Cravin v. Dareus

Filing # 66690827 E-Filed 01/18/2018 10:53:00 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
JANE DOE (“fictitious name”), an individual

Plaintiff,
Case No.:17-CA-011075
Division: I
vs.
MARCELL DAREUS, an individual

DARA KHOYI, an individual,
and ANVAR K. KHOYI, an individual
Defendant(s).
_________________________________/
FIRST AMENDED COMPLAINT

Plaintiff, JANE DOE sues Defendant(s) MARCELL DAREUS, DARA KHOYI, AND
ANVAR K. KHOYI, all individuals (“Defendants”) and pursuant to Rule 1.110(b), Florida
Rules of Civil Procedure, herein, and alleges:
JURISDICITON, PARTIES AND VENUE

1. This Court has jurisdiction over this dispute because this Complaint seeks damages in
excess of fifteen thousand ($15,000.00) dollars, exclusive of interest, costs and attorney’s fees.
2. On the date of the incident which is the subject of this lawsuit, Defendant(s) DARA
KHOYI and ANVAR K. KHOYI resided in Lutz, Hillsborough County, Florida.
3. At all times material, Plaintiff resided in Las Vegas, NV, but was visiting Tampa,
Florida.
4. At all times material Defendants DARA KHOYI, and ANVAR K. KHOYI, were the
owners of the property 117 Bellamere Palms Court, Lutz, Hillsborough County, Florida. (Villa
Adriana), the property where the alleged sexual assault (incident) took place.
5. Venue is proper in Hillsborough County, Florida because the incident giving rise to
this action took place in Hillsborough County, Florida.
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GENERAL ALLEGATIONS
6. The Villa Adriana property is located at 117 Bellamere Palms Court, Tampa, Florida
33549, and is also referred to as (“mansion”).
7. Defendant, DARA KHOYI is designated by the Defendants, DARA KHOYI and

ANVAR K. KHOYI as the host/agent/property manager responsible for the hosting/managing
of the property.
8. At all times material, Defendant, MARCELL DAREUS, a National Football League

(NFL) player, was a tenant under a written lease executed on January 5, 2017 by and through his
authorized agent (aka house manager), DON MALLOY, renting the Villa Adriana.
9. At all times, Defendant, MARCELL DAREUS was a tenant, and in actual possession
of Villa Adriana from the rental period of January 5, 2017 through January 12, 2017.
10. On or about January 6, 2017, Plaintiff while visiting Tampa stayed at the Aloft Hotel,
Downtown Tampa (“hotel”).
11. On or about January 7, 2017, Plaintiff went alone to a club in Downtown Tampa, by
the name of Club Aja Channelside (“club”).
12. Plaintiff, states that while at the club, there were many other party goers, but she did
not know anyone there.
13. Plaintiff recalls the time to be somewhere between 10:30pm-11:00pm that she arrived
at the club.
14. Plaintiff states that when she initially arrived at the club, she went to the bar area, and
purchased a drink (vodka and cranberry juice).
15. Plaintiff, states after a short period of time being in the club, she was approached by a
gentleman (she believes to go by the name of “John”), and he invited her into the VIP section of
the club, which she accepted the invitation.
16. Plaintiff met several other people, but again knew no one.
17. One of the persons Plaintiff met, was Defendant, MARCELL DAREUS, who
appeared to be the host of the group.
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18. Plaintiff states that several drinks were being served to the group, along with bottles
of champagne.
19. Plaintiff states that she consumed gratis about two (2) glasses of champagne.
20. At some point during the evening, Plaintiff states that she was invited to an after party
at a local mansion by Defendant, MARCELL DAREUS, and his entourage.
21. Plaintiff states that she accepted the invitation, and a small group left the club at
around the same time to go to the mansion.
22. Plaintiff states that she did not have her own vehicle, but was directed to get into a
large black SUV along with two (2) other people, one (1) being another black female, who was
sitting in the back seat of the vehicle with her.
23. Plaintiff states that Defendant, MARCELL DAREUS, also left at the same time to
go to the mansion, but he was in a separate vehicle, an orange Bentley, being chauffeured by
someone else.
24. Plaintiff believes that she and the group left the club between 1:00am -1:30am.
25. Upon arriving at the mansion, Plaintiff states that once inside, she saw there were not
many people present.
26. Plaintiff states that about 30-45 minutes after arriving, several other people arrived at
the mansion.
27. Plaintiff states that there was a DJ set up and playing music, and what appeared to be
10-12 strippers, and other party goers.
28. All together, Plaintiff states there appeared to be 30-40 persons in total at the
mansion, some which were found to be other NFL players.
29. Plaintiff states that from the time she arrived at the mansion she remained in the
kitchen area (a large open kitchen area), which there were also other people in this area.
30. Plaintiff states that among the persons in the kitchen area were Defendant,
MARCELL DAREUS, “John”, as well as, a few other persons.
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31. Plaintiff states that once the party began, there were strippers dancing and many other
people wandering throughout the mansion (both male and female).
32. Plaintiff further states that there was alcohol, marijuana, and cocaine open and
visible, being and offered up to party goers.
33. Plaintiff states that she was offered a drink by “John”, and accepted by telling him,
“that she would have a vodka and cranberry juice”, which he poured her.
34. Plaintiff states upon her sipping the drink which “ John” had poured, that it appeared
to taste funny (kind of salty), which she advised “John”, and he offered to make her another one,
which he did.
35. Plaintiff states that the second drink did not have the same “funny taste”, and she
drank it.
36. Plaintiff states that Defendant, MARCELL DAREUS at some point while in the
kitchen grabbed her breast and attempted to put his hands between her legs, which she resisted
his advances and told him to stop, which he replied “ you know I want you”.
37. Plaintiff states that she at some point “blacked out,” but her last recollection of events
before she “blacked out” was being guided going down the hallway toward the restroom, but it
was occupied and she was redirected to the master bedroom by “John” while Defendant,
MARCELL DAREUS following closely behind.
38. Plaintiff states that her last recollection of events before she “blacked out” was being
guided going down the hallway toward the restroom, but it was occupied and she was redirected
to the master bedroom by “John” while Defendant, MARCELL DAREUS followed closely
behind.
39. Plaintiff states the next thing she remembers is waking up in a bed.
40. Plaintiff states that she immediately noticed that her clothes were dishelved, with her
bra being turned inside out and breast exposed, her dress being pulled up around her waist, and
panties being pulled to the side of her vagina area.
41. Plaintiff being confused, looked and took notice of her unfamiliar surroundings, and
saw an unclothed, Defendant, MARCELL DAREUS asleep next to her. Defendant,
MARCELL DAREUS’ black jeans and shirt were on the floor next to the bed.
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42. Plaintiff states that upon becoming more conscious and aware of the situation and her
surroundings, she began to immediately realize that there had been sexual physical acts upon her
person.
43. Plaintiff, being horrified and distraught as to what had occurred in these early
morning hours, she hurriedly straightened her clothes, and ran frantically out of the room.
44. Plaintiff states upon entering the hallway, she immediately came upon a black
gentleman, known only to her as the house manager.
45. Plaintiff refers to him as the house manager, only because during the party, he
continuously walked around approaching guests, asking “if they were O.K.”, and “if he could get
them anything.” At no time did Plaintiff witness the house manager drink, smoke, or partake in
any of the illicit activities as other guest were.
46. Plaintiff states that the house manager asked her “if everything was O.K.”, which she
emotionally responded by cursing at him.
47. Plaintiff advised the house manager that she needed to leave, and at such time was
driven back to her hotel by an unknown male.
48. Plaintiff upon arriving back to her hotel, was emotionally distraught.
49. Plaintiff upon entering her hotel room, just sat on the floor in a daze.
50. Plaintiff then got up turned on the shower and got in.
51. Plaintiff states she remained in her hotel room that entire day on Sunday afternoon,
January 8, 2017.
52. On Monday, January 9, 2017, still distraught and without speaking to anyone about
the incident, Plaintiff and took a flight back to Los Angeles.
53. Plaintiff after several months of suffering through the emotional stage of these
unfortunate events, she finally gathered the courage to come forth.
54. Plaintiff, due to the embarrassment and self-guilt has kept the events of this sexual
assault by Defendant, MARCELL DAREUS private, not telling anyone.
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55. That all times material herein, the mansion where all events occurred alleged herein,
was owned by Defendant(s), DARA KHOYI and ANVAR K. KHOYI, and rented out to
Defendant, MARCELL DAREUS.
56. That the Defendant(s), DARA KHOYI and ANVAR K. KHOYI, rented the mansion
to the Defendant, MARCELL DAREUS, for the purposes of entertainment and parties.
57. That the Defendant, MARCELL DAREUS, leased the mansion for a period of one
(1) week (from January 5, 2017 through January 12, 2017).
58. That although the Defendant(s), DARA KHOYI and ANVAR K. KHOYI, were
leasing the mansion out for the purposes of entertainment, they had no provision for security or
other safety precautions in their lease agreement with Defendant, Marcel Dareus.
COUNT I
DEFENDANT, MARCEL DAREUS, NEGLIGENCE AND- OTHER ACTS:
FALSE IMPRISONMENT
59. The Plaintiff re-alleges and incorporates herein by reference the preceding allegations in
paragraphs 1 through 58.
60. On January 7, 2017, the Plaintiff, JANE DOE was an invitee/patron during an event hosted
by Defendant MARCELL DAREUS and held inside Villa Adriana and was falsely imprisoned
inside a bedroom at the same location.
61. At the time of the event, the Defendant, MARCELL DAREUS, was having a party and
acting as the host.
62. Without privilege or authority, the Defendant, MARCELL DAREUS physically assisted
Plaintiff to a bedroom located inside Villa Adriana, and confined her to a bed mattress.
63. The Defendant, MARCELL DAREUS physically confined the Plaintiff inside the bedroom
by the use of his hands and other body parts to physically prevent the Plaintiff’s movement or
use of her hands, legs, and/or other body parts.
64. The Plaintiff in no way consented to being restrained or confined by the Defendant,
MARCELL DAREUS.
65. The Defendant’s, MARCELL DAREUS, act of confining or retraining the Plaintiff was
wholly without authority or consent, and against the will of the Plaintiff.
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66. As a direct and proximate result of the Defendant’s, MARCELL DAREUS, unlawful
restraint and deprivation of Plaintiffs’ liberty, the Plaintiff has suffered injuries, damages and
losses; including, without limitation, past and future physical injury, pain and suffering, past and
future emotional and mental distress, impaired earning capacity, past and future, and past and
future losses of the enjoyment of life.
WHEREFORE, Plaintiff respectively demands judgment against the Defendant,

