A.P. v. Blue Springs School District et al
Filing
44
ORDER denying 26 Motion to Dismiss for Failure to State a Claim. Signed on 10/7/15 by District Judge Stephen R. Bough. (Amos, Gloria)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
AP by and through her Next Friend
ANGELA VEACH
Plaintiff,
v.
BLUE SPRINGS SCHOOL DISTRICT,
DOUGLAS NIELSEN, SETH SHIPPY,
DONNA SHEEHY, AUBREY TSVEIS
AND CHERYL HUGHES
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil No. 4:15-cv-00331-SRB
ORDER
Before the Court is Defendant Blue Springs School District’s Partial Motion to Dismiss
Plaintiff AP’s Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. #26).
Defendant seeks dismissal of Count I—Negligent Supervision, Count II—Negligent Infliction of
Emotional Distress, and Count VI—Breach of Fiduciary Duty. For the reasons stated herein, the
motion is DENIED.
I.
BACKGROUND
On April 6, 2015, Plaintiff filed its complaint in the Circuit Court of Jackson County,
Missouri, naming Blue Springs School District (herein “District”), Douglas Nielsen (hereinafter
“Nielsen”), Seth Shippy (hereinafter “Shippy”), and Jane Doe 1 (an unidentified schoolteacher)
as defendants. Defendants District, Nielsen, and Shippy removed the case to federal court on
May 4, 2015, pursuant to 28 U.S.C. §1441(c)(A). On June 5, 2015, Defendants District, Nielsen
and Shippy filed a joint motion to dismiss. On July 20, 2015, Plaintiff filed a motion to amend
her complaint. On July 24, 2015, the Court granted Plaintiffs motion to amend and denied
Defendants motion to dismiss without prejudice.
Plaintiff filed her amended complaint on July 25, 2015. Defendants filed their joint and
separate answer including affirmative defenses on July 29, 2015. District filed its motion for
partial dismissal on July 29, 2015. Plaintiff filed her motion for leave to file a second amended
complaint on September 15, 2015, which the Court granted. The second amended complaint was
filed on September 16, 2015, which added Donna Sheehy, Aubrey Tsveis, and Cheryl Hughes as
Defendants. On September 19, 2015, District filed its reply in support of its motion for partial
dismissal.
II.
LEGAL AUTHORITY
District brings its motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which states a
claim may be dismissed for “failure to state a claim upon which relief can be granted.” “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal citations omitted);
Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015); Hamilton v. Palm, 621 F.3d 816, 817
(8th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678; Ash v. Anderson Merchs., LLC, No. 14–3258, 2015 WL
4978701, at *1 (8th Cir. 2015).
The court “must take all factual allegations [made by the plaintiff] as true when
considering a motion to dismiss.” Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986,
995 (8th Cir. 2007); Data Mfg., Inc. v. United Parcel Service, Inc., 557 F.3d 849, 851 (8th Cir.
2
2009) (noting “[t]he factual allegations of a complaint are assumed true and construed in favor of
the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable”).
However, factual allegations which represent “legal conclusions or formulaic recitation of the
elements of a cause of action . . . may properly be set aside.” Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 677) (internal citations omitted).
The pleading standard “does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555) (internal quotations omitted); see, e.g., Ritchie v. St. Louis Jewish
Light, 630 F.3d 713, 717 (8th Cir. 2011) (finding the district court appropriately granted a
motion to dismiss where “facts pleaded in [plaintiff’s] complaint [did] not permit [the court] to
infer more than the mere possibility of misconduct”). The “evaluation of a complaint upon a
motion to dismiss is a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Braden, 588 F.3d at 594 (internal citations omitted).
“[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each
allegation, in isolation, is plausible.” Id.; see also Zoltek Corp. v. Structural Polymer Group, 592
F.3d 893, 896 n. 4 (8th Cir. 2010) (noting the court’s task “is to review the plausibility of the
plaintiff's claim as a whole, not the plausibility of each individual allegation”).
III.
DISCUSSION
District moves to dismiss three counts in AP’s Second Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). District argues sovereign immunity precludes Count
I—Negligent Supervision, Count II—Negligent Infliction of Emotional Distress, and Count VI—
Breach of Fiduciary Duty.
