Stevens v. Brigham Young University - Idaho et al

Filing 54

MEMORANDUM DECISION AND ORDER denying 30 Motion to Amend/Correct. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LORI STEVENS,

Case No. 4:16-cv-00530-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BRIGHAM YOUNG UNIVERSITYIDAHO d/b/a BYU-Idaho, and SUSAN
STOKES, personal representative of the
Estate of Stephen Stokes,
Defendants.
I. INTRODUCTION
This matter comes before the Court on Plaintiff Lori Stevens’ Motion for Leave to
Amend Amended Complaint. Dkt. 30. The Motion is fully briefed and ripe for decision.
Having reviewed the record, the Court finds that the parties have adequately presented
the facts and legal arguments in the briefs. Accordingly, in the interest of avoiding further
delay, and because the Court finds that the decisional process would not be significantly
aided by oral argument, the Court decides the pending Motion on the record without oral
argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons set forth below, the
Court finds good cause to DENY the Motion.

MEMORANDUM DECISION AND ORDER – PAGE 1

II. BACKGROUND
Stevens filed this case against Brigham-Young University-Idaho (“BYU-I”) and
Susan Stokes, as personal representative of the Estate of Stephen Stokes,1 on December
9, 2016. Dkt. 1. Prior to any answer or appearance by Defendants in this matter, Stevens
filed her Amended Complaint on March 3, 2017. Dkt. 4. In her Amended Complaint,
Stevens, a former BYU-I student, alleges generally that Stephen Stokes, a former BYU-I
professor, initiated an unwanted relationship with her while she was a student and Stokes
was a professor at BYU-I. Stevens alleges that this relationship ultimately became
sexually and emotionally abusive. Stevens further asserts that she, along with another
student, reported Stokes’ inappropriate and abusive behavior to several BYU-I professors
and officials, who failed to take any action. The relationship ended when Stokes died on
July 1, 2016, from complications during heart surgery.
In her Amended Complaint, Stevens asserted four causes of action against both
Defendants: (1) teacher-on-student hostile environment/sexual harassment actionable
under Title IX of the Education Amendments Act; (2) teacher-on-student quid pro quo
sexual harassment; (3) hostile learning environment in violation of the Rehabilitation Act
and the Americans with Disabilities Act; and (4) violation of the Idaho Human Rights
Act. Stevens asserted three additional causes of action against Susan Stokes alone: (5)
intentional infliction of emotional distress; (6) negligent infliction of emotional distress;
and (7) assault and battery.

1

The Court will refer to Defendant Susan Stokes as “Susan Stokes” and Stephen Stokes as
“Stokes.”
MEMORANDUM DECISION AND ORDER – PAGE 2

After Defendants filed their Answers to the Amended Complaint, the Court
entered a case management order requiring the parties to amend the pleadings and join
parties by July 28, 2017, complete discovery by April 27, 2018, and file any dispositive
motions by May 25, 2018. Dkt. 15. On December 21, 2018, Stevens filed the Pending
Motion to Amend her Amended Complaint. Dkt. 30. Stevens seeks to add two additional
claims: (8) negligence per se (against BYU-I and Stokes); and (9) negligent supervision
(against BYU-I alone). BYU-I filed an opposition to the Motion to Amend. Dkt. 34.
Susan Stokes did not file her own opposition, but notified the Court that she joins in
BYU-I’s opposition. Dkt. 36. This Motion became ripe when Stevens filed her reply brief
on January 25, 2018. Dkt. 38. Finally, on February 9, 2018, as the Court was drafting its
decision, Susan Stokes notified the Court that she had settled this matter with Stevens.
Dkt. 44. This fact did not affect the Court’s decision.
III. LEGAL STANDARD
“Once [a] district court ha[s] filed a pretrial scheduling order pursuant to Federal
Rule of Civil Procedure 16 . . . establish[ing] a timetable for amending pleadings,” Rule
16’s standards control any motion to amend the pleadings. Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Rule 16 provides that “[a]
schedule may be modified only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(4). If the party seeking amendment establishes “good cause” under Rule 16,
the party then must demonstrate that amendment is proper under Rule 15. Johnson, 975
F.2d at 609.

