Boyce v. Weber, 19-CV-3825 (JMF)

• Decision Date: 07 July 2021
• Docket Number: 19-CV-3825 (JMF)
• Parties: JASON BOYCE, Plaintiff, v. BRUCE WEBER and LITTLE BEAR, INC., Defendants.
• Court: U.S. District Court — Southern District of New York

JASON BOYCE, Plaintiff, v. BRUCE WEBER and LITTLE BEAR, INC., Defendants.

No. 19-CV-3825 (JMF)

United States District Court, S.D. New York

July 7, 2021

OPINION AND ORDER

JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE.

In this case, Jason Boyce, a former fashion model, brings claims against Bruce Weber, a well-known fashion photographer, and Weber's production company, Little Bear, Inc., for sexual harassment and discrimination under the New York State Human Rights Law, N.Y. Exec. Law. § 290 et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., and for sex trafficking under the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1591 et seq. Boyce alleges that during a one-on-one photoshoot, Weber directed him to remove his shirt, pants, and underwear and then took Boyce's hand and used it to rub Boyce's genitals and then to touch Weber's own genitals through Weber's pants. On September 1, 2020, the Court granted in part and denied in part Defendants' motion for summary judgment. See Boyce v. Weber, No. 19-CV-3825 (JMF), 2020 WL 5209526 (S.D.N.Y. Sept. 1, 2020) (ECF No. 122). Trial is scheduled to begin on October 11, 2021. See ECF No. 158.

Now pending are motions in limine filed by both parties. See ECF Nos. 142-43. The Court addresses here the most significant of these motions, namely the parties' cross-motions to admit or exclude (1) the testimony of ten male models who claim that Weber also touched their genitals or otherwise behaved in a sexually inappropriate manner during one-on-one photoshoots between the early 1980s and 2014 (the “Non-Party Accusers”) and (2) the testimony of three male models who claim that Weber always behaved appropriately when photographing them (the “Anti-Modus Operandi Witnesses”).^[1] For the reasons that follow, the Court concludes that the Non-Party Accusers' testimony as to Weber's other conduct is admissible under both Rule 404(b) and Rule 415 of the Federal Rules of Evidence to the extent that the conduct is sufficiently similar in nature and close in time to the alleged conduct at issue. More specifically, the Court concludes that, subject to an assessment of cumulativeness at trial, the testimony of Non-Party Accusers Josh Ardolf, Anthony Baldwin, Buddy Krueger, Jake Madden, Mark Ricketson, and Jason Van Oijen is admissible. By contrast, the Court excludes the testimony of Non-Party Accusers Anthony Barbieri, Monty Hooper, Darryl Janney, and Ron Kochevar, as well as the testimony of the Anti-Modus Operandi Witnesses. The Court will resolve the parties' remaining motions in limine at (or closer to) the final pretrial conference and, thus reserves judgement on them for now.

BACKGROUND

The following is a brief summary of the factual allegations that Boyce will seek to prove at trial, derived from the Complaint and his submissions here and at summary judgment.

In December 2014, Boyce's modeling agency arranged for Boyce to have a photoshoot with Weber at Weber's studio. ECF No. 1-2 (“Compl.”), ¶¶ 25-27. Boyce understood that “this was an important professional opportunity” because Weber was “known for jumpstarting the careers of various male models.” Id. ¶¶ 21, 23. Boyce and Weber were alone in the studio when the photoshoot began. Id. ¶ 27. After taking a few photos, Weber told Boyce that he seemed “very tense” and directed him to sit down in a chair, whereupon Weber began rubbing oil on Boyce's forehead. Id. ¶¶ 30-31. Weber then resumed the photoshoot and eventually directed Boyce to remove his shirt. Id. ¶¶ 31-33. At that point, Weber placed his hand on Boyce's chest and told him to breathe Weber then said: “I want you to put your hand on me wherever your energy tells you to go.” Id. ¶ 34. Boyce touched Weber's chest; Weber then guided Boyce's hand down Weber's torso and touched Boyce's chest with his own (Weber's) hand. Id. ¶¶ 35-36. Weber then directed Boyce to remove his pants and to “decide to pull [his] underwear higher or lower.” Id. ¶¶ 37-38. Next, Weber resumed rubbing Boyce's face, telling him to “relax.” Id. ¶ 39. Weber placed his own hands over Boyce's hands, which he then used to remove Boyce's underwear. Id. ¶ 40. Weber directed Boyce to put his (Boyce's) hands on himself “wherever [he] felt [his] energy go”; after Boyce touched his face, shoulders, and chest, Weber took Boyce's hand and used it to rub Boyce's genitals. Id. ¶¶ 42-44. Weber then used Boyce's hands to touch Weber's genitals, through his pants, before putting his own (Weber's) fingers in Boyce's mouth. Id. ¶¶ 44-45. Finally, Weber told Boyce that he would “go really far” if “[he] just had confidence” and asked Boyce how ambitious he was; when Boyce did not answer, Weber told him to put his underwear on and ended the photoshoot. Id. ¶¶ 45-46. As Boyce was leaving, Weber directed him to close his eyes and then kissed him on the lips. Id. ¶ 47.

