TERESA J. JAMES, Magistrate Judge.
Plaintiff Angela Harrison commenced this action, on behalf of her minor child under the pseudonym Jane Doe, against USD No. 237, the Smith Center School District, and one of its teachers and coaches, Brock Hutchinson. Plaintiffs assert claims for hostile educational environment and retaliation against the School District, under Title IX of the Educational Amendments of 1972,
As explained below, Plaintiffs' Amended Motion for Leave to Amend Complaint is granted in part and denied in part. The Court concludes that it would be futile for Plaintiffs to amend their complaint to add their proposed claim for negligent supervision of children (Count VIII) against Defendant Hutchinson. The motion is otherwise granted. Doe's Motion for Leave to Proceed by Pseudonym is also granted.
On October 12, 2016, Plaintiffs submitted a five-page single-spaced letter titled "Notice of Claims Pursuant to K.S.A. 12-105b(d)" ("Notice") to the School District through its school board members and clerk.
On November 1, 2016, the School District sent Plaintiffs a letter requesting additional information and documents to facilitate the School District's investigation. The letter requested a statement from Doe "administered under oath before a duly qualified reporter."
Plaintiffs filed their Complaint (ECF No. 1) on December 8, 2016. In Paragraphs 57-59, Plaintiffs allege they had previously sent their Notice of Claims to the School District, placing it on notice of the additional tort claims to be added by amendment after the Kansas Tort Claims Act period expired.
On January 19, 2017, Hutchinson filed a motion to dismiss Plaintiffs' claims against him. In their response in opposition to the motion, Plaintiffs indicated that upon expiration of the Kansas Tort Claims Act's 120-day waiting period, on or about February 14, 2017, they would seek leave to amend the complaint to include:
On February 9, 2017, the School District sent Plaintiffs a second letter noting that Plaintiffs had not responded to the District's previous November l, 2016 letter, but acknowledging the December 8, 2016 filing of this lawsuit alleging federal claims. The letter further stated, in pertinent part:
On February 17, 2017, Plaintiffs filed a Motion for Leave to Amend Complaint (ECF No. 14) seeking to add five tort claims, pursuant to Kansas common law and/or the Kansas Tort Claims Act, against the School District and Hutchinson.
On March 2, 2017, District Judge Lungstrum granted in part and denied in part Hutchinson's motion to dismiss on the basis of qualified immunity.
On March 7, 2017, Plaintiffs withdrew their earlier motion to amend and filed the instant Amended Motion for Leave to Amend Complaint. Plaintiffs request leave under Fed. R. Civ. P. 15 to amend their complaint to add five Kansas state law tort claims against the School District and Hutchinson, and to add a new claim by Harrison for Title IX retaliation. On May 2, 2017, Doe filed her Motion for Leave to Proceed by Pseudonym. This case was reassigned to the undersigned Magistrate Judge on August 16, 2017.
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading "once as a matter of course" before trial if they do so within: (A) 21 days after serving the pleading, or (B) "if the pleading is one to which a responsive pleading is required," 21 days after service of the responsive pleading or a motion under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier.
A proposed amendment is futile if the amended complaint would be subject to dismissal.
Defendants contend that Plaintiffs' proposed amendment is futile because Plaintiffs' October 12, 2016 Notice fails to comply with the notice requirements of K.S.A. 12-105b, such failure would deprive this Court of jurisdiction.
K.S.A. 12-105b(d) requires a person asserting a claim which could give rise to an action brought under the Kansas Tort Claims Act against a municipality or an employee of a municipality to file a written notice with the clerk or governing body of the municipality before commencing such action.
The statute further provides: "[i]n the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim."
"The legislative intent of K.S.A. 12-105b is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim."
The notice requirements of K.S.A. 12-105b(d) are a condition precedent to bringing a tort claim against a municipality and must be pled in compliance with Fed. R. Civ. P. 9(c).
The School District argues that Plaintiffs' Notice is deficient because the factual allegations contained in it do not support the causes of action Plaintiffs seek to pursue, the injuries alleged, or the damages demanded. The School District also argues it was deprived of the opportunity to investigate the claims by Plaintiffs' refusal to provide the sworn statement and additional information requested in its November 1, 2016 letter.
