Doe v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, The et al

Filing 147

MEMORANDUM DECISION AND ORDER denying 126 Motion to Strike or in the alternative, motion to dismiss ; denying as moot 132 Motion to Strike ; granting in part and denying in part 141 Motion to Compel. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TOM DOE,
Case No. 1:09-cv-351-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
PRESIDING BISHOP OF THE CHURCH
OF JESUS CHRIST OF LATTER-DAY
SAINTS; PRESIDENT OF THE CHURCH
OF JESUS CHRIST OF LATTER-DAY
SAINTS; BOY SCOUTS OF AMERICA;
ORE-IDA COUNCIL OF THE BOY
SCOUTS OF AMERICA,
Defendants.

INTRODUCTION
The Court has before it the Boy Scout Defendants’ motion to strike the Second
Amended Complaint, or, in the alternative, to dismiss Counts 3 and 4 of the Second
Amended Complaint (Dkt. 126), the Boy Scout Defendants’ motion to strike response
(Dkt. 132), and the LDS Defendants' Motion to Compel (Dkt. 141).
BACKGROUND
Plaintiff, Tom Doe, was born in 1953. Between 1965 and 1971, Doe was an active
member of Boy Scout Troop 101, affiliated with the Nampa, Idaho, 2nd Ward of the
MEMORANDUM DECISION AND ORDER - 1

Church of Jesus Christ of Latter-Day Saints, rising to the rank of Eagle Scout. Second
Am. Compl., ¶ 1, Dkt. 110. LDS church leaders selected and approved the appointment of
Boy Scout leaders of affiliated troops, also designating such leaders as “Quorum
Advisors” within the church’s youth programs. Id. at ¶ 2.
Larren Arnold was Doe’s Quorum Advisor and Boy Scout troop leader. Mr.
Arnold led spiritual, educational, and Boy Scout-related activities for the youth of the
Nampa 2nd Ward and Boy Scout Troop 101. Id. at ¶ 4. Mr. Arnold allegedly engaged in
a practice known as “grooming”; he gained the trust of Doe through time spent together,
discussions, and mentorship. Id. at ¶¶ 5-7.
Doe made at least two trips to Oregon with Troop 101, accompanied by Mr.
Arnold, for overnight camping excursions sometime between 1966 and 1970. Id. at ¶¶ 7,
10. On these two trips Mr. Arnold allegedly sexually abused and molested Doe by
fondling him and engaging him in oral sex. Id. at ¶ 10. Mr. Arnold alleges that he
suffered mental, physical, and emotional injuries long after the molestation and that he
did not and could not have discovered these injuries, and their relationship to the
molestation, before 2007. Id. at ¶¶ 10-13.
Doe filed a complaint in Malheur County District Court, Oregon, on February 21,
2008. On March 25, 2008, the complaint was removed to the federal district court for the
MEMORANDUM DECISION AND ORDER - 2

District of Oregon. Notice of Removal, Dkt. 2. The complaint named as defendants two
governing entities of the LDS church (“LDS Defendants”) and two governing entities of
the Boy Scouts of America (“Boy Scout Defendants”). The First Amended Complaint,
Dkt. 25, was filed on May 5, 2008. The FAC set forth claims for (1) sexual abuse of a
child under a respondeat superior theory; (2) intentional infliction of emotional distress
under a respondeat superior theory; (3) negligence; and (4) fraud by omission. The
matter was transferred to this Court on July 9, 2009. Order Adopting Report and
Recommendations, Dkt. 74.
On August 12, 2010, visiting Judge David Carter, sitting by designation, granted in
part and denied in part the Defendants’ motion to dismiss the First Amended Complaint.
Order Granting in Part and Denying in Part Motion to Dismiss, Dkt. 109. The Court
dismissed as time-barred Doe’s first claim, sexual abuse of a child, and second claim,
intentional infliction of emotional distress, insofar as they arose out of events occurring in
Idaho. These claims remained to the extent they arose out of events occurring in Oregon.
The court dismissed as time-barred Doe’s negligence claim. The court dismissed Doe’s
fraud claim, with leave to amend, finding the allegations insufficient to meet Fed. R. Civ.
P. 9(b)’s pleading particularity requirements.
Doe filed his Second Amended Complaint on August 25, 2010. Dkt. 110. The
MEMORANDUM DECISION AND ORDER - 3

