McGowan v. Weinstein
| Decision Date | 09 November 2021 |
| Docket Number | Case No. 2:19-cv-09105-ODW (GJSx) |
| Citation | 562 F.Supp.3d 744 |
| Parties | Rose MCGOWAN, Plaintiff, v. Harvey WEINSTEIN et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Andrew C. Porter, Pro Hac Vice, Julie B. Porter, Pro Hac Vice, Salvatore Prescott Porter and Porter PLLC, Evanston, IL, Anya Jennifer Goldstein, Jennifer Leigh Williams, Summa LLP, Los Angeles, CA, Jennifer B. Salvatore, Pro Hac Vice, Sarah Suzanne Prescott, Salvatore Prescott and Porter PLLC, Northville, MI, for Plaintiff.
Phyllis Kupferstein, Kupferstein Manuel LLP, Los Angeles, CA, for Defendant Harvey Weinstein.
Janet I. Levine, Robert E. Dugdale, Katelyn Kuwata, Kendall Brill and Kelly LLP, Sarah Emily Moses, Manatt Phelps and Phillips LLP, Los Angeles, CA, for Defendants David Boies, Boies Schiller Flexner, LLP.
Eric M. George, Noah S. Helpern, Browne George Ross O'Brien Annaguey and Ellis LLP, Los Angeles, CA, for Defendants Lisa Bloom, The Bloom Firm.
Ariella E. Muller, Pro Hac Vice, Zuckerman Spaeder LLP, New York, NY, Catherine S. Duval, Pro Hac Vice, Ezra B. Marcus, Pro Hac Vice, Zuckerman Spaeder LLP, Washington, DC, Katherine B. Farkas, Winston and Strawn LLP, Los Angeles, CA, for Defendant B.C. Strategies LTD.
ORDER GRANTING IN PART AND DEFERRING IN PART DEFENDANTS’ MOTIONS TO DISMISS [77] [78] [79] [80]; ORDER TO SHOW CAUSE RE: AMENDMENT AND SUPPLEMENTAL JURISDICTION
Plaintiff Rose McGowan is suing Defendant Harvey Weinstein and his alleged co-conspirators for their various roles in attempting to prevent McGowan from publicly disclosing in her memoir Brave that Weinstein raped her. McGowan's Complaint was previously the subject of four Motions to Dismiss which the Court granted in part and denied in part on December 7, 2020.1 (Order Mots. Dismiss, ECF No. 66.) As part of its disposition, the Court dismissed in their entirety McGowan's first and second claims under the Racketeering Influenced Corrupt Organizations ("RICO") Act and provided McGowan with leave to amend. (Id. at 14.) Thereafter, McGowan filed her First Amended Complaint ("FAC"), asserting claims for (1) civil violation of RICO, 18 U.S.C. § 1962(c) ; (2) civil RICO conspiracy, 18 U.S.C. § 1962(d) ; (3) fraudulent deceit under California Civil Code section 1709 ; (4) common law fraud; (5) invasion of privacy; (6) computer crimes under California Penal Code sections 502(c)(2), (c)(7), & (e)(1) ; (7) intentional infliction of emotional distress; and (8) negligent hiring and supervision. (See generally First Am. Compl. ("FAC"), ECF No. 69.)
Defendants again bring four Motions to Dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6), directing their arguments against all but one of McGowan's eight claims. (The Court previously found McGowan's fraud claim to be well-pleaded, and no Defendant seeks to disturb that finding at this juncture.) The four motions are filed respectively by: (1) B.C. Strategy Ltd. d.b.a. Black Cube; (2) David Boies and Boies Schiller Flexner, LLP ("Boies" or "Boies Defendants"); (3) Lisa Bloom and The Bloom Firm ("Bloom Defendants"); and (4) Weinstein. (See Bloom Defs.’ Mot. Dismiss ("Bloom MTD"), ECF No. 77; Boies Defs.’ Mot. Dismiss ("Boies MTD"), ECF No. 78; Black Cube's Mot. Dismiss ("Black Cube MTD"), ECF No. 79; Weinstein's Mot. Dismiss ("Weinstein MTD"), ECF No. 80.) For the reasons that follow, the Court GRANTS each motion IN PART by DISMISSING McGowan's RICO claims and ORDERING the parties TO SHOW CAUSE regarding further amendment and supplemental jurisdiction.2
The Court recited the key allegations in this case in its previous Order on Defendants’ Motions to Dismiss, and to the extent McGowan has repeated those allegations in the FAC, the Court incorporates that recitation by reference here. The present Order turns primarily on whether McGowan has sufficiently alleged a pattern of racketeering activity as required by the RICO statutes. The allegations germane to this issue are as follows, and as before, the Court takes all of McGowan's well-pleaded allegations as true. See Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001).
