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Doe v. Doe

United States District Court, S.D. New York

July 14, 2017

JANE DOE, Plaintiff,
v.
JOHN DOE, Defendant.

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge.

         Plaintiff Jane Doe alleges that Defendant John Doe either intentionally or negligently inflicted severe emotional distress upon her when he surreptitiously filmed them having sexual intercourse in November 2013, without informing Plaintiff that he was recording the encounter or obtaining her consent to do so, and then posted the film to the internet for public viewing in February 2014. For these actions, Defendant was investigated by the New York Police Department and criminally charged with violating New York Penal Law § 250.45(1) and § 250.60(2)-unlawful surveillance in the second degree and dissemination of an unlawful surveillance in the first degree, respectively. Defendant entered a guilty plea to attempted versions of both of these crimes in November 2015.

         Plaintiff now moves for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the issue of Defendant's liability, arguing that she is entitled to judgment in her favor as a matter of law because Defendant's allocution in the criminal action constitutes an admission of liability under the doctrine of collateral estoppel. Plaintiff also moves pursuant to Rule 12(b)(6) to dismiss Defendant's defamation based counterclaims. For the following reasons, Plaintiffs motion for summary judgment is GRANTED in part and DENIED in part, and her motion to dismiss is GRANTED.

         BACKGROUND

         I. Factual Overview[1]

         In or around April 2013, Plaintiff and Defendant began dating. (Def.'s 56.1 ¶ 1.) In November 2013, Defendant placed his cell phone, set to the video function, on his bedside table to record a sexual encounter between Plaintiff and himself, without Plaintiff's knowledge or consent. (Pl.'s 56.1 ¶ 2; John Decl. ¶ 8.) Defendant disputes whether the filming was surreptitious, because while he did not inform Plaintiff that he was recording them (and indeed began recording when she was out of the room) (John Aff. ¶ 8), he argues that the phone was clearly visible on his bedside table the entire time and that she watched him eventually get out of bed and turn it off. (Id. ¶¶ 8-10.) Later, in February 2014, Defendant uploaded the video to a pornographic web site called X-Tube, again without Plaintiff's knowledge or consent. (Pl.'s 56.1 ¶ 3; John Aff. ¶ 14.) Defendant sent the link to the video to at least three other individuals. (Pl.'s 56.1 ¶ 4; John Aff. ¶ 14.)

         Plaintiff discovered the video less than two days after it was posted and confronted Defendant, who took steps to remove the video from the Internet right away. (Def.'s 56.1 ¶ 16.) Altogether, the video received over 13, 000 views. (Pl.'s 56.1 ¶ 3.) Plaintiff claims that Defendant's conduct has caused her severe emotional distress and anguish, leaving her depressed, anxious, humiliated, and embarrassed. (Id. ¶ 5.) Defendant disputes Plaintiff's description of the ramifications of these events on her health and emotional well-being, because Plaintiff has not provided medical confirmation of her alleged injuries. (Def.'s 56.1 ¶ 5.)

         For his aforementioned conduct, the New York County District Attorney's Office charged Defendant with violating New York Penal Law § 250.45(1) and § 250.60(2)-unlawful surveillance in the second degree and dissemination of an unlawful surveillance in the first degree, respectively. (Def.'s 56.1 ¶ 6.) Defendant first pled guilty to these charges in open court on May 12, 2015. (Pl.'s 56.1 ¶ 7.) On November 10, 2015, Defendant withdrew his previously entered plea and entered a guilty plea to reduced charges of attempted unlawful surveillance and attempted dissemination of an unlawful surveillance, pursuant to the terms of his plea agreement with the District Attorney. (Id. ¶ 8; Sash Decl. Ex. 2 at 6 (¶¶ 3-10).)

