Estate of Devins v. Oneida County

DECISION and ORDER Currently before the Court, in this civil action filed by the Estate of Bianca Devins (“Plaintiff”) against Oneida County, Oneida County District Attorney’s Office, District Attorney Scott D. McNamara and John Does 1-20 (collectively, “Defendants”), is Defendants’ motion to dismiss Plaintiff’s Complaint for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and/or failure to state a claim pursuant to Fed R. Civ. P. 12(b)(6). (Dkt. No. 18.)¹ For the reasons set forth below, Defendants’ motion is granted, and Plaintiff’s claims are dismissed without prejudice. I. RELEVANT BACKGROUND A. Plaintiff’s Complaint Generally, in its Complaint, Plaintiff asserts four claims arising from its allegations that Defendants gave to the media and public “sex and murder videos” and “nude images” of Bianca Devins (“Devins” or “Decedent”) following her murder by Brandon Clark on July 14, 2019: (1) a claim against all Defendants for knowingly distributing materials containing child pornography under 18 U.S.C. §2252A; (2) a claim against all Defendants for personal injuries under 18 U.S.C. §2255; (3) a claim against all Defendants for negligence under New York State law; and (4) a claim against Defendant Oneida County for negligent supervision under New York State law. (Dkt. No. 1 [Plf.'s Compl.].) B. Summary of Parties’ Briefing on Defendants’ Motion to Dismiss 1. Defendants’ Memorandum of Law Generally, in their motion to dismiss, Defendants assert twelve arguments. (Dkt. No. 18, Attach. 1, at 12-39 [Defs.' Memo. of Law].)² First, Defendants argue that the Court must dismiss Plaintiff’s third and fourth claims (i.e., for negligence and negligent supervision under state law) for lack of subject-matter jurisdiction because, before filing those claims (which are all asserted against municipal Defendants), Plaintiff failed to comply with two conditions precedent to commencing an action against a municipality under both N.Y. Gen. Mun. Law §50-e-i-h and N.Y. County Law §52: (1) the requirement that Plaintiff serve its notice of claim at least 30 days before the commencement of the action; and (2) the requirement that Plaintiff allow a timely noticed examination before trial, pursuant to N.Y. Gen. Mun. Law §50-h. (Id. at 12-16.) Second, Defendants argue that, to the extent that they are asserted against Defendant Oneida County District Attorney’s Office, the Court must dismiss Plaintiff’s first claim (for distributing child pornography under 18 U.S.C. §2252A), second claim (for personal injuries under 18 U.S.C. §2255), and third claim (for negligence under state law) for the following two reasons: (1) Plaintiff already named Oneida County as a defendant (rendering Plaintiff’s claims against Defendant Oneida County District Attorney’s Office redundant of Plaintiff’s claims against Defendant Oneida County); and (2) in any event, the District Attorney’s Office is an administrative arm of Oneida County under New York State law, and therefore is not a proper defendant in this action. (Id. at 16-17.) Third, Defendants argue that, to the extent that Plaintiff asserts its first, second, and third claims against Defendants McNamara and John Does 1-20 in their official capacities, the Court must dismiss those claims because “official capacity claims are duplicative of claims of municipal liability….” (Id. at 17-18.) Fourth, Defendants argue that, to the extent that Plaintiff asserts its first, second, and third claims against Defendant McNamara in his individual capacity, the Court must dismiss those claims because they are not supported by factual allegations plausibly suggesting that McNamara was personally involved in the alleged dissemination of materials that Plaintiff claims contain child pornography. (Id. at 18-19.) Fifth, Defendants argue that the Court must dismiss Plaintiff’s first claim (for distributing child pornography under 18 U.S.C. §2252A) and second claim (for personal injuries under 18 U.S.C. §2255), because Plaintiff lacks Article III standing to bring those claims. (Id. at 19-21.) More specifically, Defendants argue that these claims did not accrue during the decedent’s lifetime, which ended on July 14, 2019, but rather accrued when Plaintiff learned of them on or about June 28-29, 2021. (Id.) Sixth, Defendants argue that the Court must dismiss Plaintiff’s first and second claims because, even setting aside the previously