Jensen v. United States Tennis Association et al

Filing 137

MEMORANDUM AND ORDER. Defendant United States Tennis Association's ("USTA") motion for summary judgment (doc. 110 ) is granted and defendant Flex Financial Holding Company's motion for summary judgment (doc. 112 ) is granted. Defendant USTA's unopposed motion for leave to file under seal (doc. 109 ) is now granted in its entirety and plaintiff's motion for leave to file under seal (doc. 132 ) is granted. Counsel directed to file forthwith requested document(s) with an event from the SEALED DOCUMENTS category. Signed by District Judge John W. Lungstrum on 5/9/2022. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Adrienne Jensen,
Plaintiff,
v.

Case No. 20-2422-JWL

United States Tennis Association
and Flex Financial Holding Company
d/b/a Kansas City Racquet Club,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Adrienne Jensen, a former tennis player, filed suit alleging that defendants
negligently failed to protect her from her former coach’s sexual abuse. This matter is
presently before the court on defendant United States Tennis Association’s (“USTA”)
motion for summary judgment (doc. 110) and defendant Flex Financial Holding
Company’s motion for summary judgment (doc. 112). As will be explained, both motions
are granted.1

Facts
The following facts are uncontroverted or related in the light most favorable to
plaintiff as the nonmoving party. Defendant USTA is the National Governing Body for

1

The court previously dismissed plaintiff’s claim against defendant USTA under the civil
liability provision of the Trafficking Victims Protection Reauthorization Act (“TVPRA”),
18 U.S.C. § 1595.

the sport of tennis in the United States. Membership in the USTA is required for players
who wish to compete in the Olympic Games and, because USTA maintains a national
ranking of tennis players, is required for playing in tournaments as well. Competitive
players are seeded in tournaments based on their USTA ranking. At the times pertinent to
this lawsuit, defendant Flex Financial Holding Company operated a tennis facility in
Merriam, Kansas known as Kansas City Racquet Club (hereinafter “KCRC”). Flex
Financial did not operate any facilities outside of Kansas. Plaintiff Adrienne Jensen, who
began playing tennis at a young age and had aspirations to play in the Olympics and at the
college level, was a member of the USTA and trained at KCRC.
In August 2009, plaintiff and her parents moved to the Kansas City area so that
plaintiff could train with a private tennis coach, Rex Haultain. Plaintiff, who was fourteen
years old, began training with Mr. Haultain that month at KCRC. Plaintiff trained with
Mr. Haultain five days each week at KCRC for several hours at a time. At some point,
plaintiff began traveling with Mr. Haultain for out-of-town tournaments. During this same
time frame, Mr. Haultain began texting plaintiff during non-practice times, often in the
evenings, to praise plaintiff’s tennis skills. These text messages increased in frequency
until he was texting plaintiff on a daily basis. In these text messages, Mr. Haultain praised
plaintiff’s body and appearance and told plaintiff that he loved her. Mr. Haultain made
increasing demands on plaintiff, including requesting nude photos and sexual favors from
her.
In May 2010, plaintiff and Mr. Haultain traveled to Las Vegas, Nevada for a
tournament. During the flight to Las Vegas, Mr. Haultain placed plaintiff’s hand on his
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penis multiple times. Plaintiff was “mortified” by Mr. Haultain’s conduct and took her
hand away, only to have Mr. Haultain place her hand back on his penis during the flight.
Plaintiff admits that this incident was the first instance of physical, sexual abuse by Mr.
Haultain. Plaintiff was fifteen years old at the time. In July 2010, plaintiff and Mr.
Haultain traveled to Alabama for a tournament. During that trip, Mr. Haultain sexually
abused plaintiff in a hotel room by massaging plaintiff and instructing her to remove her
bra during the massage. On other nights of the trip, he massaged her, held her in bed and
kissed her. During the summer and fall of 2010, Mr. Haultain touched plaintiff’s crotch
over her shorts at least thirteen times as they exited the tennis bubbles at KCRC and, on
some occasions during this time frame, he placed his hands underneath her shorts to touch
her as they exited the tennis bubble. On occasion, Mr. Haultain kissed plaintiff inside the
tennis bubble at KCRC.
In December 2010, plaintiff and Mr. Haultain traveled to Arizona for a tournament.
Mr. Haultain came into her hotel room and sexually assaulted plaintiff by, among other
things, digitally penetrating her vagina. Plaintiff reported Mr. Haultain’s abuse to her
parents in January 2011 and she stopped training with him at that time. Plaintiff reported
the abuse to one of her high school teachers in August 2011 and the abuse was then reported
to the police. Mr. Haultain was arrested in February 2013. He was ultimately sentenced
to 78 months imprisonment and deported.
Plaintiff alleges that defendants USTA and KCRC negligently failed to protect her
from Coach Haultain.

