Nine v. Wentzville R-IV School District et al

Filing 164

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that defendant's motion for summary judgment [Doc. # 150 ] is denied. IT IS FURTHER ORDERED that plaintiff's motion to strike defendant's motion for summary judgment [Doc. # 159 ] is denied as moot.. Signed by District Judge Carol E. Jackson on 6/26/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY DOE NINE,
Plaintiff,
vs.
MICHAEL D. WILLIAMS,
Defendant.

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Case No. 4:11-CV-353 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion for summary judgment
based on his assertion that plaintiff’s claims are time-barred. In response, plaintiff
moves to strike the motion for failing to comply with the requirements of Local Rule
4.01. She argues in the alternative that material factual disputes preclude summary
judgment.
I.

Background

In this action, filed on February 24, 2011, plaintiff Mary Doe Nine alleges that
former music teacher defendant Michael Williams sexually assaulted her during the
1990-91 school year, when she was an elementary school student in the Wentzville R-IV
school district.1 She brings claims pursuant to 42 U.S.C. § 1983, negligent infliction of
emotional distress, battery, and statutory childhood sexual abuse, pursuant to §
537.046, Mo.Rev.Stat. Plaintiff, who was born in 1982, has alleged that she repressed
her memories of the assaults until 2009.

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Judith Tindall, Ph.D., completed a

Plaintiff also named as defendants principal Richard Beauchamp, teacher Mrs.
Null, and the Wentzville R-IV school district. The Court granted the motion for judgment
on the pleadings of defendants Beauchamp and Null, and granted defendant Wentzville’s
motions for summary judgment. Williams is the sole remaining defendant.

psychological evaluation of plaintiff in February and March 2011, and testified at
deposition that plaintiff did not recall the sexual abuse until 2009.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v.
Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.

Discussion

This court applies Missouri law governing statutes of limitation to plaintiff’s statelaw claims. Walker v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011). Under Missouri
law, the statute of limitations is an affirmative defense that must be proved by the party

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asserting it. Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576 (Mo. 2006)
(en banc). Where relevant facts are uncontested, the statute of limitations issue can be
decided by the court as a matter of law. Id. “However, when contradictory or different
conclusions may be drawn from the evidence as to whether the statute of limitations has
run, it is a question of fact for the jury to decide.” Lomax v. Sewell, 1 S.W.3d 548,
552–53 (Mo. Ct. App. 1999).
The limitations period applicable to plaintiff’s claim of statutory childhood sexual
abuse is set forth in Mo.Rev.Stat. § 537.046, which provides:
Any action to recover damages from injury or illness caused by childhood
sexual abuse in an action brought pursuant to this section shall be
commenced within ten years of the plaintiff attaining the age of twentyone or within three years of the date the plaintiff discovers, or reasonably
should have discovered, that the injury or illness was caused by childhood
sexual abuse, whichever later occurs.
§ 537.046.2 (emphasis added).
The previous version of § 537.046.2, enacted in 1990, reads the same, except
that it required a plaintiff to bring the action no later than five years after the plaintiff’s
18th birthday or three years after discovery of the injury, whichever was later. Walker,
650 F.3d at 1206. A claim that was time-barred under the prior version was not revived
when the statute was amended. Doe v. Roman Catholic Diocese of Jefferson City, 862
S.W.2d 338, 341 (Mo. 1993) (en banc) (once original statute of limitation expires,
defendant acquires a vested right to be free from suit).

Under the prior version,

plaintiff’s claim would have expired in 2005, five years after her 18th birthday. Because
the statute was amended in 2004, before the expiration of her claim, she is entitled to
the benefit of the more generous time periods of the current statute. See Powel, 197
S.W.3d at 585 n.4 (special sexual abuse statute applies to claims for which limitations
period had not yet expired when statute passed); Straub v. Tull, 128 S.W.3d 157, 162-

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63 (Mo. Ct. App. 2004) (new statute of limitations took effect before expiration of claims
and statutory period was extended). Thus, plaintiff had until she turned 31 in 2013 to
bring this claim. Because she filed suit in 2011, the childhood sexual abuse claim is not
time-barred.
Plaintiff’s other claims are subject to shorter limitations periods. The statute of
limitations for claims brought under 42 U.S.C. § 1983 is five years. See Walker v.
Barrett, 650 F.3d 1198, 1205 (8th Cir. 2011) (§ 1983 borrows state’s personal injury
statute of limitations; Mo.Rev.Stat. § 516.120(4) imposes five-year statute of limitations
for personal injury). The two-year statute of limitations contained in § 516.140 applies
to plaintiff’s claims of battery, Drury v. Missouri Youth Soccer, 259 S.W.3d 558, 576
(Mo. Ct. App. 2008), and negligent infliction of emotional distress, Ridder v. Hibsch, 94
S.W.3d 470, 472 (Mo. Ct. App. 2003) (two-year statute applies where claims for
intentional and negligent infliction of emotional distress are dependent upon the same
conduct as the battery claim). Claims governed by these statutes of limitations accrue
not “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.” §
516.100 (emphasis added). If a cause of action accrues before the plaintiff reaches the
age of 21, the statute of limitations is automatically tolled until the plaintiff turns 21. §
516.170; Dempsey v. Johnston, 299 S.W.3d 704, 706 (Mo. Ct. App. 2009). Plaintiff’s
21st birthday was in 2003 and, barring other circumstances, her claims would have
expired before she filed suit in 2011.
The Missouri Supreme Court has described the “capable of ascertainment” test
as “objective.”

Powel, 197 S.W.3d at 584.

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

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the extent of the damages.” Id.

In cases involving sexual abuse, the “capable of

ascertainment” standard “has special application to cases of repressed memory ” of the
sexually abusive conduct. Id.
If the memory of the wrong was repressed before the victim had notice
both that a wrong had occurred and that substantial damage had resulted,
or before the victim knew sufficient facts to be put on notice of the need
to inquire further as to these matters, then the claim would not yet have
accrued at the time that the victim repressed his or her memory of the
events. From that point forward, until the memories were regained, while
the victim might have suffered damage, the victim would not have
sufficient notice to have a duty to inquire further. Only when he or she
regained the repressed memories would the victim for the first time have
“reason to question” defendant’s conduct and have information sufficient
“to place a reasonably prudent person on notice of a potentially actionable
injury.”
Id.
Plaintiff alleges that she repressed the memory of the facts underlying her claims
until 2009 and has submitted expert testimony in support of that claim. Thus, there is
a factual dispute regarding when the negligent infliction, battery and § 1983 claims
accrued. As such, summary judgment may not be entered.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment [Doc.
#150] is denied.
IT IS FURTHER ORDERED that plaintiff’s motion to strike defendant’s motion
for summary judgment [Doc. #159] is denied as moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of June, 2013.

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