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Dukes v. Mid-Eastern Athletic Conference

United States District Court, W.D. Kentucky, Louisville Division

November 20, 2018



          Rebecca Grady Jennings, District Judge

         This matter is before the Court on Defendant's Motion for Summary Judgment [DE 46]. A timely Response and Reply were filed. [DE 48; DE 50]. The Motion is now ripe for adjudication. Having considered the parties' filings and the applicable law, the Court GRANTS Defendants' Motion for Summary Judgment.

         I. BACKGROUND

         Plaintiff, Alycia Dukes (“Dukes”), is a women's basketball official who began officiating games for Defendant, the Mid-Eastern Athletic Conference (“MEAC”), during the 2005-06 basketball season. [DE 1-1, Compl. at ¶ 9]. The MEAC is a non-profit, intercollegiate athletic conference whose members are twelve historically black colleges and universities located along the Atlantic coastline. [DE 6-2, Barbee Decl. at ¶ 3]. Dwight Barbee (“Barbee”) served as supervisor of women's basketball officials for the MEAC between 2007 and 2015. [DE 46-8, Barbee Dep., Oct. 27, 2017, at 10:12-21]. The MEAC contends-and Barbee agrees-that he was an independent contractor and not an MEAC employee. [Id. at 10:2-10]. Similarly, Dukes has stated that she was an independent contractor with Barbee and not an employee of the MEAC. [DE 46-4, Pl.'s Dep., Aug. 9, 2017, at 122:23-123:3].

         Dukes alleges that Barbee engaged in sexually inappropriate behavior on several occasions that caused her to suffer severe emotional distress. [DE 1-1, Compl. at ¶¶ 16-24; DE 48, Pl.'s Resp. Def.'s Mot. Summ. J. at 16]. For instance, Dukes testified that Barbee sent her a text message stating that she had “sexy legs.” [DE 46-4, Pl.'s Dep., Aug. 9, 2017, at 158:18-21]. On another occasion, Barbee sent Dukes a text message stating that he was taking applications to be his mistress. [DE 46-4, Pl.'s Dep., Aug. 9, 2017, at 171:21-22]. Barbee did not deny sending the text but claimed that he was joking and not actually seeking someone to be his mistress. [DE 46-8, Barbee Dep., Oct. 27, 2017, at 41:10-17]. Dukes was nonetheless “shocked” by Barbee's conduct. [DE 46-4, Pl.'s Dep., Aug. 9, 2017, at 173:7].[1]

         The Complaint initially named Barbee as an individual defendant in addition to the MEAC, but on September 30, 2016, this Court dismissed the claims against Barbee without prejudice for lack of personal jurisdiction. [DE 17, Order at 1]. In that same Order, the Court dismissed with prejudice Dukes's claims of invasion of privacy and negligence per se. [Id.]. The only remaining claim is one of negligent supervision asserted against the MEAC. Dukes argues that the MEAC knew of or should have known that Barbee might pose a risk of outrageous behavior, and the harm resulting from that behavior was caused by the MEAC's failure to adequately supervise Barbee. [DE 1-1, Compl. at ¶¶ 26-28]. As a threshold matter, however, the parties dispute the law that should govern this action-specifically, whether Virginia or Kentucky substantive law applies.


         Summary judgment is required when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of specifying the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the nonmoving party must produce specific facts demonstrating a material issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Factual differences are not considered material unless the differences are such that a reasonable jury could find for the party contesting the summary judgment motion.” Bell v. City of E. Cleveland, 125 F.3d 855 (6th Cir. 1997) (citing Liberty Lobby, 477 U.S. at 252).

         A district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008); Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994). The Court must view the evidence and draw all reasonable inferences in a light most favorable to the nonmoving party. Williams v. Int'l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party must do more than show some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). Instead, the nonmoving party must present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence… of a genuine dispute[.]” Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir. 2014). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Liberty Lobby, 477 U.S. at 252.


         A. Choice of Law

         In diversity actions, “federal courts apply state substantive law and federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 417 (1996). “When a conflict of law arises during such an action, ‘the choice-of-law rules of the forum state' govern.” Performance Contracting Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014) (quoting Wallace Hardware Co. v. Abrams, 223 F.3d 382, 391 (6th Cir. 2000)). A federal court sitting in diversity resolves conflicts of law by applying the choice-of-law rules of the state in which the court sits. Id. (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941)).

         Kentucky courts “are very egocentric or protective concerning choice of law questions.” Paine v. La Quinta Motor Inns, Inc., 736 S.W.2d 355, 357 (Ky. App. 1987), overruled on other grounds by Oliver v. Schultz, 885 S.W.2d 699 (Ky. 1994). That is, there is a strong preference in Kentucky for applying Kentucky law. Wells Fargo Fin. Leasing, Inc. v. Griffin, 970 F.Supp.2d 700, 707 (W.D. Ky. 2013). The Sixth Circuit has routinely recognized this “provincial tendency” when applying Kentucky's choice-of-law rules. Id.; see also Wallace Hardware, 223 F.3d at 391 (“On at least two occasions, we likewise have noted this provincial tendency in Kentucky choice-of-law rules.”); Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219, 230 (6th Cir. 1997) (noting that “Kentucky does take the position that when a Kentucky court has jurisdiction over the parties, ‘[the court's] primary responsibility is to follow its own substantive law.'” (alteration in original) (quoting Foster v. Leggett, 484 S.W.2d 827, 829 (Ky. 1972))); Johnson v. S.O.S. Transp., Inc., 926 F.2d 516, 519 n. 6 (6th Cir. 1991) (“Kentucky's conflict of law rules favor the application of its own law whenever it can be justified.”); Harris Corp. v. Comair, Inc., 712 F.2d 1069, 1071 (6th Cir. 1983) (“Kentucky courts have apparently applied Kentucky substantive law whenever possible . . . [I]t is apparent that Kentucky applies its own law unless there are overwhelming interests to the contrary.” (discussing Breeding v. Mass. Indem. & Life Ins. Co., 633 S.W.2d 717 (Ky. 1982))). As a result, this Court must apply Kentucky's choice-of-law rules.

         Kentucky law applies different tests to choice-of-law issues depending on whether the underlying action sounds in tort or contract. Saleba v. Schrand, 300 S.W.3d 177, 181 (Ky. 2009). For claims sounding in contract, Kentucky applies the “most significant relationship” test articulated in the Restatement (Second) of Conflict of Laws § 188 (Am. Law Inst. 1977) to resolve choice-of-law disputes. See Lewis v. Am. Family Ins. Grp., 555 S.W.2d 579, 581-82 (Ky. 1977); Wells Fargo Fin. Leasing, Inc., 970 F.Supp.2d at 707. But for claims sounding in tort, “any significant contact” with Kentucky calls for the application of Kentucky law. See Sutton v. Hous. Auth. of Hickman, Kentucky, No. 514CV00161, 2016 WL 6836943, at *2 (W.D. Ky. Nov. 18, 2016); Leggett, 484 S.W.2d at 829; Monumental Life Ins. Co. v. Nationwide Ret. Sols., Inc., 242 F.Supp.2d 438, 450 n.8 (W.D. Ky. 2003). Though the precise determinants of the “any significant contact” test are fact dependent, a Kentucky court's primary responsibility is to apply the laws of the Commonwealth. See Leggett, 484 S.W.2d at 830 (“The basic law is the law of the forum, which should not be displaced without valid reasons.”). Kentucky law is particularly hesitant to apply the laws ...

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