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Summary Judgment Standard
“Summary judgment is appropriate if the pleadings, depositions, other discovery
materials, and affidavits demonstrate the absence of a genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med–
Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ.
P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation
omitted). “The nonmoving party is entitled to all reasonable inferences from the record;
but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment
may be warranted if the movant points out a lack of evidence to support an essential
element of that claim and the nonmovant cannot identify specific facts that would create a
genuine issue.” Id. at 1143-44.
Where, as here, a defendant properly invokes and supports an affirmative defense
on summary judgment, that party is entitled to judgment as a matter of law unless the
plaintiff identifies a specific factual dispute material to that defense:
A defendant may use a motion for summary judgment to test an affirmative
defense which entitles that party to judgment as a matter of law. The
defendant making such a motion must demonstrate that no disputed material
fact exists regarding the affirmative defense asserted. If the defendant meets
this initial burden, the plaintiff must then demonstrate with specificity the
existence of a disputed material fact. If the plaintiff fails to make such a
showing, the affirmative defense bars his claim, and the defendant is then
entitled to summary judgment as a matter of law.
Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (citations omitted); see Robert L.
Kroenlein Trust ex rel. Alden v. Kirchhefer, 764 F.3d 1268, 1274 (10th Cir. 2014) (“The
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statute of limitations is an affirmative defense, so the defendant [moving for summary
judgment] bears the burden of demonstrating that there is no material fact in dispute on the
issue of whether the statute of limitations bars the claim.”).

Discussion
In their motions for summary judgment, defendants contend that plaintiff’s
negligence claims are barred by the applicable statute of limitations. In the alternative,
defendants contend that they owed no duty of care to plaintiff under applicable state laws.
As will be explained, the uncontroverted facts demonstrate that plaintiff’s negligence
claims are barred by the statute of limitations. The court, then, grants defendants’ motions
for summary judgment and declines to address defendants’ duty arguments.
Typically, a federal court sitting in diversity or exercising supplemental jurisdiction
over state law claims in a federal question lawsuit must apply the substantive law of the
state in which it sits. BancOklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089,
1103 (10th Cir. 1999) (The rule in diversity cases that the federal court “applies the
substantive law . . . of the forum state . . . also applies when a federal court exercises
supplemental jurisdiction over state law claims in a federal question lawsuit.”). This case,
however, was transferred to this court from the Western District of Missouri under 28
U.S.C § 1404(a). See Doc. 12. Thus, the law of the transferor court’s forum state—here,
Missouri—applies. See Van Dusen v. Barrack, 376 U.S. 612, 639 (1964).
Under Missouri law, a statute of limitations issue is procedural and, thus, governed
by Missouri law. Alvarado v. H&R Block, Inc., 24 S.W.3d 236, 241 (Mo. Ct. App. 2000).
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But when a cause of action “originates” in a state other than Missouri, Missouri applies the
foreign state’s statute of limitations through Missouri’s borrowing statute:
Whenever a cause of action has been fully barred by the laws of the state,
territory or country in which it originated, said bar shall be a complete
defense to any action thereon, brought in any of the courts of this state.
Id. at 241-42 (quoting Mo. Rev. Stat. § 516.190).2 As explained by the Missouri Court of
Appeals in Alvarado, the term “originated” as used in § 516.190 is synonymous with
“accrued” as used in § 516.100. Id. at 242. That section, in turn, provides:
[A] cause of action shall not be deemed to accrue when the wrong is done or
the technical breach of contract or duty occurs, but when the damage
resulting therefrom is sustained and is capable of ascertainment, and, if more
than one item of damages, then the last item, so that all resulting damage may
be recovered, and full and complete relief obtained.
Mo. Rev. Stat. § 516.100. In Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d
576 (Mo. 2006) (en banc), the Missouri Supreme Court described the “capable of
ascertainment” test as “objective.” Id. at 584. The court explained an injury is objectively
capable of ascertainment “when a reasonable person would have been put on notice that an
injury and substantial damages may have occurred and would have undertaken to ascertain
the extent of the damages.” Id. The parties agree that the foregoing framework applies to
the statute of limitations issue presented in defendants’ motions.

