Preview
FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JULIA ORMOND,
Plaintiff,
v. Index No. 952107/2023
HARVEY WEINSTEIN, CREATIVE ARTISTS
AGENCY, LLC, THE WALT DISNEY
COMPANY, and MIRAMAX FILM NY, LLC f/k/a
MIRAMAX FILM CORP.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
THE WALT DISNEY COMPANY’S
MOTION TO DISMISS THE COMPLAINT
J. Wesley Earnhardt
David H. Korn
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
Attorneys for Defendant The Walt
Disney Company
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TABLE OF CONTENTS
Page
Table of Authorities ........................................................................................................... ii
Preliminary Statement ..................................................................................................... 1
Factual Background and Procedural History .................................................................... 3
Legal Standard ................................................................................................................ 5
Argument ........................................................................................................................ 7
I. PLAINTIFF FAILS TO PLEAD ANY CLAIM AGAINST TWDC ..................... 7
A. A Claim Against TWDC Cannot Be Based on Allegations About
Miramax................................................................................................... 7
B. Plaintiff Fails To Plead Sufficient Facts To Allege Any of the
Elements of a Negligent Supervision Claim Against TWDC. ................. 10
1. Plaintiff Does Not Adequately Allege that TWDC
Employed Harvey Weinstein. ..................................................... 11
2. Plaintiff Does Not Adequately Allege that TWDC Knew or
Should Have Known of Harvey Weinstein’s Misconduct. ........... 14
3. Plaintiff Does Not Adequately Allege that TWDC Knew or
Should Have Known It Had the Ability, Necessity and
Opportunity to Control Harvey Weinstein. .................................. 18
4. Plaintiff Does Not Allege that Harvey Weinstein’s Conduct
Took Place on or with TWDC’s Property. ................................... 19
II. PLAINTIFF’S CLAIM AGAINST TWDC SHOULD BE DISMISSED
WITH PREJUDICE. .......................................................................................... 24
Conclusion .................................................................................................................... 25
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TABLE OF AUTHORITIES
Page(s)
Cases
A.M. v. Holy Resurrection Greek Orthodox Church of Brookville,
No. 156132/16, 2020 WL 922949 (N.Y. Sup. Ct. Feb. 24, 2020) ............................. 15
Atlanta Gas Light Co. v. UGI Utils, Inc.,
No. 3:03-cv-614-J-20MMH, 2005 WL 5660476 (M.D. Fla. Mar. 22, 2005) ............... 9
Bd. of Managers of Soho N. 267 W. 124th St. Condo. v. NW 124 LLC,
116 A.D.3d 506 (1st Dep’t 2014) ............................................................................. 24
Bonnette v. Cal. Health & Welfare Agency,
704 F.2d 1465 (9th Cir. 1983) .................................................................................. 11
Brandy B. v. Eden Cent. Sch. Dist,
15 N.Y.3d 297 (2010) .............................................................................................. 16
Bravo v. Established Burger One, LLC,
No. 12 Civ. 9044 (CM), 2013 WL 5549495 (S.D.N.Y. Oct. 8, 2013) ....................... 11
Canosa v. Ziff,
No. 18 Civ. 4115 (PAE), 2019 WL 498865 (S.D.N.Y. Jan. 28, 2019) ................ 21, 23
Capmark Fin. Grp. Inc. v. Goldman Sachs Credit Partners,
491 B.R. 335 (S.D.N.Y. 2013) ................................................................................... 7
Carter v. Dutchess Cmty. Coll.,
735 F.2d 8 (2d Cir. 1984)......................................................................................... 11
Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440 (2003) ................................................................................................ 11
D’Amico v. Christie,
71 N.Y.2d 76 (1987) ......................................................................................... passim
David v. Weinstein Co. LLC,
No. 18-CV-5414 (RA), 2019 WL 1864073 (S.D.N.Y. Apr. 24, 2019) .......... 21, 23, 24
Detone v. Bullit Courier Serv., Inc.,
140 A.D.2d 278 (1988) ............................................................................................ 14
Diaz v. Consortium for Worker Educ., Inc.,
No. 10 Civ. 01848 (LAP), 2010 WL 3910280 (S.D.N.Y. Sept. 28, 2010) ................. 13
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Doe ex rel. Doe v. Fed. Express Corp.,
345 F. App’x 670 (2d Cir. 2009) .............................................................................. 24
Doe v. Alsaud,
12 F. Supp. 3d 674 (S.D.N.Y. 2014) ........................................................................ 14
Doe v. Bloomberg, L.P.,
178 A.D.3d 44 (1st Dep’t 2019) ................................................................................. 6
E. Hampton Union Free Sch. Dist. v. Sandpebble Builders, Inc.,
66 A.D.3d 122 (2d Dep’t 2009) ................................................................................. 8
Ehrens v. Lutheran Church,
385 F.3d 232 (2d Cir. 2004) ........................................................................... 6, 10, 20
Ford v. Grand Union Co.,
268 N.Y. 243 (1935) ................................................................................................ 21
Fuller v. Family Servs. of Westchester, Inc.,
209 A.D.3d 983 (2d Dep’t 2022) ............................................................................. 14
Gartner v. Snyder,
607 F.2d 582 (2d Cir. 1979) ....................................................................................... 7
Griffin v. Sirva, Inc.,
29 N.Y.3d 174 (2017) .............................................................................................. 11
Hall v. Smathers,
240 N.Y. 486 (1925) ................................................................................................ 16
Haybeck v. Prodigy Servs. Co.,
944 F. Supp. 326 (S.D.N.Y. 1996) ........................................................................... 24
In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000,
No. MDL 1428 (SAS), 02 Civ. 3101 (SAS), 2006 WL 538200 (S.D.N.Y.
Mar. 6, 2006) ............................................................................................................. 8
Jessica H. v. Equinox Holdings, Inc.,
No. 103866/08, 2010 WL 85155 (N.Y. Sup. Ct. Jan. 4, 2010) .................................. 18
Johnson v. Medisys Health Network,
No. 10-CV-1596 (ERK) (WP), 2011 WL 5222917 (E.D.N.Y. June 1, 2011) .............. 8
Kelly v. Quotron Sys., Inc.,
No. 91 CIV. 5408 (WK), 1993 WL 106048 (S.D.N.Y. Apr. 8, 1993) ......................... 9
Kew Gardens Hills Apartment Owners, Inc. v. Horing Welikson & Rosen, P.C.,
35 A.D.3d 383 (2d Dep’t 2006) ................................................................................. 9
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Koran I. v. N.Y.C. Bd. of Educ.,
256 A.D.2d 189 (1st Dep’t 1998) ............................................................................. 16
Lopez v. Acme Am. Env’t Co.,
No. 12 Civ. 511 (WHP), 2012 WL 6062501 (S.D.N.Y. Dec. 6, 2012) ...................... 12
Mallach v. Ridley,
9 N.Y.S. 922 (N.Y. Gen. Term 1888) ...................................................................... 20
Manchester Equip. Co. v. Am. Way & Moving Co.,
60 F. Supp. 2d 3 (E.D.N.Y. 1999) .............................................................................. 7
Moore Charitable Found. v. PJT Partners, Inc.,
40 N.Y.3d 150 (2023) ....................................................................................... passim
Morris v. N.Y. State Dep’t of Tax’n & Fin.,
82 N.Y.2d 135 (1993) ................................................................................................ 7
Phillips-Johnson v. Lucky 8 TV LLC,
No. 161155/20, 2021 WL 5154186 (N.Y. Sup. Ct. Nov. 4, 2021) ................ 11, 13, 14
Potash v. Port Auth. of N.Y. & N.J.,
279 A.D.2d 562 (2d Dep’t 2001) ............................................................................... 7
Principia Partners, LLC v. Swap Fin. Grp., LLC,
194 A.D.3d 584 (1st Dep’t 2021) ............................................................................. 12
Skillgames, LLC v. Brody,
1 A.D.3d 247 (1st Dep’t 2003)................................................................................... 6
Sokola v. Weinstein,
187 N.Y.S.3d 493 (N.Y. Sup. Ct. 2023), abrogated by Moore, 40 N.Y.3d ............... 23
Taylor v. United Parcel Serv., Inc.,
72 A.D.3d 573 (1st Dep’t 2010) ............................................................................... 15
TNS Holdings, Inc. v. MKI Sec. Corp.,
92 N.Y.2d 335 (1998) ................................................................................................ 8
V. Groppa Pools, Inc. v. Massello,
106 A.D.3d 722 (2d Dep’t 2013) ............................................................................... 6
Yankee Gas Servs. Co. v. UGI Utils., Inc.,
616 F. Supp. 2d 228 (D. Conn. 2009)......................................................................... 9
Statutes & Rules
CPLR § 3211(a)(7) .................................................................................................... 5, 25
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Preliminary Statement
In attempting to plead a single cause of action against The Walt Disney
Company (“TWDC”), for negligent supervision and retention, Plaintiff has not made
specific allegations about TWDC. Instead, Plaintiff alleges that Harvey Weinstein was
co-chairman of a different company, Miramax Film Corp. (“Miramax”), when he
allegedly assaulted her at her own apartment, following a dinner arranged by her talent
agency. As the Complaint makes clear, Miramax and TWDC were separate entities, and
the distinction between them is critical. Beyond conclusory assertions, Plaintiff has not
pleaded the elements of a negligent supervision and retention claim against TWDC; in
particular, she does not sufficiently allege (i) that Harvey Weinstein was a TWDC
employee; (ii) that TWDC knew of prior instances of misconduct of the type alleged here
and nonetheless placed Harvey Weinstein in a position to cause foreseeable harm;
(iii) that TWDC knew it could, and needed to, control Harvey Weinstein’s conduct; or
(iv) that the alleged assault involved TWDC’s property. For each of those four
independent reasons, Plaintiff’s sole claim against TWDC fails and must be dismissed.
