The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
Plaintiff Tom Doe was a member of Boy Scout Troop 101 in Nampa, Idaho, which was sponsored by the LDS Church. He alleges that he was repeatedly sexually abused by his Scoutmaster and Quorum Advisor Larron Arnold. He claims that both organizations knew about the danger of abuse. But instead of disclosing this danger to Doe, they promoted scouting as a safe, trustworthy, and fun organization for boys. According to Doe, they also represented that Arnold was a trusted youth leader worthy of his Scoutmaster role despite knowing that he had previously molested another boy.
In 2008, Doe filed a complaint naming as defendants two governing entities of the LDS church ("Church Defendants") and two governing entities of the Boy Scouts of America ("Boy Scout Defendants"). Doe asserts several claims against Defendants, including constructive fraud. Both the Boy Scout and Church Defendants seek summary judgment on Doe's constructive fraud claims. The Church Defendants also ask the Court to reconsider a previous decision relating to choice of law. The Court heard oral argument on August 27, 2012, and took the matter under advisement.
Having considered the briefs and the record, as well as oral argument, the Court will deny both the Boy Scouts and the Church Defendants' motions for partial summary judgment (Dkts. 197 & 198). The Court will also deny the motion to strike (Dkt. 209).
Plaintiff Tom Doe was born in 1953. Between 1965 and 1971, Doe was an active member of Boy Scout Troop 101, a troop sponsored by the Nampa, Idaho, 2nd Ward of the Church of Jesus Christ of Latter-Day Saints. Church Defs' SUF ¶¶ 2-3, Dkt. 197-2. According to troop rosters, Doe joined Troop 101 in 1964. Scout Defs' SUF ¶ 5, Dkt. 198-1. The Boy Scouts invited Doe to join Scouts by making its program available to Doe through the sponsoring organization, the LDS Church. Pl's SDF ¶ 30.
Larren Arnold became Scoutmaster of Troop 101 in 1964, the same year Doe joined. Arnold was also Doe's Quorum Advisor. Id. ¶ 5. As Scoutmaster and Quorum Advisor, 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.
Doe's experience with the Aaronic Priesthood in the LDS Church taught him to trust, obey, and respect his Scoutmaster. Id. ¶ 31. His experience with the Boys Scouts, which encouraged and fostered close, friendly, trusting relationships between Scouts and Scoutmasters, reinforced his trust in Arnold. Id. ¶ 33. Doe's recollection is that Arnold was a close friend to both him and his family, as he was Scoutmaster for Doe's two brothers. Id. Arnold allegedly gained the trust of Doe through time spent together, discussions, and mentorship. But Doe's father does not remember meeting Arnold, much less remember him as a close family friend. Id.
It is undisputed, however, that Arnold led Troop 101, including Doe, on overnight camping trips throughout Idaho. In addition, Doe accompanied Arnold, alone, on several day trips into Oregon to fish and search for potential camp sites for the troop. Id. ¶ 29. During at least five of these trips associated with scouting in both Oregon and Idaho, Arnold sexually abused Doe. Id. ¶ 29. The abuse in Idaho occurred during the overnight camping trips with Troop 101. The abuse in Oregon occurred when Doe accompanied Arnold on day-trips into Oregon. Id. ¶ 29. According to Doe, his experience mirrors examples of other Scout experiences set forth in the Ineligible Volunteer Files maintained by the Scouts: "Scouts entrusting themselves to a Scout leader's guidance and protection while on camping trips, hiking trips, sleep overs, or other events, only to be sexually abused by the Scout leader." Pl's SDF ¶ 36.
