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Elmo Sex Scandal - Dismissal by Federal Judge

Elmo Sex Scandal - Dismissal by Federal Judge

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Published by: FindLaw on Jul 01, 2013
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 CECIL SINGLETON, ET AL.,Plaintiffs,- against -KEVIN CLASH,Defendant.
 12 Civ. 8465 (JGK)12 Civ. 8948 (JGK)13 Civ. 2172 (JGK)OPINION AND ORDER 
JOHN G. KOELTL, District Judge:
  The plaintiffs, Cecil Singleton, S.M. (John Doe”), andKevin Kiadii, each bring claims against the defendant, KevinClash, pursuant to 18 U.S.C. § 2255(a). All of the plaintiffsallege that when they were minors, the defendant used a facilityor means of interstate commerce to persuade or induce themtoengage in sexual activity in violation of 18 U.S.C. § 2422. John Doe also alleges that when he was a minor the defendanttransported himfromFlorida to New York with the intent toengage in sexual activity in violation of 18 U.S.C. § 2423. Thedefendant moves to dismiss all of the claims pursuant to Rule12(b)(6) of the Federal Rules of Civil Procedure on the groundthat they are barred by the statute of limitations, 18 U.S.C.§ 2255(b). For the reasons explained below the motions aregranted and the complaints are dismissed.
Case 1:12-cv-08465-JGK Document 25 Filed 07/01/13 Page 1 of 28
 In deciding a motion to dismiss pursuant to Rule 12(b)(6),the allegations in the complaint are accepted as true, and allreasonable inferences must be drawn in the plaintiffs favor.McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Courts function on a motion to dismiss is “not toweigh the evidence that might be presented at a trial but merelyto determine whether the complaint itself is legallysufficient.Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if theplaintiff has stated “enough facts to state a claimto reliethat is plausible on its face.Bell Atl. Corp. v. Twombly, 550U.S. 544, 570 (2007). “A claimhas facial plausibility when theplaintiff pleads factual content that allows the court to drawthe reasonable inference that the defendant is liable for themisconduct alleged.Ashcroft v. Iqbal, 556 U.S. 662, 678(2009). While the Court should construe the factual allegationsin the light most favorable to the plaintiff, “the tenet that acourt must accept as true all of the allegations contained inthe complaint is inapplicable to legal conclusions.Id.When presented with a motion to dismiss pursuant to Rule12(b)(6), the Court may consider documents that are referencedin the complaint, documents that the plaintiff relied on inbringing suit and that are either in the plaintiffs possession
Case 1:12-cv-08465-JGK Document 25 Filed 07/01/13 Page 2 of 28
3or that the plaintiff knew of when bringing suit, or matters owhich judicial notice may be taken. See Chambers v. TimeWarner, Inc., 282 F.3d 147, 153 (2d Cir. 2000); see alsoRoseville Emps.Ret. Sys. v. Energysolutions, Inc., 814 F.Supp. 2d 395, 401 (S.D.N.Y. 2011).“Where the dates in a complaint show that an action isbarred by a statute of limitations, a defendant may raise theaffirmative defense in a pre-answer motion to dismiss.Gharteyv. St. Johns Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).
  The following allegations are assumed to be true for thepurposes of this motion. The defendant, Kevin Clash, is a resident of New York whowas born in 1960. (Kiadii Compl. 2, 5.) The plaintiffs eachallege that when they were minors, Clash engaged in sexual actswith themin violation of 18 U.S.C. §§ 2422 and 2255. John Doealso alleges that Clash violated 18 U.S.C. § 2423. John Doe John Doe is a Florida resident who was born in 1979. (S.M.Compl. 1, 8.) In late 1995 or early 1996, while thedefendant was visiting Miami and Doe was looking for work, thedefendant befriended him. (S.M. Compl. 9-10.) At the timeof this initial encounter, Doe was sixteen or seventeen years
Case 1:12-cv-08465-JGK Document 25 Filed 07/01/13 Page 3 of 28

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