B.L. v. Schuhmann
This text of 380 F. Supp. 3d 614 (B.L. v. Schuhmann) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
i. Severability
Cape Publications found that the title of the statute, "Action relating to *634childhood sexual abuse or childhood sexual assault," did not adequately provide notice of the statute's effect on the sealing of records and thus Section (3) was unconstitutional. Defendants argue that Section (2) of the statute is inseverable from Section (3) and as a result the entire statute is unconstitutional. This argument fails.
As a threshold issue, the opinion from Cape Publications is not binding precedent.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 P. 76.28(4)(c) (unpublished state-court decisions are not binding precedent in any other case in any court of Kentucky).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:
It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.
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 ,
ii. Special Legislation
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 *635limitations in Section (2) and the statute is thus arbitrary. See, e.g. , [DE 161, Wood Mot. Dis. at 6508]. Plaintiffs argue that this legislation is a valid exercise by the legislature regulating the statute of limitations for victims of childhood sexual abuse or assault.
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 ,
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.
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i. Severability
Cape Publications found that the title of the statute, "Action relating to *634childhood sexual abuse or childhood sexual assault," did not adequately provide notice of the statute's effect on the sealing of records and thus Section (3) was unconstitutional. Defendants argue that Section (2) of the statute is inseverable from Section (3) and as a result the entire statute is unconstitutional. This argument fails.
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:
It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.
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 ,
ii. Special Legislation
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 *635limitations in Section (2) and the statute is thus arbitrary. See, e.g. , [DE 161, Wood Mot. Dis. at 6508]. Plaintiffs argue that this legislation is a valid exercise by the legislature regulating the statute of limitations for victims of childhood sexual abuse or assault.
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 ,
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:12
This simply isn't special legislation. As an example, the General Assembly decided to give persons whose personal injury claims arise from a motor vehicle collision two years, rather than one, to file suit. KRS 304.39-230. No binding precedent has declared this unconstitutional as special legislation despite the tens of thousands of cases which have been filed under than longer limitations period. Similarly, KRS 413.249 is a constitutionally legitimate exercise of the legislature's prerogative. Moreover, there is a well-understood basis for concluding that the longer limitations period is both necessary and just for victims of child sexual abuse or assault. Such victims do not respond as an adult might and often need years to come to grips with what happened to them.
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 *636KRS 413.249 in July 1998, and provides: "[t]he General Assembly finds that retroactive effect is necessary to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred." [DE 37, B.L. Resp. at Exh. 1]. Thus, the motions to dismiss based on the constitutionality of KRS 413.249 are denied.
2. To which claims does KRS 413.249 apply?
Defendants argue that the statute of limitations in KRS 413.249 does not apply to the claims against the Defendants that are "non-perpetrators"13 of the alleged abuse. Neither the Supreme Court of Kentucky nor any other published decision of the Kentucky Court of Appeals14 has directly addressed to which claims and defendants KRS 413.249 applies. In resolving an issue of state law in federal court, we must "make [the] best prediction, even in the absence of direct state court precedent, of what the Kentucky Supreme Court would do if it were confronted with this question." Welsh v. United States ,
The Court first looks to the statute.15 Section (2) of KRS 413.249 defines *637the statute of limitations for "[a] civil action for recovery of damages for injury or illness suffered as a result of childhood sexual abuse or childhood sexual assault ..." Section (1)(a) defines childhood sexual assault as:
an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a felony in KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.110, 529.100 where the offense involves commercial sexual activity, 529.110 where the offense involves commercial sexual activity, 530.020, 530.064, 531.310, or 531.320. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual assault ...
Section (1)(b) defines childhood sexual abuse as:
an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a misdemeanor in KRS 510.120, KRS 510.130, KRS 510.140, or KRS 510.150. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual abuse ...
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 )16 and unlawful transaction with a minor in the first degree ( KRS 530.064 ). Under KRS 530.064, a person who "knowingly induces, assists, or causes a minor to engage in ... illegal sexual activity" is guilty of unlawful transaction with a minor. Here, whether any of the Defendants that have not been alleged to directly carry out sexual assault could fall within an enumerated offense in KRS 413.249, such as the enumerated offense under KRS 530.064, involves questions of fact not appropriate at this stage of the proceedings.