mentioned deficiency, Plaintiff fails to allege facts plausibly suggesting the three elements of Article III standing. (Id. at 21-23.) Seventh, Defendants argue that, to the extent Plaintiff asserts its first and second claims against Defendant Oneida County, the Court must dismiss those claims because the plain language of 18 U.S.C. §§2252(A) and 2255 (which limits the statutes’ application to “persons”) establish that the statutes do not apply to municipalities. (Id. at 23-24.) Eighth, Defendants argue that, to the extent Plaintiff asserts its first and second claims against Defendant Oneida County, the Court must dismiss those claims because Defendant Oneida County cannot be liable for disclosing the alleged pornographic material merely by complying with the New York State Freedom of Information Law (“FOIL”), codified at N.Y. Pub. Off. L. §§84-90, which permits disclosure of the material even in the absence of a valid FOIL exemption. (Id. at 25-31.)³ Ninth, Defendants argue that the Court must dismiss any claims against Defendant Oneida County that are premised on a theory of vicarious liability because it cannot be held liable under the principle of respondeat superior. (Id. at 32.) Tenth, Defendant argues that the Court must dismiss any claims asserted against Defendant Oneida County because the factual allegations in Plaintiff’s Complaint show that it is entitled to qualified immunity as a matter of law for three reasons: (1) Plaintiff’s Complaint fails to allege facts plausibly suggesting a violation of either 18 U.S.C. §§2255A or 2255; (2) even if Plaintiff’s Complaint contains factual allegations plausibly suggesting a violation of either 18 U.S.C. §§2252A or 2255, any violation of Plaintiff’s constitutional rights was not clearly established at the time of the alleged violation; and (3) even if a violation of Plaintiff’s constitutional rights was clearly established, it was objectively reasonable for Defendant Oneida County to believe that disclosing the contents of the relevant criminal investigation file — including the materials allegedly constituting child pornography — was lawful. (Id. at 32-37.) Eleventh, Defendants argue that the Court must dismiss Plaintiff’s second claim (for personal injuries under 18 U.S.C. §2255) because (1) Defendants did not violate 18 U.S.C. §2252A, and (2) in any event, any such violation of 18 U.S.C. §2252A did not cause personal injuries to the alleged victim (i.e., Bianca Devins), who was deceased at the time of dissemination. (Id. at 37-38.) Twelfth, Defendants argue that, to the extent any of Plaintiff’s claims seek an award of punitive damages against Defendant Oneida County or any of its Defendant-employees in their official capacities, the Court must dismiss those claims, because “[m]unicipalities and municipal employees sued in their official capacity are immune from punitive damages.” (Id. at 39) (internal citation omitted). 2. Plaintiff’s Opposition Memorandum of Law Generally, in its opposition memorandum of law, Plaintiff asserts twelve arguments. (Dkt. No. 27, at 10-30 [Plf.'s Opp'n Memo. of Law].) First, Plaintiff argues that the Court must not dismiss its federal claims, because the language of both 18 U.S.C. §§2252A and 2255 does not immunize municipalities from liability after disseminating child pornography. (Id. at 10-13.) Second, Plaintiff argues that the Court must not dismiss its federal claims on the ground of lack of standing because, contrary to Defendants’ argument, Plaintiff does have standing to bring its claims under 18 U.S.C. §§2252A and 2255. (Id. at 13-18.) More specifically, Plaintiff argues that it has standing to pursue its claims under 18 U.S.C. §§2252A and 2255 for three reasons: (1) Plaintiff’s injuries began accruing during the decedent’s lifetime; (2) Plaintiff’s injuries began accruing at the time the alleged illegal material was captured; and (3) Plaintiff has alleged facts plausibly suggesting that it has Article III standing. (Id.) Third, Plaintiff argues that the Court must not dismiss its federal claims, because Defendant Oneida County’s violation of 18 U.S.C. §2252A caused injuries that satisfy the requirements of alleging a violation of 18 U.S.C. §2255. (Id. at 18-19.) Fourth, Plaintiff argues that the Court must not dismiss its federal claims, because Defendants’ obligation to not violate federal law supersedes any duty to comply with New York State’s FOIL. (Id. at 