David v. Weinstein Co.

431 F.Supp.3d 290

Wedil DAVID , Plaintiff,

v. The WEINSTEIN COMPANY LLC , the Weinstein Company Holdings LLC, Harvey Weinstein, and Robert Weinstein, Defendants,

18-cv-5414 (RA)

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

Signed December 19, 2019

Harvey Weinstein, pro se.

Kevin Todd Mintzer, Kevin Mintzer, P.C., Bryan Louis Arbeit, Douglas Holden Wigdor, Wigdor LLP, New York, NY, for Plaintiff.

Gerald Leonard Maatman, Jr, Chicago, IL, Alejandro Hari Cruz, James Vincent Masella, III, Melissa Rae Ginsberg, Patterson, Belknap, Webb & Tyler LLP, Abigail Elizabeth Davis, Lawrence Steve Spiegel, Skadden, Arps, Slate, Meagher & Flom LLP, Brian Pete, Elior Daniel Shiloh, Simi Bhutani, John Jacob Rosenberg, Matthew H. Giger, Rosenberg, Giger & Perala P.C., Karen Yasmine Bitar, John Christian Scalzo, Jonathan Peter Gordon, Reed Smith LLP, Israel David, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY 10004, Jennifer Rose Nunez, Kristen M Peters, Laura Wilson Shelby, Seyfarth Shaw LLP, John L Barber, Kelsey Elizabeth Scherr, Lewis Brisbois Bisgaard and Smith LLP, Joshua Garrett Hamilton, Laura R. Washington, Attorney to be Noticed, Marvin S. Putnam, Latham & Watkins LLP, Los Angeles, CA, for Defendants.

OPINION & ORDER

RONNIE ABRAMS, United States District Judge:

Plaintiff Wedil David filed this action against Defendants Harvey Weinstein, Robert Weinstein, The Weinstein Company LLC, and The Weinstein Company Holdings LLC,¹ asserting claims related to two alleged incidents of sexual assault by Harvey Weinstein. Defendant Harvey Weinstein moved to dismiss the Fifth Cause of Action (Sex Trafficking) for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendant Robert Weinstein moved to dismiss the Sixth Cause of Action (Negligence)—the only claim asserted against him in Plaintiff's Third Amended Complaint—for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Harvey Weinstein's motion is denied, but Robert Weinstein's motion is granted. Plaintiff may proceed with the following causes of action: sexual battery, battery, assault, and sex trafficking against both Harvey Weinstein and the Companies; gender violence against Harvey Weinstein; and negligence and negligent retention or supervision against the Companies.

BACKGROUND

The facts of this case have been detailed in the Court's prior opinion granting the motions to dismiss the claims against nine former directors of the Companies (the "Director Defendants"). See David v. The Weinstein Company LLC , No. 18-cv-5414 (RA), 2019 WL 1864073 (S.D.N.Y. Apr. 24, 2019). The Court therefore includes only those facts necessary to resolve the instant motions. These facts are drawn from Plaintiff's Third Amended Complaint, filed on June 6, 2019, and are assumed to be true for the purpose of the pending motions to dismiss. See Stadnick v. Vivint Solar, Inc. , 861 F.3d 31, 35 (2d Cir. 2017).

I. The Alleged Sexual Assaults

Plaintiff alleges that she first met Harvey Weinstein ("HW") at a party hosted by the Companies in late 2011. TAC ¶ 24. Upon learning that she was an actress, Weinstein allegedly offered to help Plaintiff with her acting career. Id. ¶ 25. Plaintiff states that, over the next few years, HW invited her to attend award show parties hosted by the Companies, and that the two communicated every few months. Id. ¶ 26.

Plaintiff alleges that, in late 2015, she met HW at the Montage Hotel in Beverly Hills, California to discuss a possible role on a television show called "Marco Polo," on which both HW and his brother, Robert Weinstein ("RW"), served as executive producers. Id. ¶¶ 28–29. HW allegedly told Plaintiff that he "had another movie role that he would cast her in," and that he also wanted her to do some "voiceover work" for him because her voice was "soft and sexy." Id. ¶ 30. According to Plaintiff, at some point during this meeting in his hotel room, HW suddenly asked if he could masturbate in front of her. Id. ¶ 31. Although Plaintiff refused his request, HW allegedly grabbed her wrist with one hand, and masturbated "in front of her until completion" with the other. Id. ¶ 32.

In early spring 2016, HW allegedly contacted Plaintiff to meet her once again at the Montage Hotel, in order to celebrate what he claimed would be her upcoming role in Marco Polo, "giving her the impression that she had been chosen for the part." Id. ¶ 33. Since Plaintiff had already been in contact with the Companies' employees about a role on Marco Polo, including speaking with a producer for Marco Polo, she agreed and met Weinstein in his hotel room. Id. ¶ 34. Plaintiff alleges that, at some point during this meeting, HW excused himself and returned wearing a bathrobe. Id. ¶ 36. According to Plaintiff, HW then "grabbed her" and "pulled her into the bedroom." Id. Although Plaintiff told HW that she "did not want to do anything sexual with him," he allegedly threw her on the bed, pulled down her jeans, and started to perform oral sex on her. Id. ¶ 37. Plaintiff alleges that HW then "used his massive weight and strength" to hold her down and force "his penis inside of her vagina without a condom." Id. After HW withdrew, he allegedly grabbed Plaintiff's wrist with one hand, and, as before, masturbated with the other.

