United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE
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
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.
Does I, II, and V
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. 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.
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.
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.
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.
Does IV, XVIII
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.
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.
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.
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.
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.
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.
Boy Scouts of America
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.
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.
issued various publications available to scouts, parents, and
the general public. The Boy Scout Handbook typically contains
the Scout Oath and the Scout Law. 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,
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.
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.
Abuse in Scouting
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.
are four named perpetrators of sexual abuse in the record:
Lawrence Libey, James Schmidt, Larren Arnold, and Doug
Bowen. 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.
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,
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.
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.
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.
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.
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.
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”). 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. 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.
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.
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.
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