Bernard v. Cosby

648 F.Supp.3d 558

Lili BERNARD, Plaintiff, v. William COSBY, Defendant.

1:21-cv-18566-NLH-MJS

United States District Court, D. New Jersey

Signed January 3, 2023

JORDAN KOEL MERSON, JORDAN K. RUTSKY, MERSON LAW, PLLC, 950 THIRD AVENUE, 18TH FLOOR, NEW YORK, N.Y. 10022, On behalf of Plaintiff.

JENNIFER ANN BONJEAN, ASHLEY BLAIR COHEN, BONJEAN LAW GROUP, PLLC, 750 LEXINGTON AVENUE, 9TH FLOOR, NEW YORK, N.Y. 10022, On behalf of Defendant.

HILLARY MARA NAPPI, HACH ROSE SCHIRRIPA & CHEVERIE LLP, 112 MADISON AVENUE, 10TH FLOOR, NEW YORK, N.Y. 10016, On behalf of Amicus Curiae.

OPINION

HILLMAN, District Judge

Pending before the Court is Defendant William Cosby's ("Defendant") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF 10). For the reasons expressed below, Defendant's motion will be denied.

I. Background

For the purposes of the instant motion, the Court will treat as true all facts alleged in the Complaint and draw all reasonable inferences in favor of Plaintiff Lili Bernard ("Plaintiff"). See Jones v. Pi Kappa Alpha Int'l Fraternity, 431 F. Supp. 3d 518, 522 (D.N.J. Dec. 18, 2019).

Plaintiff, a citizen of California, (ECF 1 at ¶¶ 1, 6), met Defendant, a citizen of Pennsylvania, (id. at ¶¶ 2, 7), on the set of Defendant's television program, The Cosby Show, (id. at ¶ 9). In July of 1990, Defendant offered to mentor Plaintiff in acting and for several weeks thereafter led her through theatrical exercises, asked her detailed personal questions, and promised that if she worked hard and followed his direction, he'd feature her in a principal speaking role on The Cosby Show. (Id. at ¶¶ 10-11). During one such mentoring session involving vocal projection, Defendant grabbed Plaintiff by the ribs without permission and then fondled her breasts. (Id. at ¶ 13).

In August of 1990, Defendant convinced Plaintiff to travel from New York to Trump Taj Mahal in Atlantic City, New Jersey for a meeting with Defendant and an entertainment producer and arranged for her transportation. (Id. ¶¶ 15-16). The meeting continued from a Taj Mahal dining room to a suite and Defendant prepared what was represented as a non-alcoholic beverage for Plaintiff. (Id. at ¶¶ 19-20). After drinking the beverage, Plaintiff immediately felt dizzy, weak, and nauseous and later vomited and lost consciousness. (Id. at ¶¶ 21-22).

Plaintiff woke to Defendant undressing her despite her protest before falling back out of consciousness. (Id. at ¶¶ 23-24). When Plaintiff next regained temporary consciousness, Defendant was naked and on top of her, penetrating her vaginally with his penis. (Id. at ¶ 25). Plaintiff woke again in an empty bathtub or jacuzzi still unable to move and, next, the following morning naked and in bed. (Id. at ¶¶ 26-27). After Plaintiff woke, Defendant sat her up, dressed her, handed her money, and walked her to a waiting car that drove her back to New York. (Id. at ¶¶ 28-29).

Following the sexual assault in Atlantic City, Defendant threatened that he would file a police report against her, sue her for defamation, prevent her from working in the entertainment industry, and "erase" her if she reported the incident. (Id. at ¶¶ 31-33). Defendant drugged and assaulted Plaintiff on additional unspecified occasions. (Id. at ¶ 30).

Plaintiff filed the instant Complaint on October 24, 2021 pursuant to New Jersey's statutory extension of the statute of limitations for injuries resulting from sexual offenses, (id. at ¶ 8), which provided a two-year window following its enactment to bring otherwise time-barred actions in tort resulting from the commission of a sexual assault, "any other crime of a sexual nature," or statutorily defined sexual acts or sexual abuse. N.J.S.A. 2A:14-2b(a). The Complaint contains five counts, four intentional torts - assault, (ECF 1 at ¶¶ 38-42), battery, (id. at ¶¶ 44-47), intentional infliction of emotional distress ("IIED"), (id. at ¶¶ 49-55), and false imprisonment, (id. at ¶¶ 57-61) - as well as a separate count for punitive damages, (id. at ¶¶ 63-67).¹

Defendant moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF 10). Plaintiff filed an opposition, (ECF 12), and Defendant replied, (ECF 13). CHILD USA, a "non-profit national think tank working to end child abuse and neglect in the United States," (ECF 11-1 at ¶ 2), moved for leave to file an amicus brief, (ECF 11). In an August 11, 2022 Opinion and Order, the Court granted CHILD USA's motion. (ECF 14; ECF 15). CHILD USA filed a brief opposing Defendant's motion to dismiss that same day. (ECF 16).