MEMORANDUM DECISION AND ORDER – PAGE 3

Rule 16’s good cause inquiry focuses primarily on “the diligence of the party
seeking the amendment.” Id. “Rule 16 was designed to facilitate more efficient
disposition of cases by settlement or by trial. If disregarded it would ‘undermine the
court’s ability to control its docket, disrupt the agreed-upon course of the litigation, and
reward the indolent and the cavalier.’” Walker v. City of Pocatello, 2017 WL 1650014 at
*1 (D. Idaho May 1, 2017) (quoting Johnson, 975 F.2d at 610); see also Simplot
Livestock Co. v. Sutfin Land & Livestock, No. 116-CV-00139-EJL-REB, 2018 WL
563142, at *1 (D. Idaho Jan. 25, 2018). The Ninth Circuit has instructed that a “district
court may modify the pretrial schedule ‘if it cannot reasonably be met despite the
diligence of the party seeking the extension.’” Johnson, 975 F.2d at 609 (quoting Fed. R.
Civ. P. 16 advisory committee’s notes (1983 amendment)). Put simply, “good cause”
means scheduling deadlines cannot be met despite a party’s diligence. 6A Wright, Miller
& Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed.1990).
In contrast, under Rule 15, leave to amend a pleading “shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a). Leave to amend lies within the sound
discretion of the trial court, which “must be guided by the underlying purpose of Rule 15
to facilitate decisions on the merits, rather than on the pleadings or technicalities.” United
States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). The Rule 15 “policy is ‘to be applied
with extreme liberality.’” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051
(9th Cir. 2003) (citation omitted). Nevertheless, the Supreme Court has instructed district
courts to consider the following factors when deciding whether to grant leave to amend:
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
MEMORANDUM DECISION AND ORDER – PAGE 4

cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility of amendment.” Id. (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
IV. ANALYSIS
Stevens asserts that she recently “uncovered additional information that gives rise
to additional claims that can be brought against Defendants.” Dkt. 31, at 5. Specifically,
Stevens asserts that around November of 2017 she discovered “details about Stokes’
relationship with [another] female student named Rachel.” Dkt. 30-2, at 18. “Stevens
learned that Stokes had engaged in similar grooming behaviors to those he had used on
Stevens, including acting as a professional counselor, gifting his used personal articles of
clothing . . . to be worn by the female student, and showing up without invitation to the
student’s home.” Id. Stevens believes that both Rachel and Susan Stokes reported the
relationship to BYU-I, and that, after these reports, “Stokes was directed to no longer
counsel female students regarding personal matters.” Id. at 18–19. Finally, Stevens
asserts that she recently learned that “Stokes held himself out as [her] counselor and
represented to medical personnel that he was [her] case worker in order to gain access to
her while she was hospitalized or at doctor’s appointments.” Dkt. 31, at 6.
Stevens maintains that these revelations give rise to two new causes of action.
First, Stevens seeks to assert a claim of negligence per se based on a violation of Idaho
Code § 18-919. “[I]n Idaho, it is well established that statutes and administrative
regulations may define the applicable standard of care owed, and that violations of such
statutes and regulations may constitute negligence per se.” Sanchez v. Galey, 112 Idaho
MEMORANDUM DECISION AND ORDER – PAGE 5

