Rebecca Grady Jennings, District Judge United States District Court.
This matter is before the Court on forty motions filed by the Defendants Bradley Schuhmann ("Schuhmann"), Kenneth Betts ("Betts"), Curtis Flaherty ("Flaherty"), Matthew Gelhausen ("Gelhausen"), Julie Schmidt ("Schmidt"), Brandon Wood ("Wood"), Brandon Paul Paris ("Paris"), Casey Scott ("Scott"), the City of Louisville/Jefferson County/Louisville Consolidated Government ("Metro Government"), Boy Scouts of America ("BSA"), Lincoln Heritage Counsel, Inc. ("LHC"), Learning for Life ("LFL"), and Learning for Life Lincoln Chapter, Inc. ("LFLLC")
This consolidated case
B.L. alleges that in 2008 and 2009, Defendant Schuhmann, while acting as an LMPD officer and Boy Scout leader, sexually harassed and assaulted B.L., solicited sexual photographs, solicited sex, and transmitted sexual material. See B.L. v. Bradley Schuhmann, et al., 3:18-cv-00151 ("Case 151") [DE 1-4, Sec. Am. Compl. ¶ 2]. B.L. was a minor at that time. Id. at ¶ 76.
B.L. filed suit on October 20, 2017. B.L. claims assault, sexual assault, harassment,
Motions to dismiss were filed in B.L.'s case by Defendants Schuhmann, Betts, Flaherty, Gelhausen, Schmidt, Wood, Metro Government, and the Boy Scout Defendants. [DE 22; 12; 14; 16; 13; 10; 11; 15; respectively]. B.L. filed responses, [DE 37; 30; 31; 27; 32; 26; 29; 28], and replies were filed by Schuhmann, Betts, Flaherty, Schmidt, Wood, Metro Government, and the Boy Scout Defendants, [DE 52; 42; 45; 50; 38; 44; 43]. No reply was filed by Gelhausen.
A.S. sued on February 15, 2018, for offenses alleged to have occurred in 2010. See A.S. v. Louisville/Jefferson County Metro Government, et al., 3:18-cv-00152 ("Case 152") [DE 1-1, Ver. Compl. ¶ 2]. A.S. claims assault, sexual assault, harassment, and battery against Betts in Count I. Id. at ¶¶ 65-72. In Counts II and III, A.S. claims vicarious liability and negligent hiring, entrustment, training, supervision, and retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 73-82. A.S. sues these same Defendants, as well as Betts, Wood, Schmidt, and Paris, for intentional infliction of emotional distress, negligence, fraud by omission/duty to disclose, fraudulent concealment, failure to report, and childhood sexual assault in Counts IV, V, VI, VII, VIII, and IX, respectively. Id. at ¶¶ 83-122. In Count X, A.S. claims gender and age discrimination in violation of state and federal statutes against Metro Government. Id. at ¶¶ 123-30. In Count XI, A.S. brings a claim for hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.
In A.S.'s case, motions to dismiss were filed by Defendants Betts, Flaherty, Metro Government, and the Boy Scout Defendants. [DE 63; 65; 62; 64]. A.S. filed responses, [DE 69; 70; 68; 66], and replies were filed, [DE 72; 75; 74; 66].
K.W. sued on November 15, 2017, alleging offenses in 2011 and 2013. See K.W. v. Kenneth Betts, et al., 3:18-cv-00153 ("Case 153") [DE 1-3, First Am. Compl ¶ 2]. K.W. claims assault, sexual assault, harassment,
In K.W.'s case, motions to dismiss were filed by Defendants Betts, Wood, Flaherty, Schmidt, Paris, Metro Government, and the Boy Scout Defendants. [DE 81; 79; 85; 82; 83; 80; 84; respectively]. K.W. responded, [DE 92; 86; 93; 91; 89; 88; 87], and the moving Defendants replied, [DE 97; 94; 102; 101; 99; 98]. No reply was filed by Paris.
N.C. sued on March 8, 2017, alleging offenses in 2011. See N.C. v. Brandon Wood, et al., 3:18-cv-00157 ("Case 157") [DE 1-115, Sec. Am. Compl. ¶ 2]. N.C. brings claims for assault, sexual assault, harassment, and battery against Wood in Count I. Id. at ¶¶ 69-76. In Count II, N.C. brings a claim for sexual harassment against Betts. Id. at ¶¶ 77-83. In Counts III and IV, N.C. brings claims for vicarious liability and negligent hiring, entrustment, training, supervision, and retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 84-93. N.C. asserts claims against these same Defendants, as well as Betts and Wood, for intentional infliction of emotional distress, negligence, fraud by omission/duty to disclose, fraudulent concealment, failure to report, and childhood sexual assault in Counts V, VI, VII, VIII, IX, and X, respectively. Id. at ¶¶ 94-133. In Count XI, N.C. claims gender and age discrimination under state and federal statutes against Metro Government. Id. at ¶¶ 134-41. In Count XII, N.C. claims hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.
In Plaintiff N.C.'s case, Defendants Betts, Wood, Flaherty, Metro Government, and the Boy Scout Defendants have moved to dismiss. [DE 107; 104; 108; 105; 106]. N.C. responded, [DE 118; 110; 121; 119; 117], and replies were filed, [DE 131; 123; 132; 126; 128].
E.B. sued on February 19, 2018, alleging offenses between 2010 and 2013. See E.B. v. Kenneth Betts, et al., 3:18-cv-00158 ("Case 158") [DE 1-2, Compl. at ¶ 2]. Unlike the other Plaintiffs, E.B. does not allege to have been a minor. E.B. brings
In E.B.'s case, Defendants Betts, Flaherty, Metro Government, and the Boy Scout Defendants moved to dismiss. [DE 139; 140; 135; 136]. Responses were filed by E.B., [DE 149; 151; 144; 146], and replies were filed by the moving Defendants, [DE 158; 159; 154; 155].
F.A. sued on December 26, 2017, for alleged offenses in 2009. See F.A. v. Kenneth Betts, et al., 3:18-00176 ("Case 176") [DE 1-4, First Am. Compl. ¶ 2]. F.A. brings claims for assault, sexual assault, harassment, and battery against Betts in Count I. Id. at ¶¶ 68-75. In Counts II and III, F.A. brings claims for vicarious liability and negligent hiring, entrustment, training, supervision, and retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 76-85. F.A. sues these same Defendants, and Betts, for intentional infliction of emotional distress, negligence, fraud by omission/duty to disclose, fraudulent concealment, failure to report, and childhood sexual assault in Counts IV, V, VI, VII, and IX, respectively. Id. at ¶¶ 86-125. In Count X, F.A. claims hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.
In F.A.'s case, Defendants Betts, Flaherty, Wood, Scott, Metro Government, and the Boy Scout Defendants moved to dismiss. [DE 163; 166; 161; 168; 162; 167]. F.A. filed responses, [DE 173; 172; 169; 175; 170; 174], and replies were filed by all but one of the moving Defendants, [DE 180; 182; 176; 179; 183]. No reply was filed by Scott.
C.F. sued on August 31, 2017, alleging offenses from 2012 to 2013. See C.F. v. Kenneth Betts, et al., 3:18-cv-00306 ("Case 306") [DE 1-2, First Am. Compl. ¶ 2]. C.F. brings claims for assault, sexual assault, harassment, and battery against Betts in Count I. Id. at ¶¶ 70-77. In Counts II and III, C.F. brings claims for vicarious liability and negligent hiring, entrustment, training, supervision, and retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 78-87. C.F. sues these same Defendants, as well
Finally, in C.F.'s case, motions to dismiss were filed by Defendants Betts, Wood, Metro Government, and the Boy Scout Defendants.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted[.]" Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). When considering a motion to dismiss, courts must presume all factual allegations in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted). The court must determine whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "But the district court need not accept a bare assertion of legal conclusions." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation omitted). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation and quotation omitted).
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep't of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
Defendants Betts, Woods, Flaherty, and Paris argue that Plaintiffs' claims should be dismissed because Plaintiffs' use of a pseudonym violates Fed. R. Civ. P. 10(a) ("[t]he title of the complaint must name all of the parties") and 17(a)(1) ("[a]n action must be prosecuted in the name of the real party in interest"). The Court addressed this issue in its August 15, 2018 Order granting Plaintiffs' leave to proceed under pseudonyms. [DE 57]. Accordingly, for the reasons stated in the August 15, 2018 Order, the motions to dismiss on these grounds are denied.