Second Amended Complaint set forth claims for (1) sexual abuse of a child under a
respondeat superior theory; (2) intentional infliction of emotional distress under a
respondeat superior theory; (3) institutional fraud by omission; and (4) constructive fraud.
On February 8, 2011, the Boy Scout Defendants moved to strike, or in the alternative to
dismiss, Doe’s third and fourth claims. Dkt. 126. After briefing by both parties, the Boy
Scout Defendants moved to strike the declarations of Doe and Kristian Roggendorf,
attached to Doe’s response in opposition (Dkt. 130) to the Boy Scout’s motion to dismiss.
Dkt. 132.
LEGAL STANDARD
1.

Motion to Strike
Under Federal Rule of Civil Procedure 12(f), a court may “strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Some district courts have struck amendments to a complaint that fall outside the scope of
expressly limited leave to amend. See, e.g., PB Farradyne, Inc. v. Peterson, 2006 WL
2578273, *3 (N.D. Cal. Sept. 6, 2006).
2.

Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

of the claim showing that the pleader is entitled to relief,” in order to “give the defendant
MEMORANDUM DECISION AND ORDER - 4

fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule
12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth
“more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. at 555. To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’ ” Id. at 557.
In a more recent case, the Supreme Court identified two “working principles” that
underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Id. “Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the
MEMORANDUM DECISION AND ORDER - 5

doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950.
Second, only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. “Determining whether a complaint states a plausible claim for relief will . . .
be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may
be appropriate when the plaintiff has included sufficient allegations disclosing some
absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783,
n.1 (9th Cir. 1997) (stating that “[i]f the pleadings establish facts compelling a decision
one way, that is as good as if depositions and other . . . evidence on summary judgment
establishes the identical facts”).
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Livid Holdings Ltd. v. Salomon
Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The Ninth Circuit has held that “in
dismissals for failure to state a claim, a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v.
Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The
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issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to
support the claims.” See Hydrick v. Hunter, 466 F.3d 676, 685 (9th Cir. 2006).
DISCUSSION
1.

Motion to Strike Third and Fourth (Fraud) Claims in Second Amended
Complaint
The Boy Scout Defendants allege that Doe violated the limited scope of

permission to amend granted by the Court because the new fraud counts are “cut from
whole cloth” and fail to allege specific leadership decisions or notice regarding Larren
Arnold. Boy Scouts Memorandum, 10, Dkt. 126-1. Doe argues that the Court, though it
discussed and considered possible methods of amendment, never expressly limited the
scope to amend in the manner alleged by the Boy Scout Defendants.
The Boy Scout Defendants’ Motion to Strike is denied for three reasons. First, the
Court order in which leave to amend was granted contains no explicit limitation: “The
fourth claim includes merely conclusory allegations about the statements and/or
omissions between Plaintiff, Plaintiff’s family, and Defendants. Amendment will permit
the Court to more accurately assess whether the fraud claims are barred even after
application of the discovery rule.” Order Granting in Part and Denying in Part Motion
to Dismiss, Dkt. 109, 16:20-21. In its substantive rulings section, the Court simply states,

MEMORANDUM DECISION AND ORDER - 7

without elaboration, that the Defendants’ motion to dismiss was granted as to the fourth
(fraud) claim, with leave to amend. Id. at 17:4-5.
Second, the statements made by the Court during oral argument on the motion to
dismiss do not support the Boy Scout Defendants’ allegations of an express limitation on
Doe’s leave to amend. The Court stated that it was “tentatively giving you leave to
amend concerning your fraud claim of action. . . . And the real question you should have
in your mind is, is this judge going to rule definitively on this in a new 12b [sic] motion
or is this judge going to let this go to summary judgment stage and take a look at this . . .”
July 20, 2010 Reporter’s Tr. 37:8-37:25,, Ex A. to Thomas Aff.
Finally, Doe simply expanded his single fraud claim into two distinct, arguably
more specific fraud claims; he did not conjure up new, far-reaching causes of action that
had not been previously presented to the Defendants. Doe’s amendment was not made in
bad faith, did not cause undue delay, and did not prejudice the Boy Scout Defendants.
See Foman v. Davis, 371 U.S. 1778, 182 (1962).
2.

