MCKENZIE

v.

UNITED STATES TENNIS ASSOCIATION INCORPORATED

This cause comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint or, in the alternative, Motion to Strike Certain Allegations (Doc. 36 (the “Motion”)) and Plaintiff’s response in opposition (Doc. 37 (the “Response”)). Upon consideration, the Motion is due to be granted in part and denied in part.

I. BACKGROUND1

This dispute arises from allegedly inappropriate sexual encounters between Plaintiff Kylie McKenzie (“Plaintiff”) and an employee of Defendants, United States Tennis Association Incorporated (“USTA”) and USTA Player Development

USTA PD is an affiliate of USTA that strives to educate and train young players in the game. (Id. ¶¶ 6, 8).2 Together, Defendants work to advance young tennis players’ careers by offering training programs at their various National Training Center locations throughout the country, including in Orlando, Florida. (Id. ¶¶ 8– 9).

Following pervasive sexual abuse allegations plaguing the professional sports arena, the United States Olympic Committee (“USOC”) notified NGBs, including the USTA, of the need to strengthen protective measures for young athletes. (Id. ¶ 10). In response—and upon significant pressure—the USTA implemented its Safe Play program (“Safe Play”). (Id. ¶ 13). The program’s policies indicate a commitment towards “creating a safe and positive environment for every athlete’s development in an environment free of misconduct.” (Id.).³ However, the USTA resisted implementing many of the USOC’s recommended changes, including a prohibition on coaches engaging in romantic relationships with their athletes. (Id. ¶¶ 11–15).

Florida to train at Defendants’ location in Orlando, known as the USTA National Campus. (Id. ¶ 24). While there, Plaintiff started to train with USTA national coach Anibal Aranda (“Coach Aranda”). (Id.). Coach Aranda had been an employee of Defendants for roughly seven years. (Id.). Not long after Coach Aranda and Plaintiff began training together, Coach

Aranda’s behavior took an unprofessional turn. (See, e.g., id. ¶¶ 25–26, 29). Coach Aranda inquired into Plaintiff’s personal life, complimented her, and remarked on her appearance. (Id.). At one point, Coach Aranda stuck his hands under Plaintiff’s shirt, grabbed her stomach and waist, and rubbed it while exclaiming “see, you’re too skinny.” (Id. ¶ 26). As time went on, Coach Aranda’s inappropriate conduct escalated. (Id. ¶ 27).

For instance, Coach Aranda would sit directly next to Plaintiff on the beach, lean his head on her upper thighs, and rub them before getting up. (Id.). In late October of 2018, he acted under the guise of helping Plaintiff with her serving technique in order to intensify physical contact. (Id. ¶ 28). He would stand close behind Plaintiff “so that his full body was pressed up against her back and butt.” (Id.). Then, he would grab her hips and move his fingers lower and lower, pressing harder and harder, down her groin and underwear line with each repetition. (Id.). On another occasion, Coach Aranda knelt in front of Plaintiff as she was preparing to serve, held her hips, and proceeded to look directly at Plaintiff’s vaginal area. (Id.). He would also routinely slide his hands from Plaintiff’s back down to her butt as he “trained” her. (Id.).

The most invasive physical interaction transpired on November⁹, 2018. (Id. ¶ 29). Coach Aranda sat next to Plaintiff after practice, probing her as to whether she thought she was beautiful. (Id.). At the time, Plaintiff had a towel over her lap, and Coach Aranda’s hand was resting on her thigh. (Id.). Following various questions concerning Plaintiff’s body, “Coach Aranda slid his hand under her towel and started rubbing her vagina with his fingers.” (Id.). Fearful and in shock, Plaintiff pushed him away, but Coach Aranda quickly grabbed her calves and knees in an aggressive attempt to massage them. (Id.). He then asked Plaintiff “what she wanted him to be,” to which Plaintiff responded, only “to be her tennis coach.” (Id.). As the training session progressed that day, Coach Aranda purported to have the power to get Plaintiff sponsors and transform Plaintiff’s career. (Id.).

The next day, Plaintiff reported Coach Aranda’s sexual misconduct to Defendants. (Id. ¶ 30). Subsequently, the United States Center for SafeSport (“SafeSport”) undertook an investigation. (Id.). Summarily, the investigation confirmed Coach Aranda’s behavior was reprehensible. (Id.).⁴ Moreover, it

York for the U.S. Open and went out one night for dinner and dancing. (Id.). At the club, Coach Aranda danced behind Jane Doe, “grinding up on her” and “rubbing her vagina on the outside of her clothes.” (Id.). Jane Doe tried to leave, but Coach Aranda followed her outside and attempted to get into a cab with her. (Id.). Jane Doe never reported the incident and took no measures to prevent history from repeating itself. (Id.). Nevertheless, Jane Doe later became Defendants’ Senior Manager of Player Development, Events, and Programming at the USTA National Campus, working alongside Coach Aranda and Plaintiff. (Id.). Ultimately, the investigation resulted in Coach Aranda’s termination. (Id. ¶ 32). Plaintiff filed the operative Second Amended Complaint,⁵ asserting six causes of action: Negligent Supervision and Retention (Count I), Battery (Count

II), Intentional Infliction of Emotional Distress (Count III), Negligence (Count IV), Respondeat Superior (Count V), and Punitive Damages (Count VI). (See generally

Nonetheless, the Court need not delineate the precise findings of SafeSport’s investigation to support the Court’s conclusion.