MARCELL DAREUS for monetary damages in excess of $15,000, costs, and such other and
further relief as the Court may deem just a proper.
COUNT II
DEFENDANT, MARCEL DAREUS NEGLIGENCE- ASSAULT
paragraphs _1_ through_66__.
68. On January 7, 2017, the Plaintiff, JANE DOE was an invitee/patron at Villa Adriana during
an event which was hosted by Defendant, MARCELL DAREUS and was assaulted during the
event.
69. On the aforementioned date, the Defendant, MARCELL DAREUS intentionally threatened
immediate harmful contacts with the Plaintiff’s person by use of his hands, arms, and other body
parts.
70. Defendant, MARCELL DAREUS intentionally caused or acted with reckless disregard of
causing Plaintiff to fear that such threatened contacts put her in imminent peril and that in light
of the Defendant’s, MARCELL DAREUS large stature, coupled with his strength and the
surroundings, the Defendant, MARCELL DAREUS, had the present ability to carry them out.
71. The Plaintiff, apprehended these threatened contacts, which created a well-founded fear of
physical harm and and/or other violent acts was about to take place.
72. As a direct and proximate result of the Defendant’s, MARCELL DAREUS unlawful
assault, the Plaintiff has suffered injuries, damages and losses; including, without limitation, past
and future physical injury, pain and suffering, past and future emotional and mental distress,
impaired earning capacity, past and future, and past and future losses of the enjoyment of life.
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WHEREFORE, Plaintiff respectively demands judgment against the Defendant,
further relief as the Court may deem just and proper.
COUNT III
MARCEL DAREUS NEGLIGENCE- BATTERY
paragraphs_1_ through_72_.
74. On or about January 7, 2017, the Defendant, MARCELL DAREUS was the host of an event
when the Plaintiff, JANE DOE was an invitee inside Villa Adriana and she was battered.
75. On the same date, the Defendant, January 7, 2017 MARCELL DAREUS, without privilege,
consent, or authority, intentionally touched the Plaintiff against her will and in doing so,
intentionally caused bodily harm to the Plaintiff.
76. The Defendant, MARCELL DAREUS intentionally touched the Plaintiff by the use of his
hands arms, or other body for the purpose of and with the intent to commit the act of battery on
the Plaintiff, against her will.
77. The Defendant, MARCELL DAREUS act of battery against the Plaintiff was without
authority and without consent of the Plaintiff.
78. As a direct and proximate result of the Defendant’s, MARCELL DAREUS, battery against
the Plaintiff, JANE DOE, the Plaintiff has suffered injuries, damages and losses-including,
without limitation, past and future physical injury, pain and suffering, past and future emotional
and mental distress, impaired earning capacity, past and future, and past and future losses of the
enjoyment of life.
WHEREFORE, Plaintiffs respectively demands judgment against the Defendant,

further relief as the Court may deem just and proper.
COMPENSATORY DAMAGES
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WHEREFORE, Plaintiff demands judgment for damages including but not
limited to compensatory damages, costs, interest including prejudgment interest, and any such
relief to which Plaintiff is entitled, against Defendant, MARCELL DAREUS.
DEMAND FOR JURY TRIAL

