GIBSON v. BOY SCOUTS OF AMERICA et al

Filing 3

GIBSON v. BOY SCOUTS OF AMERICA et al

Doc. 3

Case 1:04-cv-00190-GK

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Filed 05/20/2004

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I n the: U N IT E D STATES DISTRICT COURT FO R THE DISTRICT OF COLUMBIA J O S EP H LEE GIBSON 9 6 6 Towlston Road M c L e a n , Virginia 22102, Pla intiff, C a s e Number; 1:04CV00190 Judge: D e c k Type: Pro se General Civil Da te Stamp: v. B O Y SCOUTS OF AMERICA, J O H N DOE, No. 1-7, N A T I O N A L CAPITAL AREA COUNCIL BOY SCOUTS OF AMERICA, and R I C H A R D ROE, No. 1-7, Defendants. M E M O R A N D U M OF POINTS AND AUTHORITIES IN SUPPORT OF RULE 12(b)(6) MOTION C O M E NOW , the Defendants Boy Scouts of America (herein after "Boy S c o u ts " ) and National Capital Area Council Boy Scouts of America (herein after "NC AC "), by counsel, and in support of their Motion for Judgment on the P l e a d i n g s Pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure,

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Dockets.Justia.com

Case 1:04-cv-00190-GK

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s t a t e as follows: I . Introduction 1. This Motion arises from the Complaint for Injunctive Relief and Da m age s filed by Plaintiff, Joseph Lee Gibson (herein after "Gibson") against the Bo y Scouts and NCAC. 2. It is undisputed that Gibson was the Scoutmaster for Boy Scout Troop 8 6 9 in McLean, Virginia whose sponsor was and is Trinity United Methodist Churc h (herein after "Trinity"). 3. It is undisputed that Gibson's adult-volunteer membership in the Boy Sc outs ceased on February 7, 2003. II. Facts I n his Complaint for Injunctive Relief and Damages, Gibson alleges that f r om 1996 until February 7, 2003 he was a registered adult-volunteer member of t he Boy Scouts of America. He further alleges that, in October 1998, he was s e l e c te d to serv in the position as Scoutmaster of Troop 869 by the Trinity United M ethod ist Church, sponsor of Troop 869. Gibson alleges that, NCAC and Richard Roes one through seven c o n d uc t e d a "secret meeting" to which he was not privy. Following this "secret m e e t i n g ", Gibson alleges that on February 7, 2003 he was notified by NCAC that h i s membership in the Boy Scouts of America had been revoked. Gibson also

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all ege s in his Complaint that he tim ely appealed the revocation to the Boy Scouts o f America, at its national headquarters in Irving, Texas. After this appeal proc ess , Gibson alleges that defendants Boy Scouts and NCAC along with John Do es one through seven convened a "secret meeting or review board at a l o c a t io n unknown to Plaintiff", and that this review board based their ratification of his revocation upon a file, the contents of which he has never seen. Gibson alleges that the actions of Boy Scouts of America and NCAC, along wi th other defendants, have caused him substantial harm and he asserts four cla im s in this cause: Count I­Violation of Right of Fair Procedure, Count I I­ V i o l a t i o n of Due Process and Right to Association, Count III ­ Breach of Imp lie d Contract and Count IV­ Defamation. I II . Law and Argument C o u n t I­Violation of Right of Fair Procedure T h e common law right to fair procedure does not apply to the exclusion or e x p u l s i o n from membership in a private entity unless that entity affects public i n t e re s t and the exclusion or expulsion has substantial adverse economic ram ifica tions . Kim v. Southern Sierra Council Boy Scouts of America, 117 Cal. Ap p. 4 th 743(2004). I n the case before the Court, the Boy Scouts of America is a completely priv ate entity which does not affect public interest. Boy Scouts of America and

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M o n m o u t h Council v. Dale, 530 U.S. 640 (2000) Gibson makes no claim of any eco nom ic ramifications, let alone substantial adverse economic ramifications f r o m his termination as Scoutmaster of Troop 869. Therefore, Gibson's claim fails t o state a claim for which relief can be granted. C o u n t II­ Violation of Due Process and Right of Association a . First Amendment T h e law is clear that a claim for violation of the right to free association u nd e r the First Amendment can only be made against a governmental entity or an entity subject to substantial governm ental involvement. U n d e r Boy Scouts of America v. Dale, 530 U.S. 640; 120 S.Ct. 2446 ( 2 0 0 0 ) , the Supreme Court held that the Boy Scouts of America was "a private, n o t- f or - p ro f i t organization" and it was not subject to public accommodation laws of the State of New Jersey that would have intruded into the group's internal affairs b e c a u s e it was not a government entity and not subject to substantial gov ernm ental involvement. Since the Boy Scouts of America is a private org ani zati on and is not subject to substantial governmental involvement, Gibson's a l l e g a t io n that Boy Scouts and NCAC violated his First Amendment right to free ass oci atio n fails to state a claim upon which relief can be granted. b. Fourteenth Amendment G i b s o n alleges that the Boy Scouts and NCAC have violated his

