2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Lisa Lotte-Lublin, Lili Bernard, Janice Case No. 2:23-cv-00932-GMN-DJA 6 Baker-Kinney, Rebecca Cooper, Linda Kirkpatrick, Janice Dickinson, Angela 7 Leslie, Pam Joy Abeyta, Heidi Thomas, Report and Recommendation and Jane Fazzari, 8 Plaintiffs, 9 v. 10 William Cosby, Jr., 11 Defendant. 12 13 Plaintiffs are a group of ten women who allege that, between the 1970s and 1990s, 14 Defendant—William (“Bill”) Cosby—used his fame, power, and prestige to isolate them, drug or 15 attempt to drug them, and then sexually assault them. Plaintiffs’ claims each arise out of events 16 that took place in Nevada and Plaintiffs each allege that Defendant drugged or attempted to drug 17 them before engaging in sex acts, including penetration, with them against their will. The 18 Plaintiffs bring their claims by virtue of Nevada’s passage of Senate Bill 129,1 which abolished 19 the statute of limitations for civil actions involving sexual assault against victims over 18 years 20 old. Plaintiffs sue Defendant for damages, alleging six causes of action: sexual assault; battery; 21 22 1 Senate Bill 129 provides: 23 1. An action to recover damages for an injury to a person arising from 24 the sexual assault of the plaintiff which occurred when the plaintiff was 18 years of age or older may be commenced against the alleged 25 perpetrator or the person convicted of the sexual assault at any time after the sexual assault occurred… 26 2. As used in this section, “sexual assault” has the meaning ascribed to 27 it in NRS 200.366. 1 assault; intentional infliction of emotional distress; negligent infliction of emotional distress; and 2 false imprisonment. Defendant moves to dismiss each claim. 3 Defendant argues that sexual assault is not a separate civil claim. Defendant also singles 4 out Angela Leslie’s allegations, arguing that they cannot constitute sexual assault for the purposes 5 of SB 129 because Leslie alleged that Defendant forced her to use her hand to masturbate him, 6 which he argues does not constitute “penetration” for the purposes of the statute. Defendant also 7 argues that the Plaintiffs’ claims should be severed and tried individually. 8 The remainder, and bulk, of Defendant’s arguments are that SB 129 is unconstitutional 9 under both the United States Constitution and the Nevada Constitution. He argues that the statute 10 violates the special legislation clause of the Nevada Constitution, that it violates due process 11 under both the United States and Nevada Constitutions, and that it violates the ex post facto 12 clauses of both the United States and Nevada Constitutions. The Court finds only one of 13 Defendant’s arguments—that sexual assault is not a separate tort claim—to have merit. It thus 14 recommends denying Defendant’s motion to dismiss on all but this ground. 15 Legal Standard 16 “A dismissal under Federal Rule of Civil Procedure 12(b)(6) is essentially a ruling on a 17 question of law.” North Star Int’l v. Ariz. Corp. Comm., 720 F.2d 578, 580 (9th Cir. 1983). At 18 minimum, a plaintiff should state “enough facts to state a claim to relief that is plausible on its 19 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain 20 detailed factual allegations, but it must contain more than “a formulaic recitation of the elements 21 of a cause of action.” Id. at 555. The Rule 8(a) notice pleading standard requires the plaintiff to 22 “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” Id. 23 (internal quotation marks and citation omitted). The “plausibility standard” does not impose a 24 “probability requirement”; rather, it requires a complaint to contain “more than a sheer possibility 25 that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Where a 26 complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the 27 line between possibility and plausibility of entitlement to relief.” Id. (internal quotations 1 In considering a motion to dismiss for failure to state a claim upon which relief may be 2 granted, all material allegations in the complaint are accepted as true and are to be construed in a 3 light most favorable to the non-moving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 4 337-38 (9th Cir. 1996). “Threadbare recitals of the elements of a cause of action, supported by 5 mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “While legal conclusions 6 can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 7 679. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. 8 A court should assume the veracity of well-pleaded factual allegations and “then determine 9 whether they could plausibly give rise to an entitlement of relief.” Id. “[W]here the well-pleaded 10 facts do not permit the court to infer more than the mere possibility of misconduct, the complaint 11 has alleged—but it has not shown—that the pleader is entitled to relief.” Id. (quotation marks, 12 citation, and brackets omitted). Thus, a complaint may be dismissed as a matter of law for 13 “(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” 14 Smilecare Dental Group v. Delta Dental Plan, 88 F.3d 780, 783 (9th Cir. 1996) (quoting 15 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984)). 16 The United States Supreme Court’s decision in Ashcroft v. Iqbal provides a two-step 17 framework for considering the sufficiency of factual allegations subject to a motion to dismiss 18 under FRCP 12(b)(6). First, the Court may choose to begin by identifying which of the 19 complaint’s factual allegations are no more than “legal conclusions” or “mere conclusory 20 statements,” because “the tenet that a court must accept as true all of the allegations contained in 21 a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 680. The inquiry then 22 becomes whether the remaining nonconclusory allegations make it plausible that an actionable 23 claim exists. Id. at 681. 24 Discussion 25 I. Whether SB 129 creates a new common law tort for sexual assault. 