Doe v. Alsaud

Decision Date03 April 2014
Docket NumberNo. 13 Civ. 571.,13 Civ. 571.
Citation12 F.Supp.3d 674
PartiesJane DOE, Plaintiff, v. HRH Prince Abdulaziz Bin Fahd ALSAUD, Saudi Oger Ltd., and Mustapha Ouanes, Defendants.
CourtU.S. District Court — Southern District of New York

Morelli Alters Ratner, PC, by: Martha M. McBrayer, Esq., Jeremy J. Troxel, Esq., New York, NY, for Plaintiff.

Quinn Emanuel Urquhart & Sullivan LLP, by: Michael B. Carlinsky, Esq., Rex Lee, Esq., William A. Burck, Esq., Nicholas A.S. Hoy, Esq., New York, NY, for Defendant Saudi Oger Ltd.


SWEET, District Judge.

Defendant Saudi Oger Ltd. (“Saudi Oger”) has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the First Amended Complaint (the “FAC”) filed by plaintiff Jane Doe (the Plaintiff) for failure to state a claim upon which relief can be granted. Based upon the conclusions set forth below, the motion is granted, and the FAC is dismissed.

Prior Proceedings

Plaintiff filed her original complaint on January 25, 2013. On February 14, 2013, Plaintiff filed an affidavit of service claiming to have served “Saudi Oger Ltd. d/b/a Hariri Interests” on February 5, 2013. Non-party Hariri Interests moved to dismiss the complaint on April 1, 2013, pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5) and 12(b)(6). In her opposition, Plaintiff conceded that Hariri Interests' argument that it was not a d/b/a of Saudi Oger was “persuasive” and cross-moved to amend her complaint to remove Hariri Interests as a defendant. Plaintiff also admitted that she “lacks any evidence suggesting that Saudi Oger knew or should have known of [defendant Mustapha Ouanes' (“Ouanes” or the “Individual Defendant) ] propensities before he was hired,” and therefore proposed to withdraw her negligent hiring claim. On May 2, Plaintiff and Hariri Interests stipulated to dismiss the complaint against Hariri Interests with prejudice.

Plaintiff filed the FAC on May 7, 2013, removing Hariri Interests from the lawsuit and withdrawing the negligent hiring claim against Saudi Oger and the Prince.

Allegations of the FAC

The FAC contends the following allegations.

On January 26, 2010, defendant Ouanes invited Plaintiff and her female friend to accompany him from a lounge in the West Village to his hotel room at the Plaza Hotel. (FAC ¶ 24.) At about 5:30 a.m., Plaintiff was drugged by Ouanes (id. at ¶ 29), and awoke some time later to “realize [Ouanes] was raping her” (id. at ¶ 30). In February 2012, after a two-week trial in New York (Manhattan) Criminal Court, Ouanes was convicted of rape and sexual abuse, and was sentenced to ten years in prison. (Id. at ¶¶ 54–55.)

Ouanes was a former employee of defendants Saudi Oger and defendant HRH Prince Abdulaziz Bin Fahd Alsaud (the Prince) at the time of Plaintiff's injury and was living in New York temporarily at the Plaza Hotel as an employee of Saudi Oger's “VIP unit,” which served as the Prince's traveling entourage. (Id. at ¶ ¶ 4, 6.) Saudi Oger “was and remains a global corporation based in Saudi Arabia and one of the leading construction, facilities management, real estate development, and infrastructure project development providers in the world,” and Ouanes was a “trained mechanical engineer” whose specific duties as an employee included ensuring that the “climate” of the floor inhabited by the Prince at the Plaza Hotel was properly regulated. (Id. at ¶¶ 4–5.) In addition, Ouanes' duties included “luring unsuspecting women” to “gratify the sexual pleasure” of the Prince and his entourage. (Id. at ¶ 5.) At least three employees of Saudi Oger's VIP Unit were with Ouanes when she was raped in Ouanes' room (Id. ¶¶ 2–3, 25–29), and DNA evidence suggests that Ouanes was not the only Saudi Oger employee who sexually assaulted the Plaintiff on or about January 26, 2010. (Id. ¶¶ 16, 50.)

The FAC asserts causes of action for negligent supervision (FAC at ¶¶ 58–69), negligent retention (id. at ¶¶ 70–84), and respondeat superior (id. at ¶¶ 85–89) against Saudi Oger. In support of these claims, the FAC alleges that Saudi Oger “knew or should have known of [Ouanes'] predisposition to abusing women, his violent propensities, and of his status as a sexual predator.” (Id. at ¶ 13.)

