Opinion
Case No. 2:16-cv-00210-KJD-VCF
06-21-2016
JOHN DOE, an individual, Plaintiff, v. DEBORAH MOZER, an individual; DOE individuals II-XI, and ROE CORPORATIONS I-X, inclusive, Defendants.
ORDER
Presently before the Court is Defendants' Motion to Dismiss for Failure to State a Claim (#4). Plaintiff filed a response in opposition (#24) to which Defendant replied (#26). Also before the Court is Plaintiff's Motion for Rule 11 Sanctions (#25) to which Defendant replied in opposition (#24).
Background
On or about February 4, 2015 Plaintiff and Defendant met on the online dating application Tinder. Initially, the party's relationship proceeded via text message. Eventually, Defendant invited Plaintiff to meet in person at her home. During their rendezvous Defendant performed oral sex upon Plaintiff. Plaintiff, who did not have a condom, asked Defendant to provide one. She then explained that she did not have a condom and that she could no longer get pregnant. See Compl. ¶ 15. Plaintiff responded he was a "germ phobe" and that "pregnancy was not the issue." Id. at ¶ 16. Defendant assured Plaintiff she was "disease free" and he was not to worry. Id. at ¶ 17. The parties then engaged in unprotected sexual intercourse. Approximately one week later, on or about February 18, 2015, the parties again met in person. Defendant again assured Plaintiff that she was "clean" and the parties engaged in unprotected sex. Id. at ¶ 24. Shortly thereafter, Defendant informed Plaintiff that she had herpes and had experienced a "breakout." Id. at ¶ 26. As a result, Plaintiff contracted herpes, a lifelong, incurable disease.
Tinder is a dating application available on cell phones that allows users to "swipe" through photos of other users. When two users "swipe" each other's photos Tinder recognizes the mutual interest and facilitates direct communication between the users.
Plaintiff then filed the present complaint including the following claims: First, battery; second, fraudulent misrepresentation; third, constructive fraud; fourth, willful misconduct; fifth, gross negligence, sixth, intentional infliction of emotional distress; and seventh, negligence per se. Defendant now moves to dismiss Plaintiff's claims for gross negligence, negligence per se, constructive fraud, battery, willful misconduct, and intentional infliction of emotional distress.
I. Legal Standard for Dismissal
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." 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). 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). "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 (citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. 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 when the 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 the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. Moreover, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party."In re StacElecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation omitted).
II. Analysis
A. Gross Negligence
Defendant moves to dismiss Plaintiff's gross negligence claim on the grounds that Defendant did not owe a duty to Plaintiff and that Plaintiff assumed the risk of contracting a sexually transmitted disease by engaging in unprotected sex. To state a claim, Plaintiff must allege sufficient facts for the following elements: (1) the existence of a duty of care, (2) breach, (3) legal causation, and (4) damages. Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009). Additionally, to state a claim for gross negligence, Plaintiff must state sufficient facts to allege Defendant "[failed] to exercise even a slight degree of care." Hart v. Kline, 116 P.2d 672, 674 (Nev. 1941) (citing Shaw v. Moore, 162 A. 373, 374 (Vt. 1932)).
Plaintiff alleges Defendant had a duty to warn sexual partners, including Plaintiff, of her herpes and take reasonable precautions to avoid spreading the infection. See Compl. ¶ 106-108. Plaintiff alleges that Defendant breached this duty by failing to disclose her herpes and engaging in unprotected sex. Plaintiff further alleges, not only did Defendant fail to warn or take reasonable prophylactic measures; she actively dissuaded Plaintiff from using a condom, ultimately causing Plaintiff's injury. Id. at ¶¶ 111, 115. The Court finds that Plaintiff has alleged sufficient facts to assert each element of negligence. The Court further finds that Defendant's active dissuasion from using prophylactic protection sufficiently alleges gross negligence.
Defendant further asks this Court to dismiss Plaintiff's gross negligence claim based on her claim that Plaintiff assumed the risk of contracting herpes because of his "high risk" sexual behavior. See Mot. to Dismiss (#4) at 5. To prove assumption of the risk, Defendant must show (1) Plaintiff voluntarily exposed himself to the risk, and (2) Plaintiff had actual knowledge of the risk assumed. Sierra Pac. Power Co., v. Anderson, 358 P.2d 892, 894 (Nev. 1961). Whether Plaintiff had actual knowledge of the risk assumed is a question of fact. Renaud v. 200 Convention Ctr. Ltd., 728 P.2d 445, 446 (Nev. 1986). The Court will not address Defendant's affirmative defense at this stage as doing so would require the court to convert the motion to dismiss into a motion for summary judgment. The Court finds Plaintiff alleged sufficient facts to assert his claim for gross negligence. Therefore, the Court denies Defendant's motion to dismiss Plaintiff's gross negligence claim.