First, TWDC cannot be liable for negligent supervision because that claim
only can be brought against an employer, and Harvey Weinstein was not employed by
TWDC. The law is clear that pleading an employment relationship requires a plaintiff to
allege specific facts establishing that the alleged employer exercised control over the
manner and means by which the employee worked. But, here, Plaintiff alleges that
Harvey Weinstein worked for Miramax, a separate corporate subsidiary. There are no
specific allegations about any way in which TWDC purportedly controlled Harvey
Weinstein’s activities. Plaintiff’s conclusory assertion that Weinstein somehow was
“jointly” employed by TWDC is insufficient as a matter of law.
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Second, Plaintiff must plead that TWDC knew or should have known of
specific facts or events demonstrating Harvey Weinstein’s propensity to engage in the
type of misconduct alleged here—sexual battery. Plaintiff does not allege any such facts.
Plaintiff does not plead that TWDC knew of any battery by Harvey Weinstein prior to
December 1995. After all, that was only two years after TWDC acquired Miramax in
1993. Allegations about what came to light later are legally irrelevant. So are allegations
about what Miramax or CAA knew—particularly when those allegations involve events
prior to TWDC’s acquisition of Miramax in 1993. Plaintiff simply asserts that TWDC
knew thirty years ago that Weinstein “was a danger to women”, but that falls far short of
the requirement to plead, via specific facts, a concrete basis on which TWDC had notice
of Harvey Weinstein’s alleged propensity to cause harm. For this reason, too, the claim
against TWDC must be dismissed.
Third, Plaintiff has not alleged that TWDC knew of the need, and had the
ability and opportunity, to control Harvey Weinstein’s alleged misconduct. The only
supposed “control” Plaintiff alleges TWDC had was over Miramax, then TWDC’s
subsidiary, is in the form of financial “oversight” of Miramax’s “budget” and “books”.
That cannot be the test; after all, nearly every employer has financial “oversight” of
budgets that impact employees. Instead, the question is whether the corporate parent
knew it could, and needed to, control the tortfeasor outside the scope of his employment.
Plaintiff has pleaded nothing to demonstrate that is the case.
Fourth, Plaintiff has not pleaded that Harvey Weinstein used TWDC
property to commit the alleged misconduct. That requirement is a significant limiting
principle on a tort that otherwise would threaten to expand employer liability to all
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manners of employee conduct outside the workplace. Here, Plaintiff cannot satisfy that
critical element because the alleged battery took place in her own apartment, involving
none of TWDC’s property. Plaintiff alleges that apartment was “paid for by Miramax”,
but that says nothing about TWDC. And, even as to the allegations about Miramax,
paying for an apartment does not make it the employer’s property for purposes of a
negligent retention and supervision claim.
Accepting the allegations in the Complaint as true, Harvey Weinstein’s
alleged misconduct is disturbing and deplorable. But the question is whether Plaintiff’s
allegations are sufficient to state a claim for negligent supervision against TWDC. They
are not, with respect to any of the four elements of that cause of action. Therefore,
TWDC respectfully requests that the single claim against it be dismissed.
Factual Background and Procedural History
The following alleged facts are taken from the Complaint and are assumed
to be true only for purposes of this motion to dismiss.
Plaintiff alleges a single assault by Harvey Weinstein in December 1995.
Plaintiff alleges that her talent agents at CAA arranged a dinner for her with Harvey
Weinstein in New York City, and that she hoped to address during the dinner her desire
for Miramax to pay for her to travel to Africa for a project. (Id. ¶¶ 4, 46.) Plaintiff
alleges that Harvey Weinstein insisted on returning to her apartment after dinner, where
he sexually assaulted her. (Id. ¶ 49-51.) After the assault and the aftermath, Plaintiff
alleges that her standing at Miramax declined, her contract with Miramax ultimately was
terminated, and her treatment by her agents at CAA deteriorated. (Id. ¶¶ 61-63.) Plaintiff
does not plead that TWDC had any involvement whatsoever in her interactions with
Harvey Weinstein before, during or after the alleged assault. She never interacted with
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anyone at TWDC, she does not allege that Harvey Weinstein or anyone else
communicated with TWDC about her, nor does she allege that anyone communicated
with her about TWDC.
The Complaint also does not allege facts that could establish that TWDC
employed Harvey Weinstein at the time of the assault. Plaintiff alleges that Harvey
Weinstein was the co-chairman of Miramax, a separate corporate entity. (Id. ¶ 3.)
According to the Complaint, Harvey Weinstein entered two employment agreements with
Miramax, which TWDC also signed. (Id. ¶ 12.) Plaintiff alleges that Miramax was, at all
relevant times, a subsidiary of TWDC. (Id. ¶ 10.) Plaintiff also alleges that TWDC
“control[led] Miramax’s budget”, and that Harvey Weinstein “reported” to TWDC’s
CEO. (Id. ¶¶ 13, 24.) But there are no specific allegations that TWDC exercised control
over the manner and means by which Harvey Weinstein worked.
Nor does Plaintiff allege any basis on which TWDC knew, or should have
known, of any specific instances of prior misconduct of the type alleged here. Instead,
the Complaint alleges only that TWDC knew that Harvey Weinstein “was a danger to
women in the entertainment industry” (id. ¶ 67); Robert Weinstein, not TWDC, “knew
that Harvey Weinstein engaged in a pattern of sexual misconduct” and “reported to the
same executives at Disney as Harvey Weinstein” (id. ¶ 70); and that TWDC was “aware
of Harvey Weinstein’s propensity to sexually harass and sexually assault women with
whom he was meeting while conducting business for Miramax” (id. ¶ 74). None of those
vague, conclusory assertions is sufficient. Lacking are any facts describing any
knowledge by TWDC of any prior acts of misconduct by Harvey Weinstein.
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Plaintiff has not alleged that TWDC knew it had the need and ability to
control Harvey Weinstein’s alleged misconduct outside the scope of his employment.
