Anonymous v. Simon, No. 1:2013cv02927 - Document 15 (S.D.N.Y. 2013)
Court Description: OPINION re: 7 MOTION to Dismiss filed by Arnold Simon. For the reasons set forth above, the Defendant's motion to dismiss is granted and the motion to compel is denied as moot. The Complaint is dismissed with leave to replead within twenty days. (Signed by Judge Robert W. Sweet on 9/18/2013) (cd)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----- ------ ----- -------------x ANONYMOUS, PIa iff, 13 Civ. 2927 against O PINION ARNOLD SIMON, Defendant. ---------------------------------------x Ir= --:.~.::::::- -.:.. USOC A P PEA RAN C E S: ~h);'1/\ DOCUMEi~ 1 Atto iff LEVINE & BLIT, PLLC 350 Fi Avenue, Suite 6902 New York, NY 10118 By: Matthew J. Blit, Esq. Just S. Clark, Esq. Attorne ELECfRONfCA.,. DOC #: ----:>"+t. DATE FILED. for Defendant LAW OFFICE OF ROBERT J. TOLCHIN, ESQ. 225 Broadway, 24th Floor New York, NY 10007 By: Robert J. Tolchin, Esq. :It· I)!~ Sweet, D.J. The defendant, Id Simon ("Simon" or" has moved pursuant to Fed. R. Ci v. P. 12 (b) (6) 12(b) (6)") to ch rel upon ("Rule complaint ("Complaint") of pla ss Anonymous 1 ("Anonymous" or "Plaintiff") cla fendant") for f can be granted. moved, pursuant to Fed. R. Civ. P. 10 iff ilure to state a Defendant has also ("Rule 10"), to compel Plaintiff to file an amended complaint containing her name. Bas upon the conclusions set forth below, t dismiss is grant , and motion to compel is motion to nied as moot. Prior Proceedings In March 2013, Supreme Court of Plaintiff fil the Complaint in the State of New York (t "State Court"), alleging that Defendant engaged in unprotected sexual intercourse wi infected th He Plaintiff despite know s Simplex I I that he was ("HSV-II"), and Plaintiff Before this action was removed to federal court, Plaintiff filed an order to show cause seeking pe ssion to file her complaint anonymously. The state court granted request pending a ring on the r to show cause. The action was removed be the show-cause hearing took place. 1 1 contract HSV-II as a result of her sexual encounter with Defendant. Plaintiff asserted three common law causes of action In the Compla negli emot or negli 1 distress , which, acc per se, ng to Plaintiff, are: intentional infliction of Defendant removed gross negli the action to federal court on May 1, 2013 on the basis of diversity. On May 6, 2013, Defendant moved to compel Plaintiff to file an amended complaint containing her actual name. May 8, 2013, De to s nt moved to 12 (b) (6) . On ss the Complaint pursuant motions were heard and marked fully tted on June 5, 2013. The Complaint Fails To State A Claim In 12(b) (6), the e ral, on a motion to dismiss pursuant to ctual allegat in the complaint are accepted as true, and all inferences are drawn in favor of the ader. Mills v. Polar Molecular Co (2d Cir. 1993). 12 F.3d 1170, 1174 However, "[tJhreadbare als of t elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. I 2 1 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). sufficient Rather, plaintiffs must allege cts to at least "nudge [ ] their claims across the line from conceivable to ausible. u Bell Atl. Co . v. Twombly, 550 U.S. 544, 570 (2007). The ims asserted by Plaintiff are all founded she did not have HSV-II prior to her upon the premise t encounter th the De Plaintiff has expressly alleged , stating in the as aint that she "was not infect with [HSV-2] prior to the commencement of with defendant. conc u Compl. i 14. However, beyond that ory statement, Plaintiff has provided no support to the contention that was not II or to her encounter with De Pla iff's all ctual ected w h HSV Thus, while ions certainly render it conce HSV-II of relationship De le that , the Complaint is bereft factual support that would be necessary to "nudger] [Plaintiff's claims] across the line from conceivable to ausible. u Twombl Since t 550 U.S. at 570. Complaint "lacks [the] factual support ficient to meet the Twombl plaus 1 standard of ---"- lity,U it fails to state a claim against Defendant. 3 v Inc. ABM Janitorial Svcs.-Ne. No. ----------------------------------------~------ ( LT S), 2 0 11 WL 12 1 98 4 3 , at also * 7 ( S . D. N . Y. Ma r. 2 4, 2 0 11) ; see Inc. v. Gra , No. Const. ------------------~--------------~ (GTS/DEP), 2012 WL 2873532, at *3 the Supreme Court not Twombly, (N.D.N.Y. Y 12, 2012) cts plaus a y suggesti r to proceed to discovery and cannot 0 on the mere rest its Amended Compla process will provi 10 Civ. 0129 in the analogous situation in Plaintiff must allege plausible claim in 09 Civ. 1884 necessary that scovery cts to support its cl . ") . Conclusion For the reasons set forth above, the Defendant's motion to dismiss is grant denied as moot. wi and the motion to compel is The Complaint is smissed with leave to twenty days. It is so New York, NY September Ij?, 0 red. 2013 U.S.D.J. 4
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