26 Defendant argues that the Court should dismiss the “sexual assault” cause of action that 27 each Plaintiff brings because sexual assault is a crime, not a common law or statutory tort, and SB 1 constituting their consent to the Court granting Defendant’s requested relief. See LR 7-2(d). And 2 the Court has not found any authority establishing sexual assault as a private cause of action 3 under Nevada law. The Court recommends dismissing Plaintiffs’ claim for sexual assault. 4 II. Whether SB 129 revives Leslie’s claim. 5 Defendant argues that Leslie does not allege a sexual assault and thus, SB 129 does not 6 revive her claims. (ECF No. 39 at 8). Defendant asserts that, because Leslie claims that 7 Defendant forced her to masturbate him with her hand, she does not allege a claim for sexual 8 penetration under NRS 200.364(9), which is necessary to state a claim for sexual assault under 9 NRS 200.366. (Id. at 8-9). Plaintiffs respond that Defendant reads NRS 200.364(9) too narrowly 10 and point out that the statute defines “sexual penetration” as, among other things, “any intrusion, 11 however slight, of any part of a person’s body.” (ECF No. 42 at 29). Because Defendant forced 12 his penis—constituting intrusion—into Leslie’s hand—a part of her body—Plaintiffs argue that 13 Leslie has satisfied the definition of sexual assault such that SB 129 revives her claim. (Id.). 14 Defendant replies that it is Plaintiffs who read the statute improperly, pointing out that the statute 15 defines “sexual penetration” as “cunnilingus, fellatio, or any intrusion, however slight, of any part 16 of a person’s body or any object manipulated or inserted by a person into the genital or anal 17 openings of the body of another.” (ECF No. 46 at 2). Because Leslie does not allege any genital 18 or anal intrusion, Defendant argues that she does not allege sexual assault. (Id. at 2-3). 19 Under NRS 200.366(1)(a), a person is guilty of sexual assault if the person “[s]ubjects 20 another person to sexual penetration, or forces another person to make a sexual penetration on 21 themselves or another…against the will of the victim or under conditions in which the perpetrator 22 knows or should know that the victim is mentally or physically incapable of resisting or 23 understanding the nature of the perpetrator’s conduct.” NRS 200.364(9) defines “sexual 24 penetration” as “cunnilingus, fellatio, or any intrusion, however slight, of any part of a person’s 25 body or any object manipulated or inserted by a person into the genital or anal openings of the 26 body of another, including sexual intercourse in its ordinary meaning.” 27 “Statutory construction must begin with the language employed by [the legislative body] 1 purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). Under the rule of the last 2 antecedent, “[q]ualifying words or phrases modify the words or phrases immediately preceding 3 them and not words or phrases more remote, unless the extension is necessary from the context or 4 the spirit of the entire writing.” Lockhart v. United States, 577 U.S. 347, 351 (2016). In 5 Lockhart, the United States Supreme Court applied the rule of the last antecedent to interpret 18 6 U.S.C. § 2252(b)(2), which increases criminal sentences if the defendant has “a prior 7 conviction…under the laws of any State relating to aggravated sexual abuse, sexual abuse, or 8 abusive sexual conduct involving a minor or ward.” Lockhart, 577 U.S. at 350-52. Using that 9 rule, the Supreme Court concluded that the limiting phrase “involving a minor or ward” modified 10 only the immediately preceding crime in the list of offenses, “abusive sexual conduct,” and did 11 not modify the other listed crimes, “aggravated sexual abuse,” or “abusive sexual conduct.” Id. at 12 349. 13 Here, the Court finds that Leslie’s claims are revived by SB 129 because she has alleged a 14 sexual assault under NRS 200.364 and NRS 200.366. Starting with the language employed by 15 the Nevada Legislature, the ordinary meaning of sexual penetration as including penetration of 16 “any part of a person’s body” would accurately express the legislative purpose of NRS 200.364 17 and NRS 200.366. The Legislature summarized that the addition of these provisions “redefines 18 the crime of forcible rape as sexual assault…[and] focuses upon sexual assault as a crime of 19 violence rather than one of passion.” SUMMARY OF LEGISLATION, S.B. 142, 1977 Leg., 59th 20 Sess., at 2 (Nev. 1977). In doing so, the Legislature heard statements that old laws governing 21 rape failed to acknowledge that men were also subject to sexual assault. Senate Judiciary 22 Hearing on SB 412 – April 5, 1977, 1977 Leg., 59th Sess., at 712 (testimony by Florence 23 McClure, Dir. of Community Action Against Rape). Reading the statute to incorporate 24 penetration of a person’s hand is in line with the statute’s purpose of broadening the definition of 25 sexual assault. 26 Additionally, under the rule of the last antecedent, the qualifying words “manipulated or 27 inserted by a person into the genital or anal openings of the body of another” modify the phrase 1 however slight, of any part of a person’s body.” This squares with the Supreme Court’s 2 interpretation in Lockhart that the qualifying term “conduct involving a minor or ward” modified 3 only the phrase preceding it— “abusive sexual conduct”—and not the prior listed crimes. Here, 4 “manipulated or inserted by a person into the genital or anal openings of the body of another,” 5 modifies only “object” and not the prior listed act of “any intrusion.” The Court thus 6 recommends denying Defendant’s motion to dismiss Leslie’s claims because SB 129 revives 7 them. 8 III. Whether SB 129 violates the special legislation clause of the Nevada Constitution. 9 10 Defendant argues that SB 129 violates the special legislation clause of the Nevada 11 Constitution because it singles out and punishes individuals who have committed sexual assault, 12 “as opposed to individuals who have committed any other heinous crime.” (ECF No. 39 at 10). 