The only “control” that Plaintiff alleges TWDC exercised was financial “oversight” of
TWDC’s subsidiary, Miramax: allegedly “paying Miramax’s employees; controlling
Miramax’s budget; approving (or vetoing) requests for increased film budgets for
Miramax; auditing Miramax’s books; and reviewing, approving, and paying the business
expenses of Miramax.” (Id. ¶ 13.) Plaintiff pleads no facts to suggest that TWDC could
exercise control over Harvey Weinstein outside any scope of alleged employment, or that
TWDC knew there was a need to.
In fact, the Complaint does not allege any connection between TWDC’s
premises or property and Harvey Weinstein’s alleged misconduct. Rather, Plaintiff
alleges that the alleged assault took place in her personal apartment in New York City.
(Id. ¶¶ 49-51.) Plaintiff alleges that Miramax paid for her apartment as part of a two-year
film production agreement. (Id. ¶¶ 40-42.) But Plaintiff does not allege any connection
between TWDC and her apartment at all. Plaintiff also does not allege any connection
between Miramax and her apartment beyond paying the rent.
Plaintiff filed the Complaint on October 4, 2023. The Complaint asserts
one cause of action, for battery, against Harvey Weinstein himself. The only cause of
action against TWDC is the second count, for “negligent supervision and retention”; this
cause of action is also pleaded against Miramax. The third cause of action, for
negligence, is pleaded only against CAA.
Legal Standard
“A party may move for judgment dismissing one or more causes of action
against him on the ground that . . . the pleading fails to state a cause of action”. CPLR
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§ 3211(a)(7). To survive such a motion, a complaint “cannot be vague and
conclusory . . . but [rather] must contain sufficiently particularized allegations from
which a cognizable cause of action reasonably could be found”. V. Groppa Pools, Inc. v.
Massello, 106 A.D.3d 722, 723 (2d Dep’t 2013) (citation omitted); see also Doe v.
Bloomberg, L.P., 178 A.D.3d 44, 47 (1st Dep’t 2019) (“[F]actual allegations that do not
state a viable cause of action, that consist of bare legal conclusions . . . are not entitled to
such consideration.” (quoting Skillgames, LLC v. Brody, 1 A.D.3d 247, 250 (1st Dep’t
2003))).
To state a claim for negligent supervision, a plaintiff must first establish
the existence of an employer-employee relationship and then establish that (1) “the
employer knew or should have known that it had the ability to control the employee and
the necessity and opportunity for exercising such control”, (2) the employer knew or
should have known of “the employee’s propensity for the sort of behavior which caused
the injured party’s harm,” and (3) “the employee engaged in tortious conduct on the
employer’s premises or using property or resources available to the employee only
through their status as an employee”. Moore Charitable Found. v. PJT Partners, Inc., 40
N.Y.3d 150, 157 (2023); see also D’Amico v. Christie, 71 N.Y.2d 76, 87-88 (1987)
(requiring an “employer-employee relationship”, “foreseeability of harm” and
misconduct “committed by employees on the employer’s premises or with the employer’s
chattels”); Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004).
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Argument
I. PLAINTIFF FAILS TO PLEAD ANY CLAIM AGAINST TWDC
A. A Claim Against TWDC Cannot Be Based on Allegations About
Miramax.
As an initial matter, Plaintiff’s claim against TWDC must rise or fall
based solely on the allegations against TWDC. Plaintiff cannot state a claim against
TWDC based on allegations against Miramax or its employees.
As Plaintiff acknowledges in the Complaint, Miramax was a subsidiary of
TWDC. (Compl. ¶ 10.) New York law has long recognized corporate separateness
between parent and subsidiary corporations. “A parent corporation will not be held liable
for the torts or obligations of a subsidiary unless it can be shown that the parent exercised
complete dominion and control over the subsidiary.” Potash v. Port Auth. of N.Y. & N.J.,
279 A.D.2d 562, 562 (2d Dep’t 2001) (citations omitted). “New York courts are
‘reluctant’ to disregard corporate form and will do so only if the form has been used to
achieve fraud or the parent exercises such extreme dominion and control over the
subsidiary as to render the corporate form a sham.” Manchester Equip. Co. v. Am. Way
& Moving Co., 60 F. Supp. 2d 3, 6 (E.D.N.Y. 1999) (quoting Gartner v. Snyder, 607 F.2d
582, 586 (2d Cir. 1979)). The standard for piercing the corporate veil is “very
demanding” at the pleading stage. Capmark Fin. Grp. Inc. v. Goldman Sachs Credit
Partners, 491 B.R. 335, 347 (S.D.N.Y. 2013) (collecting cases).
To pierce the corporate veil, Plaintiff would need to plead facts “showing
that: (1) the owners exercised complete domination of the corporation in respect to the
transaction attacked; and (2) such domination was used to commit a fraud or wrong
against the plaintiff which resulted in plaintiff’s injury”. Morris v. N.Y. State Dep’t of
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Tax’n & Fin., 82 N.Y.2d 135, 141 (1993) (citations omitted). “[C]omplete domination”
occurs where there is a “failure to adhere to corporate formalities, inadequate
capitalization, commingling of assets, and use of corporate funds for personal use”.
Johnson v. Medisys Health Network, No. 10-CV-1596 (ERK) (WP), 2011 WL 5222917,
at *21-22 (E.D.N.Y. June 1, 2011) (quoting E. Hampton Union Free Sch. Dist. v.
Sandpebble Builders, Inc., 66 A.D.3d 122, 126-27 (2d Dep’t 2009)) (dismissing
allegations that were “conclusory and fail[ed] to allege how [parent entities] controlled
the subject entities, what corporate formalities were ignored . . . or any of the other
factors”).
Nothing of the sort is alleged here. Plaintiff does not allege that TWDC
exercised complete domination over Miramax, nor has Plaintiff pleaded any facts to
suggest that TWDC used any purported control over Miramax to harm Plaintiff. See TNS
Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339 (1998) (“Evidence of domination
alone does not suffice without an additional showing that it led to inequity, fraud or
malfeasance.” (citation omitted)). The most Plaintiff alleges is that TWDC “exercised
oversight and control over Miramax” by, for example, “approving (or vetoing) requests
for increased film budgets for Miramax” and “auditing Miramax’s books”. (Compl.
¶ 13.) But those are common oversight actions of a corporate parent that are insufficient
as a matter of law to pierce the corporate veil. See In re Ski Train Fire in Kaprun,
Austria on Nov. 11, 2000, No. MDL 1428 (SAS), 02 Civ. 3101 (SAS), 2006 WL 538200,
at *3 (S.D.N.Y. Mar. 6, 2006) (noting that “monitoring of the subsidiary’s performance,
supervision of the subsidiary’s finance and capital budget decisions, and articulation of
general policies and procedures” are “[a]ppropriate parental involvement” that “does not
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render the subsidiary a mere department of [the parent]”) (internal citations and quotation
marks omitted); Yankee Gas Servs. Co. v. UGI Utils., Inc., 616 F. Supp. 2d 228, 247 (D.
Conn. 2009) (“[C]ourts have made clear . . . that review and approval of capital budgets
or physical improvements . . . are consistent with a traditional parent-subsidiary
relationship.” (quoting Atlanta Gas Light Co. v. UGI Utils, Inc., No. 3:03-cv-614-J-
20MMH, 2005 WL 5660476 at *11 (M.D. Fla. Mar. 22, 2005)). Were it otherwise,
virtually all parents would be deemed to be liable for the acts of their subsidiaries, which
is the opposite of what the law teaches. See Kelly v. Quotron Sys., Inc., No. 91 CIV.
5408 (WK), 1993 WL 106048, at *3 (S.D.N.Y. Apr. 8, 1993) (“If facts such as these
were found adequate to pierce the corporate veil, parent corporations would routinely be
held responsible for the actions of their subsidiaries. The law of this state does not
contemplate or permit such a result.”).
Because Plaintiff does not, and cannot, plead facts sufficient to disregard
corporate separateness, Plaintiff’s claims against TWDC must be based solely on
Plaintiff’s limited allegations about TWDC, not allegations about Miramax or Miramax
employees. For the reasons explained below, Plaintiff’s claim against TWDC must be
dismissed because the Complaint contains no such allegations specific to TWDC. See
Kew Gardens Hills Apartment Owners, Inc. v. Horing Welikson & Rosen, P.C., 35
A.D.3d 383, 386 (2d Dep’t 2006) (“[S]ince the plaintiff made no allegations as to any
participation by [one of the corporate defendants], the plaintiff failed to state a claim
against that defendant.”)