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F o u r te e n th Amendment right to due process when it terminated him as Sc outm aste r of Troop 869. Again, the law is clear that a claim for a violation of a Fo urteenth Amendm ent right to due process can only be brought against a g o v e r nm e n t or quasi-government entity, one that acts under color of state or fede ral law. Rendell-Baker v. Kohn, 457 U.S. 830; 102 S.Ct. 2764 (1982). As stated in the First Amendment law and argument above, under the Court's ruling in Dale, Boy Scouts of America has been held to be a completely private entity, not subject to substantial governm ental involvement. In Kohn, the peti tione rs made claims for violation of their Fourteenth Amendm ent rights to due proc ess , but the Court found that the respondent, their employer, was a private e n ti t y and not acting under color of state law when it discharged the petitioner em plo yee s. The ruling in Kohn, was consistent with the law when it held that the Fo urteenth Amendm ent "applies to acts of the states not to acts of private perso ns or entities." Id. at 837. I n the case before the Court, Gibson alleges a violation of his due process r i g ht s under the Fourteenth Amendment, against a private, non-governmental e n ti t y and therefore his pleading fails to state a claim for which relief can be g r a n te d . C o u n t III­Breach of Implied Contract As a matter of law, an implied legal obligation cannot arise from the rende ring of services which are gratuitous. Mullins v. Mingo Lime & Lumber Co., -5-

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176 Va. 44; 10 S.E. 2d 492 (1940); Nedrich v. Jones, 245 Va. 465; 429 S.E. 2d 2 0 1 (1993). A volunteer renders his services without expectation of c o m p e n s a t i o n . The position of Scoutmaster of Troop 869, the subject of this litig atio n, is and was a purely voluntary position. A s in this case, no promises were exchanged between Boy Scouts, NCAC and Gibson for compensation for his services. In Mullins and again in Nedrich, the Virginia courts found that individuals who provide services, voluntarily to a n o th e r , without promise of payment cannot recover on a claim of breach of im pli ed contract. Gi bso n alleges an implied contract between Boys Scouts, NCAC and him sel f. Gibson, by his own admission was a volunteer to the "Scouting M ove m ent" from 1996-February 7, 2003 (Complaint for Injunctive Relief and Da ma ges at ¶11,p.5). Under Mullins and Nedrich, Gibson's allegations fail to s t a te a claim for which relief can be granted. C o u n t IV­Defamation Gib s o n makes allegations that Boy Scouts and NCAC made defamatory state m ents about him. Inasmuch as this is a diversity action, and that Gibson all ege s defamatory statements were made and published in Virginia, the law of V i r g i ni a , as to defamation is argued and discussed. " I t is firmly established that pure expressions of opinion are protected by

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both the First Amendm ent of the Federal Constitution and Article I, §12 of the C o n s t it ut i o n of Virginia and, therefore, cannot form the basis of a defamation action." W illi am s v. Garraghty, 249 Va. 224, 233; 455 S.E.2d 683(2002).

G i b s o n alleges that "NCAC by or through one or more of the officials, em plo yee s or agents named as Richard Roes" made statements to others that he ( G i b s o n ) was "unfit for Scouting membership and unfit to be Scoutmaster of T r o o p 869." (Gibson's Complaint for Injunctive Relief and Damages at ¶ 35 at p. 13) These alleged statements were opinions regarding qualifications for a pos itio n. W hen published to others in the form of conversations addressing Gi bso n's qualifications, these statements were expressed as opinion. In addition, it is a long standing requirement of Virginia law, that in issues o f defamation "[g]ood pleading requires that the exact word spoken or written m ust be set out in the declaration in haec verba...it must purport to give the exact wo rds." Federal Land Bank v. Birchfield, 173 Va. 200,210; 3 S.E.2d 405 ,410 (193 9); Fuste v. Riverside Healthcare Ass'n., 265 Va. 127; 575 S.E. 2d 858 (2003 ). T h e r e fo r e because Gibson alleges defamation for statements expressed as o p i n i o ns and because Gibson fails to plead defamation with particularity under the settled case law of First Amendm ent claims and in Virginia, under the c o m m o n law and pursuant to Garraghty, Birchfield and Fuste, Gibson fails to -7-

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s t a te a claim for which relief can be granted. C O N C L U S IO N As to all Counts pled by Gibson in his Complaint for Injunctive Relief and D a m a g e s , the Defendants Boy Scouts and NCAC have shown herein that as m a t t e rs of law, Gibson has failed to state claims for which relief can be granted. W H E R E F O R E , the Defendants, Boy Scouts and NCAC move this H o n o r a b l e Court to dismiss this Complaint under Rule 12(b)(6) of the Rules of F e d e r a l Civil Procedure and such other relief as the Court may deem appropriate.

BO Y SCOUTS OF AMERICA And NATIO NAL CAPITAL AREA COUNCIL B O Y SCOUTS OF AMERICA B y Counsel l

T R IC H IL O , BANCROFT, McGAVIN, HORVATH & JUDKINS, P.C. 3 9 2 0 University Drive F a i r fa x , Virginia 22030 ( 7 0 3 ) 385-1000 ( 7 0 3 ) 385-1555 Fax

_____________________________ John D. McGavin, Esquire D C B Number 475899 C o u n s e l for Defendants Boys Scouts of America and National Capital Area Council B o y Scouts of America

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C E R TI FI C AT E OF MAILING I hereby certify that a true copy of the foregoing MEMORANDUM OF PO INT S AND AUTHORITIES IN SUPPORT OF RULE 12 (b)(6) MOTION TO D I S M IS S was mailed, postage pre-paid on this 20th day of May, 2004 to: J o s e p h Lee Gibson P l a in t if f pro se 9 6 6 Towlston Road M c L e a n , Virginia 22102

________________________ J o h n D. McGavin

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