13 Defendant argues that there is no basis for treating sexual assault victims differently than victims 14 of any other type of interpersonal violence and no basis for punishing perpetrators of sexual 15 assault differently than perpetrators of any other heinous crime. (Id. at 10-12). Plaintiffs respond 16 that SB 129 is not a “special law” because it applies to the entire class of sexual assault survivors. 17 (ECF No. 42 at 23). Plaintiffs argue that Defendant misconstrues the relevant class as 18 perpetrators of all “heinous” crimes such that the law treats perpetrators of sexual assault—a 19 subclass of heinous crimes—differently. (Id.). Plaintiffs argue that Defendant’s attempt to define 20 this fictitious class as one to which the law does not apply equally to all class members is faulty 21 because it would mean that even the criminal statute for sexual assault is unconstitutional as it 22 treats perpetrators of sexual assault differently than perpetrators of other, ostensibly heinous 23 crimes. (Id.). 24 Defendant replies that he does not argue that the relevant class is “all heinous crimes.” 25 (ECF No. 46 at 3). Defendant points out that the relevant class is victims of sex offenses and 26 perpetrators of sex offenses and argues that SB 129 does not apply to all victims of sex offenses 27 or all perpetrators of sex offenses, as Plaintiffs suggest. (Id.). Instead, it applies to a small subset 1 the legislative history of SB 129 asserts that it was designed to address. (Id. at 3-4). Because SB 2 129 is not made general to all victims and perpetrators of “interpersonal violence” or even all 3 victims and perpetrators of sexual crimes, Defendant claims that SB 129 was passed in violation 4 of the Nevada Constitution. (Id.). 5 The Nevada Constitution prohibits the Legislature from passing “local” and “special 6 laws.” Nev. Const. art. 4, § 20. The Nevada Supreme Court has explained the prohibition against 7 local and special laws under Article 4, Sections 20 and 21 as follows 8 [I]f a statute be either a special or local law, or both, and comes within any one or more of the cases enumerated in section 20,2 such 9 statute is unconstitutional; if the statute be special or local, or both, but does not come within any of the cases enumerated in section 20, 10 then its constitutionality depends upon whether a general law can be made applicable. 11 12 Conservation District v. Beemer, 45 P.2d 779, 782 (1935). 13 The Nevada constitutional framers’ purpose in adopting mandates proscribing local and 14 special legislation was to “remedy an evil into which it was supposed the territorial legislature 15 had fallen in the practice of passing local and special laws for the benefit of individuals instead of 16 enacting laws of a general nature for the benefit of the public welfare.” Clean Water Coalition v. 17 The M Resort, LLC, 255 P.3d 247, 254 (Nev. 2011) (quoting Evans v. Job, 8 Nev. 322, 333 18 (1873)). 19 The Nevada Supreme Court has noted that “a law which applies only to an individual or to 20 a number of individuals selected out of the class to which they belong, is a special and not a 21 general law.” State v. California Min. Co., 15 Nev. 234, 249 (1880). In other words, a law is 22 considered “special legislation if it confers particular privileges or imposes peculiar disabilities, 23 or burdensome conditions in the exercise of a common right; upon a class of persons arbitrarily 24 selected, from the general body of those who stand in precisely the same relation to the subject of 25 the law.” City of Fernley v. State Dep’t of Tax, 366 P.3d 699, 708-709 (Nev. 2016) (quoting 26
27 2 Section 20 enumerates certain cases—which are not applicable here—in which the legislature 1 Clean Water Coalition, 255 P.3d at 254) (emphasis in City of Fernley). However, even then, 2 special laws are not necessarily unconstitutional. See Clean Water Coalition, 255 P.3d at 312. A 3 special law may be upheld if a general law could not have been made applicable. Id. 4 Here, Defendant has not made the threshold showing that SB 129 is a special law because 5 he has not shown that it applies to a subclass of individuals who otherwise stand in the same 6 relation to the subject of the law. The Court is not convinced that perpetrators of “other heinous 7 crimes,” “interpersonal violence,” or “sexual crimes”—as Defendant vaguely asserts—stand in 8 precisely the same relation to the subject of SB 129. While Defendant argues that these other ill- 9 defined crimes may result in similar trauma as sexual assault, the same could be said of many 10 crimes. But, as Plaintiffs point out, the Nevada Legislature designed SB 129 to address the 11 “uniquely intimate” crime of sexual assault, which often leaves its victims without the 12 wherewithal to report the crime for many years. While victims of other crimes may also feel 13 reluctant to report other “heinous,” “interpersonal,” and “sexual” crimes, Defendant has not 14 shown how these other crimes are of the “uniquely intimate” nature such that their victims stand 15 on precisely the same ground as sexual assault victims. He has also not shown that the 16 perpetrators of these crimes stand on the same ground as perpetrators of other crimes. Ultimately, 17 Defendant has not shown that SB 129 treats individuals who stand on precisely the same ground 18 differently for arbitrary reasons. Defendant has not met his burden of showing that SB 129 is a 19 special law. 20 But even if Defendant did show that SB 129 is a special law, he has not shown that it is 21 unconstitutional. Defendant has not shown that the Nevada Legislature could have come up with 22 a general law that would impact the broader class of persons Defendant so vaguely defines. It is 23 hard to imagine the Nevada Legislature expanding SB 129 to apply to such an ill-defined class as 24 perpetrators and victims of “heinous,” “interpersonal,” or even “sexual” crimes. Indeed, whether 25 a crime fits any of these descriptions could vary depending on who you ask, not necessarily the 26 crimes themselves. And so, the Court does not find that the Nevada Legislature could have come 27 up with a general law and recommends denying Defendant’s motion to dismiss on this ground. IV. Whether SB 129 violates the Due Process Clauses of the United States and 1 Nevada Constitutions. 