Plaintiffs' five-page, single-spaced Notice included the following information set out in five enumerated sections: (1) The names and addresses of the claimants and claimants' attorneys; (2) A concise, but fairly lengthy and detailed statement of the factual basis of Plaintiffs' alleged claim(s), including specific months from January 2015 through June 2016, places, and circumstances surrounding a number of specific incidents of inappropriate conduct and/or statements, including some sexual in nature, made by Hutchinson to or about Doe; (3) The names and addresses of any public officers involved; (4) A concise statement of the nature and extent of injuries suffered, including a lengthy list of the particular types of injuries alleged (e.g. medically significant emotional distress, pain and suffering); and (5) A statement of the monetary amount being requested, itemized in four categories of expenses and damages. These sections mirror and comply with the five statutory notice requirements set out in K.S.A. 12-105b(d). Plaintiffs' Notice also includes additional information not expressly required by K.S.A. 12-105b(d), namely a list of the specific causes of action that Plaintiffs may assert under both Kansas law and federal law. Defendants' argument that Plaintiffs' proposed amendment would be futile because of their failure to comply with this statutory notice requirement with regard to the School District is rejected.
The Court also rejects Defendants' argument that Plaintiffs abandoned their claims when they did not respond to Defendants' request following receipt of the Notice for more information. Defendants have provided no controlling or persuasive authority for their argument. Plaintiffs' Notice did provide adequate notice of their claims against the School District and the statute does not require Plaintiffs to provide sworn statements for their notice to be sufficient. Finally, Plaintiffs filed their motion to amend to add these tort claims after expiration of the 120-day period provided under K.S.A. 12-105b(d).
The Court finds Plaintiffs' October 12, 2016 Notice provided proper and sufficient notice to the School District in compliance with K.S.A. 12-105b(d).
Defendants argue that Plaintiffs' Notice refers repeatedly to claims against the School District but makes no mention of any claims against Hutchinson. The first sentence of the Notice states: "Please consider this letter as formal notice pursuant to K.S.A. 12-105b(d) of tort claims asserted against USD 237."
In December 2014, the Kansas Supreme Court overruled well-established Kansas case law that had interpreted K.S.A. 12-105b(d) to require claimants to give notice of claims against municipalities and municipal employees acting within the scope of their employment before commencing legal action.
The Kansas legislature acted swiftly in response to Whaley, amending the statute in 2015 to expressly require that: "Any person having a claim against a municipality or against an employee of a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action."
Plaintiffs provided their Notice in October 2016, after the 2015 amendment to K.S.A. 12-105b. The Court finds that Plaintiffs' proposed claims for Invasion of Privacy (Count VI), Negligent Supervision of Children (Count VIII), Negligent Infliction of Emotional Distress (Count IX), and Outrage (Count X)
It is true that K.S.A. 12-105b(d) explicitly requires only substantial compliance with its notice requirement. The Court thus must address the question of whether Plaintiffs' Notice constitutes sufficient notice under K.S.A. 12-105b as to Plaintiffs' claims against Hutchinson. "The legislative intent of K.S.A. 12-105b is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim."
Notable, also, is the fact that in its 2015 amendment to K.S.A. 12-105b the legislature chose not to change the required contents of the statutory notice. If it had intended to do so, the legislature could easily have amended the statute to require the statutory notice to contain specific additional information regarding any claims against an employee of the municipality. Instead, the amended version of K.S.A. 12-105b(d) retains the same enumerated list of five categories of information that must be included in the notice.
As discussed earlier with regard to the School District, Plaintiffs' Notice includes the five categories of information required under K.S.A. 12-105b(d). It includes a factual statement replete with detailed factual allegations of inappropriate behavior by Hutchinson toward or related to Doe. Indeed, the Notice does portray Hutchinson as the "perpetrator" of the alleged bad acts. The Notice revolves around the alleged misconduct of Hutchinson and the damages Doe suffered as a result of that alleged misconduct. The Notice clearly gave the municipality the information necessary for a full investigation and understanding of the merits of the claims being asserted as to both the School District and Hutchinson. Reviewing the Notice carefully and keeping in mind K.S.A. 12-105b requires only substantial compliance, the Court concludes that the Notice provided sufficient notice, in compliance with the K.S.A. 12-105b(d), with regard to the tort claims Plaintiffs seek to assert against Hutchinson.
Defendants next argue Plaintiffs should not be permitted to amend their complaint to add a state law claim for outrage (also known as intentional infliction of emotional distress) because it was not included in the list of seven causes of action in their Notice. Defendants contend Plaintiffs failed to present any facts that would support an outrage claim against either Defendant. Plaintiffs counter that nothing in K.S.A. 12-105b requires a claimant to spell out all of its legal theories. They point out the Notice includes facts and a specific reference to a claim for negligent infliction of emotional distress, alleges that Doe suffered "medically significant emotional distress," and includes facts showing reckless disregard and conduct of an outrageous nature.
