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Pittman v. Rutherford

United States District Court, E.D. Kentucky, Northern Division, Covington

October 28, 2019

KRISTI PITTMAN and DALE GOODEN, as Parents, Guardians, and Next Friends of M.G., J.G., and D.G. PLAINTIFFS
v.
ANGELA RUTHERFORD, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          David L. Bunning United States District Judge

         This matter is before the Court on a Motion to Dismiss (Doc. # 9) filed by Brown County Department of Job and Family Services and a Motion for Leave to File a Rebuttal to Defendant's Motion to Dismiss (Doc. # 17) filed jointly by Plaintiffs Kristi Pittman and Dale Gooden. The Motion to Dismiss having been fully briefed (Docs. # 15 and 16), and the time for filing a response to the Motion for Leave to File a Rebuttal having now expired, see L.R. 7.1(c), the pending Motions are now ripe for review by this Court. For the reasons set forth herein, both Motions are granted.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         During the summer of 2011, Plaintiff Dale Gooden learned that M.G. (male) had been removed from his mother's custody. (Doc. # 1-1 at 55). During discussions with Defendant Brown County Department of Job and Family Services (“BCDJFS”), Plaintiffs Dale Gooden and Kristi Pittman indicated that they might be willing to have M.G. (male) placed in their home. Id. at 56. In view of this, Defendants Angela Rutherford and Megan Siep, [1] employees of BCDJFS, made a trip to Plaintiffs' home in Kentucky to “inspect Plaintiffs' residence and to provide additional information to Plaintiffs in an effort to induce Plaintiffs into allowing the placement of [M.G. (male)] in Plaintiffs' home.” Id. at 54-56.

         During the visit, Plaintiffs asked Defendants Rutherford and Siep why M.G. (male) had been removed from his home in the first place. Id. at 56. Plaintiffs raised this question out of concern for the three minor children (D.G., J.G., and M.G. (female)) who were already living in their home. Id. They specifically indicated that “they would not accept the placement of M.G. (male) in the home if the child had been sexually abused or had committed any acts of sexual abuse or sexual acting out, as they feared that such conduct, if it had occurred, could present a danger to their children.” Id. Plaintiffs allege that Defendants Rutherford and Siep explained that M.G. (male) had neither been sexually abused nor had he committed acts of sexual abuse or sexually acting out. Id. Based on these assurances, Plaintiffs accepted placement of M.G. (male). Id. at 57. M.G. (male) was placed in Plaintiffs' home on August 7, 2011.

         Less than four years later, around January 7, 2015, Plaintiffs allege that they “discovered that M.G. (male) had engaged in acts of sexual abuse” against J.G. and D.G. Id. This discovery occurred when D.G. made comments of a sexual nature to J.G. during a bath. Id. After hearing the comment, Plaintiff Pittman told M.G. (female) about the conversation; M.G. (female) confirmed that M.G. (male) had engaged in sexual abuse against the other three children in the home. Id. On January 8, 2015, Plaintiff Pittman took M.G. (male) for evaluation and treatment at Our Lady of Peace in Louisville, Kentucky; upon his release on January 27 of that year, Plaintiffs were ordered to take M.G. (male) back into their home. Id.

         In May of 2016, Pittman confronted M.G. (male) after she learned that M.G. (male) and M.G. (female) “intended to ‘play wedding.'” Id. Plaintiffs allege that M.G. (male) indicated to Pittman that he planned to “engage in sexual acts with M.G. (female).” Id. Plaintiffs reported the comments and, following this threatened sexual abuse, M.G. (male) was removed from Plaintiffs' home. Id.

         In light of these events, the Plaintiffs tried to determine why M.G. (male) was being sexually abusive. Id. In November of 2016, they obtained counseling records which indicated that M.G. (male) was initially removed from his home “due to sexual abuse allegations.” Id. at 57-58. Plaintiffs also found out from the records that M.G. (male) was removed from his first foster care placement “because he had tried to rape a younger female while in foster care.” Id. at 58.

         Following this discovery, on February 12, 2019, Plaintiffs filed suit in Bracken County Circuit Court against Rutherford, Siep, and BCDJFS. Id. at 5-12. The Complaint included claims of negligent misrepresentation, fraudulent misrepresentation, and intentional infliction of emotional distress against all Defendants; Plaintiffs also requested punitive damages. Id. at 9-11. In state court, on March 13, 2019, Defendants filed a Motion to Dismiss the case for lack of personal jurisdiction.[2] Id. at 29, 37-43. Two days later, on March 15, Plaintiffs filed their First Amended Complaint. Id. at 53-61. Defendants then removed the case to this Court on March 21, 2019. (Doc. # 1).

         On April 4, 2019, Defendants Rutherford and Siep filed their Answer to the First Amended Complaint (Doc. # 10), while Defendant BCDJFS filed a Motion to Dismiss (Doc. # 9). After the Motion to Dismiss was fully briefed (Docs. # 15 and 16), Plaintiffs filed a “Motion for Leave to File Plaintiffs [sic] Rebuttal Memorandum to Defendant's Motion to Dismiss.” (Doc. # 17). The Motion is effectively a Motion for Leave to File a Sur-Reply; no response was filed to this Motion, and the time for doing so under the Local Rules has now expired. See L.R. 7.1(c). Thus, both pending Motions are now ripe for review.

         II. MOTION FOR LEAVE TO FILE A REBUTTAL

         The Local Rules of the Eastern District of Kentucky “do not contemplate or permit the filing of a sur-reply, and hence such filings are not permitted absent leave of the Court.” Bell v. Russell Cty., No. 5:17-cv-116-KKC, 2017 WL 3530152, at *2 (E.D. Ky. Aug. 16, 2017) (internal citations omitted) (citing LR 7.1(c), (g)). Generally, sur-replies are permitted when new arguments “are included in a reply brief, and a nonmovant's ability to respond . . . has been vitiated.” Key v. Shelby Cty., 551 Fed.Appx. 262, 265 (6th Cir. 2014) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454. 481 (6th Cir. 2003)). Here, Defendant BCDJFS raises in reply that it is immune from suit under Kentucky immunity law. (Doc. # 16 at 3-4). In its initial Motion, however, BCDJFS only argued that it was immune from suit under Ohio law. (Doc. # 9-1 at 4-5). As BCDJFS raised a new argument in its reply, which Plaintiffs have not yet had an opportunity to respond to, the Court finds a sur-reply to be appropriate and the Motion is granted.[3] See Key, 551 Fed.Appx. at 265. The proposed sur-reply (Doc. # 17-1) will be filed in the record and considered during the Court's adjudication of the pending Motion to Dismiss.

         III. MOTION TO DISMISS

         BCDJFS argues that the claims against it should be dismissed for two reasons- (1) BCDJFS is not an entity capable of being sued, and (2) even if it BCDJFS could be sued it would be immune from suit. As BCDJFS is not a suable entity, see infra, ...


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