II. STANDARDS OF REVIEW

A. Motion to Dismiss

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Thus, to survive a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court must view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F. 3d 1480, 1484 (11th Cir. 1994) (per curiam). However, though a complaint need not contain detailed factual allegations, pleading mere legal conclusions, or “a formulaic recitation of the elements of a cause of action,” is not enough to satisfy the plausibility standard. Twombly, 550 U.S. at 555. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations,” and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 679; Papasan v. Allain, 478 U.S. 265, 286 (1986). In sum, the court must: reject conclusory allegations, bald legal assertions,

and formulaic recitations of the elements of a claim; accept well-pled factual allegations as true; and view well-pled allegations in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 678–79.

B. Motion to Strike

Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Courts have broad discretion in ruling on motions to strike. Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976); see FED. R. CIV. P. 12(f). “The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Hutchings v. Fed. Ins., No. 08-cv-305, 2008 WL 4186994, at

*2 (M.D. Fla. Sept.⁸, 2008) (internal quotations omitted).

III. DISCUSSION

A. Motion to Dismiss

Defendants now move to dismiss each cause of action. (Doc. 36). The Court will address their arguments in turn.

1. Count I: Negligent Retention and Supervision “Negligent retention and supervision occur[] when, during the course of employment, the employer becomes aware, or should have become aware, of problems with an employee that indicates his [or her] unfitness, and the employer fails to take further action such as investigation, discharge, or reassignment.” Pineda v. PRC, LLC, No. 11-CV-20894, 2011 WL 3022564, at *2 (S.D. Fla. July²²,

2011) (quoting Grice v. Air Prods. & Chem., Inc., No. 3:98CV205/RV, 2000 WL 353010, at *15 (N.D. Fla. Feb.¹⁷, 2000)); see Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986).6 To state a cause of action for negligent supervision or negligent retention,⁷ claimants must assert the following: (1) the existence of a relationship that gives rise to a legal duty to supervise; (2) negligent breach of that duty; and (3) proximate causation of injury by virtue of the breach.⁸ Albra v. City of Fort Lauderdale, 232 F. App’x 885, 888 (11th Cir. 2007).9

Manager of Player Development, Events, and Programming. (Doc. 37, pp. 6—

34).13 To the contrary, Defendants aver that Coach Aranda was neither engaging in behavior he was employed to perform nor acting for Defendants’ benefit when he committed the alleged battery. (Doc. 36, pp. 12–14). Thus, Defendants argue they

Under the doctrine of respondeat superior, an employer can be held vicariously liable for their employees’ acts so long as such acts are committed within the scope of their employment and “to further a purpose or interest, however excessive or misguided, of the employer.” Doe v. St. John’s Episcopal Par. Day Sch., Inc., 997 F. Supp. 2d 1279, 1287 (M.D. Fla. 2014) (citing Iglesia Cristiana

La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353, 356 (Fla. 3d DCA 2001)). An employee’s conduct is within the scope of employment if “(1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed,¹⁶ and

Plaintiff’s allegations clearly satisfy the aforementioned exception at this point in the litigation. Instructive situations have been presented in Florida courts as well as courts within the Eleventh Circuit. For example, in Favorite Farms, the plaintiff was pushed into a bedroom and raped by one of defendant’s employees— a supervisor whose job entailed assigning housing to employees like plaintiff. 2018

WL 295549, at *1–2. The court found plaintiff had adequately pled defendant’s practice sessions. (Doc. 34, ¶¶ 23–29). Thus, the Court will tailor its discussion to the first and third elements. employee utilized his position of authority, enabled by virtue of the employeeemployer relationship with defendant, to commit the intentional tort. Id. Similarly, in St. John’s, the plaintiff was sexually and physically abused by priests and teachers of defendant’s church. 997 F. Supp. at 1282–83. In that case, the plaintiff alleged the priests “abused [p]laintiff on [defendant’s] property, utilized their positions of authority to manipulate and intimidate [p]laintiff, . . . had access to and the opportunity to abuse [p]laintiff because of their official positions and duties,” and utilized their employment roles to abuse plaintiff. Id. at

