Twersky v. Yeshiva Univ.

112 F.Supp.3d 173

Mordechai TWERSKY et al., Plaintiffs,

v.YESHIVA UNIVERSITY et al., Defendants.

No. 15 Cv. 2594 JGK.

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

Signed July 8, 2015.

Kevin Thomas Mulhearn, Kevin T. Mulhearn, P.C., Orangeburg, NY, for Plaintiffs.

Karen Yasmine Bitar, Ryan Frazer Harsch, Greenberg Traurig, LLP, Joel Cohen, Stroock & Stroock & Lavan LLP, New York, NY, Stephen A. Mendelsohn, Greenberg Traurig, P.A., Boca Raton, FL, for Defendants.

OPINION & ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs, thirty-four former students of Yeshiva University High School for Boys ("YUHS"), originally filed this Complaint in the New York State Supreme Court, New York County. The defendants are YUHS, Yeshiva University, former administrators of Yeshiva University, and several unnamed members of the Board of Trustees of YUHS and Yeshiva University.

The Complaint alleges claims for violations of the New York General Business Law, Title IX of the Education Amendments Act of 1972 ("Title IX"), the New York Executive Law section 296 (the "New York State Human Rights Law"), and the New York Social Services Law. The plaintiffs also request that this Court (a) declare a Second Circuit Court of Appeals decision invalid and (b) issue a writ of mandamus compelling one of the defendants to produce a document. The defendants removed the case to this Court and then moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

In a suit involving the same plaintiffs and defendants, this Court previously dismissed as untimely the plaintiffs' Title IX and New York General Business Law claims, as well as other state law claims.¹ See Twersky v. Yeshiva Univ., 993 F.Supp.2d 429 (S.D.N.Y.), aff'd, 579 Fed.Appx. 7 (2d Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1702, 191 L.Ed.2d 676 (2015). The remaining claims in this Complaint arise from the same events as the prior action. All of the plaintiffs' claims therefore are precluded by the principle of res judicata, and the defendants' motion to dismiss is granted.

I.

A.

In 2013, the plaintiffs filed a suit in this Court against the defendants, roughly twenty-one years after the last plaintiff had left YUHS. The complaint asserted causes of action for fraud, negligence, violation of the New York General Business Law, and violation of Title IX. The plaintiffs alleged that they were sexually abused by one or more of three individuals: George Finkelstein, Macy Gordon, and Richard Andron. The plaintiffs also alleged that the YUHS and YU administrators knew of the sexual abuse and failed to intervene. After the plaintiffs amended their complaint, the defendants moved to dismiss the claims as time-barred.

The Court granted the motion. This Court assumed arguendo that Title IX includes a discovery rule, but concluded that the plaintiffs' claims were nonetheless time-barred. Specifically, this Court held that the "plaintiffs were aware of their abuse at the time it occurred, and of the identity of their abusers and those who employed them—thus, had the plaintiffs approached an attorney prior to their turning twenty-one, they could have brought their claims under Title IX." Twersky, 993 F.Supp.2d at 440. Because the action was filed over three years after "each plaintiff should have become aware of the alleged Title IX violation, even taking account of tolling for infancy, the federal discovery rule would not save the Title IX claim from the applicable time bar." Id. at 441.

The Court also dismissed the remaining state law claims as untimely. The Court concluded that those claims were prima facie time-barred and that the plaintiffs had failed to plead a basis for equitable estoppel. Twersky, 993 F.Supp.2d at 441–49. The Court further held that the plaintiffs' fraud claim was incidental to the other claims, and thus the claim did not sound in fraud for purposes of taking advantage of the longer limitations period. Id. at 449–51.

The Court finally denied the plaintiffs' motion for leave to file a Second Amended Complaint. The plaintiffs insisted that a report commissioned by Yeshiva University (the "YU Report"), which was released after the plaintiffs had filed the First Amended Complaint, included new and relevant facts. The Court, however, held that because "the new information that has come to light has no bearing on the fact that all claims in the First Amended Complaint are untimely as a matter of law, repleading in this action would be futile." Id. at 452.

In September 2014, the Court of Appeals for the Second Circuit affirmed this Court's judgment. As to the timeliness of the plaintiffs' Title IX claim, the Court of Appeals held: "When plaintiffs left YUHS, more than 20 years before filing this suit on July 8, 2013, they were unquestionably aware of (1) their injuries, (2) their abusers' identities, and (3) their abusers' prior and continued employment at YUHS. This information was sufficient to put them on at least inquiry notice as to the school's awareness of and indifference to the abusive conduct by its teachers." Twersky, 579 Fed.Appx. at 9–10. The Court of Appeals also affirmed the dismissal of the state law claims. Id. at 10–11.

As to the motion to amend, the Court of Appeals held that "the proposed amendments included only further allegations of defendants' knowledge of prior abuse, which, for reasons already explained, would not have rendered plaintiffs' claims timely." Id. at 12.

The plaintiffs filed a petition for a panel rehearing or rehearing en banc, which was denied in October 2014. The plaintiffs then filed a petition for a writ of certiorari to the Supreme Court, which was denied in March 2015. Twersky v. Yeshiva Univ., ––– U.S. ––––, 135 S.Ct. 1702, 191 L.Ed.2d 676 (2015).

B.

In February 2015, the plaintiffs' filed the Complaint in this action in the New York State Supreme Court, New York County. The defendants timely removed the case.

The Complaint is based on the same set of facts as the prior action. And the parties in both cases are identical.² The plaintiffs allege that they were sexually abused by George Finkelstein, Macy Gordon, and Richard Andron. See, e.g., Compl. ¶¶ 11–14, 16, 31. The plaintiffs also allege that the YUHS and Yeshiva University administrators knew of the sexual abuse and failed to intervene. See, e.g., Compl. ¶¶ 15, 17, 20–21, 26.

The Complaint includes four counts. Count One alleges that the defendants violated Title IX, 20 U.S.C. § 1681(a), because they were deliberately indifferent to the sexual assaults. See Compl. ¶¶ 811–14. Count Two alleges that the defendants violated section 349 of the New York General Business Law, because they failed to disclose the danger of sexual assault at YUHS. See Compl. ¶¶ 862–63. For these two claims, the Complaint in this action is nearly identical to the plaintiffs' prior complaint.

Counts Three and Four are unique to this action. Count Three alleges that the defendants violated the New York State Human Rights Law, because the defendants permitted the abuse of the plaintiffs on the basis of their sex and religion. Compl. ¶ 903. Count Four alleges that the defendants violated New York Social Services Law section 413, because they failed to report the abuse of the plaintiffs. Compl. ¶¶ 920–30.

In the Prayer for Relief, the plaintiffs request a declaratory judgment that the Court of Appeals erred in Twersky v. Yeshiva University, 579 Fed.Appx. 7 (2d Cir.2014). Compl. at 315. They also petition for a writ of mandamus "requiring Yeshiva University to make public its entire investigative report on sexual abuse at YUHS." Compl. at 316.

II.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiffs' possession or that the plaintiffs knew of when bringing suit, and matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002).

Dismissal at the pleading stage is "appropriate when a defendant raises claim preclusion ... and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law." Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir.2000).

III.

The defendants move to dismiss the claims as barred under the doctrine of res judicata or claim preclusion.

A.

The parties did not discuss whether federal or state preclusion principles apply. The previous suit arose in federal court, and thus federal common law governs. See Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). One of the plaintiffs' prior claims arose under federal law—Title IX—and thus...