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 ,
*638Although not binding,17 the observations from Burden and Knaus are relevant to this analysis. See Garden City Osteopathic Hosp. v. HBE Corp. ,
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 ,
Section 2 of the original Senate Bill 53 states that the statute is to be given retroactive effect, '... to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred.' Thus, it is clear that the focus of the General Assembly was on 'victims' rather than those whom the 'victims' might attempt to hold liable for abuse . However, the language of KRS 413.249 , just as that used by the legislatures of Rhode Island, Colorado and California, appears to be directed at perpetrators and not third parties since it sets forth sexual offenses which a third party, such as a church or a school would be incapable of committing . Based on the foregoing, it is the Opinion of this Court [Division 2, Jefferson Circuit Court] that KRS 413.249 does not apply to the cases currently before the Court.
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."
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 *639agreed with the trial court's ruling that KRS 413.249 did not apply to the claim against Great Crossing, citing Burden and stating "[w]e likewise find KRS 413.249(2) to be in applicable, 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." Id.
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.
3. Assault, Sexual Assault, Harassment, Battery Claims
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.18 That said, this may not apply to E.B.'s claim as E.B. does not allege to have been a minor.
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 ,
i. Which version of the statute of limitations in KRS 413.249 applies?
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 *640so declared." KRS 446.080(3). In other words, "Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application." Commonwealth Dep't of Agric. v. Vinson ,
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:
Section 2. This Act shall apply to all actions which accrue before or after the date this Act becomes law. The General Assembly finds that retroactive effect is necessary to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred.
(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 ,
In Stone , the Kentucky Court of Appeals, then the state's highest court, *641stated that Kentucky follows the general rule that an amendment to a statute of limitations is remedial so long as a right has not vested. Stone v. Thompson ,
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 ,
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.19
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.
*642Dis. at 729-30, 736; DE 31, B.L. Resp.].20 Thus, a five-year statute of limitation under KRS 413.249 from the time B.L. turned 18 would expire sometime in 2016 before KRS 413.249 was amended in 2017, making B.L.'s claims untimely. However, as with N.C. and F.A., this determination does not appear plainly on the face of B.L.'s complaint and would require the Court to decide an issue of fact. Thus, a determination is not appropriate at this stage of the proceedings and Court will deny the motions to dismiss B.L.'s complaint on this basis.
4. Statute of Limitations for Vicarious Liability Claims
Each plaintiff asserts vicarious liability against Flaherty, Metro Louisville, and the Boy Scout Defendants.21 Under Kentucky law, "[v]icarious liability, sometimes referred to as the doctrine of respondeat superior , is not predicated upon a tortious act of the employer [or principal] but upon the imputation to the employer [or principal] of a tortious act of the employee [or agent.]" Patterson v. Blair ,
5. Statute of Limitations for Assault, Battery, and Harassment, Negligent Hiring/Entrustment/Training/Supervision, and Negligence
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 ,
Under Kentucky law, an action is generally said to "accrue" when the injury occurs. Caudill v. Arnett ,
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. ,
When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action , the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced. But this saving shall not prevent the limitation from operating in favor of any other person not so acting, whether he is a necessary party to the action or not.
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[.]"
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. ,
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 ,
6. Statute of Limitations for Claims of Intentional Infliction of Emotional Distress, Fraud by Omission/Duty to Disclose, Fraudulent Concealment, and Failure to Report
Kentucky's five-year statute of limitations under KRS 413.120 governs the *644state law claims for intentional infliction of emotional distress, fraud by omission/duty to disclose, fraudulent concealment, and failure to report as mandated by KRS 620.030 and KRS 620.040. Craft v. Rice ,
Under Kentucky law, Plaintiffs' intentional infliction of emotional distress claims and failure to report will accrue when the injury occurred. Caudill ,
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.
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 *645knew of the alleged abuse and failed to report it, and when Plaintiffs had the requisite knowledge of same, are questions of fact better reserved for trial or upon a summary judgment motion. Franklin ,
7. Statute of Limitations for Federal Claims under 20 U.S.C. 1681(a) and 42 U.S.C. 1983
C. Insufficient Pleading
Defendants move to dismiss based on various pleading insufficiencies in Plaintiffs' complaints. The Court will discuss each argument below.