609, 733 P.2d 1234, 1242 (1986) (quoted in Albertson v. Fremont Cty., 834 F. Supp. 2d
1117, 1134–35 (D. Idaho 2011)). Section 18-919 of the Idaho Code states that “[a]ny
person acting or holding himself out as a . . . psychotherapist . . . who engages in an act of
sexual contact with a patient or client, is guilty of sexual exploitation by a medical care
provider.” Dkt. 30-2, at 28. Stevens asserts that Stokes violated section 18-919 and that
“BYU-Idaho is liable for Stokes’ actions through the doctrine of respondeat superior
because Stokes’ actions were committed within the scope of Stokes’ employment with
BYU-Idaho, some of Stokes’ actions were committed on BYU-Idaho’s premises, and
Stokes was otherwise under the direction or control of BYU-Idaho when Stokes’ actions
toward Stevens occurred.” Id.
Second, Stevens seeks to assert a claim of negligent supervision against BYU-I.
The Idaho Court of Appeals has described the tort of negligent supervision as follows:
[A] negligent supervision claim is not based upon imputed or vicarious
liability but upon the employer’s own negligence in failing to exercise due
care to protect third parties from the foreseeable tortious acts of an employee.
. . . [N]egligent supervision liability encompasses conduct of the employee
that is outside the scope of employment, at least if the employee is on the
employer’s premises or using an instrument or property of the employer. An
employer’s duty of care requires that an employer who knows of an
employee's dangerous propensities control the employee so he or she will not
injure third parties.
Rausch v. Pocatello Lumber Co., 14 P.3d 1074, 1080 (Idaho Ct. App. 2000) (internal
citations omitted). Stevens asserts that the reports Rachel and Susan Stokes made to
BYU-I about the relationship between Rachel and Stokes put BYU-I on “notice of
Stokes’ dangerous propensities toward grooming behavior and inappropriate relationships
with female students.” Dkt. 30-2, at 29. Stevens then alleges, that despite this notice,
MEMORANDUM DECISION AND ORDER – PAGE 6

BYU-I failed “to control or properly supervise Stokes so that he did not commit tortious
acts against Stevens,” and in doing so breached the duty of care it owed to Stevens. Id.
A. Rule 16 Good Cause Standard
The Court first considers whether Stevens has shown good cause under Rule 16 to
justify allowing her to add these two new claims. See Johnson, 975 F.2d at 609. As
explained below, the Court finds Stevens has not established such good cause to add
either the negligence per se claim or the negligent supervision claim.
1. Negligence Per Se Claim
The Court agrees with BYU-I that Stevens has known since before this lawsuit
was filed of facts that would give rise to the negligence per se claim. Stevens asserted
multiple times in her Amended Complaint that Stokes held himself out as her counselor.
Dkt. 4, ¶ 23 (“Stokes advocated for Stevens at school and told other [sic] he was her
advisor, counselor, and friend.”); ¶ 34 (“Stokes spent a great deal of time with Stevens in
his office discussing her past of traumatic physical and sexual abuse, and the disabilities
that she suffered as a result of her trauma, taking on a role as a counselor.”); ¶ 81
(“Stokes had authority and power over Stevens as it related to her grades, disability
accommodation in his classes, as a teaching assistant, and in his declared role as her
counselor and patriarch.”). Stevens also alleged in her original and Amended Complaints
that Stokes performed “therapy” sessions with her and continually “insist[ed] on
providing ‘therapeutic’ rubbing and touching to ‘assist’ Stevens in managing her
anxiety.” Dkt. 1, ¶¶ 35, 38.

