Nkemakolam et al v. St. John's Military School et al

Filing 81

MEMORANDUM AND ORDER granting in part and denying in part 63 Plaintiff's Motion for Leave to Amend to File Second Amended Complaint. Signed by Magistrate Judge Kenneth G. Gale on 8/20/2012. (aw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
YOLANDA NKEMAKOLAM, as Parent
and Next Friend of minor K.N., et al.

)
)
)
Plaintiffs,
)
)
vs.
) Case No. 12-cv-2132-JWL-KGG
)
ST. JOHN’S MILITARY SCHOOL, et al., )
)
Defendants.
)
___________________________________ )

ORDER ON PLAINTIFFS’ MOTION FOR LEAVE TO
AMEND TO FILE SECOND AMENDED COMPLAINT
This case is before the Court on Plaintiffs’ motion for leave to file a Second
Amended Complaint to add four additional Plaintiffs as well as two new causes of
action. (Doc. 63.) Having reviewed the filings of the parties, the motion is
GRANTED in part1 and DENIED in part.
BACKGROUND
Defendant St. John’s Military School is a private boarding school for
minors. In this action, a number of former students claim damages for personal
injuries suffered as a result of alleged physical and mental abuse by other students.
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Defendant does not object to Plaintiffs’ request to add four newly identified
Plaintiffs. This portion of Plaintiffs’ motion is, therefore, GRANTED as uncontested.

Plaintiffs claim that in some instances the acts were performed at the direction or
under the observation of school employees. Plaintiffs allege negligent supervision,
intentional failure to supervise, intentional infliction of emotional distress or
outrage, negligent infliction of emotional distress, breach of fiduciary duty
(alleging failure to discharge loco parentis responsibilities), and civil conspiracy of
assault and battery. The allegations of abuse are generally and specifically denied
by Defendants.
DISCUSSION
A.

Standard of Review.
Federal Rule 15(a) provides, in pertinent part, that “a party may amend its

