Preview
FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JULIA ORMOND, Index No. 952107/2023
Plaintiff, Motion Sequence No. TBD
v. ORAL ARGUMENT REQUESTED
HARVEY WEINSTEIN, CREATIVE ARTISTS
AGENCY, LLC, THE WALT DISNEY COMPANY,
MIRAMAX HOLDING CORP. and MIRAMAX
FILM NY, LLC f/k/a MIRAMAX FILM CORP.,
Defendants.
MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANT MIRAMAX FILM NY, LLC’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
SUMMARY OF ALLEGATIONS ..................................................................................................3
ARGUMENT ...................................................................................................................................6
I. ORMOND FAILED TO PLEAD A LEGALLY COGNIZABLE NEGLIGENT
SUPERVISION CLAIM AGAINST MIRAMAX FILM NY, LLC. ..................................6
A. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Was
Weinstein’s Employer..............................................................................................8
B. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew It
Had The Ability, Necessity, And Opportunity To Control Weinstein. ...................8
C. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew Or
Should Have Known Of Weinstein’s Propensity To Commit Assault. .................11
D. Ormond Failed To Allege The Alleged Assault Took Place On Miramax
Film NY, LLC’s Premises Or With Its Chattels Or Any Nexus Between
Weinstein’s Employment At Miramax Film NY, LLC And Ormond’s
Injuries. ..................................................................................................................15
CONCLUSION ..............................................................................................................................19
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TABLE OF AUTHORITIES
Cases Page(s)
Canosa v. Ziff,
2019 WL 498865 (S.D.N.Y. Jan. 28, 2019) ................................................................15, 16, 17
Castro–Quesada v. Tuapanta,
49 N.Y.S.3d 757 (App. Div. 2017) ......................................................................................9, 10
Christopher S. v. Douglaston Club,
713 N.Y.S.2d 542 (App. Div. 2nd Dep’t 2000) .................................................................13, 14
Connaughton v. Chipotle Mexican Grill, Inc.,
29 N.Y.3d 137 (2017) ................................................................................................................7
D’Amico v. Christie,
71 N.Y.2d 76 (1987) ........................................................................................................7, 8, 15
David v. Weinstein Co. LLC,
2019 WL 1864073 (S.D.N.Y. Apr. 24, 2019)..........................................................................15
Doe 7015 v. Elektra Entm’t Grp. Inc.
2023 WL 2744102 (S.D.N.Y. Mar. 31, 2023) .........................................................................18
Doe v. Alsaud,
12 F. Supp. 3d 674 (S.D.N.Y. 2014)........................................................................................16
Doe v. Fed. Express Corp.,
345 F. App’x 670 (2d Cir. 2009) .............................................................................................18
Dweck Law Firm, LLP v. Mann,
727 N.Y.S.2d 58 (App. Div. 1st Dep’t 2001) ............................................................................7
Ehrens v. Lutheran Church,
385 F.3d 232 (2d Cir. 2004).......................................................................................................8
Gonzalez v. City of the N.Y.,
17 N.Y.S.3d 12 (App. Div. 1st Dep’t 2015) ............................................................................15
Greene v. Doral Conference Ctr. Assocs.,
795 N.Y.S.2d 252 (App. Div. 2nd Dep’t 2005) .......................................................................16
Griffin v. Sirva, Inc.,
29 N.Y.3d 174 (2017) ..............................................................................................................11
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Judith M. v. Sisters of Charity Hosp.,
93 N.Y.2d 932 (1999) ................................................................................................................7
K.I. v. N.Y.C. Bd. Of Educ.,
683 N.Y.S.2d 228 (App. Div. 1st Dep’t 1998) ........................................................................18
KM v. Fencers Club, Inc.,
83 N.Y.S.3d 197 (App. Div. 2nd Dep’t 2018) .........................................................................12
Lemp v. Lewis,
641 N.Y.S.2d 158 (App. Div. 3rd Dep’t 1996)........................................................................17
Moncho v. Miller,
160 N.Y.S.3d 216 (App. Div. 1st Dep’t 2021) ..........................................................................7
Moore Charitable Found. v. PJT Partners, Inc.,
40 N.Y.3d 150 (2023) ..................................................................................................7, 8, 9, 15
MS, etc. v. Arlington Cent. Sch. Dist.,
9 N.Y.S.3d 632 (App. Div. 2nd Dep’t 2015) ...........................................................................18
Phillips-Johnson v. Lucky 8 TV LLC,
2021 WL 5154186 (N.Y. Sup. Ct. Nov. 4, 2021) ......................................................................9
Pisula v. Roman Catholic Archdiocese of N.Y.,
159 N.Y.S.3d 458 (App. Div. 2nd Dep’t 2021) .................................................................11, 13
Plotkin v. Republic-Franklin Ins. Co.,
113 N.Y.S.3d 133 (App. Div. 2nd Dep’t 2019) .......................................................................14
Principia Partners LLC v. Swap Fin. Grp.,
144 N.Y.S.3d 338 (App. Div. 1st Dep’t 2021) ........................................................................10
Roe v. Domestic & Foreign Missionary Soc’y of the Protestant Episcopal Church,
155 N.Y.S.3d 418 (App. Div. 2nd Dep’t 2021) .......................................................................17
Samoya W. v. 3940 Carpenter Ave., LLC,
131 N.Y.S.3d 550 (App. Div. 1st Dep’t 2020) ..........................................................................7
Sheila C. v. Povich,
781 N.Y.S.2d 342 (App. Div. 1st Dep’t 2004), overruled on other grounds,
Brown v. N.Y. Design Ctr., Inc., 185 N.Y.S.3d 97 (App. Div. 1st Dep’t 2023) ................11, 12
Solomon v. City of N.Y.,
66 N.Y.2d 1026 (1985) ..............................................................................................................7
V. Groppa Pools, Inc. v. Massello,
964 N.Y.S.2d 563 (App. Div. 2nd Dep’t 2013) .........................................................................6
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Ward v. Cross Cty. Multiplex Cinemas, Inc.,
878 N.Y.S.2d 334 (App. Div. 1st Dep’t 2009) ..........................................................................8
Weinfeld v. HR Photography, Inc.,
52 N.Y.S.3d 458 (App. Div. 2nd Dep’t 2017) .....................................................................9, 10
Wilkow v. Araque,
2019 WL 1115724 (N.Y. Sup. Ct. Mar. 11, 2019) ....................................................................8
Other Authorities
CPLR 3211(a)(7) .........................................................................................................................1, 6
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Defendant Miramax Film NY, LLC respectfully submits this memorandum of law in
support of its motion to dismiss plaintiff Julia Ormond’s (“Ormond”) negligent supervision claim
against Miramax Film NY, LLC pursuant to CPLR 3211(a)(7).1
PRELIMINARY STATEMENT
Ormond brings this complaint under the Adult Survivors Act, which temporarily revived
her otherwise time-barred claims. Despite that revival, her allegations against Miramax Film
NY, LLC fall far short of demonstrating that Miramax Film NY, LLC—which did not even exist
until many years after the alleged events—should somehow be held liable for an alleged assault
by Harvey Weinstein (“Weinstein”) purportedly at Ormond’s apartment. Ormond fails to plead
any of the required elements to sustain a negligent supervision claim against Miramax Film NY,
LLC, and her claims should be dismissed.
First, Ormond fails to allege that Miramax Film NY, LLC exercised substantial control
over Weinstein, or that it knew it had the ability, necessity, or opportunity to control him.
Indeed, Ormond concedes that Weinstein did not sign any employment agreements with
Miramax Film NY, LLC. She then further comingles four different entities as Weinstein’s
alleged employers, making it impossible to determine which allegations relate to which entity.
Ormond also fails to allege that Weinstein ever even reported to Miramax Film NY, LLC
personnel. Instead, she unequivocally alleges that Weinstein only ever reported to The Walt
Disney Company’s (“Disney”) executives. Ormond wholly failed to allege that Miramax Film
1
The complaint alleges that Miramax Film NY, LLC was formerly known as Miramax Film
Corp., (Complaint (“Compl.”) at 1), and improperly defines both entities, along with Miramax
Holding Corp., as “Miramax.” (Id. ¶ 10.) Yet, these are wholly separate and distinct entities. In
fact, Ormond admits that Miramax Film NY, LLC was not even created until 2010, long after the
alleged events. (See id. ¶ 10.) And Miramax Holding Corp. is a Disney-owned entity. Thus, as
used herein, the term “Miramax” will only be used in reference to the allegations in the
complaint against some unspecified Miramax entity.