MEMORANDUM DECISION AND ORDER – PAGE 7

Despite these assertions, Stevens insists that she could not have brought “her
negligence per se claim against the Estate previously because, [until this point] it was
unclear that Stokes actually acted as and held himself out generally as a counselor to
multiple people including [Stevens’] medical providers and other female students.” Id.
The Court is not persuaded. Stevens has failed to cite legal authority to support the
conclusion that to be found negligent per se based on a violation of Idaho Code section
18-919 a defendant must have held himself out as a counselor to multiple people. If true,
the newly discovered facts—that Stokes told medical providers that he was Stevens’
counselor and that he held himself out as a counsel to other female students—would have
bolstered a negligence per se claim. However, Stevens was not foreclosed from asserting
the negligence per se claim by the designated deadline simply because she did not have
this new evidence. The record shows Stevens knew Stokes was holding himself out as her
counselor in his communications with her when Stevens filed her original and Amended
Complaints. This was enough knowledge to assert the negligence per se claim against the
Estate and Stevens’ failure to assert the claim earlier shows a lack of diligence.
Nevertheless, Stevens opines that she could not have asserted the negligence per
se claim against BYU-I earlier either. Stevens asserts that “until [she] had information
that BYU-I was aware of and condoned Stokes’ counseling sessions with other female
students prior to Plaintiff, [she] would have had difficulty tying in the necessary elements
for respondeat superior liability under her negligence per se claim.” Dkt. 38, at 4.
Stevens explains that, “by being put on notice about Stokes’ behavior and then allowing
him to continue to counsel female students subsequent to that notice, BYU-I implicitly
MEMORANDUM DECISION AND ORDER – PAGE 8

adopted those counseling sessions as within the scope of Stokes’ employment with BYUI.” Id. at 5. The Court again disagrees.
It is true that, “[u]nder the doctrine of respondeat superior, ‘an employer is liable
in tort for the tortious conduct of an employee committed within the scope of
employment.’” Nava v. Rivas-Del Toro, 264 P.3d 960, 964 (Idaho 2011) (quoting Finholt
v. Cresto, 155 P.3d 695, 698 (Idaho 2007)). “Scope of employment ‘refers to those acts
which are so closely connected with what the servant is employed to do, and so fairly and
reasonably incidental to it, that they may be regarded as methods, even though quite
improper ones, of carrying out the objectives of the employment.’” Id. (quoting Richard
J. & Esther E. Wooley Trust v. DeBest Plumbing, Inc., 983 P.2d 834, 837–38 (Idaho
1999)). An employer need not explicitly condone, implicitly adopt, or even have specific
knowledge of an employee’s wrongful conduct in order to held liable for that conduct
under a respondeat superior theory. Thus, Stevens did not need evidence that BYU-I had
adopted or condoned Stokes’ counseling of prior female students in order to assert this
negligence per se claim against BYU-I. Because Stevens knew Stokes was holding
himself out to her as a counselor well before the amendment deadline expired, she had
ample opportunity to investigate whether Stokes was acting within the scope of his
employment in doing so. Stevens could have discovered earlier whether Stokes’
counseling of Stevens was “closely connected with what [he was] employed to do,” or at
least “so fairly and reasonably incidental to” what he was employed to do that his
counseling “may be regarded as methods, even though quite improper ones, of carrying

MEMORANDUM DECISION AND ORDER – PAGE 9

out the objectives of [his] employment.” Id. Accordingly, the Court finds Stevens has not
shown good cause under Rule 16 to add a negligence per se claim to this suit.
2. Negligent Supervision Claim
The Court also finds that Stevens has failed to show good cause to add her
negligent supervision claim. BYU-I asserts a few reasons why the Court should decline to
find good cause to add this claim. First, BYU-I argues “Stevens and her attorney failed to
act diligently in locating Rachel.” Dkt. 34, at 10. Second, BYU-I argues “[t]he allegedly
‘new’ evidence from Rachel is merely corroborative and cumulative.” Id. The Court finds
it unnecessary to parse through the record and make a determination as to whether
Stevens acted diligently enough in locating and contacting Rachel.2 Rather, the Court
finds BYU-I’s second argument determinative.
BYU-I made two sub-points with regard to this second argument. First, BYU-I
points out that Stevens alleges that Stokes told her about his relationships with Rachel
and other students. Accordingly, BYU-I argues, because Stevens knew of these