pleading only with the opposing party’s written consent or the court’s leave.” In
the absence of any apparent or declared reason, such as undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment, leave to
amend should be freely given, as required by the federal rule. Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
A court is justified in denying a motion to amend as futile if the proposed
amendment could not withstand a motion to dismiss or otherwise fails to state a
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claim. Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); see 6 Wright, Miller
& Kane, FEDERAL PRACTICE AND PROCEDURE § 1487 at 642 (1990). Defendants
argue that Plaintiffs’ two proposed causes of action are futile. Thus, the Court
must determine whether they could withstand a motion to dismiss.
In light of two recent Supreme Court cases, the Tenth Circuit has restated the
standard for ruling on motions to dismiss under Fed. R. Civ. P. 12(b)(6), and now
looks at what is described as a “plausibility” standard:
Turning to our standard of review and applicable legal
principles involving motions to dismiss, we review de novo a
district court's denial of a motion to dismiss a complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. See Dias v. City and County of Denver, 567 F.3d 1169,
1178 (10th Cir.2009); Gann v. Cline, 519 F.3d 1090, 1092
(10th Cir.2008); Alvarado v. KOB-TV, LLC, 493 F.3d 1210,
1215 (2007). ‘We assume the truth of all well-pleaded facts in
the complaint, and draw reasonable inferences therefrom in the
light most favorable to the plaintiff[ ].’ Dias, 567 F.3d at 1178
(alteration added). This assumption, however, is inapplicable
when the complaint relies on a recital of the elements of a cause
of action supported by mere conclusory statements. See
Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009).
* * * *
In reviewing a motion to dismiss, it is important to
note ‘Federal Rule of Civil Procedure 8(a)(2) provides
that a complaint must contain 'a short and plain statement
of the claim showing that the pleader is entitled to
relief.’’ Robbins v. Oklahoma, 519 F.3d 1242, 1246
(10th Cir.2008). In the past, we ‘generally embraced a
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liberal construction of [this] pleading requirement,’ and
held ‘a complaint containing only conclusory allegations
could withstand a motion to dismiss unless its factual
impossibility was apparent from the face of the
pleadings....’ Id. However, the Supreme Court has
recently ‘clarified’ this standard, stating that ‘to
withstand a motion to dismiss, a complaint must contain
enough allegations of fact ‘to state a claim to relief that is
plausible on its face.’’ Id. at 1247 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). Specifically, ‘[f]actual
allegations must be enough to raise a right to relief above
the speculative level,’ Twombly, 550 U.S. at 555, so that
‘[t]he allegations must be enough that, if assumed to be
true, the plaintiff plausibly (not just speculatively) has a
claim for relief.’ Robbins, 519 F.3d at 1247. Under this
standard, ‘a plaintiff must nudge his claims across the
line from conceivable to plausible in order to survive a
motion to dismiss.’ Smith, 561 F.3d at 1098. Therefore,
a plaintiff must ‘frame a ‘complaint with enough factual
matter (taken as true) to suggest’ that he or she is entitled
to relief.’ Robbins, 519 F.3d at 1247 (quoting Twombly,
550 U.S. at 556).
On the other hand, we have also held ‘granting a
motion to dismiss is a harsh remedy which must be
cautiously studied, not only to effectuate the spirit of the
liberal rules of pleading but also to protect the interests of
justice.’ Dias, 567 F.3d at 1178 (quotation marks and
citation omitted). ‘Thus, ‘a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof
of those facts is improbable, and that a recovery is very
remote and unlikely.’ ’ Id. (quoting Twombly, 550 U.S.
at 556).
In discussing the sufficiency of a complaint's
allegations, we look to two Supreme Court decisions,
Twombly and Iqbal, which provide the determinative test
for whether a complaint meets the requirements of
Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6) for
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assessing whether it is legally sufficient to state a claim
for which relief may be granted.
Phillips v. Bell, No. 08-1042, 2010 WL 517629, * 3, 4 (10th Cir., 2010). The
burden is on Defendant to establish the futility of Plaintiffs’ proposed amendment.
Pekareck v. Sunbeam Products., No. 06-1026-WEB, 2006 WL 1313382, at *3 (D.
Kan. May 12, 2006).
As stated above, Defendant argues that the proposed amendment is futile
because 1) potential Defendant Andrew England is statutorily immune from the
proposed claims and 2) an independent tort for spoliation of evidence is not
recognized by Kansas law. (See generally Doc. 65.) The Court will address both
issues in turn.
B.

Statutory Immunity.
Plaintiffs seek to add a causes of action for failure to supervise and breach of

fiduciary duty against potential Defendant Andrew England, President of
Defendant St. John’s Military School. (Doc. 63-1, at 28-29, 32-33.) Plaintiffs
allege that England intentionally failed to supervise and “control the conduct” of
students at the school. (Id.)
Defendants argue the proposed causes of action against England are futile
because he has immunity under the Coverdell Teacher Protection Act of 2001, 20
U.S.C. § 6731, et seq. (Doc. 65, at 4-8.) The Act provides immunity for teachers
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who, in acting within the scope of his/her employment or responsibilities, acts “in
furtherance of efforts to control, discipline, expel, or suspend a student or maintain
order or control in the classroom or school.” 20 U.S.C. § 6736(a).
Plaintiffs do not contest the fact that St. John’s is a “school” or that England
is a “teacher” as those terms are defined by the Act. 20 U.S.C. §§ 6736(4), (6).
Rather, Plaintiffs argue that the Act does “not apply to harm caused by ‘willful or
criminal misconduct, gross negligence, reckless misconduct, or a conscious,
flagrant indifference to the rights or safety of the individual harmed.’” (Doc. 71, at
2.) The Court acknowledges that this is a specifically-stated exception to
immunity under the Act.
The Court does not agree, however, that Plaintiffs’ proposed Amended
Complaint contains sufficient factual allegations to plausibly support a claim for
willful, criminal, grossly negligent, reckless, or flagrantly indifferent behavior by
the proposed Defendant. In the proposed Amended Complaint, Plaintiffs allege
that England “was aware of the dangerous propensities” of some of the students at
St. John’s. (Doc. 63-1, at 28.) Plaintiffs further allege that England “affirmatively
represented to C.D.’s mother that he would protect C.D. and he would not be
harmed. Instead of protecting him, the same night as he made the representation,
C.D. was taken, held down and branded against his will.” (Id., at 29, 32.)
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As stated previously, a plaintiff must “frame a ‘complaint with enough
factual matter (taken as true) to suggest’ that he or she is entitled to relief.”
Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). The facts
contained in Plaintiffs’ proposed Amended Complaint relating to the potential
claims against England do not meet this threshold. Thus, Plaintiffs’ motion to
amend is DENIED in regard to the proposed claims against Andrew England.
C.