1. Childhood Sexual Assault Claims
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 *646not a stand-alone tort, but merely creates a specific statute of limitations for claims of childhood sexual assault and abuse. See, e.g. , [DE 12, at 685].
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.23
2. KRS 344.040 and KRS 344.070 -Kentucky Civil Rights Act Claims 24
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 344.070.25 [DE 11, 62, 80, 105, 185]. Plaintiffs allege they were required to perform sexual acts in exchange for benefits and progression in the Explorer Program. See, e.g. , Case 151, [Sec. Am. Compl. ¶ 139]; Case 152, [Ver. Compl. ¶ 124]; Case 152, [First Am. Compl. ¶ 144]; Case 157, [Sec. Am. Ver. Compl. ¶ 135]. Plaintiffs' complaints allege the Explorer Program was "for career education" and included police officers educating the participants in character-building, obedience, and various other life skills, as well as activities including "meetings, jobbing, trips, ride-alongs, and community service under the control of the Explorer's Program, and as youth explorers who were transported to and participated in the Kentucky Law Enforcement Explorer Academy ...." See, e.g. , Case 151, [Sec. Am. Compl. ¶¶ 35, 43, 46].
i. Age 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. ,
*647See Swierkiewicz ,
ii. Sex Discrimination Under KRS 344.040
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:
(1) It is an unlawful practice for an employer :26
(a) To fail or refuse to hire , or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, national origin, sex , age forty (40) and over , because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking
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. ,
iii. Sex Discrimination Under KRS 344.070
KRS 344.070, [d]iscrimination in apprenticeship or training, provides:
It is an unlawful practice for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against an individual because of race, color, religion, national origin, sex , or age forty (40) and over, or because the person is a qualified individual with a disability in admission to or employment in, any program established to provide apprenticeship or other training.
KRS § 344.070 (emphasis added).27 KRS 344.070 thus prohibits "employer[s]," "labor organization[s]," and "joint labor-management *648committee[s] controlling apprenticeship or other training or retraining, including on-the-job trainings programs" from discriminating "in admission to or employment in" "any program established to provide apprenticeship or other training." Accordingly, for Metro Government to be subject to KRS 344.070, it must be an employer, labor organization, or joint labor-management committee.
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."28 Federal case law reflects that "such a committee would include both management and labor components." Salas v. Indep. Elec. Contractors Inc. , No. 11-1748 RAJ,
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:
"Labor organization" means a labor organization and an agent of such an organization, and includes an organization of any kind, an agency or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment , and a conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
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.
3. Intentional Infliction of Emotional Distress
All Defendants except Metro Government move to dismiss Plaintiffs' IIED
*649claims. Defendants argue that these claims are precluded by the other tort claims alleged. The Boy Scout Defendants and Wood further argue Plaintiffs' IIED claims are inadequately pled.
i. Availability of Other Tort Claims
Kentucky courts characterize IIED as a gap-filler tort claim. Rigazio ,
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.
ii. Pleading IIED
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:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to others results from it, for such bodily harm.
Craft ,
(1) the wrongdoer's conduct was intentional or reckless;
(2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
(3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and
(4) the distress suffered must be severe.
Osborne v. Payne ,
The Boy Scout Defendants argue that the Plaintiffs make "conclusory allegations that all defendants acted deliberately" but do not "provide any facts supporting an *650inference that the LFL Defendants acted with such a mental state." See, e.g. , [DE 84, Boy Scout Defendants Mot. Dis. at 3658]. For IIED, the wrongdoer's conduct can be "intentional" or "reckless." Osborne ,
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. ,
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, *651and battery. As discussed below, the Court will permit the filing of C.F.'s second amended complaint. For that reason, this argument is moot with regard to the allegations in C.F.'s previous complaint. Given these allegations, it would be premature to determine these Plaintiffs' IIED claims against Wood must be dismissed as a matter of Kentucky law. Thus, Wood's motions to dismiss K.W.'s and C.F.'s IIED claims are denied.
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.