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B. Plaintiff Fails To Plead Sufficient Facts To Allege Any of the Elements
of a Negligent Supervision Claim Against TWDC.
As a general rule, a defendant “has no duty to control the conduct of third
persons so as to prevent them from harming others, even where as a practical matter [a]
defendant can exercise such control”. D’Amico, 71 N.Y.2d at 88. There are two
exceptions to this rule with respect to employers. The primary exception is the doctrine
of respondeat superior, under which an employer can be liable for acts of its employees
“in the course and scope of employment”. Id. A second, even more limited exception—
negligent supervision or retention—extends to acts outside the scope of employment, but
only when the plaintiff can prove: that an employment relationships exists, Ehrens, 385
F.3d at 235, that the employer knew the employee was likely to commit the act alleged,
Moore, 40 N.Y.3d at 157; that the employer knew or should have known it had the ability
to control the employee, id.; and that the employee then carried out the act using the
employer’s property (its premises or chattels), id.
Here, Plaintiff pleads none of those elements against TWDC: (i) Plaintiff
fails to allege an employer-employee relationship between Harvey Weinstein and
TWDC; (ii) Plaintiff does not plead facts that could establish that TWDC knew or should
have known of any specific prior instances of Harvey Weinstein’s sexual misconduct;
(iii) Plaintiff does not plead facts that could establish that TWDC knew or should have
known it had the ability, necessity and opportunity to control Harvey Weinstein’s alleged
misconduct outside the scope of employment; and (iv) Plaintiff does not plead that
Harvey Weinstein’s misconduct took place on or with TWDC’s property. The action
against TWDC must be dismissed for each of those four independent reasons.
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1. Plaintiff Does Not Adequately Allege that TWDC Employed
Harvey Weinstein.
Plaintiff’s claim against TWDC for negligent supervision fails because she
does not allege the required employer-employee relationship between TWDC and Harvey
Weinstein. Courts use “the common-law element of control” as “the principal guidepost”
in determining whether an employment relationship exists. See Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 (2003). “[T]he really
essential element of the relationship is the right of control.” Griffin v. Sirva, Inc., 29
N.Y.3d 174, 186 (2017) (internal citation and quotation marks omitted).
To determine whether an entity exercised sufficient control to establish
employment, courts conduct a four-part analysis: “whether the alleged employer (1) had
the power to hire and fire the employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the rate and method of payment,
and (4) maintained employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12
(2d Cir. 1984) (quoting Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470
(9th Cir. 1983)).
Thus, to establish that an employment relationship existed between
Harvey Weinstein and TWDC, Plaintiff must allege specific facts demonstrating that
TWDC exercised control over the manner and means by which Harvey Weinstein
worked. See Phillips-Johnson v. Lucky 8 TV LLC, No. 161155/20, 2021 WL 5154186, at
*5 (N.Y. Sup. Ct. Nov. 4, 2021) (holding that “absent a factual underpinning”, “vague
and conclusory” allegations that the defendants were joint employers were “not only
insufficient to establish control, but also cannot survive a motion to dismiss”); Bravo v.
Established Burger One, LLC, No. 12 Civ. 9044 (CM), 2013 WL 5549495, at *6
11
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(S.D.N.Y. Oct. 8, 2013) (“The ‘overarching concern’ in determining whether an entity is
an ‘employer’ is whether the entity ‘possessed the power to control the workers in
question, with an eye to the economic reality presented by the facts of each case.’”
(quoting Lopez v. Acme Am. Env’t Co., No. 12 Civ. 511 (WHP), 2012 WL 6062501, at *3
(S.D.N.Y. Dec. 6, 2012))).
Here, Plaintiff alleges no such facts. Plaintiff alleges that Harvey
Weinstein was the co-chairman of Miramax, a separate company. (Compl. ¶ 3.) Plaintiff
does not allege any specific facts to suggest that TWDC controlled Harvey Weinstein’s
day-to-day work activities, had any say in his schedule, or directed Harvey Weinstein’s
business decisions. Nor does Plaintiff allege that Harvey Weinstein needed (or sought
out) the approval of TWDC before carrying out business activities. There are no specific
facts alleged showing that TWDC (i) hired or could fire Harvey Weinstein; (ii) ever
supervised or controlled his day-to-day work; (iii) determined his compensation; or
(iv) even maintained his employment records. In fact, there are no facts suggesting how
or when TWDC communicated with Harvey Weinstein at all.
Plaintiff tries to skirt this requirement by grouping TWDC together with
Miramax; specifically, Plaintiff alleges that “Miramax and [TWDC] jointly had the
power to hire and fire Harvey Weinstein, set his pay, and control his work conditions.”
(Id. ¶ 12.) But, in making that allegation, the Complaint “fail[s] to distinguish between
the entities”, thus making it “an improper group pleading”, which cannot state a claim
against TWDC. Principia Partners, LLC v. Swap Fin. Grp., LLC, 194 A.D.3d 584, 584
(1st Dep’t 2021).
12
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Plaintiff also relies on “vague and conclusory” allegations that cannot
supply the necessary “factual underpinning” to plead an employment relationship.
Phillips-Johnson, 2021 WL 5154186, at *5. Plaintiff vaguely asserts that TWDC
“exercised oversight and control over Miramax and Harvey Weinstein” by “paying
Miramax’s employees” and “controlling Miramax’s budget”. (Id. ¶ 13.) Those
assertions—about “Miramax employees” and “Miramax’s budget”—say nothing about
Harvey Weinstein, the individual. Plaintiff does not plead how TWDC allegedly hired or
could fire Harvey Weinstein, that TWDC ever supervised or controlled the manner and
means by which he carried out his day-to-day work, set his compensation or maintained
his employment records. Nor does Plaintiff clarify how TWDC allegedly controlled
Harvey Weinstein as an employee by any other means. Plaintiff’s allegations are
woefully deficient and cannot state a claim. See id.; see also Diaz v. Consortium for
Worker Educ., Inc., No. 10 Civ. 01848 (LAP), 2010 WL 3910280, at *3-4 (S.D.N.Y.
Sept. 28, 2010) (holding that allegations that one defendant entity “supervised and
controlled” the employees of another entity by “controlling the method, rate, and time of
payment of salaries” and “supervising and controlling the manner and method with which
[the other entity] conducted business” were “conclusory and insufficient to survive a
motion to dismiss”).
Phillips-Johnson is instructive. There, a news producer brought an action
against Lucky 8 TV, LLC (“Lucky 8”) and A&E Television Networks, LLC (“A&E”),
two entities she alleged were her joint employers. See Phillips-Johnson, 2021 WL
5154186 at *1, *5. The plaintiff alleged that A&E controlled the conditions of her
employment and that an A&E executive “held supervisory authority over Plaintiff with
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regard to her employment, controlling many tangible aspects of Plaintiff’s employment,
including the ability to hire/fire”. Id. at *5. The court held that “Plaintiff’s allegations
are nothing more than vague, conclusory statements and are insufficient to withstand
defendants’ motion to dismiss . . . . The mere fact that plaintiff alleges in a vague and
conclusory fashion that Lucky 8 and A&E are joint employers and that A&E exercised
control over plaintiff’s employment absent a factual underpinning is not only insufficient
to establish control, but also cannot survive a motion to dismiss.” Id. So, too, here.
Vague allegations are insufficient. To survive a motion to dismiss, Plaintiff must plead
specific facts demonstrating that TWDC controlled Harvey Weinstein as an employee,
which she has not done.
2. Plaintiff Does Not Adequately Allege that TWDC Knew or
Should Have Known of Harvey Weinstein’s Misconduct.