2

Both sides make strong arguments on this point. BYU-I points out that Stevens knew Rachel’s
name, and the school she attended, long before she even filed this lawsuit, so locating her should
have been easy. Stevens explains that she did not know “Rachel’s current last name, and was
only aware of her prior last name, which was a very common name.” Dkt. 38, at 6. Moreover, at
some point Rachel moved out of state and Stevens “did not know to which state Rachel had
moved, [and] had no contact information for her.” Id. at 6–7. Eventually, Rachel initiated contact
with Stevens’ attorneys after they made several attempts to contact Rachel through other people.
Id. at 7. Finally, Stevens states that BYU-I named Rachel as a witness, but provided only
Rachel’s old address and phone number, “both of which were no longer good.” Id. at 6. Stevens
also asserts that both Defendants have been in contact with Rachel, so they must both have
current contact information for Rachel, which they had a duty to provide to opposing counsel. Id.
BYU-I, in response, contends that it has provided “full and complete responses to all of Stevens’
discovery requests” and that “Stevens has never once indicated . . . that she lacks [Rachel’s]
contact information because she has not, to date, requested that contact information.” Dkt. 34, at
13–14.

MEMORANDUM DECISION AND ORDER – PAGE 10

relationships, Stevens could have asserted or investigated this negligent supervision claim
earlier. The Court agrees with Stevens that her personal knowledge of these prior
relationships alone did not allow her to assert this claim earlier. Rather, it was only after
Stevens obtained evidence that BYU-I had notice of at least one of these earlier
relationships that she had grounds upon which to assert a negligent supervision claim. See
Rausch, 14 P.3d at 1080 (stating negligent supervision claim cannot succeed unless the
employer “knows of an employee’s dangerous propensities”).
Second, BYU-I contends that “Stevens could have included a Negligent
Supervision cause of action in either of her two prior complaints based upon BYU-I’s
purported failure to properly supervise Stokes after receiving notice of his relationship
with Stevens.” Dkt. 34, at 12. The Court agrees. Stevens alleges in her Amended
Complaint that she, along with Rachel, reported Stokes’ behavior to the following BYU-I
faculty members on June 8, 2016: Paul Roberts (Head of the Social Work Program);
Richard Whiting (faculty for the Social Work Program); and Nathan Meeker, (Chair of
the Sociology and Social Work Department). Dkt. 4, ¶¶ 51–56. These faculty members
then reported Stokes’ behavior to Steven Dennis (Chair of the Sociology and Social
Work Department). Id. at ¶ 58. Dennis emailed Stokes the next day to inform him that he
“had been reported as having an inappropriate relationship with a student and that all
contact with her must stop to avoid further action being taken.” Id. ¶ 60. These faculty
members took no other action to protect Stevens. Id. They did not report Stokes to the
Title IX Office or to the Dean. Id. Stevens then alleges that, thereafter, up until his death
about one month later, “Stokes continued to regularly sexually assault and batter [her] on
MEMORANDUM DECISION AND ORDER – PAGE 11

the BYU-I school campus and in her home.” Dkt. 4, ¶ 63. Thus, Stevens knew BYU-I
was on notice of Stokes “dangerous propensities” as of June 8, 2016, and failed to take
steps to supervise Stokes in order to protect Stevens from further harm. This was enough
information to permit Stevens to assert a negligent supervision claim in her original or
Amended Complaint. The new information Stevens has recently learned about BYU-I’s
knowledge of Rachel’s relationship with Stokes would then have bolstered the negligent
supervision claim. Stevens did not respond to this argument in her reply brief. Therefore,
the Court finds Stevens was not diligent in asserting her negligent supervision claim and,
accordingly, that she has failed to show good cause to add this claim six months after the
time for amending pleadings expired.
Because Stevens has not shown good cause under Rule 16, the Court need not
address which amendment would be just under Rule 15.
V. ORDER
THE COURT HEREBY ORDERS:
1. Stevens’ Motion for Leave to Amend Amended Complaint (Dkt. 30) is DENIED.

DATED: February 23, 2018
_________________________
David C. Nye
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER – PAGE 12