4. Fraudulent Omission and Fraudulent Concealment Claims
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. ,
"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. ,
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. ,
*652For example, a plaintiff cannot plead either the specific time of the omission or the place, as he is not alleging an act, but a failure to act." Washington v. Baenziger ,
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. ,
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 ,
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. ,
5. Claim for Violation of
Betts argues Plaintiffs' claims for violating
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 ,
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 *654of their "rights, privileges and immunities secured by the United States Constitution, or other applicable provisions of the United States Constitution, or state law rights and privileges found in Kentucky's Constitution and tort laws." See Case 151, [Sec. Am. Compl. at ¶ 154]; Case 152, [Ver. Compl. at ¶ 139]; Case 153, [First Am. Compl. at ¶ 159]; Case 157, [Sec. V. Am. Compl. at ¶ 150]; Case 158, [First. Am. Compl. at ¶ 103]; Case 176, [First Am. Compl. at ¶ 134]; Case 306, [First Am. Compl. at ¶ 144]. These deprivations included, but were not limited to the following: the right to privacy, the right to personal integrity, the right to be free from unwanted physical contact, the fright to be free from unwanted intrusion upon his or her person, the right to be free from physical assault and battery, and the right to be free from unwanted sexual contact.
"[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 ,
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 ,
To be sure, the magnitude of the liberty deprivation that sexual abuse inflicts upon the victim is an abuse of governmental power of the most fundamental sort; it is an unjustified intrusion that strips the very essence of personhood. If the 'right to bodily integrity' means anything, it certainly encompasses the right not to be sexually assaulted under color of law. This conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe that sexual abuse by a state actor is constitutionally permissible under the Due Process Clause.
Doe v. Claiborne Cty. ex rel. Claiborne Cty. Bd. of Educ. ,
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 ,
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. ,
D. Qualified Immunity
Defendants Flaherty, Schmidt, Paris, Scott, and Gelhausen argue Plaintiffs' claims against them should be dismissed based on the doctrine of qualified immunity.
[I]t is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity. Although an officer's entitle[ment] to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12.
Wesley v. Campbell ,
"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 ,
Acts involving supervision and training are consistently held to be discretionary functions. Nichols v. Bourbon Cty. Sheriff's Dep't ,
Taking Plaintiffs' factual allegations as true and drawing all inferences in their favor, Wesley ,
E. Sovereign Immunity
Defendant Metro Government argues the Plaintiffs' state law claims, other than their Kentucky Civil Rights Act claims,31 should be dismissed based on the doctrine of sovereign immunity. "When assessing whether defendants are entitled to immunity from state law tort liability, the court must apply Kentucky rules of sovereign immunity." Ivey v. McCreary Cty. Fiscal Court ,
Plaintiffs argue that whether a waiver of immunity can be implied and whether it exists is a question of fact that *657must be explored in discovery. See, e.g. , [DE 194, C.F. Resp. at 7882]. Plaintiffs argue that "[a]ny number of documents that would be produced in discovery, such as the LMPD's contracts and its policies and procedures could reveal a waiver."
The waiver, however, does not have to be direct. The General Assembly may delegate the authority to waive immunity to the individual county governments. See Taylor v. Knox County Board of Education ,292 Ky. 767 ,167 S.W.2d 700 , 702 (1942). (The Legislature may empower its political subdivisions to purchase liability insurance for the protection of citizens injured through negligence attributable to the political subdivision.).
F. Official Capacity Claims
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 ,
G. Failure to Report Child Abuse Claims
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 *658fraud by omission/duty to disclose and fraudulent concealment claims, are insufficiently pled. Betts relies on Compton v. City of Harrodsburg , No. 5:12-cv-302-JMH,
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 ,
H. 1681(a)-Hostile Educational Environment and Sex Discrimination
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.
I. 41 USC § 2000e-2(d)-Title VII Gender and Age Discrimination
Each Plaintiff has asserted a claim for violations of
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 *659of the right to sue." Nichols v. Muskingum Coll. ,
J. Law of the Case/Claim Preclusion/Issue Preclusion/Res Judicata-C.F.'s Case
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.