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NY, LLC actually supervised Weinstein. This alone warrants dismissal of her negligent
supervision claim against Miramax Film NY, LLC.
Second, Ormond fails to allege that Miramax Film NY, LLC knew or should have known
of Weinstein’s propensity to commit assault. Although Ormond cites a number of media sources
that purportedly describe instances of alleged assault by Weinstein, Ormond entirely fails to
allege when Miramax Film NY, LLC (which did not exist until 2010), if at all, learned of these
incidents such that it was on notice of Weinstein’s propensities prior to Ormond’s alleged
injuries in December 1995. Ormond conveniently omits dates and the sources relied upon to
portray a corporate environment where everyone knew of Weinstein’s propensities. But without
supporting factual allegations, Ormond cannot rely on after-the-fact media reports of Weinstein’s
alleged misconduct to establish that Miramax Film, NY LLC should have known of Weinstein’s
propensities prior to Ormond’s alleged injuries. Nor can Ormond impute Robert Weinstein’s
purported knowledge of his brother’s alleged misconduct onto Miramax Film NY, LLC. Any
knowledge that Robert Weinstein allegedly obtained would have been obtained outside the scope
of his employment. And more importantly, such knowledge could not have been imputed to
Miramax Film NY, LLC when it did not even exist at that time.
Finally, the alleged assault did not take place on Miramax Film NY, LLC’s premises or
with its chattels, and Ormond fails to plead any nexus between Weinstein’s employment and her
alleged assault. Ormond unequivocally alleges the assault occurred at her apartment, where
Weinstein shrugged off any business discussions. While Ormond alleges that some Miramax
entity “paid for” her apartment in an attempt to establish the premises and chattels element, this
is insufficient, as she does not allege any facts showing that Miramax Film NY, LLC, which did
not even exist at that time, exercised any dominion or control over her apartment.
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In sum, Ormond has not properly alleged any element of a negligent supervision claim
against Miramax Film NY, LLC, and it should be dismissed.
SUMMARY OF ALLEGATIONS2
Ormond alleges that Harvey Weinstein entered into two employment agreements with
Miramax Film Corp. and Disney effective for the periods 1993 to 1995 and 1995 to 1999.
(Compl. ¶ 12.) During this time, Ormond alleges that some unspecified “Miramax [entity] and
Disney jointly had the power to hire and fire Harvey Weinstein, set his pay, and control his work
conditions.” (Id.) At the same time, Ormond alleges that Weinstein only ever reported “to a
series of Disney executives who did not adequately supervise him.” (Id. ¶ 24.) Ormond alleges
that Disney, and Disney only, exercised oversight and control over Weinstein. (Id. ¶ 13.)
Meanwhile, she defines “Miramax” collectively as Miramax Film NY, LLC, Miramax Film
Corp., and Miramax Holding Corp.3 (Id. ¶ 10.)
Ormond alleges that, in or about early 1994, her UK-based talent agent arranged a
meeting between Ormond—a UK-based actress—and Weinstein concerning an upcoming film
“she was not eager to work on.” (Id. ¶ 31.) The meeting took place at the Savoy Hotel in
London. (Id.) During the meeting, Ormond said she was considering another project, and was
embarrassed when Weinstein mentioned he was producing that project, too. (Id.) Weinstein
suggested Ormond should not work in films she was not interested in, and the parties proceeded
to “have a lengthy conversation about film in general.” (Id. ¶ 32.) After the meeting, “they
2
Miramax Film NY, LLC treats the allegations in the complaint as true solely for the purposes of
this motion but rejects, denies, and does not concede any of them.
3
Ormond has since dismissed all claims against Miramax Holding Corp. See NYSCEF Doc. No.
6. This dismissal, however, does not cure the defects of Ormond’s pleading, which groups all
three Miramax entities into the definition of “Miramax” and does not specify which allegations
relate to which Miramax entity.
3
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agreed to stay in contact.” (Id.) Over the following year, Ormond alleges that Weinstein sent
her “scripts for her to review and critique.” (Id. ¶ 33.) The scripts pertained to either acting roles
that Weinstein thought she should consider, or scripts for which Weinstein simply sought her
opinion. (Id.) Ormond and Weinstein “regularly discuss[ed] these scripts by phone” and she
“returned these scripts to Weinstein with detailed notes.” (Id.)
In or about 1995, Ormond replaced her UK-based talent agent with Bryan Lourd and
Kevin Huvane of Creative Arts Agency, LLC (“CAA”). She was persuaded by Lourd and
Huvane “that CAA would afford her opportunities that her then-current representation could not
match.” (Id. ¶ 34.) Ormond alleges that she rose in prominence in the film industry that same
year, which led her to “start[] a production company in which she could pursue her interest in
making films as well as acting.” (Id. ¶ 39.)
In August 1995, Lourd and Huvane “negotiated and secured” for Ormond a two-year film
production agreement with some unspecified Miramax entity. (Id. ¶ 40.) The agreement
purportedly “included an exclusive ‘first-look’ option” which granted some unspecified Miramax
entity “the first opportunity to make any film that Ormond sought to produce.” (Id.) For each
film produced by some unspecified Miramax entity, Ormond “would earn a fee for any film that
she acted in and, as a producer, would also receive a portion of the film’s profits.” (Id.) CAA
would also earn a percentage of Ormond’s income. (Id.) After entering into the agreement,
Ormond alleges she moved from England to New York City. (Id. ¶ 41.) Ormond alleges she
began working from some unspecified Miramax entity’s New York City offices, and lived in an
apartment allegedly paid for by an unspecified Miramax entity. (Id. ¶ 42.) Strikingly absent
from her complaint, however, is who actually paid for the apartment, whether paying for the
apartment was contractually required, whether any Miramax entity directly paid or instead
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subsidized the apartment through Ormond’s salary, whether Ormond received any
reimbursement for the apartment, or any facts suggesting that a Miramax entity had any
dominion or control over the apartment. To the contrary, Ormond consistently refers to the
apartment as “Ormond’s apartment” and “her apartment.” (See id. ¶¶ 4, 50.)
In late 1995, CAA presented Ormond the opportunity to work with experienced producer
Lloyd Phillips on West with the Night, a film partly set in Africa. (Id. ¶ 44.) Ormond and her
production company submitted the project to an unspecified Miramax entity as part of her first-
look deal. (Id.) Weinstein expressed interest in the project, made a financial commitment to
Phillips to pursue it, and some unspecified Miramax entity “committed to paying for a trip to
Africa for writer’s research, character development, and location scouting.” (Id. ¶ 45.) Ormond
alleges that “for over a month, Weinstein delayed paying for the trip.” (Id.)
In December 1995, CAA arranged a “business dinner” between Ormond and Weinstein
to ensure some unspecified Miramax entity paid for the Africa trip. (Id. ¶ 46.) The meeting took
place somewhere in New York City. (Id.) At the dinner, “Weinstein was only interested in
socializing and drinking with Ormond.” (Id. ¶ 47.) Weinstein and Ormond later moved to “a
bar,” and Weinstein dismissed any talk about the Africa trip at the dinner and at the bar. (Id.)
Ormond alleges that Weinstein told her that he would return to her apartment with her, where
they would discuss the Africa trip. (Id. ¶ 49.) Weinstein insisted that he wanted to see the
apartment “he was paying for.” (Id.) Ormond allowed Weinstein to return to her apartment with
her. (Id.) “[A]t Ormond’s apartment,” “Weinstein quickly agreed that [some Miramax entity]
would pay for the Africa trip and then went to Ormond’s bathroom.” (Id. ¶ 50.) Ormond then
alleges that Weinstein emerged from her bathroom in just his underwear, and thereafter,
Weinstein sexually assaulted her. (Id. ¶ 51.)
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Ormond alleges she reported Weinstein’s assault to Lourd and Huvane. (Id. ¶ 56.)
Neither “express[ed] any empathy” and both encouraged her not to report the assault. (Id. ¶ 57.)
Lourd and Huvane “cautioned Ormond that she should not speak to people about what Weinstein
had done because he would sue her for libel.” (Id.) Lourd and Huvane “effectively silenced
Ormond.” (Id. ¶ 58.) Ormond followed the advice, and “did not pursue any further action
regarding Weinstein’s assault of her.” (Id. ¶ 59.) Ormond noticeably fails to allege having
reported Weinstein’s purported assault to anyone at any Miramax or Disney entity. (See id.) She
also fails to allege that Lourd, Huvane, or CAA reported the assault to any Miramax or Disney
entity. (See id.) Ormond nevertheless alleges that, after confronting Weinstein about the assault,
Weinstein and some unspecified Miramax entity retaliated against her by ceasing development of
West with the Night and ultimately terminating Ormond’s first-look agreement. (Id. ¶¶ 59–61.)