Doe claims that the Boy Scouts of America "has always had a known problem with adult volunteers abusing Scouts." Pl's Resp. at 10, Dkt. 203. In the early 1900s, the Boy Scouts of America began keeping "Ineligible Volunteer Files" on individuals banned from volunteering in scouting. Id. ¶ 23. The "Perversion" category contains the most files and comprises any type of sexual misconduct, including child abuse. Id. ¶ 24. Before Doe became a Scout, the Boy Scouts of America had compiled "thousands of incidents of child abuse" within scouting involving its adult volunteers. Id. And by the time Doe joined scouting, Boy Scouts of America was creating approximately 40 to 60 Perversion Files each year. Id.
Indeed, Doe claims that both the Boy Scout and the Church defendants had specific notice that Arnold was a child molester and danger to children. Richard White, a member of the Nampa 2nd Ward, testified that he told Bishop Leon Hales that his son, also a Scout in Troop 101, had been molested by Arnold, his Scoutmaster. Id. Bishop Hales purportedly responded that he would "take care of it." And a week later, Bishop Hale told White that he "had taken care of it." Id. Hales was a member of the Ore-Ida Council, the local Council for the Boy Scouts of America, when this conversation allegedly took place in the fall of 1964. Id. ¶ 45.
Because of the abuse by Arnold, Doe has suffered physical and emotional damages. Id. ¶ 52. His physician diagnosed him with posttraumatic stress disorder as a result of the abuse. Id. Doe says that he also suffers from other behavioral issues related to the sexual abuse, such as avoidance, dissociation amnesia, compartmentalization, and denial. Id. Additionally, he claims, he suffers from a number of other physical ailments from the abuse, including hypertension, high blood pressure, acid reflux, and sexual dysfunction. Id.
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 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, U.S. District 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. The Second Amended Complaint survived a second motion to dismiss filed by the Boy Scout Defendants. The Court found that Doe's fraud claims were governed by the fraud statute of limitations, and not the statute of limitations for personal injury claims. The Court also found that the complaint adequately set forth allegations of fraud under requirements of Rules 8(a) and 9(b).
Now Defendants seek summary judgment on the fraud claims. The Church Defendants also ask the Court to reconsider Judge Carter's decision finding that Oregon law applies to the abuse occurring in Oregon. Both the Boy Scouts and the Church Defendants have objected to evidence submitted by Doe.
Summary judgment is appropriate where a party can show that, as to any claim or defense, "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). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . .." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact -- a fact "that may affect the outcome of the case." Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255.Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The Court must be "guided by the substantive evidentiary standards that apply to the case." Liberty Lobby, 477 U.S. at 255. If a claim requires clear and convincing evidence, the question on summary judgment is whether a reasonable jury could conclude that clear and convincing evidence supports the claim. Id.
The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.
Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002); see also Fed.R.Civ.P. 56(e). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff's diary on summary judgment because at trial, plaintiff's testimony of contents would not be hearsay).
The Church Defendants ask the Court to strike Doe's declaration as a "sham affidavit." The sham affidavit rule precludes a party from filing a declaration or affidavit in response to a motion for summary judgment that "flatly contradicts" the party's earlier deposition testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Given that the Court must draw all inferences in favor of Doe, it cannot find that Doe's declaration flatly contradicts his deposition testimony. Any inconsistencies between Doe's declaration testimony and his deposition testimony are not clear contradictions. Rather, they appear to reflect matters which he now recalls, but did not recall at the time of his deposition. Therefore, they go to the weight of the evidence, not its admissibility. For this reason, the Court will deny the Church Defendants' motion to strike. However, since Doe has agreed to withdraw his references to the May 31, 1990 letter in Arnold's IV File describing Arnold's ecclesiastical leader's knowledge of Arnold's molestation of other Scouts, the Court will not consider it in deciding the partial summary judgment motions.
2.LDS Church Defendants' Motion for Partial Summary Judgment
The Church Defendants move for summary judgment on Doe's fraud claims. Their arguments shifted in their reply to account for Doe's dropping his institutional fraud claim and recasting his constructive fraud claim. The Church Defendants object to Doe's reformulation of his constructive fraud claim. They also contend that the re-cast claim is barred by the statute of limitations and does not meet ...