B.L. v. Schuhmann (380 F. Supp. 3d 614, 2019)

United States District Court for the Western District of Kentucky 2019-05-02

Education Judiciary and Judicial Procedure The Public Health and Welfare

Citations

Full opinion text

i. Severability

Cape Publications found that the title of the statute, "Action relating to childhood sexual abuse or childhood sexual assault," did not adequately provide notice of the statute's effect on the sealing of records and thus Section (3) was unconstitutional. Defendants argue that Section (2) of the statute is inseverable from Section (3) and as a result the entire statute is unconstitutional. This argument fails.

As a threshold issue, the opinion from Cape Publications is not binding precedent. The issue has never been addressed in a published opinion or by the Kentucky Supreme Court. Thus, Section (3) of KRS 413.249 is still good law. Ky. R. Civ. P. 76.28(4)(c) (unpublished state-court decisions are not binding precedent in any other case in any court of Kentucky). The Court need not determine here whether Section (3) is unconstitutional because, even assuming it is, Section (2) is severable. KRS 446.090 provides:

It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.

KRS 446.090. The presumption is that if KRS 413.249(3) is unconstitutional, Section (2) will remain in force, unless either: (a) the statute provides otherwise; or (b) Section (2) is so "essentially and inseparably connected with and dependent upon" Section (3) that it is apparent the General Assembly would not have enacted Section (2) without Section (3).

Neither exception to the presumption of severability applies here. First, KRS 413.249 contains no language stating the statute is not severable. Second, Section (2) is not "essentially and inseparably connected and dependent upon" Section (3). Section (3) provides that if the allegations are more than 10 years old, the complaint and case will be sealed until the court does one of three actions: rules on the motion to seal, rules on a motion to dismiss, or rules on a motion for summary judgment (where defendant has moved to seal). The initial sealing of the record provided by Section (3) is intended for the benefit of a defendant. Section (2) provides the 10 year-statute of limitations for civil cases that seek damages arising out of childhood sexual abuse and/or assault. The section is intended to benefit of victims of childhood sexual assault/abuse. The purposes of these sections are different and do not depend on one another. Either section could operate without the other and thus Section (2) is severable. See Louisville v. Miller , 697 S.W.2d 164, 166-67 (Ky. App. 1985) ("[I]t is presumed that legislative acts have severable provisions, if what remains after severance is fully operable as a law.").

ii. Special Legislation

Defendants argue that Sections (1) and (2) of KRS 413.249 are prohibited "special legislation" because they draw an arbitrary distinction between the class of persons which can be victims of "childhood sexual assault" and "childhood sexual abuse" by defining a "child" in Section (1) as meaning "a person less than eighteen (18) years old." In other words, Defendants argue a person who was sexually assaulted or sexually abused a day after his or her eighteenth birthday would not get the benefit of the extended statute of limitations in Section (2) and the statute is thus arbitrary. See, e.g. , [DE 161, Wood Mot. Dis. at 6508]. Plaintiffs argue that this legislation is a valid exercise by the legislature regulating the statute of limitations for victims of childhood sexual abuse or assault.

Section 59 of the Kentucky Constitution is entitled "Local and special legislation." It provides: "The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: ... [t]o regulate the limitation of civil or criminal causes." KY. CONST. § 59. Kentucky courts follow a two-part test for determining whether a law is constitutional under Section 59 : (1) It must apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification. Zuckerman v. Bevin , 565 S.W.3d 580, 600 (Ky. 2018), reh'g denied (Feb. 14, 2019); Schoo v. Rose , 270 S.W.2d 940, 941 (Ky. 1954). Under the second requirement, "a substantial and justifiable reason [must appear] from legislative history, from the statute's title, preamble or subject matter, or from some other authoritative source." Tabler v. Wallace , 704 S.W.2d 179, 186 (Ky. 1985). In applying this test, the Court "is to draw all reasonable inferences and implications from the act as a whole and thereby sustain its validity." Waggoner v. Waggoner , 846 S.W.2d 704, 707 (Ky. 1992) (citing Graham v. Mills , 694 S.W.2d 698 (Ky. 1985) ). "[I]f any possible reasonable basis can be conceived to justify the classification, then it should be upheld." Meredith v. Ray , 292 Ky. 326, 166 S.W.2d 437, 439 (1942).

Sections (1) and (2) of KRS 413.249 are not special legislation prohibited by Section 59. The legislation satisfies the first element of the test as it applies equally to all in the class, i.e. , those individuals under age 18 when the sexual assault/abuse occurred.

Under the second requirement, distinctive and natural reasons support the statute's defining of "childhood sexual assault" and "childhood sexual abuse" as applying to persons under age 18. The legislature's intent to provide an extended statute of limitations for sexual assault or abuse during childhood is obvious from the title, language, and subject matter of Sections (1) and (2). Judge Cunningham reached a similar conclusion in C.F.'s case before its removal to federal court, denying Betts's argument that KRS 413.249 is special legislation:

This simply isn't special legislation. As an example, the General Assembly decided to give persons whose personal injury claims arise from a motor vehicle collision two years, rather than one, to file suit. KRS 304.39-230. No binding precedent has declared this unconstitutional as special legislation despite the tens of thousands of cases which have been filed under than longer limitations period. Similarly, KRS 413.249 is a constitutionally legitimate exercise of the legislature's prerogative. Moreover, there is a well-understood basis for concluding that the longer limitations period is both necessary and just for victims of child sexual abuse or assault. Such victims do not respond as an adult might and often need years to come to grips with what happened to them.

Opinion and Order, 17-CI-4585, C.F. v. Kenneth Betts , et al. , at 5-6 (Dec. 28, 2017, Jefferson Cir. Ct., Div. 4). This purpose is also found in the legislative history in Section 2 of Senate Bill 53, which enacted KRS 413.249 in July 1998, and provides: "[t]he General Assembly finds that retroactive effect is necessary to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred." [DE 37, B.L. Resp. at Exh. 1]. Thus, the motions to dismiss based on the constitutionality of KRS 413.249 are denied.

2. To which claims does KRS 413.249 apply?

Defendants argue that the statute of limitations in KRS 413.249 does not apply to the claims against the Defendants that are "non-perpetrators" of the alleged abuse. Neither the Supreme Court of Kentucky nor any other published decision of the Kentucky Court of Appeals has directly addressed to which claims and defendants KRS 413.249 applies. In resolving an issue of state law in federal court, we must "make [the] best prediction, even in the absence of direct state court precedent, of what the Kentucky Supreme Court would do if it were confronted with this question." Welsh v. United States , 844 F.2d 1239, 1245 (6th Cir. 1988), overruled on other grounds by Adkins v. Wolever , 554 F.3d 650 (6th Cir. 2009) ; Swanson v. Wilson , 423 F. App'x 587, 594 (6th Cir. 2011). When a federal court must apply substantive state law on an issue of first impression, or an issue which that state's courts have not comprehensively addressed or definitively ruled on, it is the court's "duty ... to decide unsettled issues of state law as a Kentucky court would decide them." Kelly v. McFarland , 243 F.Supp.2d 715, 717 (E.D. Ky. 2001) (citing Overstreet v. Norden Labs., Inc. , 669 F.2d 1286, 1290 (6th Cir. 1982) ); see also Ennes v. H & R Block E. Tax Servs. , Inc. , No. 3:01CV-447-H, 2002 WL 226345, at *2 (W.D. Ky. Jan. 11, 2002) (citing the same).

The Court first looks to the statute. Section (2) of KRS 413.249 defines the statute of limitations for "[a] civil action for recovery of damages for injury or illness suffered as a result of childhood sexual abuse or childhood sexual assault ..." Section (1)(a) defines childhood sexual assault as:

an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a felony in KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.110, 529.100 where the offense involves commercial sexual activity, 529.110 where the offense involves commercial sexual activity, 530.020, 530.064, 531.310, or 531.320. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual assault ...

Section (1)(b) defines childhood sexual abuse as:

an act or series of acts against a person less than eighteen (18) years old and which meets the criteria defining a misdemeanor in KRS 510.120, KRS 510.130, KRS 510.140, or KRS 510.150. No prior criminal prosecution or conviction of the civil defendant for the act or series of acts shall be required to bring a civil action for redress of childhood sexual abuse ...

KRS § 413.249(1)(a)-(b) (emphasis added). Thus, the statute defines "childhood sexual assault" and "childhood sexual abuse" as an act against a person less than 18 years old that meets the criteria defining a felony or misdemeanor in certain expressly enumerated criminal statutes. Thus, the plain language supports a finding that the 10-year statute of limitations only applies to claims which involve allegations that fall into one or more of the enumerated offenses.

Kentucky law allows individuals and corporate entities to be criminally liable for the criminal act of another under KRS 501.020 (liability for conduct of another; complicity); KRS § 502.050 (corporate liability), KRS 506.080 (criminal facilitation). However, KRS 413.249 does not enumerate Kentucky's statutes criminalizing complicity and facilitation. If the legislature had intended for KRS 413.249 to include criminal complicity or facilitation, it would have included those criminal statutes. However, two of the statutes enumerated in Section (1) of KRS 413.249 involve less direct forms of "childhood sexual assault": human trafficking ( KRS 529.100 ) and unlawful transaction with a minor in the first degree ( KRS 530.064 ). Under KRS 530.064, a person who "knowingly induces, assists, or causes a minor to engage in ... illegal sexual activity" is guilty of unlawful transaction with a minor. Here, whether any of the Defendants that have not been alleged to directly carry out sexual assault could fall within an enumerated offense in KRS 413.249, such as the enumerated offense under KRS 530.064, involves questions of fact not appropriate at this stage of the proceedings.

Although the Supreme Court of Kentucky has not addressed this issue, it was cited in dicta by the Kentucky Court of Appeals in Roman Catholic Bishop of Louisville v. Burden , 168 S.W.3d 414, 418 (Ky. App. 2004) and in Knaus v. Great Crossings Baptist Church, Inc. , No. 2009-CA-000141-MR, 2010 WL 476046, at *2 (Ky. Ct. App. Feb. 12, 2010) (unpublished).

Although not binding, the observations from Burden and Knaus are relevant to this analysis. See Garden City Osteopathic Hosp. v. HBE Corp. , 55 F.3d 1126, 1130 (6th Cir. 1995).

In Burden , an alleged victim of sexual assault sued the Archdiocese for sexual abuse during a church sponsored event by a priest who worked for the Archdiocese. Burden , 168 S.W.3d at 415. The Archdiocese argued KRS 413.249 applied. The Jefferson Circuit Court agreed, but held the statute of limitations was tolled under KRS 413.190. Id. at 418. On appeal, the Kentucky Court of Appeals only addressed whether the Jefferson Circuit Court's opinion and order was appealable. Id. at 418-19. The court did not address the ruling that KRS 413.249(2) applied to the Archdiocese. That said, in setting out the procedural posture of the case, the court quotes at length from a different order in that same case which held:

Section 2 of the original Senate Bill 53 states that the statute is to be given retroactive effect, '... to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred.' Thus, it is clear that the focus of the General Assembly was on 'victims' rather than those whom the 'victims' might attempt to hold liable for abuse . However, the language of KRS 413.249 , just as that used by the legislatures of Rhode Island, Colorado and California, appears to be directed at perpetrators and not third parties since it sets forth sexual offenses which a third party, such as a church or a school would be incapable of committing . Based on the foregoing, it is the Opinion of this Court [Division 2, Jefferson Circuit Court] that KRS 413.249 does not apply to the cases currently before the Court.

Id. at 417-18 (emphasis added). The Kentucky Court of Appeals noted "[w]e believe this to be a proper interpretation of the applicable law." Id. at 418 n.1.

Six years later, in an unpublished decision, Knaus , the Kentucky Court of Appeals cited the language from the same order cited in Burden , stating "[w]e ... find KRS 413.249(2) to be inapplicable, as our Courts have previously held that this statute does not apply to claims against third parties, but only to the perpetrator him or herself." 2010 WL 476046, at *2 (citing Burden , 168 S.W.3d at 418 ). Knaus alleged sexual abuse by a youth minister employed by Great Crossings Baptist Church ("Great Crossings"). Id. at *1. Great Crossings moved to dismiss, arguing that KRS 413.249, which then had a five-year limitation, applied and had expired. Id. at **1-2. The Plaintiff argued the general one-year statute of limitations applied and was tolled under KRS 413.190(2) for fraudulent concealment. Id. at *2.

The trial court in Knaus permitted discovery on whether Great Crossings had concealed knowledge of abuse or obstructed investigation of abuse claims to determine whether the statute of limitations had been tolled. Id. at *1. The trial court held that KRS 413.249 was "inapplicable (although entitled 'Action relating to childhood sexual assault'), because the statute contains no indication that it is applicable to third parties (such as a church employer)." Id. at *2. It also held the one-year statute of limitation was not tolled under KRS 413.190(2) because there was no evidence of concealment or obstruction. Id. While the Kentucky Court of Appeals did not analyze KRS 413.249 in detail, it agreed with the trial court's ruling that KRS 413.249 did not apply to the claim against Great Crossing, citing Burden and stating "[w]e likewise find KRS 413.249(2) to be in applicable, as our Courts have previously held that this statute does not apply to claims against third parties, but only to the perpetrator him or herself." Id.

Taking all of this into account, it is likely the Supreme Court of Kentucky would determine that the statute of limitation in KRS 413.249 applies only to those claims that involve conduct that falls within at least one of the expressly enumerated criminal statutes listed in Section 1(a)-(b). Thus, the Court will apply KRS 413.249 consistent with its plain language, i.e. , the ten-year statute of limitations applies to claims of conduct that falls within the enumerated statutes defining childhood sexual assault or abuse. This determination will ultimately involve questions of fact.

3. Assault, Sexual Assault, Harassment, Battery Claims

Counts I of each complaint brings a claim for assault, sexual assault, harassment, and battery. B.L. brings this claim against Schuhmann. A.S., K.W., N.C., E.B., F.A., and C.F. bring this claim against Betts. N.C. also brings this claim against Wood. To the extent these claims allege sexual assault of a minor, they come within the limitations under KRS 413.249, as those claims involve allegations of childhood sexual abuse or assault. That said, this may not apply to E.B.'s claim as E.B. does not allege to have been a minor.

The applicable statutes of limitations for the claims in Counts I for assault, harassment, and battery is Kentucky's one-year statute of limitations for personal injuries in KRS 413.140(1). Rigazio v. Archdiocese of Louisville , 853 S.W.2d 295, 296 (Ky. Ct. App. 1993) (one-year statute of limitations applies to battery); Ten Broeck Dupont, Inc. v. Brooks , 283 S.W.3d 705, 727 (Ky. 2009) (recognizing sexual assault as a form of battery). Likewise, the one-year statute of limitations will apply to E.B.'s claims for sexual assault within Count I if E.B. was not a minor during the relevant timeframe.

i. Which version of the statute of limitations in KRS 413.249 applies?

Having determined that the statute of limitations in KRS 413.249 applies to the sexual assault claims for the minor plaintiffs, the Court must resolve which version of the statute of limitations applies. KRS 413.239 was amended effective June 19, 2017, changing the limitations period from five years to ten years. The amendment also added time for bringing suit within ten years "of the conviction of a civil defendant for an offense included in the definition of childhood sexual abuse or childhood sexual assault." KRS 413.249(2)(d).

Schuhmann argues that the previous five-year statute of limitation applies to B.L.'s sexual abuse/assault claims. [DE 22]. Other defendants similarly argue that the previous five-year statute of limitations should apply to B.L.'s, N.C.'s, and F.A.'s claims. [DE 14, 108, 163, 166]. This argument does not impact the claims of A.B., K.W., or C.F., as those would still be timely even if the previous five-year statute of limitation applied.

KRS 446.080 provides that "[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature ...." KRS 446.080(1). It further provides "[n]o statute shall be construed to be retroactive, unless expressly so declared." KRS 446.080(3). In other words, "Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application." Commonwealth Dep't of Agric. v. Vinson , 30 S.W.3d 162, 168 (Ky. 2000). Yet "a failure to state explicitly that legislation is to apply retroactively does not always mean that a court may not determine that the legislation has retroactive effect." Commonwealth. ex rel. Conway v. Thompson , 300 S.W.3d 152, 167 (Ky. 2009), as corrected (Jan. 4, 2010). The Kentucky Supreme Court has held there are no mandatory "magic words" for retroactive legislation but that the "General Assembly must expressly manifest its desire that a statute apply retroactively." Baker v. Fletcher , 204 S.W.3d 589, 597 (Ky. 2006). Under Kentucky law, the Court discerns the legislature's "intent for legislation to have a retroactive effect by using traditional tools for statutory interpretation." Thompson , 300 S.W.3d at 167. If a section of the Kentucky Revised Statutes, as literally construed, would be absurd or unreasonable, the Court may examine the original act from which the section was derived to find the true legislative intent. Swift v. Se. Greyhound Lines , 294 Ky. 137, 171 S.W.2d 49, 51 (1943).

Here, the 2017 Amendment to KRS 413.249 does not expressly state that it is "retroactive." Senate Bill 53, which enacted KRS 413.249 in July 1998, provides:

Section 2. This Act shall apply to all actions which accrue before or after the date this Act becomes law. The General Assembly finds that retroactive effect is necessary to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred.

(emphasis added). And the current version of KRS 413.249 provides in the Compiler's Notes that the 1998 version of "Section 2 of Acts 1998, ch. 577 reads: 'This Act shall apply to all actions which accrue before or after the date this Act becomes law.' " That said, the later amendments to the statute in 2007, 2013, and 2017, all of which enlarged the opportunities for victims of sexual assault to pursue their claims, included no comment on retroactivity. KRS 413.249 (eff. June 25, 2007); KRS 413.249 (eff. June 25, 2013); KRS 413.249 (eff. June 29, 2017). The parties have not provided the Court with any legislative history for those amendments to clarify whether the legislature intended the 2017 Amendment to be retroactive.

Under Kentucky law, the rule against retroactive application without legislative expression does not apply to "remedial" statutes or statutes that relate only "to remedies or modes of procedure," as opposed to substantive rights. Vinson , 30 S.W.3d at 168 ; Peabody Coal Co. v. Gossett , 819 S.W.2d 33, 36 (Ky. 1991) (new standard for reopening workers' compensation awards applied retroactively). The Kentucky Supreme Court explained in Vinson that substantive amendments to a statute are "[a]mendments which change and redefine the out-of-court rights, obligations and duties of persons in their transactions with others ... come within the rule that statutory amendments cannot be applied retroactively to events which occurred prior to the effective date of the amendment." Vinson , 30 S.W.3d at 168. On the other hand, however, statutory amendments that do not affect substantive rights, "remedial" amendments, "do not come within the rule prohibiting retroactive application." Id. at 169 (citing Peabody Coal , 819 S.W.2d at 33 ).

In Stone , the Kentucky Court of Appeals, then the state's highest court, stated that Kentucky follows the general rule that an amendment to a statute of limitations is remedial so long as a right has not vested. Stone v. Thompson , 460 S.W.2d 809, 810 (Ky. 1970). (citing Barnes v. Louisville & N.R. Co. , 283 Ky. 261, 140 S.W.2d 1041, 1045 (1940) ). The Stone court observed there "is no vested right in the running of the statute of limitations unless it has completely run and barred the action, so that as to existing causes of action which are not barred, the statute may be amended, suspended or repealed." Id. (emphasis added). This rule has generally been followed by Kentucky courts in the workers' compensation context. Brooks v. Univ. of Louisville Hosp. , 33 S.W.3d 526, 530 (Ky. 2000) ; William A. Pope Co. v. Howard , 851 S.W.2d 460, 462 (Ky. 1993) (citing Kiser v. Bartley Mining Co. , 397 S.W.2d 56 (Ky. 1965).

Kentucky case law supports the assertion that the affirmative defense of an expired statute of limitation is a vested right of which a defendant cannot be divested through legislative action. Lawrence v. City of Louisville , 96 Ky. 595, 29 S.W. 450, 451 (1895) (holding that, if a right to maintain an action has lapsed, "no legislative authority can reimpose the obligation" upon the defendant). This fits with the rule stated in Barnes , Stone , and Kiser. Thus, if any Plaintiff's statute of limitations under KRS 413.249 expired before the filing of suit, that right became vested and cannot be divested through the 2017 Amendment of KRS 413.249.

N.C. alleges he was 19 in 2013. See Case 157, [Sec. Am. Compl. ¶ 2]. Flaherty asserts the five-year statute of limitations in KRS 413.249 expired for N.C. in 2017, five years after turning 18. N.C. filed suit on March 8, 2017. It is not clear from the face of the complaint whether five years from N.C.'s 18th birthday ran before or after March 8, 2017. Because the running of the statute of limitations does not appear on the face of the Complaint, the Court will deny the motions to dismiss N.C.'s complaint on this basis.

Betts asserts F.A. turned 18 in 2012 and that a five-year statute of limitation expired in 2017 before the 2017 Amendment to KRS 413.249 became effective on June 29, 2017. [DE 163, Exh. A, Betts Mot. Dis. at 6544; DE 173, F.A. Resp.]. To establish F.A.'s date of birth, Betts attaches a uniform citation that states F.A.'s date of birth. [DE 163, Exh. A]. It is unclear how the uniform citation was garnered. This issue cannot be determined on the face of B.L.'s complaint, and would require the Court to decide an issue of fact. It is thus not appropriate at this stage of the proceedings and Court will deny the motions to dismiss F.A.'s complaint on this basis.

Schuhmann states that B.L. turned 18 in 2011, stating B.L.'s date of birth, but without attaching any proof. [DE 22-1, Schuhmann Sealed Mot. Dis. at 966; DE 37, B.L. Resp.]. Flaherty takes a different approach. Flaherty alleges that because the Explorer Program was open to children from the age of 14 through 19, B.L. must have been at least age 14 in 2008, and therefore would have turned 18 before the calendar year 2012. [DE 14, Flaherty Mot.

Dis. at 729-30, 736; DE 31, B.L. Resp.]. Thus, a five-year statute of limitation under KRS 413.249 from the time B.L. turned 18 would expire sometime in 2016 before KRS 413.249 was amended in 2017, making B.L.'s claims untimely. However, as with N.C. and F.A., this determination does not appear plainly on the face of B.L.'s complaint and would require the Court to decide an issue of fact. Thus, a determination is not appropriate at this stage of the proceedings and Court will deny the motions to dismiss B.L.'s complaint on this basis.

4. Statute of Limitations for Vicarious Liability Claims

Each plaintiff asserts vicarious liability against Flaherty, Metro Louisville, and the Boy Scout Defendants. Under Kentucky law, "[v]icarious liability, sometimes referred to as the doctrine of respondeat superior , is not predicated upon a tortious act of the employer [or principal] but upon the imputation to the employer [or principal] of a tortious act of the employee [or agent.]" Patterson v. Blair , 172 S.W.3d 361, 369 (Ky. 2005) (citation omitted). Kentucky's Supreme Court has held that an employee's "escape [from] liability for his alleged negligence because the statute of limitations had run as to him does not also insulate the employer from vicarious liability for that negligence." Cohen v. Alliant Enterprises, Inc. , 60 S.W.3d 536, 538 (Ky. 2001). However, the Court also determined the vicarious claim may proceed only if the plaintiff "sued the principal ... before the statute of limitations had run as to the agent." Id. at 539. Thus, the Plaintiffs' vicarious liability claims will be timely under the statute of limitations if the related claim against the applicable employee/agent is timely.

5. Statute of Limitations for Assault, Battery, and Harassment, Negligent Hiring/Entrustment/Training/Supervision, and Negligence

Kentucky's one-year statute of limitations for personal injuries requiring the action to be "commenced within one (1) year after the cause of action accrued" governs the state claims for assault, harassment, battery, negligence, and negligent hiring/entrustment/training/supervision. KRS 413.140(1) ; see, e.g. , DeLong v. Arms , 251 F.R.D. 253, 255 (E.D. Ky. 2008) (one-year Kentucky statute of limitations applies to negligence); Rigazio , 853 S.W.2d at 296 (one-year statute of limitations applies to battery); Ten Broeck Dupont, Inc. v. Brooks , 283 S.W.3d 705, 727 (Ky. 2009) (recognizing sexual assault as a form of battery); White v. Whitaker Bank, Inc. , No. 04-CI-05225, 2008 Ky. App. Unpub. LEXIS 95, at *12 (Ky. Ct. App. 2008) (citing Grego v. Meijer, Inc. , 187 F.Supp.2d 689, 694 (W.D. Ky. 2001) ) ("[T]he statute of limitations to be applied to a negligent supervision claim is the limitations period applicable to the underlying tort committed by the employee.").

Under Kentucky law, an action is generally said to "accrue" when the injury occurs. Caudill v. Arnett , 481 S.W.2d 668, 669 (Ky. 1972). Thus, the claims for assault, battery, and harassment falling outside the statute of limitations for childhood sexual assault/abuse and the claims for negligent hiring/entrustment/training/supervision, and negligence, accrued when the injury occurred. That said, Plaintiffs would be entitled to tolling of the statute under KRS 413.170(a) ; thus, these claims would not accrue until their eighteenth birthdays. Because this information is not established on the face of the complaints (even E.B.'s complaint, which does not make an allegation of infancy, does not establish on its face that E.B. was not a minor), it is not appropriate to consider at this stage of the proceedings.

Plaintiffs also argue that their claims were equitably tolled under KRS 413.190(2). Kentucky has codified the doctrine of fraudulent concealment by enacting KRS 413.190(2). See Munday v. Mayfair Diagnostic Lab. , 831 S.W.2d 912, 914-15 (Ky. 1992) (the statute "is simply a recognition in law of an equitable estoppel ... to prevent fraudulent or inequitable application of a statute of limitations"). The statute provides:

When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action , the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced. But this saving shall not prevent the limitation from operating in favor of any other person not so acting, whether he is a necessary party to the action or not.

KRS 413.190(2) (emphasis added). Thus, the statute of limitations may be tolled when the defendant absconds, conceals himself, or "by any other indirect means obstructs the prosecution of the action[.]" Id.

The doctrine of fraudulent concealment focuses on conduct by the defendant designed to prevent discovery of either the injury or the responsible party. McCollum v. Sisters of Charity of Nazareth Health Corp. , 799 S.W.2d 15, 19-20 (Ky. 1990). The equitable estoppel doctrine precludes a defendant from asserting the statute of limitations when the defendant has taken actions "calculated to mislead or deceive and to induce inaction by the injured party." Adams v. Ison , 249 S.W.2d 791, 793 (Ky. 1952). Once the "obstruction" is removed, a plaintiff has a duty to exercise reasonable diligence in pursuing his or her claims. See Cuppy v. Gen. Accident Fire & Life Assurance Corp. , 378 S.W.2d 629, 630-31 (Ky. 1964).

Plaintiffs alleged the Defendants concealed knowledge. See e.g. Case 158, [First Am. Compl. at ¶¶ 45, 50]. Defendants argue that the statute of limitations cannot be tolled for concealment because Plaintiffs "had the knowledge, or the means to obtain knowledge, of the true facts years before filing this lawsuit" and "exercised no diligence, much less reasonable diligence" in discovering their claims. See, e.g. , [DE 136, at 5758]. What Defendants knew and when Plaintiffs had the requisite knowledge of same, are questions of fact better reserved for trial or upon a summary judgment motion. R.T. Vanderbilt Co. v. Franklin , 290 S.W.3d 654, 659 (Ky. App. 2009) ("If there is a factual dispute regarding the reasonable diligence of the plaintiff, the question is properly submitted to the jury for resolution."). At this early stage, whether equitable tolling applies to claims subject to the one-year statute of limitations is premature. Thus, the Court will deny the motions to dismiss the assault, battery, harassment, and other negligence-based claims on grounds of statute of limitations.

6. Statute of Limitations for Claims of Intentional Infliction of Emotional Distress, Fraud by Omission/Duty to Disclose, Fraudulent Concealment, and Failure to Report

Kentucky's five-year statute of limitations under KRS 413.120 governs the state law claims for intentional infliction of emotional distress, fraud by omission/duty to disclose, fraudulent concealment, and failure to report as mandated by KRS 620.030 and KRS 620.040. Craft v. Rice , 671 S.W.2d 247, 251 (Ky. 1984) ("There is a right to be free of emotional distress arising from conduct by another. Because the essence of the tort is the interference with this right and not whether any bodily harm results, the five-year statute of limitations applies."); KRS § 413.120(11) (requiring commencement within five years for "[a]n action for relief or damages on the ground of fraud ..."); KRS 413.120(2) (requiring commencement within five years for "[a]n action upon a liability created by statute, when no other time is fixed by the statute creating the liability"). Thus, actions on these claims must "be commenced within five (5) years after the cause of action accrued." KRS 413.120.

Under Kentucky law, Plaintiffs' intentional infliction of emotional distress claims and failure to report will accrue when the injury occurred. Caudill , 481 S.W.2d at 669. Thus, those claims must be commenced within five years after the injury occurred, unless the action is tolled. Thus, the intentional infliction of emotional distress ("IIED") claims for A.S., K.W., N.C., E.B., and C.F. would all be timely filed within five years of the last date of injury without considering tolling under KRS 413.170(a) (tolling during infancy). B.L. alleges the last act of sexual assault/abuse occurred in 2009. [DE 1-4, Sec. Am. Compl. ¶ 2]. A such, the claim for IIED accrued in 2009 and the five-year statute of limitation ran in 2014. Similarly, F.A. alleges the last act of sexual assault/abuse occurred in 2010. [DE 1-1, First Am. Compl. ¶ 69]. As a result, the claim for IIED accrued in 2010, and the five-year statute of limitation ran in 2015. Even so, B.L. and F.A. would also be entitled to tolling of the statute under KRS 413.170(a) and thus the claims would not accrue until their eighteenth birthdays. Because this information is not established on the face of B.L.'s and F.A.'s complaints, the Court will deny the motions to dismiss the IIED claims and failure to report claims on grounds of statute of limitations.

As to the failure to report claims, there are issues of fact relating to potential equitable tolling. For instance, in Roman Catholic Diocese of Covington v. Secter , the Kentucky Court of Appeals held that the statute of limitations was tolled against the Diocese. The Diocese concealed its knowledge of the teacher's sexual abuse, which obstructed the alleged victim, Secter, from discovering his cause of action against the Diocese. 966 S.W.2d 286, 290 (Ky. Ct. App. 1998). The court found the Diocese concealed its knowledge of the teacher's behavior before the time that Secter was abused and continued to receive reports of sexual abuse of other students during part of the time Secter was abused. Id. Further, the court found the Diocese had violated its statutory duty to report child abuse, noting "where the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct." Id. (quoting Munday , 831 S.W.2d at 915 ). The court held "[t]he Diocese failed to comply with this duty, and such failure constitutes evidence of concealment under KRS 413.190(2)." Id. As this stage of the proceeding, whether equitable tolling would apply to the failure to report claims involves issues of fact.

Claims for fraud do not accrue until discovery of the fraud but must be commenced within ten years after perpetration of the fraud. KRS 413.130(3). Plaintiffs' discovery of the alleged fraud is an issue of fact. As discussed above, whether Defendants knew of the alleged abuse and failed to report it, and when Plaintiffs had the requisite knowledge of same, are questions of fact better reserved for trial or upon a summary judgment motion. Franklin , 290 S.W.3d at 659 ("If there is a factual dispute regarding the reasonable diligence of the plaintiff, the question is properly submitted to the jury for resolution."). Accordingly, Court will deny the motions to dismiss the claims of fraud by omission/duty to disclose and fraudulent concealment on grounds of statute of limitations.

7. Statute of Limitations for Federal Claims under 20 U.S.C. 1681(a) and 42 U.S.C. 1983

42 U.S.C. § 1983 and 20 U.S.C. § 1681 do not provide their own statutes of limitations. As a result, courts use the statute of limitations in the general or residual statute for personal injury actions. Wilson v. Garcia , 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), partially superseded by statute as recognized in Jones v. R.R. Donnelley & Sons Co. , 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) ( § 1983 claims); Lillard v. Shelby Cty. Bd. of Educ. , 76 F.3d 716, 729 (6th Cir. 1996) (Title IX claims); Bonner v. Perry , 564 F.3d 424, 430-31 (6th Cir. 2009). Courts adopt the tolling provisions that apply to that statute unless they are inconsistent with the federal policy underlying the statute. McCune v. Grand Rapids , 842 F.2d 903, 906 (6th Cir. 1988). Thus, the Court will apply Kentucky's one-year statute of limitations for personal injury under KRS 413.140 to Plaintiffs' claims under 42 U.S.C. § 1983 and 20 U.S.C. § 1681. However, as discussed above, when these claims accrued and whether they were tolled involve questions of fact. Thus, Court will deny the motions to dismiss on grounds of statute of limitations.

C. Insufficient Pleading

Defendants move to dismiss based on various pleading insufficiencies in Plaintiffs' complaints. The Court will discuss each argument below.

1. Childhood Sexual Assault Claims

Along with the sexual assault claims the Plaintiffs make in Count I against the perpetrator Defendants, the Plaintiffs (except E.B.), make separate claims for "childhood sexual abuse" and "childhood sexual assault" under KRS 413.249 against all Defendants. Betts moves to dismiss the childhood sexual assault and abuse claims made by B.L. under KRS 413.249, arguing that KRS 413.249 is not a stand-alone tort, but merely creates a specific statute of limitations for claims of childhood sexual assault and abuse. See, e.g. , [DE 12, at 685].

KRS 413.249 is part of chapter 413, "Limitation of Actions", within the Kentucky Revised Statutes. Although Section (1) the statute defines "childhood sexual assault" and "childhood sexual abuse," this is for determining which civil actions the longer statute of limitations in Section (2) of the statute applies. No language in KRS 413.249 suggests that it creates a separate cause of action apart from a claim of sexual assault. Statutory rights of action, instead, are found under chapter 411, "Rights of Action and Survival of Actions," of the Kentucky Revised Statutes. Accordingly, the Court will dismiss each of the Plaintiffs' claims for childhood sexual assault and abuse made under KRS 413.249 against the other defendants.

2. KRS 344.040 and KRS 344.070 -Kentucky Civil Rights Act Claims

Metro Government moves to dismiss claims asserted by B.L., A.S., K.W., N.C., and C.F. for violating the Kentucky Civil Rights Act ("KCRA") for age and sex discrimination under KRS 344.040 and KRS 344.070. [DE 11, 62, 80, 105, 185]. Plaintiffs allege they were required to perform sexual acts in exchange for benefits and progression in the Explorer Program. See, e.g. , Case 151, [Sec. Am. Compl. ¶ 139]; Case 152, [Ver. Compl. ¶ 124]; Case 152, [First Am. Compl. ¶ 144]; Case 157, [Sec. Am. Ver. Compl. ¶ 135]. Plaintiffs' complaints allege the Explorer Program was "for career education" and included police officers educating the participants in character-building, obedience, and various other life skills, as well as activities including "meetings, jobbing, trips, ride-alongs, and community service under the control of the Explorer's Program, and as youth explorers who were transported to and participated in the Kentucky Law Enforcement Explorer Academy ...." See, e.g. , Case 151, [Sec. Am. Compl. ¶¶ 35, 43, 46].

i. Age Discrimination under KRS 344.040 and KRS 344.070

Both KRS 344.040 and KRS 344.070 are expressly limited to discrimination against those "age forty (40) and over." KRS § 344.040(1)(a) ; KRS § 344.070. To state a claim under KRS 344.040 for age discrimination, Plaintiffs must state facts, if true, that would establish that Plaintiffs were: (1) 40 years or older; (2) discharged; (3) qualified for the position from which they were discharged; (4) and replaced by a significantly younger person. Williams , 184 S.W.3d at 496 (citing Kline v. Tenn. Valley Auth. , 128 F.3d 337, 349 (6th Cir. 1997) ). While the prima facie elements do not constitute a pleading standard, a plaintiff must allege specific facts necessary to show that they are entitled to relief against this legal backdrop.

See Swierkiewicz , 534 U.S. at 512, 122 S.Ct. 992 ; see also Twombly , 550 U.S. at 570, 127 S.Ct. 1955. These Plaintiffs allege they were minors at the time of the allegations in the complaints. Accordingly, Plaintiffs have not pled a plausible claim for age discrimination under KRS 344.040 and KRS 344.070.

ii. Sex Discrimination Under KRS 344.040

The Plaintiffs assert claims for quid pro quo sexual harassment on the basis of sex discrimination under KRS 344.040, entitled "Unlawful discrimination by employers ...," which provides:

(1) It is an unlawful practice for an employer :

(a) To fail or refuse to hire , or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, national origin, sex , age forty (40) and over , because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking

KRS § 344.040(1)(a) (emphasis added). KRS 344.040(a)(1) thus prohibits an "employer" from failing to hire or refusing to hire an individual, or discharging an individual, for any of the enumerated discriminatory reasons.

The Kentucky Supreme Court has determined that KRS 344.040 "afford[s] protection from discrimination only to those in an employer-employee relationship." Brooks v. Lexington-Fayette Urban Cty. Housing Auth. , 132 S.W.3d 790, 811 (Ky. 2004) (Keller, J., concurring) as modified on denial of reh'g (May 20, 2004) (quoting Bank One , Kentucky v. Murphy , 52 S.W.3d 540, 547 n.2 (Ky. 2001) (Keller, J., concurring in part and dissenting in part)); see also Butler v. Drive Auto. Indus. of Am., Inc. , 793 F.3d 404, 408 (4th Cir. 2015) ("An entity can be held liable in a Title VII action only if it is an 'employer' of the complainant."). None of the Plaintiffs allege that discrimination occurred in the employee-employer context, or that Metro Government was their employer. Thus, even taking the Plaintiffs' allegations as true, the claims under KRS 344.040 do not allege sufficient facts to state a claim for relief for gender discrimination against Metro Government under KRS 344.040.

iii. Sex Discrimination Under KRS 344.070

KRS 344.070, [d]iscrimination in apprenticeship or training, provides:

It is an unlawful practice for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against an individual because of race, color, religion, national origin, sex , or age forty (40) and over, or because the person is a qualified individual with a disability in admission to or employment in, any program established to provide apprenticeship or other training.

KRS § 344.070 (emphasis added). KRS 344.070 thus prohibits "employer[s]," "labor organization[s]," and "joint labor-management committee[s] controlling apprenticeship or other training or retraining, including on-the-job trainings programs" from discriminating "in admission to or employment in" "any program established to provide apprenticeship or other training." Accordingly, for Metro Government to be subject to KRS 344.070, it must be an employer, labor organization, or joint labor-management committee.

As discussed above, Plaintiffs do not allege that Metro Government was their employer. As a result, Metro Government would not be subject to KRS 344.070 as an employer.

Nor do Plaintiffs allege a factual basis to support that Metro Government was a "joint labor-management committee." Neither the KCRA nor its federal counterparty define the term "joint labor-management committee." Federal case law reflects that "such a committee would include both management and labor components." Salas v. Indep. Elec. Contractors Inc. , No. 11-1748 RAJ, 2013 WL 1898249, at *3 (W.D. Wash. May 7, 2013), aff'd , 603 F. App'x 607 (9th Cir. 2015) (citing Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship & Training Comm. , 662 F.2d 534, 535-36 (9th Cir. 1981) ); Maalik v. Int'l Union of Elevator Constructors, Local 2 , 437 F.3d 650, 652 (7th Cir. 2006) ( Section 2000e-2(d) "makes both employers and unions answerable for the administration of joint training and apprenticeship programs."). This case simply does not involve a "joint labor-management committee."

Finally, the Plaintiffs do not allege a factual basis to support that Metro Government was a "labor organization." KRS § 344.030 defines "labor organization" as:

"Labor organization" means a labor organization and an agent of such an organization, and includes an organization of any kind, an agency or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment , and a conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

Ky. Rev. Stat. Ann. § 344.030 (West). Thus, by its plain terms, a "Labor organization" must be in the employment context as it is an organization "in which employees participate." Again, Plaintiffs do not allege to have been employees of Metro Government.

Plaintiffs neither allege that discrimination occurred in the employee-employer context nor that Metro Government was their employer, a joint labor-management committee, or labor organization. Thus, even taking the Plaintiffs' allegations as true, the claims under KRS 344.070 do not allege appropriate facts to state a claim for relief for gender discrimination against Metro Government under KRS 344.070.

3. Intentional Infliction of Emotional Distress

All Defendants except Metro Government move to dismiss Plaintiffs' IIED

claims. Defendants argue that these claims are precluded by the other tort claims alleged. The Boy Scout Defendants and Wood further argue Plaintiffs' IIED claims are inadequately pled.

i. Availability of Other Tort Claims

Kentucky courts characterize IIED as a gap-filler tort claim. Rigazio , 853 S.W.2d at 299. Under Kentucky law, "where an actor's conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie." Id. Thus, "a plaintiff cannot maintain both a negligence claim and an [outrage] claim based on a single set of facts." Childers v. Geile , 367 S.W.3d 576, 581 (Ky. 2012). The Court must eventually inquire "whether the facts support simple or gross negligence leading to a personal injury, some other specific intent tort, or a claim that conduct was intended or the actor should have known was likely to cause emotional distress with any physical results being consequential." Id. However, while IIED is a gap-filler tort, "[t]his is not to say that it cannot be pleaded alternatively." Id. at 582 ; see also Kustes v. Lexington-Fayette Urban Cty. Gov't , No. 5:12-323, 2013 WL 4776343, at *2 (E.D. Ky. Sept. 3, 2013) ("A plaintiff can, however, plead an IIED claim in the alternative to a traditional tort claim.").

Plaintiffs have alleged that Defendants intentionally or recklessly caused severe emotional distress. While the facts alleged may also support Plaintiffs' traditional tort claims, it may be that certain Defendants acted only with an intent to cause emotional harm. At this early stage, the Plaintiffs' assertions must be assumed true. The mere fact that Plaintiffs have alleged both traditional tort claims and IIED claims is not grounds for dismissal of their IIED claims. Thus, the Court will permit Plaintiffs' IIED claims to proceed at this stage of the proceedings.

ii. Pleading IIED

Some Defendants argue Plaintiffs have not sufficiently pled IIED. See, e.g. , [DE 79, Wood Mot. Dis. at 3552]. The Boy Scout Defendants argue Plaintiffs have failed to plead the requisite mental state to support a claim of IIED. [DE 15, 64, 84, 106, 136, 167].

The Kentucky Supreme Court has adopted the Restatement (Second) of Torts definition of IIED:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to others results from it, for such bodily harm.

Craft , 671 S.W.2d at 251 (quoting Restatement (Second) of Torts § 46 )). To recover for IIED, a plaintiff must establish:

(1) the wrongdoer's conduct was intentional or reckless;

(2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;

(3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and

(4) the distress suffered must be severe.

Osborne v. Payne , 31 S.W.3d 911, 913 (Ky. 2000).

The Boy Scout Defendants argue that the Plaintiffs make "conclusory allegations that all defendants acted deliberately" but do not "provide any facts supporting an inference that the LFL Defendants acted with such a mental state." See, e.g. , [DE 84, Boy Scout Defendants Mot. Dis. at 3658]. For IIED, the wrongdoer's conduct can be "intentional" or "reckless." Osborne , 31 S.W.3d at 913. Plaintiffs allege that Defendants' conduct was "done ... deliberately with the goal of causing extreme emotional distress ... and/or was done with reckless indifference to the Plaintiff's right and well-being ...." See, e.g. , Case 152, [Ver. Compl. at ¶ 30] (emphasis added). Plaintiffs allege that the Boy Scout Defendants administered the Explorer Program with reckless indifference to the rights and well-being of the Plaintiffs. They allege the Boy Scout Defendants had knowledge that Explorers were at risk of sexual molestation, created extensive policies to prevent same, but did not enforce these policies and routinely allowed violations of sexual abuse policies around the country, including in the Explorer Program. See, e.g. , Case 153, [First Am. Compl. ¶¶ 36, 66-70]. At this stage of the proceedings, Plaintiffs' allegations could support the inference that the Boy Scout Defendants conduct was "reckless."

Wood argues that B.L, K.W., F.A., and C.F. do not sufficiently plead outrageous and intolerable conduct. See, e.g. , [DE 10, Wood Mot. Dis. at 639]. Conduct is only actionable under the tort of IIED if it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Stringer v. Wal-Mart Stores, Inc. , 151 S.W.3d 781, 789 (Ky. 2004), overruled on other grounds by Toler v. Sud-Chemie, Inc. , 458 S.W.3d 276 (Ky. 2014). It is the type of conduct that would lead an average member of the community to exclaim, "Outrageous!" when he hears the facts of the case. Id. "Mere insults, indignities, threats, annoyances, petty oppressions, [and] other trivialities" do not meet this standard. Id.

B.L. alleges that Wood, along with several other Defendants, confronted her about Schuhmann's sexual abuse while at an LMPD Explorer Camp in Atlanta, Georgia. Case 151, [Sec. Am. Compl. ¶¶ 49-54]. B.L. alleges she was ordered to leave her room and placed on a bench in a courtyard. Id. at ¶ 51. She requested her parents and/or an attorney be present during the interrogation. Id. B.L. alleges the "interrogation lasted for approximately one hour and was so severe and traumatic that it caused B.L. to become hysterically upset, causing her to sob and become extremely anxious. This is due to the fact that Defendant Schmidt and Betts were verbally abusive, victim blaming and shaming, belligerently berating B.L., and blaming her for her victimization and abuse at the hands of the Defendant Schuhmann. Defendant Flaherty also began questioning B.L. at this point." Id. at ¶ 52. B.L. alleges that after the interrogation, Wood, along with several other Defendants, forced B.L. to take them to her hotel room, searching her room and personal belongings and taking her phone. Id.

K.W. alleges that she disclosed to Wood that Betts had been abusing her. Case 153, [First Am. Compl. at ¶ 49]. She further alleges that in 2013 Wood participated at some level with a "sting" operation in which Betts asked to meet K.W. in an isolated location. Id. at ¶ 51. C.F. likewise alleges that Wood knew of Betts's sexual abuse of F.A. and failed to report it; however, C.F. seeks to file a second amended complaint, which adds claims against Wood for assault, sexual assault, harassment, and battery. As discussed below, the Court will permit the filing of C.F.'s second amended complaint. For that reason, this argument is moot with regard to the allegations in C.F.'s previous complaint. Given these allegations, it would be premature to determine these Plaintiffs' IIED claims against Wood must be dismissed as a matter of Kentucky law. Thus, Wood's motions to dismiss K.W.'s and C.F.'s IIED claims are denied.

F.A. alleges Wood knew of Betts's sexual abuse of F.A. and failed to report it. Case 176, [First Am. Compl. at ¶ 43]. This allegation alone would fail to state a plausible claim for relief for IIED against Wood as it is more analogous to the second category of cases outlined in Stringer where conduct was found insufficiently "outrageous." However, F.A. alleges that all Defendants "suppressed, hid, fraudulently concealed, and caused allegations of sexual abuse to remain undiscovered ...." Id. at ¶ 59. This allegation, if true, could plausibly rise to the level of conduct sufficiently outrageous. As a result, Wood's motion to dismiss F.A.'s IIED claim is denied.

4. Fraudulent Omission and Fraudulent Concealment Claims

The Boy Scout Defendants and Betts argue that Plaintiffs fail to sufficiently plead their fraud claims. [DE 163; DE 167]. Federal Rule of Civil Procedure 9(b) requires plaintiffs to plead fraud allegations with particularity. Fed. R. Civ. P. 9(b) ; see also United States ex rel. Bledsoe v. Cmty. Health Sys. , Inc. , 342 F.3d 634, 641 (6th Cir. 2003). At a minimum, plaintiffs must allege: (1) the time, place, and content of any allegedly false representations; (2) the fraudulent scheme; (3) the defendant's fraudulent intent; and (4) the resulting injury. Id. at 643 (internal quotation marks and citations omitted). "And while mental states may be alleged generally ... the allegations must be made with sufficient particularity and with a sufficient factual basis to support an inference that they were knowingly made." Republic Bank & Tr. Co. v. Bear, Stearns & Co. , 707 F.Supp.2d 702, 707 (W.D. Ky. 2010), aff'd , 683 F.3d 239 (6th Cir. 2012) (internal quotation marks and citations omitted).

"Rule 9(b)'s particularity requirement does not mute the general principles set out in Rule 8 ; rather, the two rules must be read in harmony." Michaels Bldg. Co. v. Ameritrust Co. , 848 F.2d 674, 679 (6th Cir. 1988). The Sixth Circuit's "liberal reading" of Rule 9(b) stems from the "influence of Rule 8." Terrell v. Tecsec, Inc. , No. 06-310, 2007 WL 2670047, at *7 (E.D. Ky. Sept. 7, 2007) ; see also United States ex rel. Bledsoe v. Cmty. Health Sys., Inc. , 501 F.3d 493, 503 (6th Cir. 2007) (" Rule 9(b) is not to be read in isolation, but is to be interpreted in conjunction with Federal Rule of Civil Procedure 8."). And "[c]ourts have held that [ Rule 9(b) ] may be relaxed where information is only within the opposing party's knowledge." Michaels , 848 F.2d at 680 (citations omitted) (collecting cases). This is particularly true when there has been no discovery. Id.

Plaintiffs make two allegations of fraud against all Defendants. First, Plaintiffs allege fraud by omission. See, e.g. , Case 151, [Sec. Am. Compl. at ¶¶ 108-13]. Second, Plaintiffs allege fraudulent concealment. See, e.g. , id. at ¶¶ 114-23. As to the first allegation, Rule 9(b)'s pleading requirements are relaxed because "a plaintiff in a fraud by omission suit will not be able to specify the time, place, and specific content of an omission as precisely as would a plaintiff in a false representation claim." Falk v. Gen. Motors Corp. , 496 F.Supp.2d 1088, 1098-99 (N.D. Cal. 2007). Thus, "[w]here the fraud consists of omissions on the part of the defendants, the plaintiff may find alternative ways to plead the particular circumstances of the fraud.

For example, a plaintiff cannot plead either the specific time of the omission or the place, as he is not alleging an act, but a failure to act." Washington v. Baenziger , 673 F.Supp. 1478, 1482 (N.D. Cal. 1987) (internal quotation marks and citation omitted); see also Allstate Indem. Co. v. Dixon , 304 F.R.D. 580, 584 (W.D. Mo. 2015) ; Montich v. Miele USA, Inc. , 849 F.Supp.2d 439, 451 (D.N.J. 2012).

Plaintiffs assert that the Boy Scout Defendants "kept their decades of knowledge of child sexual abuse [in the Explorer Program and other programs run through BSA] hidden from" scouts and the public. See, e.g. , Case 151, [Sec. Am. Compl. at ¶ 110]. Specifically, Plaintiffs assert that Defendants "have long known that underage Explorers are at risk of being sexually molested by the police officers who are supposed to be teaching them about police work." See, e.g. , id. at ¶ 37. To bolster this claim, Plaintiffs allege that Defendants have, since as early as 1920, regularly received reports detailing sexual abuse allegations tied to the Boy Scouts. See, e.g. , id. at ¶¶ 61-62. Plaintiffs assert that BSA then created a system to track these transgressions and that by the time Plaintiffs joined the Explorer Program, Defendants knew that Defendants' agents "posed a danger to minor boys and girls because there had been a longstanding, consistent, and problematic history with advisers sexually abusing Youth Explorer cadets." See, e.g. , id. at ¶¶ 65-68. Plaintiffs allege that Defendants perpetrated a fraud by failing to inform the public and potential cadets about this known history of abuse, which induced Plaintiffs to participate in the Explorer Program. See, e.g. , id. at ¶¶ 108-13.

Considering Rule 9(b)'s relaxed pleading requirements for fr