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Rose v. Zillioux

June 12, 2008

LYNNE ROSE, A MINOR BY NEXT FRIEND, THE CHILDREN'S RIGHTS INITIATIVE, INC., PLAINTIFF,
v.
JIM ZILLIOUX, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's motion for a default judgment on the issue of damages against Defendant Zillioux.

II. BACKGROUND

On October 6, 2004, Plaintiff requested and the Clerk of the Court entered Notice of Default against Defendant Zillioux because he had not answered or otherwise responded to Plaintiff's amended complaint, which Plaintiff had personally served on him on June 24, 2004. By Order dated October 11, 2006, Magistrate Judge Lowe instructed Plaintiff to move for entry of a default judgment against Defendant Zillioux by November 1, 2006, or the Court would dismiss this action. See Dkt. No. 104. In compliance with that Order, Plaintiff filed a motion for entry of a default judgment against Defendant Zillioux on November 1, 2006. See Dkt. No. 105.

In a Memorandum-Decision and Order dated January 29, 2007, this Court, among other things, (1) granted Plaintiff's motion for entry of a default judgment against Defendant Zillioux on her state-law claim of assault and battery insofar as it pertained to the issue of liability; (2) granted Plaintiff's motion for entry of a default judgment against Defendant Zillioux on her state-law defamation claim insofar as it pertained to the issue of liability; (3) instructed Plaintiff to file affidavits and other documentation to support her claim for damages within twenty days of the date of the Order; and (4) instructed Plaintiff to serve a copy of the Order and all additional papers that she filed with the Court upon Defendant Zillioux at his last known address and to file an affidavit of service demonstrating that she had done so. See Memorandum-Decision and Order dated January 29, 2007, at 8-9.*fn1

On February 27, 2007, Plaintiff filed an affidavit in support of her motion for a default judgment, see Dkt. No. 111; and on February 28, 2007, Plaintiff filed an affidavit of service demonstrating that she had served the Court's January 29, 2007 Memorandum-Decision and Order and her affidavit in support of her motion for a default judgment on Defendant Zillioux, see Dkt. No. 112.

III. DISCUSSION

A. Allegations that form the Basis for Plaintiff's Claim for Damages

Based upon a review of the record, the following facts form the basis for Plaintiff's claim for damages. Plaintiff first began to visit Lock 18 of the New York State Canal System, located in Utica, New York, in the summer of 1996. She alleges that during that summer she was alone with Defendant Zillioux on one occasion, at which time she sat on his lap. See Transcript of Deposition of Lynne Rose, dated February 9, 2000 ("Rose Tr."), at 25-26. Plaintiff did not tell anyone about this incident. See id. at 73.

In the summer of 1997, Plaintiff asserts that she visited Lock 18 almost every day when Defendant Zillioux was working and helped him with odd jobs at the lock. See id. at 20. On several occasions during that summer, people saw Plaintiff in the lockhouse, which is a structure containing an office, a bathroom and a storage space. See id. at 51.

In mid to late August 1997, sexual contact between Plaintiff and Defendant Zillioux occurred for the first time. See id. at 32-33. Plaintiff did not tell anyone what had occurred. See id. at 38, 40. She returned to Lock 18 the next week when she knew that Defendant Zillioux would be there. See id. at 41. Subsequent occurrences of physical and sexual contact occurred, generally in the lockhouse and at least once in Defendant Zillioux's car. See id. at 79, 83.

Plaintiff's parents were aware that she was spending time at Lock 18 with Defendant Zillioux. On one occasion, Defendant Zillioux told Plaintiff that his supervisor would not permit her to hang around Lock 18, and Plaintiff's mother called him to complain that Plaintiff should not be forbidden to go there. In addition, on one occasion when Plaintiff's mother ordered her not to go to Lock 18, she went any way. See id. at 71. Plaintiff's parents also knew that Defendant Zillioux was driving Plaintiff home from Lock 18, see id. at 77-78; they allowed him to take her to a county fair, see id. at 79; and they even invited him to their home for a barbeque approximately two days before he was arrested, see id. at 104-06.*fn2

Furthermore, Plaintiff alleges that Defendant Zillioux deliberately, intentionally, and repeatedly sexually touched, abused, molested and sodomized [her,] . . . repeatedly fondled and forcibly kissed and held [her], forced [her] to sit on his lap, held [her] down on the desk, fondled and touched [her] breasts and buttocks, inserted fingers in [her] vagina, placed his penis on [her] vagina, exposed himself to [her], placed his mouth on [her] vagina and breasts, ...


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