648 F.Supp.3d 558
D.N.J.2023Background:
- Plaintiff Lili Bernard alleges that in August 1990 William Cosby drugged, raped, and otherwise assaulted her at the Trump Taj Mahal in Atlantic City after luring her for mentoring and a meeting.
- Plaintiff alleges additional non-specific incidents of fondling and further drugging/assaults and claims Cosby threatened and tried to conceal the Atlantic City incident.
- Plaintiff filed a civil complaint on October 24, 2021 invoking New Jersey’s revival statute (N.J.S.A. 2A:14-2b) that creates a two-year window to revive otherwise time‑barred civil claims arising from sexual offenses.
- Cosby moved under Fed. R. Civ. P. 12(b)(6), arguing the revival statute requires a conviction or minor-victim tethering, is unconstitutionally vague, violates vested‑rights/due process, and contravenes the Ex Post Facto Clause.
- The court held that (1) the revival statute is triggered by the commission (not conviction) of a sexual offense, (2) the statute is not unconstitutionally vague, (3) retroactive revival does not violate due process/vested‑rights principles, and (4) it does not violate the Ex Post Facto Clause; the motion to dismiss was denied.
- The court found Bernard’s allegations sufficient at the pleading stage to revive and state assault, battery, false imprisonment, and IIED claims and to plead facts supporting punitive damages, but ordered Bernard to amend within 30 days to clarify venue/timing for non‑Atlantic City allegations.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.J.S.A. 2A:14-2b requires a criminal conviction to revive claims | Revival is triggered by the commission of a sexual offense; conviction not required | Revival requires a prior criminal conviction or tethering to a statutory cause | Held: commission suffices; statute’s plain language and civil/criminal distinctions do not require conviction |
| Whether the revival statute is void for vagueness | Statute is clear enough; criminal code provides definitions of sexual offenses | Statute vague because it does not define “sexual assault” or “other crimes of a sexual nature” | Held: not vague as applied — New Jersey Criminal Code supplies sufficient definitions |
| Whether retroactive revival violates due process / vested rights | Legislature intended retroactivity to remedy injustice to victims; public interest outweighs any reliance by defendant | Revival retroactively deprives defendant of vested statute‑of‑limitations defense; manifest injustice | Held: no vested right in limitations; retroactive application valid under New Jersey and federal due process principles |
| Whether the revival statute violates the Ex Post Facto Clause | Revival is civil and remedial; punitive damages available under common law do not render the statute penal | Revival increases punishment or lowers burdens, thus functioning as ex post facto punishment | Held: not an ex post facto violation; statute is civil in nature and defendant failed to meet the “clearest proof” standard that it is punitive |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (established plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (applies Twombly plausibility framework)
- Malleus v. George, 641 F.3d 560 (3d Cir. 2011) (three‑step inquiry for pleading sufficiency)
- Rosano v. Twp. of Teaneck, 754 F.3d 177 (3d Cir. 2014) (begin statutory interpretation with plain language)
- Hardwicke v. Am. Boychoir Sch., 902 A.2d 900 (N.J. 2006) (interpreting statutory tethering to child‑abuse statute)
- Leang v. Jersey City Bd. of Educ., 969 A.2d 1097 (N.J. 2009) (elements of assault and battery under New Jersey law)
- Hudson v. United States, 522 U.S. 93 (1997) (factors for determining whether civil sanction is punitive)
- United States ex rel. Int’l Bhd. of Elec. Workers v. Fairfield Co., 5 F.4th 315 (3d Cir. 2021) (applying Hudson factors in retroactivity / punitive‑effect analysis)