Although Ormond concedes having never reported the assault to any Miramax entity, she alleges
that Miramax Film NY, LLC (which did not exist until 2010) should have known of Weinstein’s
propensities because of Weinstein’s alleged prior assaults against other Miramax and CAA
personnel and confidential settlement agreements with Weinstein’s victims. (Id. ¶¶ 5, 67, 73–
74.) Ormond asserts a single cause of action for negligent supervision against Miramax Film
NY, LLC arising out of the alleged assault by Weinstein. (Id. ¶¶ 85–94.)
ARGUMENT
I. ORMOND FAILED TO PLEAD A LEGALLY COGNIZABLE NEGLIGENT
SUPERVISION CLAIM AGAINST MIRAMAX FILM NY, LLC.
A complaint must be dismissed when “the pleading fails to state a cause of action.”
CPLR 3211(a)(7). To survive a motion to dismiss, a complaint “cannot be vague and
conclusory, but must contain sufficiently particularized allegations from which a cognizable
cause of action reasonably could be found.” V. Groppa Pools, Inc. v. Massello, 964 N.Y.S.2d
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563, 564 (App. Div. 2nd Dep’t 2013) (internal citations omitted). Dismissal is required “if the
plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and
inferences to be drawn from them do not allow for an enforceable right of recovery.”
Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 (2017). “Unsupported factual
allegations, [or] conclusory legal argument . . . do not suffice.” Dweck Law Firm, LLP v. Mann,
727 N.Y.S.2d 58, 59 (App. Div. 1st Dep’t 2001).
Generally, a party “has no duty to control the conduct of third persons so as to prevent
them from harming others, even where as a practical matter defendant can exercise such
control”; the doctrine of negligent supervision serves as a narrow exception to this general rule.4
D’Amico v. Christie, 71 N.Y.2d 76, 88 (1987) (citing Pulka v. Edelman, 40 N.Y.2d 781, 783
(1976)). To state a claim for negligent supervision under New York law, in addition to the
elements required for a claim of negligence,5 a plaintiff must plead (1) the existence of an
employer-employee relationship, (2) that “the employer knew or should have known that it had
the ability to control the employee and of the necessity and opportunity for exercising such
control,” (3) that the employer knew or should have known of “the employee’s propensity for the
sort of behavior which caused the injured party’s harm,” Moore Charitable Found. v. PJT
Partners, Inc., 40 N.Y.3d 150, 157 (2023), and (4) that the “tort[] [was] committed by employees
4
The doctrine of vicarious liability is also a limited exception, but Ormond does not allege that
Weinstein’s assault occurred within the scope of his employment (a requirement for vicarious
liability). Samoya W. v. 3940 Carpenter Ave., LLC, 131 N.Y.S.3d 550, 551 (App. Div. 1st Dep’t
2020). In any event, New York courts uniformly hold that sexual assault is necessarily outside
the scope of employment, Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999), and
Ormond may not assert both a negligent supervision and a vicarious liability claim arising out of
the same injury. Moncho v. Miller, 160 N.Y.S.3d 216, 220 (App. Div. 1st Dep’t 2021).
5
To state a negligence claim, a plaintiff must plead (1) a duty owed by defendant to plaintiff, (2)
a breach of that duty, and (3) “injury proximately resulting therefrom.” Solomon v. City of N.Y.,
66 N.Y.2d 1026, 1027 (1985).
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on the employer’s premises or with the employer’s chattels.” D’Amico, 71 N.Y.2d at 88; see
also Moore Charitable Found., 40 N.Y.3d at 157; Ehrens v. Lutheran Church, 385 F.3d 232, 235
(2d Cir. 2004).
Ormond here asserts a negligent supervision claim against Miramax Film NY, LLC, but
fails to allege facts sufficient to satisfy this narrow exception. The Court should dismiss
Ormond’s claim against Miramax Film NY, LLC.
A. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Was
Weinstein’s Employer.
As a preliminary matter, Ormond’s negligent supervision claim against Miramax Film
NY, LLC fails because she does not allege that Miramax Film NY, LLC ever employed
Weinstein. Instead, Ormond unequivocally alleges that “Miramax Film Corp.”—and not
Miramax Film NY, LLC— “entered into two employment agreements [with Weinstein] effective
for the periods 1993 to 1995 and 1995 to 1999.” (Compl. ¶ 12.) In fact, Ormond admits that
Miramax Film NY, LLC did not even exist until 2010, long after any of the alleged events took
place. (Id. ¶ 10.) As a matter of law, Ormond cannot establish the requisite employer-employee
relationship between Weinstein and an entity that did not exist at the time of her alleged injuries.
See Ward v. Cross Cty. Multiplex Cinemas, Inc., 878 N.Y.S.2d 334, 335 (App. Div. 1st Dep’t
2009) (dismissing claim where alleged employer “had no legally cognizable existence at the time
of plaintiff’s accident”); see also Wilkow v. Araque, 2019 WL 1115724, at *2–3 (N.Y. Sup. Ct.
Mar. 11, 2019) (same). Ormond’s fatal admission requires dismissal of her claim.
B. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew It Had
The Ability, Necessity, And Opportunity To Control Weinstein.
Having failed to allege an employment agreement with Miramax Film NY, LLC, Ormond
also fails to allege that Miramax Film NY, LLC “knew or should have known that it had the
ability to control the employee and of the necessity and opportunity for exercising such control.”
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Moore Charitable Found., 40 N.Y.3d at 157. The New York Court of Appeals in Moore just this
year further articulated this standard with respect to a negligent supervision claim. Id. While the
Court did not substantively address this language and no New York court has yet interpreted it,
this element is fairly similar to the question of whether an employment relationship exists in the
context of whether an individual is an employee or independent contractor. Under this
framework, whether an employment relationship exists critically depends on “the degree of
control exercised by the purported employer.” Castro–Quesada v. Tuapanta, 49 N.Y.S.3d 757,
759 (App. Div. 2017) (citation omitted). “[M]inimal or incidental control” is insufficient to
establish an employer-employee relationship. Weinfeld v. HR Photography, Inc., 52 N.Y.S.3d
458, 460–61 (App. Div. 2nd Dep’t 2017). Without sufficient control, one cannot be held liable
for another’s independent actions. Id.
Even should Ormond’s barebone (and factually incorrect) allegation that Miramax Film
NY, LLC “assumed all liabilities of Miramax Film Corp.”6 withstand scrutiny, Ormond fails to
sufficiently allege that Miramax Film NY, LLC exercised substantial control over Weinstein. At
the motion to dismiss stage, “absent a factual underpinning,” “vague and conclusory” allegations
of employment are insufficient. See Phillips-Johnson v. Lucky 8 TV LLC, 2021 WL 5154186, at
*5 (N.Y. Sup. Ct. Nov. 4, 2021). It is not enough for Ormond to allege that some unspecified
Miramax entity employed Weinstein. Rather, Ormond must sufficiently allege that Miramax
Film NY, LLC exercised “substantial control” over Weinstein. Castro–Quesada, 49 N.Y.S.3d at
759. Ormond does not.
6
Ormond suggests without factual basis that because she believes that Miramax Film NY, LLC
allegedly assumed all liabilities of Miramax Film Corp., Miramax Film NY, LLC is the proper
defendant here. While this motion does not turn on whether Miramax Film NY, LLC actually
“assumed all liabilities of Miramax Film Corp,” (Compl. ¶ 16), Miramax Film NY, LLC disputes
this allegation.
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Ormond defines “Miramax” collectively as Miramax Film NY, LLC, Miramax Film
Corp., and Miramax Holding Corp. (Compl. ¶ 16.) Grouping these entities together is
insufficient to establish that Miramax Film NY, LLC (which did not exist until 2010) exercised
any control over Weinstein’s “results produced” and “means used” as part of his employment
duties. Castro-Quesada, 49 N.Y.S.3d at 759. This is even more so where Ormond lumps all
allegations against the three Miramax entities with alleged co-employer Disney, but fails to
distinguish which facts are attributable to each of these entities. (See e.g., Compl. at 1, ¶¶ 2-3, 5-
6, 8, 10.) Ormond’s grouping of all entities remotely associated with Weinstein, including her
“fail[ure] to distinguish between the[m],” renders attributing which entity in fact exercised
control (if any) over Weinstein plainly impossible. Principia Partners LLC v. Swap Fin. Grp.,
144 N.Y.S.3d 338, 339 (App. Div. 1st Dep’t 2021). Ormond’s own allegations dilute any control
that Miramax Film NY, LLC allegedly might have had over Weinstein by suggesting that Disney
and all the Miramax entities in fact exercised some degree of control. Such minimal or
incidental control is legally insufficient. Weinfeld, 52 N.Y.S.3d at 460–61.