2 3 Defendant argues that SB 129 deprives him of a property right—the statute of 4 limitations—without due process in violation of the United States and Nevada Constitutions. 5 (ECF No. 39 at 12-13). Defendant cites a Utah Supreme Court decision for the proposition that 6 reviving a time-barred claim violates constitutional due process principals. (Id.) (citing Mitchell 7 v. Roberts, 469 P.3d 901, 908 (Utah 2021)). And although Defendant acknowledges that the 8 United States Supreme Court has concluded that statutes of limitations are “arbitrary enactments” 9 and not “vested rights,” Defendant nonetheless urges the Court to align with the dissent and find 10 that the statute of limitations that SB 129 revived was a vested right of which Defendant was 11 deprived. (Id. at 14-15) (citing Campbell v. Holt, 115 U.S. 629 (1885)). 12 Plaintiffs respond that, as Defendant acknowledges, a statute of limitations cannot create a 13 vested right such that SB 129 has deprived Defendant of a property right without due process. 14 (ECF No. 42 at 10). Plaintiff points to the Supreme Court’s decision in Campbell and the cases 15 that have followed it, explaining that Campbell is binding on this Court and that the non-binding 16 cases Defendant cites, including Mitchell, do not change that fact. (Id. at 12-13). 17 In reply Defendant again acknowledges that the Supreme Court determined that statutes of 18 limitations are not vested rights and states that he will not argue the issue further. (ECF No. 46 at 19 4). However, Defendant points out that Plaintiffs have not addressed Defendant’s argument that 20 SB 129 violates the due process clause of the Nevada Constitution, which is a separate and 21 unresolved matter. (Id.). Defendant argues that Plaintiff has failed to cite a single Nevada case 22 which holds that statutes of limitations are not vested rights under Nevada law. (Id.). On the 23 other hand, Defendant asserts that he has cited to persuasive authority, including Mitchell, that the 24 Nevada Supreme Court would find that SB 129 violates the Nevada Constitution by reviving 25 expired statutes of limitation and depriving Defendant of a vested property right without due 26 process of law. (Id.). 27 The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive 1 The United States Supreme Court has explicitly concluded that statutes of limitation do not create 2 property rights. See Campbell v. Holt, 115 U.S. 620, 629 (1885) (“[w]e are unable to see how a 3 man can be said to have property in the bar of the statute as a defense to his promise to pay.”) 4 (emphasis in original). This holding binds this Court. 5 The Nevada Constitution, relatedly, states that “[a]ll men are by Nature free and equal and 6 have certain inalienable rights among which are those of enjoying and defending life and liberty; 7 Acquiring, Possessing and Protecting property and pursuing and obtaining safety and happiness.” 8 Nev. Const. art. 1, § 1. Nevada’s Due Process Clause mirrors its federal counterpart and federal 9 law is informative as to the scope of Nevada’s procedural due process guarantee. 10 Dekker/Perich/Sabatini Ltd. v. Eighth Judicial District Court, 495 P.3d 519, 524 (Nev. 2021). 11 While the Nevada Supreme Court has not explicitly found that statutes of limitation do not create 12 vested property rights, its decision in Dekker suggests that it would make that finding if 13 confronted with the question. Id. at 524-25. 14 There, the Nevada Supreme Court considered whether a statute of repose3 created a vested 15 property right and found that it did not. Id. The City of North Las Vegas had hired 16 Dekker/Perick/Sabatini (“Dekker”) to build a fire station. Id. at 521. Dekker finished the work in 17 2009. Id. In 2017 the City investigated cracks in the station’s foundation and walls, however, at 18 the time NRS 11.202 imposed a six-year repose period on construction defect actions. Id. But in 19 2019, the Legislature enacted Assembly Bill 421, which extended NRS 11.202’s repose period to 20 ten years. Id. The City filed suit after the six year repose period had passed, but before the 21 amendment took place. Id. Dekker moved to dismiss the action, arguing that the claims were 22 time-barred under NRS 11.202. Id. The district court agreed and dismissed the City’s complaint. 23 Id. Shortly thereafter, the City moved to alter the judgment under Nevada Rule of Civil 24
25 3 A statute of repose is distinguishable from a statute of limitation, but concerns the same issues— freedom from a potential claim—that Defendant raises here. “‘Statutes of repose’ bar causes of 26 action after a certain period of time, regardless of whether damage or an injury has been 27 discovered. In contrast, ‘statutes of limitation’ foreclose suits after a fixed period of time following occurrence or discovery of an injury.” Alsenz v. Twin Lakes Village, Inc., 843 P.2d 1 Procedure 59(e), arguing that the intervening amendment of NRS 11.202 meant that the ten-year 2 statute of repose was now in effect and governed its claims. Id. Dekker argued, in part, that the 3 Court would violate its due process rights if it granted the City’s motion. Id. at 521-22. The 4 district court granted the City’s motion and Dekker moved for a writ of mandamus. Id. at 522. 5 On writ, the Nevada Supreme Court determined that permitting the amendment to 6 retroactively restore the City’s time-barred claim did not violate Dekker’s due process rights 7 because Dekker did not have a vested right to be free from a construction defect claim. Id. at 524. 