The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it the Boy Scout Defendants' motion to strike the Second Amended Complaint, or, in the alternative, to dismiss Counts 3 and 4 of the Second Amended Complaint (Dkt. 126), the Boy Scout Defendants' motion to strike response (Dkt. 132), and the LDS Defendants' Motion to Compel (Dkt. 141).
Plaintiff, Tom Doe, was born in 1953. Between 1965 and 1971, Doe was an active member of Boy Scout Troop 101, affiliated with the Nampa, Idaho, 2nd Ward of the Church of Jesus Christ of Latter-Day Saints, rising to the rank of Eagle Scout. Second Am. Compl., ¶ 1, Dkt. 110. LDS church leaders selected and approved the appointment of Boy Scout leaders of affiliated troops, also designating such leaders as "Quorum Advisors" within the church's youth programs. Id. at ¶ 2.
Larren Arnold was Doe's Quorum Advisor and Boy Scout troop leader. Mr. Arnold led spiritual, educational, and Boy Scout-related activities for the youth of the Nampa 2nd Ward and Boy Scout Troop 101. Id. at ¶ 4. Mr. Arnold allegedly engaged in a practice known as "grooming"; he gained the trust of Doe through time spent together, discussions, and mentorship. Id. at ¶¶ 5-7.
Doe made at least two trips to Oregon with Troop 101, accompanied by Mr. Arnold, for overnight camping excursions sometime between 1966 and 1970. Id. at ¶¶ 7, 10. On these two trips Mr. Arnold allegedly sexually abused and molested Doe by fondling him and engaging him in oral sex. Id. at ¶ 10. Mr. Arnold alleges that he suffered mental, physical, and emotional injuries long after the molestation and that he did not and could not have discovered these injuries, and their relationship to the molestation, before 2007. Id. at ¶¶ 10-13.
Doe filed a complaint in Malheur County District Court, Oregon, on February 21, 2008. On March 25, 2008, the complaint was removed to the federal district court for the District of Oregon. Notice of Removal, Dkt. 2. The complaint named as defendants two governing entities of the LDS church ("LDS Defendants") and two governing entities of the Boy Scouts of America ("Boy Scout Defendants"). The First Amended Complaint, Dkt. 25, was filed on May 5, 2008. The FAC set forth claims for (1) sexual abuse of a child under a respondeat superior theory; (2) intentional infliction of emotional distress under a respondeat superior theory; (3) negligence; and (4) fraud by omission. The matter was transferred to this Court on July 9, 2009. Order Adopting Report and Recommendations, Dkt. 74.
On August 12, 2010, visiting Judge David Carter, sitting by designation, granted in part and denied in part the Defendants' motion to dismiss the First Amended Complaint. Order Granting in Part and Denying in Part Motion to Dismiss, Dkt. 109. The Court dismissed as time-barred Doe's first claim, sexual abuse of a child, and second claim, intentional infliction of emotional distress, insofar as they arose out of events occurring in Idaho. These claims remained to the extent they arose out of events occurring in Oregon. The court dismissed as time-barred Doe's negligence claim. The court dismissed Doe's fraud claim, with leave to amend, finding the allegations insufficient to meet Fed. R. Civ. P. 9(b)'s pleading particularity requirements.
Doe filed his Second Amended Complaint on August 25, 2010. Dkt. 110. The Second Amended Complaint set forth claims for (1) sexual abuse of a child under a respondeat superior theory; (2) intentional infliction of emotional distress under a respondeat superior theory; (3) institutional fraud by omission; and (4) constructive fraud. On February 8, 2011, the Boy Scout Defendants moved to strike, or in the alternative to dismiss, Doe's third and fourth claims. Dkt. 126. After briefing by both parties, the Boy Scout Defendants moved to strike the declarations of Doe and Kristian Roggendorf, attached to Doe's response in opposition (Dkt. 130) to the Boy Scout's motion to dismiss. Dkt. 132.
Under Federal Rule of Civil Procedure 12(f), a court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Some district courts have struck amendments to a complaint that fall outside the scope of expressly limited leave to amend. See, e.g., PB Farradyne, Inc. v. Peterson, 2006 WL 2578273, *3 (N.D. Cal. Sept. 6, 2006).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. at 557.
In a more recent case, the Supreme Court identified two "working principles" that underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n.1 (9th Cir. 1997) (stating that "[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other . . . evidence on summary judgment establishes the identical facts").
A dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The Ninth Circuit has held that "in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he "is entitled to offer evidence to support the claims." See Hydrick v. Hunter, 466 F.3d 676, 685 (9th Cir. 2006).
1. Motion to Strike Third and Fourth (Fraud) Claims in Second Amended Complaint The Boy Scout Defendants allege that Doe violated the limited scope of permission to amend granted by the Court because the new fraud counts are "cut from whole cloth" and fail to allege specific leadership decisions or notice regarding Larren Arnold. Boy Scouts Memorandum, 10, Dkt. 126-1. Doe argues that the Court, though it discussed and considered possible ...