In 1997, at the Sundance Film Festival, Weinstein raped McGowan. (FAC ¶ 17.) Weinstein sought a non-disclosure agreement with McGowan, but McGowan refused to sign it. (FAC ¶ 19.)
McGowan "was hardly Weinstein's only victim." (FAC ¶ 20.) In late 1996 or early 1997, Weinstein used false pretenses to summon actress Ashely Judd to his hotel room at the Peninsula Hotel in Beverly Hills. (FAC ¶ 22.) Weinstein propositioned Judd several times, and Judd refused. (Id. ) In retaliation, Weinstein spread lies about Judd's professionalism, "torpedoing her chance to work on several movies." (Id. ) A similar incident occurred between Weinstein and actress Rosanna Arquette at a Beverly Hills hotel in the early 1990s. (FAC ¶ 23.) Others—including actors Salma Hayek, Uma Thurman, and Mira Sorvino, along with employees, interns, and aspiring actresses—have publicly recounted similar episodes with Weinstein in which he aggressively propositioned them, they rejected his advances, and they thereafter suffered career setbacks. (FAC ¶¶ 23–24.)
David Boies has worked with Weinstein since 2001, providing Weinstein primarily with legal and reputation-management services.3 (FAC ¶¶ 27, 29.) For example, in 2002, Boies was involved with Weinstein's efforts to convince The New Yorker not to publish stories about Weinstein's alleged 1998 sexual assault of a former employee of Weinstein's production company. (FAC ¶ 29.) More recently, in 2015, Boies was involved in Weinstein's efforts to avoid consequences following Weinstein's sexual assault of Italian model Ambra Battilana Gutierrez. (FAC ¶¶ 30–35.) Gutierrez had involved the police and had recorded Weinstein's second attempt to assault her. (FAC ¶ 31.) The police began investigating Weinstein, who, with the help of Boies and others, set out to (1) investigate Gutierrez; (2) discredit and otherwise talk to the press about Gutierrez; and (3) convince reporters not to publish a story about Weinstein's history of sexual abuse. (FAC ¶ 33.)
The remaining allegations involve the conduct of Weinstein and the other Defendants during the time McGowan was preparing to publish her memoir Brave. (FAC ¶¶ 36–153.) In 2016 and 2017, Weinstein set out to obtain, and was partially successful in obtaining, information about Brave. (FAC ¶¶ 83–103, 118–131.) He was assisted by longtime co-conspirator Boies in this endeavor, and together, they brought the Bloom Defendants and Black Cube onto their team, to assist both with silencing McGowan and with managing Weinstein's reputation in general. (FAC ¶¶ 46–50, 68–74.) With the aid of texts, emails, and other forms of electronic communication, Weinstein and his co-conspirators hired (1) an operative to intimidate McGowan, (FAC ¶¶ 84–86), and (2) an impersonator to gain McGowan's trust and obtain information about Brave , (FAC ¶¶ 89–100, 116, 121–129).
Weinstein also used his power in the entertainment industry to interfere with McGowan's film projects, (FAC ¶¶ 62–64), and at one point he offered her $1 million not to publish Brave , (FAC ¶ 132). Throughout this same time period, Weinstein and his team also made extensive efforts to keep the press from investigating him and publishing negative articles about him. (See, e.g. , FAC ¶¶ 99–108.) The FAC also tells of how, in 2017, McGowan was framed and indicted for drug possession on an airplane, but McGowan stops short of directly accusing Weinstein of orchestrating this particular scheme. (FAC ¶¶ 75–82.)
A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). To survive a dismissal motion, a complaint need only satisfy the "minimal notice pleading requirements" of Rule 8(a)(2). Porter v. Jones , 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ().
The determination of whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. A court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint ... as true and ... in the light most favorable" to the plaintiff. Lee , 250 F.3d at 679. However, a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). Ultimately, there must be sufficient factual allegations "to give fair notice and to enable the opposing party to defend itself effectively," and the "allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011).
Where a district court grants a motion to dismiss, it should generally provide leave to amend unless it is clear the complaint could not be saved by any amendment. See Fed. R. Civ. P. 15(a) ; Manzarek v. St. Paul Fire & Marine Ins. Co. , 519 F.3d 1025, 1031 (9th Cir. 2008). Leave to amend "is properly denied ... if amendment would be futile." Carrico v. City and County of San...
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