Motion to Dismiss Third and Fourth (Fraud) Claims in Second Amended
Complaint
The Boy Scout Defendants, in the alternative, moved to dismiss the third and

fourth claims in the Second Amended Complaint. The third claim asserts Institutional

MEMORANDUM DECISION AND ORDER - 8

Fraud by Omission, while the fourth claim asserts Constructive Fraud. Second Am.
Compl., ¶¶ 22-35. Essentially, both these claims allege that the defendants had general
knowledge of child molesters and abusers within the ranks of Boy Scout troop leaders,
and their failure to warn or disclose this information resulted in Doe’s molestation. The
Boy Scout Defendants argue that (1) the third and fourth claims fail to meet the
Iqbal/Twombly pleading particularity standards, and (2) Doe failed to plead the elements
of common law fraud under Idaho law.
A preliminary issue must be resolved before the Court can turn its attention to
whether Doe’s amended fraud claims satisfy the pleading requirements of Iqbal and
Twombly. The Boy Scout Defendants contend that the Second Amended Complaint
should be dismissed because it fails to allege fraudulent concealment of the fact of
damage by a party with whom he had a professional and commercial relationship. Such
concealment is necessary to toll Idaho’s two-year personal injury statute of limitations,
codified at I.C. § 5-219(4).
Doe argues that his fraud claims are governed by Idaho’s three-year statute of
limitations for fraud, codified at I.C. § 5-218(4). Significantly, under § 5-218(4), a fraud
claim does not accrue until discovery of the fraud, as opposed to discovery of the fact of

MEMORANDUM DECISION AND ORDER - 9

damage.1 Doe contends that he did not discover the Defendants’ fraud until sometime in
2007 or 2008, when his attorneys learned that files exist indicating that the Boy Scout
national office became aware at least as early as the mid-1960s that serious problems
existed with Scoutmasters molesting the young boys placed in their charge.2 Thus, it
appears that the fraud claims are not time-barred if the three-year fraud statute, with its
discovery rule, is applied.
Defendant Boy Scouts argue that “the issue of which statute of limitations applied
was previously, briefed, argued and decided by Judge Carter.” Boy Scout Defendants
Reply at 2, Dkt. 131. However, this overstates the case, at least with regard to whether
Idaho Code § 5-218(4) or Idaho Code § 5-219(4) applies to Doe’s fraud claims. The
Court has reviewed the briefing submitted to Judge Carter and there appears to be little
discussion about which statute applies, apart from the LDS Defendant’s argument in their
1

Specifically, the statute establishes a 3-year statute of limitations for any “action for
relief on the ground of fraud or mistake.” Idaho Code § 5-218(4). The statute further provides
that “[t]he cause of action in such case not to be deemed to have accrued until the discovery, by
the aggrieved party, of the facts constituting the fraud or mistake.” Id.

2

In the Complaint, the Plaintiff alleged that they did not learn until 2010 of the Boy
Scout Defendant’s knowledge of the extent of the child abuse problem within their institution.
Second Amended Complaint, Dkt. 110, ¶ 32. In Plaintiff’s briefing, however, they
acknowledge that this allegation of the complaint is inaccurate and they actually learned of the
Boy Scout Defendant’s knowledge in 2007 or 2008. Plaintiff’s Response, Dkt. 130, at 16, n.4.
MEMORANDUM DECISION AND ORDER - 10