Tellingly, the only difference Ormond does allege is that “Weinstein reported directly to
Michael Eisner (‘Eisner’), Disney’s Chief Executive Officer,” who in turn “delegated oversight
of Harvey Weinstein to a series of Disney executives who did not adequately supervise him.”
(Compl. ¶ 24) (emphases added). Similarly, Ormond unequivocally alleges that “Disney
exercised oversight and control over Miramax and Harvey Weinstein,” including “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) (emphasis added). Certainly, these facts
weigh against any finding of control by Miramax Film NY, LLC (which did not exist at that
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time). See Griffin v. Sirva, Inc., 29 N.Y.3d 174, 186 (2017). At bottom, Ormond cannot
plausibly claim that Miramax Film NY, LLC negligently supervised Weinstein when she fails to
even allege that Miramax Film NY, LLC supervised Weinstein in the first place.
Without having sufficiently alleged that Miramax Film NY, LLC had any meaningful
control over Weinstein, it is impossible for Ormond to have alleged that Miramax Film NY, LLC
“knew or should have known” of a control it never had and could never have had in the first
place. As such, Ormond’s claim must be dismissed on this basis alone.
C. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew Or
Should Have Known Of Weinstein’s Propensity To Commit Assault.
Ormond additionally fails to allege any knowledge by Miramax Film NY, LLC of
Weinstein’s purported propensity to commit sexual assault prior to her alleged assault—a
necessary element of a negligent supervision claim. Sheila C. v. Povich, 781 N.Y.S.2d 342, 350
(App. Div. 1st Dep’t 2004), overruled on other grounds, Brown v. N.Y. Design Ctr., Inc., 185
N.Y.S.3d 97 (App. Div. 1st Dep’t 2023). “Negligence can only be determined ‘by what was
known before and at the time of the accident,’ and cannot be inferred from subsequent acts.”
Pisula v. Roman Catholic Archdiocese of N.Y., 159 N.Y.S.3d 458, 470 (App. Div. 2nd Dep’t
2021). Under this standard, Ormond’s allegations are insufficient. Although she specifies the
date of her alleged assault, she notably fails to identify any other dates in her complaint related to
Miramax’s purported knowledge of Weinstein’s alleged prior conduct. Ormond thus cannot
establish that any Miramax entity had knowledge of such conduct prior to the date of her alleged
assault.
Ormond alleges that she was assaulted by Weinstein in December 1995. Thus, she was
required to plead facts demonstrating that Miramax was on notice of Weinstein’s alleged
propensity to commit sexual assault prior to this date. She has not done so. For example,
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Ormond alleges that “Weinstein’s harassment of women ‘wasn’t a secret to the inner circle,’” but
fails to allege whether this knowledge arose before or after her alleged assault. (Compl. ¶ 71.)
The same is true as to certain reports of Weinstein’s misconduct. (See, e.g., id. ¶ 76 (failing to
allege when Amy Israel’s harassment by Weinstein was reported); id. ¶ 77 (failing to allege
when “Reiter discussed Harvey Weinstein’s pattern of sexual harassment and assaults of
women”); id. ¶ 78 (failing to allege when Nancy Ashbrooke “had direct knowledge of
complaints regarding Weinstein’s sexual harassment of women.”)
Nor does Ormond allege that any of these incidents were reported to Miramax Film NY,
LLC. (Id. ¶¶ 75–78.) See KM v. Fencers Club, Inc., 83 N.Y.S.3d 197, 198–99 (App. Div. 2nd
Dep’t 2018) (dismissing negligent supervision claim where prior “incidents were never reported
to [employer]”). Nor could she, because Miramax Film NY, LLC did not exist until 2010.
(Compl. ¶ 10.) The same holds true as to Ormond’s allegations surrounding confidential
settlement agreements entered into with Weinstein’s victims. Although she alleges that some
settlement agreements occurred with Weinstein victims, notably, Ormond never alleges that
these settlement agreements were with Miramax Film NY, LLC, nor does she allege the dates of
such settlements. (Id. ¶¶ 72–73.)
Ormond’s other allegations are equally unavailing. She alleges that in 1990, John
Schmidt, “then Miramax’s Chief Financial Officer” said that Weinstein “confessed to him that he
had done ‘something terrible,’” but Ormond fails to allege what that was. (Compl. ¶ 73.)
Without more, this fails to establish propensity of knowledge because no plausible inference can
be made as to whether this conduct was “the sort of conduct” at issue in this case. See Sheila C.,
781 N.Y.S.2d at 350. Other allegations of Weinstein’s misconduct and their subsequent
reporting to “supervisors at Miramax” otherwise have no source, and are not pled on information
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and belief. (Id. ¶¶ 75, 77–78.) Without specific facts demonstrating that Miramax Film NY,
LLC had knowledge of Weinstein’s misconduct prior to Ormond’s alleged assault in December
1995 (which it could not have known since it did not exist until 2010), negligence cannot be
imputed to the company. Pisula, 159 N.Y.S.3d at 471 (“Negligence can only be determined ‘by
what was known before and at the time of the accident,’ and cannot be inferred from subsequent
acts.”).
Moreover, Ormond’s reliance on Robert Weinstein’s purported knowledge also fails.
Under black-letter agency law, Robert Weinstein’s knowledge may be imputed to Miramax only
if Robert Weinstein acquired that knowledge “within the scope of his [] agency,” i.e., within the
scope of his duties as an officer of Miramax. Christopher S. v. Douglaston Club, 713 N.Y.S.2d
542, 543 (App. Div. 2nd Dep’t 2000). Absent any duties carried out by Robert Weinstein as an
agent of Miramax in learning of his brother’s conduct, Robert Weinstein’s employment at
Miramax at the time was thus “mere happenstance.”7 Christopher S., 713 N.Y.S.2d at 543.
Ormond alleges Robert Weinstein knew of his brother’s propensity to commit assault
because he “personally participated in the confidential settlement” of Weinstein’s assault of a
Miramax assistant. (Compl. ¶ 73.) But Ormond critically fails to allege whether Miramax Film
NY, LLC was a party to the settlement agreement, whether this settlement agreement occurred
before Ormond’s injuries, or whether Robert Weinstein “participated” on behalf of Weinstein in
his capacity as an officer of Miramax Film NY, LLC. Without more, Robert Weinstein’s
“personal[] participat[ion],” (id.), “did not concern matters related to [Weinstein’s] respective
[employment] duties,” and thus Robert Weinstein’s purported knowledge of his brother’s alleged
7
Indeed, Ormond fails to allege that Robert Weinstein was an employee of Miramax Film NY,
LLC. ((Compl. ¶ 70) (only alleging Robert Weinstein was a “Co-chairman of [some unspecified]
Miramax [entity])”.)
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propensity to sexually assault women may not be imputed to Miramax Film NY, LLC.
Christopher S., 713 N.Y.S.2d at 543. Robert Weinstein was also not just Weinstein’s colleague,
but his brother and friend. See id. (knowledge not acquired within scope when chairman
acquired knowledge “as the father of a boy involved in the prior incident”).
Even had Robert Weinstein somehow acquired knowledge of his brother’s purported
propensity for sexual assault within the scope of his agency, “when the agent has abandoned his
[] principal’s interests and is acting entirely for his [] own or another’s purposes,” the agent’s
knowledge may still not be imputed to the principal. Id.; see also Plotkin v. Republic-Franklin
Ins. Co., 113 N.Y.S.3d 133, 137 (App. Div. 2nd Dep’t 2019). That is precisely what is alleged
here. The allegations here are no different than Christopher S. There, two chairmen and board
members of the defendant-employer knew of prior incidents of the employee-tortfeasor’s
improper sexual behavior. 713 N.Y.S.2d at 543. The court found that the chairmen’s
knowledge—even had they acquired it “while acting within the scope of their agencies”—could
not be imputed to the employer because they “intentionally withheld” the information from the
employer to protect their families. Id. Robert Weinstein, here too, “repeatedly helped Weinstein
conceal his misconduct and claim new victims.” (Compl. ¶ 70.) By protecting his brother,
Robert Weinstein “completely abandoned any obligation owed to [Miramax] in his capacity as
a[n] [officer and chairman].” Christopher S., 713 N.Y.S.2d at 543.8
8
The same is true as to Ormond’s allegations surrounding Irwin Reiter’s “review[ing] and
handl[ing] payment to Harvey Weinstein’s victims.” (Compl. ¶ 77.) This allegation also fails to
establish propensity of knowledge because Ormond fails to allege whether these alleged
payments were made before or after her alleged injuries. (See id.)
