Doe v. DeLuca

• Court: Superior Court of Vermont
• Writing for the Court: Colin Owyang Superior Court Judge
• Citation: Doe v. DeLuca, 2025 Vt Super 121103, 25-CV-01196 (Dec 11, 2025)
• Docket Number: 25-CV-01196
• Decision Date: 11 December 2025
• Parties: John Doe v. Todd DeLuca et al

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2025 Vt Super 121103

John Doe v. Todd DeLuca et al

No. 25-CV-01196

Superior Court of Vermont, Civil Division, Chittenden Unit

December 11, 2025

Title Motion to Dismiss; Motion to Dismiss; Motion to Accept Late Filing; Motion for Leave to File Sur-reply; Motion for Leave to File Supplemental Memo of Law (Motion: 9; 12; 14; 15; 16)

Filer John Doe; Joshua R. Diamond; Todd Deluca

Filed Dates: May 16, 2025; June 16, 2025; August 11, 2025 September 10, 2025; October 13, 2025

ENTRY REGARDING MOTIONS

Colin Owyang Superior Court Judge

Plaintiff John Doe brought this action against Defendants Todd DeLuca and YouTube, LLC after DeLuca posted on YouTube a video he recorded of Doe. Doe's Amended Complaint asserts claims against DeLuca for intentional infliction of emotional distress ("IIED"), invasion of privacy and "unlawful commercial exploitation" and against YouTube for "contributory infringement/liability," breach of contract and violation of the right of publicity. DeLuca and YouTube have each moved to dismiss the respective claims against them. Doe has opposed both.

For the reasons that follow, the court (a) GRANTS DeLuca's motion to dismiss (Mot. #9); (b) GRANTS YouTube's motion to dismiss (Mot. #12); and (c) GRANTS Doe's Motion to Accept Late Filing (Mot. #14), Motion for Leave to File Sur-reply (Mot. #15) and Motion for Leave to File Supplemental Memo of Law (Mot. #16).

A. Background

On March 18, 2025, DeLuca recorded a 29-minute video that included Doe and others standing in public view outside a homeless shelter and warming center on Pearl Street in Burlington. An approximately two-minute portion of that video captures Doe speaking and apparently recording or attempting to record DeLuca on Doe's cell phone. The video shows other people closer to Doe than DeLuca who remains on or near the public sidewalk. Doe speaks to DeLuca who does not respond. DeLuca turned Doe's speaking portion of the video into a YouTube "short" video. DeLuca posted both videos to his YouTube channel, for commercial profit according to Doe. Doe never gave DeLuca consent to record him or use his image. Sometime after Doe filed this lawsuit, both DeLuca and YouTube removed the videos.

B. Discussion

1. Motion to Dismiss Standard

Under V.R.Civ.P. 12(b)(6), the court "must assume that the facts pleaded in the complaint are true and make all reasonable inferences in the plaintiff's favor." Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 10, 209 Vt. 514. The court does not accept as true "conclusory allegations or legal conclusions masquerading as factual conclusions." Vitale v. Bellows Falls Union High Sch., 2023 VT 15, ¶ 28, 217 Vt. 611 (quotation omitted). The court considers whether "it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Davis v. American Legion, Dept. of Vermont, 2014 VT 134, ¶ 12, 198 Vt. 204 (quotation omitted). "The purpose of a motion to dismiss is to test the law of the claim, not the facts which support it." Powers v. Off. of Child Support, 173 Vt. 390, 395 (2002). As a result, only "where the plaintiff does not allege a legally cognizable claim, [is] dismissal . . . appropriate." Montague, 2019 VT 16, ¶ 11.

"The court's attention . . . is to be directed toward determining whether the bare allegations of the complaint constitute a statement of a claim under V.R.C.P. 8(a)." Levinsky v. Diamond, 140 Vt. 595, 600 (1982). Rule 8 requires a "short and plain statement of the claim" in "simple, concise, and direct" language with "all pleadings [to] be construed as to do substantial justice." V.R.Civ.P. 8(a), (e), (f). "[T]he threshold a plaintiff must cross in order to meet our notice-pleading standard is exceedingly low." Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575 (citation omitted). Consequently, "[m]otions to dismiss for failure to state a claim are disfavored and should be rarely granted." Id. (citation omitted). The court should be "particularly wary of dismissing novel claims because '[t]he legal theory of a case should be explored in the light of facts as developed by the evidence, and, generally, not dismissed before trial because of the mere novelty of the allegations.'" Montague, 2019 VT 16, ¶ 11 (citation omitted). The Court does not need to make any findings now. See id. ¶ 10.

