Doe v. Indyke

• Decision Date: 09 June 2020
• Docket Number: 19 Civ. 7773 (ER)
• Citation: 465 F.Supp.3d 452
• Parties: Lisa DOE, Plaintiff, v. Darren K. INDYKE and Richard D. Kahn, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

465 F.Supp.3d 452

Lisa DOE, Plaintiff,

v.Darren K. INDYKE and Richard D. Kahn, et al., Defendants.

19 Civ. 7773 (ER)

United States District Court, S.D. New York.

Signed June 9, 2020

Bradley James Edwards, Brittany Henderson, Edwards Pottinger LLC, Fort Lauderdale, FL, John Pottinger, J. Stanley Pottinger PLLC, South Salem, NY, for Plaintiff.

Bennet Jerome Moskowitz, Charles Lawrence Glover, Troutman Sanders LLP, New York, NY, for Defendants Darren K. Indyke and Richard D. Kahn, Financial Trust Company, Inc., NES, LLC, HBRK Associates, Inc.

Bennet Jerome Moskowitz, Troutman Sanders LLP, New York, NY, for Defendant Nine East 71st Street, Corporation.

OPINION & ORDER

Ramos, D.J.:

Lisa Doe brings this action for alleged sex trafficking and abuse she suffered at the hands of Jeffrey Epstein (now-deceased) and three of his associated business entities, which are alleged to have facilitated and participated in Epstein's conduct. This action is one of several brought in this District by Epstein's alleged victims.

The Amended Complaint alleges causes of action for battery, sexual assault, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of the Torture Victims Protection Act ("TVPA") against Epstein's estate, and for TVPA violations and negligence against Financial Trust Company, Inc. ("FTC"), NES, LLC ("NES") and HBRK Associates, Inc. ("HBRK," and together with FTC and NEC, the "Corporate Defendants"). Defendants move to dismiss two of the claims against Epstein's estate as being duplicative or time-barred, all of the claims against the Corporate Defendants for being improperly pled or time-barred, and the punitive damages claims against Epstein's estate on the grounds that punitive damages are not available against deceased defendants.

For the reasons stated below, Defendants’ motion is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND

The following facts are taken from Doe's Amended Complaint (Doc. 41).

Epstein is alleged to have been a man of enormous wealth who "had a compulsive sexual preference for young females," some as young as 14 years old, and who is alleged to have acted on that sexual preference for decades. (Doc. 41 at 19.) According to the Amended Complaint, and as relayed in the criminal indictment against Epstein, which is cited in the Amended Complaint and included as an exhibit thereto (the "Indictment"), Epstein enticed and recruited minor girls to visit his mansion in Manhattan to engage in sex acts with him, after which they were given hundreds of dollars in cash. (Id. ¶ 26.) The Indictment also alleges that Epstein caused others to entice and recruit minor girls to engage in sex acts with him. (Id. ) In order to maintain a supply of victims, Epstein paid some of his victims to recruit other girls to be similarly abused by him. (Id. ¶ 27.) Victims were "initially recruited to provide ‘massages’ to Epstein, which would be performed nude or partially nude, would become increasingly sexual in nature, and would typically include one or more sex acts." (Id. ¶ 30.)

A. The Alleged Conduct Against Doe

Doe alleges that she was one of these victims, and has been considered as such by the Government. (Id. ¶ 32.) Doe alleges that she was 17 when she was first sexually assaulted by Epstein in 2002. (Id. ¶ 75.) An avid dancer aspiring to a professional career in the field, Doe was approached at a New York dance studio by an associate of Epstein's who wished to hire Doe to teach a dance-based exercise class to a wealthy individual, later revealed to be Epstein. (Id. ¶¶ 76-77.) Doe went to Epstein's Manhattan property, where she met Epstein. (Id. ¶¶ 78-80.) Epstein engaged Doe in conversation and told her that he was closely connected to major dance companies in New York City, was personal friends with influential figures in dance, and that he could use his resources to further Doe's dance career. (Id. ¶¶ 81-83.) After making these representations, Epstein required Doe "to engage in various sexually-charged stretching activities." (Id. ¶ 84.) After the initial session, Epstein asked Doe to return the following day for another session, and when she did, Epstein "was again only interested in sexually-charged stretching activities that involved [Doe] sitting on top of his body and pressing her body up against his in other manners." (Id. ¶¶ 88-89.) Sometime thereafter, the associate who had initially approached Doe at her dance studio, called her on the telephone and told her that Epstein would like her to return to give him a massage. (Id. ¶ 92.) The associate explained that Doe would be paid $100 per hour to conduct the massage if she kept her clothing on, or $300 per hour if she performed the massage with her clothing off. (Id. ¶ 93.) Doe went to the Epstein property and met him in a massage room. (Id. ¶¶ 95-96.) Epstein instructed Doe on how he wished her to massage him, which Doe listened to "very intently, knowing that she had to comply with his demands if she wanted him to use his connections to help her—and, conversely, not punish her if she failed to comply—with her dance career." (Id. ¶ 96.) During this massage, Epstein forcibly inserted a sex toy into Doe's vagina, instructed her to squeeze his nipples, and began to masturbate. (Id. ¶¶ 98-99.) Despite this sexual assault, Doe, "feeling she had no choice, especially in light of the promises and implied threats" made by Epstein, returned to the property on many occasions thereafter, where she was continually sexually abused, and after each such occasion was paid hundreds of dollars. (Id. ¶ 104.) This conduct continued for approximately eight years, until 2010. (Id. ¶¶ 108, 118.)

