No. 31 at 18). If observed in a vacuum, perhaps the comments might not be construed as promises. However, here, in addition to the fact that Weber is a prominent photographer known for launching a models' careers, plaintiff alleges that these comments were made while Weber had his fingers in plaintiff's mouth and had plaintiff's hands placed on Weber's genitals, albeit over the trousers. Thus, when viewed in its entirety, it is plausible that the comments were promises to aid plaintiff's career in exchange for engaging in a commercial sex act (see Noble, 335 F Supp 3d 504). Defendants' contention that the comments at bar are distinguishable from the promises made in Noble is unavailing. While not as numerous, this is the exact kind of promise that defendant made to the plaintiff in Noble, i.e. a lifechanging career opportunity (see id. [defendant allegedly promised plaintiff a film role, an interview with a modeling agency, and the promise that his production company would work with her]).
Lastly, Weber's statement regarding his company's previous rejection of plaintiff for having a "boxy face" leads to the inference that Weber had no intention of helping plaintiff's career when he asked plaintiff to test shoot (NYSCEF Doc. No. 31 at 14). Plaintiff having been previously rejected by Weber and Little Bear, suggests that Weber never planned on casting Weber for any of his jobs. This is coupled with the allegation that once plaintiff resisted the advances by Weber, he promptly ended the photoshoot and kicked plaintiff out, but not before kissing him (Complaint at ¶ 47). Like Noble, such behavior evidences "fraudulent intent and conscious behavior" (335 F Supp 3d at 518).
Plaintiff also alleges that Weber knowingly used means of force to cause plaintiff to engage in a commercial sex act. Such force includes the fondling of plaintiff's genitals under the guise of a breathing exercise (Proposed Amended Complaint at ¶ 127). Weber used his hand to force plaintiff's own hand down to both plaintiff and Weber's genitals (id. at ¶ 130). Plaintiff also alleges that Weber used force when he stuck his fingers in plaintiff's mouth and kissed him (id. at 132). While some practices, such as asking plaintiff to remove his shirt, are normal in the modeling context, the above-mentioned are not (Complaint at ¶ 27). Accordingly, plaintiff's amended complaint plausibly alleges Weber's use of fraud and force.
III. To cause a person to engage in a commercial sex act
Actual causation is not required to violate Section 1591; rather, a plaintiff must show that the means of fraud and force were designed to bring about the sex act (see United States v Alvarez, 601 Fed Appx 16 [2d Cir 20151; see also Maynes, 880 F3d 110; Noble, 335 F Supp 3d 504). Stated otherwise, any fraud must be the kind "that would be used to cause that person to engage in a commercial sex act" (Maynes, 880 F3d at 114). A commercial act is defined in Section 1591 (e)(3) as "any sex act, on account of which anything of value is given to or received by any person."
Here, Weber allegedly made the promise, implicitly at least, of career advancement to plaintiff, upon which the latter relied. Weber contends that his comments are not actionable because they were not promises. Instead, Weber argues that he was merely trying to boost plaintiff's confidence and get a good photograph, along the lines of telling a subject to "smile more" (NYSCEF Doc. No. 31 at 18). Whether that is true or not is not appropriate to decide in this motion.
With respect to the commercial sex act, the statute merely requires that "anything of value" is given to a person (18 USC § 1591 [e][3]). Similar to the plaintiff in Noble, the promise of career advancement for an aspiring male model "in and of itself carries value (335 F Supp 3d at 521). Defendants' argument that nothing of value was promised "does not reflect modern reality" (id.). In any event, there is no requirement that a commercial sex act actually occur. Rather, the crime is complete "when the defendant recruits, entices, etc., the victim with knowledge that the prohibited means will be used in the future to cause them to engage in commercial sex acts" (Maynes, 880 F3d at 114; see, e.g., United States v Willoughby, 742 F3d 229, 241 [6th Cir 2014]; United States v Garcia-Gonzalez, 714 F3d 306, 312 [5th Cir 2013]; United States v Brooks, 610 F3d 1186, 1197 n4 [9th Cir 2010]).
Accordingly, it is hereby
ORDERED that the plaintiff's motion for leave to amend the complaint is granted; and it is further
ORDERED that the amended complaint, in the form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action.
This constitutes the decision and order of the Court. 3/28/2019
DATE
/s/ _________
ALEXANDER M. TISCH, J.S.C.