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Doe v. Boy Scouts of America

United States District Court, D. Idaho

August 31, 2018

BOY SCOUTS OF AMERICA, a congressionally chartered corporation authorized to do business in Idaho; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation sole registered to do business in Idaho; and CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AND SUCCESSORS, a foreign corporation registered to business in Idaho, Defendants.




         Pending before the Court are the Defendants' Motions for Summary Judgment (Dkts. 274, 275, 281, 282, 283, 284, 285) and the Plaintiffs' Motions for Partial Summary Judgment (Dkts. 276, 277). For the reasons stated below, the Court will grant the Church Defendants motions, and will grant BSA's motions with respect to Doe I, Doe II, and Doe V. The Court will deny BSA's motions with respect to Doe IV, Doe XII, and Doe XVIII. Finally, the Court will grant Plaintiffs' motions in part, deny them in part, and reserve ruling in part.


         The Plaintiffs in this case have alleged claims for constructive fraud against the Boy Scouts and the LDS Church. Third Am. Compl., Dkt. 91. Each Plaintiff participated in Boy Scouts as a child, and each Plaintiff alleges he was sexually abused at the hands of an adult male volunteer. Id. The Plaintiffs allege that the Defendants made fraudulent misrepresentations about the safety of Scouting and failed to warn them about the risk of child sex abuse in scouting. Id. The Plaintiffs further allege that they relied on these false statements and omissions in deciding to participate in Boy Scouts, which led to their abuse. Id. As a result, Plaintiffs incurred both physical and emotional damages. Id.

         1. Factual Background

         A. Does I, II, and V

         Doe I was born in 1973 and was nine years old when he began attending scouting events in 1982. Second Am. Compl. ¶25, Dkt. 47; Doe I Dep. I 52:20, Dkt. 275-4. Doe I's name appears on a January 1983 Cub Scout Pack roster for Pack 410 sponsored by the Caldwell Fourth Ward.[2] Walton Decl. Ex. 22c at 20 (Troop Roster - BSA ID 9363), Dkt. 300-5. He remembers James Schmidt serving as the leader of his Cub Scout Pack. Id. at 52:16-20. During 1982, Schmidt sexually abused Doe I multiple times. Doe I Dep. I 61:8-69:17, Dkt. 300-6.

         Doe II was a member of the of Boy Scout Troop 410, sponsored by the Caldwell Fourth Ward, during 1982-1983. Doe II Dep. I 12:2-4, Dkt. 282-12. He was between eleven and twelve years old. Id. at 12:7-10. He remembers James Schmidt serving as his Scoutmaster. Doe II Dep I 60:21-23, Dkt. 300-7. During this time period, Schmidt repeatedly abused Doe II, until Doe II quit scouting. Doe II Dep I, 97:21-100:4, 105:24-106:2, 109:7-16, 110:15-111:4, 111:25-112:15, 114:1-17, 116:16-21, 121:3-23.

         Doe V was a member of the Boy Scout Troop sponsored by the Nampa Ninth Ward in 1979. Doe V Dep. II 82:16, Dkt. 282-6; Doe V Dep. I, 23:23, Dkt. 282-26. He was thirteen years old. Doe V Dep. I 7:4-5, Dkt. 282-26. James Schmidt served as the Assistant Scoutmaster for Doe V's scout troop. Doe V Dep. II 82:25, Dkt. 282-6. In August of 1979, James Schmidt took Doe V home after a scout meeting and sexually abused him. Doe V Dep. I 32:10-14, 34:14-37:20; Doe V Dep. II 82:8-16, Dkt. 282-6.

         In 2007, Doe I, Doe II, and Doe V filed suit against the Boy Scouts of America and the Ore-Ida Council in Idaho state court. Thomas Dec. Ex. G, Dkt. 275-10. The complaint alleged that the defendants “represented to Plaintiffs, their parents and the general public that Defendants provide a safe, wholesome and protected environment for children;” that the defendants “promoted BSA's services and scouting programs under the representation that they provide a safe, wholesome, and protected environment for children, all the while knowing that Defendants BSA attracted, and had been infiltrated by, child predators, including SCHMIDT;” and that each defendant “had a practice and pattern of harboring child abusers, including SCHMIDT, and protecting their identities, thereby exposing unwitting parents and their children to further harm at the hand of said abusers.” Id. ¶¶ 2.24, 2.25, 2.29. The complaint also alleged that Schmidt began abusing scouts as early as 1977. Id. at ¶ 2.13.