opening brief that § 5-219(4) should apply, but that Doe’s claims would be barred even if
the fraud limitations period is used. LDS Defendant’s Br. at 8-11, Dkt. 92. The issue of
which statute should apply was not otherwise addressed in the briefing. Nor is it
specifically addressed by Judge Carter.
It appears that Judge Carter assumed, without specifically deciding, that Idaho
Code § 5-219(4) applied to Doe’s fraud claims, as well as to his negligence, emotional
distress, and vicarious liability claims. The full text of that portion of Judge Carter’s
decision addressing the statute of limitations applicable to Doe’s fraud claim reads as
follows:
Applying Idaho law, the LDS Church and the Boy Scouts argue that this
claim is also time-barred under I.C. § 5-219(4). However, the statute of
limitations under that statute is tolled “when the fact of damage has, for the
purpose of escaping responsibility therefor, been fraudulently and
knowingly concealed from the injured party by an alleged wrongdoer
standing at the time of the wrongful act, neglect or breach in a professional
or commercial relationship with the injured party.” Id. In such
circumstances, “the [statute of limitations] shall be deemed to accrue when
the injured party knows or in the exercise of reasonable care should have
been put on inquiry regarding the condition or matter complained of.” Id.
It is difficult to apply this “discovery” rule in these circumstances, as the
fourth claim’s fraud allegations are not pled with the particularity required
by Rule 9(b). See Fed. R. Civ. P. 9(b) (“[I]n alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or
mistake.”). The fourth claim includes merely conclusory allegations about
the statements and/or omissions between Plaintiff, Plaintiff’s family, and
Defendants. Amendment will permit the Court to more accurately assess
whether the fraud claims are barred even after application of the discovery
rule.
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Order Granting in Part and Denying in Part Motion to Dismiss, Dkt. 109, at 16. It is
clear from reading Judge Carter’s well-crafted decision, that he simply did not address the
question of whether § 5-218(4) or § 5-219(4) provides the applicable statute of
limitations. This is understandable given the dearth of briefing and the focus in the prior
proceedings on the difficult conflict-of-law issues in this case.

For these reasons, the

Court concludes that it is writing on a clean slate with regard to which statute of
limitations applies.
An argument can be made for the application of either statute. Doe has clearly
based his third and fourth claims for relief on allegations of fraud, and Idaho Code § 5218(4) provides a three-year limitation period for any “actions for relief on the ground of
fraud....” On the other hand, the relief sought is based upon personal injuries suffered by
Doe as a result of the alleged fraud, and Idaho Code § 5-219(4) provides a two-year
limitation period for any “action to recover damages for an injury to the person.”
However, the Court is not without some guidance as to how to resolve a claim that
is arguably covered by both statutes. The Idaho Supreme Court confronted a similar
situation in Umphrey v. Sprinkel, 682 P.2d 1247 (Idaho 1983). There, the plaintiffs
successfully asserted a claim of fraud against real estate agents based upon
representations made concerning the road access and water supply for a parcel of land.
The defendant’s contended before the trial court and on appeal, that the claims were in the

MEMORANDUM DECISION AND ORDER - 12

nature of professional malpractice and were therefore barred by the two-year statute of
limitations under Idaho Code § 5-219(4). The Idaho Supreme Court rejected that
argument, holding that “an action for fraudulent misrepresentation does not fall within the
protective embrace of the professional malpractice statute.” Id. at 1253. In reaching this
conclusion, the Idaho Supreme Court reasoned:
[t]he gist of a malpractice action is negligence....An action for fraud or
deceit involves more than mere negligence. While it is a tort action, it is
more in the nature of an intentional tort, requiring that the speaker have
knowledge of the representation's falsity or ignorance of its truth, as well as
intent that the representation be relied upon. In addition, the plaintiff must
prove all elements by clear and convincing evidence as opposed to the less
stringent preponderance of the evidence standard used in ordinary
negligence cases. Hence, we believe that an action for fraud and deceit is
not within the purview of a malpractice action.
Id. at 1253 (citations omitted).
The Court went on to justify its holding by suggesting that the Idaho legislature
made a policy choice to provide greater leeway for a potential plaintiff who alleges fraud,
because of the inherent difficulties in pursuing such a claim. It noted that this policy
decision “is founded upon the realization that fraud, an intentional and often orchestrated
scheme, is ordinarily more difficult to discover than a negligent injury.” Id. at 1254-55.
The Court continued: “Our holding is consistent with the legislature's clear intent to
afford victims of fraud more time in which to discover the machinations which led to their
exploitation.” Id. Thus, the Umphrey decision teaches that the specific fraud statute of