8 The Nevada Supreme Court noted that Nevada’s Due Process Clause mirrors its federal 9 counterpart in reaching this decision. Id. And it noted that “[a]lthough several jurisdictions 10 appear to recognize substantive rights under statutes of repose, Dekker does not point to any 11 Nevada law characterizing statutes of repose as awarding an entitlement to be free from a state 12 claim.” Id. 13 The Nevada Supreme Court continued its reasoning, finding that, even if Dekker had 14 established a vested right in the statute of repose, the retroactive application of NRS 11.202 was 15 justified by a rational legislative purpose such that it met due process requirements. Id. at 525. 16 The court explained that “the Legislature extended the repose period to reflect the timeframe in 17 which these types of defects most often materialize and thus more fairly allow the pursuit of 18 claims based on such defects.” Id. “Accordingly, the application of NRS 11.202’s extended 19 repose period does not offend due process.” Id. 20 Here, the Court finds that Defendant does not have a vested property right in the statute of 21 limitations impacted by SB 129 under the United States Constitution. As Defendant 22 acknowledges, the Supreme Court has found that statutes of limitations do not create property 23 rights. And that holding binds this Court. 24 Additionally, the Court is not convinced that the Nevada Supreme Court would find that 25 statutes of limitations create property rights protected by the Nevada Constitution. The Nevada 26 Supreme Court has explicitly stated that the state’s due process clause mirrors its federal 27 counterpart and that federal law is informative as to the scope of Nevada’s procedural due process 1 property rights in the context of the due process clause of the United States Constitution is an 2 inclination that the Nevada Supreme Court would likely find the same regarding the state’s 3 Constitution. 4 The Court also finds that the Nevada Supreme Court’s decision in Dekker suggests the 5 same. Although the statute of limitations at issue here is not quite the same as the statute of 6 repose at issue in Dekker, both the statute of limitations and the statute of repose create a time 7 after which a party is protected from a claim. And just as the Legislature extended the statute of 8 repose in Dekker, here, the Legislature has extended the statute of limitations for sexual assault 9 claims. Just as the Nevada Supreme Court found that reopening a claim did not violate Dekker’s 10 due process rights, the Court finds here that SB 129’s reopening of a sexual assault claim would 11 not violate Defendant’s due process rights. This is because, as the Nevada Supreme Court noted 12 in Dekker, a party does not have a vested property right to be free from a claim. 13 But even if it did, even if Defendant had a vested property right under the Nevada 14 Constitution to be free from Plaintiffs’ sexual assault claims, the Court would still find that SB 15 129 was justified by a rational legislative purpose such that it meets due process requirements. 16 The Legislature was motivated to update the statute of repose in Dekker to reflect “the timeframe 17 in which these types of defects most often materialize and thus more fairly allow the pursuit of 18 claims based on such defect.” While a different topic entirely, that motivation is the same which 19 drove the Legislature to enact SB 129. The Legislature was motivated to update the statute of 20 limitations for sexual assault claims to reflect the timeframe in which victims are able to report 21 their experiences and thus more fairly allow the pursuit of their claims based on the assaults they 22 experienced. Because SB 129 was justified by a rational legislative purpose, it does not offend 23 due process, even if Defendant did have a vested property right to the statute of limitations 24 defense. The Court thus recommends denying Defendant’s motion to dismiss on this ground. 25 V. Whether SB 129 violates the ex post facto clauses of the United States and Nevada Constitutions. 26 27 Defendant argues that SB 129 violates the ex post facto clauses in the United States and 1 No. 39 at 15). Defendant argues that, although the United States Supreme Court has held that the 2 ex post facto clause applies only to criminal laws, the Court should reconsider that holding, citing 3 to secondary sources for the proposition that the ex post facto clause should apply to all 4 retroactive laws that raise the same concerns that the ex post facto clause was designed to address. 5 (Id. at 16-19). Defendant also argues that, because SB 129 in effect punishes Defendant, or at 6 least “alters the legal rules of evidence, and receives less, or different testimony than the law 7 required at the time of the commission of the offense, in order to convict the offender,” it violates 8 the ex post facto clause despite its civil nature. (Id. at 19-21). 9 Plaintiff responds that Defendant’s arguments cannot overcome the established United 10 States Supreme Court precedence that only laws imposing criminal punishment can violate the ex 11 post facto clause. (ECF No. 42 at 2-3, 14). Plaintiff points out that Defendant made this same 12 argument in a case before the District of New Jersey, which argument the New Jersey court 13 rejected. (Id. at 15). Regarding Defendant’s argument that SB 129 is intended to punish, Plaintiff 14 points out that the law, when read in its entirety, in intended to compensate survivors of sexual 15 abuse—a civil remedy—rather than punish abusers. (Id. at 16-17). That the law references 16 sexual assault is a byproduct of the intent to compensate survivors of sexual assault and not an 17 indicator that it is meant to be punitive. (Id.). And the mere fact that the Plaintiffs can avail 18 themselves of the common law remedy of punitive damages once their claims are revived does 19 not mean that the law is subject to the ex post facto clause. (Id. at 2). In reply, Defendant rests on 20 his opening motion. (ECF No. 46 at 5). 