1288–89 (specifying that “[defendant’s employee] abused [p]laintiff while giving him piano lessons as part of his education and while on Church choir trips”). Ultimately, the court concluded the aforementioned allegations satisfied the Florida exception to impose vicarious liability, and the claim survived a motion to dismiss. Id. Considering the above-stated precedent, Plaintiff has also sufficiently pled

Coach Aranda’s conduct occurred within the scope of his employment. On one occasion, the Complaint explicitly alleges that Coach Aranda initiated such inappropriate sexual contact “under the guise he was helping her with her serving technique.” (Doc. 34, ¶¶ 28, 67). Plaintiff delineates that Coach Aranda tightly gripped her groin and pressed against her as she “practiced the serve loading motion.” (Id. ¶¶ 28–29). In another instance, Coach Aranda “slid his hand under [Plaintiff’s] towel and started rubbing her vagina with his fingers.” (Id.). Although Plaintiff was visibly uncomfortable, Coach Aranda continued to capitalize on his coaching position, insinuating he could elevate Plaintiff’s career if she continued to train with him. (See id.). Thus, the Court is at liberty to plausibly infer that Coach Aranda’s behavior was directly aided by virtue of his employment, irrespective of the measures Defendants supposedly instituted to express “condemnation of [such] misconduct.” (Doc. 36, p. 14). In fact, viewing allegations in the light most favorable to Plaintiff, the sexual advances occurred inextricably with Coach Aranda’s job. In any event, vicarious liability is a fact-intensive inquiry more appropriately addressed at summary judgment or by a jury. E.g., Favorite Farms, 2018 WL 295549, at *2; DK v. Sch. Bd. of Manatee Cnty., No. 14-CV-2329-T-33TBM, 2014 WL 5473578, at *2 (M.D. Fla. Oct. 28, 2014). Thus, at the current stage in the litigation, the Court finds Plaintiff’s allegations sufficient to render it plausible that Defendants may be held vicariously liable for Coach Aranda’s behavior. Accordingly, Plaintiff’s states a sufficient claim for battery.

3. Count III: Intentional Infliction of Emotional Distress With regards to Count III, Defendants argue that dismissal is warranted because Plaintiff’s claim for intentional infliction of emotional distress relies on acts committed by Coach Aranda outside the scope of his employment.¹⁷ (Doc. 36, pp. 14–16). Thus, as Defendants opined with respect to Count II, Defendants cannot be vicariously liable for Coach Aranda’s conduct. (Id.). However, for the

4. Count IV: Negligence To satisfy the requisite burden of proof for a negligence claim under Florida law, a plaintiff must establish: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached said duty; (3) the breach was the proximate cause of the plaintiff’s injury; and (4) the breach caused the plaintiff to suffer damages. See

Clay Elec. Coop, Inc. v. Johnson, 875 So. 2d 1182, 1185 (Fla. 2003). The crux of the parties’ disagreement implicates the duty element of a negligence claim. (See Doc. 36, pp. 16–18; Doc. 37, pp. 14–15).18 “Foreseeability of an injury is a prerequisite to the imposition of a duty upon a defendant. If injury is not reasonably foreseeable, then there can be no recovery.” Firestone Tire & Rubber Co. v. Lippincott, 383 So. 2d 1181, 1182 (Fla. 5th DCA 1980) (citations omitted). Accordingly, Defendants assert that the purported harm to Plaintiff was

The issue presented is quite straightforward. Florida does not recognize respondeat superior as an independent cause of action itself, only as a doctrine of liability. E.g., Colite Int’l Inc. v. Robert L. Lipton, Inc., No. 05-60046-CIV, 2006 WL 8431505, at *12 (S.D. Fla. Jan.²⁰, 2006); Trump v. Clinton, No. 22-CV-14102, 2022 WL 4119433, at *30 (S.D. Fla. Sept.⁸, 2022); see Turner Murphy Co. v. Specialty Constructors, Inc., 659 So. 2d 1242, 1245 (Fla. 1st DCA 1995). Thus, the Court must dismiss Count V accordingly.²⁰ 6. Count VI: Punitive Damages

Lastly, Defendants move to dismiss Plaintiff’s claim for punitive damages under § 768.72(3) of the Florida Statutes. (Doc. 36, pp. 19–20). Defendants argue they were unaware of Coach Aranda’s conduct until Plaintiff reported it, and Defendants then fired him. (Id.). Thus, Defendants could not have possibly ratified or consented to his conduct, nor acted grossly negligent with respect to the situation. (Id.). Alas, the Court disagrees. Under § 768.72(3), “punitive damages may be imposed for the conduct of an employee or agent” if the employer, principal, corporation, or other legal entity:¹) “knowingly participated in such conduct,”²) “knowingly condoned, ratified, or consented to such conduct,” or³) “engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.” FLA. STAT. § 768.72(3). The statute defines “gross negligence” as conduct that “was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. § 768.72(2)(b).