Plaintiff’s complaint alleges that “Defendant District has an insurance policy which will
3
result in the waiver of sovereign immunity.” (Doc. #41, ¶ 53). “An allegation that a public entity
waived its sovereign immunity through the purchase of liability insurance is sufficient to state a
claim for waiver, despite the absence of an allegation that the insurance policy did not include an
endorsement exempting coverage for liability barred by sovereign immunity.” White v. Jackson,
No. 4:14CV1490 HEA, 2015 WL 1189963, at *7 (E.D. Mo. Mar. 16, 2015). District does not
challenge the sufficiency of Plaintiff’s complaint on this issue. Rather, District argues Plaintiff’s
allegation is wrong and that an insurance policy District attached to its answer proves such.
Thus, the Court initially notes that Plaintiff sufficiently alleges a claim for waiver.
District argues its insurance policy preserves its sovereign immunity, which bars
Plaintiff’s claims. District attaches to its answer, and asks the Court to consider, the alleged
insurance policy. Plaintiff argues “the insurance document used by Defendant to support its
motion to dismiss is not mentioned or relied upon by Plaintiff in Plaintiff’s Complaint,” and is
outside the pleadings. (Doc. #38, p. 7).
“In addressing a motion to dismiss, the court may consider the pleadings themselves,
materials embraced by the pleadings, exhibits attached to the pleadings and matters of public
record.” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011) (internal quotations omitted).
“Documents necessarily embraced by the pleadings include ‘documents whose contents are
alleged in a complaint and whose authenticity no party questions, but which are not physically
attached to the pleading.’” Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir.
2012) (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir. 2003)). “[M]ost
courts . . . view ‘matters outside the pleading[s]’ as including any written or oral evidence in
support of or in opposition to the pleading that provides some substantiation for and does not
merely reiterate what is said in the pleadings.” Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th
4
Cir. 2014) (quoting BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 687 (8th Cir. 2003))
(concluding a document was embraced by plaintiff’s amended complaint where plaintiff
specifically quotes the document); see, eg., Jenisio v. Ozark Airlines, Inc. Ret. Plan for Agent &
Clerical Emps., 187 F.3d 970, 972 (8th Cir. 1999) (finding that a district court may consider
documents outside of the pleadings on a motion to dismiss where “plaintiffs’ claims are based
solely on the interpretation of the documents and the parties do not dispute the actual contents of
the documents”). “[T]he court has complete discretion to determine whether or not to accept any
material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion.” Stahl
v. U.S. Dep’t of Agric., 327 F.3d 697, 701 (8th Cir. 2003). However, “[t]he court generally must
ignore materials outside the pleadings.” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079
(8th Cir. 1999).
Plaintiff alleges in her complaint, “Defendant District has purchased liability insurance
covering the types of claims made herein,” and “Defendant District has an insurance policy
which will result in the waiver of sovereign immunity.” (Doc. #41, ¶¶ 6, 53). The insurance
agreement is incidental to Plaintiff’s claims, and Plaintiff did not attach the document to her
complaint. Instead, District attached its alleged MOPERM Insurance Policy to its answer “in
opposition to the [complaint].” Plaintiff’s complaint does not, therefore, embrace the insurance
agreement District attached to its answer. Plaintiff does not specifically quote from the
document, Plaintiff does not base her claim “solely on the interpretation of the document[],” and
the parties dispute the authenticity and completeness of the document. BJC Health Sys., 348 F.3d
at 687; Jenisio, 187 F.3d at 972. Thus, the Court finds that the insurance policy is a document
outside the pleadings, and the policy will not be considered for purposes of this motion.
5
Even if the Court considered the insurance policy as part of the pleadings, the Court still
cannot examine the document because Plaintiff disputes its authenticity. Ashanti, 666 F.3d at
1151. District did not submit an affidavit authenticating the insurance policy, but instead relied
only upon an unattested certification of “Mike McCray of MOPERM” and District’s claim in its
answer that a true and accurate copy of the Memorandum of Coverage is attached to its answer.
(Doc. #42, p. 4); see Life Investors Ins. Co. of Am. v. Fed. City Region, Inc., 687 F.3d 1117,
1121–22 (8th Cir. 2012) (requiring that in order for a document to be considered “[it] must be
authenticated by and attached to an affidavit made on personal knowledge setting forth such facts
as would be admissible in evidence . . .”). Further, it is inappropriate for the Court to resolve the
applicability of the insurance policy at the motion to dismiss stage, particularly where there are
factual questions as to the authenticity and completeness of a document. For the reasons stated
above, Defendant’s motion to dismiss is denied.
IV.
CONCLUSION
Accordingly, it is hereby
ORDERED Defendant Blue Springs School District’s Partial Motion to Dismiss (Doc.
#26) Plaintiff AP’s Second Amended Complaint is DENIED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: October 7, 2015
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?