21 The ex post facto clause of the United States Constitution provides that “[n]o State 22 shall…pass any…ex post facto Law…” U.S. Const. art. I, § 10, cl. 1. The Nevada Constitution 23 similarly prohibits ex post facto laws. State v. Eighth Jud. Dist. Ct., 306 P.3d 369, 382 (Nev. 24 2013). The United States Supreme Court has expressed that the prohibition against ex post facto 25 statutes is limited to laws that are penal in nature. See, e.g., Collins v. Youngblood, 497 U.S. 37, 26 41 (1990) (“it has long been recognized by this Court that the constitutional prohibition on ex post 27 facto laws applies only to penal statutes which disadvantage the offender affected by them.”) 1 (opinion of Paterson, J.); id. at 400 (opinion of Iredell, J.)); U.S. v. Yacoubian, 24 F.3d 1, 9-10 2 (9th Cir. 1994) (“[t]he ex post facto clause of the United States Constitution…only applies to 3 criminal laws.”). The Nevada Supreme Court has expressed the same. State v. Eighth Jud. Dist. 4 Ct., 306 P.3d at 382 (stating that “[f]or purposes of ex post facto analysis, a retrospective law is 5 one that ‘changes the legal consequences of acts completed before its effective date’” and that “to 6 be ex post facto, a law must both operate retrospectively and disadvantage the person affected by 7 it by either changing the definition of criminal conduct or imposing additional punishment for 8 such conduct.”) (emphasis added) (citing Weaver v. Graham, 450 U.S. 24, 28, 31 (1981)). 9 Defendant does not dispute the general application of the ex post facto clauses. Rather, 10 Defendant—citing scholarly articles—asserts that Calder was wrongfully decided in so far as it 11 does not extend the ex post facto prohibition to civil laws. But the Court declines Defendant’s 12 invitation to challenge Calder and its more than two centuries of precedent. Defendant conflates 13 civil and criminal proceedings, and SB 129 does not increase penalties for those convicted of a 14 sexual offense or change evidentiary burdens as applied to those who have not been convicted. 15 With respect to Defendant’s reference to punitive damages, the Court notes that the 16 revival statute itself does not reference punitive damages and that the Plaintiffs here seek punitive 17 damages under the common law. Such damages, in the Court’s view, do not implicate the ex post 18 facto clauses. See Roman Cath. Bishop of Oakland v. Superior Ct., 128 Cal.App. 4th 1155, 1165 19 (2005) (“a statute reviving the limitations period for a common law tort cause of action, thereby 20 allowing the plaintiff to seek punitive damages, does not implicate the ex post facto doctrine…”); 21 Bernard v. Cosby, 648 F.Supp.3d 558, 572-73 (D.N.J. 2023) (rejecting Defendant’s ex post facto 22 argument) (emphasis added). 23 An analysis on the merits does not lead to a different result. To be sure, it is possible for a 24 civil statute to be punitive in effect. See Smith v. Doe, 538 U.S. 84, 92 (2003) (explaining the 25 process for determining whether a statute is punitive). However, so finding requires the “clearest 26 proof” based on factors including whether the civil sanction: (1) involves an affirmative disability 27 or restraint; (2) has historically been regarded as a punishment; (3) requires a finding of scienter; 1 (6) may serve an alternative purpose; and (7) appears excessive in relation to the alternative 2 purpose assigned. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963); see Smith, 538 3 U.S. at 97 (stating that the Supreme Court relies on the Kennedy factors in determining whether a 4 statute is criminal in nature). 5 The Court finds the District of New Jersey’s analysis on the issue of whether civil fines 6 constitute punishment persuasive here. See Bernard, 648 F.Supp.3d at 572-73. There, the New 7 Jersey Court analyzed the Third Circuit’s decision that the retroactive application of an 8 amendment to the False Claims Act (“FCA”) related to treble damages did not violate the ex post 9 facto clause. Id. (citing United States ex rel. Int’l Brotherhood of Elec. Workers Loc. Union No. 10 98 v. Farfield Co., 5 F.4th 315, 336 (3d Cir. 2021)). 11 Of particular relevance, the Third Circuit concluded that the FCA’s treble damages and civil fines did not restrict individuals’ physical 12 liberty as imprisonment would and that monetary penalties have 13 “not historically been viewed as punishment.” Id. at 336. Further, the Circuit Court found that though the FCA promoted deterrence, 14 “all civil penalties have some deterrent effect,” id. at 337 (quoting Hudson [v. United States], 522 U.S. [93,] 102 [(1997)]), and that 15 “the separate existence of a criminal statute suggest[ed] that the civil statute serve[d] a different purpose,” id. 16 17 Bernard, 648 at 573. 18 The New Jersey Court thus found that, applied to the case at hand, 19 potential punitive damages do not restrict Defendant’s liberty, [] monetary damages are not generally viewed as punishment, and [] 20 the revival statute serves separate means as compared to the New Jersey Code of Criminal Justice. Further, while a “monetary penalty 21 likely promotes the traditional ends of punishment, retribution, and deterrence, to some degree, that alone is not enough to characterize 22 the penalty as penal in nature, rather than civil.” See Nat’l 23 Taxpayers Union v. U.S. Soc. Sec. Admin., 302 Fed. Appx. 115, 120- 21 (3d Cir. 2008) (considering an Eighth Amendment challenge to 24 Section 1140 of the Social Security Act). The revival statute is only of minimal deterrent value, if any, as it applies only to a narrow 25 range of previously extinguished claims arising from past conduct. 26 Further, while its revival of civil recourse, including punitive damages, may promote retribution, the Court finds that it does not 27 itself increase penalties beyond those that have already existed. 