Plaintiff respectfully demands a trial by jury as to all matters so triable.
COUNT
NEGLIGENCE OF DARA KHOYI
79. Plaintiff, JANE DOE, reiterates and realleges paragraphs_1__through_78__herein and

further alleges:
80. Defendant, DARA KHYOI, had a duty to keep the premises located at 117 Bellamere Palms
Court, Tampa Florida 33549 in a reasonably safe condition and to protect invitees on the
premises it secures from harm due to reasonably foreseeable risks of injury.
81. Defendant, DARA KHOYI, breached her duty and was negligent in doing so among other
things:
(a) Negligently supervising Defendant, MARCELL DAREUS

.
(b) Negligently failing to warn Plaintiff of the dangerous conditions on the premises
likely to cause harm to her and other invitees.
(c) Creating a foreseeable and unreasonable risk of harm to the Plaintiff, as well as, to all
its invitees. Specifically as it relates to female invitees.
(d) Negligently failing to hire any/or an adequate number of security guards and or
female security guards to provide specific types of first aid for the female invitees, such
as Plaintiff.
(e) Negligently failing to hire male and female security/staff available for issues that are
associated with female issues i.e. seizures, drug overdoses and drunkenness of female
invitees about their premises. Drugs, alcohol and unconsciousness in this environment
are foreseeable for invitees in a party environment.
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(f) Negligently failing to have Standard Operating Procedures available for parties or
rents, renter(s)/leasee(s) hosting.
(h) As a direct result of the negligence of Defendant, DARA KHOYI, the Plaintiff,
JANE DOE suffered injuries, damages, and losses including, without limitation, past and
future physical injury, pain and suffering: past and future emotional and mental distress,
pain, and suffering; past and future losses of enjoyment of life coupled with but not
limited to stress disorder, severe anxiety, fear of repeat sexual violence, an unfounded
sense of shame and depression, all of which continue to require psychological counseling
and related medical treatment.
WHEREFORE, Plaintiffs respectively demands judgment against the Defendant, DARA

KHOYI for monetary damages in excess of $15,000, costs, and such other and further relief as
the Court may deem just and proper.

relief to which Plaintiff is entitled, against Defendant, DARA KHOYI.

COUNT V
NEGLIGENCE OF ANVAR K. KHOYI
82. Plaintiff, JANE DOE, reiterates and realleges paragraphs_1__through_81__herein and

further alleges:
83. Defendant, ANVAR K. KHOYI, had a duty to keep the premises located at 117 Bellamere
Palms Court, Tampa Florida 33549 in a reasonably safe condition and to protect invitees on the
premises it secures from harm due to reasonably foreseeable risks of injury.
84. Defendant, ANVAR K. KHOYI, breached his duty and was negligent in doing so among
other things:
(a) Negligently supervising Defendant, MARCELL DAREUS.
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.
(b) Negligently failing to warn Plaintiff of the dangerous conditions on the premises
likely to cause harm to her and other invitees.
(c) Creating a foreseeable and unreasonable risk of harm to the Plaintiff, as well as, to all
its invitees. Specifically as it relates to female invitees.
(d) Negligently failing to hire any/or an adequate number of security guards and or
female security guards to provide specific types of first aid for the female invitees, such
as Plaintiff.
(e) Negligently failing to hire male and female security/staff available for issues that are
associated with female issues i.e. seizures, drug overdoses and drunkenness of female
staff and invitees about their premises. Drugs, alcohol and unconsciousness in this
environment are foreseeable for invitees in a party environment.
(f) Negligently failing to have Standard Operating Procedures or Employee Handbooks

available for renter(s)/lease(s) hosting parties and events.
(h) As a direct result of the negligence of Defendant, ANVAR K. KHOYI, the Plaintiff,
JANE DOE suffered injuries, damages, and losses including, without limitation, past and
future physical injury, pain and suffering: past and future emotional and mental distress, pain,
and suffering; past and future losses of enjoyment of life coupled with but not limited to stress
disorder, severe anxiety, fear of repeat sexual violence, an unfounded sense of shame and
depression, all of which continue to require psychological counseling and related medical
treatment.
WHEREFORE, Plaintiffs respectively demands judgment against the Defendant, ANVAR K.

KHOYI for monetary damages in excess of $15,000, costs, and such other and further relief as
the Court may deem just and proper.

relief to which Plaintiff is entitled, against Defendant ANVAR K. KHOYI.
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Dated this 18th day of January, 2018.
Respectfully Submitted,
/s/ Joseph M. Williams_________

Joseph M. Williams, Esquire
Florida Bar No.: 0006459
WILLIAMS MOORE LAW FIRM
1409 W. Thonotosassa Rd.
Plant City, FL 33563
(813)719-6605 Telephone
(813)717-9808 Facsimile
Primary Email:jmwilliams@williamsmoorelaw.com
Secondary Email: csmith@williamsmoorelaw.com
Attorney for Plaintiff
Page | 12
Filing # 68816579 E-Filed 03/05/2018 04:57:01 PM

JANE DOE (“fictitious name”), an )

individual, )
)
) Civil Action File No. 17-CA-011075
Plaintiff,
)
vs.
)
)
MARCELL DAREUS, an individual;
)
DARA KHOYI, an individual; and )
ANVAR K. KHOYI, an individual, )
)
Defendants. )
___________________________________/
DEFENDANT MARCELL DAREUS’S