2

If the foreign state’s statute of limitations bars the action, Missouri’s borrowing statute
bars the action in Missouri as well. Alvarado, 24 S.W.3d at 242. In other words, the
borrowing statute constitutes a codification of a conflicts-of-law rule such that no
conflicts-of-law question is presented when § 516.190 is involved. Id. (citations
omitted).
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The parties diverge over the proper application of the “capable of ascertainment”
standard. Defendants assert that plaintiff’s injury was capable of ascertainment at the time
the abuse occurred. Defendant USTA contends, then, that plaintiff’s injury was capable of
ascertainment the first time that she was subjected to physical, sexual abuse by Mr.
Haultin—in May 2010, on the plane to Las Vegas when Mr. Haultain placed plaintiff’s
hand on his penis several times and she continually pulled her hand away. Defendant
KCRC contends that plaintiff’s injury was capable of ascertainment the only time when
Mr. Haultain sexually abused her at the KCRC facility—during the summer and fall of
2010. Plaintiff, on the other hand, insists that factual questions exist with respect to when
the damages sustained by plaintiff were capable of ascertainment. In the alternative,
plaintiff contends that her injury was capable of ascertainment at the time of the last
instance of abuse—in December 2010 in Arizona.
Defendants’ argument that plaintiff’s injury was capable of ascertainment at the
time the abuse occurred is clearly supported by Missouri law. Missouri courts have
consistently held that, in cases involving sexual abuse absent repressed memory of the
sexually abusive conduct, the injury is objectively capable of ascertainment, as a matter of
law, at the time of the abusive conduct itself. Walker v. Barrett, 650 F.3d 1198, 1204 (8th
Cir. 2011); State ex rel. Heart of Am. Council v. McKenzie, 484 S.W.3d 320, 324 (Mo.
banc 2016) (“Except in cases of repressed memory, damages are usually ascertainable at
the time of the tortious conduct, which normally is sufficient to place a reasonably prudent
person on notice of a potentially actionable injury.”).

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In Walker, the plaintiff alleged that his vocal music teacher in junior high and high
school sexually abused him beginning when he was 15 years old and continuing through
his high school years. 650 F.3d at 1201. The alleged abuse involved “fellatio, forced
fellatio, fondling, and masturbation.” Id. Just before his 31st birthday, the plaintiff filed
suit alleging, among other things, negligence claims against the school district and
principal.

Id. The district court dismissed the negligence claims as time-barred under

Missouri law, finding that the plaintiff’s claims were capable of ascertainment when he
was subjected to the sexual abuse—namely, the forced fellatio—beginning when he was
15 years old. Id. at 1202. On appeal, the plaintiff argued that, under Powel v. Chaminade
College Preparatory, Inc., 197 S.W.3d 576, 584–85 (Mo. 2006) (en banc), the statute of
limitations did not accrue at the moment of the “technical wrong” but from the time that
substantial injury has occurred and is capable of ascertainment. Id. at 1203. Stated another
way, the plaintiff argued that “the issue depends on whether the plaintiff’s damages—not
the wrongful act itself—were objectively capable of ascertainment.” Id. He urged that the
inquiry was fact intensive, especially because he had “assimilated the abuse as something
else” and “could not ascertain his damages until shortly before he filed the lawsuit.” Id.
The Eighth Circuit rejected the plaintiff’s argument and affirmed the district court’s
dismissal of the negligence claims as time barred. In doing so, the Circuit explained that
the rule set forth in Powel was limited to cases of repressed memory of the sexually abusive
conduct. Id. at 1204. The Circuit went on to explain that, absent repressed memory,
Missouri courts since Powel have held that an injury was objectively capable of
ascertainment, as a matter of law, at the time of the abusive conduct itself. Id. (citing State
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ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809 (Mo. 2008) (en banc); Dempsey
v. Johnston, 299 S.W.3d 704 (Mo. Ct. App. 2009)). Because the plaintiff in Walker did
not allege that he had repressed the memories of his teacher’s abuse, and because the
complaint (through its use of the phrase “forced fellatio”) implied that the plaintiff
understood the abuse to be wrong at the time it occurred, the Circuit held that the plaintiff’s
claims accrued at that time that abuse occurred, when he was 15 years old. Walker, 650
F.3d at 1205.
Plaintiff relies on Powel to suggest that it is the capability of ascertaining substantial
damage that begins the running of the statute of limitations. But plaintiff does not allege
that she repressed the memories of Mr. Haultain’s abuse and, as such, Powel clearly has no
application here. And, like the situation in Walker, it is clear that plaintiff understood on
the plane to Las Vegas that Mr. Haultain’s abuse was wrong at the time it occurred. She
admitted that she was “mortified” by his conduct and pulled her hand away. Plaintiff’s
damages, then, were capable of ascertainment in May 2010 on the trip to Las Vegas. 3 In
Nevada, the applicable statute of limitations on plaintiff’s negligence claims is two years
after reaching the age of eighteen. Nev. Rev. Stat. Ann. § 11.190(e). Plaintiff turned
eighteen in February 2013 and, accordingly, the statute of limitations on her negligence
claims expired in February 2015. Because she did not file her claims until June 2020, they
are clearly time barred via operation of Missouri’s borrowing statute.

