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Nielsen v. Van Leuven

United States District Court, D. Connecticut

August 8, 2017

JENNIFER VAN LEUVEN, et. al. Defendants.


          MICHAEL P. SHEA, U.S.D.J.

         I. Introduction

         In the wake of their stormy affair and break-up, the plaintiff, Bjorn Nielsen, sued the defendant, Jennifer Van Leuven[1], alleging that she failed to return a ring given to her in contemplation of their marriage, and she asserted various counterclaims against him. Ms. Van Leuven now contends that she has no obligation to return the ring -- though she agrees it was initially an engagement ring -- because, after a fight between her and Mr. Nielsen in which she returned the ring to Mr. Nielsen, he gave the ring to her as an unconditional apology gift. Mr. Nielsen has moved for summary judgment on four of his five claims - replevin (count 1), unjust enrichment (count 2), conversion (count 3), and civil theft (count 4) - and on Ms. Van Leuven's counterclaims for intentional infliction of emotional distress (count 2), negligent infliction of emotional distress (count 3), conversion (count 6), defamation (counts 10, 11, and 13), civil theft (count 12), and breach of contract (count 14).

         I GRANT IN PART AND DENY IN PART Mr. Nielsen's motion for summary judgment. As explained more fully below, Mr. Nielsen's motion for summary judgment is denied as to: (i) his claims concerning the ring (counts 1 through 4) because there exists a genuine issue of material fact as to whether the ring, following the fight, was an engagement ring or an unconditional gift; and (ii) Ms. Van Leuven's counterclaim for defamation (count 11) because there exists a genuine issue of material fact as to whether the statements made by Mr. Nielsen to the Greenwich Police about her were true. Mr. Nielsen's motion for summary judgment is GRANTED, however, as to Ms. Van Leuven's counterclaims for: (i) intentional infliction of emotional distress (count 2) because none of the conduct on which this claim is based reaches the high bar set for “extreme” or “outrageous” conduct; (ii) negligent infliction of emotional distress (count 3) because no reasonable juror could conclude that Mr. Nielsen should have known that the conduct Ms. Van Leuven identifies as the basis for this claim posed an unreasonable risk of emotional distress to her and that that distress might cause illness; (iii) conversion of a Range Rover and her personal property therein (count 6) because there is no evidence in the record Ms. Van Leuven had title to, or the authority to register, the Range Rover, and because she has abandoned the claim for the personal property in the Range Rover; (iv) defamation (counts 10 and 13) because she has also abandoned those claims; and (v) civil theft (count 12) because there is no evidence in the record that Mr. Nielsen intended to deprive her of the handbag and clothing she left at his house in England. Further, for the reasons explained below, within 14 days of this ruling, Ms. Van Leuven shall show cause why I should not grant summary judgment as to the breach of contract counterclaim (count 14) on the ground that enforcement of the alleged contract would be illegal.

         II. Facts

         The following facts, which are taken from the parties' Local Rule 56(a) Statements and the exhibits, are undisputed unless otherwise indicated.

         A. Ms. Van Leuven and Mr. Nielsen Meet on

         In January 2014, Mr. Nielsen and Ms. Van Leuven met through the online dating site, (Plaintiff's Local Rule Statement (“Pl.'s L.R. 56(a)(1) Stmt.”), ECF No. 93 at ¶ 1; Defendant's Local Rule 56(a)(2) Statement (“Def.'s L.R. 56(a)(2) Stmt.”), ECF No. 103-1 at ¶ 1.) On their first date, Mr. Nielsen advised Ms. Van Leuven of his true marital status and age, which differed from the information on his profile. (Pl.'s L.R. 56(a)(1) Stmt., ¶ 32, Def.'s L.R. 56(a)(2) Stmt., ¶ 32.) Despite those misrepresentations, Ms. Van Leuven willingly continued her relationship with Mr. Nielsen. (Pl.'s L.R. 56(a)(1) Stmt., ¶ 32, Def.'s L.R. 56(a)(2) Stmt., ¶ 32.) Then, on April 20, 2014, four months after meeting, Mr. Nielsen proposed to marry Ms. Van Leuven, and she accepted. (Pl.'s L.R. 56(a)(1) Stmt., ¶ 3, Def.'s L.R. 56(a)(2) Stmt., ¶ 3.) As a token of their engagement, Mr. Nielsen gave Ms. Van Leuven an engagement ring valued at $171, 200. (Pl.'s L.R. 56(a)(1) Stmt., ¶ 4, Def.'s L.R. 56(a)(2) Stmt., ¶ 4.)