Dismissal of a claim under Rule 12(b)(6) on grounds that it is barred by a limitations period is warranted only if "the allegations in the complaint affirmatively show that the claim is time-barred." Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (emphasis added). In other words, it must be "apparent from the face of the complaint that the limit for bringing the claim[s] has passed." Bishop v. Lucent Techs., Inc., 520 F.3d 516, 520 (6th Cir. 2008) (alteration in original)(quoting Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir. 1992)).
Defendants assert the one-year statute of limitations for personal injuries under KRS 413.140(1)(a) applies to Plaintiffs' claims. Plaintiffs (except for E.B) assert the ten-year statute of limitations under KRS 413.249 applies to all of their claims. First, the Court will address Defendants' argument that the ten-year statute of limitations in KRS 413.249 is unconstitutional. Then, the Court will address to which defendants and claims KRS 413.249 applies. Finally, the Court will address the applicable statute of limitations for each of the claims asserted.
Defendants advance two arguments that KRS 413.249 is unconstitutional. First, the Jefferson Circuit Court in Cape Publ'ns, Inc. d./b/a The Courier Journal v. Commonwealth, 02-CI-6338 (Jefferson Cir. Ct., Div. 1 Jan. 26, 2004), found Section (3) of the statute, which requires sealing of the complaint in certain instances, unconstitutional. Defendants argue that because Section (3) is unconstitutional and inseverable from the other sections, the entire statute is unconstitutional. Second, Defendants assert the statute is special legislation banned by Section 59 of the Constitution of the Commonwealth of Kentucky.
Cape Publications found that the title of the statute, "Action relating to
As a threshold issue, the opinion from Cape Publications is not binding precedent. The issue has never been addressed in a published opinion or by the Kentucky Supreme Court. Thus, Section (3) of KRS 413.249 is still good law. Ky. R. Civ. P. 76.28(4)(c) (unpublished state-court decisions are not binding precedent in any other case in any court of Kentucky). The Court need not determine here whether Section (3) is unconstitutional because, even assuming it is, Section (2) is severable. KRS 446.090 provides:
KRS 446.090. The presumption is that if KRS 413.249(3) is unconstitutional, Section (2) will remain in force, unless either: (a) the statute provides otherwise; or (b) Section (2) is so "essentially and inseparably connected with and dependent upon" Section (3) that it is apparent the General Assembly would not have enacted Section (2) without Section (3).
Neither exception to the presumption of severability applies here. First, KRS 413.249 contains no language stating the statute is not severable. Second, Section (2) is not "essentially and inseparably connected and dependent upon" Section (3). Section (3) provides that if the allegations are more than 10 years old, the complaint and case will be sealed until the court does one of three actions: rules on the motion to seal, rules on a motion to dismiss, or rules on a motion for summary judgment (where defendant has moved to seal). The initial sealing of the record provided by Section (3) is intended for the benefit of a defendant. Section (2) provides the 10 year-statute of limitations for civil cases that seek damages arising out of childhood sexual abuse and/or assault. The section is intended to benefit of victims of childhood sexual assault/abuse. The purposes of these sections are different and do not depend on one another. Either section could operate without the other and thus Section (2) is severable. See Louisville v. Miller, 697 S.W.2d 164, 166-67 (Ky. App. 1985) ("[I]t is presumed that legislative acts have severable provisions, if what remains after severance is fully operable as a law.").
Defendants argue that Sections (1) and (2) of KRS 413.249 are prohibited "special legislation" because they draw an arbitrary distinction between the class of persons which can be victims of "childhood sexual assault" and "childhood sexual abuse" by defining a "child" in Section (1) as meaning "a person less than eighteen (18) years old." In other words, Defendants argue a person who was sexually assaulted or sexually abused a day after his or her eighteenth birthday would not get the benefit of the extended statute of
Section 59 of the Kentucky Constitution is entitled "Local and special legislation." It provides: "The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely:... [t]o regulate the limitation of civil or criminal causes." KY. CONST. § 59. Kentucky courts follow a two-part test for determining whether a law is constitutional under Section 59: (1) It must apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification. Zuckerman v. Bevin, 565 S.W.3d 580, 600 (Ky. 2018), reh'g denied (Feb. 14, 2019); Schoo v. Rose, 270 S.W.2d 940, 941 (Ky. 1954). Under the second requirement, "a substantial and justifiable reason [must appear] from legislative history, from the statute's title, preamble or subject matter, or from some other authoritative source." Tabler v. Wallace, 704 S.W.2d 179, 186 (Ky. 1985). In applying this test, the Court "is to draw all reasonable inferences and implications from the act as a whole and thereby sustain its validity." Waggoner v. Waggoner, 846 S.W.2d 704, 707 (Ky. 1992) (citing Graham v. Mills, 694 S.W.2d 698 (Ky. 1985)). "[I]f any possible reasonable basis can be conceived to justify the classification, then it should be upheld." Meredith v. Ray, 292 Ky. 326, 166 S.W.2d 437, 439 (1942).
Sections (1) and (2) of KRS 413.249 are not special legislation prohibited by Section 59. The legislation satisfies the first element of the test as it applies equally to all in the class, i.e., those individuals under age 18 when the sexual assault/abuse occurred.
Under the second requirement, distinctive and natural reasons support the statute's defining of "childhood sexual assault" and "childhood sexual abuse" as applying to persons under age 18. The legislature's intent to provide an extended statute of limitations for sexual assault or abuse during childhood is obvious from the title, language, and subject matter of Sections (1) and (2). Judge Cunningham reached a similar conclusion in C.F.'s case before its removal to federal court, denying Betts's argument that KRS 413.249 is special legislation:
Opinion and Order, 17-CI-4585, C.F. v. Kenneth Betts, et al., at 5-6 (Dec. 28, 2017, Jefferson Cir. Ct., Div. 4). This purpose is also found in the legislative history in Section 2 of Senate Bill 53, which enacted
Defendants argue that the statute of limitations in KRS 413.249 does not apply to the claims against the Defendants that are "non-perpetrators"
The Court first looks to the statute.
Section (1)(b) defines childhood sexual abuse as:
KRS § 413.249(1)(a)-(b) (emphasis added). Thus, the statute defines "childhood sexual assault" and "childhood sexual abuse" as an act against a person less than 18 years old that meets the criteria defining a felony or misdemeanor in certain expressly enumerated criminal statutes. Thus, the plain language supports a finding that the 10-year statute of limitations only applies to claims which involve allegations that fall into one or more of the enumerated offenses.
Kentucky law allows individuals and corporate entities to be criminally liable for the criminal act of another under KRS 501.020 (liability for conduct of another; complicity); KRS § 502.050 (corporate liability), KRS 506.080 (criminal facilitation). However, KRS 413.249 does not enumerate Kentucky's statutes criminalizing complicity and facilitation. If the legislature had intended for KRS 413.249 to include criminal complicity or facilitation, it would have included those criminal statutes. However, two of the statutes enumerated in Section (1) of KRS 413.249 involve less direct forms of "childhood sexual assault": human trafficking (KRS 529.100)
Although the Supreme Court of Kentucky has not addressed this issue, it was cited in dicta by the Kentucky Court of Appeals in Roman Catholic Bishop of Louisville v. Burden, 168 S.W.3d 414, 418 (Ky. App. 2004) and in Knaus v. Great Crossings Baptist Church, Inc., No. 2009-CA-000141-MR, 2010 WL 476046, at *2 (Ky. Ct. App. Feb. 12, 2010)(unpublished).
In Burden, an alleged victim of sexual assault sued the Archdiocese for sexual abuse during a church sponsored event by a priest who worked for the Archdiocese. Burden, 168 S.W.3d at 415. The Archdiocese argued KRS 413.249 applied. The Jefferson Circuit Court agreed, but held the statute of limitations was tolled under KRS 413.190. Id. at 418. On appeal, the Kentucky Court of Appeals only addressed whether the Jefferson Circuit Court's opinion and order was appealable. Id. at 418-19. The court did not address the ruling that KRS 413.249(2) applied to the Archdiocese. That said, in setting out the procedural posture of the case, the court quotes at length from a different order in that same case which held:
Id. at 417-18 (emphasis added). The Kentucky Court of Appeals noted "[w]e believe this to be a proper interpretation of the applicable law." Id. at 418 n.1.
Six years later, in an unpublished decision, Knaus, the Kentucky Court of Appeals cited the language from the same order cited in Burden, stating "[w]e ... find KRS 413.249(2) to be inapplicable, as our Courts have previously held that this statute does not apply to claims against third parties, but only to the perpetrator him or herself." 2010 WL 476046, at *2 (citing Burden, 168 S.W.3d at 418). Knaus alleged sexual abuse by a youth minister employed by Great Crossings Baptist Church ("Great Crossings"). Id. at *1. Great Crossings moved to dismiss, arguing that KRS 413.249, which then had a five-year limitation, applied and had expired. Id. at **1-2. The Plaintiff argued the general one-year statute of limitations applied and was tolled under KRS 413.190(2) for fraudulent concealment. Id. at *2.