Boyce seeks to prove that this conduct was consistent with Weber's modus operandi of “sexually touch[ing], fondl[ing], and/or kiss[ing] male models during one-on-one photoshoots, under the guise of directing the photoshoot and/or otherwise offering creative direction. One of [Weber's] common practices was to engage in ‘breathing exercises' with the models.” Id. ¶ 118. According to Boyce, this alleged pattern of behavior also “routinely” involved “empty promises of career advancement.” Id. ¶ 131. To that end, Boyce moves to admit, and Defendants move to exclude, the testimony of the following ten Non-Party Accusers:

• Josh Ardolf: Ardolf is expected to testify that, in 2011, during a one-on-one photoshoot in an open hallway, Weber led him in a breathing exercise; directed him to take Weber's hand and place it on his own (Ardolf's) body, “[any]where [he] fe[lt] the energy”; and then touched Ardolf's genitals with his (Weber's) hand. ECF No. 149-4 (“Ardolf Dep.”), at 46, 72-73, 80-82, 85-86. Ardolf and Weber later discussed Ardolf's career, and Weber suggested that Ardolf was a candidate for an upcoming Abercrombie &amp Fitch photoshoot. Id. at 87-88.

• Anthony Baldwin: Baldwin is expected to testify that, during a group photoshoot in 2009, a production assistant summoned Baldwin to Weber's hotel room, where Weber took Polaroid photos of Baldwin in his underwear. ECF No. 149-5 (“Baldwin Dep.”), at 50, 53, 75-76, 78, 89, 102, 338-39. When Baldwin refused to pose nude, Weber threatened to send him home. Id. at 94-96. Weber then led Baldwin in a breathing exercise, which involved directing Baldwin to move Baldwin's hand down Baldwin's chest. Id. at 98-102. After a few more photographs, Weber directed Baldwin to adjust Baldwin's underwear. Id. at 104-05. He told Baldwin he was not doing it correctly, reached into Baldwin's underwear, and grabbed Baldwin's genitals. Id.

• Anthony Barbieri: Barbieri is expected to testify that, in the early 1990s, Weber invited him to a test shoot, where Weber directed Barbieri to remove his shirt and pull his pants and underwear down. Weber then directed Barbieri to turn his head to the side and, while his head was turned, Weber grabbed Barbieri's genitals and attempted to perform oral sex on him, until Barbieri jumped back. ECF No. 167-11 (“Barbieri Dep.”), at 93-94, 101, 129, 134-36. Weber later told Barbieri that he “kn[ew] [Barbieri] didn't want to play the game, but [that] it[] [was] going to be a much tougher road for [him] doing things on [his] own terms.” Id. at 220.

• Monty Hooper: Hooper is expected to testify that, at a meeting with Weber at Weber's studio in 2014, Weber asked Hooper to lower his pants, and when Hooper did not lower them past his waist, Weber told him the photoshoot was finished. ECF No. 167-10 (“Hooper Dep.”), at 40, 61-62. After Hooper dressed, Weber suggested that they try a breathing exercise and placed Hooper's hand on Weber's chest and asked if he could feel Weber's energy. Id. at 61-62. The photographer then told Hooper that he wanted to “pass the energy to [Hooper]” and moved Hooper's hand to Hooper's chest. Id. at 62. Finally, Weber hugged Hooper and let his hands linger on Hooper's waist, which made Hooper uncomfortable, while saying that “if [Hooper] learn[ed] how to be more vulnerable, [Hooper's] modeling career . . . could go a lot farther.” Id. at 63.

• Darryl Janney: Janney is expected to testify that in the early 1980s, Weber retaliated against him for refusing to pose nude by blacklisting him from modeling jobs. ECF No. 148 (“Defs.' Mem.”), at 31-33. Janney testified at his deposition that Weber never touched him inappropriately. ECF No. 149-16 (“Janney Dep.”), at 349.

• Ron Kochevar: Kochevar is expected to testify that, at a meeting with Weber at a hotel in the late 1990s, Weber photographed Kochevar and directed him to remove his shirt and pants. ECF No. 167-9 (“Kochevar Dep.”), at 47-48, 61-64. Weber said that Kochevar needed to relax and placed his (Weber's) hands on Kochevar's chest, stomach, and thigh. Id. at 64, 67-68. Weber later directed Kochevar to pull Kochevar'sunderwear down. Id. at 71-72. When Kochevar did not, Weber told Kochevar that he (Kochevar) “wasn't ready.” Id. at 72. Kochevar understood that “if [he] left, not only was [he] not going to work with Bruce Weber, but there was a likelihood[] there were other people that [he] wasn't going to work with, ” so Kochevar said, “let's do this again” and undressed completely. Id. at 75, 87. While taking photos, Weber then pressed Kochevar's body against a wall and repeatedly told him to “[b]reathe, ” “[r]elax, ” “[l]et go, ” and “[o]pen” while touching Kochevar's genitals with the back of his (Weber's) hand. Id. at 78-80, 84. On two other occasions in the late 1990s, Weber again met with Kochevar at hotels and led him through breathing exercises before touching Kochevar's genitals with the back

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