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B.L. v. Schuhmann

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

May 2, 2019

B.L. Plaintiff
v.
BRADLEY SCHUHMANN, ET AL. Defendants

          MEMORANDUM OPINION & ORDER

          Rebecca Grady Jennings, District J udge 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”)[1] and one motion filed by Plaintiff C.F. Briefing is complete and the motions are ripe for adjudication.

         I. BACKGROUND AND JURISDICTION

         This consolidated case[2] arises out of the alleged sexual abuse of seven individuals participating in the Louisville Metro Police Department's (“LMPD”) career education program known as the “Explorer Program.” Defendants removed each case from Jefferson Circuit Court based on federal question jurisdiction, 28 U.S.C. § 1331, stemming from Plaintiffs' gender and age discrimination claims under 42 U.S.C.S. § 2000e-2(a) and 42 U.S.C.S. § 2000e-2(d), hostile educational environment and sex discrimination claims under Title IX of 20 U.S.C. § 1681(a), and constitutional claims under 42 U.S.C. § 1983. The Court has supplemental jurisdiction, 28 U.S.C. § 1367, for Plaintiffs' remaining state law claims.

         A. B.L.'s Claims

         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, and battery against Schuhmann in Count I. Id. at ¶¶ 80-87. In Counts II and III, B.L. claims vicarious liability and negligent hiring, entrustment, training, supervision, and/or retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 88-97. B.L. asserts claims against these same Defendants, as well as Betts, Gelhausen, Wood, and Schmidt, 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 ¶¶ 98-137. In Count X, B.L. brings a gender and age discrimination claim under state and federal statutes against Metro Government. Id. at ¶¶ 138-45. In Count XI, B.L. brings a claim for hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.[3] Id. at ¶¶ 146-52. In Count XII, B.L. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, Wood, Flaherty, Schmidt, Gelhausen, and Schuhmann. Id. at ¶¶ 153-59.

         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.

         B. A.S.'s Claims

         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.[4]Id. at ¶¶ 131-37. In Count XII, A.S. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, and Flaherty. Id. at ¶¶ 138-44.

         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].

         C. K.W.'s Claims

         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, and battery against Betts in Count I. Id. at ¶¶ 85-92. In Counts II and III, K.W. claims vicarious liability and negligent hiring, entrustment, training, supervision, and retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 93-102. K.W. 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 ¶¶ 103-42. In Count X, K.W. brings gender and age discrimination claims under state and federal statutes against Metro Government. Id. at ¶¶ 143-50. In Count XI, K.W. claims hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.[5] Id. at ¶¶ 151-57. In Count XII, K.W. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, Wood, Flaherty, Schmidt, and Paris. Id. at ¶¶ 158-64.

         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.

         D. N.C. 's Claims

          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.[6] Id. at ¶¶ 142-48. In Count XIII, N.C. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, Wood, and Flaherty. Id. at ¶¶ 149-55.

         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. E.B.'s Claims

         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 claims for assault, sexual assault, harassment, and battery against Betts in Count I. Id. at ¶¶ 56-63. In Counts II and III, E.B. brings claims for vicarious liability and negligent hiring, entrustment, training, supervision, and retention, against Flaherty, Metro Government, and the Boy Scout Defendants. Id. at ¶¶ 64-73. E.B. sues these same Defendants and Betts, for intentional infliction of emotional distress, negligence, fraud by omission/duty to disclose, and fraudulent concealment in Counts IV, V, VI, and VII, respectively. Id. at ¶¶ 74-94. Unlike the other Plaintiffs, E.B. does not bring a claim for failure to report, childhood sexual assault, or sex and age discrimination. In Count VIII, E.B. brings a claim for hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.[7] Id. at ¶¶ 95-101. In Count IX, E.B. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, and Flaherty. Id. at ¶¶ 102-08.

         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. F.A.'s Claims

         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.[8] Id. at ¶¶ 126-32. In Count XI, F.A. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, and Flaherty. Id. at ¶¶ 133-39. F.A. does not bring a claim for sex or age discrimination.

         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.

         G. C.F.'s Claims

         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 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 IV, V, VI, VII, VIII, and IX, respectively. Id. at ¶¶ 88-127. In Count X, C.F. brings a claim for gender and age discrimination claim under state and federal statutes against Metro Government. Id. at ¶¶ 128-35. In Count XI, C.F. brings claims for hostile educational environment and sex discrimination against Metro Government, and the Boy Scout Defendants.[9] Id. at ¶¶ 136-42. In Count XII, C.F. brings a claim for violating 42 U.S.C. § 1983 against Metro Government, Betts, Wood, and Flaherty. Id. at ¶¶ 143-49.