The trial court in Knaus permitted discovery on whether Great Crossings had concealed knowledge of abuse or obstructed investigation of abuse claims to determine whether the statute of limitations had been tolled. Id. at *1. The trial court held that KRS 413.249 was "inapplicable (although entitled `Action relating to childhood sexual assault'), because the statute contains no indication that it is applicable to third parties (such as a church employer)." Id. at *2. It also held the one-year statute of limitation was not tolled under KRS 413.190(2) because there was no evidence of concealment or obstruction. Id. While the Kentucky Court of Appeals did not analyze KRS 413.249 in detail, it
Taking all of this into account, it is likely the Supreme Court of Kentucky would determine that the statute of limitation in KRS 413.249 applies only to those claims that involve conduct that falls within at least one of the expressly enumerated criminal statutes listed in Section 1(a)-(b). Thus, the Court will apply KRS 413.249 consistent with its plain language, i.e., the ten-year statute of limitations applies to claims of conduct that falls within the enumerated statutes defining childhood sexual assault or abuse. This determination will ultimately involve questions of fact.
Counts I of each complaint brings a claim for assault, sexual assault, harassment, and battery. B.L. brings this claim against Schuhmann. A.S., K.W., N.C., E.B., F.A., and C.F. bring this claim against Betts. N.C. also brings this claim against Wood. To the extent these claims allege sexual assault of a minor, they come within the limitations under KRS 413.249, as those claims involve allegations of childhood sexual abuse or assault.
The applicable statutes of limitations for the claims in Counts I for assault, harassment, and battery is Kentucky's one-year statute of limitations for personal injuries in KRS 413.140(1). Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 296 (Ky. Ct. App. 1993) (one-year statute of limitations applies to battery); Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 727 (Ky. 2009) (recognizing sexual assault as a form of battery). Likewise, the one-year statute of limitations will apply to E.B.'s claims for sexual assault within Count I if E.B. was not a minor during the relevant timeframe.
Having determined that the statute of limitations in KRS 413.249 applies to the sexual assault claims for the minor plaintiffs, the Court must resolve which version of the statute of limitations applies. KRS 413.239 was amended effective June 19, 2017, changing the limitations period from five years to ten years. The amendment also added time for bringing suit within ten years "of the conviction of a civil defendant for an offense included in the definition of childhood sexual abuse or childhood sexual assault." KRS 413.249(2)(d).
Schuhmann argues that the previous five-year statute of limitation applies to B.L.'s sexual abuse/assault claims. [DE 22]. Other defendants similarly argue that the previous five-year statute of limitations should apply to B.L.'s, N.C.'s, and F.A.'s claims. [DE 14, 108, 163, 166]. This argument does not impact the claims of A.B., K.W., or C.F., as those would still be timely even if the previous five-year statute of limitation applied.
KRS 446.080 provides that "[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature ...." KRS 446.080(1). It further provides "[n]o statute shall be construed to be retroactive, unless expressly
Here, the 2017 Amendment to KRS 413.249 does not expressly state that it is "retroactive." Senate Bill 53, which enacted KRS 413.249 in July 1998, provides:
(emphasis added). And the current version of KRS 413.249 provides in the Compiler's Notes that the 1998 version of "Section 2 of Acts 1998, ch. 577 reads: `This Act shall apply to all actions which accrue before or after the date this Act becomes law.'" That said, the later amendments to the statute in 2007, 2013, and 2017, all of which enlarged the opportunities for victims of sexual assault to pursue their claims, included no comment on retroactivity. KRS 413.249 (eff. June 25, 2007); KRS 413.249 (eff. June 25, 2013); KRS 413.249 (eff. June 29, 2017). The parties have not provided the Court with any legislative history for those amendments to clarify whether the legislature intended the 2017 Amendment to be retroactive.
Under Kentucky law, the rule against retroactive application without legislative expression does not apply to "remedial" statutes or statutes that relate only "to remedies or modes of procedure," as opposed to substantive rights. Vinson, 30 S.W.3d at 168; Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 36 (Ky. 1991)(new standard for reopening workers' compensation awards applied retroactively). The Kentucky Supreme Court explained in Vinson that substantive amendments to a statute are "[a]mendments which change and redefine the out-of-court rights, obligations and duties of persons in their transactions with others ... come within the rule that statutory amendments cannot be applied retroactively to events which occurred prior to the effective date of the amendment." Vinson, 30 S.W.3d at 168. On the other hand, however, statutory amendments that do not affect substantive rights, "remedial" amendments, "do not come within the rule prohibiting retroactive application." Id. at 169 (citing Peabody Coal, 819 S.W.2d at 33).
In Stone, the Kentucky Court of Appeals, then the state's highest court,
Kentucky case law supports the assertion that the affirmative defense of an expired statute of limitation is a vested right of which a defendant cannot be divested through legislative action. Lawrence v. City of Louisville, 96 Ky. 595, 29 S.W. 450, 451 (1895) (holding that, if a right to maintain an action has lapsed, "no legislative authority can reimpose the obligation" upon the defendant). This fits with the rule stated in Barnes, Stone, and Kiser. Thus, if any Plaintiff's statute of limitations under KRS 413.249 expired before the filing of suit, that right became vested and cannot be divested through the 2017 Amendment of KRS 413.249.
N.C. alleges he was 19 in 2013. See Case 157, [Sec. Am. Compl. ¶ 2]. Flaherty asserts the five-year statute of limitations in KRS 413.249 expired for N.C. in 2017, five years after turning 18. N.C. filed suit on March 8, 2017. It is not clear from the face of the complaint whether five years from N.C.'s 18th birthday ran before or after March 8, 2017. Because the running of the statute of limitations does not appear on the face of the Complaint, the Court will deny the motions to dismiss N.C.'s complaint on this basis.
Betts asserts F.A. turned 18 in 2012 and that a five-year statute of limitation expired in 2017 before the 2017 Amendment to KRS 413.249 became effective on June 29, 2017. [DE 163, Exh. A, Betts Mot. Dis. at 6544; DE 173, F.A. Resp.]. To establish F.A.'s date of birth, Betts attaches a uniform citation that states F.A.'s date of birth. [DE 163, Exh. A]. It is unclear how the uniform citation was garnered. This issue cannot be determined on the face of B.L.'s complaint, and would require the Court to decide an issue of fact. It is thus not appropriate at this stage of the proceedings and Court will deny the motions to dismiss F.A.'s complaint on this basis.
Schuhmann states that B.L. turned 18 in 2011, stating B.L.'s date of birth, but without attaching any proof. [DE 22-1, Schuhmann Sealed Mot. Dis. at 966; DE 37, B.L. Resp.]. Flaherty takes a different approach. Flaherty alleges that because the Explorer Program was open to children from the age of 14 through 19, B.L. must have been at least age 14 in 2008, and therefore would have turned 18 before the calendar year 2012. [DE 14, Flaherty Mot.
Each plaintiff asserts vicarious liability against Flaherty, Metro Louisville, and the Boy Scout Defendants.
Kentucky's one-year statute of limitations for personal injuries requiring the action to be "commenced within one (1) year after the cause of action accrued" governs the state claims for assault, harassment, battery, negligence, and negligent hiring/entrustment/training/supervision. KRS 413.140(1); see, e.g., DeLong v. Arms, 251 F.R.D. 253, 255 (E.D. Ky. 2008) (one-year Kentucky statute of limitations applies to negligence); Rigazio, 853 S.W.2d at 296 (one-year statute of limitations applies to battery); Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 727 (Ky. 2009) (recognizing sexual assault as a form of battery); White v. Whitaker Bank, Inc., No. 04-CI-05225, 2008 Ky. App. Unpub. LEXIS 95, at *12 (Ky. Ct. App. 2008) (citing Grego v. Meijer, Inc., 187 F.Supp.2d 689, 694 (W.D. Ky. 2001)) ("[T]he statute of limitations to be applied to a negligent supervision claim is the limitations period applicable to the underlying tort committed by the employee.").