MOTION TO DISMISS FIRST AMENDED COMPLAINT
Defendant Marcell Dareus (“Mr. Dareus”), by and through counsel, moves this Court for
an order dismissing all counts against Mr. Dareus in Plaintiff’s First Amended Complaint (the
“Complaint”) filed on January 1, 2018 by Plaintiff Jane Doe (“Plaintiff”), and, in support thereof,
states as follows:
I. Introduction
1. As an initial matter, Mr. Dareus denies the baseless allegations set forth in the
Complaint. While the Court does not review the Complaint at this stage for its factual support,
there is none.
2. Plaintiff’s Complaint is replete with factual inconsistencies and incorrect
statements of law, and fails to allege facts necessary to satisfy the required elements of the three
claims brought against Mr. Dareus—false imprisonment, assault, and battery. Plaintiff avers that
she “blacked out” after consuming numerous alcoholic beverages. Based on this fact alone,
Plaintiff is unable to allege facts necessary to show the requisite knowledge and awareness to
3/5/2018 4:57 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
support her claims. Plaintiff’s pleading that largely consists of conclusory statements is
insufficient to state causes of action against Mr. Dareus and should be dismissed.
II. Statement of Facts
3. Plaintiff alleges that on January 7, 2017, after meeting Mr. Dareus at Club Aja
Channelside, she returned to the house leased by Don Malloy and occupied by Mr. Dareus.
(Complaint at ¶¶ 8, 11, 21-22, 24-25).
4. Plaintiff states that, after consuming multiple alcoholic beverages both at the club
and at the house, she remained in the kitchen of the leased premises with Mr. Dareus, “John,”
and a few others. (Id. at ¶¶ 14, 19, 29-30).
5. While in the kitchen, Plaintiff alleges that Mr. Dareus “grabbed her breast and
attempted to put his hands between her legs.” (Id. at ¶ 36).
6. Plaintiff further alleges that she subsequently “blacked out” but that “her last
recollection of events” is that she was guided down a hallway towards a bathroom and ultimately
to a bedroom by “John,” with Mr. Dareus following. (Id. at ¶¶ 37-38).
7. The next thing Plaintiff remembers is waking up in a bed with her clothes
disheveled. (Id. at ¶¶ 39-40).
8. Plaintiff alleges that she requested a ride from the “house manager” and that in
response to that request, she was then driven back to her hotel room by an unknown male. (Id. at
¶ 47).
9. The following day, Plaintiff returned to Los Angeles. 1 (Id. at ¶ 52).
1
In her “General Allegations,” Plaintiff states that on January 9, 2017, she took a flight back to
Los Angeles, California; however, in her jurisdictional allegations, Plaintiff states that she was a
resident at all times material to this claim of Las Vegas, Nevada. (See Complaint at ¶¶ 3, 52).
2
10. Plaintiff does not allege that she visited a doctor, despite insinuating that she was
drugged and taken advantage of while she was asleep. She admits that she did not tell anyone of
the alleged events until she filed her Complaint. (Id. at ¶ 54).
III. Argument
A. Standard of Review.
11. Pursuant to Florida law, “[t]he primary purpose of a motion to dismiss is to
request the trial court to determine whether the complaint properly states a cause of action upon
which relief can be granted and, if it does not, to enter an order of dismissal.” Universal
Underwriters Ins. Co. v. Body Parts of Am., Inc., 228 So.3d 175, 176 (Fla. 4th DCA 2017)
(quoting Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996)). “When
ruling on a motion to dismiss, the trial court is limited to the four corners of the complaint. . .”
Haslett v. Broward Health Imperial Point Medical Center, 197 So.3d 124, 127 (Fla. 4th DCA
2016).
12. “Under Florida procedural law, a complaint that simply strings together a series of
sentences and paragraphs containing legal conclusions and theories does not establish a claim for
relief.” Davis v. Bay Cnty. Jail, 155 So.3d 1173, 1177 (Fla. 1st DCA 2014) (relying on Rule
1.110, Fla. R. Civ. P.); see also Barrett v. City of Margate, 743 So. 2d 1160, 1162-63 (Fla. 4th
DCA 1999) (“It is insufficient to plead opinions, theories, legal conclusions or argument.”);
Maiden v. Carter, 234 So. 2d 168, 170 (Fla. 1st DCA 1970) (“It is a fundamental principle of
pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from
legal conclusions which, if proved, would establish a cause of action for which relief may be
granted.”).
B. Plaintiff improperly asserts that all of her claims are for negligence.
13. Plaintiff brings claims against Mr. Dareus for Count I “Negligence and Other
Acts: False Imprisonment,” Count II “Negligence- Assault,” and Count III “Negligence- Battery;”
however, such claims do not exist. (Complaint at pp. 6, 7, 8) (emphasis added). Stated plainly,
“there is no such thing as the ‘negligent’ commission of an ‘intentional’ tort.” Garcia v. Carnival
Corp., 838 F.Supp.2d 1334, 1337 (S.D. Fla. 2012) (relying on City of Miami v. Sanders, 672 So.
2d 46, 48 (Fla. 3d DCA 1996)) (emphasis added). “Florida courts recognize battery, assault, and
false imprisonment [the very claims at issue in this case] as intentional torts,” and “it is improper
to state a claim for negligence premised solely on the defendant’s alleged commission of an
intentional tort.” Id. (relying on Herzfeld v. Herzfeld, 781 So. 2d 1070, 1071 (Fla. 2001)). “To
hold otherwise…would eviscerate any distinction between tort liability premised on negligence
and tort liability premised on intentional tortious activity.” Id. Plaintiff disregards this
distinction, conflating negligence with intentional torts, and in the process, fails to plead either
properly. At best, Plaintiff has alleged negligence based solely on the alleged commission of
intentional torts, including false imprisonment, assault, and battery. In fact, the only mention of
“negligence” is in the headings of Plaintiff’s claims. Because one cannot state a claim for
negligence by alleging an intentional tort, Plaintiff’s claims must fail. Further, allegations of
negligence are insufficient to support claims for intentional torts, and Plaintiff’s claims must
similarly fail.
C. Plaintiff fails to state a claim for false imprisonment.
14. In order to state a claim for false imprisonment, Plaintiff must show four
elements: “(1) the plaintiff was detained by the defendant, (2) the detention was against her will;
(3) the detention was without legal authority; and (4) the detention was unreasonable and
unwarranted under the circumstances.” Henning v. Day, No. 6:15-cv-927-Orl-40DAB, 2016 WL
1068482, at *6 (M.D. Fla. March 18, 2016) (relying on Mathis v. Coats, 24 So.3d 1284, 1289-90
(Fla. 2d DCA 2010)). “To be restrained, a person must be aware of the restraint.” In re Standard
Jury Instructions in Civil Cases, § 407.4, 35 So. 3d 666, 741 (Fla. 2010) (emphasis added)
(relying on RESTATEMENT (2D) OF TORTS § 42 (“False imprisonment resembles battery
rather than assault, in that it is impossible for a confinement to occur without the plaintiff’s being
aware of it at the time. . . . Accordingly, no action for false imprisonment can be maintained in
such a case.”)). Moreover, “a plaintiff is not restrained when there is a reasonable means of
escape, which is apparent or known to the person.” Ali v. Margate School of Beauty, Inc., No.
11-60101-CIV, 2011 WL 4625372, at *5 (S.D. Fla. Oct. 3, 2011) (relying on In re Standard Jury
Instructions, 35 So.3d 666); see also Henning, 2016 WL 1068482 at *7.
15. Plaintiff cannot maintain a claim for false imprisonment because she has failed to
plead sufficient facts to show that she was in fact restrained. First, the facts, as alleged by
Plaintiff, show that she was not restrained in any way. But assuming arguendo that she was, the
facts, as alleged, show that Plaintiff was not aware of the restraint. Second, Plaintiff has failed to
allege that there was not a reasonable means of escape.
16. As to the first point, Plaintiff alleges that she was falsely imprisoned inside a
bedroom at the leased property. (Complaint at ¶ 60). She also contends that “her last recollection
of events before she ‘blacked out’ was being guided going down the hallway toward the
restroom, but it was occupied and she was redirected to the master bedroom by ‘John’ while
Marcell Dareus followed closely behind.” (Id. at ¶ 38). Plaintiff states that “the next thing she
remembers is waking up in a bed.” (Id. at ¶ 39). Plaintiff alleges that she then “ran frantically
from the room” and told the house manager that she needed to leave, at which point
transportation was arranged for Plaintiff to return to her hotel room. (Id. at ¶¶ 41-47).2 Thus,
Plaintiff last remembers walking down a hallway toward a bedroom. Her next memory is