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 ,
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. ,
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 *6602017.33 Case 306, [DE 1-2 at 1031]. However, no service of process was issued for BSA and LCH suggesting there was no intent to bring them back into the suit after their dismissal in December 2017. It is unclear why Judge Cunningham granted C.F.'s motion given his December 2017 ruling, and the case was removed to this Court before the parties sought clarity on the issue.
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. ,
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 ,
K. Betts's Motion to Dismiss N.C.'s suit under Rule 41(b)
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.
*661Fed. R. Civ. P. 41(b) provides "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it ...." These factors are considered by the district court prior to dismissing a case for failure to comply with a court order:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Pelman ex rel. Pelman v. McDonald's Corp. ,
L. Pleading of Battery and Negligence
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:
A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
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.
M. Plaintiff C.F.'s Motion to File Second Amended Complaint
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 ,
*662Tefft 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.
III. CONCLUSION
The Court, being otherwise and sufficiently advised, HEREBY ORDERS as follows:
1. The Motion to Dismiss [DE 10] filed by Defendant Brandon Wood is DENIED ;
2. The Sealed Motion to Dismiss [DE 11], redacted version [DE 60], filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff B.L.'s claim for violation of
3. The Motion to Dismiss [DE 12] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff B.L.'s official capacity claim against Kenneth Betts, Plaintiff B.L.'s fraudulent concealment claim, and Plaintiff B.L.'s claim in Count IX for childhood sexual assault and abuse; and is DENIED on all other grounds ;
4. The Motion to Dismiss [DE 13] filed by Defendant Julie Schmidt is DENIED ;
5. The Motion to Dismiss [DE 14] filed by Defendant Curtis Flaherty is DENIED ;
6. The Motion to Dismiss [DE 15] filed by Boy Scouts of America, Lincoln Heritage Counsel, Inc., Learning for Life, and *663Learning for Life Lincoln Chapter, Inc. is GRANTED in part as to Plaintiff B.L's fraudulent concealment claim; and is DENIED on all other grounds ;
7. The Motion to Dismiss [DE 16] filed by Defendant Matthew Gelhausen is DENIED;
8. The Sealed Motion to Dismiss [DE 22], redacted version [DE 127], filed by Defendant Bradley Schuhmann is DENIED ;
9. The Sealed Motion to Dismiss [DE 61], redacted version [DE 62], filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff A.S.'s claim for violation of
10. The Motion to Dismiss [DE 63] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff A.S.'s official capacity claim against Kenneth Betts, Plaintiff A.S.'s fraudulent concealment claim; and is DENIED on all other grounds ;
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. is GRANTED in part as to Plaintiff A.S.'s fraudulent concealment claim and is DENIED on all other grounds ;
12. The Motion to Dismiss [DE 65] filed by Defendant Curtis Flaherty is DENIED ;
13. The Motion to Dismiss [DE 79] filed by Defendant Brandon Wood is DENIED ;
14. The Motion to Dismiss [DE 80] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff KW.'s claim for violation of
15. The Motion to Dismiss [DE 81] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff K.W.'s official capacity claim against Kenneth Betts and Plaintiff K.W.'s fraudulent concealment claim; and is DENIED on all other grounds ;
16. The Motion to Dismiss [DE 82] filed by Defendant Julie Schmidt is DENIED ;
17. The Motion to Dismiss [DE 83] filed by Defendant Paul Brandon Paris is DENIED;
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. is GRANTED in part as to Plaintiff K.W.'s fraudulent concealment claim and is DENIED on all other grounds ;
19. The Motion to Dismiss [DE 85] filed by Defendant Curtis Flaherty is DENIED ;
20. The Motion to Dismiss [DE 104] filed by Brandon Wood is DENIED ;
21. The Motion to Dismiss [DE 105] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff N.C.'s claim for violation of
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. is GRANTED in part as to Plaintiff N.C.'s fraudulent concealment claim and is DENIED on all other grounds;