K.S.A. 12-105b, by its express terms, only requires notice of the "factual basis" for the claim; there is no requirement that the notice set forth in detail the legal theory behind the claim.
For purposes of their motion to amend, the Court finds the facts set out in the Notice provided sufficient notice that Plaintiffs might assert a claim for outrage.
Defendants next contend it would be futile to allow Plaintiffs to amend to assert a negligence claim because the Notice makes no reference whatsoever to any alleged physical injury and fails to present any facts that would place Defendants on notice that Plaintiffs suffered any sort of physical injury. Plaintiffs respond that Kansas law permits recovery of damages for mental distress without physical injury in appropriate circumstances where the injurious conduct is wanton. In their Notice, Plaintiffs allege Hutchinson sat on Doe's feet, terrified her and caused her to suffer panic attacks in addition to medically significant emotional distress. They assert these statements are sufficient to put Defendants on notice of the wanton and reckless conduct of Defendant Hutchinson.
K.S.A. 12-105b requires that a notice of claim contain a "concise statement of the nature and extent of the injury claimed to have been suffered." The Notice states that Doe "suffered medically significant emotional distress, pain and suffering, future economic loss, medical expense, anger, humiliation, panic attacks, anxiety, and missed opportunities for a normal high school experience . . ." Although it has long been the rule in Kansas that no recovery is allowed for emotional distress caused by the negligence of the defendant unless it is accompanied by or results in physical injury to the plaintiff, this rule does not apply when the injurious conduct is willful or wanton or when the defendant acts with intent to injure.
With respect to Defendants' argument that the Notice is insufficient to support an invasion of privacy claim, the Court notes that the Notice specifically lists a claim for "Invasion of Privacy." It further sets out a "concise statement of the factual basis" for the claim. Defendants have not shown that it would be futile for Plaintiffs to assert an invasion of privacy claim against the School District based upon non-compliance with K.S.A. 12-105b.
Defendants also devote several pages of briefing to futility arguments based upon alleged deficiencies in Plaintiffs' proposed First Amended Complaint. First, they argue that physical injury is an essential element of a claim for negligence under Kansas law, and Plaintiffs' proposed amended complaint fails to allege that Doe sustained a personal injury. The Court disagrees. Plaintiffs' proposed amended complaint alleges, "Defendants' negligent conduct was the direct and proximate cause of Plaintiff's emotional distress, which required medical treatment, and which was accompanied by or resulted in physical injuries to Plaintiff."
Second, Defendants contend the purported allegations of negligent supervision of children in the proposed amended complaint fail to state a claim, because the pleading actually alleges the School District failed to properly supervise Hutchinson, not the student, Doe. Kansas courts have recognized a duty owed by a school district to its high school students "to properly supervise students and to take reasonable steps to protect students' safety."
Third, Defendants argue that Plaintiffs' proposed amended complaint fails to state a claim for outrage. The Kansas tort of outrage requires proof that defendant (1) intentionally or in reckless disregard of plaintiff (2) performed "extreme and outrageous" acts (3) that causally relate to plaintiff's (4) "extreme and severe" mental distress.
Defendants object that Harrison cannot continue to be a party-plaintiff in her own right because she does not have standing to pursue Title IX or Section 1983 claims. Thus, it would be futile to grant Plaintiff Harrison leave to assert a Title IX retaliation claim against the School District.
Harrison maintains she has standing to bring a Title IX retaliation claim. She argues that by statute, regulation, and Supreme Court precedent, third parties subjected to retaliation for Title IX protected activity have standing and a right to bring a private retaliation action against a school district. She contends that, as a person subjected to retaliation by the School District for reporting Hutchinson's harassment, she has a right and standing to bring a Title IX retaliation claim.
To establish standing, Harrison must show (1) she suffered an "injury in fact—an invasion of a legally protected interest that is `concrete and particular' and not merely hypothetical;" (2) that there is a "causal connection between the injury and the conduct complained of;" and (3) that it is likely "the injury will be redressed by a favorable decision."
