Doe et al v. Williamsburg Independent School District
Filing
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MEMORANDUM OPINION & ORDER: the Defendants Motion for Leave to File a Third Party Complaint 37 is DENIED. Signed by Judge Gregory F. VanTatenhove on 5/2/2016.(JMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
JOHN and JANE DOE, as the parents, next
friends, and natural guardians of Mary Doe, a
minor,
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Plaintiffs,
V.
WILLIAMSBURG INDEPENDENT
SCHOOL DISTRICT, et al.,
Defendants.
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No. 6:15-cv-75-GFVT-HAI
MEMORANDUM OPINION
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ORDER
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This matter is before the Court on the Defendants’ Motion for Leave to File a Third Party
Complaint. [R. 37.] Defendants Williamsburg Independent School District, Dennis W. Byrd,
and Gary Peters seek permission from the Court to file a third party complaint naming Mr. John
Massey and Mrs. Jane Doe as third party defendants. For the following reasons, the Court
DENIES the Defendants’ motion.
I
The above-styled action concerns the alleged sexual abuse of Mary Doe, a student at
Williamsburg Independent School District (“WISD”), by Mr. John Massey, a WISD assistant
football coach. 1 [R. 1.] Plaintiffs John and Jane Doe bring this lawsuit as the parents, next
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Proposed third party defendant Jane Doe challenges the sufficiency of the third party complaint
under a Rule 12(b)(6) motion to dismiss standard. See discussion at 4-6, supra. Accordingly, the
Court construes the proposed third party complaint—which incorporates by reference the
complaint filed at R. 1—in the light most favorable to the proposed third party plaintiffs. See,
e.g., League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
friends, and natural guardians of their minor daughter Mary. The complaint names as
Defendants Mr. Dennis W. Byrd, in his individual and official capacity as Superintendent of
WISD; Mr. Gary Peters, in his individual and official capacity as Principal of WISD; and the
Williamsburg Independent School District. [Id.]
According to the facts set forth in the complaint, Mary Doe served as an athletic trainer
for the WISD football team during the summer between her freshman and sophomore years of
high school. Towards the beginning of her sophomore year of high school, Coach Massey
allegedly began sexually abusing Mary. The Plaintiffs claim that in September 2014 Principal
Peters, Superintendent Byrd, and WISD learned and/or formed a reasonable suspicion that
Massey was abusing Mary. The Defendants held a meeting with Massey during which Massey
denied the allegations of sexual abuse. Subsequently, the Defendants did not investigate the
allegations further and did not report the allegations to the proper authorities pursuant to KRS §
620.030. [Id. at 2-3.] Further, in December 2014 Plaintiff Jane Doe was asked to telephone a
WISD employee to discuss “rumors” that Massey was involved sexually with Mary. The
Defendants banned Massey from any further school functions, but they again failed to report the
alleged sexual abuse pursuant to KRS § 620.030. [Id. at 3.]
As a result of the Defendants’ alleged reporting and investigatory failures, the Plaintiffs
filed suit against the Defendants on behalf of their daughter Mary. They allege constitutional
violations pursuant to 42 U.S.C. § 1983 and KRS Chapter 344, et seq., as well as statutory
violations of Title IX, 20 U.S.C. § 1681, and KRS
§ 344.555. [Id. at 3-6.] They seek civil
damages as a result of the Defendants’ criminal liability pursuant to KRS § 446.070. [Id. at 6-7.]
They also state a claim for negligent and grossly negligent supervision, retention, and
investigation against WISD for its supervision and retention of Coach Massey. [Id. at 7-8.]
2
The Defendants have filed a motion for leave to file a third party complaint, naming Jane
Doe and John Massey as Defendants. [R. 37.] The Defendants maintain Jane Doe and John
Massey contributed to or caused Mary Doe’s injuries; therefore, they seek indemnity and
contribution from them pursuant to KRS § 411.182, Kentucky’s statute governing the
apportionment of liability. [R. 37-2; R. 37-3 4.] The Plaintiffs oppose the Defendants’ motion.
