United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, District Judge
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.
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,
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].
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
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).
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.
Choice of Law
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)).
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.
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 ...