B. Battery
Defendant moves to dismiss Plaintiff's battery claim. Defendant argues Plaintiff consented to the sexual contact and that consent eliminates Plaintiff's claim for battery. Battery is "any willful and unlawful use of force or violence upon the person of another." NRS 200.481. Nevada law does not differentiate between criminal and civil battery. The allegations of the complaint must plausibly allege Defendant willfully and unlawfully used force or violence upon Plaintiff.
Here, Plaintiff alleges Defendant "willfully and intentionally had sexual relations with Plaintiff, resulting in harmful contact." See Compl. ¶52. The Court finds Plaintiff's allegation to be a legal conclusion presented as fact. Moreover, the allegations in the complaint do not allege that Defendant's failure to disclose her herpes status constitutes force or violence under NRS 200.481. Therefore, the Court grants Defendant's motion to dismiss Plaintiff's claim for battery, but grants Plaintiff leave to amend the complaint to cure the deficiency.
C. Negligence Per Se
Defendant moves to dismiss Plaintiff's negligence per se claim because NRS 441A.180 does not allow for private right of action. The statute states:
1. A person who has a communicable disease in an infectious state shall not conduct himself or herself in any manner likely to expose others to the disease or engage in any occupation in which it is likely that the disease will be transmitted to others.NRS 441A.180. Whether a statute creates a private right of action is a matter of law. Allstate v. Thorpe, 170 P.3d 989, 993 (Nev. 2007). It is presumed the legislature did not intend to create a private right of action unless the statute expressly provides one. Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 104 (Nev. 2008). To overcome this presumption, Plaintiff must show the following factors balance in his favor: (1) Plaintiff was one of the class for whose special benefit the statute was enacted; (2) there was any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; and (3) the implication of such a remedy was consistent with the underlying purposes of the legislative [sch]eme. Id. at 101. (citing Sports Form, Inc. v. LeRoy's Horse & Sports Place, 823 P.2d 901, 902 (Nev. 1992)). The factors are not granted equal weight with the determinative factor being whether the legislature intended to create a private right of action. Id. The Court examines each of the factors in turn.
2. A health authority who has reason to believe that a person is in violation of subsection 1 shall issue a warning to that person, in writing, informing the person of the behavior which constitutes the violation and of the precautions that the person must take to avoid exposing others to the disease. The warning must be served upon the person by delivering a copy to him or her. .
3. A person who violates the provisions of subsection 1 after service upon him or her of a warning from a health authority is guilty of a misdemeanor.
1. Whether Plaintiff is a Member of the Special Class.
Plaintiff claims he is a member of the class NRS 441A.180 is designed to protect. See Compl. ¶ 141. Section one outlines the responsibilities of an individual with a communicable disease in an infectious state. NRS441A.180(1). Sections two and three outline the responsibility of health authorities to serve warnings upon those individuals and the available punishments for violation. That an individual would be benefitted by the statute's provisions is not sufficient to prove he is a member of a special class. Sports Form, Inc. v. LeRoy's Horse & Sports, 823 P.2d 901, 903 (Nev. 1992) (holding that although the "overwhelming purpose behind the [statute] is to protect the public," the public was not the special class the legislature intended to protect.).
Further, a statute that focuses on the persons regulated rather than the individuals protected creates no implication of a private right of action among any specific group. Baldonado, 194 P.3d at 960 n. 12. Here, the statute mainly focuses on the responsibility of those with an infectious disease and the responsibilities of the health authorities to warn and punish. It does not imply that any member of the general public is the class the statute intends to protect. Therefore, though this factor is the factor that most favors Plaintiff's position, it does not weigh heavily in his favor.
2. Legislative Intent to Create a Private Right of Action.
Plaintiff argues the legislature intended to allow private citizens to enforce NRS 441A.180 through private civil actions. The Court looks first to the plain unambiguous text of the statute to determine legislative intent. Richardson Const. Inc., v. Clark County School Dist., 156 P.3d 21, 23 (Nev. 2007). If the language of the statute is ambiguous the Court will then look to the overall statutory scheme and public policy behind the statute. Id. Sections two and three of the statute specifically outline the procedure for health authorities to warn individuals who violate section one and set forth the applicable punishment. NRS 441A.180(2-3). However, neither the statute nor the Plaintiff provides any indication the legislature intended a private right civil of action for affected citizens.
3. Consistent with the Overall Legislative Scheme.
Plaintiff argues that private enforcement through civil action is consistent with the overall legislative scheme. Courts are reluctant to allow private remedies when the statute imposes administrative enforcement as it can lead to inconsistent application. Baldonado, 194 P.3d at 102. Here, the statute explicitly creates an administrative remedy and omits any private right of action. Allowing private action could create an inconsistent application of the statute with some violators being found civilly liable and others being found guilty of a misdemeanor pursuant to the statute. Therefore, the Court finds private civil rights of action are inconsistent with the overall legislative scheme.