MEMORANDUM DECISION AND ORDER - 13

limitations, with its provision for accrual upon discovery, should be applied where the
plaintiff has specifically alleged fraud and assumed the heavy duty of proving an
intentional tort by clear and convincing evidence.
Relying upon the decision of the Illinois Supreme Court in Doe A. v. Diocese of
Dallas, 917 N.E.2d 475 (Ill. 2009), the Boy Scout Defendants argue that the two-year
“personal injury” statute of limitations should be applied because Doe’s fraud claim is
really a claim for personal injury. In the Diocese of Dallas case, the court disregarded the
plaintiff’s characterization of their claims as based in fraud, and applied a shorter statute
of limitations because the damages sought in the fraud claims were the same damages
sought in their other claims for relief. The Illinois Supreme Court offered the following
explanation for their decision:
The specific injuries alleged in the fraud counts are, in fact, identical to
those set forth in the other counts…. The law is well established that the
limitations period governing a claim is determined by the nature of the
plaintiff’s injury rather than the nature of the facts from which the claim
arises. Because the injuries alleged in the fraud counts are the same as those
alleged in the counts governed by the limitations period for damages for
personal injury based on childhood sexual abuse, they are likewise subject
to the childhood sexual abuse limitations period.
917 N.E.2d at —.
The Court is unpersuaded by the Diocese of Dallas case. First, it is questionable
that this principle is “well established” as suggested by the Diocese of Dallas court. See,
e.g., Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1133 (6th Cir. 1995)
MEMORANDUM DECISION AND ORDER - 14

(concluding that the Michigan Supreme Court would examine the “nature and origin” of a
claim to determine the applicable limitations period, and would look, not at the type of
damages, but rather at the source of damages); Hydro-Mill Co., Inc. v. Hayward, Tilton
and Rolapp Ins. Associates, Inc., 10 Cal.Rptr.3d 582, 589 (Cal.App. 2004)(indicating that
the nature of the right sued upon and not the form of action nor the relief demanded
determines which statute of limitations applies). Second, the Court has been unable to
find any decision of the Idaho appellate courts suggesting that the applicable statute of
limitations should be determined by reference to the damages sought rather than the
nature of the claim asserted. Indeed, the Idaho courts appear to follow a different rule –
that the “appropriate statute of limitations is determined by the substance, not the form, of
the action.” Nerco Minerals Co. v. Morrison Knudsen Corp., 140 Idaho 144, 148 (Idaho
2004) (quoting Trimming v. Howard, 52 Idaho 412, 416, 16 P.2d 661, 662 (1932)).
For the reasons set forth above, the Court concludes that the specific statute of
limitations applicable to fraud claims – Idaho Code § 5-218(4) – applies to Doe’s third
and fourth claims for relief. Moreover, the allegations of the Second Amended Complaint
adequately allege that Doe did not discover “the facts constituting the fraud,” until less
than three-years prior the filing of the initial complaint in this action. Accordingly, those
claims will not be dismissed at this time on statute of limitations grounds. Whether those
allegations can withstand closer scrutiny on summary judgment remains to be seen.

MEMORANDUM DECISION AND ORDER - 15

As noted above, the Boy Scout Defendants also contend that the third and fourth
claims do not satisfy the Iqbal/Twombly standards and do not adequately plead the
elements of common law fraud under Idaho law. This argument brings into play both the
general pleading requirements of Rule 8(a) and the specific requirements of Rule 9(b) that
in alleging fraud, a party must “state with particularity the circumstances constituting the
fraud. The Ninth Circuit has recently addressed the interplay of these two rules:
Until now, we have not had occasion explicitly to confirm that Iqbal 's
plausibility requirement applies to claims subject to Rule 9(b). We have,
however, said that “complaints alleging fraud must comply with both
[Federal Rules of Civil Procedure] 8(a) and 9(b).” [Internal Citation
omitted.] Because Rule 8(a) requires the pleading of a plausible claim,
Iqbal, 129 S.Ct. at 1949–50, we hold that claims of fraud or
mistake—including FCA claims—must, in addition to pleading with
particularity, also plead plausible allegations. That is, the pleading must
state “enough fact[s] to raise a reasonable expectation that discovery will
reveal evidence of [the misconduct alleged].” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007).
Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc, 637 F.3d 1047, 1055 (9th Cir.
2011). The Court is persuaded that Doe has satisfied the requirements of Rules 8(a) and
9(b), as articulated in the Cafasso decision.
The elements of fraud include: (1) a statement or a representation of fact; (2) its
falsity; (3) its materiality; (4) the speaker's knowledge of its falsity; (5) the speaker's
intent that there be reliance; (6) the hearer's ignorance of the falsity of the statement; (7)
reliance by the hearer; (8) justifiable reliance; and (9) resultant injury. Lettunich v. Key

