John Doe v. Mozer, Case No. 2:16-cv-00210-KJD-VCF

JOHN DOE, an individual, Plaintiff, v. DEBORAH MOZER, an individual; DOE individuals II-XI,and ROE CORPORATIONS I-X, inclusive, Defendants.

Case No. 2:16-cv-00210-KJD-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

June 21, 2016

ORDER

Presently before the Court is Defendants' Motion to Dismiss for Failure to State a Claim (#4). Plaintiff filed a response in opposition (#24) to which Defendant replied (#26). Also before the Court is Plaintiff's Motion for Rule 11 Sanctions (#25) to which Defendant replied in opposition (#24).

Background

On or about February 4, 2015 Plaintiff and Defendant met on the online dating application Tinder.¹ Initially, the party's relationship proceeded via text message. Eventually, Defendant invited Plaintiff to meet in person at her home. During their rendezvous Defendant performed oral sex upon Plaintiff. Plaintiff, who did not have a condom, asked Defendant to provide one. She then explained that she did not have a condom and that she could no longer get pregnant. See Compl. ¶ 15. Plaintiff responded he was a "germ phobe" and that "pregnancy was not the issue." Id. at ¶ 16. Defendant assured Plaintiff she was "disease free" and he was not toworry. Id. at ¶ 17. The parties then engaged in unprotected sexual intercourse. Approximately one week later, on or about February 18, 2015, the parties again met in person. Defendant again assured Plaintiff that she was "clean" and the parties engaged in unprotected sex. Id. at ¶ 24. Shortly thereafter, Defendant informed Plaintiff that she had herpes and had experienced a "breakout." Id. at ¶ 26. As a result, Plaintiff contracted herpes, a lifelong, incurable disease.

Plaintiff then filed the present complaint including the following claims: First, battery; second, fraudulent misrepresentation; third, constructive fraud; fourth, willful misconduct; fifth, gross negligence, sixth, intentional infliction of emotional distress; and seventh, negligence per se. Defendant now moves to dismiss Plaintiff's claims for gross negligence, negligence per se, constructive fraud, battery, willful misconduct, and intentional infliction of emotional distress.

I. Legal Standard for Dismissal

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions or a formulaic recitation of the elements of a cause of action."Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level."Twombly, 550 U.S. at 555. Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter to 'state a claim for relief that is plausible on its face.'"Iqbal, 556 U.S. at 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions or mere recitals of the elementsof a cause of action, supported only by conclusory statements, are not entitled to the assumption of truth. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Further, where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged—but it has not show[n]—that the pleader is entitled to relief."Id. at 679 (internal quotation marks omitted). Thus, when the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. Moreover, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party."In re StacElecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation omitted).

II. Analysis

A. Gross Negligence

Defendant moves to dismiss Plaintiff's gross negligence claim on the grounds that Defendant did not owe a duty to Plaintiff and that Plaintiff assumed the risk of contracting a sexually transmitted disease by engaging in unprotected sex. To state a claim, Plaintiff must allege sufficient facts for the following elements: (1) the existence of a duty of care, (2) breach, (3) legal causation, and (4) damages. Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009). Additionally, to state a claim for gross negligence, Plaintiff must state sufficient facts to allege Defendant "[failed] to exercise even a slight degree of care." Hart v. Kline, 116 P.2d 672, 674 (Nev. 1941) (citing Shaw v. Moore, 162 A. 373, 374 (Vt. 1932)).

Plaintiff alleges Defendant had a duty to warn sexual partners, including Plaintiff, of her herpes and take reasonable precautions to avoid spreading the infection. See Compl. ¶ 106-108.Plaintiff alleges that Defendant breached this duty by failing to disclose her herpes and engaging in unprotected sex. Plaintiff further alleges, not only did Defendant fail to warn or take reasonable prophylactic measures; she actively dissuaded Plaintiff from using a condom, ultimately causing Plaintiff's injury. Id. at ¶¶ 111, 115. The Court finds that Plaintiff has alleged sufficient facts to assert each element of negligence. The Court further finds that Defendant's active dissuasion from using prophylactic protection sufficiently alleges gross negligence.

Defendant further asks this Court to dismiss Plaintiff's gross negligence claim based on her claim that Plaintiff assumed the risk of contracting herpes because of his "high risk" sexual behavior. See Mot. to Dismiss (#4) at 5. To prove assumption of the risk, Defendant must show (1) Plaintiff voluntarily exposed himself to the risk, and (2) Plaintiff had actual knowledge of the risk assumed. Sierra Pac. Power Co., v. Anderson, 358 P.2d 892, 894 (Nev. 1961). Whether Plaintiff had actual knowledge of the risk assumed is a question of fact. Renaud v. 200 Convention Ctr. Ltd., 728 P.2d 445, 446 (Nev. 1986). The Court will not address Defendant's affirmative defense at this stage as doing so would require the court to convert the motion to dismiss into a motion for summary judgment. The Court finds Plaintiff alleged sufficient facts to assert his claim for gross negligence. Therefore, the Court denies Defendant's motion to dismiss Plaintiff's gross negligence claim.

B. Battery

Defendant moves to dismiss Plaintiff's battery claim. Defendant argues Plaintiff consented to the sexual contact and that consent eliminates Plaintiff's claim for battery. Battery is "any willful and unlawful use of force or violence upon the person of another." NRS 200.481. Nevada law does not differentiate between criminal and civil battery.The allegations of the complaint must plausibly allege Defendant willfully and unlawfully used force or violence upon Plaintiff.

Here, Plaintiff alleges Defendant "willfully and intentionally had sexual relations with Plaintiff, resulting in harmful contact." See Compl. ¶52. The Court finds Plaintiff's allegation to be a legal conclusion presented as fact. Moreover, the allegations in the complaint do not allege that Defendant's failure to disclose her herpes status constitutes force or violence under NRS 200.481. Therefore, the Court grants Defendant's motion to dismiss Plaintiff's claim for battery, but grants Plaintiff leave to amend the complaint to cure the deficiency.

C. Negligence Per Se

Defendant moves to dismiss Plaintiff's negligence per se claim because NRS 441A.180 does not allow for private right of action. The statute states:

1. A person who has a communicable disease in an infectious state shall not conduct himself or herself in any manner likely to expose others to the disease or engage in any occupation in which it is likely that the disease will be transmitted to others.

2. A health authority who has reason to believe that a person is in violation of subsection 1 shall issue a warning to that person, in writing, informing the person of the behavior which constitutes the violation and of the precautions that the person must take to avoid exposing others to the disease. The warning must be served upon the person by delivering a copy to him or her. .

3. A person who violates the provisions of subsection 1 after service upon him or her of a warning from a health authority is guilty of a misdemeanor.

NRS 441A.180. Whether a statute creates a private right of action is a matter of law. Allstate v. Thorpe, 170 P.3d 989, 993 (Nev. 2007). It is presumed the legislature did not intend to create a private right of action unless the statute expressly provides one. Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 104 (Nev. 2008). To overcome this presumption, Plaintiff must show the following factors balance in his favor: (1) Plaintiff was one of the class for whose special benefitthe statute was enacted; (2) there was any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; and (3) the implication of such a remedy was consistent with the underlying purposes of the legislative [sch]eme. Id. at 101. (citing Sports Form, Inc. v. LeRoy's Horse & Sports Place, 823 P.2d 901, 902 (Nev. 1992)). The factors are not granted equal weight with the determinative factor being whether the legislature intended to create a private right of action. Id. The Court examines each of the factors in...