awaking and leaving the premises. Plaintiff cannot maintain a claim for false imprisonment
based on these facts because Plaintiff was not and could not be aware of any alleged confinement
at the time she was supposedly restrained. Accordingly, Plaintiff has failed to allege an essential
element of a false imprisonment claim, and it should be dismissed.
17. Second, Plaintiff has not alleged that there was not a reasonable means of escape.
To the contrary, the facts alleged by Plaintiff show that after she awoke, she was able to leave
without any interference; in fact, the “house manager” assisted her egress, further confirming
that Plaintiff was never restrained. (See id. at ¶¶ 41-47). Though the facts show that Plaintiff was
not restrained and was not aware of any restraint (should such have occurred), her claim for false
imprisonment must otherwise fail because there was a reasonable means of escape, which she
took advantage of when the “house manager” assisted her in leaving the premises. Because
Plaintiff has not and cannot allege facts to show that she was aware of her alleged restraint or
that there was not a reasonable means of escape, she has not plead sufficient facts to show that
she was “restrained,” and her claim must fail.
D. Plaintiff fails to state a claim for assault.
18. Assault involves “the apprehension of immediate, harmful or offensive contact
with the plaintiff’s person, caused by acts intended to result in such contacts, or the apprehension
of them, directed at the plaintiff or a third person.” Doe v. Evans, 814 So. 2d 370, 379 (Fla.
2002). A critical element of an assault claim then is the apprehension of immediate harmful or
2
In her General Allegations, Plaintiff describes the conduct of the “house manager,” which in
Paragraph 44, she states she does not know by any other name. However, in Paragraph 8,
Plaintiff identifies the “house manager” as Don Malloy.
6
offensive contact, and it is this element that distinguishes an assault claim from that of battery.
“Assault and battery are separate and distinct legal concepts, assault being the beginning of an
act which, if consummated, constitutes battery.” Feliciano v. City of Miami Beach, No. 10-
23139-CV-Lenard/O’Sullivan, 2012 WL 13008799, at *9 (S.D. Fla. March 7, 2012) (applying
Florida law). Accordingly, to state a claim for assault, as opposed to battery, Plaintiff must plead
facts to show she had knowledge of an attempt to commit a battery upon her. Id.; see also
Ramirez v. Judd, No. 8:12-cv-02819-T-27EAJ, 2013 WL 1881308, at *6 (M.D. Fla. May 6,
2013) (relying on RESTATEMENT (2D) OF TORTS §26 cmt. A (1965) (“The gist of the
liability is the other’s knowledge that the actor is attempting to commit a battery upon him.”)).
19. Plaintiff has not and cannot plead sufficient facts to support the intentional tort of
assault. Rather, Plaintiff’s claim is but a recital of the elements of the cause of action (see
Complaint at ¶¶ 67-72), supported by mere conclusory statements, which is insufficient to
withstand a motion to dismiss. See Turnberry Village Tower Condominium Ass’n v. Turnberry
Village South Tower Condominium Ass’n, 224 So.3d 266, 267 (Fla. 3d DCA 2017) (affirming
dismissal where the “amended complaint contained a mechanical recitation of the elements of
the cause of action, and in particular, only conclusory allegations…”).
20. In her General Allegations, Plaintiff describes two interactions with Mr. Dareus—
the first being in the kitchen and the second in the bedroom. To the extent that either is intended
as the basis for Plaintiff’s assault claim, the claim must nonetheless fail because Plaintiff has not
alleged facts to support all of the elements of an assault claim in either alleged situation.
21. There are insufficient facts to support a claim for assault based on the alleged
incident in the kitchen because Plaintiff fails to allege that she was in apprehension of harm
before the actual alleged contact. “In order to fear the prospect of immediate contact, one must
be aware of the threat prior to the actual contact.” Ramirez, 2013 WL 1881308 at *6 (applying
Florida law) (emphasis added). Because Plaintiff has plead that she was grabbed in the kitchen
but has failed to plead facts to show that she feared some harm from some specific act preceding
the alleged physical contact, she has failed to state a claim for assault. See Feliciano, 2012 WL
13008799 at * 9 (finding insufficient evidence to support assault claim where there was no
evidence that before the defendant seized the plaintiff, she apprehended immediate harmful or
offensive contract on account of some particular act by the defendant).
22. Plaintiff cannot state a claim for assault based on any alleged contact in the
bedroom because she likewise cannot allege facts to show that she was in apprehension of harm
before such alleged contact. In fact, Plaintiff alleges that she blacked out—that the last thing she
remembers is walking down a hallway and that her next memory is waking up the next morning.
Because Plaintiff has no memory of the events that transpired in the bedroom, she cannot state
facts to show that she ever feared contact from Mr. Dareus, if any such contact occurred. See
Winters v. Ranum, No. 6:15-cv-1780-Orl-31DCI, 2017 WL 2402463, at * 3 (M.D. Fla. June 2,
2017) (applying Florida law) (holding that plaintiff could not maintain assault claim where he
had no memory of the events); Wynn v. City of Oakland, 727 F.Supp.2d 1309, 1315 (M.D. Fla.
had no recollection of the events of that night). Therefore, Plaintiff cannot plead facts to show an
essential element of an assault claim, and it should be dismissed with prejudice.
E. Plaintiff fails to state a claim for battery.
23. Under Florida law, “a battery consists of the infliction of a harmful or offensive
contact upon another.” Sullivan v. Atlantic Fed. Sav. & Loan Ass’n., 454 So. 2d 52, 54 (Fla. 4th
DCA 1984). Furthermore, “the defendant must have done some positive and affirmative
act…which must cause, and must be intended to cause an unpermitted contact. Mere negligence,
or even recklessness which only creates a risk that the contact will result, may afford a distinct
cause of action in itself, but under modern usage of the term is not enough for battery.” Id. at 54-
55 (quoting W. Prosser, LAW OF TORTS, § 9, at 35-36 (4th ed. 1971)).
24. Plaintiff’s claim must fail because, first, like her assault claim, Plaintiff’s
Complaint consists of nothing more than a recital of the elements of a battery claim, which is
insufficient to satisfy Florida’s fact-pleading standard under Fla. R. Civ. Pro. 1.110. See
Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th DCA 2003); Turnberry, 224 So.3d at 267.
25. Second, Plaintiff’s battery claim must fail because her claim rests on supposition
but is devoid of sufficient facts to show the necessary elements of a claim for battery. Plaintiff
states that she blacked out. (Complaint at ¶ 38). Accordingly, she has no recollection of the
alleged battery, much less the identity of the person who allegedly battered her, if she was indeed
battered. 3 Plaintiff has not and cannot plead facts to show that Mr. Dareus committed some
positive act that caused an unpermitted contact. Therefore, Plaintiff’s battery claim should be
dismissed with prejudice.
IV. Conclusion
26. For all of the foregoing reasons, Mr. Dareus respectfully requests that this Court
dismiss the First Amended Complaint as to Mr. Dareus with prejudice, and grant Defendant
Dareus such other and further relief to which he may be entitled.
This 5th day of March, 2018.
3
Plaintiff also alleges an incident in the kitchen, but Plaintiff’s allegations are so vague that it is
unclear whether Plaintiff is claiming that alleged act was a battery. In either event, Plaintiff’s
claim amounts to nothing more than a recital of the elements of a battery claim, which is
9
Respectfully submitted,
/s/Bradford D. Kimbro
BRADFORD D. KIMBRO
Florida Bar No. 908002
KENDYL B. TASH
HOLLAND & KNIGHT LLP
P.O. Box 1288
Tampa, Florida 33601-1288
T: 813.227.8500
F: 813.229.0134
brad.kimbro@hklaw.com
kendyl.tash@hklaw.com
Secondary: gloria.mcknight@hklaw.com
STEPHEN WEIZENECKER
Georgia Bar No. 746451
(pro hac vice pending)
BARNES & THORNBURG
3475 Piedmont Road NE, #1700
Atlanta, Georgia 30305
T: 404.846.1693
F: 404.264.4033
sweizenecker@btlaw.com
Counsel for Defendant Marcell Dareus
10
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused a copy of the foregoing to be served via
electronic service and by first class United States mail, postage prepaid, this 5th day of March,
2018, upon the following:
Joseph M. Williams, Esq.