In conclusion, there is no indication the legislature intended NRS 441A.180 to be enforced through private civil actions. The Court finds Plaintiff has not met his burden to establish that any of the Sports Form factors counsel in favor of Plaintiff's private right of action. Therefore, the Court grants Defendant's motion to dismiss Plaintiff's negligence per se claim.
D. Constructive Fraud
Defendant moves to dismiss Plaintiff's constructive fraud claim on the grounds that a consensual sexual relationship does not create a confidential or fiduciary relationship between the parties. Constructive fraud "is characterized by the breach of duty arising out of a fiduciary or confidential relationship." Long v. Towne, 639 P.2d 528, 530 (Nev. 1982). A confidential relationship may arise out of business or social relations between parties regardless of whether a fiduciary relationship exists. Perry v. Jordan, 900 P.2d 335, 338 (Nev. 1995) (citing Kudokas v. Balkus, 26 Cal. App. 3d 744, 750 (Cal. Ct. App. 1972)). If a confidential relationship exists, the person "in whom the special trust is placed owes a duty to the other party similar to a fiduciary duty." Id. Whether the relationship here rises to the level of a confidential relationship is a question of fact. Hernandez v. Creative Concepts, Inc., 862 F. Supp. 2d 1073, 1091 (D. Nev. 2012). Plaintiff states sufficient facts from which a confidential relationship could be found. Therefore, the Court denies Defendant's motion to dismiss Plaintiff's claim of constructive fraud.
E. Willful Misconduct
Willful misconduct is "intentional wrongful conduct, done either with knowledge that serious injury to another will probably result, or with a wanton or reckless disregard of the possible results." Davies v. Butler, 602 P.2d 605, 609 (Nev. 1979). Plaintiff alleges Defendant knew she contracted herpes twenty years before their initial encounter. See Compl. ¶ 27. Further Plaintiff alleges the Defendant disregarded Plaintiff's physical health and willfully engaged in unprotected sex, which resulted in Plaintiff contracting herpes. Id. at ¶ 93-94. In sum, Plaintiff has pleaded sufficient facts to state a claim for willful misconduct.
F. Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional distress, Plaintiff must allege: (1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation." Dillard Dep't Stores, Inc. v. Beckwith, 989 P.2d 882, 886 (Nev. 1999) (citing Star v. Rabello, 625 P.2d 90, 92 (Nev. 1981)). Whether Defendant's actions are extreme or outrageous is a question of fact. See Shoen v. Amerco, 896 P.2d 469, 477 (Nev. 1995) (finding question regarding outrageousness of conduct to be a question of material fact). The allegations in the complaint sufficiently plead that Defendant intentionally acted in reckless disregard for causing Plaintiff emotional distress and that Defendant's actions were the actual and proximate cause of Plaintiff's distress. Therefore, Plaintiff sufficiently alleges facts to state a claim for intentional infliction of emotional distress.
III. Legal Standard for Rule 11 Sanctions
The Court may impose sanctions upon any attorney, law firm, or party who has presented any pleading, motion, or paper for a frivolous or improper purpose. Westlake N. Prop. Owners Ass'n v. City of Thousand Oaks, 915 F.2d 1301, 1305 (9th Cir. 1990); Fed. R. Civ. P. 11(b). A filing is frivolous if it is "both baseless and made without a reasonable and competent inquiry." Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc). Motions filed with the intent "to harass, cause unnecessarily delay, or needlessly increase the cost of litigation" are filed with improper purpose. Fed. R. Civ. P. 11(b)(1).
Plaintiff argues Defendant's Motion to Dismiss is frivolous and based on facts that cannot be true based upon the evidence currently available. However, in her Motion to Dismiss, Defendant properly stated her objections to Plaintiff's factual allegations. The motion was not "baseless" nor was it "made without reasonable competent inquiry." Understandably, the parties dispute certain factual allegations. However, before discovery has commenced the Court sees no reason to determine whether either party's recitation of the facts is correct.
Plaintiff further contends Defendant's failure to respect Plaintiff's privacy by use of the pseudonym "John Doe" constitutes an improper purpose and intent to harass the Plaintiff. While the Court recognizes Plaintiff's desire to remain anonymous, Defendant was under no obligation to honor Plaintiff's privacy preference before the Court ruled on Plaintiff's motion for leave to re-file under a fictitious name. Although it would have been considerate, the Court finds no legal authority nor do the parties provide any that suggest the Defendant is bound by Plaintiff's mere preference to remain anonymous. Therefore, Plaintiff's motion for sanctions is denied.
IV. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (#4) is GRANTED in part, and DENIED in part;
IT IS FURTHER ORDERED that Plaintiff may file an amended complaint within 14 days of the entry of this order if he wishes to correct the deficiencies noted by the Court.
IT IS FURTHER ORDERED that Plaintiff's Motion for Rule 11 Sanctions (#25) is HEREBY DENIED.
DATED this 21st day of June 2016.
/s/_________
Kent J. Dawson
United States District Judge