Under Kentucky law, an action is generally said to "accrue" when the injury occurs. Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky. 1972). Thus, the claims for assault, battery, and harassment falling out-side the statute of limitations for childhood sexual assault/abuse and the claims for negligent hiring/entrustment/training/supervision, and negligence, accrued when the injury occurred. That said, Plaintiffs would be entitled to tolling of the statute
Plaintiffs also argue that their claims were equitably tolled under KRS 413.190(2). Kentucky has codified the doctrine of fraudulent concealment by enacting KRS 413.190(2). See Munday v. Mayfair Diagnostic Lab., 831 S.W.2d 912, 914-15 (Ky. 1992) (the statute "is simply a recognition in law of an equitable estoppel... to prevent fraudulent or inequitable application of a statute of limitations"). The statute provides:
KRS 413.190(2) (emphasis added). Thus, the statute of limitations may be tolled when the defendant absconds, conceals himself, or "by any other indirect means obstructs the prosecution of the action[.]" Id.
The doctrine of fraudulent concealment focuses on conduct by the defendant designed to prevent discovery of either the injury or the responsible party. McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 19-20 (Ky. 1990). The equitable estoppel doctrine precludes a defendant from asserting the statute of limitations when the defendant has taken actions "calculated to mislead or deceive and to induce inaction by the injured party." Adams v. Ison, 249 S.W.2d 791, 793 (Ky. 1952). Once the "obstruction" is removed, a plaintiff has a duty to exercise reasonable diligence in pursuing his or her claims. See Cuppy v. Gen. Accident Fire & Life Assurance Corp., 378 S.W.2d 629, 630-31 (Ky. 1964).
Plaintiffs alleged the Defendants concealed knowledge. See e.g. Case 158, [First Am. Compl. at ¶¶ 45, 50]. Defendants argue that the statute of limitations cannot be tolled for concealment because Plaintiffs "had the knowledge, or the means to obtain knowledge, of the true facts years before filing this lawsuit" and "exercised no diligence, much less reasonable diligence" in discovering their claims. See, e.g., [DE 136, at 5758]. What Defendants knew and when Plaintiffs had the requisite knowledge of same, are questions of fact better reserved for trial or upon a summary judgment motion. R.T. Vanderbilt Co. v. Franklin, 290 S.W.3d 654, 659 (Ky. App. 2009) ("If there is a factual dispute regarding the reasonable diligence of the plaintiff, the question is properly submitted to the jury for resolution."). At this early stage, whether equitable tolling applies to claims subject to the one-year statute of limitations is premature. Thus, the Court will deny the motions to dismiss the assault, battery, harassment, and other negligence-based claims on grounds of statute of limitations.
Kentucky's five-year statute of limitations under KRS 413.120 governs the
Under Kentucky law, Plaintiffs' intentional infliction of emotional distress claims and failure to report will accrue when the injury occurred. Caudill, 481 S.W.2d at 669. Thus, those claims must be commenced within five years after the injury occurred, unless the action is tolled. Thus, the intentional infliction of emotional distress ("IIED") claims for A.S., K.W., N.C., E.B., and C.F. would all be timely filed within five years of the last date of injury without considering tolling under KRS 413.170(a)(tolling during infancy). B.L. alleges the last act of sexual assault/abuse occurred in 2009. [DE 1-4, Sec. Am. Compl. ¶ 2]. A such, the claim for IIED accrued in 2009 and the five-year statute of limitation ran in 2014. Similarly, F.A. alleges the last act of sexual assault/abuse occurred in 2010. [DE 1-1, First. Am. Compl. ¶ 69]. As a result, the claim for IIED accrued in 2010, and the five-year statute of limitation ran in 2015. Even so, B.L. and F.A. would also be entitled to tolling of the statute under KRS 413.170(a) and thus the claims would not accrue until their eighteenth birthdays. Because this information is not established on the face of B.L.'s and F.A.'s complaints, the Court will deny the motions to dismiss the IIED claims and failure to report claims on grounds of statute of limitations.
As to the failure to report claims, there are issues of fact relating to potential equitable tolling. For instance, in Roman Catholic Diocese of Covington v. Secter, the Kentucky Court of Appeals held that the statute of limitations was tolled against the Diocese. The Diocese concealed its knowledge of the teacher's sexual abuse, which obstructed the alleged victim, Secter, from discovering his cause of action against the Diocese. 966 S.W.2d 286, 290 (Ky. Ct. App. 1998). The court found the Diocese concealed its knowledge of the teacher's behavior before the time that Secter was abused and continued to receive reports of sexual abuse of other students during part of the time Secter was abused. Id. Further, the court found the Diocese had violated its statutory duty to report child abuse, noting "where the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct." Id. (quoting Munday, 831 S.W.2d at 915). The court held "[t]he Diocese failed to comply with this duty, and such failure constitutes evidence of concealment under KRS 413.190(2)." Id. As this stage of the proceeding, whether equitable tolling would apply to the failure to report claims involves issues of fact.
Claims for fraud do not accrue until discovery of the fraud but must be commenced within ten years after perpetration of the fraud. KRS 413.130(3). Plaintiffs' discovery of the alleged fraud is an issue of fact. As discussed above, whether Defendants
42 U.S.C. § 1983 and 20 U.S.C. § 1681 do not provide their own statutes of limitations. As a result, courts use the statute of limitations in the general or residual statute for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), partially superseded by statute as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (§ 1983 claims); Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996) (Title IX claims); Bonner v. Perry, 564 F.3d 424, 430-31 (6th Cir. 2009).
Defendants move to dismiss based on various pleading insufficiencies in Plaintiffs' complaints. The Court will discuss each argument below.
Along with the sexual assault claims the Plaintiffs make in Count I against the perpetrator Defendants, the Plaintiffs (except E.B.), make separate claims for "childhood sexual abuse" and "childhood sexual assault" under KRS 413.249 against all Defendants. Betts moves to dismiss the childhood sexual assault and abuse claims made by B.L. under KRS 413.249, arguing that KRS 413.249 is
KRS 413.249 is part of chapter 413, "Limitation of Actions", within the Kentucky Revised Statutes. Although Section (1) the statute defines "childhood sexual assault" and "childhood sexual abuse," this is for determining which civil actions the longer statute of limitations in Section (2) of the statute applies. No language in KRS 413.249 suggests that it creates a separate cause of action apart from a claim of sexual assault. Statutory rights of action, instead, are found under chapter 411, "Rights of Action and Survival of Actions," of the Kentucky Revised Statutes. Accordingly, the Court will dismiss each of the Plaintiffs' claims for childhood sexual assault and abuse made under KRS 413.249 against the other defendants.
Metro Government moves to dismiss claims asserted by B.L., A.S., K.W., N.C., and C.F. for violating the Kentucky Civil Rights Act ("KCRA") for age and sex discrimination under KRS 344.040 and KRS 344.070.
Both KRS 344.040 and KRS 344.070 are expressly limited to discrimination against those "age forty (40) and over." KRS § 344.040(1)(a); KRS § 344.070. To state a claim under KRS 344.040 for age discrimination, Plaintiffs must state facts, if true, that would establish that Plaintiffs were: (1) 40 years or older; (2) discharged; (3) qualified for the position from which they were discharged; (4) and replaced by a significantly younger person. Williams, 184 S.W.3d at 496 (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997)). While the prima facie elements do not constitute a pleading standard, a plaintiff must allege specific facts necessary to show that they are entitled to relief against this legal backdrop.
The Plaintiffs assert claims for quid pro quo sexual harassment on the basis of sex discrimination under KRS 344.040, entitled "Unlawful discrimination by employers ...," which provides:
KRS § 344.040(1)(a) (emphasis added). KRS 344.040(a)(1) thus prohibits an "employer" from failing to hire or refusing to hire an individual, or discharging an individual, for any of the enumerated discriminatory reasons.
The Kentucky Supreme Court has determined that KRS 344.040 "afford[s] protection from discrimination only to those in an employer-employee relationship." Brooks v. Lexington-Fayette Urban Cty. Housing Auth., 132 S.W.3d 790, 811 (Ky. 2004) (Keller, J., concurring) as modified on denial of reh'g (May 20, 2004) (quoting Bank One, Kentucky v. Murphy, 52 S.W.3d 540, 547 n.2 (Ky. 2001) (Keller, J., concurring in part and dissenting in part)); see also Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015) ("An entity can be held liable in a Title VII action only if it is an `employer' of the complainant."). None of the Plaintiffs allege that discrimination occurred in the employee-employer context, or that Metro Government was their employer. Thus, even taking the Plaintiffs' allegations as true, the claims under KRS 344.040 do not allege sufficient facts to state a claim for relief for gender discrimination against Metro Government under KRS 344.040.
KRS 344.070, [d]iscrimination in apprenticeship or training, provides:
KRS § 344.070 (emphasis added).
As discussed above, Plaintiffs do not allege that Metro Government was their employer. As a result, Metro Government would not be subject to KRS 344.070 as an employer.
Nor do Plaintiffs allege a factual basis to support that Metro Government was a "joint labor-management committee." Neither the KCRA nor its federal counterparty define the term "joint labor-management committee."