Spoliation.
Plaintiffs have proposed adding an additional cause of action – the tort of

spoliation of evidence. (See Doc. 63-1, at 34-35.) The factual allegations contained
in Plaintiffs’ proposed Amended Complaint state that Defendants had a “duty to
preserve all evidence” related to the lawsuit but “affirmatively told individuals to
destroy relevant evidence.” (Id., at 24.) Further, Plaintiffs allege that “[e]ven after
ordering the information be destroyed,” Defendants “intentionally took possession
of third party phones and deleted information off of the phones that were [sic]
relevant to the lawsuit.” (Id.) Plaintiffs allege that “[d]estruction of first hand
video and pictures related to the abuse of the Plaintiffs will make it more difficult
for Plaintiffs to prove their lawsuit.” (Id.)
Defendant correctly states that an independent cause of action for spoliation
has not been specifically recognized under Kansas law. (Doc. 65, at 8-9.) As such,
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Defendant argues that this amendment should be denied as futile. (Id.)
The Kansas Supreme Court most recently addressed this issue in Superior
Boiler Works, Inc. v. Kimball, et al., 292 Kan. 885, 259 P.3d 676 (2011). The
Court in Superior Boiler Works analyzed the prior Kansas Supreme Court decision
of Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987). In
rejecting a spoliation cause of action, Koplin quoted a dissenting opinion from a
Florida appellate court decision, which stated that recognizing an independent tort
for spoliation
runs counter to the basic principle that there is no
cognizable independent action for perjury, or for any
improper conduct even by a witness, much less by a
party, in an existing lawsuit. Were the rule otherwise,
every case would be subject to constant retrials in the
guise of independent actions.
734 P.2d at 1183 (quoting Bondu v. Gurvich, 473 So.2d 1307, 1313-1314 (Fla.
Dist. Ct. App. 1984) (internal citation omitted) (Schwartz, dissenting).
The Koplin Court also enumerated the following reasons for rejecting the
tort:
(1)

‘the generation of endless litigation (as recognized
by Chief Judge Schwartz in Bondu)’;

(2)

‘inconsistency with the intent of the workers’
compensation laws’;

(3)

‘rank speculation as to whether the plaintiff could
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have ever recovered in the underlying action and,
if so, the speculative nature of the damages’;
(4)

‘the limitless scope of the new duty which would
be created’; and

(5)

‘the unwarranted intrusion on the property rights
of a person who lawfully disposes of his own
property.’