Id. Plaintiff states that she was eventually able to break free from his grasp and flee the suite. Id.

According to Plaintiff, HW subsequently contacted her, acted "as if nothing had happened" between them, and told her that he was coming to Los Angeles. Id. ¶ 38. In response, Plaintiff asserts that she "swore at him and hung up the phone." Id.

Plaintiff states that she neither received a job offer for "Marco Polo" nor for any of the other potential acting roles that HW had discussed with her. Id. ¶ 39.

Plaintiff also alleges that, for decades, HW had engaged in a "pattern and practice of sexually harassing" female employees, applicants, and "actresses seeking professional opportunities from him." Id. ¶ 88. According to Plaintiff, the Companies were also aware that HW engaged in a pattern of "using his power and the promise of procuring jobs to coerce and force actresses to engage in sexual acts with him." Id. ¶ 94.

II. Additional Allegations About Robert Weinstein

Plaintiff alleges that, during their time together at Miramax, RW knew that HW "engaged in a pattern of sexual misconduct and he helped HW cover it up." Id. ¶ 43, Specifically, Plaintiff alleges that while at Miramax, a young woman left the company abruptly after an "encounter with HW," and that the woman later received a settlement. Id. ¶ 45. Plaintiff asserts that "RW personally knew the circumstances that caused this young woman's abrupt departure" because his assistant handed him a letter from the woman's lawyer, which stated "Your brother is a pig." Id. ¶ 46.

Plaintiff next alleges that, in 1998, RW personally paid £250,000 to settle claims that asserted HW had "sexually assaulted and attempted to rape a female employee." Id. ¶ 47. According to Plaintiff, that settlement agreement also listed RW as one of the released parties, and stated that only RW or HW could consent to the release of confidential information covered by the agreement. Id. ¶ 48. Plaintiff asserts that RW had both "personal and financial motives to help conceal HW's sexual misconduct." Id. ¶ 50.

Plaintiff asserts that, although RW knew about HW's sexual misconduct and helped to conceal it, RW nonetheless made public statements about HW's " ‘good’ behavior." Id. ¶ 57. According to Plaintiff, RW's statements "maintained the public perception that HW was a ‘kind’ and ‘gentle’ person." Id. ¶ 59.

Despite knowing about HW's sexual misconduct, Plaintiff alleges, RW nonetheless decided to leave Miramax with HW in 2005 to start the Companies. Id. ¶ 60. Plaintiff further states that, notwithstanding his purported knowledge that HW still engaged in "similar sexualized and abusive conduct," RW effectively gave HW "free reign to run his portion of the business." Id. ¶ 62. Plaintiff further alleges that RW knew HW "posed a risk to the female employees and actresses" that HW encountered in connection with the business. Id. ¶ 64. RW, however, allegedly "did nothing to warn or otherwise protect" those female employees and actresses. Id. ¶ 67. Rather, Plaintiff claims, RW permitted HW to "misuse the Companies' funds and resources to engage in his sexual misconduct." Id. ¶ 68.

According to Plaintiff, RW also knew that his brother was "doing nothing" to address his "sexualized and abusive behavior." Id. ¶ 71. Plaintiff asserts that HW's behavior "got so bad" that RW and HW stopped interacting. Id. ¶ 73. RW allegedly moved to Los Angeles to run the Companies' office there, and so that he could "further distance himself from HW and not be forced to take action to stop his sexual misconduct." Id. ¶ 75. Plaintiff again alleges that, throughout this time, RW "did nothing to stop HW or warn other female employees and actresses about the consequences of being around HW." Id. ¶ 73. Plaintiff states that although RW "distanced and protected himself from HW," he still did not warn or protect anyone else. Id. ¶ 76.

Plaintiff asserts that, rather than taking any action, RW "continued to back HW" professionally, including by re-signing his employment agreement in 2015. Id. ¶ 78–79. According to Plaintiff, RW had a financial incentive "not to warn" the Companies' Board of Directors about HW's sexual misconduct or about RW's own "prior acts" to conceal the misconduct. Id. ¶ 84.

PROCEDURAL HISTORY

The Court assumes the parties' familiarity with the procedural history of this case. Events between November 14, 2017, when Plaintiff filed her initial complaint in California state court, and April 24, 2019, when this Court dismissed Plaintiff's claims against the Director Defendants, were summarized in the Court's prior opinion. See David , 2019 WL 1864073, at *3–4. The Court now details the...