         While Defendant was ultimately sentenced based on the reduced charges, his allocution from the later proceeding establishes the same intentional conduct that established his guilt for the crimes as originally charged. (See Sash Decl. Ex. 2 at 6 (¶¶ 16-20) (“defendant . . . allocut[ed] to the completed crimes because that is what he did”).) In particular, Defendant admitted to unlawfully videotaping the private sexual encounter:

Defendant: For my own and another person's amusement and entertainment, I intentionally used and installed . . . an imaging device to surreptitiously view, broadcast, and record a person undressing and sexual and other intimate parts of such person at a place and time when such person had a reasonable expectation of privacy without that person's knowledge and consent.

(Pl.'s 56.1 ¶ 9 (emphasis added); see also Sash Decl. Ex. 2.) Defendant similarly admitted to unlawfully disseminating the video he created:

Defendant: . . . I intentionally disseminated unlawfully and created a surveillance image, such image having been created by me- having been created for my own and another person's amusement by an imaging device that I used and installed . . . to surreptitiously view, broadcast, and record a person undressing and sexual and other intimate parts of such person at a time and place when that person had reasonable expectation of privacy without such person's knowledge and consent.

(Id. (emphasis added).)

         For both crimes, Defendant was sentenced to three years of probation in lieu of jail time. (Sash Decl. Ex. 2 at 11 (¶¶ 9-11).)

         II. Procedural History

         Plaintiff commenced this tort based diversity action on January 15, 2016. (See Compl.

         ¶ 3, ECF No. 1.) Her motion for summary judgment on the issue of liability was fully briefed as of December 30, 2016. (ECF No. 28.)

         LEGAL STANDARDS

         I. Standard on a Motion for Summary Judgment

         A “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of pointing to evidence in the record, “including depositions, documents [and] affidavits or declarations, ” id. at 56(c)(1)(A), “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may also support an assertion that there is no genuine dispute by “showing . . . that [the] adverse party cannot produce admissible evidence [in] support” of such a contention. Fed.R.Civ.P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the non-moving party to identify “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks omitted).

         If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” a motion for summary judgment should fail. Id. at 248; accord Benn v. Kissane, 510 F. App'x 34, 36 (2d Cir. 2013) (summ. order). Courts must “constru[e] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks omitted). The party asserting that a fact is genuinely disputed must support their assertion by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). “Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).

         The nonmoving party “may not rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Similarly, “a party cannot create an issue of fact by submitting an affidavit in opposition to summary judgment that contradicts prior deposition testimony.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (citing Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (such affidavits “greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact”). But the mere fact that a non-movant's factual allegations in opposition are “self-serving” does not automatically render them insufficient to defeat summary judgment. Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998). Instead, summary judgment should be granted when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, ” where “that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         In reviewing the record, “the judge's function is not himself to weigh the evidence and determine the truth of the matter, ” nor is it to determine a witness's credibility. Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial.” Id. at 250. If the Court finds that one party to a case has “no real support for its version of the facts, ” a motion for summary judgment should be granted. Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494, 498 (2d Cir. 1962).

         II. Collateral Estoppel

         “Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 970, 973 (1979). “Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979); see also Allen v. McCurry, 449 U.S. 90, 94 (1980).

         New York law governs the preclusive effect of a judgment from a New York state court. See Migra v. Warren City School District Board of Education, 465 U.S. 75, 81 (1984) (“the preclusive effect in federal court of petitioner's state-court judgment is determined by [state] law.”); see also Wight v. BankAmerica Corp., 219 F.3d 79, 87-88 (2d Cir. 2000). The Second Circuit has recognized that there is “no significant difference” between New York preclusion law and federal preclusion law. Pike v. Freeman, 266 F.3d 78, 90 n. 14 (2d Cir. 2001); see also Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (“The parties agree that there is no discernable difference between federal and New York law concerning res judicata and collateral estoppel.”).

         The doctrine of collateral estoppel under New York law is applicable upon a showing of two factors: “First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (1985). The federal test for the application of collateral estoppel distributes these same elements into a four-part test: “(1) the identical issue was raised in a previous proceeding; (2) the issue was ‘actually litigated and decided' in the previous proceeding; (3) the party had a ‘full and fair opportunity' to ...


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