Ademiluyi v. Phillips
| Decision Date | 02 September 2015 |
| Docket Number | Case No. 2:14-cv-00507-MMD-CWH |
| Parties | APRIL ADEMILUYI, Plaintiff, v. DAVID PHILLIPS, Defendant. |
| Court | U.S. District Court — District of Nevada |
(Def's Motion for Summary Judgment dkt. no. 136)
I. SUMMARY
Before the Court is Defendant David Phillips' Motion for Summary Judgment ("Motion"). (Dkt. no. 136.) The Court has reviewed Defendant's Motion as well as Plaintiff's response (dkt. no 143) and Defendant's reply (dkt. no 149). For the reasons set out below, Defendant's Motion is granted in part and denied in part.
II. BACKGROUND
Plaintiff April Ademiluyi filed a verified Amended Complaint in the U.S. District Court for the District of Maryland on March 5, 2013. (Dkt. no. 11.) The case was subsequently dismissed and transferred to this District. The following facts are taken from the Amended Complaint.
Plaintiff alleges that on April 20, 2012, Defendant drugged and raped her at a National Bar Association conference in Tampa, Florida. Plaintiff also alleges that in September of 2013, Defendant falsely reported to the Las Vegas Metropolitan Police Department that Plaintiff was harassing him. Defendant sought a temporary protective order from the Las Vegas Justice Court. The parties then litigated that protective order for months, until Defendant finally withdrew his request.
The Amended Complaint asserts the following claims: (1) battery based on Defendant's alleged drugging of Plaintiff; (2) battery based on Defendant's alleged rape of Plaintiff; (3) malicious prosecution based on Defendant's attempt to secure a temporary protective order; (4) intentional infliction of emotional distress ("IIED"); (5) gross negligence based on Defendant's reports to Nevada police and courts; and (6) negligence based on the same. (Dkt. no. 11, ¶¶ 79 - 123.)
III. LEGAL STANDARD
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). "The amount of evidence necessary to raise a genuine issue of material fact is enough 'to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidencenegating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted).
IV. DISCUSSION
A federal district court exercising diversity jurisdiction typically applies the substantive law of the state in which the controversy has arisen. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Plaintiff alleges that Defendant drugged and raped her in Tampa, Florida. Consequently, Plaintiff's battery claim sounds in Florida tort law.1 "In order to establish a claim of battery under Florida law, the following elements must be proven: (1) the intent to cause a harmful or offensive contact with another person; and (2) an offensive contact that directly or indirectly results." Brown v. J.C. Penney Corp., 521 F. App'x 922, 923-24 (11th Cir. 2013) (citing Chorak v. Naughton, 409 So.2d 35, 39 (Fla. Dist. Ct. App.1981)). Unwelcome sexual contact is "harmful or offensive." See, e.g., Loos v. Club Paris, LLC, 684 F. Supp. 2d 1328, 1335 (M.D. Fla. 2010) ().
Plaintiff has provided evidence in the form of a verified complaint, a declaration, and several exhibits to establish the essential elements of her battery claims.2 She has provided testimony through her declaration that she woke up in Defendant's hotel room in pain and with little recollection of the night before (dkt. no. 143-1), medical records documenting physical and psychological trauma shortly after the alleged rape (dkt. no. 1-4), and a number of communications between her and Defendant relating to Defendant's alleged conduct (id.). Plaintiff's proffered evidence, viewed in the light most favorable to Plaintiff as the non-moving party, provides a basis upon which a reasonable juror could infer that Defendant intended to drug and rape Plaintiff and actually did so.
Defendant argues that a single text message Plaintiff sent him, in which she stated, is sufficient to overcome Plaintiff's contradictory evidence as a matter of law. (Dkt. no. 136 at 5.) However, the purported contradictory evidence is offered in Plaintiff's sworn declaration and verified Amended Complaint. At best, a prior statement in a text message may be used to impeach Plaintiff at trial, but cannot be offered to negate the existence of a material issue of fact in support of summary judgment. Cf. Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 15 F. Supp. 3d 1116, 1127 (W.D. Wash. 2014) (). Indeed, this is exactly the type of evidence that a fact-finder must weigh. A reasonable juror may find the text message to be a candid admission that Defendant did nothing wrong, or she may believe Plaintiff's explanation:the message was a tactic to elicit more information from Defendant. Viewing this evidence in the light most favorable to Plaintiff as the non-moving party, the single text, in the context of the many more messages maintaining that Defendant drugged and raped Plaintiff, creates a material issue of fact as to whether Defendant's sexual contact with Plaintiff was unwelcome and offensive to establish battery.
Defendant in his reply brief generally argues that Plaintiff's declaration is improper because it fails to comply with Rule 56(c)(4)'s requirements of personal knowledge and testimonial competence. Defendant does not cite to any specific paragraphs or make a more exact argument as to why a given statement should be disallowed. As a general principle, the declarations submitted by a party opposing summary judgment are treated more indulgently than the moving party's papers. See Hardy v. 3 Unknown Agents, 690 F. Supp. 2d 1074, 1085 (C.D. Cal. 2010) (citing Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir.1985)). While some statements in Plaintiff's declaration appear to lack a foundation in personal knowledge, several relevant portions are simply testimony of Plaintiff's experiences, whereabouts, and impressions. (Pl.'s decl., dkt. no. 143-1 ¶¶ 4, 5, 7-9). A court may consider proper parts of a declaration while it discounts improper parts. See, e.g., Strand v. Gen. Elec. Co., 945 F. Supp. 1334, 1343 (D. Haw. 1996). The supported portions of Plaintiff's declaration assert that Plaintiff experienced memory loss after attending a reception on the night of April 20, 2012, and woke up in Defendant's room in pain the next day. They also describe Plaintiff's interactions with Defendant before and after the alleged rape. This testimony is consistent with Plaintiff's allegations. Considered with the other evidence in the record, Plaintiff's testimony creates genuine issues of material fact for a jury to resolve.
Defendant further argues that Plaintiff violated LR 15-1(a) when she failed to attach the exhibits in her original Complaint to her Amended Complaint. LR 15-1(a) requires a party amending its pleadings to include all exhibits so that the amended pleading will be complete in itself, without reference to the superseded pleading. Plaintiff attached exhibits to her original Complaint, but did not attach them to her AmendedComplaint, even though she referenced them in her Amended Complaint. However, Plaintiff's Amended Complaint was filed in the District of Maryland before the case was transferred to this District. Maryland's local rules specifically instruct plaintif...
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