“[T]o establish a cause of action based on negligent hiring, negligent
retention, or negligent supervision [of an employee], it must be shown that the employer
knew or should have known of the employee’s propensity for the conduct which caused
the injury.” Fuller v. Family Servs. of Westchester, Inc., 209 A.D.3d 983, 984 (2d Dep’t
2022) (internal citation omitted). “An employer ‘should know’ of an employee’s
dangerous propensity if it has reason to know of the facts or events evidencing [an
employee’s propensity for the type of misconduct alleged]” and “may be liable if it
nonetheless ‘place[s] the employee in a position to cause foreseeable harm’”. Moore, 40
N.Y.3d at 158 (quoting Detone v. Bullit Courier Serv., Inc., 140 A.D.2d 278, 279
(1988)). An employer must have notice of prior allegations of misconduct that are of the
same kind of misconduct that caused the plaintiff’s injury—“general, unrelated or lesser
allegations of prior wrongdoing are insufficient”. Doe v. Alsaud, 12 F. Supp. 3d 674, 681
Preview
FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JULIA ORMOND, Plaintiff, v. Index No. 952107/2023 HARVEY WEINSTEIN, CREATIVE ARTISTS AGENCY, LLC, THE WALT DISNEY COMPANY, and MIRAMAX FILM NY, LLC f/k/a MIRAMAX FILM CORP., Defendants. MEMORANDUM OF LAW IN SUPPORT OF THE WALT DISNEY COMPANY’S MOTION TO DISMISS THE COMPLAINT J. Wesley Earnhardt David H. Korn CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Attorneys for Defendant The Walt Disney Company 1 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 TABLE OF CONTENTS Page Table of Authorities ........................................................................................................... ii Preliminary Statement ..................................................................................................... 1 Factual Background and Procedural History .................................................................... 3 Legal Standard ................................................................................................................ 5 Argument ........................................................................................................................ 7 I. PLAINTIFF FAILS TO PLEAD ANY CLAIM AGAINST TWDC ..................... 7 A. A Claim Against TWDC Cannot Be Based on Allegations About Miramax................................................................................................... 7 B. Plaintiff Fails To Plead Sufficient Facts To Allege Any of the Elements of a Negligent Supervision Claim Against TWDC. ................. 10 1. Plaintiff Does Not Adequately Allege that TWDC Employed Harvey Weinstein. ..................................................... 11 2. Plaintiff Does Not Adequately Allege that TWDC Knew or Should Have Known of Harvey Weinstein’s Misconduct. ........... 14 3. Plaintiff Does Not Adequately Allege that TWDC Knew or Should Have Known It Had the Ability, Necessity and Opportunity to Control Harvey Weinstein. .................................. 18 4. Plaintiff Does Not Allege that Harvey Weinstein’s Conduct Took Place on or with TWDC’s Property. ................................... 19 II. PLAINTIFF’S CLAIM AGAINST TWDC SHOULD BE DISMISSED WITH PREJUDICE. .......................................................................................... 24 Conclusion .................................................................................................................... 25 i 2 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 TABLE OF AUTHORITIES Page(s) Cases A.M. v. Holy Resurrection Greek Orthodox Church of Brookville, No. 156132/16, 2020 WL 922949 (N.Y. Sup. Ct. Feb. 24, 2020) ............................. 15 Atlanta Gas Light Co. v. UGI Utils, Inc., No. 3:03-cv-614-J-20MMH, 2005 WL 5660476 (M.D. Fla. Mar. 22, 2005) ............... 9 Bd. of Managers of Soho N. 267 W. 124th St. Condo. v. NW 124 LLC, 116 A.D.3d 506 (1st Dep’t 2014) ............................................................................. 24 Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983) .................................................................................. 11 Brandy B. v. Eden Cent. Sch. Dist, 15 N.Y.3d 297 (2010) .............................................................................................. 16 Bravo v. Established Burger One, LLC, No. 12 Civ. 9044 (CM), 2013 WL 5549495 (S.D.N.Y. Oct. 8, 2013) ....................... 11 Canosa v. Ziff, No. 18 Civ. 4115 (PAE), 2019 WL 498865 (S.D.N.Y. Jan. 28, 2019) ................ 21, 23 Capmark Fin. Grp. Inc. v. Goldman Sachs Credit Partners, 491 B.R. 335 (S.D.N.Y. 2013) ................................................................................... 7 Carter v. Dutchess Cmty. Coll., 735 F.2d 8 (2d Cir. 1984)......................................................................................... 11 Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003) ................................................................................................ 11 D’Amico v. Christie, 71 N.Y.2d 76 (1987) ......................................................................................... passim David v. Weinstein Co. LLC, No. 18-CV-5414 (RA), 2019 WL 1864073 (S.D.N.Y. Apr. 24, 2019) .......... 21, 23, 24 Detone v. Bullit Courier Serv., Inc., 140 A.D.2d 278 (1988) ............................................................................................ 14 Diaz v. Consortium for Worker Educ., Inc., No. 10 Civ. 01848 (LAP), 2010 WL 3910280 (S.D.N.Y. Sept. 28, 2010) ................. 13 ii 3 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Doe ex rel. Doe v. Fed. Express Corp., 345 F. App’x 670 (2d Cir. 2009) .............................................................................. 24 Doe v. Alsaud, 12 F. Supp. 3d 674 (S.D.N.Y. 2014) ........................................................................ 14 Doe v. Bloomberg, L.P., 178 A.D.3d 44 (1st Dep’t 2019) ................................................................................. 6 E. Hampton Union Free Sch. Dist. v. Sandpebble Builders, Inc., 66 A.D.3d 122 (2d Dep’t 2009) ................................................................................. 8 Ehrens v. Lutheran Church, 385 F.3d 232 (2d Cir. 2004) ........................................................................... 6, 10, 20 Ford v. Grand Union Co., 268 N.Y. 243 (1935) ................................................................................................ 21 Fuller v. Family Servs. of Westchester, Inc., 209 A.D.3d 983 (2d Dep’t 2022) ............................................................................. 14 Gartner v. Snyder, 607 F.2d 582 (2d Cir. 1979) ....................................................................................... 7 Griffin v. Sirva, Inc., 29 N.Y.3d 174 (2017) .............................................................................................. 11 Hall v. Smathers, 240 N.Y. 486 (1925) ................................................................................................ 16 Haybeck v. Prodigy Servs. Co., 944 F. Supp. 326 (S.D.N.Y. 1996) ........................................................................... 24 In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, No. MDL 1428 (SAS), 02 Civ. 3101 (SAS), 2006 WL 538200 (S.D.N.Y. Mar. 6, 2006) ............................................................................................................. 8 Jessica H. v. Equinox Holdings, Inc., No. 103866/08, 2010 WL 85155 (N.Y. Sup. Ct. Jan. 4, 2010) .................................. 18 Johnson v. Medisys Health Network, No. 10-CV-1596 (ERK) (WP), 2011 WL 5222917 (E.D.N.Y. June 1, 2011) .............. 8 Kelly v. Quotron Sys., Inc., No. 91 CIV. 5408 (WK), 1993 WL 106048 (S.D.N.Y. Apr. 8, 1993) ......................... 9 Kew Gardens Hills Apartment Owners, Inc. v. Horing Welikson & Rosen, P.C., 35 A.D.3d 383 (2d Dep’t 2006) ................................................................................. 9 iii 4 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Koran I. v. N.Y.C. Bd. of Educ., 256 A.D.2d 189 (1st Dep’t 1998) ............................................................................. 16 Lopez v. Acme Am. Env’t Co., No. 12 Civ. 511 (WHP), 2012 WL 6062501 (S.D.N.Y. Dec. 6, 2012) ...................... 12 Mallach v. Ridley, 9 N.Y.S. 922 (N.Y. Gen. Term 1888) ...................................................................... 20 Manchester Equip. Co. v. Am. Way & Moving Co., 60 F. Supp. 2d 3 (E.D.N.Y. 1999) .............................................................................. 7 Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150 (2023) ....................................................................................... passim Morris v. N.Y. State Dep’t of Tax’n & Fin., 82 N.Y.2d 135 (1993) ................................................................................................ 