Finally, the Plaintiffs do not allege a factual basis to support that Metro Government was a "labor organization." KRS § 344.030 defines "labor organization" as:
Ky. Rev. Stat. Ann. § 344.030 (West). Thus, by its plain terms, a "Labor organization" must be in the employment context as it is an organization "in which employees participate." Again, Plaintiffs do not allege to have been employees of Metro Government.
Plaintiffs neither allege that discrimination occurred in the employee-employer context nor that Metro Government was their employer, a joint labor-management committee, or labor organization. Thus, even taking the Plaintiffs' allegations as true, the claims under KRS 344.070 do not allege appropriate facts to state a claim for relief for gender discrimination against Metro Government under KRS 344.070.
All Defendants except Metro Government move to dismiss Plaintiffs' IIED
Kentucky courts characterize IIED as a gap-filler tort claim. Rigazio, 853 S.W.2d at 299. Under Kentucky law, "where an actor's conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie." Id. Thus, "a plaintiff cannot maintain both a negligence claim and an [outrage] claim based on a single set of facts." Childers v. Geile, 367 S.W.3d 576, 581 (Ky. 2012). The Court must eventually inquire "whether the facts support simple or gross negligence leading to a personal injury, some other specific intent tort, or a claim that conduct was intended or the actor should have known was likely to cause emotional distress with any physical results being consequential." Id. However, while IIED is a gap-filler tort, "[t]his is not to say that it cannot be pleaded alternatively." Id. at 582; see also Kustes v. Lexington-Fayette Urban Cty. Gov't, No. 5:12-323, 2013 WL 4776343, at *2 (E.D. Ky. Sept. 3, 2013) ("A plaintiff can, however, plead an IIED claim in the alternative to a traditional tort claim.").
Plaintiffs have alleged that Defendants intentionally or recklessly caused severe emotional distress. While the facts alleged may also support Plaintiffs' traditional tort claims, it may be that certain Defendants acted only with an intent to cause emotional harm. At this early stage, the Plaintiffs' assertions must be assumed true. The mere fact that Plaintiffs have alleged both traditional tort claims and IIED claims is not grounds for dismissal of their IIED claims. Thus, the Court will permit Plaintiffs' IIED claims to proceed at this stage of the proceedings.
Some Defendants argue Plaintiffs have not sufficiently pled IIED. See, e.g., [DE 79, Wood Mot. Dis. at 3552]. The Boy Scout Defendants argue Plaintiffs have failed to plead the requisite mental state to support a claim of IIED. [DE 15, 64, 84, 106, 136, 167].
The Kentucky Supreme Court has adopted the Restatement (Second) of Torts definition of IIED:
Craft, 671 S.W.2d at 251 (quoting Restatement (Second) of Torts § 46)). To recover for IIED, a plaintiff must establish:
Osborne v. Payne, 31 S.W.3d 911, 913 (Ky. 2000).
The Boy Scout Defendants argue that the Plaintiffs make "conclusory allegations that all defendants acted deliberately" but do not "provide any facts supporting an
Wood argues that B.L. K.W., F.A., and C.F. do not sufficiently plead outrageous and intolerable conduct. See, e.g., [DE 10, Wood Mot. Dis. at 639]. Conduct is only actionable under the tort of IIED if it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 789 (Ky. 2004),
B.L. alleges that Wood, along with several other Defendants, confronted her about Schuhmann's sexual abuse while at an LMPD Explorer Camp in Atlanta, Georgia. Case 151, [Sec. Am. Compl. ¶¶ 49-54]. B.L. alleges she was ordered to leave her room and placed on a bench in a courtyard. Id. at ¶ 51. She requested her parents and/or an attorney be present during the interrogation. Id. B.L. alleges the "interrogation lasted for approximately one hour and was so severe and traumatic that it caused B.L. to become hysterically upset, causing her to sob and become extremely anxious. This is due to the fact that Defendant Schmidt and Betts were verbally abusive, victim blaming and shaming, belligerently berating B.L., and blaming her for her victimization and abuse at the hands of the Defendant Schuhmann. Defendant Flaherty also began questioning B.L. at this point." Id. at ¶ 52. B.L. alleges that after the interrogation, Wood, along with several other Defendants, forced B.L. to take them to her hotel room, searching her room and personal belongings and taking her phone. Id.
K.W. alleges that she disclosed to Wood that Betts had been abusing her. Case 153, [First Am. Compl. at ¶ 49]. She further alleges that in 2013 Wood participated at some level with a "sting" operation in which Betts asked to meet K.W. in an isolated location. Id. at ¶ 51. C.F. likewise alleges that Wood knew of Betts's sexual abuse of F.A. and failed to report it; however, C.F. seeks to file a second amended complaint, which adds claims against Wood for assault, sexual assault, harassment,
F.A. alleges Wood knew of Betts's sexual abuse of F.A. and failed to report it. Case 176, [First Am. Compl. at ¶ 43]. This allegation alone would fail to state a plausible claim for relief for IIED against Wood as it is more analogous to the second category of cases outlined in Stringer where conduct was found insufficiently "outrageous." However, F.A. alleges that all Defendants "suppressed, hid, fraudulently concealed, and caused allegations of sexual abuse to remain undiscovered...." Id. at ¶ 59. This allegation, if true, could plausibly rise to the level of conduct sufficiently outrageous. As a result, Wood's motion to dismiss F.A.'s IIED claim is denied.
The Boy Scout Defendants and Betts argue that Plaintiffs fail to sufficiently plead their fraud claims. [DE 163; DE 167]. Federal Rule of Civil Procedure 9(b) requires plaintiffs to plead fraud allegations with particularity. Fed. R. Civ. P. 9(b); see also United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 641 (6th Cir. 2003). At a minimum, plaintiffs must allege: (1) the time, place, and content of any allegedly false representations; (2) the fraudulent scheme; (3) the defendant's fraudulent intent; and (4) the resulting injury. Id. at 643 (internal quotation marks and citations omitted). "And while mental states may be alleged generally... the allegations must be made with sufficient particularity and with a sufficient factual basis to support an inference that they were knowingly made." Republic Bank & Tr. Co. v. Bear, Stearns & Co., 707 F.Supp.2d 702, 707 (W.D. Ky. 2010), aff'd, 683 F.3d 239 (6th Cir. 2012) (internal quotation marks and citations omitted).
"Rule 9(b)'s particularity requirement does not mute the general principles set out in Rule 8; rather, the two rules must be read in harmony." Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674, 679 (6th Cir. 1988). The Sixth Circuit's "liberal reading" of Rule 9(b) stems from the "influence of Rule 8." Terrell v. Tecsec, Inc., No. 06-310, 2007 WL 2670047, at *7 (E.D. Ky. Sept. 7, 2007); see also United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 503 (6th Cir. 2007) ("Rule 9(b) is not to be read in isolation, but is to be interpreted in conjunction with Federal Rule of Civil Procedure 8."). And "[c]ourts have held that [Rule 9(b)] may be relaxed where information is only within the opposing party's knowledge." Michaels, 848 F.2d at 680 (citations omitted) (collecting cases). This is particularly true when there has been no discovery. Id.
Plaintiffs make two allegations of fraud against all Defendants. First, Plaintiffs allege fraud by omission. See, e.g., Case 151, [Sec. Am. Compl. at ¶¶ 108-13]. Second, Plaintiffs allege fraudulent concealment. See, e.g., id. at ¶¶ 114-23. As to the first allegation, Rule 9(b)'s pleading requirements are relaxed because "a plaintiff in a fraud by omission suit will not be able to specify the time, place, and specific content of an omission as precisely as would a plaintiff in a false representation claim." Falk v. Gen. Motors Corp., 496 F.Supp.2d 1088, 1098-99 (N.D. Cal. 2007). Thus, "[w]here the fraud consists of omissions on the part of the defendants, the plaintiff may find alternative ways to plead the particular circumstances of the fraud.
Plaintiffs assert that the Boy Scout Defendants "kept their decades of knowledge of child sexual abuse [in the Explorer Program and other programs run through BSA] hidden from" scouts and the public. See, e.g., Case 151, [Sec. Am. Compl. at ¶ 110]. Specifically, Plaintiffs assert that Defendants "have long known that underage Explorers are at risk of being sexually molested by the police officers who are supposed to be teaching them about police work." See, e.g., id. at ¶ 37. To bolster this claim, Plaintiffs allege that Defendants have, since as early as 1920, regularly received reports detailing sexual abuse allegations tied to the Boy Scouts. See, e.g., id. at ¶¶ 61-62. Plaintiffs assert that BSA then created a system to track these transgressions and that by the time Plaintiffs joined the Explorer Program, Defendants knew that Defendants' agents "posed a danger to minor boys and girls because there had been a longstanding, consistent, and problematic history with advisers sexually abusing Youth Explorer cadets." See, e.g., id. at ¶¶ 65-68. Plaintiffs allege that Defendants perpetrated a fraud by failing to inform the public and potential cadets about this known history of abuse, which induced Plaintiffs to participate in the Explorer Program. See, e.g., id. at ¶¶ 108-13.