19-23.) Additionally, Plaintiff argues that Defendants’ reliance on New York State’s FOIL is misplaced because Defendants admitted to disclosing the pornographic material to third parties without ever receiving a FOIL request from those parties. (Id. at 20-23.) Fifth, Plaintiff argues that the Court must not dismiss its state law claims based on a lack of subject-matter jurisdiction, because Defendants had actual knowledge of the specific facts giving rise to the state law claims for more than 30 days before Plaintiff filed this action. (Id. at 23-25.) Plaintiff argues that, as a result, the Court must adopt the same analysis that is used in special proceedings to serve an untimely notice of claim under New York State law. (Id.) Sixth, Plaintiff argues that the Court must not dismiss any of its claims against Defendant Oneida County, because Oneida County can be held liable under the theory of respondeat superior. (Id. at 25-26.) More specifically, Plaintiff argues that, although municipalities “cannot be held liable for negligence in the performance of a governmental function,” there is an exception to this rule when a “special relationship” exists. (Id. at 25.) Plaintiff argues that, in this case, respondeat superior is a sufficient theory of liability, because a “special relationship” existed between the employees of Defendant Oneida County (namely, two Assistant District Attorneys) and Kimberly Devins, the administrator for the Estate of Bianca Devins. (Id. at 25-26.) Seventh, Plaintiff argues that Defendant Oneida County is not entitled to qualified immunity. (Id. at 27-28.) Eighth, Plaintiff argues that the Court must not dismiss any claims against Defendant McNamara, because the Complaint alleges facts plausibly suggesting his personal involvement in the conduct giving rise to this action. (Id. at 28-29.) Ninth, Plaintiff consents to discontinue its claims against Defendant Oneida County District Attorney’s Office, because of Defendants’ representation that Defendant Oneida County District Attorney’s Office is an administrative arm of Defendant Oneida County and not an independent entity. (Dkt. No. 27, at 29 [Plf.'s Opp'n Memo. of Law].) However, Plaintiff conditions this discontinuance on an agreement that, in the event evidence suggests otherwise, it may continue to pursue claims against Defendant Oneida County District Attorney’s Office. (Id.) Tenth, Plaintiff argues that the Court must exercise its discretion in determining whether to award punitive damages. (Id. at 29.) Additionally, Plaintiff argues that Defendants have failed to provide the Court with any case law in support of the argument that punitive damages should not be awarded against Defendant Oneida County. (Id.) Finally, Plaintiff argues that the only cases Defendants cite arise under 42 U.S.C. §1983, and not the federal statutes at issue in this action. (Id.) Eleventh, Plaintiff argues that the Court must not dismiss its claims, because the interests of justice demand that Defendants be held liable for distributing child pornography. (Id. at 29-30.) Twelfth, Plaintiff argues that, if the Court is inclined to grant Defendants’ motion to dismiss, it should grant Plaintiff leave to amend its Complaint. (Id. at 6, 25, 30.) 3. Defendants’ Reply Memorandum of Law Generally, in their reply memorandum of law, Defendants assert thirteen arguments. (Dkt. No. 34, at 8-24 [Defs.' Reply Memo. of Law].) First, Defendants argue that the Court must dismiss Plaintiff’s third and fourth claims (i.e., for negligence and negligent supervision under state law) for lack of subject-matter jurisdiction, because, in its opposition memorandum of law, Plaintiff improperly requests that the Court ignore well-established case law and instead apply a framework that is traditionally reserved for petitions to file a late notice of claim under N.Y. Gen. Mun. Law §50-e(5). (Id. at 8-9.) Second, Defendants argue that the Court must dismiss Plaintiff’s first and second claims for lack of Article III standing, because Plaintiff’s argument (i.e., that these claims against Defendant Oneida County are actionable in that the materials allegedly constituting child pornography were created by the perpetrator) is inapplicable to this case because Defendant Oneida County “could not have possibly come into possession of these materials until after the murder was committed, and could not have ‘disseminated’ the alleged ‘child pornography’ until after the decedent [had] passed.” (Id. at 9-11.) Third, Defendants argue that the Court must dismiss Plaintiff’s first and second claims for lack of Article III standing because, even setting aside the previously mentioned defect, Plaintiff cannot satisfy the “case or controversy” requirement due to the fact that “the dead lack the capacities that litigants must have to allow for a true Article III case or controversy.” (Id. at 11) (citation omitted). Fourth, Defendants argue that the Court must dismiss all claims against Defendant Oneida County District Attorney’s Office with prejudice, because Plaintiff has conceded that it is an improper party. (Id. at 12.) Fifth, Defendants argue that the Court must dismiss all claims against Defendants McNamara and John Does 1-20 in their official capacities because, in addition to the fact that “an official-capacity suit against a municipal official is, in all respects other than name, to be treated as a suit against the [governmental] entity,” Plaintiff did not address this argument in its opposition and therefore conceded it. (Dkt. No. 34, at 12-13 [Defs.' Reply Memo. of Law]) (internal quotations and citations omitted). Sixth, Defendants argue that the Court must dismiss all claims against Defendant McNamara in his individual capacity, because Plaintiff’s allegations concerning McNamara pertain to actions taken while in his official capacity as District Attorney for Oneida County. (Id. at 13-15.) Seventh, Defendants argue that the Court must dismiss Plaintiff’s first and second claims, because the reference to “any person” in 18 U.S.C. §§2252(A) and 2255 indicates that Congress did not intend for the statutes to apply to defendants that are not “persons.” (Id. at 15.) Defendants argue that, had Congress intended for the statutes to apply to non-persons, it would have so indicated. (Id.) Moreover, Defendants argue that, although the definition of a “person” includes counties and municipalities in the context of an action brought under 42 U.S.C. §1983, this definition is inapplicable to this action based on the claims Plaintiff asserts. (Id. at 15-18.) Eighth, Defendants argue that the Court must dismiss Plaintiff’s first and second claims, because Defendant Oneida County was required to comply with New York State’s FOIL, which obligated it to disclose the underlying criminal file. (Id. at 18-19.) More specifically, Defendants argue that the case law cited by Plaintiff, Mulgrew v. Bd. of Educ. of City Sch. Dis. of New York, 919 N.Y.S.2d 786 (N.Y. Sup. Ct. Jan. 10, 2011), supports only the two following conclusions: (1) that a plaintiff may have standing to challenge FOIL requests when the decedent is the target of such request; and (2) that, absent an arbitrary or capricious finding, a responding entity will not be deemed to have improperly satisfied its obligations under FOIL by responding to such a request. (Id.) Ninth, Defendants argue that the Court must dismiss Plaintiff’s claims against Defendant Oneida County to the extent that it alleges liability under the theory of respondeat superior, because the “special relationship” exception is inapplicable to this case. (Id. at 19-21.) Although Defendants acknowledge that the “special relationship” exception applies in the context of negligence and negligent-supervision claims, they argue that, because it is anticipated that the Court will dismiss the state law claims due to Plaintiff’s alleged failure to comply with the requirements of N.Y. Gen. Mun. Law §§50-e-i-h and N.Y. County Law §52, the Court must also reject Plaintiff’s “special relationship” argument. (Id.) Finally, Defendants argue that Plaintiff has failed to provide the Court with any other viable reasons to hold a municipality vicariously liable for an employee’s alleged dissemination of “child pornography,” and that the Court should construe the absence of any opposition to this argument as a concession that warrants the dismissal of any claims against Defendant Oneida County premised upon the theory of respondeat superior. (Id.) Tenth, Defendants argue that the Court must dismiss all claims against Defendant McNamara and John Does 1-20 because the employees of Defendant Oneida County are entitled to qualified immunity. (Id. at 21-22.) Eleventh, Defendants argue that the Court must dismiss Plaintiff’s second claim (for personal injuries under 18 U.S.C. §2255) because Defendants did not violate 18 