         Finally, in C.F.'s case, motions to dismiss were filed by Defendants Betts, Wood, Metro Government, and the Boy Scout Defendants.[10] [DE 190; 188; 185; 187; 186]. Responses were filed by C.F., [DE 192; 195; 194; 193], and replies were filed by the moving Defendants, [DE 196; 198; 200; 201]. Defendant Flaherty is a party to C.F.'s case but did not move to dismiss. In addition, C.F. moved for leave to file a second amended complaint to add claims against Wood, [DE 197; DE 197-1 at ¶¶ 70-78], for assault, sexual assault, harassment, and battery in Count I. Defendants Wood, Betts, Flaherty, and the Boy Scout Defendants filed responses objecting to the motion, [DE 203; 202; 204; 205], and C.F. filed a reply, [DE 206].

         II. STANDARD OF REVIEW

         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 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated by Harlow v. Fitzgerald, 457 U.S. 800 (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 (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, 570 (2007)). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “A complaint will be dismissed pursuant to Rule 12(b)(6) if no law supports the claims made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents an insurmountable bar to relief.” Southfield Educ. Ass'n v. Southfield Bd. of Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561-64).

         III. ANALYSIS

         A. Pseudonym

         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.

         B. Statute of Limitations

         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.[11]

         1. Is KRS 413.249 Constitutional?

         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.

         i. Severability

         Cape Publications found that the title of the statute, “Action relating to childhood 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, 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.”).

         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 limitations 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, 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, 166 S.W.2d 437, 439 (Ky. 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:[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 KRS 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 Appeals[14] 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, 844 F.2d 1239, 1245 (6th Cir. 1988), overruled on other grounds by Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009); Swanson v. Wilson, 423 Fed.Appx. 587, 594 (6th Cir. 2011). When a federal court must apply substantive state law on an issue of first impression, or an issue which that state's courts have not comprehensively addressed or definitively ruled on, it is the court's “duty . . . to decide unsettled issues of state law as a Kentucky court would decide them.” Kelly v. McFarland, 243 F.Supp.2d 715, 717 (E.D. Ky. 2001) (citing Overstreet v. Norden Labs., Inc., 669 F.2d 1286, 1290 (6th Cir. 1982)); see also Ennes v. H & R Block E. Tax Servs., Inc., No. 3:01CV-447-H, 2002 WL 226345, at *2 (W.D. Ky. Jan. 11, 2002) (citing the same).

         The Court first looks to the statute.[15] Section (2) of KRS 413.249 defines the 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, 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). Although not binding, [17] the observations from Burden and Knaus are relevant to this analysis. See Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995).

         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:

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.

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 agreed 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, 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.

         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 so 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, 30 S.W.3d 162, 168 (Ky. 2000). Yet “a failure to state explicitly that legislation is to apply retroactively does not always mean that a court may not determine that the legislation has retroactive effect.” Commonwealth. ex rel. Conway v. Thompson, 300 S.W.3d 152, 167 (Ky. 2009), as corrected (Jan. 4, 2010). The Kentucky Supreme Court has held there are no mandatory “magic words” for retroactive legislation but that the “General Assembly must expressly manifest its desire that a statute apply retroactively.” Baker v. Fletcher, 204 S.W.3d 589, 597 (Ky. 2006). Under Kentucky law, the Court discerns the legislature's “intent for legislation to have a retroactive effect by using traditional tools for statutory interpretation.” Thompson, 300 S.W.3d at 167. If a section of the Kentucky Revised Statutes, as literally construed, would be absurd or unreasonable, the Court may examine the original act from which the section was derived to find the true legislative intent. Swift v. Se. Greyhound Lines, 171 S.W.2d 49, 51 (Ky. 1943).

         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, 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, stated 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, 460 S.W.2d 809, 810 (Ky. 1970). (citing Barnes v. Louisville & N.R. Co., 140 S.W.2d 1041, 1045 (Ky. 1940)). The Stone court observed there “is no vested right in the running of the statute of limitations unless it has completely run and barred the action, so that as to existing causes of action which are not barred, the statute may be amended, suspended or repealed.” Id. (emphasis added). This rule has generally been followed by Kentucky courts in the workers' compensation context. Brooks v. Univ. of Louisville Hosp., 33 S.W.3d 526, 530 (Ky. 2000); William A. Pope Co. v. Howard, 851 S.W.2d 460, 462 (Ky. 1993)(citing Kiser v. Barley Mining Co., 397 S.W.2d 56 (Ky. 1965).

         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, 29 S.W. 450, 451 (Ky. 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.[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. Dis. 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, 172 S.W.3d 361, 369 (Ky. 2005) (citation omitted). Kentucky's Supreme Court has held that an employee's “escape [from] liability for his alleged negligence because the statute of limitations had run as to him does not also insulate the employer from vicarious liability for that negligence.” Cohen v. Alliant Enterprises, Inc., 60 S.W.3d 536, 538 (Ky. 2001). However, the Court also determined the vicarious claim may proceed only if the plaintiff “sued the principal . . . before the statute of limitations had run as to the agent.” Id. at 539. Thus, the Plaintiffs' vicarious liability claims will be timely under the statute of limitations if the related claim against the applicable employee/agent is timely.

         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, 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 outside 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 under KRS 413.170(a); thus, these claims would not accrue until their eighteenth birthdays. Because this information is not established on the face of the complaints (even E.B.'s ...


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