The Applicable Standard

On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” County of Suffolk, N.Y. v. First Am. Real Estate Solutions, 261 F.3d 179, 187 (2d Cir.2001) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996) ).

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This is not intended to be an onerous burden, as plaintiffs need only allege facts sufficient in order to “nudge[ ] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

Respondeat Superior Is Not Adequately Alleged

To state claim for respondeat superior, a plaintiff must plead facts showing, among other things, that the tortious conduct causing the injury was undertaken within the scope of the employee's duties to the employer and was thus in furtherance of the employer's interests. See, e.g., K.I. v. New York City Bd. of Educ., 256 A.D.2d 189, 191, 683 N.Y.S.2d 228 (1st Dep't 1998) (noting no respondeat superior where tortuous conduct was outside of scope of volunteer's duties). “An employer will not be held liable under [the doctrine of respondeat superior] for actions which were not taken in furtherance of the employer's interest and which were undertaken by the employee for wholly personal motives.” Galvani v. Nassau Cty. Police Indemnification Review Bd., 242 A.D.2d 64, 68, 674 N.Y.S.2d 690 (2d Dep't 1998) (citation omitted). Ouanes' own deplorable motivations were not part of any conceivable duty he had to Saudi Oger. For this reason, the claim must be dismissed. See Haybeck v. Prodigy Servs. Co., 944 F.Supp. 326, 329 (S.D.N.Y.1996) (Sotomayor, J.) ([W]here a court takes as true all the facts alleged by plaintiff and concludes that the conduct complained of cannot be considered as a matter of law within the scope of employment, then the court must dismiss the complaint for failure to state a claim.”) (citations omitted).

“New York courts consistently have held that sexual misconduct and related tortious behavior arise from personal motives and do not further an employer's business, even when committed within the employment context.” Ross v. Mitsui Fudosan, 2 F.Supp.2d 522, 531 (S.D.N.Y.1998) (citations omitted). No decision in New York has been cited to date in which the doctrine of respondeat superior was held to apply to sexual assault. See Adorno v. Corr. Servs. Corp., 312 F.Supp.2d 505, 516–17 (S.D.N.Y.2004) (“New York courts have repeatedly found no vicarious liability for claims involving sexual misconduct, including sexual assault.”) (citations omitted); Haybeck, 944 F.Supp. at 330 (employee's failure to disclose HIV-positive status to plaintiff was not attributable to employer); Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 693 N.Y.S.2d 67, 715 N.E.2d 95, 96 (1999) (holding that a hospital orderly who was tasked with bathing the plaintiff was acting outside the scope of his duties when he sexually abused her while doing so); Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 402, 611 N.Y.S.2d 615 (2d Dep't 1994) (dismissing complaint alleging employer liability for rape of child patient by hospital security guard); Joshua S. v. Casey, 206 A.D.2d 839, 839, 615 N.Y.S.2d 200 (4th Dep't 1994) (upholding dismissal of respondeat superior claim for sexual abuse of a child by a priest); Koren v. Weihs, 190 A.D.2d 560, 560–61, 593 N.Y.S.2d 222 (1st Dep't 1993) (dismissing claim alleging employer liability for hospital psychotherapist who engaged in “sex therapy” with a patient).

In addition, the FAC does not contain allegations that establish that the assault furthered Saudi Oger's business interests, even if those interests somehow included luring women to the Plaza Hotel for the benefit of the Prince and his entourage. If Plaintiff had sufficiently pleaded that Saudi Oger had direct knowledge of prior sexual misconduct on the part of Ouanes, which she has not, that still would not give rise to respondeat superior liability in the absence of an allegation that the misconduct was part of any actual responsibility Ouanes had to Saudi Oger. See Sclafani v. PC Richard & Son, 668 F.Supp.2d 423, 447–48 (E.D.N.Y.2009) (“If plaintiff's facts are credited, a rational jury could find that Piscopo's assault was reasonably foreseeable, but a rational jury could not find that the assault was within the scope of Piscopo's employment at PCR. Although the assault occurred in the PCR parking lot before work, the assault in no way further PCR's business.”) (citation omitted); Adorno, 312 F.Supp.2d at 517–18 (“The applicability of these principles is not altered merely because CSC allegedly had notice of Correa's propensity to commit sexual acts.... ‘What is reasonably foreseeable in the context of respondeat superior is quite a different thing from the foreseeable unreasonable risk of harm that spells negligence. When we talk of vicarious liability we are not looking for the employer's fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise [the employer] has undertaken.’) (citing Cronin v. Hertz Corp., 818 F.2d 1064,...

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