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Ormond thus has failed to establish that Miramax Film NY, LLC knew or should have
known of Weinstein’s propensity to sexually assault women, at any time, much less prior to her
alleged injuries. Her claim must thus be dismissed for this additional and independent reason.
D. Ormond Failed To Allege The Alleged Assault Took Place On Miramax Film
Preview
FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JULIA ORMOND, Index No. 952107/2023 Plaintiff, Motion Sequence No. TBD v. ORAL ARGUMENT REQUESTED HARVEY WEINSTEIN, CREATIVE ARTISTS AGENCY, LLC, THE WALT DISNEY COMPANY, MIRAMAX HOLDING CORP. and MIRAMAX FILM NY, LLC f/k/a MIRAMAX FILM CORP., Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT MIRAMAX FILM NY, LLC’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 SUMMARY OF ALLEGATIONS ..................................................................................................3 ARGUMENT ...................................................................................................................................6 I. ORMOND FAILED TO PLEAD A LEGALLY COGNIZABLE NEGLIGENT SUPERVISION CLAIM AGAINST MIRAMAX FILM NY, LLC. ..................................6 A. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Was Weinstein’s Employer..............................................................................................8 B. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew It Had The Ability, Necessity, And Opportunity To Control Weinstein. ...................8 C. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew Or Should Have Known Of Weinstein’s Propensity To Commit Assault. .................11 D. Ormond Failed To Allege The Alleged Assault Took Place On Miramax Film NY, LLC’s Premises Or With Its Chattels Or Any Nexus Between Weinstein’s Employment At Miramax Film NY, LLC And Ormond’s Injuries. ..................................................................................................................15 CONCLUSION ..............................................................................................................................19 i 2 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 TABLE OF AUTHORITIES Cases Page(s) Canosa v. Ziff, 2019 WL 498865 (S.D.N.Y. Jan. 28, 2019) ................................................................15, 16, 17 Castro–Quesada v. Tuapanta, 49 N.Y.S.3d 757 (App. Div. 2017) ......................................................................................9, 10 Christopher S. v. Douglaston Club, 713 N.Y.S.2d 542 (App. Div. 2nd Dep’t 2000) .................................................................13, 14 Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 (2017) ................................................................................................................7 D’Amico v. Christie, 71 N.Y.2d 76 (1987) ........................................................................................................7, 8, 15 David v. Weinstein Co. LLC, 2019 WL 1864073 (S.D.N.Y. Apr. 24, 2019)..........................................................................15 Doe 7015 v. Elektra Entm’t Grp. Inc. 2023 WL 2744102 (S.D.N.Y. Mar. 31, 2023) .........................................................................18 Doe v. Alsaud, 12 F. Supp. 3d 674 (S.D.N.Y. 2014)........................................................................................16 Doe v. Fed. Express Corp., 345 F. App’x 670 (2d Cir. 2009) .............................................................................................18 Dweck Law Firm, LLP v. Mann, 727 N.Y.S.2d 58 (App. Div. 1st Dep’t 2001) ............................................................................7 Ehrens v. Lutheran Church, 385 F.3d 232 (2d Cir. 2004).......................................................................................................8 Gonzalez v. City of the N.Y., 17 N.Y.S.3d 12 (App. Div. 1st Dep’t 2015) ............................................................................15 Greene v. Doral Conference Ctr. Assocs., 795 N.Y.S.2d 252 (App. Div. 2nd Dep’t 2005) .......................................................................16 Griffin v. Sirva, Inc., 29 N.Y.3d 174 (2017) ..............................................................................................................11 ii 3 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932 (1999) ................................................................................................................7 K.I. v. N.Y.C. Bd. Of Educ., 683 N.Y.S.2d 228 (App. Div. 1st Dep’t 1998) ........................................................................18 KM v. Fencers Club, Inc., 83 N.Y.S.3d 197 (App. Div. 2nd Dep’t 2018) .........................................................................12 Lemp v. Lewis, 641 N.Y.S.2d 158 (App. Div. 3rd Dep’t 1996)........................................................................17 Moncho v. Miller, 160 N.Y.S.3d 216 (App. Div. 1st Dep’t 2021) ..........................................................................7 Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150 (2023) ..................................................................................................7, 8, 9, 15 MS, etc. v. Arlington Cent. Sch. Dist., 9 N.Y.S.3d 632 (App. Div. 2nd Dep’t 2015) ...........................................................................18 Phillips-Johnson v. Lucky 8 TV LLC, 2021 WL 5154186 (N.Y. Sup. Ct. Nov. 4, 2021) ......................................................................9 Pisula v. Roman Catholic Archdiocese of N.Y., 159 N.Y.S.3d 458 (App. Div. 2nd Dep’t 2021) .................................................................11, 13 Plotkin v. Republic-Franklin Ins. Co., 113 N.Y.S.3d 133 (App. Div. 2nd Dep’t 2019) .......................................................................14 Principia Partners LLC v. Swap Fin. Grp., 144 N.Y.S.3d 338 (App. Div. 1st Dep’t 2021) ........................................................................10 Roe v. Domestic & Foreign Missionary Soc’y of the Protestant Episcopal Church, 155 N.Y.S.3d 418 (App. Div. 2nd Dep’t 2021) .......................................................................17 Samoya W. v. 3940 Carpenter Ave., LLC, 131 N.Y.S.3d 550 (App. Div. 1st Dep’t 2020) ..........................................................................7 Sheila C. v. Povich, 781 N.Y.S.2d 342 (App. Div. 1st Dep’t 2004), overruled on other grounds, Brown v. N.Y. Design Ctr., Inc., 185 N.Y.S.3d 97 (App. Div. 1st Dep’t 2023) ................11, 12 Solomon v. City of N.Y., 66 N.Y.2d 1026 (1985) ..............................................................................................................7 V. Groppa Pools, Inc. v. Massello, 964 N.Y.S.2d 563 (App. Div. 2nd Dep’t 2013) .........................................................................6 iii 4 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Ward v. Cross Cty. Multiplex Cinemas, Inc., 878 N.Y.S.2d 334 (App. Div. 1st Dep’t 2009) ..........................................................................8 Weinfeld v. HR Photography, Inc., 52 N.Y.S.3d 458 (App. Div. 2nd Dep’t 2017) .....................................................................9, 10 Wilkow v. Araque, 2019 WL 1115724 (N.Y. Sup. Ct. Mar. 11, 2019) ....................................................................8 Other Authorities CPLR 3211(a)(7) .........................................................................................................................1, 6 iv 5 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Defendant Miramax Film NY, LLC respectfully submits this memorandum of law in support of its motion to dismiss plaintiff Julia Ormond’s (“Ormond”) negligent supervision claim against Miramax Film NY, LLC pursuant to CPLR 3211(a)(7).1 PRELIMINARY STATEMENT Ormond brings this complaint under the Adult Survivors Act, which temporarily revived her otherwise time-barred claims. Despite that revival, her allegations against Miramax Film NY, LLC fall far short of demonstrating that Miramax Film NY, LLC—which did not even exist until many years after the alleged events—should somehow be held liable for an alleged assault by Harvey Weinstein (“Weinstein”) purportedly at Ormond’s apartment. Ormond fails to plead any of the required elements to sustain a negligent supervision claim against Miramax Film NY, LLC, and her claims should be dismissed. First, Ormond fails to allege that Miramax Film NY, LLC exercised substantial control over Weinstein, or that it knew it had the ability, necessity, or opportunity to control him. Indeed, Ormond concedes that Weinstein did not sign any employment agreements with Miramax Film NY, LLC. She then further comingles four different entities as Weinstein’s alleged employers, making it impossible to determine which allegations relate to which entity. Ormond also fails to allege that Weinstein ever even reported to Miramax Film NY, LLC personnel. Instead, she unequivocally alleges that Weinstein only ever reported to The Walt Disney Company’s (“Disney”) executives. Ormond wholly failed to allege that Miramax Film 1 The complaint alleges that Miramax Film NY, LLC was formerly known as Miramax Film Corp., (Complaint (“Compl.”) at 1), and improperly defines both entities, along with Miramax Holding Corp., as “Miramax.” (Id. ¶ 10.) Yet, these are wholly separate and distinct entities. In fact, Ormond admits that Miramax Film NY, LLC was not even created until 2010, long after the alleged events. (See id. ¶ 10.) And Miramax Holding Corp. is a Disney-owned entity. Thus, as used herein, the term “Miramax” will only be used in reference to the allegations in the complaint against some unspecified Miramax entity. 