MEMORANDUM DECISION AND ORDER - 16

Bank Nat. Ass'n, 109 P.3d 1104, 1110 (Idaho 2005). The Court will address each
element in turn.
Doe alleges that the Boy Scout Defendants made a statement or representation of
fact in a number of different respects: by inviting and encouraging Doe to participate in
the Scouting program; promoting the program as being safe and beneficial for boys;
including provisions in the Boy Scout Handbook describing the Scoutmaster as “a
wonderful man” who goes on hikes and goes camping with the Scouts, suggesting that
the Scoutmaster “is the friend to whom you can always turn for advice,” and indicating
that the Scoutmaster, “should be able at all times to count on each of ‘his boys’ to be his
right-hand helper.”
Doe also alleges that the Boy Scout Defendants had a duty to disclose the known
dangers of pedophilic Scoutmasters. According to the Idaho Supreme Court, silence may
constitute fraud when a duty to disclose exists. G & M Farms v. Funk Irrigation Co., 808
P.2d 851 (Idaho 1991), A party may have a duty to disclose: (1) if there is a fiduciary or
other similar relation of trust and confidence between the two parties; (2) in order to
prevent a partial statement of the facts from being misleading; or (3) if a fact known by
one party and not the other is so vital that if the mistake were mutual the contract would
be voidable, and the party knowing the fact also knows that the other does not know it.
Sowards v. Rathbun, 8 P.3d 1245, 1250 (Idaho 2000).

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In support of their “silence as fraud” claim, Doe makes several arguments. First,
he alleges that the statements made by the Boy Scouts about the wholesome nature of
their institution and the paternalistic role a Scoutmaster should play in a young man’s life
were, at best, a partial statement of the facts, which needed to be corrected by other
contrary information in the possession of the Scout Defendants. Second Amended
Complaint at ¶¶ 23-24, Dkt. 110. Second, Doe alleges that the invitation to join scouting
created a “special, fiduciary relationship,” and that the Scout Defendants exercised in loco
parentis responsibilities over the scouts.3 Id. at ¶¶ 4-7, 23. The Court finds that either
allegation is sufficient to take advantage of the “silence as fraud” doctrine recognized by
the Idaho Supreme Court in Rathbun.
The Court also finds that the remaining elements of fraud are adequately pled.
Doe’s“silence as fraud” allegations, as well as his allegation that, contrary to
representations that Scoutmasters were appropriate mentors and leaders for youth, the
Scout Defendants knew prior to Doe’s involvement in scouting that there was a serious

3

Courts have been appropriately skeptical of claims of a fiduciary relationship. See, e.g.,
Doe v. Holy See (State of Vatical City), 17 A.D.3d 799 (N.Y. App. 2005)(declining to find a
fiduciary relationship based solely upon the defendant’s sponsorship of religious and educational
programs). Indeed, Idaho has only recognized a fiduciary relationship "when the parties are:
members of the same family, partners, attorney and client, executor and beneficiary of an estate,
principal and agent, insurer and insured, and close friends.” Mitchell v. Barendregt, 820 P.2d
707, 714 (Idaho App. 1991). However, that inquiry is inherently factual and dependent upon the
nature of the specific relationship in question. Therefore, the existence of that relationship is
more appropriately tested in the context of a Rule 56 motion, than on a motion to dismiss.
MEMORANDUM DECISION AND ORDER - 18

and far-reaching problem with Scoutmasters using their position to abuse young men,
satisfy the falsity requirement. With respect to materiality, Doe alleges that the
representations were material because he would not have entered into the scouting
program if he or his parents had been aware of the dangers of child molesters functioning
as Scoutmasters. Second Amended Complaint, Dkt. 110, at ¶ 26. Doe also specifically
alleges that the Scout Defendants were aware of the falsity of their representations
because of information collected overtime and available to them long before Doe entered
the scouting program. Id. at ¶ 24. Finally, Doe alleges that (1) the Scout Defendants
intended that there be reliance on their representations since it was critical to the success
of their institution; and (2) Doe and his parents were ignorant of the falsity of the
statements, and justifiably relied on those statements to their injury. Id. at ¶¶ 28-29.
The Court therefore concludes that the Third and Fourth Claims for Relief4 satisfy
4