         B. The May 27-28, 2014 Fight

         According to Ms. Van Leuven, on the evening of May 27, 2014, a little over a month after getting engaged, she and Mr. Nielsen had a fight, which lasted until the early morning hours of May 28, 2014. (Pl.'s L.R. 56(a)(1) Stmt., ¶ 17, Def.'s L.R. 56(a)(2) Stmt., ¶ 17.) Ms. Van Leuven testified that during this fight, which took place at Mr. Nielsen's Greenwich, Connecticut home, he physically assaulted her and prevented her from leaving. (ECF No. 103-2 at 16-17.) She further testified that, in the midst of the fight, she gave the engagement ring to Mr. Nielsen and “within a few minutes” told him that the “marriage [was] off.” (Id. at 28-29.) According to Ms. Van Leuven, several hours later on the morning of May 28, she and Mr. Nielsen spoke about “what happened the night before” including her returning the engagement ring to him - which Mr. Nielsen could not recall. (Id.) In Ms. Van Leuven's account, Mr. Nielsen, upon learning of the prior night's events, became “guilt-ridden” and “was apologizing for not letting [her] leave, and asked [her] to please take the ring back.” (Id. at 30.) But she “refus[ed] to get re-engaged to him” and “refus[ed] to be in a relationship with him at all.” (Id.) Mr. Nielsen “insisted that [she] take [the ring] back as an apology present” and that “[r]egardless of what happened, he wanted [her] to have it” as an “apology gift.” (Id. at 31.) She eventually accepted the ring as an apology gift, and from that point on, in Ms. Van Leuven's mind, the ring was not an engagement ring. (Id. at 31-32.)

         C. Mr. Nielsen Demands Ms. Van Leuven Return the Ring

         Beginning in June 2014 - weeks after the May 27-28 fight -, Mr. Nielsen began demanding that Ms. Van Leuven return the ring. (Pl.'s L.R. 56(a)(1) Stmt., ¶ 14, Def.'s L.R. 56(a)(2) Stmt., ¶ 14); (ECF No. 103-2 at 61-62.) Ms. Van Leuven, however, did not return the ring, because she claimed to have flushed it down the toilet. (Pl.'s L.R. 56(a)(1) Stmt., ¶¶ 14, 16, Def.'s L.R. 56(a)(2) Stmt., ¶¶ 14, 16.) In an effort to reconcile, in September or October of 2014, Ms. Van Leuven asserts that she and Mr. Nielsen entered into a written contract that set forth their respective requirements to move forward with the relationship. (ECF No. 103-3 at 3.) Under their agreement, Ms. Van Leuven agreed, inter alia, “that [they] would have oral sex up to five times a week anytime [Mr. Nielsen] wanted for as long as he wanted” and that she would not sue Mr. Nielsen for statements he had made to Greenwich merchants and police. (Id. at 4.) In return, according to Ms. Van Leuven, Mr. Nielsen agreed to purchase her an apartment for not less than $2 million in New York City if the relationship failed for any reason, “clear her name” of false statements he had made to Greenwich merchants and police, apologize to Ms. Van Leuven's brother, friends, and others, and purchase her a Range Rover. (Id. at 3-4.)

         Additional facts will be recounted below as necessary to address particular claims.

         III. Legal Standard

         “Summary judgment is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)(internal quotation marks and citations omitted). If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). In determining whether summary judgment is appropriate, I must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013).

         On summary judgment, “it is undoubtedly [my] duty [] not to weigh the credibility of the parties.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for [the court] on summary judgment.” Id. at 553. In this case, the plaintiff urges me to apply a narrow exception to that rule - the Jeffreys exception -, which is reserved for “rare circumstances where the plaintiff relies almost entirely on her own testimony much of which is contradictory and incomplete and where the facts alleged are so contradictory that doubt is cast upon their plausibility.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 100 (2d Cir. 2011). In such cases, the Second Circuit has held the plaintiff cannot show there is a “genuine issue [] of material fact, ” and thus cannot resist summary judgment. Jeffreys, 426 F.3d at 554 (emphasis in original).[2] This case tests the boundaries of the Jeffreys exception and, I ultimately conclude, falls outside them, because Ms. Van Leuven's account, though it suffers from contradictions, is not so implausible as to warrant my removing the factual dispute regarding the status of the ring from the usual mechanism for resolving such disputes - a jury trial.

         IV. Discussion

         A. Mr. Nielsen's Claims (Counts 1-4)

         Mr. Nielsen seeks summary judgment on his replevin, unjust enrichment, conversion, and civil theft claims, all of which are based on Ms. Van Leuven's alleged failure to return the ring or to compensate Mr. Nielsen for its loss. (ECF No. 86 at 1.) The dispositive question underlying Mr. Nielsen's motion as to those four claims is whether a genuine issue of fact exists as to whether, as of May 28, 2014, the ring was an unconditional gift or a conditional gift dependent on the anticipated marriage of Mr. Nielsen and Ms. Van Leuven. There is no doubt that this issue is material, as Ms. Van Leuven's liability on each of the four claims turns on it.[3]SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)(observing that “material facts” are those facts that “might affect the outcome of the suit under the governing ...

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