1409 W. Thonotosassa Road
Plant City, Florida 33563
jmwilliams@williamsmoorelaw.com
Secondary: csmith@williamsmoorelaw.com
Natasha Khoyi, Esq.

BOOTH & COOK, P.A.
7510 Ridge Road
Port Richey, Florida 34668
Natasha@BoothCook.com
Attorney for Defendants Dara and Anvar Khoyi
Bradford D. Kimbro
11
Filing # 70676602 E-Filed 04/13/2018 11:31:27 AM
Filing # 71093495 E-Filed 04/23/2018 02:25:45 PM

JANE DOE (“fictitious name”), an )

individual, )
)
) Civil Action File No. 17-CA-011075
Plaintiff,
)
vs.
)
)
MARCELL DAREUS, an individual,
)
)
Defendant. )
)
)
DEFENDANT MARCELL DAREUS’S

MOTION TO DISMISS SECOND AMENDED COMPLAINT
Defendant Marcell Dareus (“Mr. Dareus”), by and through counsel, moves this Court for
an order dismissing all counts against Mr. Dareus in Plaintiff’s Second Amended Complaint (the
“Complaint”) filed on April 13, 2018 by Plaintiff Jane Doe (“Plaintiff”), and, in support thereof,
states as follows:
I. Introduction
1. As an initial matter, Mr. Dareus denies the baseless allegations set forth in the
Complaint. While the Court does not review the Complaint at this stage for its factual support,
there is none.
2. Plaintiff’s Complaint is replete with typographical errors, factual inconsistencies
and incorrect statements of law, and fails to allege facts necessary to satisfy the required
elements of the two claims brought against Mr. Dareus—assault and battery. Plaintiff’s pleading
that largely consists of conclusory statements is insufficient to state causes of action against Mr.
Dareus and should be dismissed.
II. Procedural History
3. Plaintiff filed her original Complaint on December 12, 2017. She then filed her
First Amended Complaint on January 18, 2018.
4. Mr. Dareus filed his Motion to Dismiss First Amended Complaint on March 5,
2018, and this Court held a hearing on said Motion on April 3, 2018.1
5. After hearing oral argument on Mr. Dareus’ Motion, this Court entered its Order
Granting Defendant Marcell Dareus’s Motion to Dismiss First Amended Complaint, in which the
Court not only dismissed Plaintiff’s claims, but instructed Plaintiff to file her Second Amended
Complaint by April 25, 2018.
6. Plaintiff filed her Second Amended Complaint on April 13, 2018, which
constitutes her third attempt to state a claim against Mr. Dareus. In her amended pleading,
Plaintiff brings claims of assault and battery, but pleads no additional or different facts than in
her two previously filed complaints. She has, however, abandoned her previously alleged claims
against Mr. Dareus for false imprisonment and negligence.
Statement of Facts
7. Plaintiff alleges that on January 7, 2017, after meeting Mr. Dareus at Club Aja
Channelside, she returned to the house leased by Don Malloy and occupied by Mr. Dareus.
(Complaint at ¶¶ 8, 11, 21-22, 24-25).
8. Plaintiff states that, after consuming multiple alcoholic beverages both at the club
and at the house, she remained in the kitchen of the leased premises with Mr. Dareus, “John,”
and a few others. (Id. at ¶¶ 14, 19, 29-30).
1
On March 8, 2018, Plaintiff voluntarily dismissed her claims against Dara and Anvar Khoyi,
with prejudice, which was so ordered by this Court on March 13, 2018.
2
9. While in the kitchen, Plaintiff alleges that Mr. Dareus “grabbed her breast and
attempted to put his hands between her legs.” (Id. at ¶ 36).
10. Plaintiff further alleges that she subsequently “blacked out” but that “her last
recollection of events” is that she was guided down a hallway towards a bathroom and ultimately
to a bedroom by “John,” with Mr. Dareus following. (Id. at ¶ 37).
11. The next thing Plaintiff remembers is waking up in a bed with her clothes
disheveled. (Id. at ¶¶ 38-39).
12. Plaintiff alleges that she requested a ride from the “house manager” and that in
response to that request, she was then driven back to her hotel room by an unknown male. (Id. at
¶ 46).
13. The following day, Plaintiff returned to Los Angeles. 2 (Id. at ¶ 51).
14. Plaintiff does not allege that she visited a doctor, despite insinuating that she was
drugged and taken advantage of while she was asleep. She admits that she did not tell anyone of
the alleged events until she filed her Complaint. (Id. at ¶ 53).
III. Argument
A. Standard of Review.
15. Pursuant to Florida law, “[t]he primary purpose of a motion to dismiss is to
request the trial court to determine whether the complaint properly states a cause of action upon
which relief can be granted and, if it does not, to enter an order of dismissal.” Universal
Underwriters Ins. Co. v. Body Parts of Am., Inc., 228 So.3d 175, 176 (Fla. 4th DCA 2017)
(quoting Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996)). “When
2
In her “General Allegations,” Plaintiff states that on January 9, 2017, she took a flight back to
Los Angeles, California; however, in her jurisdictional allegations, Plaintiff states that she was a
resident at all times material to this claim of Las Vegas, Nevada. (See Complaint at ¶¶ 3, 51).
3
ruling on a motion to dismiss, the trial court is limited to the four corners of the complaint. . .”
Haslett v. Broward Health Imperial Point Medical Center, 197 So.3d 124, 127 (Fla. 4th DCA
2016).
16. “Under Florida procedural law, a complaint that simply strings together a series of
sentences and paragraphs containing legal conclusions and theories does not establish a claim for
relief.” Davis v. Bay Cnty. Jail, 155 So.3d 1173, 1177 (Fla. 1st DCA 2014) (relying on Rule
1.110, Fla. R. Civ. P.); see also Barrett v. City of Margate, 743 So. 2d 1160, 1162-63 (Fla. 4th
DCA 1999) (“It is insufficient to plead opinions, theories, legal conclusions or argument.”);
Maiden v. Carter, 234 So. 2d 168, 170 (Fla. 1st DCA 1970) (“It is a fundamental principle of
pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from
legal conclusions which, if proved, would establish a cause of action for which relief may be
granted.”).
17. Thus, Plaintiff’s Second Amended Complaint constitutes an impermissible
shotgun pleading in which all allegations from each count are re-alleged and incorporated into
each subsequent count. This type of pleading is improper because it is confusing and cumulative.
Dimieri v. Medicis Pharm. Corp., No. 2:14-CV-176-FTM-38, 2014 WL 6673156, at *2 (M.D.
Fla. Nov. 24, 2014) (“Shotgun pleadings are those that incorporate every antecedent allegation
by reference into each subsequent claim for relief or affirmative defense. . . Unless corrected, a
shotgun complaint leads to a shotgun answer. Additionally, such pleadings divert already
stretched judicial resources into disputes that are not structurally prepared to use those resources
efficiently.”) (citations omitted); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165
(11th Cir. 1997) (shotgun pleadings “impede the orderly, efficient, and economic disposition of
disputes”).
B. Plaintiff fails to state a claim for assault.
18. Assault involves “the apprehension of immediate, harmful or offensive contact
with the plaintiff’s person, caused by acts intended to result in such contacts, or the apprehension
of them, directed at the plaintiff or a third person.” Doe v. Evans, 814 So. 2d 370, 379 (Fla.
2002). A critical element of an assault claim then is the apprehension of immediate harmful or