1 6 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 NY, LLC actually supervised Weinstein. This alone warrants dismissal of her negligent supervision claim against Miramax Film NY, LLC. Second, Ormond fails to allege that Miramax Film NY, LLC knew or should have known of Weinstein’s propensity to commit assault. Although Ormond cites a number of media sources that purportedly describe instances of alleged assault by Weinstein, Ormond entirely fails to allege when Miramax Film NY, LLC (which did not exist until 2010), if at all, learned of these incidents such that it was on notice of Weinstein’s propensities prior to Ormond’s alleged injuries in December 1995. Ormond conveniently omits dates and the sources relied upon to portray a corporate environment where everyone knew of Weinstein’s propensities. But without supporting factual allegations, Ormond cannot rely on after-the-fact media reports of Weinstein’s alleged misconduct to establish that Miramax Film, NY LLC should have known of Weinstein’s propensities prior to Ormond’s alleged injuries. Nor can Ormond impute Robert Weinstein’s purported knowledge of his brother’s alleged misconduct onto Miramax Film NY, LLC. Any knowledge that Robert Weinstein allegedly obtained would have been obtained outside the scope of his employment. And more importantly, such knowledge could not have been imputed to Miramax Film NY, LLC when it did not even exist at that time. Finally, the alleged assault did not take place on Miramax Film NY, LLC’s premises or with its chattels, and Ormond fails to plead any nexus between Weinstein’s employment and her alleged assault. Ormond unequivocally alleges the assault occurred at her apartment, where Weinstein shrugged off any business discussions. While Ormond alleges that some Miramax entity “paid for” her apartment in an attempt to establish the premises and chattels element, this is insufficient, as she does not allege any facts showing that Miramax Film NY, LLC, which did not even exist at that time, exercised any dominion or control over her apartment. 2 7 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 In sum, Ormond has not properly alleged any element of a negligent supervision claim against Miramax Film NY, LLC, and it should be dismissed. SUMMARY OF ALLEGATIONS2 Ormond alleges that Harvey Weinstein entered into two employment agreements with Miramax Film Corp. and Disney effective for the periods 1993 to 1995 and 1995 to 1999. (Compl. ¶ 12.) During this time, Ormond alleges that some unspecified “Miramax [entity] and Disney jointly had the power to hire and fire Harvey Weinstein, set his pay, and control his work conditions.” (Id.) At the same time, Ormond alleges that Weinstein only ever reported “to a series of Disney executives who did not adequately supervise him.” (Id. ¶ 24.) Ormond alleges that Disney, and Disney only, exercised oversight and control over Weinstein. (Id. ¶ 13.) Meanwhile, she defines “Miramax” collectively as Miramax Film NY, LLC, Miramax Film Corp., and Miramax Holding Corp.3 (Id. ¶ 10.) Ormond alleges that, in or about early 1994, her UK-based talent agent arranged a meeting between Ormond—a UK-based actress—and Weinstein concerning an upcoming film “she was not eager to work on.” (Id. ¶ 31.) The meeting took place at the Savoy Hotel in London. (Id.) During the meeting, Ormond said she was considering another project, and was embarrassed when Weinstein mentioned he was producing that project, too. (Id.) Weinstein suggested Ormond should not work in films she was not interested in, and the parties proceeded to “have a lengthy conversation about film in general.” (Id. ¶ 32.) After the meeting, “they 2 Miramax Film NY, LLC treats the allegations in the complaint as true solely for the purposes of this motion but rejects, denies, and does not concede any of them. 3 Ormond has since dismissed all claims against Miramax Holding Corp. See NYSCEF Doc. No. 6. This dismissal, however, does not cure the defects of Ormond’s pleading, which groups all three Miramax entities into the definition of “Miramax” and does not specify which allegations relate to which Miramax entity. 3 8 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 agreed to stay in contact.” (Id.) Over the following year, Ormond alleges that Weinstein sent her “scripts for her to review and critique.” (Id. ¶ 33.) The scripts pertained to either acting roles that Weinstein thought she should consider, or scripts for which Weinstein simply sought her opinion. (Id.) Ormond and Weinstein “regularly discuss[ed] these scripts by phone” and she “returned these scripts to Weinstein with detailed notes.” (Id.) In or about 1995, Ormond replaced her UK-based talent agent with Bryan Lourd and Kevin Huvane of Creative Arts Agency, LLC (“CAA”). She was persuaded by Lourd and Huvane “that CAA would afford her opportunities that her then-current representation could not match.” (Id. ¶ 34.) Ormond alleges that she rose in prominence in the film industry that same year, which led her to “start[] a production company in which she could pursue her interest in making films as well as acting.” (Id. ¶ 39.) In August 1995, Lourd and Huvane “negotiated and secured” for Ormond a two-year film production agreement with some unspecified Miramax entity. (Id. ¶ 40.) The agreement purportedly “included an exclusive ‘first-look’ option” which granted some unspecified Miramax entity “the first opportunity to make any film that Ormond sought to produce.” (Id.) For each film produced by some unspecified Miramax entity, Ormond “would earn a fee for any film that she acted in and, as a producer, would also receive a portion of the film’s profits.” (Id.) CAA would also earn a percentage of Ormond’s income. (Id.) After entering into the agreement, Ormond alleges she moved from England to New York City. (Id. ¶ 41.) Ormond alleges she began working from some unspecified Miramax entity’s New York City offices, and lived in an apartment allegedly paid for by an unspecified Miramax entity. (Id. ¶ 42.) Strikingly absent from her complaint, however, is who actually paid for the apartment, whether paying for the apartment was contractually required, whether any Miramax entity directly paid or instead 4 9 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 subsidized the apartment through Ormond’s salary, whether Ormond received any reimbursement for the apartment, or any facts suggesting that a Miramax entity had any dominion or control over the apartment. To the contrary, Ormond consistently refers to the apartment as “Ormond’s apartment” and “her apartment.” (See id. ¶¶ 4, 50.) In late 1995, CAA presented Ormond the opportunity to work with experienced producer Lloyd Phillips on West with the Night, a film partly set in Africa. (Id. ¶ 44.) Ormond and her production company submitted the project to an unspecified Miramax entity as part of her first- look deal. (Id.) Weinstein expressed interest in the project, made a financial commitment to Phillips to pursue it, and some unspecified Miramax entity “committed to paying for a trip to Africa for writer’s research, character development, and location scouting.” (Id. ¶ 45.) Ormond alleges that “for over a month, Weinstein delayed paying for the trip.” (Id.) In December 1995, CAA arranged a “business dinner” between Ormond and Weinstein to ensure some unspecified Miramax entity paid for the Africa trip. (Id. ¶ 46.) The meeting took place somewhere in New York City. (Id.) At the dinner, “Weinstein was only interested in socializing and drinking with Ormond.” (Id. ¶ 47.) Weinstein and Ormond later moved to “a bar,” and Weinstein dismissed any talk about the Africa trip at the dinner and at the bar. (Id.) Ormond alleges that Weinstein told her that he would return to her apartment with her, where they would discuss the Africa trip. (Id. ¶ 49.) Weinstein insisted that he wanted to see the apartment “he was paying for.” (Id.) Ormond allowed Weinstein to return to her apartment with her. (Id.) “[A]t Ormond’s apartment,” “Weinstein quickly agreed that [some Miramax entity] would pay for the Africa trip and then went to Ormond’s bathroom.” (Id. ¶ 50.) Ormond then alleges that Weinstein emerged from her bathroom in just his underwear, and thereafter, Weinstein sexually assaulted her. (Id. ¶ 51.) 