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K.G. v. OWL City

United States District Court, D. New Jersey

December 20, 2018

K.G., et al., Plaintiffs,
v.
OWL CITY, et al., Defendants.

          MEMORANDUM OPINION

          JEROME B. SIMANDLE, U.S. DISTRICT JUDGE

         In this action, Plaintiff K.G. and her mother, B.G., (collectively, “Plaintiffs”) allege that Defendant Daniel Jorgensen sexually assaulted K.G. when she was 14 years old on a municipal beach near a music concert of the band Owl City in Atlantic City, New Jersey. Plaintiffs also seek to hold Defendants Owl City, Adam Young, Stephen Bursky, Creative Artists Agency, and Foundation Artist Management, LLC (collectively, “the Moving Defendants”) vicariously liable for the alleged conduct of Defendant Jorgenson. Pending before the Court is the Moving Defendants' motion to dismiss the Complaint for failure to state a claim as to them pursuant to Fed.R.Civ.P. 12(b)(6). [Docket Item 11.] Notably, the motion is not joined by Defendant Jorgensen, who timely filed an Answer to the Complaint. [Docket Item 14.] The Court held oral argument on November 1, 2018. [Docket Item 26.] For the reasons discussed below, the Court will grant the Moving Defendants' motion and dismiss the Complaint against them, with prejudice in part and without prejudice in part. The Court finds as follows:

         1. Factual and Procedural Background.[1]

Defendant Owl City is a Christian music band that was founded by Defendant Adam Young, a pop singer, songwriter, and instrumentalist, in Owatonna, Minnesota. (Compl. [Docket Item 1] at ¶¶ 7-8.) In 2012 and 2013, Defendant Daniel Jorgensen, a professional musician who played the vibraphone/guitar, toured with Defendants Owl City and Adam Young around the country. (Id. at ¶ 10.) Defendants Stephen Bursky and Foundation Artist Management, LLC's (“FAM”) managed Defendant Owl City and allegedly “were at all times responsible to provide management, supervision, hiring, re-hiring, training, [and] re-training, ” of Defendant Owl City's band members, including Defendants Adam Young and Daniel Jorgensen. (Id. at ¶¶ 9, 12.) According to the Complaint, Defendant Creative Artists Agency (“CAA”) “was and continues to be a professional musical management agency” (id. at ¶ 13), although it is not clear from the face of the Complaint what relationship, if any, CAA maintained with the other Defendants.

         2. On or about April 3, 2012, Plaintiff K.G. met Defendant Jorgensen outside the Verizon Center in Washington D.C. where Owl City had just performed a music concert. (Id. at ¶¶ 10, 17-18.) According to the Complaint, Defendant Jorgensen “and other band members and Owl City crew were congregated [in front of the Owl City tour bus] for purposes of meeting underage girls, ” and Defendant Jorgensen approached K.G. and obtained her Facebook username. (Id. at ¶ 18.) At the time, Plaintiff K.G. was 13 years old and Defendant Jorgensen was approximately 28 years old. (Id. at ¶¶ 17-18.)

         3. Over the next year, Defendant Jorgensen repeatedly messaged Plaintiff K.G., video chatted with her on several occasions, and eventually “began to ask [K.G.] on a daily basis to send him inappropriate naked pictures of herself and he offered to show her his private parts on his webcam.” (Id. at ¶ 19.) In April 2013, Defendant Jorgensen invited Plaintiff K.G. to an Owl City concert in Pittsburgh, Pennsylvania, where he allegedly “arranged to meet with her at the Owl City Tour bus at the venue.” (Id. at ¶ 20.) Thereafter, Defendant Jorgensen continued to send messages to K.G., which were sent on Facebook and Skype, by text message, and on video chat, and included the exchange of photographs. (Id.) The Complaint does not allege that any of the Moving Defendants knew about Defendant Jorgensen's conduct with respect to K.G. during this period.

