Dos Santos v. Assurant, Inc.

• Decision Date: 13 May 2022
• Docket Number: 21-CV-6368 (PAE) (RWL)
• Parties: ANDREIA ROSA DOS SANTOS, Plaintiff, v. ASSURANT, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

ANDREIA ROSA DOS SANTOS, Plaintiff,
v.
ASSURANT, INC., et al., Defendants.

No. 21-CV-6368 (PAE) (RWL)

United States District Court, S.D. New York

May 13, 2022

REPORT AND RECOMMENDATION TO HON. PAUL A. ENGELMAYER: MOTION TO DISMISS

ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE

Following the disposal of her original watercolor paintings from a storage unit, Andreia Rosa Dos Santos, preceding pro se, filed this action on July 26, 2021, against Assurant, Inc. (“Assurant”), Falcon Shield Property Preservation LLC (“Falcon Shield”), and five Doe defendants, asserting claims under the Visual Artists' Rights Act (“VARA”), 17 U.S.C. § 106A; claims for copyright infringement pursuant to the Copyright Act, 17 U.S.C. § 106; and tort claims under New York law. The Court previously dismissed Plaintiff's copyright and VARA claims and ordered her to show cause why her state-law claims should not be dismissed. Defendant Assurant now moves to dismiss the state-law claims. For the reasons set forth below, I recommend that Assurant's motion be GRANTED and the state-law claims be dismissed without prejudice.

FACTUAL BACKGROUND

The facts set forth are those relevant to the instant motion and are based on the allegations in the Complaint (Dkt. 2), read in light of Ms. Dos Santos's subsequent Declaration (Dkt. 9 (“Dos Santos Decl.”).) and her brief in opposition to Defendant Assurant's Motion to Dismiss (Dkt. 23 (“Pl. Opp.”).) For purposes of this motion, the Court

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accepts the well-pled allegations as true and draws all reasonable inferences in favor of Ms. Dos Santos.

Ms. Dos Santos is a visual artist, born in Brazil, who has exhibited her works locally and internationally. (Compl. ¶¶ 43-44, Ex. 7.) She painted 171 watercolor paintings from 2009 to 2017. (See Compl. Exs. 8, 9.)

On March 20, 2017, Ms. Dos Santos was evicted from her residence in Union, New Jersey as a “last step” related to a residential reverse mortgage foreclosure. (Compl. ¶ 29 and Ex. 3.) That same day, Defendant Falcon Shield, allegedly at the direction of Defendant Assurant, packed and moved to a storage unit a number of Ms. Dos Santos's original artworks from her former residence. (Compl. ¶¶ 27-30.) On April 19, 2017, while Ms. Dos Santos was in the process of applying for financial assistance from the New York City Human Resources Administration to pay for the storage unit, her artworks were “trashed out” of the storage unit. (Compl. ¶¶ 31-32 and Ex. 1.) Ms. Dos Santos attempted to contact Falcon Shield on April 19, 2017 to receive the bill for the next month of the storage unit; however, she did not speak to any of Falcon Shield's employees until the following day, when the “trashing out” was confirmed. (Compl. ¶ 33 and Ex. 2.)

In the months that followed, Ms. Dos Santos and her husband communicated with Assurant to attempt to locate her paintings and “rescue” them from being lost forever. (Compl. ¶¶ 35-40, Exs. 1, 2.) On May 11, 2017, they filed a police report with the Township of Union Police Department. (Compl. ¶ 42 and Ex. 4.) After several months of “back and forth” with Assurant, employees in Assurant's Claims Department stated that “all work” regarding disposal of the storage unit's contents was “performed properly and

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legally” and denied Ms. Dos Santos's claim for compensation. (Compl. ¶¶ 40-41 and Ex. 3.)

On October 23, 2017, Ms. Dos Santos received a final email from the manager of Assurant's Claims and Litigation Department, stating that Dos Santos had been informed on the day of her eviction that although the first 30 days of storage would be paid for, she was responsible for transferring the storage unit to her name and paying for any ongoing cost of storage. (Compl. Ex. 3.) The email further stated that Assurant's contractor “followed proper protocol as directed by the bank[,]” that Assurant's claim denial was finalized, and that “there is nothing more that [Assurant] can do regarding this matter.” (Id.) Ms. Dos Santos denies having received instructions that she would be responsible for taking over and paying for the storage unit within 30 days. (Compl. ¶ 41.)

Ms. Dos Santos was devastated by the loss of her paintings but initially did not pursue litigation in part because she believed, based on Assurant's communications, that there was nothing she could do. (Compl. ¶¶ 47-50; see also Dos Santos Decl. at 2-3.) She also experienced profound grief at the loss of her life's work, exacerbated by the subsequent deaths of both her parents. (Dos Santos Decl. at 2-3; see also Pl. Opp. at 9.) More recent research, however, led Ms. Dos Santos to believe that she could seek redress in the courts for the destruction of her paintings, leading her to file the Complaint. (Compl. ¶¶ 52-55.)