5 10 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Ormond alleges she reported Weinstein’s assault to Lourd and Huvane. (Id. ¶ 56.) Neither “express[ed] any empathy” and both encouraged her not to report the assault. (Id. ¶ 57.) Lourd and Huvane “cautioned Ormond that she should not speak to people about what Weinstein had done because he would sue her for libel.” (Id.) Lourd and Huvane “effectively silenced Ormond.” (Id. ¶ 58.) Ormond followed the advice, and “did not pursue any further action regarding Weinstein’s assault of her.” (Id. ¶ 59.) Ormond noticeably fails to allege having reported Weinstein’s purported assault to anyone at any Miramax or Disney entity. (See id.) She also fails to allege that Lourd, Huvane, or CAA reported the assault to any Miramax or Disney entity. (See id.) Ormond nevertheless alleges that, after confronting Weinstein about the assault, Weinstein and some unspecified Miramax entity retaliated against her by ceasing development of West with the Night and ultimately terminating Ormond’s first-look agreement. (Id. ¶¶ 59–61.) Although Ormond concedes having never reported the assault to any Miramax entity, she alleges that Miramax Film NY, LLC (which did not exist until 2010) should have known of Weinstein’s propensities because of Weinstein’s alleged prior assaults against other Miramax and CAA personnel and confidential settlement agreements with Weinstein’s victims. (Id. ¶¶ 5, 67, 73– 74.) Ormond asserts a single cause of action for negligent supervision against Miramax Film NY, LLC arising out of the alleged assault by Weinstein. (Id. ¶¶ 85–94.) ARGUMENT I. ORMOND FAILED TO PLEAD A LEGALLY COGNIZABLE NEGLIGENT SUPERVISION CLAIM AGAINST MIRAMAX FILM NY, LLC. A complaint must be dismissed when “the pleading fails to state a cause of action.” CPLR 3211(a)(7). To survive a motion to dismiss, a complaint “cannot be vague and conclusory, but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found.” V. Groppa Pools, Inc. v. Massello, 964 N.Y.S.2d 6 11 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 563, 564 (App. Div. 2nd Dep’t 2013) (internal citations omitted). Dismissal is required “if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 (2017). “Unsupported factual allegations, [or] conclusory legal argument . . . do not suffice.” Dweck Law Firm, LLP v. Mann, 727 N.Y.S.2d 58, 59 (App. Div. 1st Dep’t 2001). Generally, a party “has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control”; the doctrine of negligent supervision serves as a narrow exception to this general rule.4 D’Amico v. Christie, 71 N.Y.2d 76, 88 (1987) (citing Pulka v. Edelman, 40 N.Y.2d 781, 783 (1976)). To state a claim for negligent supervision under New York law, in addition to the elements required for a claim of negligence,5 a plaintiff must plead (1) the existence of an employer-employee relationship, (2) that “the employer knew or should have known that it had the ability to control the employee and of the necessity and opportunity for exercising such control,” (3) that the employer knew or should have known of “the employee’s propensity for the sort of behavior which caused the injured party’s harm,” Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157 (2023), and (4) that the “tort[] [was] committed by employees 4 The doctrine of vicarious liability is also a limited exception, but Ormond does not allege that Weinstein’s assault occurred within the scope of his employment (a requirement for vicarious liability). Samoya W. v. 3940 Carpenter Ave., LLC, 131 N.Y.S.3d 550, 551 (App. Div. 1st Dep’t 2020). In any event, New York courts uniformly hold that sexual assault is necessarily outside the scope of employment, Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999), and Ormond may not assert both a negligent supervision and a vicarious liability claim arising out of the same injury. Moncho v. Miller, 160 N.Y.S.3d 216, 220 (App. Div. 1st Dep’t 2021). 5 To state a negligence claim, a plaintiff must plead (1) a duty owed by defendant to plaintiff, (2) a breach of that duty, and (3) “injury proximately resulting therefrom.” Solomon v. City of N.Y., 66 N.Y.2d 1026, 1027 (1985). 7 12 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 on the employer’s premises or with the employer’s chattels.” D’Amico, 71 N.Y.2d at 88; see also Moore Charitable Found., 40 N.Y.3d at 157; Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004). Ormond here asserts a negligent supervision claim against Miramax Film NY, LLC, but fails to allege facts sufficient to satisfy this narrow exception. The Court should dismiss Ormond’s claim against Miramax Film NY, LLC. A. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Was Weinstein’s Employer. As a preliminary matter, Ormond’s negligent supervision claim against Miramax Film NY, LLC fails because she does not allege that Miramax Film NY, LLC ever employed Weinstein. Instead, Ormond unequivocally alleges that “Miramax Film Corp.”—and not Miramax Film NY, LLC— “entered into two employment agreements [with Weinstein] effective for the periods 1993 to 1995 and 1995 to 1999.” (Compl. ¶ 12.) In fact, Ormond admits that Miramax Film NY, LLC did not even exist until 2010, long after any of the alleged events took place. (Id. ¶ 10.) As a matter of law, Ormond cannot establish the requisite employer-employee relationship between Weinstein and an entity that did not exist at the time of her alleged injuries. See Ward v. Cross Cty. Multiplex Cinemas, Inc., 878 N.Y.S.2d 334, 335 (App. Div. 1st Dep’t 2009) (dismissing claim where alleged employer “had no legally cognizable existence at the time of plaintiff’s accident”); see also Wilkow v. Araque, 2019 WL 1115724, at *2–3 (N.Y. Sup. Ct. Mar. 11, 2019) (same). Ormond’s fatal admission requires dismissal of her claim. B. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew It Had The Ability, Necessity, And Opportunity To Control Weinstein. Having failed to allege an employment agreement with Miramax Film NY, LLC, Ormond also fails to allege that Miramax Film NY, LLC “knew or should have known that it had the ability to control the employee and of the necessity and opportunity for exercising such control.” 8 13 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Moore Charitable Found., 40 N.Y.3d at 157. The New York Court of Appeals in Moore just this year further articulated this standard with respect to a negligent supervision claim. Id. While the Court did not substantively address this language and no New York court has yet interpreted it, this element is fairly similar to the question of whether an employment relationship exists in the context of whether an individual is an employee or independent contractor. Under this framework, whether an employment relationship exists critically depends on “the degree of control exercised by the purported employer.” Castro–Quesada v. Tuapanta, 49 N.Y.S.3d 757, 759 (App. Div. 2017) (citation omitted). “[M]inimal or incidental control” is insufficient to establish an employer-employee relationship. Weinfeld v. HR Photography, Inc., 52 N.Y.S.3d 458, 460–61 (App. Div. 2nd Dep’t 2017). Without sufficient control, one cannot be held liable for another’s independent actions. Id. Even should Ormond’s barebone (and factually incorrect) allegation that Miramax Film NY, LLC “assumed all liabilities of Miramax Film Corp.”6 withstand scrutiny, Ormond fails to sufficiently allege that Miramax Film NY, LLC exercised substantial control over Weinstein. At the motion to dismiss stage, “absent a factual underpinning,” “vague and conclusory” allegations of employment are insufficient. See Phillips-Johnson v. Lucky 8 TV LLC, 2021 WL 5154186, at *5 (N.Y. Sup. Ct. Nov. 4, 2021). It is not enough for Ormond to allege that some unspecified Miramax entity employed Weinstein. Rather, Ormond must sufficiently allege that Miramax Film NY, LLC exercised “substantial control” over Weinstein. Castro–Quesada, 49 N.Y.S.3d at 759. Ormond does not. 6 Ormond suggests without factual basis that because she believes that Miramax Film NY, LLC allegedly assumed all liabilities of Miramax Film Corp., Miramax Film NY, LLC is the proper defendant here. While this motion does not turn on whether Miramax Film NY, LLC actually “assumed all liabilities of Miramax Film Corp,” (Compl. ¶ 16), Miramax Film NY, LLC disputes this allegation. 