7 Phillips-Johnson v. Lucky 8 TV LLC, No. 161155/20, 2021 WL 5154186 (N.Y. Sup. Ct. Nov. 4, 2021) ................ 11, 13, 14 Potash v. Port Auth. of N.Y. & N.J., 279 A.D.2d 562 (2d Dep’t 2001) ............................................................................... 7 Principia Partners, LLC v. Swap Fin. Grp., LLC, 194 A.D.3d 584 (1st Dep’t 2021) ............................................................................. 12 Skillgames, LLC v. Brody, 1 A.D.3d 247 (1st Dep’t 2003)................................................................................... 6 Sokola v. Weinstein, 187 N.Y.S.3d 493 (N.Y. Sup. Ct. 2023), abrogated by Moore, 40 N.Y.3d ............... 23 Taylor v. United Parcel Serv., Inc., 72 A.D.3d 573 (1st Dep’t 2010) ............................................................................... 15 TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335 (1998) ................................................................................................ 8 V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722 (2d Dep’t 2013) ............................................................................... 6 Yankee Gas Servs. Co. v. UGI Utils., Inc., 616 F. Supp. 2d 228 (D. Conn. 2009)......................................................................... 9 Statutes & Rules CPLR § 3211(a)(7) .................................................................................................... 5, 25 iv 5 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Preliminary Statement In attempting to plead a single cause of action against The Walt Disney Company (“TWDC”), for negligent supervision and retention, Plaintiff has not made specific allegations about TWDC. Instead, Plaintiff alleges that Harvey Weinstein was co-chairman of a different company, Miramax Film Corp. (“Miramax”), when he allegedly assaulted her at her own apartment, following a dinner arranged by her talent agency. As the Complaint makes clear, Miramax and TWDC were separate entities, and the distinction between them is critical. Beyond conclusory assertions, Plaintiff has not pleaded the elements of a negligent supervision and retention claim against TWDC; in particular, she does not sufficiently allege (i) that Harvey Weinstein was a TWDC employee; (ii) that TWDC knew of prior instances of misconduct of the type alleged here and nonetheless placed Harvey Weinstein in a position to cause foreseeable harm; (iii) that TWDC knew it could, and needed to, control Harvey Weinstein’s conduct; or (iv) that the alleged assault involved TWDC’s property. For each of those four independent reasons, Plaintiff’s sole claim against TWDC fails and must be dismissed. First, TWDC cannot be liable for negligent supervision because that claim only can be brought against an employer, and Harvey Weinstein was not employed by TWDC. The law is clear that pleading an employment relationship requires a plaintiff to allege specific facts establishing that the alleged employer exercised control over the manner and means by which the employee worked. But, here, Plaintiff alleges that Harvey Weinstein worked for Miramax, a separate corporate subsidiary. There are no specific allegations about any way in which TWDC purportedly controlled Harvey Weinstein’s activities. Plaintiff’s conclusory assertion that Weinstein somehow was “jointly” employed by TWDC is insufficient as a matter of law. 1 6 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Second, Plaintiff must plead that TWDC knew or should have known of specific facts or events demonstrating Harvey Weinstein’s propensity to engage in the type of misconduct alleged here—sexual battery. Plaintiff does not allege any such facts. Plaintiff does not plead that TWDC knew of any battery by Harvey Weinstein prior to December 1995. After all, that was only two years after TWDC acquired Miramax in 1993. Allegations about what came to light later are legally irrelevant. So are allegations about what Miramax or CAA knew—particularly when those allegations involve events prior to TWDC’s acquisition of Miramax in 1993. Plaintiff simply asserts that TWDC knew thirty years ago that Weinstein “was a danger to women”, but that falls far short of the requirement to plead, via specific facts, a concrete basis on which TWDC had notice of Harvey Weinstein’s alleged propensity to cause harm. For this reason, too, the claim against TWDC must be dismissed. Third, Plaintiff has not alleged that TWDC knew of the need, and had the ability and opportunity, to control Harvey Weinstein’s alleged misconduct. The only supposed “control” Plaintiff alleges TWDC had was over Miramax, then TWDC’s subsidiary, is in the form of financial “oversight” of Miramax’s “budget” and “books”. That cannot be the test; after all, nearly every employer has financial “oversight” of budgets that impact employees. Instead, the question is whether the corporate parent knew it could, and needed to, control the tortfeasor outside the scope of his employment. Plaintiff has pleaded nothing to demonstrate that is the case. Fourth, Plaintiff has not pleaded that Harvey Weinstein used TWDC property to commit the alleged misconduct. That requirement is a significant limiting principle on a tort that otherwise would threaten to expand employer liability to all 2 7 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 manners of employee conduct outside the workplace. Here, Plaintiff cannot satisfy that critical element because the alleged battery took place in her own apartment, involving none of TWDC’s property. Plaintiff alleges that apartment was “paid for by Miramax”, but that says nothing about TWDC. And, even as to the allegations about Miramax, paying for an apartment does not make it the employer’s property for purposes of a negligent retention and supervision claim. Accepting the allegations in the Complaint as true, Harvey Weinstein’s alleged misconduct is disturbing and deplorable. But the question is whether Plaintiff’s allegations are sufficient to state a claim for negligent supervision against TWDC. They are not, with respect to any of the four elements of that cause of action. Therefore, TWDC respectfully requests that the single claim against it be dismissed. Factual Background and Procedural History The following alleged facts are taken from the Complaint and are assumed to be true only for purposes of this motion to dismiss. Plaintiff alleges a single assault by Harvey Weinstein in December 1995. Plaintiff alleges that her talent agents at CAA arranged a dinner for her with Harvey Weinstein in New York City, and that she hoped to address during the dinner her desire for Miramax to pay for her to travel to Africa for a project. (Id. ¶¶ 4, 46.) Plaintiff alleges that Harvey Weinstein insisted on returning to her apartment after dinner, where he sexually assaulted her. (Id. ¶ 49-51.) After the assault and the aftermath, Plaintiff alleges that her standing at Miramax declined, her contract with Miramax ultimately was terminated, and her treatment by her agents at CAA deteriorated. (Id. ¶¶ 61-63.) Plaintiff does not plead that TWDC had any involvement whatsoever in her interactions with Harvey Weinstein before, during or after the alleged assault. She never interacted with 3 8 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 anyone at TWDC, she does not allege that Harvey Weinstein or anyone else communicated with TWDC about her, nor does she allege that anyone communicated with her about TWDC. The Complaint also does not allege facts that could establish that TWDC employed Harvey Weinstein at the time of the assault. Plaintiff alleges that Harvey Weinstein was the co-chairman of Miramax, a separate corporate entity. (Id. ¶ 3.) According to the Complaint, Harvey Weinstein entered two employment agreements with Miramax, which TWDC also signed. (Id. ¶ 12.) Plaintiff alleges that Miramax was, at all relevant times, a subsidiary of TWDC. (Id. ¶ 10.) Plaintiff also alleges that TWDC “control[led] Miramax’s budget”, and that Harvey Weinstein “reported” to TWDC’s CEO. (Id. ¶¶ 13, 24.) But there are no specific allegations that TWDC exercised control over the manner and means by which Harvey Weinstein worked. Nor does Plaintiff allege any basis on which TWDC knew, or should have known, of any specific instances of prior misconduct of the type alleged here. Instead, the Complaint alleges only that TWDC knew that Harvey Weinstein “was a danger to women in the entertainment industry” (id. ¶ 67); Robert Weinstein, not TWDC, “knew that Harvey Weinstein engaged in a pattern of sexual misconduct” and “reported to the same executives at Disney as Harvey Weinstein” (id. ¶ 70); and that TWDC was “aware of Harvey Weinstein’s propensity to sexually harass and sexually assault women with whom he was meeting while conducting business for Miramax” (id. ¶ 74). None of those vague, conclusory assertions is sufficient. Lacking are any facts describing any knowledge by TWDC of any prior acts of misconduct by Harvey Weinstein. 