B. The Alleged Involvement of the Corporate Defendants

Doe alleges that each of the Corporate Defendants performed actions or failed to perform actions that placed Doe in danger of being sexually abused by Epstein and assisted him in concealing his sexually abusive acts.¹

The allegations against HBRK and NES are nearly identical, but are alleged in separate sections with clear headings identifying the defendant to which they pertain. Doe alleges that HBRK and NES employees were hired by Epstein "strictly to perform functions to allow his sexual activity with young females," including Doe and other minors to continue. (Id. ¶¶ 40, 48.) HBRK and NES employees each kept large amounts of cash at Epstein's properties, including the one in Manhattan where Doe was allegedly sexually assaulted, in order for Epstein to have money to pay his victims, including Doe, for sexual activities. (Id. ¶¶ 41, 49.) These employees were also tasked with maintaining a list of names and phone numbers of young females, including Doe, to schedule them to go Epstein's properties to engage in sexual activities with him. (Id. ¶¶ 42, 43, 50, 51.) Employees were also expected to keep a schedule of appointment times for Doe and other young females so that a sexual encounter could occur at the exact place and time Epstein wanted. (Id. ¶¶ 44-45, 52-53.) HBRK and NES employees were also involved in recruiting additional victims and allegedly taught recruiters to inform Doe and other targeted young females that Epstein possessed great power and resources and that he would help them advance their education, careers, and lives if they provided Epstein with body massages. (Id. ¶ 68.) Doe also alleges that HBRK and NES employees helped conceal the sexual encounters between Epstein and Doe, and others, by: paying them; hiring lawyers for them; labeling them as masseuses in an attempt to describe the sexual encounters as innocuous; reminding them how powerful and wealthy Epstein was in order to prevent them from revealing the illegal nature of Epstein's sexual abuse; and maintaining damaging files on many of them that could be used against them if they were ever to turn on Epstein. (Id. ¶¶ 46, 54.)

The Amended Complaint's allegations against FTC are also clearly identified by a particular heading. (Id. ¶¶ 55-67.) FTC is alleged to have employed Epstein. (Id. ¶ 55.) According to the Amended Complaint, FTC "knowingly turned a blind eye to the dangerous sexual addictive propensities of its employee, Jeffrey Epstein, despite knowledge that he would cause harm to many young females including Plaintiff, in order to retain him as its most valuable employee." (Id. ¶ 57.) The Amended Complaint alleges that FTC's "corporate objective ... was to provide Jeffrey Epstein with sexual massages" and the sexual massages Epstein required from young females, including Doe, were conducted in the course and scope of Epstein's employment with FTC. (Id. ¶¶ 56, 59.) The Amended Complaint alleges that FTC employees other than Epstein were involved in coordinating sexually explicit massages by Doe and other young females, often minor children, for Epstein. (Id. ¶ 62; see also ¶ 64.) FTC taught recruiters to inform Doe and other targeted young females that Epstein possessed great power and resources and that he would help them advance their education, careers, and lives if they provided Epstein with body massages. (Id. ¶ 68.) Epstein, allegedly, frequently utilized corporate finances in furtherance of his sexually explicit behavior and conducted business telephone calls on behalf of FTC while receiving sexually explicit massages. (Id. ¶¶ 61, 63.) Doe also alleges that FTC helped conceal the sexual encounters between Epstein and Doe, as well as other young females, by: paying them; hiring lawyers for them; and labeling them as masseuses in an attempt to describe the encounters as innocuous. (Id. ¶ 67.)

II. LEGAL STANDARD

"To survive a motion to dismiss, 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, 678, 129 S.Ct. 1937, 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) ). A claim is facially plausible "when the...