Considering Rule 9(b)'s relaxed pleading requirements for fraud-by-omission claims and the inherent difficulties in asserting the absence of a fact, Plaintiffs' allegations sufficiently provide a framework for relevant discovery and alert Defendants "`as to the particulars of their alleged misconduct'" so that they may respond to the complaint. Chesbrough v. VPA, P.C., 655 F.3d 461, 466 (6th Cir. 2011) (quoting Bledsoe, 501 F.3d at 503). Plaintiffs have detailed the allegedly fraudulent omission, noted the specific Defendants involved in the alleged scheme, explained why the omissions were fraudulent, and identified the injury caused by those omissions. Only Defendants possess additional relevant facts, and discovery has just begun. See Michaels, 848 F.2d at 680. Plaintiffs therefore have sufficiently pleaded fraud by omission to satisfy Rule 9(b).
As to Plaintiffs' fraudulent-concealment claims, allegations of "an affirmative act or misrepresentation by the defendant is required; mere silence on the part of the defendant is not enough." Estate of Abdullah ex rel. Carswell v. Arena, 601 F. App'x 389, 395 (6th Cir. 2015) (internal quotation marks and citation omitted); see also Evans v. Pearson Enters., Inc., 434 F.3d 839, 851 (6th Cir. 2006) (citing Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975)). Plaintiffs allege that Defendants made material misrepresentations "regarding the nature of the Explorer's [sic] Program, including but not limited to the extent of child sexual abuse in the program." See, e.g., Case 151, [Sec. Am. Compl. at ¶ 115]. But Plaintiffs fail to point to Defendants' specific affirmative acts or misrepresentations, including the time, place, and content of any allegedly false representations. Instead, Plaintiffs simply assert that Defendants knew of past transgressions and failed to comply with reporting requirements. See, e.g., id. at ¶¶ 73-75. This fails to satisfy Rule 9(b)'s standard for fraudulent concealment, which is not subject to the relaxed standards of fraud by omission and requires parties to plead specific
For these reasons, Defendants' motions to dismiss are granted as to the fraudulent-concealment claim and denied as to the fraud-by-omission claim. However, Plaintiffs have requested to file an amended complaint to re-plead any defective fraud claim. [DE 174 at 7175]. Because discovery has only just begun, and no party will be prejudiced by allowing Plaintiffs to file an amended complaint, the Court grants Plaintiffs' request. See Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave [to amend] when justice so requires."); Hayden v. Ford Motor Co., 497 F.2d 1292, 1294 (6th Cir. 1974) (noting that the determination of whether the circumstances of a case are such that justice would require the allowance of an amendment is committed to the sound discretion of the district court). The Court thus orders Plaintiffs to file any amended complaints within twenty (20) days of this Order's issuance.
Betts argues Plaintiffs' claims for violating 42 U.S.C. § 1983 are not properly pled because they do not cite a constitutional provision or statute securing their purported constitutional rights, and alternatively, moves for a more definite statement citing the specific section or amendment of the Constitution which is alleged to be violated. See, e.g., [DE 139-1, Betts Mot. Dis. at 5801-02]. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged violation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Miller v. Sanilac Cty., 606 F.3d 240, 247 (6th Cir. 2010). "If a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must fail." Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
Because § 1983 "is not itself a source of any substantive rights, but instead provides the means by which rights conferred elsewhere may be enforced," the Court's "first task ... is to identify the specific constitutional or statutory rights allegedly infringed." Meals v. City of Memphis, 493 F.3d 720, 727-28 (6th Cir. 2007). "That [a plaintiff] asserts claims under various constitutional provisions does not control [the Court's] inquiry." Moldowan v. City of Warren, 578 F.3d 351, 376 (6th Cir. 2009). "Rather, the critical question is whether the `legal norms' underlying those claims implicate clearly established constitutional rights." Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).
Plaintiffs allege that they were deprived of their rights, privileges, and immunities secured by the "Fourteenth Amendment to the Constitution of the United States and/or such other Amendments as may be applicable to the facts alleged herein as well as the Kentucky Constitution...." See Case 151, [Sec. Am. Compl. at ¶ 77] (Fourth and Fourteenth Amendments); Case 152, [Ver. Compl. at ¶ 6] (Fourteenth Amendment); Case 153, [First. Am. Compl. at ¶ 82] (Fourteenth Amendment); Case 157, [Sec. V. Am. Compl. at ¶ 66]; Case 158, [First Am. Compl. at ¶ 53] (Fourteenth Amendment); Case 176, [First Am. Compl. at ¶ 65] (Fourteenth Amendment). Plaintiffs further allege they were deprived
"[T]he Due Process Clause of the Fourteenth Amendment bars `certain government actions regardless of the fairness of the procedures used to implement them.'" Lillard, 76 F.3d at 724 (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The Sixth Circuit has recognized two types of substantive due process rights: (1) claims asserting denial of right, privilege, or immunity secured by Constitution or by federal statute, and (2) claims directed at official acts which may not occur regardless of procedural safeguards accompanying them. Id.
Plaintiffs argue it is the second type of due process claim at issue. See, e.g., [DE 149, E.B. Resp. at 6164]. The second type of claim does not "require[] a claim that some specific guarantee of the Constitution apart from the due process clause be violated.... [t]his is a substantive due process right akin to the `fundamental fairness' concept of procedural due process." Lillard, 76 F.3d at 724 (citing Wilson v. Beebe, 770 F.2d 578, 586 (6th. Cir. 1985)). These claims are based on the substantive due process right to bodily integrity. Id.; see also United States v. Morris, 494 F. App'x 574, 581 (6th Cir. 2012) ("[I]t is more than obvious that the right to not be raped by a law enforcement officer lies at the core of the rights protected by the Due Process Clause."). The Supreme Court recognized long ago that "[n]o right is held more sacred, or is more carefully guarded ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 S.Ct. 734 (1891). The Sixth Circuit has noted:
Doe v. Claiborne Cty. ex rel. Claiborne Cty. Bd. of Educ., 103 F.3d 495, 506-07 (6th Cir. 1996).
The second category of claims requires only an asserted violation of the Due Process Clause, and exists when official conduct is arbitrary or shocks the conscience of the court. Handy-Clay v. City of Memphis, 695 F.3d 531, 547 (6th Cir. 2012). In Claiborne County, the Sixth
Plaintiffs have sufficiently alleged a violation of a constitutional right under the Fourteenth Amendment to be free from sexual abuse. Betts argues that even if Plaintiffs have sufficiently alleged a violation of a constitutional right, the Plaintiffs' § 1983 claims fail because "there is no evidence that he acted maliciously ... no evidence of sadism or bad intent ... Mr. Betts' alleged conduct does not `shock the conscience' ... the Plaintiff has not therefore established a prima facie case of deprivation of ... substantive due process...." See, e.g., [DE 158, Betts Reply at 6398-99]. Whether there is sufficient evidence that Betts engaged in the conduct alleged raises issues of fact not appropriate at this stage of the litigation. The issue is not whether such alleged conduct shocks the conscience. Claiborne Cty., 103 F.3d at 506-07 (sexual abuse of a student by a teacher is a constitutional deprivation, which implicitly indicates that the abuse shocks the conscience). Thus, Betts's motions to dismiss Plaintiffs' § 1983 claims are denied.
Defendants Flaherty, Schmidt, Paris, Scott, and Gelhausen argue Plaintiffs' claims against them should be dismissed based on the doctrine of qualified immunity.
Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015) (internal quotation and citations omitted). There is no heightened factual showing that a plaintiff must make to survive a motion to dismiss on qualified immunity grounds that differs from the plausibility standard established under Iqbal. Id. at 427-28. Although qualified immunity does protect the defendant from all burdens of litigation, including "the burdens of discovery," Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (citations omitted), the fact-intensive nature of a qualified immunity defense makes it "difficult for a defendant to claim qualified immunity on the pleadings before discovery," Wesley, 779 F.3d at 434 (quoting Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Village Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring)).
"Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority." Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001). But "an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id. at 522. Thus, qualified immunity depends "on the function performed" and whether the official acted in "good faith." Id. at 521. When an official violates clearly established constitutional or statutory rights of which the official should have known, qualified immunity will not protect them from
Acts involving supervision and training are consistently held to be discretionary functions. Nichols v. Bourbon Cty. Sheriff's Dep't, 26 F.Supp.3d 634, 642 (E.D. Ky. 2014); Doe v. Magoffin Cty. Fiscal Court, 174 F. App'x 962, 973 (6th Cir. 2006); Rowan Cty. v. Sloas, 201 S.W.3d 469, 480 (Ky. 2006). Whether qualified immunity shields individuals from suit under Kentucky law depends on whether their acts of supervision and training were performed in good or bad faith. Nichols, 26 F.Supp.3d at 642. Bad faith "can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in the public employee's position presumptively would have known was afforded to a person in the plaintiff's position, i.e., objective unreasonableness; or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive." Yanero, 65 S.W.3d at 523.
Taking Plaintiffs' factual allegations as true and drawing all inferences in their favor, Wesley, 779 F.3d at 427, Plaintiffs' claims survive, and qualified immunity does not apply at this stage of the case. All that Plaintiffs must do is "allege [] facts that `state a claim to relief that is plausible on its face' and that, if accepted as true, are sufficient to `raise a right to relief above the speculative level.'" Id. (quoting Handy-Clay, 695 F.3d at 538 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). Plaintiffs allege that Defendants Flaherty, Schmidt, Paris, Scott, and Gelhausen violated their statutory duty to report sexual abuse and were involved in a conspiracy to cover up the abuse. Whether these Defendants performed their acts in good faith or bad faith is a question of fact. For these reasons, qualified immunity cannot be determined at this stage of the proceedings, and the Defendants' motions for the dismissal on this basis is denied.
Defendant Metro Government argues the Plaintiffs' state law claims, other than their Kentucky Civil Rights Act claims,
Plaintiffs argue that whether a waiver of immunity can be implied and whether it exists is a question of fact that
Id. Metro Government argues that waiver cannot be implied and may only be found expressly in a statute. [DE 200, Metro Gov. Reply at 8137]. Metro Government cites the Kentucky Supreme Court's decision in Withers v. University of Kentucky, 939 S.W.2d 340, 344 (Ky. 1997), which held "[w]e will find waiver only where stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Id. (citing Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 S.Ct. 742 (1909)). Metro Government also cites the Kentucky Court of Appeal's decision in Jewish Hospital that "absent an explicit statutory waiver, Metro Government is entitled to sovereign immunity." 270 S.W.3d at 907. Plaintiffs cite no statutory text that either expressly or overwhelmingly impliedly shows waiver of sovereign immunity. Thus, the Plaintiffs' state law claims, except for their Kentucky Civil Rights Act claims (which are analyzed separately), are dismissed against Metro Government.
Metro Government has also moved to dismiss the claims against its officers in their official capacities. Plaintiffs do not object to this request so long as Metro Government is left a party at this stage of the proceedings. See, e.g., [C.F. Resp. at 7882]. Plaintiffs provide no authority or support for position. The United States Supreme Court has held that a "suit against a state official in his or her official capacity is not a suit against the official, but rather a suit against the official's office." Will v. Mich. Dept. of State Police, 491 U.S. 58, 67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). So, a suit against a government agent in their official capacity equates to a suit against the government agency in question. Here, the official capacity claims against Schuhmann, Gelhausen, Betts, Wood, Flaherty, Schmidt, Wood, and Paris are therefore dismissed.
Defendant Betts moves to dismiss Plaintiffs' claims for failure to report child abuse, arguing no private right of action exists for a violation of KRS 620.030 or KRS 620.040, duty to report abuse. Betts also argues that because there is no private action for violating KRS 620.030, he owed no duty to Plaintiffs and Plaintiffs' failure to report claims, as well as
Commonly known as Kentucky's negligence per se statute, KRS 446.070 provides that "[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation." The Kentucky Supreme Court has held that "the statute applies when the alleged offender violates a statute and the plaintiff comes within the class of persons intended to be protected by the statute." St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 534 (Ky. 2011) (citing Davidson v. Am. Freightways, Inc., 25 S.W.3d 94, 99-100 (Ky. 2000)). Here, assuming the allegations in the Plaintiffs' complaints are true, they fall within the class of persons KRS 620.030 was designed to protect for failure to report child abuse, and thus KRS 446.070 provides a cause of action for Plaintiffs. For these reasons, Betts's arguments regarding a lack of duty to support Plaintiffs' claims for fraud by omission/duty to disclose, fraudulent concealment, and failure to report are incorrect and his motion is denied.
Metro Government and the Boy Scout Defendants argue these claims are barred by the statute of limitations. As discussed above, the Court need not decide the statute of limitations at this time. The Boy Scout Defendants argue that even if not barred by the statute of limitations, this claim is inadequately pled by Plaintiffs. However, Plaintiffs agreed to voluntarily dismiss these claims against the Boy Scout Defendants pursuant to agreed-upon orders. [DE 51, 76, 103, 133, 160, 184, 210; DE 209, Oct. 3, 2018 Order]. Accordingly, this argument is moot.
Each Plaintiff has asserted a claim for violations of 42 U.S.C. § 2000(e)-2(a) and 42 U.S.C. § 2000(e)-2(d) against Metro Government. These claims are not asserted against any other Defendant although some Defendants briefed this issue in their motions to dismiss arguing that they cannot be held liable in their individual capacities for these claims. Because these claims are only asserted against Metro Government, the Court need not address the individual Defendants' motions on this point, as they are moot.
The law is well-settled that a plaintiff alleging discrimination under Title VII cannot bring such claims in federal court unless the following administrative prerequisites have been met: "(1) by filing timely charges of employment discrimination with the EEOC, and (2) receiving and acting upon the EEOC's statutory notices
Next, BSA and LHC argue that Judge Cunningham's December 28, 2017 Order in Jefferson Circuit Court is binding on C.F.'s case in this Court. [DE 187; DE 187-2]. In that Order, Judge Cunningham dismissed C.F.'s state-law claims against BSA and LHC, dismissing them entirely from the suit as parties. [DE 187-2 at 7544]. That said, on March 28, 2018, Judge Cunningham granted C.F.'s motion for leave to file a first amended complaint, which asserted the same state-law claims against BSA and LHC. Id. at 1031. The parties contend that both Orders were never distributed by the court to the parties and remained undiscovered until May 2018. They now dispute whether Judge Cunningham's December 2017 Order stands. [DE 187 at 7526].
Generally, "once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings, notwithstanding state court orders issued prior to removal." Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 437, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) (citing Ex parte Fisk, 113 U.S. 713, 725, 5 S.Ct. 724, 28 S.Ct. 1117 (1885)); see also Burniac v. Wells Fargo Bank, 810 F.3d 429, 433 (6th Cir. 2016). And federal district courts have the "authority to dissolve or modify injunctions, orders, and all other proceedings had in state court prior to removal." Granny Goose Foods, Inc., 415 U.S. at 437, 94 S.Ct. 1113.
Judge Cunningham's December 2017 Order dismissing C.F.'s state-law claims against BSA and LHC indicated that it was a "final and appealable ruling as to BSA/LHC." [DE 187-2 at 7544]. C.F. was thus required to file a notice of appeal no later than February 7, 2018 and BSA and LHC were no longer parties to the suit. See Ky. R. Civ. P. 73.02(1). And Kentucky law is clear the time to file a notice of appeal is not tolled even though the parties were not notified of Judge Cunningham's December 2017 Order and did not learn of its existence until May 9, 2018. See Ky. R. Civ. P. 77.04 ("Failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice ... does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73.02(1)."); Stewart v. Ky. Lottery Corp., 986 S.W.2d 918, 920 (Ky. Ct. App. 1998) ("Our courts have consistently enforced the harsh dictates of CR 77.04(4)." (collecting cases)). C.F.'s claims against BSA and LHC were thus unappealable as of February 8, 2018.
Complicating matters, however, is Judge Cunningham's March 28, 2018 Order granting C.F.'s motion for leave to file a first amended complaint, which asserted the same state-law claims against BSA and LHC as those dismissed in December
Regardless, principles of res judicata instruct that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." San Remo Hotel, L.P. v. City & Cty. of S.F., 545 U.S. 323, 336 n.16, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005) (internal quotation marks and citation omitted); see also Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 465 (Ky. 1998) ("Claim preclusion bars a party from relitigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action." (citations omitted)). "For claim preclusion to bar further litigation, certain elements must be present. First, there must be identity of the parties." Yeoman, 983 S.W.2d at 465 (citing Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970)). "Second, there must be identity of the causes of action." Id. "Third, the action must have been resolved on the merits." Id. As noted previously, Judge Cunningham unambiguously dismissed C.F.'s claims against BSA and LHC on December 28, 2017, and C.F. did not appeal that ruling. Because the parties and claims are the same, the determinative issues of C.F.'s claims from his original complaint are identical to those in the amended complaint, and the first two elements are satisfied. See id. at 465. Additionally, Judge Cunningham's rulings on the dismissed claims against BSA and LHC were final and appealable judgments on the merits. Id.; see also Ky. R. Civ. P. 41.02(c) (defining a judgment on the merits). Res judicata thus bars C.F. from seeking to reassert the claims against BSA and LHC that Judge Cunningham dismissed in his December 2017 Order.