         4. Defendant Jorgensen next invited Plaintiff K.G. to attend an Owl City concert in Atlantic City, New Jersey, which was to take place on August 29, 2013, and to stay with him alone in a hotel room the night of the concert. (Id. at ¶¶ 20, 23.) On the morning of August 29, 2013, Defendant Jorgensen brought Plaintiff K.G. to the beach in Atlantic City and allegedly “sexually assaulted, sexually molested, detained, restrained, fondled, humiliated, defiled, harassed, intimidated, abused and endangered the welfare of K.G., ” who was now 14 years old. (Id. at ¶¶ 24, 27.) Defendant Jorgensen then left K.G. on the beach while he left to perform a sound check for the concert. (Id. at ¶ 25.) After the sound check was finished, Defendant Jorgensen stayed with Plaintiff K.G. for the remainder of the day until the concert began. (Id.) According to the Complaint, during the day “[t]he pair were readily visible to [Defendant] Adam Young and other members of the Owl City band and crew.” (Id.) The Complaint does not, however, allege that any of the Moving Defendants witnessed or were aware of any alleged misconduct.

         5. After the concert ended, Defendant Jorgensen again met with Plaintiff K.G. on the beach, where he spent the rest of the night with her and allegedly “once again sexually assaulted, sexually molested, detained, restrained, fondled, humiliated, defiled, harassed, intimidated, abused, and endangered the welfare of K.G.” (Id. at ¶ 26.) He also “attempted to coerce and/or force [K.G.] to go with him to . . . Defendant[s] Owl City and/or Adam Young's Tour bus with him so that he could engage in sexual intercourse with . . . K.G.” (Id. at ¶ 27.) According to the Complaint, “Defendant Jorgensen displayed no concern or worry that any of the co-Defendants would question his bringing a 14-year-old onto the Tour bus.” (Id.) The Complaint does not allege that Defendant Jorgensen actually brought Plaintiff K.G. onto the tour bus or that any of the Moving Defendants had actual knowledge of Defendant Jorgensen's alleged misconduct involving K.G., but generally states:

Upon information and belief, [the Moving Defendants] allowed, permitted, condoned, acquiesced, and/or ratified [Defendant Jorgensen] to commit sexual assaults and sexual molestations upon K.G. from August 29, 2013 through August 30, 2013 by encouraging, tolerating, ratifying, and/or condoning a culture within the Defendant, Owl City of sexual deviance with minor fans, including but not limited to meeting young children at the tour bus, inviting minor fans backstage after concerts/performances, to Defendant, Owl City's tour bus, and to hotel rooms.

(Id. at ¶ 30.)

         6. In December 2013, Defendant Jorgensen was terminated from his employment with Defendant Owl City. (Id. at ¶ 31.) On April 28, 2015, the Atlantic County Prosecutor's Office charged Defendant Jorgensen with Attempt to Lure or Entice a Child (2nd Degree) and Criminal Sexual Contact (4th degree). (Id. at ¶ 32.) On August 4, 2015, Defendant Jorgensen was indicted by the Atlantic County Grand Jury on those same charges. (Id. at ¶ 33.) Ultimately, Defendant Jorgensen pled guilty to a single count of Lewdness Observed by a Child. (Id. at ¶ 34.)

         7. On October 11, 2017, this Complaint was filed setting forth the following causes of action as to all Defendants: Assault & Battery (Count One); False Detention & Imprisonment (Count Two); Intentional and Negligent Infliction of Emotional Distress (Count Three); Respondeat Superior (Count Four); Negligent Hiring, Retention, and Supervision (Count Five); Intentional Misconduct and/or Gross Negligence (Count Six); Punitive Damages (Count Seven); and a per quod claim on behalf of Plaintiff K.G's mother, B.G. (Count Eight). [See generally Docket Item 1.] Thereafter, the Moving Defendants filed a motion to dismiss the Complaint as to them pursuant to Fed.R.Civ.P. 12(b)(6), which is currently pending before the Court. [Docket Item 11.] Plaintiffs filed opposition [Docket Item 22], and the Moving Defendants filed a reply brief. [Docket Item 23.] The Court convened oral argument on November 1, 2018 [Docket Item 26] and, at the Court's invitation, the parties subsequently filed supplemental briefs. [Docket Items 27 & 28.] The motion to dismiss is now fully briefed and ripe for disposition.

         8. Standard of Review. Under Fed.R.Civ.P. 12(b)(6), a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must accept as true all well-pleaded allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). A motion to dismiss may only be granted if a court concludes that the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         Although the Court must accept as true all well-pleaded factual allegations, it may disregard any legal conclusions in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A plaintiff should plead sufficient facts to “raise a reasonable expectation that discovery will reveal evidence of the necessary element, ” Twombly, 550 U.S. at 556, and “[a] pleading that offers labels and ...


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