U.S.C. §2252A, and, even if a violation occurred, it did not cause personal injuries to the alleged victim, who predeceased the dissemination of the material at issue. (Id. at 22.) Twelfth, Defendants argue that the Court must dismiss any claims that seek an award of punitive damages against Defendant Oneida County or any of its Defendant-employees in their official capacities, because “[m]unicipalities and municipal employees sued in their official capacity are immune from punitive damages.” (Id. at 23) (internal citation omitted). Thirteenth, Defendants argue that the Court must deny Plaintiff’s request for leave to amend its Complaint, because Plaintiff did not file a notice of cross-motion, a proposed Amended Complaint, and a memorandum of law in accordance with N.D.N.Y. L.R. 15.1. (Id. at 23-24.) II. RELEVANT LEGAL STANDARDS A. Legal Standard Governing a Motion to Dismiss for Lack of Subject-Matter Jurisdiction “It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen Equipment & Erection Co. v. Kroger, 473 U.S. 365, 374 (1978). Generally, a district court may properly dismiss a claim for a lack of subject-matter jurisdiction where the court lacks constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when resolving a motion to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d 113). B. Legal Standard Governing a Motion to Dismiss for Failure to State a Claim It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, some elaboration regarding that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).⁴ The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore’s Federal Practice §12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. §1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “ a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief…[is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense…. [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not show[n] — that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (internal quotation marks and citations omitted). However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted). Finally, with regard to what documents are considered when a dismissal for failure to state a claim is contemplated, generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.⁵ III. ANALYSIS Because Defendants have moved for dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the Court must first assess whether it has subject-matter jurisdiction over Plaintiff’s claims under Fed. R. Civ. P. 12(b)(1) before turning to the question of whether Plaintiff has failed to state a claim upon which relief can be granted. See Wong v. CKX, Inc., 890 F. Supp.2d 411, 414-15 (S.D.N.Y. 2012) (“When presented with a motion under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has subject matter jurisdiction necessary to consider the merits of the action.”). A. Whether the Court Lacks Subject-Matter Jurisdiction Over Plaintiff’s Claims 1. Whether the Court Should Dismiss Plaintiff’s First Claim (for Distributing Child Pornography Under 18 U.S.C. §2252A) Against All Defendants and Second Claim (for Personal Injuries Under 18 U.S.C. §2255) Against All Defendants for Lack of Article III Standing After carefully considering the matter, the Court answers this question in the negative for the reasons stated in Plaintiff’s opposition memorandum of law. (Dkt. No. 27, at 13-18 [Plf.'s Opp'n Memo. of Law].) To the reasons stated by Plaintiff, the Court adds the following analysis. “Standing is a proper ground upon which to challenge a court’s subject matter jurisdiction; ‘[i]f plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim.’” Clarex Ltd., 2012 WL 4849146, at *3 (quoting Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 [2d Cir. 2012]). To show Article III standing, the plaintiff “must have suffered an injury in fact (1) that is concrete and particularized, (2) that is causally linked to the defendant’s challenged conduct, and (3) that is likely to be redressed by a favorable decision.” Dubuisson v. Stonebridge Life Ins. Co., 887 F.3d 567, 573 (2d Cir. 2018). “To establish an injury in fact, a plaintiff need only show that he or she suffered an invasion of a legally protected interest that is concrete and particularized.” Dubuisson, 887 F.3d at 574 (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 [2016]). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way, and an injury is concrete if it is ‘real and not abstract,’ although injury need not be tangible to be concrete.” Dubuisson, 887 F.3d at 574 (citing Spokeo, Inc., 136 S. Ct. at 1548). “The plaintiff…bears the burden ‘clearly to allege facts demonstrating that [it] is a proper party to invoke judicial resolution of the dispute.’” Steinberger v. Lefkowitz, 634 F. App’x 10, 11 (2d Cir. 2015) (quoting Warth v. Seldin, 442 U.S. 490, 518 [1975]). As a result, a plaintiff must also show that they have “prudential standing,” which includes a “general prohibition on a litigant’s raising another person’s legal rights.” Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015). In this regard, the plaintiff must have been injured in a “personal and individual way” to have standing. Lujan, 504 U.S. at 560 n.1. Applying these legal principles, the Court respectfully disagrees with Defendants’ argument that Plaintiff has failed to establish the elements for Article III standing because Devins died before the dissemination of the child pornography. (Dkt. No. 18, Attach. 1, at 22 [Defs.' Memo. of Law].) Defendants argue that Fund Liquidation Holdings LLC, 991 F.3d 370, 384-85 (2d Cir. 2021), must guide the Court’s analysis. There, the Second Circuit found that the plaintiffs, two previously dissolved investment funds, lacked Article III standing to sue because they lacked legal existence, which resulted in no Article III case or controversy for the district court to adjudicate. Id. at 384. The Second Circuit explained that, although federal law “sets the ground rule that a plaintiff…must have legal existence to have constitutional standing,” whether a plaintiff “satisfies that requirement…turns on an examination of state law.” Fund Liquidation Holdings LLC, 991 F.3d at 386 (applying Cayman Islands law to determine the legal existence of plaintiff corporation). In comparison to Fund Liquidation Holdings LLC and the case law upon which it relies (in which the litigants were dissolved, deceased, or fictitious), the facts of this case differ because Plaintiff is the Estate of the decedent, not the decedent herself. Moreover, there is no question regarding Plaintiff’s legal existence given that the Oneida County Surrogate’s Court issued the Limited Letters of Administration for the Estate of Bianca Devins to Kimberly Devins to serve as the decedent’s “personal representative.”⁶ (Dkt. No. 1, at 23 [Plf.'s Compl.].) With respect to whether Plaintiff’s injury in fact is concrete and particularized, a central focus “is whether the asserted harm has a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts — such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021) (citing Spokeo, Inc., 578 S. Ct. at 340-41). Critical to the Court’s analysis is the fact that, “‘[a]fter death, one is no longer a person within our constitutional and statutory framework, and has no rights of which he [or she] may be deprived.’” Infante v. Dignan, 782 F. Supp.2d 32, 38 (W.D.N.Y. 2011) (quoting Whitehurst v. Wright, 592 F.2d 834, 840 [5th Cir. 1979]); see Helmer v. Middaugh, 191 F. Supp.2d 283, 285 (N.D.N.Y. 2002) (Hurd, J.) (“Even assuming all of the facts in the favor of the plaintiff, a dead man does not have any constitutional rights.”). Here, granted, the Court has some difficulty finding that the dissemination of the child pornography in question to media outlets (including the producers for “48 Hours” and A&E) could have caused an intangible reputational injury to Plaintiff (Decedent’s estate). This is because, even if the dissemination caused Devins’ Instagram account to grow in followers from 2,000 to 166,000 — some of whom besieged the accounts of her family members with images of Devins’ dead body — the injury (which the Court views more as emotional than reputational) was inflicted on Devins’ family, not her estate. (Dkt. No. 1, at

51-52.) However, Plaintiff persuasively argues that it has suffered an economic injury due to having to “spend time and money on lawyers urging recipients [of the disseminated material] to destroy the content….” (Dkt. No. 27, at 17-18 [Plf.'s Opp'n Memo. of Law].) In addition to alleging facts plausibly suggesting that Defendants disseminated the material in question to various media outlets, Plaintiff alleges facts plausibly suggesting that it was forced to repeatedly communicate — through counsel — with the District Attorney’s Office regarding the material and Defendants’ dissemination of it. (See, e.g., Dkt. No. 1, at