The opinion of the court was delivered by: Cedarbaum, J.
This diversity action arises from the rape of plaintiff Jocelyn Chrobak on March 9, 2005 by Negro Jimenez, a security guard at a hotel in the Dominican Republic. Plaintiff, a Pennsylvania resident, sues the guard, the hotel, Costa Caribe Coral by Hilton ("Costa Caribe"), and three entities affiliated with the Hilton Hotel chain.
Hilton Group Plc a.k.a. Ladbrokes Plc ("Ladbrokes") moves to dismiss the Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that the vicarious liability claim is time-barred. Hilton International moves to dismiss the Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that the vicarious liability claim is time-barred, and, pursuant to Fed. R. Civ. P. 12(b)(5), for insufficient service of process. For the following reasons, defendants' motions to dismiss are granted in part and denied in part.
In her original Complaint, filed on March 10, 2006, plaintiff alleged that both Costa Caribe and Hilton Hotels Corporation ("Hilton Hotels") were vicariously liable for the rape, and that Costa Caribe negligently hired and supervised Jimenez. On July 10, 2006, plaintiff filed an Amended Complaint naming two additional defendants, Ladbrokes and Hilton International. The Amended Complaint reiterates the allegations of the original Complaint, and adds claims against both Ladbrokes and Hilton International for vicarious liability and against Hilton International for negligently hiring and supervising Jimenez.
The original Complaint asserted that Costa Caribe is "a part of Hilton Caribbean Group, which in turn is a part of Hilton International." (Compl. ¶ 4) It also alleged that Hilton Hotels acquired "Hilton Group Plc (known collectively as 'Hilton International')" in February of 2006. (Compl. ¶ 4) In the Amended Complaint, plaintiff offers a slightly different picture. The Amended Complaint alleges that a U.K. company named Ladbrokes, formerly known as Hilton Group Plc, owned both Hilton International and Costa Caribe until February of 2006, when Hilton Hotels acquired both Ladbrokes and Hilton International. (Am. Compl. p. 2 and ¶ 3)
Ladbrokes was served with the Amended Complaint on July 13, 2006. It answered on July 20, 2006. Hilton International states that it has not yet been served with the Amended Complaint. Nevertheless, it filed an answer to the Amended Complaint on July 20, 2006.
I. Statute of Limitations
Because subject matter jurisdiction over this suit is based on diversity of citizenship, New York state law determines the applicable statute of limitations. See Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998). Under N.Y. C.P.L.R. § 202:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
Plaintiff is not a resident of New York. Thus, her claims are time-barred if they are untimely under the shorter of either New York's limitation period or the limitation period of the Dominican Republic.
Because neither party provides the statute of limitations of the Dominican Republic, nor asserts that the law of the Dominican Republic should apply, New York State's statute of limitations applies. See Clarkson Co. Ltd. v. Shaheen, 660 F.2d 506, 512 n.4 (2d Cir. 1981) (approving district court's application of New York law where parties did not assert the applicability of foreign law).
Under New York law, the statute of limitations for intentional torts is one year. N.Y. C.P.L.R. § 215(3). Plaintiff's Amended Complaint was filed on July 10, 2006, one year and four months after the alleged rape. Thus, defendants argue, the vicarious liability claims against Ladbrokes and Hilton International are untimely. Plaintiff counters that her claims are saved by the "relation back" doctrine, pursuant to which claims are not time-barred if the ...