II. Discussion

A. Jurisdiction

The Court has jurisdiction over this matter as the parties are diverse in citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a).

B. Motion to Dismiss

Pursuant to the Federal Rules of Civil Procedure, a party may assert by motion a failure to state a claim upon which relief can be granted. See Fed R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must provide 'a short and plain statement of the claim showing that the pleader is entitled to relief,' " Doe v. Princeton Univ., 30 F.4th 335, 341-42 (3d Cir. 2022) (quoting Fed. R. Civ. P. 8(a)(2)), and - accepting the plaintiff's factual assertions, but not legal conclusions, as true - " 'plausibly suggest[ ]' facts sufficient to 'draw the reasonable inference that the defendant is liable for the misconduct alleged,' " id. at 342 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

The sufficiency of a complaint is determined by "(1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

C. Interpretation and Constitutionality

Central to Defendant's motion to dismiss is the application, and overall constitutionality, of New Jersey's statute providing a two-year revival window for otherwise time-barred claims arising out of sexual offenses. The statute, in relevant part, provides:

Notwithstanding the statute of limitations provisions of N.J.S.2A:14-2, section 2 of P.L.2019, c. 120 (C.2A:14-2a), section 1 of P.L.1964, c. 214 (C.2A:14-2.1), or any other statute, an action at law for an injury resulting from the commission of sexual assault, any other crime of a sexual nature, a prohibited sexual act as defined in section 2 of P.L.1992, c. 7 (C.2A:30B-2), or sexual abuse as defined in section 1 of P.L.1992, c. 109 (C.2A:61B-1), that occurred prior to the effective date of P.L.2019, c. 120 (C.2A:14-2a et al.), and which action would otherwise be barred through application of the statute of limitations, may be commenced within two years immediately following the effective date.

N.J.S.A. 2A:14-2b(a).

Federal courts sitting in diversity "are required to apply the substantive law of the state whose law governs the action." Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir. 2010) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)); see also Schmigel v. Uchal, 800 F.3d 113, 119 (3d Cir. 2015) ("Pursuant to the Erie doctrine, '[a] federal court sitting in diversity must apply state substantive law and federal procedural law.' " (alteration in original) (quoting Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000))).²

Where, as here, a court is tasked with interpreting a statutory provision not previously interpreted by a state's high court, the objective "is to predict how the [New Jersey] Supreme Court would rule on this question of New Jersey law." See Roma v. United States, 344 F.3d 352, 361 (3d Cir. 2003) (citing U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996)). In so doing, the plain language of the statute may provide "persuasive indication" as to how a state high court would rule, see id. at 362, along with state intermediate appellate decisions, federal courts interpreting the state's law, analogous decisions, and other persuasive material, see Spence, 623 F.3d at 216-17; Fink v. Ritner, 318 F. Supp. 2d 225, 228 (D.N.J. May 24, 2004) ("A court will consider the New Jersey legislature's purpose for enacting such a statute, as well as how the New Jersey courts have interpreted and applied the statute.").

III. Analysis

A. Defendant's Interpretive Challenges to N.J.S.A. 2A:14-2b

The Court will first consider Defendant's arguments pertaining to interpretation of N.J.S.A. 2A:14-2b. Defendant's submissions seek to whittle down Plaintiff's potential causes of action until there is nothing left for her to open the two-year revival window of N.J.S.A. 2A:14-2b. First, Defendant asserts that, because Plaintiff was twenty-six years old at the time of the alleged assault in Atlantic City, she cannot be granted relief for a "prohibited sexual act" or "sexual abuse," as referenced in the revival statute, (ECF 10-2 at 8-10; ECF 13 at 2); see also N.J.S.A. 2A:14-2b(a), because both require the alleged victim to be under the age of eighteen, see N.J.S.A. 2A:30B-2 (listing prohibited sexual acts and defining "Child" as "any person under 18 years of age"); N.J.S.A. 2A:61B-1(a)(1) (defining "sexual abuse" as "an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult").

Relatedly, Defendant, relying on the New Jersey Supreme Court's decision in Hardwicke v. American Boychoir School, 188 N.J. 69, 902 A.2d 900 (2006), asserts that Plaintiff's common-law tort claims cannot be revived without a statutory cause of action not presented here, (ECF 10-2 at 13-15). With the specifically cited triggers for revival unavailable, Defendant claims that Plaintiff cannot state a cause of action for an injury resulting from the commission...