Selinger v. Kimera Labs Inc.
1:20-cv-24267
| S.D. Fla. | Jan 3, 2022Background
- Plaintiff Dr. Melissa Selinger sued Kimera Labs, Inc., CEO Duncan Ross, and CTO Alexander Jelinek, filing a 17‑count amended complaint that added five new claims: negligent misrepresentation (Count VIII), negligent infliction of emotional distress (Counts XIV and XV), invasion of privacy — public disclosure of private facts (Count XVI), and defamation (Count XVII).
- Core factual allegations: Kimera promised Selinger equity (signed August 1, 2018 letter) but never issued stock; Ross and Jelinek allegedly engaged in multiple instances of non‑consensual sexual contact with Selinger while she worked at Kimera; Ross allegedly led a campaign publicizing private sexual facts; Jelinek allegedly sent an internal email falsely attributing Selinger’s removal to undergoing “lobotomy and exosome treatment.”
- Kimera moved to dismiss the five newly added claims under Rule 12(b)(6); Jelinek moved to dismiss the negligent infliction claim and the defamation claim against him. Neither moved to dismiss the rest of the amended complaint.
- Defendants argued duplicative pleading (misrepresentation vs. contract/fraud), failure to meet Rule 9(b) for negligent misrepresentation, insufficiency of negligent infliction allegations under Florida’s impact/manifestation rules, inadequate pleading of publication/offensiveness for invasion of privacy, and insufficient particulars for defamation (including recipient identity).
- Magistrate Judge Torres recommended denying both motions in full, finding Selinger pleaded sufficient facts under federal pleading standards to make each contested claim plausible; he recommended defendants amend answers to incorporate defenses to Counts XV and XVII.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligent misrepresentation (Count VIII) — sufficiency under Rule 9(b) | Selinger alleged specific misrepresentations about equity (signed CEO letter, oral promises, CFO statements, 20% allocation) and justifiable reliance | Kimera: claim duplicates contract/fraud and fails Rule 9(b) particularity (who/when/content) | Denied — allegations (letter + contemporaneous statements) satisfy Rule 9(b) and Rule 8; alternative/duplicative pleading permitted |
| Negligent infliction of emotional distress / negligence (Counts XIV & XV) — applicability of impact rule and elements | Selinger alleges physical impacts (non‑consensual sexual contact, battery after intoxication), duty, breach, causation, and emotional/psychological harm | Defendants: plaintiff failed to plead required elements for negligent infliction (physical impact/manifestation, or statutory preconditions) | Denied — Willis permits recovery where physical impact is alleged; negligence elements sufficiently pled; vicarious liability alleged against Kimera |
| Invasion of privacy — public disclosure of private facts (Count XVI) — publication and offensiveness | Selinger alleges a "campaign" by Ross/Kimera to disseminate confidential sexual facts to her personal/professional network causing humiliation and reputational harm | Kimera: complaint lacks specifics on publication (number/recipients) and offensiveness | Denied — pleading that a campaign targeted her networks plausibly alleges publication to a large number and that disclosure of sexual/private facts is highly offensive to a reasonable person |
| Defamation (Count XVII) — sufficiency and need to identify recipients | Selinger identified speakers (Jelinek, Ross, and/or others), described statements (false reasons for replacement; attacks on veracity/job performance), and timeframes (post‑March 2019; after EEOC charge) | Defendants: complaint fails to identify recipients and specific third parties, so claim is deficient under Florida pleading precedents | Denied — federal Rule 8 governs in diversity; plaintiff need only plead speaker, content, and timeframe to state a plausible claim; vicarious liability alleged; damages are presumed for statements affecting trade/profession |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible entitlement to relief)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) (Rule 9(b) particularity guidance)
- Arlington Pebble Creek, LLC v. Campus Edge Condo. Ass'n, Inc., 232 So. 3d 502 (Fla. 1st DCA) (elements of negligent misrepresentation)
- Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007) (Florida impact rule—recovery for emotional distress differs when a physical impact is alleged)
- Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla.) (adoption of Restatement test for public disclosure of private facts)
- Turner v. Wells, 879 F.3d 1254 (11th Cir. 2018) (elements of defamation under Florida law)
- Caster v. Hennessey, 781 F.2d 1569 (11th Cir.) (federal courts sitting in diversity follow federal procedural rules for pleading)
- Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240 (S.D. Fla.) (discussed as limiting double recovery when claims rely entirely on same facts)
- Leavitt v. Cole, 291 F. Supp. 2d 1338 (M.D. Fla.) (presumption of damages for defamation per se affecting trade/profession)