1 The Court finds this analysis persuasive and applies it here. The Court thus similarly 2 finds that the punitive damages made available under SB 129 do not implicate the ex post facto 3 clauses and, for the sake of completeness, that Defendant has failed to provide “clearest proof” to 4 override legislative intent as to the civil nature of SB 129. The Court thus recommends denying 5 Defendant’s motion to dismiss on this ground. 6 VI. Whether the Court should sever the Plaintiffs’ claims. 7 Defendant argues that the Plaintiffs and their causes of action have been improperly joined 8 in this single lawsuit contrary to Federal Rule of Civil Procedure 20(a) because each Plaintiff has 9 a distinct and separate claim against the Defendant that does not arise from the same transaction, 10 occurrence, or series of occurrences. (ECF No. 39 at 21). Defendant asserts that the only 11 commonality amongst Plaintiffs is that they are represented by the same lawyer. (Id.). 12 Otherwise, their claims are only similar in that they allege generally that Defendant engaged in 13 some type of sexual misconduct against them. (Id.). 14 Plaintiffs respond that their claims are properly brought in a single action because the 15 commonalities of the assaults and Defendant’s modus operandi mean that trying the cases 16 together would promote judicial economy. (ECF No. 42 at 15-26). Plaintiffs point out that, if the 17 present case was filed as ten cases, rather than one, Defendant would have made the same motion 18 to dismiss ten times. (Id. at 28). This would have resulted in the Court having to address ten 19 different motions regarding the same questions of law, the results of which decisions might be 20 different depending on the judge, despite the arguments and legal issues being identical. (Id.). 21 Plaintiffs analogize to the Southern District of New York’s decision in Ardolf v. Weber in which 22 the Court permitted four male models to bring a single action against a photographer who 23 sexually assaulted them in a similar fashion. (Id. at 26) (citing Ardolf v. Weber, 332 F.R.D. 467 24 (S.D.N.Y. 2019)). 25 Defendant replies that the Plaintiffs’ cases are too dissimilar to be tried together. (ECF 26 No. 46 at 5-6). Defendant points out that Plaintiffs’ reliance on Ardolf is misplaced because the 27 sexual assaults occurred close in time (four years) and because the photographer in that case 1 that here, the assaults took place over ten years and Plaintiffs’ claims do not involve an 2 identifiable modus operandi because the Plaintiffs each describe different conduct on the part of 3 Defendant. (Id.). Defendant adds that, apart from himself, the Plaintiffs cannot identify a single 4 common witness between their ten cases such that, although trying the cases together might result 5 in judicial economy, it would guarantee that Defendant does not receive a fair trial. (Id.). 6 Defendant argues that “[n]o jury instruction could cure the incredible prejudice that will result 7 from a joint trial of 10 different women who share nothing in common other than that they all 8 claim that at some point in [the] 1980s or early 1990s, they were sexually abused/assaulted by the 9 Defendant.” (Id.). 10 Federal Rule of Civil Procedure 20(a)(1) permits the joinder of plaintiffs in one action 11 when “(A) they assert any right to relief jointly, severally, or in the alternative with respect to or 12 arising out of the same transaction, occurrence, or series of transactions or occurrences; and 13 (B) any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 14 20(a)(1). The Southern District of New York’s decision in Ardolf v. Weber stands for the 15 proposition that a defendant’s modus operandi can tie otherwise distinct incidents together for the 16 purposes of the Rule 20(a)(1) analysis. See Ardolf v. Weber, 332 F.R.D. 467, 479-82 (S.D.N.Y. 17 2019). There, a group of male models alleged that the defendant—a prominent photographer— 18 molested each of them individually using a similar method. Id. During photoshoots, the 19 photographer would isolate the models; engage in a “breathing exercise”; and then grab or touch 20 them while promising that if the models complied, the photographer would help their careers. Id. 21 The court denied the photographer’s motion to sever the models’ claims, finding that the 22 photographer’s modus operandi tied their claims together under both the first and second prong of 23 the Rule 20(a)(1) analysis. Id. 24 In analyzing the first prong, the court found that the photographer’s alleged modus 25 operandi “is the common thread that logically ties all [the models’] claims.” Id. The court 26 explained that photographer’s “modus operandi of molesting male models arises out of a series of 27 the same transactions or occurrences with separate victims, each suffering from a nearly-identical 1 prong, the court noted that “[a]ll [of the models] raise a single cause of action: a violation of the 2 TVPA…Therefore, at issue for all [of the models] is at least one common question of law: 3 whether [the photographer’s] modus operandi of fondling [the models’] genitals during private 4 photoshoots constitutes sex trafficking.” Id. (internal quotations omitted). 5 District courts in the Ninth Circuit have similarly declined to sever cases involving 6 allegations from multiple plaintiffs about a defendant’s similar pattern of sexual assault. In 7 Phillips v. Berkely Unified School District, the Northern District of California found both prongs 8 of the Rule 20 analysis satisfied by a defendant’s modus operandi where the plaintiffs alleged the 9 defendant abused his position at a high school to sexually assault them while they were students. 10 See Phillips v. Berkeley Unified Sch. Dist., No. 22-cv-02605-EMC, 2022 WL 3133848, at *2 11 (N.D. Cal. Aug. 5, 2022). Similarly, in Macias v. Lange, the Northern District of California 12 declined to sever two plaintiffs’ claims where the plaintiffs both alleged that their landlord 13 sexually harassed them even though the landlord harassed them at different rental properties and 14 at different times. See Macias v. Lange, No. 14-cv-2763-GPC-JMA, 2016 WL 8999479, at *1 15 (S.D. Cal. Feb. 4, 2016). 