PROCEDURAL HISTORY

Ms. Dos Santos commenced this action on July 26, 2017. On August 17, 2021, the Court ordered Ms. Dos Santos to show cause. (Dkt. 4 (“OSC”).) The OSC sua sponte dismissed the claims under the Copyright Act and VARA, because Ms. Dos Santos “does

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not show that Defendants infringed on a copyright by engaging in unauthorized copying of Plaintiff's work. And the facts alleged do not suggest that Defendants violated Plaintiff's right of attribution or improperly claimed authorship of her work.” (OSC at 5.) With respect to the state law claims, the OSC stated that the Court will not exercise supplemental jurisdiction given dismissal of the federal law claims, and expressed doubt at the prospect of diversity jurisdiction. (OSC at 5-7.) The OSC further noted that the state-law claims appeared barred by New York's three-year statute of limitations for negligence actions, and that Ms. Dos Santos's argument to equitably toll the statute of limitations because she was “scared” and in “shock” was not viable. (OSC at 7-8.)

The OSC directed Ms. Dos Santos to “file a written declaration within 30 days ... showing cause (1) why the Court should not decline to exercise supplemental jurisdiction of Plaintiff's remaining state-law claims because she fails to plead facts showing complete diversity of citizenship; and, if she demonstrates that there is diversity of citizenship, (2) why the state-law claims should not be dismissed as time-barred.” (OSC at 8-9.) The Court concluded that “if Plaintiff's declaration does not show that her citizenship is different from that of all Defendants, the Court will dismiss Plaintiff's state-law negligence claim without prejudice.” (OSC at 9.)

On December 3, 2021, Ms. Dos Santos filed her Declaration in response to the OSC. Ms. Dos Santos urged the Court to exercise supplemental jurisdiction over her state-law claims. (Dos Santos Decl. at 1.) She argued that the state-law claim is not time-barred because: the injury caused by the destruction of artwork is ongoing; she did not discover that she had any remedy for her loss until sometime in 2020 after experiencing deep grief and mourning of her loss and subsequent deaths of her parents;

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and Defendant Assurant “engaged in misleading deceptive conduct ... to prevent [her] from recognizing a possible cause of action.” (Dos Santos Decl. at 2-3.) Finally, she requested that the Court reconsider its dismissal of her VARA claim because she stated a claim under 17 U.S.C. § 106A(a)(3)(B), which provides that “[t]he author of a work of visual art” shall have the right “to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” (Dos Santos Decl. at 4.); 17 U.S.C. § 106A(a)(3)(B). Ms. Dos Santos did not provide any evidence of diversity of citizenship.

On December 15, 2021, a Summons issued for Assurant and Falcon Shield. (Dkt. 13.) Assurant responded with the instant Motion to Dismiss on January 12, 2022. (Dkt. 16.)

ASSURANT'S MOTION TO DISMISS

In its Memorandum of Law, Assurant argues that: 1) the Court lacks subject matter jurisdiction because the federal claims have been dismissed and there is not complete diversity of citizenship of the parties; 2) even if the Court had jurisdiction, all of Ms. Dos Santos's claims are time-barred; and 3) even if the claims were not time-barred, there is no basis to hold Assurant liable for Falcon Shield's alleged conduct. (See Dkt. 17 (“Def. Mem.”).) Assurant seeks dismissal with prejudice.

In opposition, Ms. Dos Santos requests that the Court deny the Motion to Dismiss or, in the alternative, give leave to amend her Complaint “to address any deficiencies identified by the Court.” (Pl. Opp. at 1.) After correcting alleged misstatements of fact in Assurant's Memorandum (Pl. Opp. 2-6), Ms. Dos Santos argues: (1) that the Court should reinstate her VARA claim because the OSC did not cite the destruction provision of VARA

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and was issued by a judge who is no longer presiding over the case; (2) that, once reinstating the VARA claim, the Court should exercise supplemental jurisdiction over the state-law claims; (3) the claims are not time-barred because the statute of limitations is equitably tolled and additionally extended by Executive Order; and (4) that she sufficiently pled facts from which an agency relationship between Assurant and Falcon Shield can be inferred. (Pl. Opp. 7-12.) Regarding the timeliness of her Complaint, Ms. Dos Santos suggests for the first time that, because Defendants never told her where her paintings were disposed, that “it is entirely plausible that Defendants destroyed Plaintiff's art over a period of time extending into 2018 and within three years of the filing of this suit.” (Pl. Opp. at 9.) Ms. Dos Santos also suggests that the six-year statute of limitations under NY CPLR § 213 may apply to her state-law claims, rather than the three-year statute of limitations under NY CPLR § 214(5). (Pl. Opp. at 13.) Ms. Dos Santos contends that the Court should construe her pleadings liberally as she is pro se.

In reply, Assurant argues that dismissal...