offensive contact, and it is this element that distinguishes an assault claim from that of battery.
“Assault and battery are separate and distinct legal concepts, assault being the beginning of an
act which, if consummated, constitutes battery.” Feliciano v. City of Miami Beach, No. 10-
23139-CV-Lenard/O’Sullivan, 2012 WL 13008799, at *9 (S.D. Fla. March 7, 2012) (applying
Florida law). Accordingly, to state a claim for assault, as opposed to battery, Plaintiff must plead
facts to show she had knowledge of an attempt to commit a battery upon her. Id.; see also
Ramirez v. Judd, No. 8:12-cv-02819-T-27EAJ, 2013 WL 1881308, at *6 (M.D. Fla. May 6,
2013) (relying on RESTATEMENT (2D) OF TORTS §26 cmt. A (1965) (“The gist of the
liability is the other’s knowledge that the actor is attempting to commit a battery upon him.”)).
19. Plaintiff has not and cannot plead sufficient facts to support the intentional tort of
assault. Rather, Plaintiff’s claim is but a recital of the elements of the cause of action (see
Complaint at ¶¶ 67-72), supported by mere conclusory statements, which is insufficient to
withstand a motion to dismiss. See Turnberry Village Tower Condominium Ass’n v. Turnberry
Village South Tower Condominium Ass’n, 224 So.3d 266, 267 (Fla. 3d DCA 2017) (affirming
dismissal where the “amended complaint contained a mechanical recitation of the elements of
the cause of action, and in particular, only conclusory allegations…”).
20. In her General Allegations, Plaintiff describes two interactions with Mr. Dareus—
the first being in the kitchen and the second in the bedroom. To the extent that either is intended
as the basis for Plaintiff’s assault claim, the claim must nonetheless fail because Plaintiff has not
alleged facts to support all of the elements of an assault claim in either alleged situation.
21. There are insufficient facts to support a claim for assault based on the alleged
incident in the kitchen because Plaintiff fails to allege that she was in apprehension of harm
before the actual alleged contact. “In order to fear the prospect of immediate contact, one must
be aware of the threat prior to the actual contact.” Ramirez, 2013 WL 1881308 at *6 (applying
Florida law) (emphasis added). Because Plaintiff has plead that she was grabbed in the kitchen
but has failed to plead facts to show that she feared some harm from some specific act preceding
the alleged physical contact, she has failed to state a claim for assault. See Feliciano, 2012 WL
13008799 at * 9 (finding insufficient evidence to support assault claim where there was no
evidence that before the defendant seized the plaintiff, she apprehended immediate harmful or
offensive contact on account of some particular act by the defendant).
22. Plaintiff cannot state a claim for assault based on any alleged contact in the
bedroom because she likewise cannot allege facts to show that she was in apprehension of harm
before such alleged contact. In fact, Plaintiff alleges that she blacked out—that the last thing she
remembers is walking down a hallway and that her next memory is waking up the next morning.
Because Plaintiff has no memory of the events that transpired in the bedroom, she cannot state
facts to show that she ever feared contact from Mr. Dareus, if any such contact occurred. See
Winters v. Ranum, No. 6:15-cv-1780-Orl-31DCI, 2017 WL 2402463, at * 3 (M.D. Fla. June 2,
had no memory of the events); Wynn v. City of Oakland, 727 F.Supp.2d 1309, 1315 (M.D. Fla.
had no recollection of the events of that night). Therefore, Plaintiff cannot plead facts to show an
essential element of an assault claim, and it should be dismissed with prejudice.
E. Plaintiff fails to state a claim for battery.
23. Under Florida law, “a battery consists of the infliction of a harmful or offensive
contact upon another.” Sullivan v. Atlantic Fed. Sav. & Loan Ass’n., 454 So. 2d 52, 54 (Fla. 4th
DCA 1984). Furthermore, “the defendant must have done some positive and affirmative
act…which must cause, and must be intended to cause an unpermitted contact. Mere negligence,
or even recklessness which only creates a risk that the contact will result, may afford a distinct
cause of action in itself, but under modern usage of the term is not enough for battery.” Id. at 54-
55 (quoting W. Prosser, LAW OF TORTS, § 9, at 35-36 (4th ed. 1971)).
24. Plaintiff’s claim must fail because, first, like her assault claim, Plaintiff’s
Complaint consists of nothing more than a recital of the elements of a battery claim, which is
25. Second, Plaintiff’s battery claim must fail because her claim rests on supposition
but is devoid of sufficient facts to show the necessary elements of a claim for battery. Plaintiff
states that she blacked out. (Complaint at ¶ 38). Accordingly, she has no recollection of the
alleged battery, much less the identity of the person who allegedly battered her, if she was indeed
battered.3 Despite three (3) opportunities to plead her claims, Plaintiff has not and cannot plead
3
Plaintiff also alleges an incident in the kitchen, but Plaintiff’s allegations are so vague that it is
unclear whether Plaintiff is claiming that alleged act was a battery. In either event, Plaintiff’s
claim amounts to nothing more than a recital of the elements of a battery claim, which is
7
facts to show that Mr. Dareus committed some positive act that caused an unpermitted contact.
Therefore, Plaintiff’s battery claim should be dismissed with prejudice.
IV. Conclusion
26. Mr. Dareus respectfully requests that the Court enter an Order dismissing this
action with prejudice, as any future amendment would be futile. See Rivers v. Hertz Corp., 121
So.3d 1078, 1081 (Fla. 3d DCA 2013) (“Denial of a request to amend an amended complaint is
not error when the complaint will not state a cause of action even if it includes the proffered
amendment.”) (citation omitted).
27. Dismissal with prejudice is further appropriate, because Plaintiff has been given
ample opportunity to state a cognizable claim, but as evidenced by her Second Amended
Complaint, she is unable to do so. Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440, 443
(Fla. 5th DCA 2006) (“Amendment should be allowed until the privilege to do so has been
abused or the opposing party is prejudiced or the amendment is futile. Generally three ineffective
attempts to state the same cause of action are enough.”) (citation omitted); Burgess v. N.
Broward Hosp. Dist., 126 So.3d 430, 436 (Fla. 4th DCA 2013) (same).
Dated this 23rd day of April, 2018.
Respectfully submitted,
BRADFORD D. KIMBRO
KENDYL B. TASH
HOLLAND & KNIGHT LLP
P.O. Box 1288
Tampa, Florida 33601-1288
T: 813.227.8500
F: 813.229.0134
brad.kimbro@hklaw.com
kendyl.tash@hklaw.com
Secondary: gloria.mcknight@hklaw.com
STEPHEN WEIZENECKER
Georgia Bar No. 746451
(pro hac vice pending)
BARNES & THORNBURG
3475 Piedmont Road NE, #1700
Atlanta, Georgia 30305
T: 404.846.1693
F: 404.264.4033
sweizenecker@btlaw.com
Counsel for Defendant Marcell Dareus
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused a copy of the foregoing to be served via
electronic service and by first class United States mail, postage prepaid, this 23rd day of April,
2018, upon the following:
Joseph M. Williams, Esq.