         B. Does IV, XVIII

         Doe IV was twelve years old, in 1971, when he joined Boy Scout Troop 156, sponsored by the Lewiston Elks Lodge. BSA's Omnibus SOF at 2, Dkt. 285-2; Walton Decl. Ex. 58b at 18 (Troop Roster - BSA ID 9360, Dkt. 300-18. Lawrence Libey began serving as a scout leader for Troop 156 in 1968, and served as Doe IV's Scoutmaster. Eveland Dep. 20:6-9, Dkt. 300-16; see also, e.g., Walton Decl. Ex. 58a at 11 (1968 Troop Roster - BSA ID 9342). A few weeks after Doe IV joined scouting, Libey began sexually abusing him. Doe IV Dep. 40:7-44:20; 64:10-12. Libey continued to sexually abuse Doe IV throughout the three years that he was a Boy Scout. Id. According to Doe IV, Libey quit as the Scoutmaster in 1974. Doe IV Dep 64:12-24, Dkt. 300-16.

         Doe XVIII joined Boy Scout Troop 156 in approximately 1966. Doe XVIII Dep. I 40:15-17. Within a few months of getting involved with the troop in 1968, Libey began to sexually abuse Doe XVIII, culminating in his rape. Id. at 50:2-6-65-12; 64:15-25. Doe XVIII quit scouting a few weeks later. Id. 69:1-10.

         Doe IV stated that he first learned that there was evidence of abuse in scouting from the news in 2012. Doe IV Dep. I 78:1-25, Dkt. 300-16. Doe XVIII stated that he did not learn about prior sexual abuse in scouting until he met with counsel in this action in 2014. Doe XVIII Dep. II 155:2-7, 157:16-24, Dkt. 300-16.

         C. Doe XII

         Doe XII joined a boy scout troop sponsored by the LDS Church in Nampa, Idaho in 1974. BSA Doe XII SOF ¶ 1-2; BSA Omnibus SOF ¶ 5. He was twelve years old. Id. Larren Arnold was the Scoutmaster for Doe XII's Troop. BSA Doe XII SOF ¶ 3. Doe XII Dep. I 15:13-14, 57:10-14. Arnold sexually abused Doe XII on two occasions, with the first occurring almost immediately after Doe XII joined scouts. Doe XII Dep. I 55:23-59:25, 62:13-64:15, Dkt. 300-15. After the second incident, Doe XII reported the abuse to his parents. Id. at 23:17-24:12. Eventually, Doe XII quit scouting. Id. at 48-10-15.

         In May 2001, Doe XII sent a letter to the BSA Defendants. Anderson Decl. Ex. C at 2, Dkt. 274-6. The letter stated that Doe XII was abused by his Scoutmaster and described the impact the abuse had on his life. Id. Doe XII asked that the BSA apologize to him and “pay restitution for the havoc wreaked upon my life.” Id. Doe XII sent a second letter in September 2001, stating that he had uncovered official documentation that Arnold had later abused another boy. Anderson Decl. Ex. E at 2, Dkt. 274-8. In that letter, Doe XI offered to “settle” the matter with BSA. Id. On February 14, 2002, Doe XII signed a document entitled “RELEASE AND SETTLEMENT OF ALL CLAIMS” (the “Release”). Anderson Decl. Ex. F, Dkt. 274-9. The Release states that in exchange for $2, 500, Doe XII agreed to:

release, acquit and forever discharge [BSA] from any and all actions, causes of action, suits or demands of any kind or nature, claim and demands, damages, costs, loss of services, expenses and compensation on account of or in any way growing out of any and all known and unknown personal injuries arising out of acts resulting or to result from an accident which occurred during the years of 1974 and 1975.


         Also during 2001, Doe XII contacted attorney Tim Kosnoff about the potential for a lawsuit against the BSA and the LDS Church. See Doe XII Dep. 197:22-25, Dkt. 274-5. Based on his conversation with Mr. Kosnoff, Doe XII believed his case had “great potential” but knew that Mr. Kosnoff was concerned there might be an issue with the statute of limitations. Id. at 225:16-22, 226:19-25. During 2007, Doe XII was briefly represented by the law firm Chasan & Walton. Chasan Decl. ¶ 2, Dkt. 293-2. The representation ended in August 2007. Id.