Superior Boiler Works, 259 P.3d at 683 (quoting Koplin, 734 P.2d at 1183).
Thereafter, the Koplin Court specifically held “that absent some independent tort,
contract, agreement, voluntary assumption of duty, or special relationship of the
parties, the new tort of ‘the intentional interference with a prospective civil action
by spoliation of evidence’ should not be recognized in Kansas.” 734 P.3d at 1183.
Koplin did not, however, involve the situation – present in the matter before the
Court – in which “defendants or potential defendants in the underlying case
destroyed the evidence to their own advantage.” Id., at 1182.
The court in Superior Boiler Works was also not presented with that
scenario. In that case, “the spoliation claim . . . [was] made by a defendant in the
underlying suit against a potential codefendant in the underlying suit.” 259 P.3d at
686. Although not recognizing a cause of action for spoliation, that decision was
also narrowly tailored to apply only to potential “claims by a defendant against
codefendants or potential codefendants, including potential indemnitors under a
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theory of comparative implied indemnification.” Id., at 690.
Plaintiffs in the present matter advance the Kansas District Court case of
Foster v. Lawrence Memorial Hospital, which held that “the Supreme Court of
Kansas would recognize the tort of spoliation under some circumstances,” 809
F.Supp. 831, 838 (D. Kan. 1992) (emphasis in original), particularly where a
special relationship exists between the parties. (Doc. 71, at 3-4.) Plaintiffs
contend that the “special relationship,” and resulting duty, present in Foster
emanated from a “physicians [sic] requirement to maintain medical records . . . .”
(Doc. 71, at 4.) Plaintiffs argue that Defendant St. John’s duty in the present case
“was created a number of ways”:
First, counsel for St. John’s affirmatively represented to
the Court that St. John’s was informed not to destroy any
evidence that could lead to the discovery of admissible
evidence, thus it affirmatively assumed the duty.
Additionally, as a private boarding school, a special
relationship exists between Plaintiffs and St. John’s and
St. John’s owed Plaintiffs a duty to protect the evidence
that could be used in this litigation.
(Id., at 6.)
The Court is not persuaded by Plaintiffs’ arguments. First, parties to
litigation are routinely “informed not to destroy any evidence.” Acknowledging
awareness of this is not, in and of itself, sufficient to establish the kind of duty
necessary to create an independent cause of action for spoliation. If it was, the
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cause of action would be available to virtually all litigants. Second, Plaintiffs do
not elaborate as to what “special relationship” exists between the parties as a result
of Defendant being a “private boarding school” or how such a relationship relates
in any way to a duty to protect evidence. Plaintiffs’ statement is entirely
conclusory.
Even without proper discussion by Plaintiffs, it is obvious to the Court that
Defendant, as a private boarding school, unquestionably has a “special
relationship” with its students. That relationship also creates a duty (typically
established by state or federal statute or regulation) for Defendant to maintain
certain documents and information relating to the education and/or well-being of
its students. That legal duty to maintain certain information regarding its students
is , however, thoroughly irrelevant to the information at issue here – photographs
or video footage taken and stored on the cell phones of other students.
In reaching this conclusion, the Court is not condoning the alleged behavior.
‘No one doubts that the intentional destruction of
evidence should be condemned. Destroying evidence can
destroy fairness and justice, for it increases the risk of an
erroneous decision on the merits of the underlying cause
of action. Destroying evidence can also increase the
costs of litigation as parties attempt to reconstruct the
destroyed evidence or to develop other evidence, which
may be less accessible, less persuasive, or both. That
alone, however, is not enough to justify creating tort
liability for such conduct.’
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Superior Boiler Works, 259 P.3d at 688-689 (citing Cedars-Sinai Medical Center,
954 P.2d 511 (1998)). This reasoning is equally sound under the circumstances
presented by the parties.
Furthermore, the addition of this claim in the present case would not be
logically useful. Presumably the required injury element of a spoliation tort would
be the loss of the primary claim caused by a failure of proof because of the
destroyed evidence. However, if the Plaintiffs fail to prove the existence and
content of alleged destroyed evidence, thus losing their primary claim, the proof of
the spoliation tort would also fail. If the existence and content of the destroyed
evidence was proved, as would be required for the spoliation tort, its proof would
be equally availing for the primary claim, thus no injury would result from the
spoliation.
Rather than recognizing an entirely new cause of action, the Court finds that
a jury instruction regarding spoliation of evidence (and the resulting inferences to
be drawn against the party allegedly destroying the evidence) would adequately
redress any damage to Plaintiffs should the District Court find it appropriate for
trial. See generally Oldenkamp v. United American Ins. Co., 619 F.3d 1243 (10th
Cir. 2010). Thus, Plaintiffs’ motion to amend is DENIED in regard to an
independent cause of action for spoliation.
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IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Doc. 63) is
GRANTED in regard to the addition of four Plaintiffs.
IT IS FURTHER ORDERED that Plaintiff’s motion is DENIED in regard
to the inclusion of causes of action against potential Defendant Andrew England as
well as an independent cause of action for spoliation.
IT IS SO ORDERED.
Dated this 20th day of August, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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