Doe I et al v. Boy Scouts of America et al

Filing 419

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED, that plaintiffs' motion for reconsideration of consolidation and to determine trial order (docket no. 386 ) is GRANTED. IT IS FURTHER ORDERED, that defendants' motion to bifurcate (docket no. 348 ) is GRANTED. Signed by Judge B. Lynn Winmill. (alw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN DOES I-XIX and JOHN ELLIOTT,

Case No. 1:13-cv-00275-BLW

Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.
BOY SCOUTS OF AMERICA, a congressionally
chartered corporation authorized to do business in
Idaho; CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS CHRIST
OF LATTER-DAY SAINTS, a foreign
corporation sole registered to do business in Idaho;
and CORPORATION OF THE PRESIDENT OF
THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS AND SUCCESSORS, a
foreign corporation registered to do business in
Idaho,
Defendants.

INTRODUCTION
The Court has before it a motion to bifurcate filed by the Church and a motion to
consolidate and determine trial order filed by plaintiffs. The motions are fully briefed
and at issue. For the reasons explained below, the Court will (1) consolidate for trial the
claims of Doe IV and Doe XVIII and try those claims first; (2) with regard to Doe XII,
the Court will bifurcate the issue of settlement from the constructive fraud issue; (3)
following the trial of Doe IV and Doe XVIII, the Court will select a new jury to try only
Doe XII’s settlement issue; (4) if the jury finds that Doe XII did not settle his
constructive fraud claim, the Court will select a new jury and try the constructive fraud
issue; (4) if that jury finds constructive fraud, that same jury will then consider whether
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Doe XII’s claim is barred by the statute of limitations. The Court will explain these
conclusions below.
ANALYSIS
Motion to Bifurcate
The Church asks the Court to bifurcate the settlement and statute of limitation
issues from the liability issues in the trial of the claims of Doe XII. The Scouts have
joined in this motion.
In its opening brief, the Church sought to consolidate the settlement and statute of
limitation issues and try them first, and then – if the first jury finds no settlement and no
limitations problem – pick a new jury and try the liability issues. But in their reply brief,
the Church suggests a different approach:
The Church requested in its moving papers the statute of limitations issue
be tried before liability with the settlement agreement issue, but the better
course may be to have the liability jury decide statute of limitations after
(and only if) it decides Doe XII has proven his claim for constructive
fraud.
See Reply Brief (Dkt. No. 391) at p. 9.
The legal standard governing bifurcation is set forth in Rule 42: “For
convenience, to avoid prejudice, or to expedite and economize, the court may order a
separate trial of one or more separate issues . . . . When ordering a separate trial, the
court must preserve any federal right to a jury trial.” The Church bears the burden of
convincing the Court to exercise its discretion to bifurcate issues for trial. SpectraPhysics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D.Cal. 1992).

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The initial concern with trying the settlement issue together with the liability
issues is one of prejudice. Generally, evidence of conduct or statements during
settlement negotiations is not admissible to prove liability. See Rule of Evidence 408.
The liability issue here is whether the Church made false statements that Scouting was
safe. Jurors hearing that the Church paid money to Doe XII to settle his abuse claim
may conclude that the Church is generally liable for his abuse. That is not the specific
liability issue here, but it would be all-too-human for a juror to reason that if the Church
is generally liable for his abuse, it is specifically liable for making false statements about
safety. While that line of reasoning is not analytically rigorous, the human mind often
leaps to irrational conclusions.
Of course, the Court could instruct the jury to maintain an impenetrable wall
between the evidence focusing on the settlement agreement and the evidence focusing on
liability. But given the emotions that arise from child abuse, such a jury instruction
would ask too much of any juror. There really is no way to contain the prejudice. The
Court therefore concludes that there is a real chance of prejudice to the Church of trying
the settlement issues together with the liability issues.
In addition, Rule 42 allows bifurcation to “expedite and economize” the case.
Here, if the settlement issue is bifurcated and tried first, and the verdict favors the
Church, there will be no need to proceed to the liability issues against the Church. On the
other hand, if the issues are not bifurcated, the trial becomes significantly more complex
as the jury will be required to keep separate the evidence on settlement from the liability
issues, and must also refrain from allowing the evidence of settlement negotiations with
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the Church to taint any of its findings with regard to the Boy Scouts. Bifurcation will
avoid these problems and “expedite and economize” the case. For all of these reasons,
the Court will grant Doe XII’s motion to bifurcate the settlement issues regarding the
Church from the liability issues.
The next issue is whether the statute of limitations issue should likewise be
separated from the liability issue. The statute of limitations issue asks: When did Doe
XII know – or when should he have known – of the falsity of the Church’s statements
that Scouting was safe? Unlike the settlement issue, the evidence on the limitations issue
will overlap to some degree with the evidence on constructive fraud. The limitations
issue will require foundational evidence on the falsity of the Scout statements and Doe
XII’s experience in Scouting. This evidence would have to be presented twice if the
limitations issue was separated from the constructive fraud issue and tried to a separate
jury. That would not “expedite and economize” the case, and the Church recognized this
flaw when it abandoned its original plan and revised its recommendation, as discussed
above.
The Church’s revised recommendation makes much more sense. The same jury
would resolve both the constructive fraud issue and the limitations issue – so the evidence
would not have to be presented twice – but would do so sequentially, because resolving
the constructive fraud issue first might preclude the need to even address the limitations
issue if the jury found no constructive fraud.