For these reasons, the Court finds good cause to modify Judge Cunningham's March 2018 Order and remove the previously dismissed state-law claims against BSA and LHC from C.F.'s amended complaint. Granny Goose Foods, Inc, 415 U.S. at 437, 94 S.Ct. 1113. Because the only remaining claims against BSA and LHC under 20 U.S.C. 1681(a) have since been voluntarily dismissed [3:18-cv-306, DE 41], BSA and LHC are dismissed from C.F.'s suit.
Betts seeks to dismiss N.C.'s case under Fed. R. Civ. P. 41(b) for violating the Kentucky state court's order sealing the case under KRS 413.249(3). Betts argues that after the state court sealed the case on March 9, 2017, the contents of the complaint were disseminated by N.C.'s former counsel to the community before the state court ultimately unsealed the case on April 10, 2017. [DE 107-1, Betts Mot. Dis. at 4750-52]. Betts was criminally indicted in Jefferson Circuit Court on or around April 12, 2017, in Commonwealth v. Betts, No. 170CR-1041. Betts states that this conduct was willful and in bad faith. Betts cites numerous news articles relating to the civil case during the March 9, 2017 to April 10, 2017 timeframe.
Pelman ex rel. Pelman v. McDonald's Corp., 452 F.Supp.2d 320, 323-24 (S.D.N.Y. 2006). Certainly, dissemination of the contents of the complaint to the public after the case was sealed could be sanctionable conduct. That said, there is no evidence of record establishing when the dissemination occurred in relation to when the case was first sealed, although the timing of the news articles imply it may have occurred after the case was sealed. It also does not appear that Plaintiff was on notice that failure to comply would result in dismissal although counsel should appreciate same. Betts was criminally indicted in Jefferson Circuit Court shortly after N.C.'s case was filed and that matter was part of the public record. And the case was only sealed one month before the court dissolved the seal. Thus, even assuming all factors in favor of Betts, the prejudice suffered is not proportional to the sanction of dismissal. For these reasons, Betts's motion to dismiss N.C.'s case under Fed. R. Civ. P. 41(b) is denied.
Betts argues that Plaintiff K.W.'s negligence claim fails because K.W. has pled the intentional tort of battery and the two are mutually exclusive. It is well settled under the Federal Rule of Civil Procedure that alternative theories of relief can be pled. Rule 8(d)(2) provides:
Fed. R. Civ. P. 8(d)(2). The rule goes further, providing that "a party may state as many separate claims or defenses as it has, regardless of consistency." Fed. R. Civ. P. 8(d)(3) (emphasis added). Accordingly, Betts's motion to dismiss K.W.'s claim of negligence on this ground is denied.
Plaintiff C.F. moves to amend his complaint to assert a claim against Defendant Wood for assault, sexual assault, harassment, and battery. [DE 197]. Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a complaint shall be freely given when justice so requires. Fed. R. Civ. P 15(a); see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The Sixth Circuit has explained that Rule 15 reflects a "liberal amendment policy." Brown v. Chapman, 814 F.3d 436, 442-43 (6th Cir. 2016) (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)). "The thrust of Rule 15 is to reinforce the principle that cases should be tried on their merits rather than the technicalities of the pleadings." Tefft v. Seward,
As for undue delay in filing, Plaintiff C.F. claims he delayed in bringing this claim because of repressed memories and fear of getting Wood in trouble. [DE 197, at 8069-70]. In regard to lack of notice to the opposing party, Wood is already a party in C.F.'s suit, but not as an alleged perpetrator of sexual assault. Bad faith by the moving party does not appear to be in issue. C.F. has already amended his complaint once without adding this claim against Wood. Wood is not unduly prejudiced as discovery had not started when C.F. sought leave to file the amended complaint and no discovery had taken place. Here, the balance of factors support permitting C.F. to amend his complaint. As a result, C.F.'s motion to file second amended complaint is granted. However, certain claims set forth in C.F.'s second amended complaint have already been determined futile in this opinion and therefore those claims in the second amended complaint are sua sponte dismissed by the Court consistent with the rulings set forth herein.
The Court, being otherwise and sufficiently advised,
1. The Motion to Dismiss [DE 10] filed by Defendant Brandon Wood is
2. The Sealed Motion to Dismiss [DE 11], redacted version [DE 60], filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
3. The Motion to Dismiss [DE 12] filed by Defendant Kenneth Betts is
4. The Motion to Dismiss [DE 13] filed by Defendant Julie Schmidt is
5. The Motion to Dismiss [DE 14] filed by Defendant Curtis Flaherty is
6. The Motion to Dismiss [DE 15] filed by Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and
7. The Motion to Dismiss [DE 16] filed by Defendant Matthew Gelhausen is
8. The Sealed Motion to Dismiss [DE 22], redacted version [DE 127], filed by Defendant Bradley Schuhmann is
9. The Sealed Motion to Dismiss [DE 61], redacted version [DE 62], filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
10. The Motion to Dismiss [DE 63] filed by Defendant Kenneth Betts is
11. The Motion to Dismiss [DE 64] filed by Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and Learning for Life Lincoln Chapter, Inc.
12. The Motion to Dismiss [DE 65] filed by Defendant Curtis Flaherty is
13. The Motion to Dismiss [DE 79] filed by Defendant Brandon Wood is
14. The Motion to Dismiss [DE 80] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
15. The Motion to Dismiss [DE 81] filed by Defendant Kenneth Betts is
16. The Motion to Dismiss [DE 82] filed by Defendant Julie Schmidt is
17. The Motion to Dismiss [DE 83] filed by Defendant Paul Brandon Paris is
18. The Motion to Dismiss [DE 84] filed by Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and Learning for Life Lincoln Chapter, Inc.
19. The Motion to Dismiss [DE 85] filed by Defendant Curtis Flaherty is
20. The Motion to Dismiss [DE 104] filed by Brandon Wood is
21. The Motion to Dismiss [DE 105] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
22. The Motion to Dismiss [DE 106] filed by Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and Learning for Life Lincoln Chapter, Inc.
23. The Motion to Dismiss [DE 107] filed by Defendant Kenneth Betts is
24. The Motion to Dismiss [DE 108] filed by Defendant Curtis Flaherty is
25. The Motion to Dismiss [DE 135] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
26. The Motion to Dismiss [DE 136] filed by Defendants Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and Learning for Life Lincoln Chapter, Inc.
27. The Motion to Dismiss [DE 139] filed by Defendant Kenneth Betts is
28. The Motion to Dismiss [DE 140] filed by Defendant Curtis Flaherty is
29. The Motion to Dismiss [DE 161] filed by Defendant Brandon Wood is
30. The Motion to Dismiss [DE 162] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
31. The Motion to Dismiss [DE 163] filed by Defendant Kenneth Betts is
32. The Motion to Dismiss [DE 166] filed by Defendant Curtis Flaherty is
33. The Motion to Dismiss [DE 167] filed by Defendants Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and Learning for Life Lincoln Chapter, Inc. is
34. The Motion to Dismiss [DE 168] filed by Defendant Casey Scott is
35. The Motion to Dismiss [DE 185] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is
36. The Motion to Dismiss [DE 186] filed by Defendants Learning for Life, and Learning for Life Lincoln Chapter, Inc. is
37. The Motion to Dismiss [DE 187] filed by Defendants Boy Scouts of America and Lincoln Heritage Counsel, Inc. is
38. The Motion to Dismiss [DE 188] filed by Defendant Brandon Wood is
39. The Motion to Dismiss [DE 190] filed by Defendant Kenneth Betts is
40. The Motion for Leave to File Second Amended Complaint [DE 197] filed by Plaintiff C.F. is
41. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of B.L.'s Second Amended Complaint is
42. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of A.S.'s Verified Complaint is
43. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of K.W.'s First Amended Complaint is
44. Count X, Childhood Sexual Assault and Abuse-All Defendants, of N.C.'s Second Amended Complaint is
45. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of F.A.'s First Amended Complaint is
46. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of C.F.'s First Amended Complaint is
47.