         D. Defendants

         (1) Boy Scouts of America

         BSA is a congressionally chartered non-profit organization. Avery Decl. ¶ 3, Dkt. 285-3. The purpose of BSA is to promote “the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues.” Id; 36 U.S.C. § 30902. Organizations such as churches, schools, and civic clubs may sponsor a local scout unit, such as a cub pack or a scout troop, with the guidance and support of local BSA councils. Avery Decl. ¶ 4-6, Dkt. 285-3. Sponsoring organizations “agree to use BSA's program to operate local scouting units in accordance with the guidelines and polices set forth in the official BSA publications and literature. Id. Local councils are chartered by the national BSA, and the charters are “contingent on . . . fulfilling the basic purpose of the Scout movement.” BSA Bylaws Art. X, Sec.1 as amended November 1967, Dkt. 300-19. They are “controlled” by the BSA bylaws, and by “the rules and regulations of the National Council or the Executive Board.” Id. Art. X Sec. 2. BSA retains the authority to “revoke such charters when in its sole judgment such revocation is warranted.” Id. Art. XII, Sec.1.

         Adult volunteers, including Scoutmasters, Assistant Scoutmasters, and charter committee members, must apply to register with the BSA. Avery Decl. ¶ 8, Dkt. 285-3; BSA Bylaws Art. XII, Sec.5, Clause 3 as amended November 1967, Dkt. 300-19. Applications are submitted to the local charter, and then to the BSA. Avery Decl. ¶ 8, Dkt. 285-3. The BSA compares the application against the Volunteer Screening Database, which is a database of individuals who have been “deemed ineligible.” Id. This database is also known as the “Ineligible Volunteer files.” (“IV Files”) Id. Both the local council and the BSA have the authority to deny an adult volunteer's application. Id. Adult volunteers are required to “subscribe to the statement of religious principle, the Scout Oath and Law, and the[] Bylaws.” BSA Bylaws, Art. XVIII, Sec. 2, Clause 1, as amended November 1967, Dkt, 300-19.

         BSA has issued various publications available to scouts, parents, and the general public. The Boy Scout Handbook typically contains the Scout Oath and the Scout Law.[3] See, e.g., Adams Decl. Ex. 17 at 6, 7, Dkt. 285-25. It also contains a description of troop leaders. See, e.g., Id. at 8. The Seventh Edition of the Handbook was copyrighted in 1965 and reprinted in 1967. Id. at 2, 5. It states

First, there's your Scoutmaster. What a wonderful man he is! He spends hours figuring out how to give you fun and adventure in your troop. He takes special training to learn exciting new things for you to do. He is present at every troop meeting and goes hiking and camping with the trop. He is the friend to whom you can always turn to for advice. He coaches the patrol leaders. Why does he do all this? Because he believes in Scouting, because he likes boys and wants to help them become real men.

Id. at 8. The Seventh Edition also directs scouts to obey their Scoutmasters. Id. at 7 (“A Scout is Obedient. He obeys his parents, Scoutmaster, patrol leader, and all other duly constituted authorities.”). The Eighth Edition of the Handbook was copyrighted in 1972 and reprinted in 1973. Adams Decl. Ex. 18 at 3, Dkt. 285-26. The Eighth Edition states “Over there watching things is your Scoutmaster. He's a great guy. He gives hours of his time to you and the troop. And do you know why? Mostly because he knows Scouting is important to his city and nation. Besides, he is interested in boys.” Id. at 5. The Ninth Edition of the Handbook, copyrighted and printed in 1979, again states that the scoutmaster “is the friend to whom you can always turn to for advice” and directs scouts to follow the rules of their troop. See Adams Decl. Ex. 19 at 5, 8 Dkt. 285-27. The Ninth Edition is dedicated to “the American Scoutmaster who makes scouting possible, ” and directs scouts to be “loyal” and “true” to their Scout leaders. Adams Decl. Ex. 19 at 2, 8, Dkt. 285-26.

         In 1970, BSA published the “Parent's Book.” Walton Decl. ex 68 at 3, Dkt. 300-21. It states that “Scouts benefit immensely from companionship with [their Scoutmaster], ” who is a “man of good character.” Id. The Parent's Book also states that the Scoutmaster is “the kind of guy [scouts] would like to be, ” and that the Scoutmaster has “the unique ability to get inside a boy and gain his confidence.” Id. It states that the Scoutmaster has a “profound influence” on boys. Id. at 4. Finally, the Parents Book states that the Scoutmaster is a “mature adult of sound character, ” and lists the “desirable qualities” for which a Scoutmaster is selected. Id. at 4-5.