16 Ultimately, joinder under Rule 20(a)(1) “is designed to promote judicial economy, and 17 reduce inconvenience, delay, and added expense.” Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th 18 Cir. 1997). Courts must construe Rule 20(a)(1) “liberally in order to promote trial convenience 19 and to expedite the final determination of disputes, thereby preventing multiple lawsuits.” See, 20 e.g., League to Save Lake Tahoe v. Tahoe Reg’l Plan. Agency, 558 F.2d 914, 917 (9th Cir. 1977). 21 “[T]he impulse is toward entertaining the broadest possible scope of action consistent with 22 fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United 23 Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). On the other hand, even if both Rule 24 20(a)(1) requirements are met, “a district court must examine whether permissive joinder would 25 comport with the principles of fundamental fairness or would result in prejudice to either 26 side.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000) (quotation omitted). 27 The Court recommends denying Defendant’s request to sever the Plaintiffs’ actions from 1 operandi in sexually assaulting them—fulfills both prongs of the Rule 20(a)(1) analysis. The 2 Southern District of New York’s decision in Ardolf is persuasive to the Court’s conclusion that 3 Defendant’s modus operandi ties the otherwise distinct sexual assaults together for the purposes 4 of the Rule 20(a)(1) analysis. Like the male models in Ardolf who alleged that the photographer 5 assaulted them in a similar manner, Plaintiffs each allege that Defendant assaulted them in a 6 similar manner by isolating them, drugging them or attempting to drug them, and then sexually 7 assaulting them. 8 Under the first prong of the analysis, like the Ardolf photographer’s modus operandi of 9 isolating, sexually assaulting, and manipulating the male models, Defendant’s modus operandi 10 here is the common thread that logically ties all of Plaintiffs’ claims. Defendant’s method of 11 sexually assaulting the Plaintiffs—although each separate victims—converts these distinct events 12 into the same series of occurrences because each victim suffered from a nearly identical assault 13 involving isolation and drugs. Even though Plaintiffs were not in the same exact location and the 14 events did not happen at the same time, Plaintiffs each allege that the encounters occurred in 15 Nevada, that Defendant drugged and subsequently sexually assaulted Plaintiffs, and that 16 Defendant is the common decision-maker responsible for their harm. Plaintiffs have established 17 the first prong. 18 Under the second prong of the analysis, like the models’ identical single cause of action in 19 Ardolf, here, the Plaintiffs each bring the same causes of action for battery, assault, intentional 20 infliction of emotional distress, negligent infliction of emotional distress, and false imprisonment. 21 This means that at issue for each of the Plaintiffs is the common question of law: whether 22 Defendant’s modus operandi of isolating, drugging, and sexually assaulting them constitutes the 23 causes of action they have alleged. Plaintiffs have established the second prong. 24 The Court is also persuaded by the fact that other district courts in the Ninth Circuit have 25 reached similar conclusions as the Ardolf court. Both the Phillips and Macias courts analyzed 26 similar factual patterns as Ardolf: multiple plaintiffs alleging that a single defendant sexually 27 assaulted them in a similar way. And both of those courts found that the cases should proceed 1 Ultimately, the Court finds that joinder under Rule 20 would promote judicial economy 2 and reduce inconvenience, delay, and added expense. While Defendant argues that that Plaintiffs 3 have no overlapping evidence or witnesses, it would be more burdensome to maintain ten 4 separate actions, with separate motion practice, discovery, and trials, all relating to Defendant’s 5 same alleged conduct. And although Defendant argues that trying Plaintiffs’ claims together will 6 prejudice him by introducing evidence pertaining to the particular claims of each Plaintiff, this 7 potential prejudice is outweighed by the prejudice to Plaintiffs of trying nearly identical cases ten 8 separate times in front of judges who may rule differently on similar motions. Given the Court’s 9 directive to construe Rule 20(a)(1) liberally to expedite final determinations of disputes and 10 prevent multiple lawsuits, the Court finds that maintaining these claims together would comport 11 with the principles of fairness. The Court recommends denying Defendant’s request to sever. 12 13 14 IT IS THEREFORE RECOMMENDED that Defendant’s motion to dismiss (ECF No. 15 39) be granted in part and denied in part. It is recommended that Defendant’s motion to 16 dismiss be granted in part regarding Plaintiffs’ first cause of action raising a common law tort 17 claim for sexual assault. It is recommended that Defendant’s motion to dismiss be denied in all 18 other respects. 19 20 NOTICE 21 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 22 in writing and filed with the Clerk of the Court within (14) days after service of this Notice. The 23 Supreme Court has held that the courts of appeal may determine that an appeal has been waived 24 due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985), reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that (1) failure to 25 file objections within the specified time and (2) failure to properly address and brief the 26 objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 27 1 || issues from the order of the District Court. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991); 2 || Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 3 4 DATED: July 19, 2024 ) ’ ~ 5 OW □□ DANIEL J. ALBREGTS | 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28