23. The Motion to Dismiss [DE 107] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff N.C.'s official capacity claim against Kenneth Betts and Plaintiff N.C.'s fraudulent concealment claim; and is DENIED on all other grounds ;
24. The Motion to Dismiss [DE 108] filed by Defendant Curtis Flaherty is DENIED ;
25. The Motion to Dismiss [DE 135] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff E.B.'s state law claims; Plaintiff E.B.'s official capacity claims against Kenneth Betts and Curtis Flaherty; and is DENIED on all other grounds ;
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. is GRANTED in part as to Plaintiff E.B.'s fraudulent concealment claim and is DENIED on all other grounds;
27. The Motion to Dismiss [DE 139] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff E.B.'s official capacity claim against Kenneth Betts and Plaintiff E.B.'s fraudulent concealment claim; and is DENIED on all other grounds;
28. The Motion to Dismiss [DE 140] filed by Defendant Curtis Flaherty is DENIED ;
29. The Motion to Dismiss [DE 161] filed by Defendant Brandon Wood is DENIED ;
30. The Motion to Dismiss [DE 162] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff F.A.'s state law claims; Plaintiff F.A.'s official capacity claims against Kenneth Betts, Brandon Wood, Casey Scott, and Curtis Flaherty; and is DENIED on all other grounds ;
31. The Motion to Dismiss [DE 163] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff F.A.'s official capacity claim against Kenneth Betts and Plaintiff F.A.'s fraudulent concealment claim; and is DENIED on all other grounds;
32. The Motion to Dismiss [DE 166] filed by Defendant Curtis Flaherty is DENIED ;
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 GRANTED in part as to Plaintiff F.A.'s fraudulent concealment claim and is DENIED on all other grounds ;
34. The Motion to Dismiss [DE 168] filed by Defendant Casey Scott is DENIED ;
35. The Motion to Dismiss [DE 185] filed by Defendant City of Louisville/Jefferson County/Louisville Consolidated Government is GRANTED IN PART as to: Plaintiff F.A.'s claim for violation of
36. The Motion to Dismiss [DE 186] filed by Defendants Learning for Life, and Learning for Life Lincoln Chapter, Inc. is GRANTED in part as to Plaintiff C.F.'s fraudulent concealment claim and is DENIED on all other grounds ;
37. The Motion to Dismiss [DE 187] filed by Defendants Boy Scouts of America and Lincoln Heritage Counsel, Inc. is GRANTED and Defendants Boy Scouts of America and Lincoln Heritage Counsel, Inc. are DISMISSED from the case brought by Plaintiff C.F., originally under action number 3:18-cv-00306, C.F. v. Kenneth Betts, et al. ; THIS IS A FINAL AND APPEALABLE ORDER AS TO THE COURT'S RULING WITH NO JUST CAUSE FOR DELAY on Motion to Dismiss [DE 187];
38. The Motion to Dismiss [DE 188] filed by Defendant Brandon Wood is DENIED ;
39. The Motion to Dismiss [DE 190] filed by Defendant Kenneth Betts is GRANTED IN PART as to Plaintiff C.F.'s official capacity claim against Kenneth Betts and Plaintiff C.F.'s fraudulent concealment claim; and is DENIED on all other grounds;
40. The Motion for Leave to File Second Amended Complaint [DE 197] filed by Plaintiff C.F. is GRANTED and Plaintiff C.F. shall file same within 20 days of the entry of this Order; further, the amended pleading should conform to the rulings set forth above with regard to Plaintiff's claims;
41. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of B.L.'s Second Amended Complaint is DISMISSED ;
42. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of A.S.'s Verified Complaint is DISMISSED ;
43. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of K.W.'s First Amended Complaint is DISMISSED ;
44. Count X, Childhood Sexual Assault and Abuse-All Defendants, of N.C.'s Second Amended Complaint is DISMISSED ;
45. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of F.A.'s First Amended Complaint is DISMISSED ;
46. Count IX, Childhood Sexual Assault and Abuse-All Defendants, of C.F.'s First Amended Complaint is DISMISSED ;
47. IS IT HEREBY FURTHER ORDERED , Plaintiffs are GRANTED leave to file amended complaints within 20 days of the entry of this Order complying with the pleading requirements of Federal Rule of Civil Procedure 9 ; any amended pleadings should conform to the rulings set forth above with regard to Plaintiffs' claims.
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380 F. Supp. 3d 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bl-v-schuhmann-kywd-2019.