United States District Court, E.D. Kentucky, Northern Division, Covington
KRISTI PITTMAN and DALE GOODEN, as Parents, Guardians, and Next Friends of M.G., J.G., and D.G. PLAINTIFFS
ANGELA RUTHERFORD, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge
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.
FACTUAL AND PROCEDURAL BACKGROUND
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,  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.
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.
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.
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.
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.
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. 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).
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.
MOTION FOR LEAVE TO FILE A REBUTTAL
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. 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.
MOTION TO DISMISS
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