The Court is concerned that the Fourth Claim for Relief, alleging constructive fraud, is
redundant and unnecessary. As the Idaho Supreme Court noted in Gray v. Tri-Way Const.
Services, Inc. 210 P.3d 63, 71 (Idaho 2009):
“An action in constructive fraud exists when there has been a breach of a duty
arising from a relationship of trust and confidence, as in a fiduciary duty." Hines
v. Hines, 129 Idaho 847, 853, 934 P.2d 20, 26 (1997).
...
"The gist of a constructive fraud finding is to avoid the need to prove intent (i.e.,
knowledge of falsity or intent to induce reliance) [under the elements required to
prove actual fraud], since it is inferred directly from the relationship and the
breach." Country Cove Dev., Inc. v. May, 143 Idaho 595, 601, 150 P.3d 288, 294
(2006).
It would appear, that a claim of constructive fraud is not necessarily an independent claim, but an
alternative means of proving two key elements of fraud.
MEMORANDUM DECISION AND ORDER - 19

both the particularity requirements of Rule 9(b) and the plausibility requirements of Rule
8(a) and Iqbal/Twombly.
3.

Motion to Strike Responses
The Boy Scout Defendants move to strike the declarations and attached exhibits of

Kristian Roggendorf and Tom Doe (Dkt. 130-1, 130-2, & 130-3), filed with Doe’s
opposition to the Boy Scout Defendants’ motion to strike or dismiss. The declarations
contain: (1) transcript excerpts from the trial of Lewis v. BSA, an Oregon state case; (2)
the Supplemental Declaration of Nathaniel Marshall, from the case of Jack Doe I, et al v.
BSA, et al, also an Oregon state case; (3) excerpts from the declaration of Myron Child,
taken for the case of D.I. v. Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-day Saints, et al, also an Oregon state case; (4) excerpts from the 1968
Boy Scouts of America handbook. The Boy Scout defendants argue that these extrinsic
documents are irrelevant when considering a motion to dismiss. In the alternative, the
Boy Scout Defendants argue, if the Court were to convert the motion to dismiss to a
motion for summary judgment, the extrinsic documents are inadmissible.
When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers
evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule
56 motion for summary judgment, and it must give the nonmoving party an opportunity to
respond. See Fed.R.Civ.P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir.

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1998). A court may, however, consider certain materials – documents attached to the
complaint, documents incorporated by reference in the complaint, or matters of judicial
notice – without converting the motion to dismiss into a motion for summary judgment.
See Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002).
Doe’s extrinsic documents are inappropriate for judicial notice because they are
not records and reports or administrative bodies. Interstate Nat. Gas Co. v. S. Cal. Gas
Co., 209 F.2d 380, 385 (9th Cir. 1953). Nor do they constitute facts “not subject to
reasonable dispute . . . capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Doe’s extrinsic
documents were not attached to the Second Amended Complaint. Doe’s extrinsic
documents were not incorporated by reference into the Second Amended Complaint
because they were not referred to “extensively” therein, nor do they “form[] the basis of
the . . . claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Cf. Parrino,
146 F.3d at 705-06 (incorporation by reference appropriate when plaintiff’s insurance
claim is based on content of coverage plan); In re Silicon Graphics Secs. Litig., 183 F.3d
970, 986 (9th Cir. 1999) (incorporation by reference appropriate when plaintiff’s stock
fraud claim is based on the contents of SEC filings).
Thus, the extrinsic documents must be excluded, or the motion must be converted
to one for summary judgment. A district court has discretion to convert a motion to

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dismiss under Rule 12(b)(6) to a motion for summary judgment. Typically, the court will
exercise this discretion when a defendant’s motion to dismiss is accompanied by
evidentiary materials outside the pleadings. See Salveson v. Western States Bankcard
Ass’n, 731 F.2d 1423, 1430 (9th Cir. 1984). All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. P.
12(d).
In this case, the Boy Scout Defendants attached no extrinsic evidence to their
motion, but Doe opposed the motion with copious extrinsic documents. The Boy Scout
Defendants did not answer this evidence in their reply.5 Discovery in this case is in its
infancy, and the parties have not yet been given a reasonable opportunity to present all
materials that would be pertinent to a motion for summary judgment. However, in
reaching its decision in this case, the Court has not found it necessary to consider the
extrinsic materials provided by Doe. Accordingly, the Court will conclude that the
motion to strike is moot.
4.