II
Third party practice is governed by Federal Rule of Civil Procedure 14, which instructs
that a defending party may serve a complaint on a nonparty “who is or may be liable to it for all
or part of the claim against it.” Fed. R. Civ. P. 14(a)(1). The defendant, or third party plaintiff,
must obtain the Court’s leave if it fails to assert the third party claim within fourteen days of its
original answer. Id. Whether to grant a motion for leave to file a third party complaint is a
matter purely within the discretion of the district court. See General Elec. Co. v. Irvin, 274 F.2d
175, 178 (6th Cir. 1960). Relevant factors for the district court to consider include balancing
“the avoiding of duplicative litigation [with] ensuring that parties already before the Court
receive reasonably expeditious adjudication.” Diar v. Genesco, Inc., 102 F.R.D. 288, 290 (N.D.
Ohio 1984). The Sixth Circuit has also indicated the timeliness of the motion for leave to file is
an “urgent factor governing the exercise of such discretion.” Irvin, 274 F.2d at 178. Further, a
third party complaint is permitted “only when the third party plaintiff is attempting to transfer
liability for the plaintiff’s claim against him.” Baker v. Pierce, 812 F.2d 1406 (6th Cir. 1987).
“An impleader claim is proper only to assert that the third-party defendant is liable to the party
impleading it (usually the defendant).” MOORE’S FED. PRACTICE, CIVIL § 1404 (2007).
As an initial matter, Plaintiff Jane Doe argues the Defendants need not attempt to add her
as a third party defendant because she is already a party to the action. The proper mechanism to
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assert a cause of action against her, she contends, is through a counterclaim pursuant to Federal
Rule of Civil Procedure 13. [See R. 38 at 1.] Mrs. Doe, however, is not a party to the lawsuit in
her individual capacity. She appears only as the parent, next friend, and natural guardian of her
minor daughter, Mary. [See R. 1.] As the lawsuit currently stands, the Defendants could assert
counter-claims only against Mary, and not against Jane Doe individually. See Morgan v. Potter,
157 U.S. 195, 198 (1895) (“It is the infant, and not the next friend, who is the real and proper
party. The next friend, by whom the suit is brought on behalf of the infant, is neither technically
nor substantially a party, but resembles an attorney, or a guardian ad litem, by whom a suit is
brought or defended in behalf of another.”) Procedurally, then, the Defendants’ attempt to assert
a third party complaint against Doe instead of an ordinary counterclaim is appropriate.
Nevertheless, Doe opposes the Defendants’ motion on another ground—namely, that the
Defendants’ proposed third party complaint is implausible on its face and fails to survive the
federal pleading standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). [See R. 38 at 2-4.] She maintains the Defendants have
not explained how she could possibly be liable to them and that the proposed third party
complaint should be denied as futile. [Id.]
Courts consider the futility of a proposed amended complaint when ruling on a motion
for leave to amend pursuant to Federal Rule of Civil Procedure 15. See Foman v. Davis, 371
U.S. 178, 182 (1962); Fed. R. Civ. P. 15(a). 2 Similarly, a court may consider the futility of a
proposed third party complaint under Rule 14 to determine whether to exercise its discretion and
allow the third party complaint to proceed. See Budsgunshop.com, LLC v. Security Safe Outlet,
Inc., No. 5:10-cv-00390-KSF, 2012 WL 1899851, at *8 (E.D. Ky. May 23, 2012); In re Yahama
2
A proposed amendment is futile if it would not survive a Rule 12(b)(6) motion to dismiss. Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
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Motor Corp. Rhino ARV Products Liability Litigation, No. 3:09-MD-2016-JBC, 2009 WL
2241599, at *2 (W.D. Ky. July 24, 2009) (finding a court may consider whether the proposed
third party complaint “would prejudice the plaintiff, unduly complicate the trial, or would foster
an obviously unmeritorious claim”); Trane U.S. Inc. v. Meehan, 250 F.R.D. 319, 322 (N.D. Ohio
2008). Here, the Court agrees with Mrs. Doe that the futility of the proposed third party
complaint warrants dismissal of the Defendants’ motion.
