United States District Court, S.D. New York
Decided June 28, 2013
[Copyrighted Material Omitted]
For S.M., Plaintiff (1:12-cv-08948-JGK): Stuart Samuel Mermelstein, LEAD ATTORNEY, Herman & Mermelstein, P.A., Miami, FL; David T. Azrin, Gallet Dreyer & Berkey, LLP, New York, NY.
For Kevin Clash, Defendant (1:12-cv-08948-JGK): Michael G. Berger, LEAD ATTORNEY, Law Offices of Michael G. Berger, New York, NY.
For Kevin Kiadii, Plaintiff (1:13-cv-02172-JGK): Adam D Horowitz, Herman Law, Boca Raton, FL; David T. Azrin, Gallet Dreyer & Berkey, LLP, New York, NY; Jeffrey M. Herman, PRO HAC VICE, Herman, Mermelstein & Horowitz, P.A., Miami, FL; Stuart Samuel Mermelstein, Herman & Mermelstein, P.A., Miami, FL.
For Cecil Singleton, Plaintiff (1:12-cv-08465-JGK): Stuart Samuel Mermelstein, LEAD ATTORNEY, Herman & Mermelstein, P.A., Miami, FL; David T. Azrin, Gallet Dreyer & Berkey, LLP, New York, NY; Jeffrey M. Herman, Herman, Mermelstein & Horowitz, P.A., Miami, FL.
For Kevin Clash, Defendant (1:12-cv-08465-JGK): Michael G. Berger, LEAD ATTORNEY, Law Offices of Michael G. Berger, New York, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
The plaintiffs, Cecil Singleton, S.M. (" John Doe" ), and Kevin Kiadii, each bring claims against the defendant, Kevin Clash, pursuant to 18 U.S.C. § 2255(a). All of the plaintiffs allege that when they were minors, the defendant used a facility or means of interstate commerce to persuade or induce them to engage in sexual activity in violation of 18 U.S.C. § 2422. John Doe also alleges that when he was a minor the defendant transported him from Florida to New York with the intent to engage in sexual activity in violation of 18 U.S.C. § 2423. The defendant moves to dismiss all of the claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that they are barred by the statute of limitations, 18 U.S.C. § 2255(b). For the reasons explained below the motions are granted and the complaints are dismissed.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is " not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient."
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, " the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2000); see also Roseville Emps.' Ret. Sys. v. Energysolutions, Inc., 814 F.Supp.2d 395, 401 (S.D.N.Y. 2011).
" Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss."
Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).
The following allegations are assumed to be true for the purposes of this motion.
The defendant, Kevin Clash, is a resident of New York who was born in 1960. (Kiadii Compl. ¶ ¶ 2, 5.) The plaintiffs each allege that when they were minors, Clash engaged in sexual acts with them in violation of 18 U.S.C. § § 2422 and 2255. John Doe also alleges that Clash violated 18 U.S.C. § 2423.
John Doe is a Florida resident who was born in 1979. (S.M. Compl. ¶ ¶ 1, 8.) In late 1995 or early 1996, while the defendant was visiting Miami and Doe was looking for work, the defendant befriended him. (S.M. Compl. ¶ ¶ 9-10.) At the time of this initial encounter, Doe was sixteen or seventeen years old. (S.M. Compl. ¶ 9.) The defendant returned home to New York but spoke with Doe often over the telephone. (S.M. Compl. ¶ 11.) In early 1996, the defendant arranged for Doe to visit him in New York. (S.M. Compl. ¶ ¶ 14-15.) The defendant purchased a plane ticket for Doe to fly from Miami to New York and arranged for a driver to bring Doe from the airport to the defendant's apartment. (S.M. Compl. ¶ 15.) Doe stayed with the defendant for four days, during which time he and the defendant engaged in a variety of sexual acts. (S.M. Compl. ¶ 16.) Doe turned eighteen in 1997.
On December 10, 2012, sixteen years after the alleged sexual acts and fifteen years after Doe turned eighteen, Doe filed this action against the defendant. Doe's complaint alleges that the defendant's conduct violated 18 U.S.C. § § 2422 and 2423, and these violations gave rise to claims under 18 U.S.C. § 2255. (S.M. Compl. at 5-6.) Doe alleges that because he was not emotionally or psychologically prepared for a sexual relationship with a grown man, he was a " compliant victim," and did not become aware that he had suffered adverse psychological and emotional effects from the encounter with the defendant until 2012. (S.M. Compl. ¶ 21.) Doe alleges that " he [was not] able to make a causal connection between his injuries and the sexual acts . . . until 2012[,]" and " could not reasonably be expected to know that he had been injured and that [the defendant] had caused his injuries until calendar year 2012." (S.M. Compl. ¶ 22.)
Cecil Singleton is a New York resident who was born in 1988. (Singleton Am. Compl. ¶ 1.) In or about 2003, when Singleton was fifteen years old, the ...