Motion to Compel
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may

obtain discovery regarding any matter, not privileged, that is relevant to the claim or
5

The Boy Scout Defendants filed an affidavit with their reply memorandum. Dkt. 131-1. This
affidavit was a transcript from a previous hearing before this Court related to the argument that Plaintiff
exceeded the permissible scope of amendment, justifying striking thereof. It did not relate to the
alternative Motion to Dismiss.
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defense of any party.” Rule 26(b)(1) further provides that “[r]elevant information need
not be admissible at trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Federal Rule of Evidence 401 defines relevant
evidence as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” See United States v. Curtin, 489 F.3d 935, 943 (9th Cir.
2007) (en banc). If evidence is relevant, it is generally admissible under Federal Rule of
Evidence 402. See id. A district court has discretion to deny a motion to compel
discovery if the request is “unnecessarily burdensome and overly broad.” Sorosky v.
Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987) (citing Scott and Fetzer Co. v. Dile,
643 F.2d 670, 674-75 (9th Cir. 1981)).
The LDS Defendants seek, through propounded interrogatories 6, 7, 13, 15, and
21, such wide-ranging information as the names and dates of every hospital and physician
visit Mr. Doe has ever had or visited, a detailed description of every injury, illness, or
operation Mr. Doe has ever had, all of Mr. Doe’s medical records since 1965, and all
records from any counseling or psychiatric treatment Mr. Doe has ever received. Mtn. to
Compel, Dkt. 141-1 at 3.
The LDS Defendants allege that Mr. Doe “put his medical records for the last 45
years at issue by claiming he is continuing to suffer ‘debilitating physical, mental, and

MEMORANDUM DECISION AND ORDER - 23

emotional injur[ies]’ from sexual abuse.” Id. at 6. Mr. Doe states that he has furnished
all medical records relating to the condition or injury for which recovery is sought, and
thus the additional discovery sought by the LDS Defendants is irrelevant. Mr. Doe also
claims the requested records are protected by physician-patient privilege.
Analysis of various privileges (doctor-patient; psychotherapist-patient) is
unnecessary because of two undisputed principles. First, under the laws of any state, a
plaintiff must disclose medical records relating to any condition he himself puts at issue.
See, e.g., Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). Medical
records unrelated to the conditions put in issue by a plaintiff are not relevant and are thus
not discoverable, regardless of whether a specific privilege is applicable.
The LDS Defendants’ motion is granted insofar as it relates to conditions put in
issue by Mr. Doe, but is denied as to the overly broad, burdensome, irrelevant, complete
medical history the interrogatories seek. For those conditions Mr. Doe will seek to prove
at trial, complete discovery must be provided. Mr. Doe will not be permitted to proceed
at trial regarding any alleged medical conditions, mental or physical, for which complete
discovery is not provided to the Defendants.
CONCLUSION
Doe’s Second Amended Complaint did not exceed the permissible scope of
amendment and shall not be stricken. Doe’s third and fourth claims are governed by the

MEMORANDUM DECISION AND ORDER - 24

fraud statute of limitations and it is not apparent on the face of the complaint that those
claims are time-barred. The third and fourth claims adequately set forth allegations of
fraud under requirements of Rules 8(a) and 9(b). Because the Court did not consider the
extrinsic documents filed by Doe, the Boy Scout Defendants’ motion to strike will be
deemed moot. The LDS Defendants’ motion to compel is granted insofar as it relates to
conditions put in issue by Mr. Doe, but is denied as to the overly broad and irrelevant
medical history the interrogatories seek. However, Doe will be precluded from
presenting any claims for damages related to medical conditions where the associated
medical records were withheld.
ORDER
IT IS ORDERED THAT:
1.

The Boy Scout Defendants’ Motion to Strike (Dkt. 126) is DENIED.

2.

The Boy Scout Defendants’ alternative Motion to Dismiss (Dkt. 126) is

DENIED.
3.

The Boy Scout Defendants’ Motion to Strike (Dkt. 130) is DENIED as

MOOT.
4.

The LDS Defendants’ Motion to Compel is GRANTED in part and

DENIED in part to the extent stated herein (Dkt. 141).

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DATED: August 5, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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