9 14 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Ormond defines “Miramax” collectively as Miramax Film NY, LLC, Miramax Film Corp., and Miramax Holding Corp. (Compl. ¶ 16.) Grouping these entities together is insufficient to establish that Miramax Film NY, LLC (which did not exist until 2010) exercised any control over Weinstein’s “results produced” and “means used” as part of his employment duties. Castro-Quesada, 49 N.Y.S.3d at 759. This is even more so where Ormond lumps all allegations against the three Miramax entities with alleged co-employer Disney, but fails to distinguish which facts are attributable to each of these entities. (See e.g., Compl. at 1, ¶¶ 2-3, 5- 6, 8, 10.) Ormond’s grouping of all entities remotely associated with Weinstein, including her “fail[ure] to distinguish between the[m],” renders attributing which entity in fact exercised control (if any) over Weinstein plainly impossible. Principia Partners LLC v. Swap Fin. Grp., 144 N.Y.S.3d 338, 339 (App. Div. 1st Dep’t 2021). Ormond’s own allegations dilute any control that Miramax Film NY, LLC allegedly might have had over Weinstein by suggesting that Disney and all the Miramax entities in fact exercised some degree of control. Such minimal or incidental control is legally insufficient. Weinfeld, 52 N.Y.S.3d at 460–61. Tellingly, the only difference Ormond does allege is that “Weinstein reported directly to Michael Eisner (‘Eisner’), Disney’s Chief Executive Officer,” who in turn “delegated oversight of Harvey Weinstein to a series of Disney executives who did not adequately supervise him.” (Compl. ¶ 24) (emphases added). Similarly, Ormond unequivocally alleges that “Disney exercised oversight and control over Miramax and Harvey Weinstein,” including “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) (emphasis added). Certainly, these facts weigh against any finding of control by Miramax Film NY, LLC (which did not exist at that 10 15 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 time). See Griffin v. Sirva, Inc., 29 N.Y.3d 174, 186 (2017). At bottom, Ormond cannot plausibly claim that Miramax Film NY, LLC negligently supervised Weinstein when she fails to even allege that Miramax Film NY, LLC supervised Weinstein in the first place. Without having sufficiently alleged that Miramax Film NY, LLC had any meaningful control over Weinstein, it is impossible for Ormond to have alleged that Miramax Film NY, LLC “knew or should have known” of a control it never had and could never have had in the first place. As such, Ormond’s claim must be dismissed on this basis alone. C. Ormond Failed To Sufficiently Allege Miramax Film NY, LLC Knew Or Should Have Known Of Weinstein’s Propensity To Commit Assault. Ormond additionally fails to allege any knowledge by Miramax Film NY, LLC of Weinstein’s purported propensity to commit sexual assault prior to her alleged assault—a necessary element of a negligent supervision claim. Sheila C. v. Povich, 781 N.Y.S.2d 342, 350 (App. Div. 1st Dep’t 2004), overruled on other grounds, Brown v. N.Y. Design Ctr., Inc., 185 N.Y.S.3d 97 (App. Div. 1st Dep’t 2023). “Negligence can only be determined ‘by what was known before and at the time of the accident,’ and cannot be inferred from subsequent acts.” Pisula v. Roman Catholic Archdiocese of N.Y., 159 N.Y.S.3d 458, 470 (App. Div. 2nd Dep’t 2021). Under this standard, Ormond’s allegations are insufficient. Although she specifies the date of her alleged assault, she notably fails to identify any other dates in her complaint related to Miramax’s purported knowledge of Weinstein’s alleged prior conduct. Ormond thus cannot establish that any Miramax entity had knowledge of such conduct prior to the date of her alleged assault. Ormond alleges that she was assaulted by Weinstein in December 1995. Thus, she was required to plead facts demonstrating that Miramax was on notice of Weinstein’s alleged propensity to commit sexual assault prior to this date. She has not done so. For example, 11 16 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Ormond alleges that “Weinstein’s harassment of women ‘wasn’t a secret to the inner circle,’” but fails to allege whether this knowledge arose before or after her alleged assault. (Compl. ¶ 71.) The same is true as to certain reports of Weinstein’s misconduct. (See, e.g., id. ¶ 76 (failing to allege when Amy Israel’s harassment by Weinstein was reported); id. ¶ 77 (failing to allege when “Reiter discussed Harvey Weinstein’s pattern of sexual harassment and assaults of women”); id. ¶ 78 (failing to allege when Nancy Ashbrooke “had direct knowledge of complaints regarding Weinstein’s sexual harassment of women.”) Nor does Ormond allege that any of these incidents were reported to Miramax Film NY, LLC. (Id. ¶¶ 75–78.) See KM v. Fencers Club, Inc., 83 N.Y.S.3d 197, 198–99 (App. Div. 2nd Dep’t 2018) (dismissing negligent supervision claim where prior “incidents were never reported to [employer]”). Nor could she, because Miramax Film NY, LLC did not exist until 2010. (Compl. ¶ 10.) The same holds true as to Ormond’s allegations surrounding confidential settlement agreements entered into with Weinstein’s victims. Although she alleges that some settlement agreements occurred with Weinstein victims, notably, Ormond never alleges that these settlement agreements were with Miramax Film NY, LLC, nor does she allege the dates of such settlements. (Id. ¶¶ 72–73.) Ormond’s other allegations are equally unavailing. She alleges that in 1990, John Schmidt, “then Miramax’s Chief Financial Officer” said that Weinstein “confessed to him that he had done ‘something terrible,’” but Ormond fails to allege what that was. (Compl. ¶ 73.) Without more, this fails to establish propensity of knowledge because no plausible inference can be made as to whether this conduct was “the sort of conduct” at issue in this case. See Sheila C., 781 N.Y.S.2d at 350. Other allegations of Weinstein’s misconduct and their subsequent reporting to “supervisors at Miramax” otherwise have no source, and are not pled on information 12 17 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 and belief. (Id. ¶¶ 75, 77–78.) Without specific facts demonstrating that Miramax Film NY, LLC had knowledge of Weinstein’s misconduct prior to Ormond’s alleged assault in December 1995 (which it could not have known since it did not exist until 2010), negligence cannot be imputed to the company. Pisula, 159 N.Y.S.3d at 471 (“Negligence can only be determined ‘by what was known before and at the time of the accident,’ and cannot be inferred from subsequent acts.”). Moreover, Ormond’s reliance on Robert Weinstein’s purported knowledge also fails. Under black-letter agency law, Robert Weinstein’s knowledge may be imputed to Miramax only if Robert Weinstein acquired that knowledge “within the scope of his [] agency,” i.e., within the scope of his duties as an officer of Miramax. Christopher S. v. Douglaston Club, 713 N.Y.S.2d 542, 543 (App. Div. 2nd Dep’t 2000). Absent any duties carried out by Robert Weinstein as an agent of Miramax in learning of his brother’s conduct, Robert Weinstein’s employment at Miramax at the time was thus “mere happenstance.”7 Christopher S., 713 N.Y.S.2d at 543. Ormond alleges Robert Weinstein knew of his brother’s propensity to commit assault because he “personally participated in the confidential settlement” of Weinstein’s assault of a Miramax assistant. (Compl. ¶ 73.) But Ormond critically fails to allege whether Miramax Film NY, LLC was a party to the settlement agreement, whether this settlement agreement occurred before Ormond’s injuries, or whether Robert Weinstein “participated” on behalf of Weinstein in his capacity as an officer of Miramax Film NY, LLC. Without more, Robert Weinstein’s “personal[] participat[ion],” (id.), “did not concern matters related to [Weinstein’s] respective [employment] duties,” and thus Robert Weinstein’s purported knowledge of his brother’s alleged 7 Indeed, Ormond fails to allege that Robert Weinstein was an employee of Miramax Film NY, LLC. ((Compl. ¶ 70) (only alleging Robert Weinstein was a “Co-chairman of [some unspecified] Miramax [entity])”.) 13 18 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 propensity to sexually assault women may not be imputed to Miramax Film NY, LLC. Christopher S., 713 N.Y.S.2d at 543. Robert Weinstein was also not just Weinstein’s colleague, but his brother and friend. See id. (knowledge not acquired within scope when chairman acquired knowledge “as the father of a boy involved in the prior incident”). Even had Robert Weinstein somehow acquired knowledge of his brother’s purported propensity for sexual assault within the scope of his agency, “when the agent has abandoned his [] principal’s interests and is acting entirely for his [] own or another’s purposes,” the agent’s knowledge may still not be imputed to the principal. Id.; see also Plotkin v. Republic-Franklin Ins. Co., 113 N.Y.S.3d 133, 137 (App. Div. 2nd Dep’t 2019). That is precisely what is alleged here. The allegations here are no different than Christopher S. There, two chairmen and board members of the defendant-employer knew of prior incidents of the employee-tortfeasor’s improper sexual behavior. 713 N.Y.S.2d at 543. The court found that the chairmen’s knowledge—even had they acquired it “while acting within the scope of their agencies”—could not be imputed to the employer because they “intentionally withheld” the information from the employer to protect their families. Id. Robert Weinstein, here too, “repeatedly helped Weinstein conceal his misconduct and claim new victims.” (Compl. ¶ 70.) By protecting his brother, Robert Weinstein “completely abandoned any obligation owed to [Miramax] in his capacity as a[n] [officer and chairman].” Christopher S., 713 N.Y.S.2d at 543.8 8 The same is true as to Ormond’s allegations surrounding Irwin Reiter’s “review[ing] and handl[ing] payment to Harvey Weinstein’s victims.” (Compl. ¶ 77.) This allegation also fails to establish propensity of knowledge because Ormond fails to allege whether these alleged payments were made before or after her alleged injuries. (See id.) 14 19 of 25 FILED: NEW YORK COUNTY CLERK 12/19/2023 05:32 PM INDEX NO. 952107/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/19/2023 Ormond thus has failed to establish that Miramax Film NY, LLC knew or should have known of Weinstein’s propensity to sexually assault women, at any time, much less prior to her alleged injuries. Her claim must thus be dismissed for this additional and independent reason. D. Ormond Failed To Allege The Alleged Assault Took Place On Miramax Film