3

The parties agree that the abuse that occurred on the flight is deemed to have occurred
in Nevada.
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Significantly, plaintiff does not dispute that her claims are barred under Nevada law.
And to the extent her claims against defendant KCRC necessarily accrued in Kansas, she
does not dispute that her claims are similarly barred under Kansas law. 4 Plaintiff was
sexually abused by Mr. Haultain in Kansas in the summer and fall of 2010. In Kansas, the
applicable statute of limitations on plaintiff’s negligence claims is three years after
reaching the age of eighteen. See K.S.A. § 60-523(a). The statute of limitations expired
on these claims in February 2016. Her claims that accrued in Kansas, then, are clearly
time-barred via Missouri’s borrowing statute.
To avoid this result, plaintiff sets forth an alternative argument—that her negligence
claims accrued in Arizona, where the statute of limitations still has not expired. Ariz. Rev.
Stat. § 12-514 (civil action arising from sexual contact or sexual conduct against a minor
must be commenced within 12 years after reaching the age of 18). In support of this
argument, plaintiff asserts that because she suffered repeated wrongful acts, Mo. Rev. Stat.
§ 516.100 dictates that her claim did not accrue until the last incident of abuse. See Mo.
Rev. Stat. § 516.100 (a cause of action is deemed to accrue when the damage resulting
from a breach “is sustained and is capable of ascertainment, and, if more than one item of
damage, then the last item, so that all resulting damage may be recovered, and full and
complete relief obtained.” (emphasis added)). This language codifies the “continuing

4

Because KCRC did not argue until its reply brief that plaintiff’s negligence claims
against it must have accrued in Kansas, plaintiff has not had an opportunity to address
that argument. But even assuming KCRC had a duty to protect plaintiff from abuse
outside its Kansas facility, plaintiff’s claims against it would be barred by Nevada’s
statute of limitations.
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wrong exception” to accrual, which applies when a wrong continues over a period of time.
See Sisson v. Patel, 2021 WL 4228343, at *6 (W.D. Mo. Apr. 7, 2021). Plaintiff cites no
Missouri case law applying the continuing damage rule in the context of a negligence
claim.
As plaintiff candidly admits, the only case she references in support of her § 516.100
argument is a case involving installment contracts. See Shawnee Bend Dev. Co. v. Lake
Region Water & Sewer Co., 419 S.W.3d 817 (Mo. Ct. App. 2013). While plaintiff asserts
that “there is nothing to suggest that” Missouri courts would not apply this clause outside
the installment contract context, the court in Shawnee Bend expressly stated that the
Missouri legislature included the clause for the purpose of avoiding a multiplicity of suits
in the installment contract context. Quoting the Missouri Supreme Court, the Shawnee
Bend court explained:
The legislature, probably for the purpose of avoiding a multiplicity of suits,
as we construe Section 516.100, has seen fit to provide that in suits upon
contracts where there is ‘more than one item of damage’ (installment) ‘the
cause of action shall not be deemed to accrue’ (for the purpose of certain
sections, including 516.110) until the last item of damage is sustained (last
installment becomes due) so that all damages (installments) ‘may be
recovered, and full and complete relief obtained’ in one action.
Id. at 826-27 (quoting Sabine v. Leonard, 322 S.W.2d 831, 838 (Mo. banc 1959)); see also
Ryerson v. Hemar Ins. Corp. of America, 200 S.W.3d 170, 173 (Mo. Ct. App. 2006) (“the
date that the statute of limitations commences to run on an installment note is the date the
last installment of the note is due”). And in Sabine, the Missouri Supreme Court expressly
“distinguished the question of when an action on a contract accrued from the accrual of an