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The Court will therefore bifurcate the limitations issue in this way. The jury will
consider first the constructive fraud issue, and if it finds that there was constructive fraud
it will then proceed to determine whether the statute of limitations bars that claim.
Motion to Consolidate & Determine Trial Order
Plaintiffs move to consolidate the trials of Doe IV and Doe XVIII, and to try their
case first, prior to any trial for Doe XII. Plaintiffs argue that there is a substantial overlap
in the evidence for both Doe IV and Doe XVIII, and that consolidation of these two
plaintiffs for trial would expedite the resolution of their cases.
Rule 20(a) governs permissive joinder, and identifies two prerequisites for the
joinder of defendants: (1) a right to relief must be asserted against the defendants arising
out of the same transaction, occurrence or series of transactions or occurrences; and (2)
the claims must involve some question of law or fact common to all defendants. See
Fed.R.Civ.P. 20(a)(2); see also League to Save Lake Tahoe v. Tahoe Reg. Plan. Agency,
558 F.2d 914, 917 (9th Cir.1977). Joinder is to be construed liberally “in order to
promote trial convenience and to expedite the final determination of disputes, thereby
preventing multiple lawsuits.” League to Save Lake Tahoe, 558 F.2d at 917.
Nonetheless, district courts retain broad discretion in applying Rule 20. See Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1296–97 (9th Cir.2000). Even if plaintiffs satisfy the
requirements of Rule 20, joinder is still inappropriate unless it “comports with the
principles of fundamental fairness.” Desert Empire Bank v. Insurance Co. of North
America, 623 F.2d 1371, 1375 (9th Cir.1980).

Memorandum Decision and Order – page 5

Applying those standards here, it is important that plaintiffs Doe IV and Doe
XVIII were in the same Scout troop, in the same town, and were sexually abused by the
same Scoutmaster. Their case will proceed only against the Scouts, not the Church, so
the relative simplicity of the case will make it easier to avoid prejudice. There is also a
substantial overlap of evidence as to the two plaintiffs. Both plaintiffs must prove that
the Scouts made false statements that Scouting was safe, and much of that evidence will
be the same for each plaintiff. Moreover, they will both present evidence of the Scouts’
knowledge of the falsity of their statements that Scouting was safe as part of their burden
to prove they had a relationship of trust and confidence with the Scouts, an element of
constructive fraud. The Scouts argue that its knowledge is irrelevant to a constructive
fraud case, but the Court has held otherwise, finding that it is relevant to the relationship
of trust and confidence.
In addition, evidence relating to the statute of limitations issue will be
substantially similar for both plaintiffs, at least from their point of view. Both will testify
that they first learned of the falsity of the Scouts’ statements of safety during meetings
with their attorneys.
Thus, by consolidating these two plaintiffs for trial, there would be a substantial
amount of evidence that pertains to both. Separating their trials would mean that a
significant amount of evidence would need to be presented twice, a factor favoring
consolidation under Rule 20. The Scouts argue that the Church might be prejudiced at a
future trial of Doe XII who has sued both the Church and the Scouts. But the Church

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never filed an opposition to plaintiffs’ motion, and the Scouts have no standing to make
arguments on behalf of the Church.
The Supreme Court has held that “the impulse is toward entertaining the broadest
possible scope of action consistent with fairness to the parties; joinder of claims, parties
and remedies is strongly encouraged.” United Mine Workers of America v. Gibbs, 383
U.S. 715, 724 (1966). The Court finds that the requirements of Rule 20 have been
satisfied, and that consolidation compotes with principles of fundamental fairness. The
Court will therefore grant plaintiffs’ motion to consolidate Doe IV and Doe XVIII for
trial.
Order of Trials
Plaintiffs ask the Court to try first the consolidated trial of Doe IV and Doe XVIII,
and follow that with the trial for Doe XII. Defendants object, and ask the Court to try
Doe XII’s case first.
The trial of Doe XII involves a single plaintiff suing two defendants, the Scouts
and the Church. It would begin with a resolution of the settlement issue, and if no
settlement was found, the Court would empanel a new jury and try the constructive fraud
and limitations issues. If the jury instead found that Doe XII settled his claims against
the Church, a new jury would be empaneled and Doe XII’s trial would proceed against
the Scouts only.
In comparison, the trial of Doe IV and Doe XVIII involves only a single
defendant, the Scouts. As plaintiffs point out, Doe IV filed his case first, about eight
months ahead of any other plaintiff. Plaintiffs are also concerned that the Scouts might
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file bankruptcy, and plaintiffs want to get verdicts against the Scouts before any
bankruptcy filing. While there is some evidence that the Scouts are considering
bankruptcy, the Scouts’ counsel denies knowing anything about a filing.
These factors tend to cut both ways, offering no clear answer to the ordering issue.
The best solution in this circumstance is to proceed first with the case that will resolve the
claims of the most plaintiffs – that is, the consolidated case of Doe IV and Doe XVIII.
When that case is completed, the Court will proceed with the trial of Doe XII’s case, with
perhaps some time in between to allow counsel to regroup and prepare.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that plaintiffs’ motion for
reconsideration of consolidation and to determine trial order (docket no. 386) is
GRANTED.
IT IS FURTHER ORDERED, that defendants’ motion to bifurcate (docket no.
348) is GRANTED.
IT IS FURTHER ORDERED, that as a result of the rulings above, (1) the claims
of Doe IV and Doe XVIII are consolidated for trial purposes, and their consolidated trial
will proceed first on May 6, 2019; (2) with regard to Doe XII, the Court will bifurcate the
issue of settlement from the constructive fraud issue; (3) following the trial of Doe IV
and Doe XVIII, the Court will select a new jury to try only Doe XII’s settlement issue;
(4) if the jury finds that Doe XII did not settle his constructive fraud claim, the Court will
select a new jury and try Doe XII’s constructive fraud issue; (4) if that jury finds
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constructive fraud, that same jury will then consider whether Doe XII’s claim is barred
by the statute of limitations.

DATED: February 25, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

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