1409 W. Thonotosassa Road
Plant City, Florida 33563
jmwilliams@williamsmoorelaw.com
Secondary: csmith@williamsmoorelaw.com
Bradford D. Kimbro
10

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Filing # 66690827 E-Filed 01/18/2018 10:53:00 AM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

JANE DOE (“fictitious name”), an individual

MARCELL DAREUS, an individual

FIRST AMENDED COMPLAINT

JURISDICITON, PARTIES AND VENUE

7. Defendant, DARA KHOYI is designated by the Defendants, DARA KHOYI and

8. At all times material, Defendant, MARCELL DAREUS, a National Football League

WHEREFORE, Plaintiff respectively demands judgment against the Defendant,

WHEREFORE, Plaintiffs respectively demands judgment against the Defendant,

DEMAND FOR JURY TRIAL

79. Plaintiff, JANE DOE, reiterates and realleges paragraphs_1__through_78__herein and

(a) Negligently supervising Defendant, MARCELL DAREUS

WHEREFORE, Plaintiffs respectively demands judgment against the Defendant, DARA

WHEREFORE, Plaintiff demands judgment for damages including but not

DEMAND FOR JURY TRIAL

82. Plaintiff, JANE DOE, reiterates and realleges paragraphs_1__through_81__herein and

(a) Negligently supervising Defendant, MARCELL DAREUS.

(f) Negligently failing to have Standard Operating Procedures or Employee Handbooks

WHEREFORE, Plaintiffs respectively demands judgment against the Defendant, ANVAR K.

WHEREFORE, Plaintiff demands judgment for damages including but not

Plaintiff respectfully demands a trial by jury as to all matters so triable.

Dated this 18th day of January, 2018.

/s/ Joseph M. Williams_________

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

JANE DOE (“fictitious name”), an )

DEFENDANT MARCELL DAREUS’S

2. Plaintiff’s Complaint is replete with factual inconsistencies and incorrect

II. Statement of Facts

(Complaint at ¶¶ 8, 11, 21-22, 24-25).

and a few others. (Id. at ¶¶ 14, 19, 29-30).

attempted to put his hands between her legs.” (Id. at ¶ 36).

to a bedroom by “John,” with Mr. Dareus following. (Id. at ¶¶ 37-38).

disheveled. (Id. at ¶¶ 39-40).

9. The following day, Plaintiff returned to Los Angeles. 1 (Id. at ¶ 52).

11. Pursuant to Florida law, “[t]he primary purpose of a motion to dismiss is to

C. Plaintiff fails to state a claim for false imprisonment.

(relying on RESTATEMENT (2D) OF TORTS § 42 (“False imprisonment resembles battery

Instructions, 35 So.3d 666); see also Henning, 2016 WL 1068482 at *7.

allege that there was not a reasonable means of escape.

element of a false imprisonment claim, and it should be dismissed.

she was “restrained,” and her claim must fail.

D. Plaintiff fails to state a claim for assault.

18. Assault involves “the apprehension of immediate, harmful or offensive contact

23139-CV-Lenard/O’Sullivan, 2012 WL 13008799, at *9 (S.D. Fla. March 7, 2012) (applying

Ramirez v. Judd, No. 8:12-cv-02819-T-27EAJ, 2013 WL 1881308, at *6 (M.D. Fla. May 6,

Complaint at ¶¶ 67-72), supported by mere conclusory statements, which is insufficient to

the cause of action, and in particular, only conclusory allegations…”).

offensive contract on account of some particular act by the defendant).

Winters v. Ranum, No. 6:15-cv-1780-Orl-31DCI, 2017 WL 2402463, at * 3 (M.D. Fla. June 2,

essential element of an assault claim, and it should be dismissed with prejudice.

E. Plaintiff fails to state a claim for battery.

55 (quoting W. Prosser, LAW OF TORTS, § 9, at 35-36 (4th ed. 1971)).

dismissed with prejudice.

Dareus such other and further relief to which he may be entitled.

This 5th day of March, 2018.

Counsel for Defendant Marcell Dareus

2018, upon the following:

Joseph M. Williams, Esq.

Attorney for Plaintiff

Natasha Khoyi, Esq.

Attorney for Defendants Dara and Anvar Khoyi

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

JANE DOE (“fictitious name”), an )