The Defendants maintain the proposed third party defendants Jane Doe and John Massey
negligently and/or intentionally caused Mary Doe’s injuries and that Doe and Massey are liable
to the Defendants for indemnity and contribution. [R. 37-3.] However, the Defendants have
failed to demonstrate how Doe and Massey could be liable to them based on the Plaintiffs’
claims. The Defendants rest on KRS § 411.182 as support for their claims of indemnity and
contribution. This Kentucky statute pertains to the allocation of fault in tort actions, and the
majority of the Plaintiffs’ claims do not sound in tort. See KRS § 411.182; [R. 1.] The first three
claims are constitutional or statutory claims outside the stated scope of KRS § 411.182—the
Plaintiffs assert a violation of Mary’s constitutional rights pursuant to 42 U.S.C. § 1983 and KRS
Chapter 344, et seq.; a violation of Title IX (20 U.S.C. § 1681) and KRS § 344.555; and a claim
for civil damages based on the Defendants’ alleged violation of criminal statutes pursuant to
KRS § 446.070. [R. 1.] On the whole, the Defendants do not explain how KRS § 411.182,
which governs the apportionment of liability in tort claims, supports their alleged right to
contribution and indemnity for these statutory causes of action.
Moreover, while the Sixth Circuit has not specifically addressed the issue, see Coleman v.
Casey Cnty. Bd. of Educ., 686 F.2d 428, 429 n. 1 (6th Cir. 1982), the prevailing view is that no
right to indemnification or contribution exists under § 1983. See, e.g., Allen v. City of Los
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Angeles, 92 F.3d 842, 845 n. 1 (9th Cir. 1996); Harris v. Angelina Cnty., 31 F.3d 331, 338 n. 9
(5th Cir. 1994); Frantz v. City of Pontiac, 432 F. Supp. 2d 717, 722 (E.D. Mich. 2006); Hughes
v. Adams, No. 5:06-cv-p176-R, 2007 WL 3306076 (W.D. Ky. Nov. 6, 2007); Hart v. City of
Williamsburg, No. 6:04-321-DCR, 2005 WL 1676894, at *3 (E.D. Ky. July 16, 2005). Similar
to the statutory language of § 1983, Title IX does not explicitly provide for a right to indemnity
or contribution. See 20 U.S.C. § 1681. The same holds true for the statute statutes referenced in
the Plaintiffs’ complaint. See KRS Chapter 344, et seq. (Kentucky civil rights statutes); KRS §
344.555 (statutory prohibition against sex discrimination by any educational program receiving
state financial aid); KRS § 446.070 (statute governing civil recovery for statutory violations).
The proposed third party claim for indemnity or contribution on these causes of action could not
survive a Rule 12(b)(6) motion to dismiss. See Rose, 203 F.3d at 420.
Unlike the constitutional and statutory violations set forth in Counts I through III,
however, Count IV of the complaint does set forth a tort claim. [See R. 1 at 7.] The Plaintiff
alleges WISD owed its students a duty to act as a reasonably prudent school district in regard to
its supervision, retention, and investigation of assistant football coach John Massey. [Id.] But
even if the proposed third party defendants could ultimately be found liable to the Defendants for
indemnity or contribution on this claim under KRS § 411.182, additional concerns persuade the
Court to deny the Defendants’ motion.
The Court may exercise discretion to deny a motion for leave to file a third party
complaint where granting the motion could “unduly complicate the trial” or prejudice the
plaintiff. See, e.g., In re Yamaha, 2009 WL 2241599, at *2. The record indicates that Plaintiff
and proposed third party defendant Jane Doe has already taken the depositions of the Defendants
and other key parties. [See R. 30; R. 31; R. 32; R. 33.] At the time, she presumably did not
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anticipate the need to ask questions and elicit testimony for the purpose of preparing her own
defense in this action. Further, while some time remains before the scheduled trial date of March
14, 2017, the action has been pending now for almost one year and began nearly eleven months
prior to the Defendants’ instant motion. [See R. 1; R. 34.] With discovery already underway and
a majority of the proposed third party claims found to be outright futile, the Court will exercise
its discretion to deny the Defendants’ motion in its entirety.
III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
that the Defendants’ Motion for Leave to File a Third Party Complaint [R. 37] is DENIED.
This the 2nd day of May, 2016.
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