2. What the Court May Consider in a Motion to Dismiss

At the outset, this court notes that it included the challenged videos and YouTube's Terms of Service ("ToS") in drafting the Background section above and will assess both items in the Discussion section below. This court has not found any Vermont Supreme Court decision that discusses in detail when a court may consider materials beyond the pleadings on a Rule 12(b)(6) motion without converting it into a Rule 56 motion that would require notice to the parties. See V.R.Civ.P. 12(b); Kaplan v. Morgan Stanley &Co., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605 (sanctioning with limited discussion trial court's consideration of document referenced but not attached to complaint). Leading commentary and significant case law under the federal counterpart to Rule 12(b) supports doing so in this case where Doe's complaint relies heavily on both the video and the ToS, the materials prove central to his case and no party questions their accuracy or authenticity. See Wright &Miller, 5B Fed. Prac. &Proc. Civ. § 1357 (3d ed. 2004 and Supp. 2007).

According to the Supreme Court, "courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues &Rts., Ltd., 551 U.S. 308, 322 (2007) (citing 5B Wright &Miller § 1357 (3d ed. 2004 and Supp. 2007)). The Second Circuit and its district courts have followed Tellabs. E.g., Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 854 (2d Cir. 2021) (quoting Tellabs). See also White v. Core Civic Corp., Civil Action No. 2:20-CV-211-CR-KJD, 2022 WL 1250779, at *2 n.5 (D. Vt. Feb. 24, 2022) (considering on motion to dismiss exhibits attached to motion for injunctive relief but not attached to complaint apparently inadvertently); Warchol v. Green Mt. Coffee Roasters, Inc., No. 2:10-cv-227, 2012 WL 236099, at *1 (D. Vt. Jan. 27, 2012) (citing Tellabs to allow it to consider on motion to dismiss "public disclosure documents filed with the SEC as required by law," as well as documents "possessed by or known to the plaintiff and upon which it relied in bringing the suit") (other citations omitted). In the Second Circuit's words, "[c]onsideration of materials outside the complaint is not entirely foreclosed on a 12(b)(6) motion," but "several conditions must be met." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). "[I]t must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document" and "[i]t must also be clear that there exist no material disputed issues of fact regarding the relevance of the document." Id. (citations omitted). In addition, while courts may consider materials "integral" to a complaint when addressing motions to dismiss, doing so requires that "'plaintiff[] rel[y] on the terms and effect of [the] document in drafting the complaint.''" Global Network Communications, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)) (emphasis in original).

Other circuits follow similar rules. The Seventh Circuit has held that "documents may be considered by a district court in ruling on the motion to dismiss without converting the motion into a motion for summary judgment" because "'documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim.'" Burke v. N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013) (citation and brackets omitted). Moreover, "[t]he court 'is not bound to accept the pleader's allegations as to the effect of the exhibit, but can independently examine the document and form its own conclusions as to the proper construction and meaning to be given the material.'" Id. (citing 5 Wright &Miller, Federal Practice &Procedure: Civil 2d, § 1327 at 766 (1990)) (other citations omitted). Burke consequently ratified a district court's consideration of a "clearly central" report repeatedly referenced by but not attached to plaintiff's complaint. Id.

In the Eighth Circuit, "[t]hough 'matters outside the pleadings' may not be considered in deciding a Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not matters outside the pleading." Zean v. Fairview Health Services, 858 F.3d 520, 526 (8th Cir. 2017) (citation omitted). "In general materials embraced by the complaint include documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleadings." Id. (citation omitted). In deciding a motion to dismiss, a court may "consider 'matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;' without converting the motion into one for summary judgment." Id. (quoting 5B Wright &Miller, Federal Practice &Procedure § 1357 (3d ed. 2004)) (other citations omitted). "In a case involving a contract, the court may examine the contract documents in deciding a motion to dismiss." Id. (citation omitted). Importantly, "[t]his is true even if contract documents...