768.72(3); (Doc. 34). Plaintiff’s allegations of Jane Doe’s history with Coach Aranda, coupled with her position in senior management, support the plausible conclusion that Defendants knew of their employee’s sexual improprieties and yet, continued to employ him in a position of power regardless. (See Doc. 37, pp. 17– 18). Moreover, Defendants allegedly resisted the recommended implementation of related safety measures. (See id.). Thus, taking the aforementioned as true, the Court can reasonably infer that such allegations equate to Defendants knowingly condoning, ratifying, or consenting to the subject conduct. In any event, Plaintiff has sufficiently alleged that Defendants, at a minimum, acted with reckless disregard in failing to put adequate protective measures in place for athletes and not taking preventive action following Jane Doe’s initial incident with Coach Aranda. (See generally Doc. 34). In turn, Defendants plausibly engaged in grossly negligent conduct that contributed to the harm alleged herein. See FLA. STAT. § 768.72(3). Accordingly, Plaintiff states a plausible claim for punitive damages.

B. Motion to Strike

While outright dismissal may be inappropriate, striking individual allegations can still be warranted. Here, Defendants move to strike¹) references in the Second Amended Complaint to SafeSport’s investigations, and²) terms such as “sexual assault” and “sexual battery.” (Doc. 36, pp. 21–23). However, for the forthcoming reasons, the Court finds that no allegations necessitate striking. 1. Information from SafeSport’s Investigative Report

In Paragraphs 30 and 31 of the Second Amended Complaint, Plaintiff details the results of SafeSport’s investigation. (See generally Doc. 34, ¶¶ 30–31). Defendants argue that such information “is confidential as a matter of federal law” and thus, “allegations quoting or otherwise referencing” SafeSport’s investigation must be struck. (Doc. 36, pp. 21–22). Ultimately, the Court disagrees with

Defendants’ conclusion. Defendants’ merely purport that the respective allegations associated with SafeSport’s investigation “unfairly prejudice[]” Defendants. (Id.). As Plaintiff correctly alludes, however, Rule 12(f) does not expressly encompass such a reason. See FED. R. CIV. P. 12(f); (Doc. 37, pp. 18–19). Moreover, Defendants cite no supporting case law that considers unfair prejudice as the sole factor in evaluating motions to strike.²¹ In fact, courts within the Eleventh Circuit routinely hold that motions to strike are “drastic” remedies “disfavored by the courts.” See, e.g., Agan v. Katzman & Korr, P.A., 328 F. Supp. 2d 1363, 1367 (S.D. Fla. 2004); Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002). Historically,

Hutchings, 2008 WL 4186994, at *2. “If there is any doubt as to whether under any contingency the matter may raise an issue, [motions to strike] should be denied.” Blake v. Batmasian, 318 F.R.D. 698, 700 (S.D. Fla. 2017). Here, it is indisputable that the information derived from SafeSport’s Report raises a highly contested issue—one that is in no way immaterial, redundant, or impertinent. In fact, it is integral. Nonetheless, irrespective of the significance of the disputed information, juries are only exposed to admissible evidence. The Court itself is more than equipped to compartmentalize what are mere allegations from facts, supported by evidence, that emerge later in the proceedings. Thus, the Court finds such references do not have an unfairly prejudicial effect at the pleading stage and consequently, do not warrant striking.²²

2. Terms “Sexual Assault” and “Sexual Battery” Lastly, Defendants contend that the terms “sexual battery” and “sexual assault” are “impertinent and scandalous” misnomers of the alleged acts committed and thus, must be struck. (Doc. 36, p. 23). The Court is simply not convinced.

Thus, labels such as “sexual assault” or “sexual battery” are commonplace in pleading intentional torts of a similar nature to those alleged herein. See, e.g., Hoke v. Murphy, No. 21-CV-00128-WS-MAF, 2021 WL 5828675, at *4 (N.D. Fla. Oct.²², 2021) (“Sexual assault amounts to tortious conduct in Florida.”), report and recommendation adopted, No. 21CV128-WS/MAF, 2021 WL 5827126 (N.D. Fla. Dec.⁸, 2021); Malicki v. Doe, 814 So. 2d 347 (Fla. 2002).

Further, the Court emphasizes that the fact the core allegations themselves are inherently “scandalous” does not negate their relevance or admissibility. (See Doc. 37, pp. 18–20). If such were the case, the accused would always be insulated, and claims of the like would amount to nothing. Accordingly, the Court will not

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint or, in the alternative, Motion to Strike Certain Allegations (Doc. 36) is GRANTED IN PART AND DENIED IN

PART.

DONE AND ORDERED in Orlando, Florida on April 24, 2023.

/ [...] / s

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties