Kolbek et al v. Twenty First Century Holiness Tabernacle Church, Inc. et al

Filing 95

MEMORANDUM OPINION AND ORDER denying 46 Motion to Dismiss, denying Motion to Strike, denying Motion for More Definite Statement filed by RG & Associates Security; granting 54 Motion to Amend Complaint filed by Pebbles Rodriguez, Desiree Kolbek, J amie Rodriguez, Summer Hagan, Nicole Farr, Amy Eddy, Jeannette Orlando. Plaintiffs are directed to file their amended complaint within 5 days, and Defendants shall have 10 days from the date of the filing in which to file an answer. Signed by Honorable Paul K. Holmes, III on June 22, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DESIREE KOLBEK, AMY EDDY,
JEANNETTE ORLANDO, NICOLE FARR,
SUMMER HAGAN, JAMIE RODRIGUEZ,
and PEBBLES RODRIGUEZ
v.

PLAINTIFFS

No. 4:10-CV-04124

TWENTY FIRST CENTURY HOLINESS
TABERNACLE CHURCH INC.,
GLORYLAND CHRISTIAN CHURCH,
ARMFUL OF HELP, TONY AND SUSAN
ALAMO FOUNDATION, MUSIC SQUARE
CHURCH, SJ DISTRIBUTING INC.,
ACTION DISTRIBUTORS INC.,
ADVANTAGE FOOD GROUP, JEANNE
ESTATES APARTMENTS INC.,
RG & ASSOCIATES SECURITY, SALLY
DEMOULIN, SHARON ALAMO, and
STEVE JOHNSON

DEFENDANTS

OPINION AND ORDER
Currently before the Court are Defendant RG & Associates
Security’s (“RGS”) First Motion to Dismiss and Subject Thereto,
Alternative Motion to Strike and for More Definite Statement (Doc.
46) and brief in support (Doc. 47) and supplement (Doc. 51) as well
as Plaintiffs’ Response (Doc. 62) and RGS’s Reply (Doc. 85). Also
before the Court are Plaintiffs’ Motion to Amend/Correct Complaint
(Doc. 54), RGS’s Response (Doc. 56) and brief in support (Doc. 57),
and Plaintiffs’ Reply. In its discretion, the Court has considered
all

filings

concerning

these

motions,

and

has

reviewed

the

voluminous filings extensively. For the reasons reflected herein,
the Court finds that Defendant RGS’s Motion to Dismiss should be

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DENIED. RGS’s Alternative Motions to Strike and for Definite
Statement are also DENIED. Plaintiffs’ Motion to Amend/Correct
Complaint is GRANTED.
RGS argues that Plaintiffs’ Second Amended Complaint should be
dismissed

under

Federal

Rule

of

Civil

Procedure

12(b)(1),(2),(3),(4), or (5) for various reasons stemming largely
from

the

assertion

corporation.

RGS

that

also

Plaintiffs

argues

that

misidentified

Plaintiffs’

RGS

Second

as

a

Amended

Complaint should be dismissed under Rule 12(b)(6) for failure to
state a claim. In the alternative, in the event that the Court
rules against dismissal, RGS argues that the Court should order
Plaintiffs to provide a more definite statement and/or strike
portions of Plaintiffs’ Second Amended Complaint that it alleges
are scandalous, impertinent or immaterial. Plaintiffs argue that
their Second Amended Complaint more than satisfies the pleading
requirements as set forth in Federal Rule of Civil Procedure 8.
They further argue that their pleadings are not so ambiguous as to
require a more definite statement nor so scandalous, impertinent or
immaterial so as to require striking any portions thereof. The
Court will address each issue in turn.
I. Standard of Review
All that is required under Federal Rule of Civil Procedure 8
is that a complaint present “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ.

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P. 8(a)(2). In ruling on a 12(b)(6) motion to dismiss, the Court
accepts as true all of the factual allegations contained in the
complaint and reviews the complaint to determine whether its
allegations show that the pleader is entitled to relief. Schaaf v.
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008); see
also Whitehead v. Delta Beverage Group, Inc., 2006 U.S. Dist. LEXIS
93493

(W.D.

Ark.

2006).

All

reasonable

inferences

from

the

complaint must be drawn in favor of the non-moving party. CrumpleyPatterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir.
2004). Complaints should be liberally construed in the plaintiff’s
favor and “should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff[s] can prove no
set of facts in support of [their]

claim[s] which would entitle

[them] to relief.” Rucci v. City of Pacific, 327 F.3d 651, 652 (8th
Cir. 2003)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
A motion to dismiss should not be granted merely because the
complaint does not state with precision all elements that give rise
to a legal basis for recovery. Schmedding v. Tnemec Co., 187 F.3d
862, 864 (8th Cir. 1999)(citing Bramlet v. Wilson, 495 F.2d 714,
716 (8th Cir. 1974). “Specificity sufficient to supply fair notice
of the nature of the action will withstand a motion under Rule
12(b)(6).” Bramlet, 495 F.2d at 716. In reviewing the sufficiency
of Plaintiffs’ complaint, the issue is not whether Plaintiffs’ will
ultimately prevail, but whether Plaintiffs are entitled to offer
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evidence to support their claims. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974). The Supreme Court has described the Rule 8
standard as not requiring “detailed factual allegations,” but
demanding “more than an unadorned, the-defendant-unlawfully-harmedme

accusation.”

Ashcroft

v.

Iqbal,

129

S.Ct.

1937,

1949

(2009)(internal quotations and citations omitted). A complaint need
only “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal,
129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007))(emphasis added).
II. Discussion
As Judge Hendren found of Plaintiffs’ First Amended Complaint,
Plaintiffs’ Second Amended Complaint goes well beyond Rule 8's
requirement to plead a “short and plan statement of the claim . .
.” Fed. R. Civ. P. 8(a)(2). Nevertheless, the Court has reviewed
the Second Amended Complaint and all the voluminous filings related
to the motions currently before the Court and, without needlessly
recounting the background details of the case common to all the
Defendants, herein outlines those pleadings that the Court finds to
be relevant to RGS’s Motion to Dismiss under Rule 12(b)(6).
Plaintiffs allege that RGS was hired to protect the property
and its members. Id. at ¶ 287. As RGS recognized in its Motion to
Dismiss (Doc. 46 at ¶ 16), Plaintiffs Second Amended Complaint also
included the following relevant factual allegations concerning RGS:
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Defendant RGS breached its legal duty to
Plaintiffs when it failed to act reasonably.
RGS facilitated Tony Alamo’s access to
children during its normal business hours and
normal course of business by protecting
outsiders from entering the property and
keeping the Plaintiffs from leaving. This
action allowed Tony Alamo to sexually and
physically abuse the Plaintiffs. Defendant RGS
failed to protect Plaintiffs from sexual abuse
and physical beatings ... RGS was negligent in
the following particulars:
a. failing to investigate complaints made
by RGS agents that would have revealed
that Tony Alamo and other adult male
church members were engaging in illegal
sexual activities with Plaintiffs,
b. failing to protect Plaintiffs from
Tony Alamo’s sexual misconduct, and
c. failing to report child abuse after
RGS has [sic] reasonable cause to suspect
that a child had been subject to child
mistreatment.
(Doc. 39 at ¶ 288). Plaintiffs cite a specific instance alleging
that RGS’s “official response” was to “ignore” a complaint made by
an RSG security guard working on church property

who allegedly

observed a clergy member receiving oral sex from an underage girl
living in Alamo’s home. Id. at ¶ 289. Finally, Plaintiffs allege
that RGS’s acts and omissions were a proximate cause of the
injuries and damages to Plaintiffs. Id. at ¶ 290.
The above-outlined allegations made by the Plaintiffs contain
sufficient factual allegations of negligence to clear the low bar
set by Federal Rule of Civil Procedure 8. Any further inquiry into
the factual or legal sufficiency of these allegations would be more
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appropriate at the summary judgment or trial stage, after the
parties have had the benefit of adequate discovery. At this stage
of the litigation, the Court’s inquiry is limited to whether the
information found on the face of the pleadings is sufficient to
fulfill the notice pleading requirements as set forth in Rule 8.
Thus, the Court must ascertain whether Plaintiffs have alleged
facts that “demonstrate more than a sheer possibility” that they
will be successful on the merits of their claim of negligence
against RGS. Twombly, 550 U.S. at 563. The Court finds that
Plaintiffs’ Second Amended Complaint easily satisfies this low
threshold. Perhaps Plaintiffs did not frame their allegations in
quite the same way that RGS would have, but that does not mean that
they are insufficient.
Furthermore,

the

Court

has

reviewed

RGS’s

arguments

for

dismissal under the various remaining sections of Rule 12(b) and
finds no grounds for dismissal. The majority of the arguments made
by RGS under Rule 12(b)(1-5) seem to stem from the common assertion
that RGS was sued in the wrong capacity. This defect can, and
should, be cured by allowing Plaintiffs to amend their complaint.
The Court should freely grant leave for a party to amend its
complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
RGS argues that Plaintiffs’ Motion to Amend should be denied as
futile, among other things. However, the Court finds that the
arguments advanced by RGS are either not relevant to the Motion to

Page 6 of 8

Amend or without merit. RGS does not dispute that the proposed
amendment would correctly identify RGS. Any other alleged remaining
deficiencies

were

Plaintiffs’

Motion,

misidentification

not

of

appropriately
which

RGS.

sought

Plaintiffs’

Complaint is therefore GRANTED.

raised
only

in
to

Motion

to

response
correct

to
the

Amend/Correct

Any other arguments advanced by

RGS under Rule 12(b)(1-5) the Court finds to be without merit.
RGS’s Motion to Dismiss is therefore DENIED.
As the Court has found that the requirements for notice
pleading

have

been

met,

a

more

definite

statement

from

the

Plaintiffs is not necessary in this case. The Plaintiffs’ Second
Amended Complaint is not “so vague or ambiguous that [RGS] cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e). RGS’s
alternative Motion for More Definite Statement is, therefore,
DENIED. Furthermore, the Court finds no matter in Plaintiffs’
Second

Amended

Complaint

to

be

so

“redundant,

immaterial,

impertinent, or scandalous” such that it should be stricken from
the pleading. Fed. R. Civ. P. 12(f). RGS’s alternative Motion to
Strike portions of Plaintiffs’ Second Amended Complaint is likewise
DENIED.
III. Conclusion
For the reasons set forth above, the Court hereby ORDERS that
Defendant RGS’s Motion to Dismiss (Doc. 46) be DENIED.
IT IS FURTHER ORDERED that Defendant RGS’s alternative Motions
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to Strike and for More Definite Statement (Doc. 46) be likewise
DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Amend/Correct
Complaint be GRANTED. Accordingly, Plaintiffs are directed to file
their amended complaint within five (5) days, and Defendants shall
have ten (10) days from the date of the filing in which to file an
answer or amended answer.

IT IS SO ORDERED this 22nd day of June 2011.

/s/Paul K. Holmes, III
PAUL K. HOLMES, III
UNITED STATES DISTRICT JUDGE

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