         (2) LDS Church

         The Caldwell Fourth Ward and the Nampa Ninth Ward of the LDS church served as the sponsoring organizations for the Boy Scout Troops in which Doe II and Doe V participated in, respectively. Doe II Dep. I 12:2-4, Dkt. 282-12; Doe V Dep. II 82:16, Dkt. 282-6; Doe V Dep. I, 23:23, Dkt. 282-26. Doe II believed that James Schmidt had been chosen by the Church to be his scoutmaster, and that as such he was trustworthy. Doe II Dep. I 84:21-25. Doe V similarly believed that Schmidt was trustworthy, because the Church chose him to be the Assistant Scoutmaster, and believed him to be suitable for that position. Doe V. Dep. II 84:2-8. 85:1-6; 88:1-6.

         C. Abuse in Scouting

         Almost since its founding, the BSA has maintained files on adult volunteers who have been deemed unsuitable for participation. See Walton Decl. Ex. 65 at 7, Dkt. 300-28. By 1935, BSA had identified almost 3, 000 men as unsuitable, with about 30% of those men identified as “moral degenerates.” Id. The IV Files are the modern version of this system, and document, among other transgressions, men who have engaged in any type of sexual misconduct, including child sex abuse. Walton Decl. Ex. 66 at 2-3, Dkt. 300-20. Between 1946 and 1983, BSA opened approximately 1, 260 “perversion” files, some number of which documented child sex abuse. Walton Decl. Ex. 65 at 4-6, ” Dkt. 300-28.

         There are four named perpetrators of sexual abuse in the record: Lawrence Libey, James Schmidt, Larren Arnold, and Doug Bowen.[4] A detailed chronology of their alleged abuse is necessary to resolve the pending motions. The first allegation of abuse by a named perpetrator is from as early as 1964. Tom Doe stated that he joined Boy Scouts in 1964 and remained in Scouts until 1969. Tom Doe Decl., Dkt. 300-15. Tom Doe further stated that Larren Arnold was his Scoutmaster, and that during the time he participated in Scouts Arnold abused him on five separate occasions. Id.

         In 1968, Doug Eveland, then Scoutmaster for Troop 156 in Lewiston, became concerned that Lawrence Libey had sexually abused a boy while sleeping alone in a tent with the boy on a scout trip. See Walton Decl. Ex. 58, (Troop Rosters, BSAID 9342), Dkt. 300-16; Eveland Dep. 23:17-24:21. 40:24-41:2, Dkt. 300-16. Libey also began sexually abusing Doe XVIII in 1968. Doe XVIII Dep. I 40:15-17, 50:2-6-65-12, 64:15-25.

         During the period 1969 to 1974, [Theo Morgan], then the Bishop for the Nampa 4th Ward, heard “rumors Schmidt had acted inappropriately with Scouts at a Scout camp.” [Morgan] Dep.16:23-2015, Dkt. 300-1.

         Sometime between 1970-1974, Libey sexually abused Doe XIII, who is a plaintiff in related No. 1:17-cv-00184-BLW. See Compl., Doe XX v. BSA, et al., No. 1:17-cv-00184-BLW (“Doe XX”), Dkt. 1. In approximately 1971-1972, Libey sexually abused Does XX and XXIV, who are plaintiffs in Doe XX. Id. From 1971-1974, Libey repeatedly sexually abused Doe IV. Doe IV Dep. I 42:14-44:19, 64:5-17, Dkt. 300-16.

         In 1972, Arnold attempted to abuse [Tony Bales]. [Bales] Decl. ¶¶ 3-4, Dkt. 300-14. In the fall of 1974, Arnold sexually abused Doe XII. Doe XII Dep. I 60:23-61:10, Dkt. 300-14. Between 1974-1975, Bowen sexually abused Doe XXI and Doe XXII. Doe XX Compl., No. 1:17-cv-00184-BLW, Dkt. 1. Between 1975-1976, Bowen sexually abused Doe XVII, and attempted to abuse his younger brother. Doe XVII Dep. 32:5-33:6, 53:9-18, 63:23-64:10, 91:10-92:13, Dkt. 300-7.

         In the spring of 1977, Schmidt sexually abused Doe XV at a scout camp in Idaho. Doe XV Dep. 46:13-48:7, Dkt. 300-1. That summer, Schmidt exposed himself to Doe XV and another boy during a scout trip, and sexually abused John Elliot, Doe VII, Doe IX, Doe X, and Doe XI at Camp Tapawingo. Id. 51:25-53:7, Dkt. 300-1; Elliott Dep. 49:16-24, 52:17-53:4, 54:6-55:22-23; 56:8-57:16, Dkt, 300-1; Doe VII Dep. 88:25-90:24, 94:23-96:25, 124:11-24, 131:4-24, Dkt. 300-1; Doe IX Dep. 135:21-138:6, Dkt. 300-1; Doe X Dep. 46:12-47:3, Dkt. 300-1; Doe XI Dep. 105:20-108:17, Dkt. 300-1; Schmidt IV File, Dkt. 300-1.

         In the spring of 1979, Schmidt sexually abused Doe V. Doe V Dep. I 32:10-14, 34:14-37:20, Dkt. 282-26; Doe V Dep. II 82:8-16, Dkt. 282-6. In 1982, Schmidt sexually abused Doe I, Shane Julian, Riley Gilmore, and [William Stout], and attempted to abuse [Tim Gamble]. Doe I Dep. I 59:6-24, 61:8-69:17, Dkt. 300-6; Schmidt IV File, Dkt. 300-1; Julian Dep. 28:9-29:5, 31:3-32:7, Dkt. 300-6; Gilroy Dep. 28:22- 29:13, 41:19-42:10, 46:1-13, Dkt. 300-6; see also Compl., Stout v. Schmidt, No. L-36881 (Oct. 09, 1984 Idaho 3d. Dist. Ct.), Dkt. 300-7; [Morgan] Dep. 19:3-15, Dkt. 300-7. Between 1982 and 1983, Schmidt repeatedly sexually abused Doe II. Doe II Dep. 94:3-101:13, 105:13-107:5, 109:2-121:23, Dkt. 300-7.

         2. Procedural Background

         On June 24, 2013, Plaintiffs Doe I, and Doe II, and Doe IV, along with other individuals no longer a part of this lawsuit, filed a Complaint in this Court. Compl., Dkt. 1. Plaintiffs Doe I and Doe II each brought claims for constructive fraud against Defendants the Boy Scouts of America (“BSA”) and the Corporations of the Presiding Bishop and the President of the Church of Jesus Christ of Latter-Day Saints (“LDS Church” or “Church Defendants”).[5] Id. Plaintiff Doe IV brought a single claim for constructive fraud against the BSA. Id. On July 30, 2013, Doe V joined in this action, and brought claims for constructive fraud against the BSA and the LDS church. First Am. Compl., Dkt. 5. On February 6, 2014, Doe XII joined in this action, and brought claims for constructive fraud against the BSA and the LDS Church.[6] Second Am. Comp., Dkt. 47. Finally, on October 7, 2015, Doe XVIII joined in this action, and brought a single claim for constructive fraud against the BSA. Third Am. Compl., Dkt. 91.

         The Defendants now separately move for summary judgment against the Plaintiffs. The BSA moves for summary judgment against all Plaintiffs. BSA Mots. for Summary Judgment, Dkts, 293, 294, 295, 296. The Church Defendants move for summary judgment against Does II, and V. LDS Mots. for Summary Judgment, Dkts. 282, 283, 284. The Plaintiffs have moved for partial summary judgment against each Defendant, seeking dismissal of certain of Defendants' affirmative defenses. Pl.'s BSA Mot., Dkt. 276; Pl.'s LDS Mot., Dkt. 277. The Court heard oral argument on the parties' motions on June 15, 2018.

         Defendants have each filed an omnibus motion for summary judgment, which outlines arguments that are applicable to every Plaintiff. See BSA Omnibus Mot., Dkt. 285; LDS Omnibus Mot., Dkt. 282. In addition, BSA has filed separate motions for summary judgment against Doe XII, against Does I, II, and V, and against Does IV and XVIII. See BSA XII Mot., Dkt, 274; BSA I, II, V Mot. Dkt. 275; BSA IV, XVII Mot., Dkt. 281. The Church Defendants have filed separate motions against Doe II and Doe V. See LDS II Mot., Dkt. 283; LDS V Mot., Dkt. 284.

         In their omnibus motions, Defendants argue that Plaintiffs' claims are improperly characterized as claims for constructive fraud, and that they are more appropriately characterized as personal injury claims. BSA Omnibus Br., Dkt. 285-1; LDS Omnibus Br., Dkt. 282-1. As such, they argue that Plaintiffs' claims are barred by the statute of limitations applicable to claims for personal injuries. Id. In the alternative, Defendants argue that Plaintiffs' claims are barred by the statute of limitations applicable to claims for constructive fraud, because they either knew or were on notice of facts which establish each element of their constructive fraud claims more than three years prior to the filing of the complaint. Id. Defendants further argue that Plaintiffs have ...

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