4 9 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Plaintiff has not alleged that TWDC knew it had the need and ability to control Harvey Weinstein’s alleged misconduct outside the scope of his employment. The only “control” that Plaintiff alleges TWDC exercised was financial “oversight” of TWDC’s subsidiary, Miramax: allegedly “paying Miramax’s employees; controlling Miramax’s budget; approving (or vetoing) requests for increased film budgets for Miramax; auditing Miramax’s books; and reviewing, approving, and paying the business expenses of Miramax.” (Id. ¶ 13.) Plaintiff pleads no facts to suggest that TWDC could exercise control over Harvey Weinstein outside any scope of alleged employment, or that TWDC knew there was a need to. In fact, the Complaint does not allege any connection between TWDC’s premises or property and Harvey Weinstein’s alleged misconduct. Rather, Plaintiff alleges that the alleged assault took place in her personal apartment in New York City. (Id. ¶¶ 49-51.) Plaintiff alleges that Miramax paid for her apartment as part of a two-year film production agreement. (Id. ¶¶ 40-42.) But Plaintiff does not allege any connection between TWDC and her apartment at all. Plaintiff also does not allege any connection between Miramax and her apartment beyond paying the rent. Plaintiff filed the Complaint on October 4, 2023. The Complaint asserts one cause of action, for battery, against Harvey Weinstein himself. The only cause of action against TWDC is the second count, for “negligent supervision and retention”; this cause of action is also pleaded against Miramax. The third cause of action, for negligence, is pleaded only against CAA. Legal Standard “A party may move for judgment dismissing one or more causes of action against him on the ground that . . . the pleading fails to state a cause of action”. CPLR 5 10 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 § 3211(a)(7). To survive such a motion, a complaint “cannot be vague and conclusory . . . but [rather] must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found”. V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723 (2d Dep’t 2013) (citation omitted); see also Doe v. Bloomberg, L.P., 178 A.D.3d 44, 47 (1st Dep’t 2019) (“[F]actual allegations that do not state a viable cause of action, that consist of bare legal conclusions . . . are not entitled to such consideration.” (quoting Skillgames, LLC v. Brody, 1 A.D.3d 247, 250 (1st Dep’t 2003))). To state a claim for negligent supervision, a plaintiff must first establish the existence of an employer-employee relationship and then establish that (1) “the employer knew or should have known that it had the ability to control the employee and the necessity and opportunity for exercising such control”, (2) the employer knew or should have known of “the employee’s propensity for the sort of behavior which caused the injured party’s harm,” and (3) “the employee engaged in tortious conduct on the employer’s premises or using property or resources available to the employee only through their status as an employee”. Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157 (2023); see also D’Amico v. Christie, 71 N.Y.2d 76, 87-88 (1987) (requiring an “employer-employee relationship”, “foreseeability of harm” and misconduct “committed by employees on the employer’s premises or with the employer’s chattels”); Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004). 6 11 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Argument I. PLAINTIFF FAILS TO PLEAD ANY CLAIM AGAINST TWDC A. A Claim Against TWDC Cannot Be Based on Allegations About Miramax. As an initial matter, Plaintiff’s claim against TWDC must rise or fall based solely on the allegations against TWDC. Plaintiff cannot state a claim against TWDC based on allegations against Miramax or its employees. As Plaintiff acknowledges in the Complaint, Miramax was a subsidiary of TWDC. (Compl. ¶ 10.) New York law has long recognized corporate separateness between parent and subsidiary corporations. “A parent corporation will not be held liable for the torts or obligations of a subsidiary unless it can be shown that the parent exercised complete dominion and control over the subsidiary.” Potash v. Port Auth. of N.Y. & N.J., 279 A.D.2d 562, 562 (2d Dep’t 2001) (citations omitted). “New York courts are ‘reluctant’ to disregard corporate form and will do so only if the form has been used to achieve fraud or the parent exercises such extreme dominion and control over the subsidiary as to render the corporate form a sham.” Manchester Equip. Co. v. Am. Way & Moving Co., 60 F. Supp. 2d 3, 6 (E.D.N.Y. 1999) (quoting Gartner v. Snyder, 607 F.2d 582, 586 (2d Cir. 1979)). The standard for piercing the corporate veil is “very demanding” at the pleading stage. Capmark Fin. Grp. Inc. v. Goldman Sachs Credit Partners, 491 B.R. 335, 347 (S.D.N.Y. 2013) (collecting cases). To pierce the corporate veil, Plaintiff would need to plead facts “showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury”. Morris v. N.Y. State Dep’t of 7 12 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Tax’n & Fin., 82 N.Y.2d 135, 141 (1993) (citations omitted). “[C]omplete domination” occurs where there is a “failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use”. Johnson v. Medisys Health Network, No. 10-CV-1596 (ERK) (WP), 2011 WL 5222917, at *21-22 (E.D.N.Y. June 1, 2011) (quoting E. Hampton Union Free Sch. Dist. v. Sandpebble Builders, Inc., 66 A.D.3d 122, 126-27 (2d Dep’t 2009)) (dismissing allegations that were “conclusory and fail[ed] to allege how [parent entities] controlled the subject entities, what corporate formalities were ignored . . . or any of the other factors”). Nothing of the sort is alleged here. Plaintiff does not allege that TWDC exercised complete domination over Miramax, nor has Plaintiff pleaded any facts to suggest that TWDC used any purported control over Miramax to harm Plaintiff. See TNS Holdings, Inc. v. MKI Sec. Corp., 92 N.Y.2d 335, 339 (1998) (“Evidence of domination alone does not suffice without an additional showing that it led to inequity, fraud or malfeasance.” (citation omitted)). The most Plaintiff alleges is that TWDC “exercised oversight and control over Miramax” by, for example, “approving (or vetoing) requests for increased film budgets for Miramax” and “auditing Miramax’s books”. (Compl. ¶ 13.) But those are common oversight actions of a corporate parent that are insufficient as a matter of law to pierce the corporate veil. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, No. MDL 1428 (SAS), 02 Civ. 3101 (SAS), 2006 WL 538200, at *3 (S.D.N.Y. Mar. 6, 2006) (noting that “monitoring of the subsidiary’s performance, supervision of the subsidiary’s finance and capital budget decisions, and articulation of general policies and procedures” are “[a]ppropriate parental involvement” that “does not 8 13 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 render the subsidiary a mere department of [the parent]”) (internal citations and quotation marks omitted); Yankee Gas Servs. Co. v. UGI Utils., Inc., 616 F. Supp. 2d 228, 247 (D. Conn. 2009) (“[C]ourts have made clear . . . that review and approval of capital budgets or physical improvements . . . are consistent with a traditional parent-subsidiary relationship.” (quoting Atlanta Gas Light Co. v. UGI Utils, Inc., No. 3:03-cv-614-J- 20MMH, 2005 WL 5660476 at *11 (M.D. Fla. Mar. 22, 2005)). Were it otherwise, virtually all parents would be deemed to be liable for the acts of their subsidiaries, which is the opposite of what the law teaches. See Kelly v. Quotron Sys., Inc., No. 91 CIV. 5408 (WK), 1993 WL 106048, at *3 (S.D.N.Y. Apr. 8, 1993) (“If facts such as these were found adequate to pierce the corporate veil, parent corporations would routinely be held responsible for the actions of their subsidiaries. The law of this state does not contemplate or permit such a result.”). Because Plaintiff does not, and cannot, plead facts sufficient to disregard corporate separateness, Plaintiff’s claims against TWDC must be based solely on Plaintiff’s limited allegations about TWDC, not allegations about Miramax or Miramax employees. For the reasons explained below, Plaintiff’s claim against TWDC must be dismissed because the Complaint contains no such allegations specific to TWDC. See Kew Gardens Hills Apartment Owners, Inc. v. Horing Welikson & Rosen, P.C., 35 A.D.3d 383, 386 (2d Dep’t 2006) (“[S]ince the plaintiff made no allegations as to any participation by [one of the corporate defendants], the plaintiff failed to state a claim against that defendant.”) 