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
The Court concludes that, for purposes of granting leave to amend the complaint, Harrison has asserted a viable standing argument to pursue her Title IX retaliation claim. In this case, Harrison's proposed claim alleges that she suffered her own injury in fact, namely that she had a right to be free of retaliation for reporting the harassment of her daughter to School District officials. The proposed First Amended Complaint includes allegations that School District officials retaliated against Harrison by making false, disparaging statements to her daughter and third parties about Harrison personally, including that she is a liar, she is litigious, and she was not looking out for her daughter; and by excluding her from school activities.
The Court has reviewed the cases cited by Defendants for the legal proposition that a parent has no standing to pursue a Title IX claim, and finds them neither binding nor persuasive authority. The cited cases are also distinguishable because in them the plaintiff either conceded the parent lacked standing or the case did not involve claims for Title IX retaliation. In the Sixth Circuit Court of Appeals case cited and relied upon by Defendants, Phillips v. Anderson County Board of Education,
Defendants argue that the Court should decline to exercise supplemental jurisdiction over Plaintiffs' proposed state law claim. Plaintiffs disagree and ask the Court to exercise supplemental jurisdiction over the claims. They claim there is no question that a "common nucleus of facts" underlie Plaintiffs' federal and state law claims. They further point out that the proposed new Kansas Tort Claims Act causes of action and the outrage claim rely on the same background facts as alleged in the original complaint, with only minimal additions.
Under 28 U.S.C. § 1367(a), district courts are granted "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." "Once federal question jurisdiction exists, it is within the trial court's discretion to exercise supplemental jurisdiction over those state law claims that derive from a common nucleus of facts."
Defendants move to strike several paragraphs of Plaintiffs' proposed amended complaint because they are "scandalous accusations that bear no relation to Plaintiff's claims" and raise matters that are immaterial, impertinent and irrelevant to the determination of the legal issues. Plaintiffs argue that the challenged paragraphs contain allegations that are relevant and material to the claims, especially to her Section 1983 and Title IX claims.
Under Federal Rule of Civil Procedure 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike a pleading or part of a pleading under Rule 12(f), however, are disfavored as a drastic remedy and because they may often be made as a dilatory tactic.
The Court has reviewed the challenged allegations in Plaintiffs' proposed amended complaint and does not find that they could have "no possible relation to the controversy" at issue or that those allegations are "entirely immaterial to the underlying claims" in this case. The Court does not find the challenged paragraphs to be redundant, immaterial, impertinent, or scandalous. Defendants' request to strike the challenged paragraphs is therefore denied.
Doe has also filed a motion requesting leave to continue proceeding in this matter by the pseudonym "Jane Doe," even though she has now reached the age of majority. She bases her request on the what she claims are the deeply personal, private matters alleged in the complaint that occurred when she was a minor.
The privacy protections of Fed. R. Civ. P. 5.2(a) provide that court filings containing "the name of an individual known to be a minor" may include only "the minor's initials."
Proceeding under a pseudonym in federal court is, by all accounts, "an unusual procedure."
There is a substantial benefit to maintaining open court proceedings, and thus the public has an interest in knowing the identity of litigants.
The Tenth Circuit also has "held that it is proper to weigh the public interest in determining whether some form of anonymity is warranted." If a court grants permission to proceed using a pseudonym, it is often with the requirement that plaintiff's real name be disclosed to defendants and the court but kept under seal thereafter.
In a recent case from this District, Doe H. v. Haskell Indian Nations University,
Without minimizing the importance of maintaining open court proceedings, the Court determines under the specific and unique facts of this case that Doe should be permitted to continue in this action under her pseudonym. The fact that Doe was a minor at all times material to the allegations of the complaint is at the forefront of the Court's analysis. The allegations involve matters of a highly sensitive and personal nature, which occurred while Doe was a minor high school student. There is a potential danger of physical and emotional harm to Doe if her identity is publicly disclosed in this lawsuit. In her original Complaint, Doe alleges that after her first report of sexual harassment by Hutchinson, a popular football coach, she was subjected to other retaliatory and intimidating actions by Defendants and other community members, including having her car tires slashed in the school parkinng lot. There is a risk that public disclosure of Doe's identity in this case might lead to further such incidents of retaliation and intimidation against Doe. She would be at risk for the injury litigated against (retaliation), and the possibility of resulting physical and/or emotional harm. On the other hand, Defendants would not be prejudiced by Doe continuing to proceed under her pseudonym in this matter because they already know her identity. Nor does the Court see any benefit to the public from learning Doe's identity and associating her with any salacious details that may come out of this case. The Court therefore grants Plaintiff Doe's motion to continue proceeding in this action under the pseudonym "Jane Doe."