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action resulting from a claim for personal injury.” Shawnee Bend, 419 S.W.3d at 827 n.10.
As explained by the Sabine court:
We recognize that in the personal injury case hereafter cited, the fact that it
became necessary to perform an operation upon the plaintiff three years after
the injury, was held (under Section 516.100) not to delay the commencement
of the limitation period, the court stating in the opinion that such matters were
‘but aggravating circumstances enhancing the legal injury already inflicted,
and constituting mere developments of such injury, and were not of a
character to delay the accrual of the cause of action.’ Allison v. Missouri
Power & Light Co., Mo. App., 59 S.W.2d 771, 773 (1933). However, that is
not the situation in the case at bar. Here, we do not have the mere
development of a cause of action.
Sabine, 322 S.W.2d at 838. Moreover, plaintiff makes no effort to reconcile her reading
of 516.100 with the sexual abuse cases analyzed by Missouri courts in which those courts
have uniformly held that, absent repressed memories, such claims accrue at the time the
abuse occurred. The court, then, rejects plaintiff’s argument that the Arizona assault was
a distinct item of damage which delayed the running of the statute of limitations under §
516.100. See Duvall v. Yungwirth, 613 S.W.3d 71, 77-80 (Mo. Ct. App. 2020) (continuing
wrong exception contained in § 516.100 did not delay accrual of plaintiffs’ negligence
claims against attorney; while plaintiffs may have suffered continuing damages, those
damages stemmed from negligent estate planning services in 2002).
For the foregoing reasons, plaintiff’s negligence claims against USTA accrued in
May 2010 in Nevada and her negligence claims against KCRC accrued in the summer or
fall of 2010 in Kansas. For all claims, the applicable statute of limitations was tolled until
plaintiff’s 18th birthday, in February 2013. Beginning from that date, plaintiff had two
years to file her claims against USTA, Nev. Rev. Stat. Ann. § 11.190(e), and three years to
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file her claims against KCRC. See K.S.A. § 60-523(a). Her complaint was not filed until
2020. The claims, then, are clearly time barred and both motions for summary judgment
are granted on this basis.
Two other motions are pending before the court. In connection with filing its motion
for summary judgment, defendant USTA moved to file certain exhibits under seal (doc.
109). To expedite the processing of the motion for summary judgment, the court granted
the motion in part and retained the motion under advisement in part, indicating that it would
resolve the sealing issue after a ruling on the merits of the motion for summary judgment.
To the extent that motion to file under seal remains under advisement, it is now granted in
its entirety. Plaintiff, in connection with her response to USTA’s motion for summary
judgment, also filed a motion for leave to file certain exhibits under seal (doc. 132) which
the court now grants. Because the court did not rely on any of these sealed documents
when it resolved the motions for summary judgment on the statute-of-limitations defense,
the need for public monitoring is nonexistent. Thus, the parties’ articulated interests in
confidentiality outweigh the need for public monitoring and the documents can remain
sealed. United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013); New Jersey & Div.
of Inv. v. Sprint Corp., 2010 WL 5416837, at *1 (D. Kan. 2010) (where court did not make
any decision with respect to sealed documents, need for public monitoring was nonexistent
and unsealing was unnecessary).

IT IS THEREFORE ORDERED BY THE COURT THAT defendant United
States Tennis Association’s (“USTA”) motion for summary judgment (doc. 110) is granted
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and defendant Flex Financial Holding Company’s motion for summary judgment (doc.
112) is granted.

IT IS FURTHER ORDERED BY THE COURT THAT defendant USTA’s
unopposed motion for leave to file under seal (doc. 109) is now granted in its entirety and
plaintiff’s motion for leave to file under seal (doc. 132) is granted.

IT IS SO ORDERED.

9th
Dated this _____ day of May, 2022, at Kansas City, Kansas.
s/ John W. Lungstrum
______________________________
John W. Lungstrum
United States District Judge

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