9 14 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 B. Plaintiff Fails To Plead Sufficient Facts To Allege Any of the Elements of a Negligent Supervision Claim Against TWDC. As a general rule, a defendant “has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter [a] defendant can exercise such control”. D’Amico, 71 N.Y.2d at 88. There are two exceptions to this rule with respect to employers. The primary exception is the doctrine of respondeat superior, under which an employer can be liable for acts of its employees “in the course and scope of employment”. Id. A second, even more limited exception— negligent supervision or retention—extends to acts outside the scope of employment, but only when the plaintiff can prove: that an employment relationships exists, Ehrens, 385 F.3d at 235, that the employer knew the employee was likely to commit the act alleged, Moore, 40 N.Y.3d at 157; that the employer knew or should have known it had the ability to control the employee, id.; and that the employee then carried out the act using the employer’s property (its premises or chattels), id. Here, Plaintiff pleads none of those elements against TWDC: (i) Plaintiff fails to allege an employer-employee relationship between Harvey Weinstein and TWDC; (ii) Plaintiff does not plead facts that could establish that TWDC knew or should have known of any specific prior instances of Harvey Weinstein’s sexual misconduct; (iii) Plaintiff does not plead facts that could establish that TWDC knew or should have known it had the ability, necessity and opportunity to control Harvey Weinstein’s alleged misconduct outside the scope of employment; and (iv) Plaintiff does not plead that Harvey Weinstein’s misconduct took place on or with TWDC’s property. The action against TWDC must be dismissed for each of those four independent reasons. 10 15 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 1. Plaintiff Does Not Adequately Allege that TWDC Employed Harvey Weinstein. Plaintiff’s claim against TWDC for negligent supervision fails because she does not allege the required employer-employee relationship between TWDC and Harvey Weinstein. Courts use “the common-law element of control” as “the principal guidepost” in determining whether an employment relationship exists. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 (2003). “[T]he really essential element of the relationship is the right of control.” Griffin v. Sirva, Inc., 29 N.Y.3d 174, 186 (2017) (internal citation and quotation marks omitted). To determine whether an entity exercised sufficient control to establish employment, courts conduct a four-part analysis: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (quoting Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983)). Thus, to establish that an employment relationship existed between Harvey Weinstein and TWDC, Plaintiff must allege specific facts demonstrating that TWDC exercised control over the manner and means by which Harvey Weinstein worked. See Phillips-Johnson v. Lucky 8 TV LLC, No. 161155/20, 2021 WL 5154186, at *5 (N.Y. Sup. Ct. Nov. 4, 2021) (holding that “absent a factual underpinning”, “vague and conclusory” allegations that the defendants were joint employers were “not only insufficient to establish control, but also cannot survive a motion to dismiss”); Bravo v. Established Burger One, LLC, No. 12 Civ. 9044 (CM), 2013 WL 5549495, at *6 11 16 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 (S.D.N.Y. Oct. 8, 2013) (“The ‘overarching concern’ in determining whether an entity is an ‘employer’ is whether the entity ‘possessed the power to control the workers in question, with an eye to the economic reality presented by the facts of each case.’” (quoting Lopez v. Acme Am. Env’t Co., No. 12 Civ. 511 (WHP), 2012 WL 6062501, at *3 (S.D.N.Y. Dec. 6, 2012))). Here, Plaintiff alleges no such facts. Plaintiff alleges that Harvey Weinstein was the co-chairman of Miramax, a separate company. (Compl. ¶ 3.) Plaintiff does not allege any specific facts to suggest that TWDC controlled Harvey Weinstein’s day-to-day work activities, had any say in his schedule, or directed Harvey Weinstein’s business decisions. Nor does Plaintiff allege that Harvey Weinstein needed (or sought out) the approval of TWDC before carrying out business activities. There are no specific facts alleged showing that TWDC (i) hired or could fire Harvey Weinstein; (ii) ever supervised or controlled his day-to-day work; (iii) determined his compensation; or (iv) even maintained his employment records. In fact, there are no facts suggesting how or when TWDC communicated with Harvey Weinstein at all. Plaintiff tries to skirt this requirement by grouping TWDC together with Miramax; specifically, Plaintiff alleges that “Miramax and [TWDC] jointly had the power to hire and fire Harvey Weinstein, set his pay, and control his work conditions.” (Id. ¶ 12.) But, in making that allegation, the Complaint “fail[s] to distinguish between the entities”, thus making it “an improper group pleading”, which cannot state a claim against TWDC. Principia Partners, LLC v. Swap Fin. Grp., LLC, 194 A.D.3d 584, 584 (1st Dep’t 2021). 12 17 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 Plaintiff also relies on “vague and conclusory” allegations that cannot supply the necessary “factual underpinning” to plead an employment relationship. Phillips-Johnson, 2021 WL 5154186, at *5. Plaintiff vaguely asserts that TWDC “exercised oversight and control over Miramax and Harvey Weinstein” by “paying Miramax’s employees” and “controlling Miramax’s budget”. (Id. ¶ 13.) Those assertions—about “Miramax employees” and “Miramax’s budget”—say nothing about Harvey Weinstein, the individual. Plaintiff does not plead how TWDC allegedly hired or could fire Harvey Weinstein, that TWDC ever supervised or controlled the manner and means by which he carried out his day-to-day work, set his compensation or maintained his employment records. Nor does Plaintiff clarify how TWDC allegedly controlled Harvey Weinstein as an employee by any other means. Plaintiff’s allegations are woefully deficient and cannot state a claim. See id.; see also Diaz v. Consortium for Worker Educ., Inc., No. 10 Civ. 01848 (LAP), 2010 WL 3910280, at *3-4 (S.D.N.Y. Sept. 28, 2010) (holding that allegations that one defendant entity “supervised and controlled” the employees of another entity by “controlling the method, rate, and time of payment of salaries” and “supervising and controlling the manner and method with which [the other entity] conducted business” were “conclusory and insufficient to survive a motion to dismiss”). Phillips-Johnson is instructive. There, a news producer brought an action against Lucky 8 TV, LLC (“Lucky 8”) and A&E Television Networks, LLC (“A&E”), two entities she alleged were her joint employers. See Phillips-Johnson, 2021 WL 5154186 at *1, *5. The plaintiff alleged that A&E controlled the conditions of her employment and that an A&E executive “held supervisory authority over Plaintiff with 13 18 of 30 FILED: NEW YORK COUNTY CLERK 12/19/2023 11:16 AM INDEX NO. 952107/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/01/2024 regard to her employment, controlling many tangible aspects of Plaintiff’s employment, including the ability to hire/fire”. Id. at *5. The court held that “Plaintiff’s allegations are nothing more than vague, conclusory statements and are insufficient to withstand defendants’ motion to dismiss . . . . The mere fact that plaintiff alleges in a vague and conclusory fashion that Lucky 8 and A&E are joint employers and that A&E exercised control over plaintiff’s employment absent a factual underpinning is not only insufficient to establish control, but also cannot survive a motion to dismiss.” Id. So, too, here. Vague allegations are insufficient. To survive a motion to dismiss, Plaintiff must plead specific facts demonstrating that TWDC controlled Harvey Weinstein as an employee, which she has not done. 2. Plaintiff Does Not Adequately Allege that TWDC Knew or Should Have Known of Harvey Weinstein’s Misconduct. “[T]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision [of an employee], it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury.” Fuller v. Family Servs. of Westchester, Inc., 209 A.D.3d 983, 984 (2d Dep’t 2022) (internal citation omitted). “An employer ‘should know’ of an employee’s dangerous propensity if it has reason to know of the facts or events evidencing [an employee’s propensity for the type of misconduct alleged]” and “may be liable if it nonetheless ‘place[s] the employee in a position to cause foreseeable harm’”. Moore, 40 N.Y.3d at 158 (quoting Detone v. Bullit Courier Serv., Inc., 140 A.D.2d 278, 279 (1988)). An employer must have notice of prior allegations of misconduct that are of the same kind of misconduct that caused the plaintiff’s injury—“general, unrelated or lesser allegations of prior wrongdoing are insufficient”. Doe v. Alsaud, 12 F. Supp. 3d 674, 681