Braunesreither v. Keating
Filing
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ORDER granting in part and denying in part 5 Motion to Dismiss. Signed by Chief Judge Karen E. Schreier on 11/1/2012. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KIM BRAUNESREITHER,
Plaintiff,
vs.
WALTER KEATING, JR.,
Defendant.
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CIV. 12-4017-KES
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS
Defendant, Walter Keating, Jr., moves the court to dismiss Kim
Braunesreither’s complaint in its entirety. Docket 5. Keating argues that
Braunesreither’s claims for breaking and entering, burglary, and rape are not
valid civil causes of action under South Dakota law. Keating also argues that
Braunesreither’s claims for assault, battery, and false imprisonment are
barred by the applicable statutes of limitations. Braunesreither opposes the
motion. For the following reasons, Keating’s motion is granted in part and
denied in part.
FACTUAL BACKGROUND
The pertinent facts, according to the complaint (Docket 1), are as
follows:
Braunesreither is a resident of Yankton County, South Dakota. Keating
is a citizen of Canada.
Braunesreither alleges that on July 15, 2009, Keating forcibly entered
Braunesreither’s residence without her permission. Once in the residence,
Braunesreither alleges that Keating used force and threats of force to commit
acts of oral and vaginal penetration upon her and without her consent.
Keating also allegedly used force and threats of force to prevent
Braunesreither from leaving her residence. Because of these actions,
Braunesreither claims she suffers from severe anxiety, fear, and other
emotional and physical pain.
Braunesreither filed her complaint in this court on February 3, 2012.
STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
requires the court to review the complaint as a whole to determine whether the
plaintiff has stated a claim upon which relief can be granted. Braden v. WalMart Stores, Inc., 588 F.3d 585, 595 (8th Cir. 2009). The facts alleged in the
complaint must be considered true, and all inferences must be viewed in favor
of the nonmoving party. Strand v. Diversified Collection Serv., Inc., 380 F.3d
316, 317 (8th Cir. 2004). The Supreme Court has recently held that “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) (citation omitted). “A complaint
states a plausible claim for relief if its ‘factual content . . . allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct
alleged.’ ” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678)).
“As a general rule, the possible existence of a statute of limitations
defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the
complaint itself establishes the defense.” Joyce v. Armstrong Teasdale, LLP,
635 F.3d 364, 367 (8th Cir. 2011) (internal quotations omitted).
DISCUSSION
I.
Causes of Action
Keating argues that Braunesreither’s claims for breaking and entering,
burglary, and rape are not recognized civil causes of action under South
Dakota law.
Turning first to the breaking and entering claim, neither party has
provided authority on point. Likewise, the court did not find authority that
recognizes the existence of the tort of breaking and entering in South Dakota.
This, however, does not end the inquiry because the court finds that the
language in the complaint sounds in trespass. Under South Dakota law, “[o]ne
who intentionally and without a consensual or other privilege (a) enters land in
possession of another or any part thereof or causes a thing or third person so
to do, or (b) remains thereon is liable as a trespasser[.]” Benson v. State, 710
N.W.2d 131, 159 (S.D. 2006). The complaint states that “Keating did
unlawfully and without the Plaintiff’s consent forcibly entered [sic] the
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Plaintiff’s residence[.]” Docket 1 at ¶ 6. Therefore, the court finds that
Braunesreither has pleaded a trespass cause of action.
Keating also argues that South Dakota law does not recognize a civil
cause of action for burglary. Braunesreither did not respond to Keating’s
argument in her reply brief. In Leafgreen v. American Family Mut. Ins. Co., 393
N.W.2d 275, 276-77 (S.D. 1986), the South Dakota Supreme Court
characterized conduct that constituted criminal burglary as conversion. The
court agrees with Keating and concludes that South Dakota does not recognize
an independent tort of burglary, but instead the claim will be construed to be
one for conversion. Under South Dakota law, “[c]onversion is the unauthorized
exercise of control or dominion over personal property in a way that repudiates
an owner’s right in the property or in a manner inconsistent with such right.”
Chem-Age Indus., Inc. v. Glover, 652 N.W.2d 756, 766 (S.D. 2002).
Braunesreither did not plead any facts in her complaint that can be construed
to support a cause of action for conversion.
With regard to the rape claim, in Merkwan v. Leckey, 376 N.W.2d 52, 53
(S.D. 1985), the South Dakota Supreme Court treated the plaintiff’s rape claim
as if it were a claim of assault and battery for purposes of a statute of
limitations analysis. Again, Braunesreither has not offered the court any
authority that suggests that South Dakota recognizes the independent tort of
rape, and the court has not found such authority. Thus, the court concludes
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that South Dakota law does not recognize the tort of rape independent from
the traditional torts of assault and battery.
In light of the preceding discussion, Braunesreither’s remaining claims
are for assault, battery, false imprisonment, trespass, and intentional
infliction of emotional distress.
II.
Statute of Limitations Defense
Keating argues that Braunesreither’s claims of assault, battery, and
false imprisonment are barred by the statute of limitations. Assault, battery,
and false imprisonment have two-year statute of limitations periods. SDCL
15-2-15(1). Braunesreither alleges in her complaint that the facts that support
such claims occurred “on or about July 15, 2009.” Docket 1 at ¶4. This action
was commenced on February 3, 2012, over six months after the two-year
statute of limitations expiration date of July 15, 2011. Docket 1. Therefore,
Keating argues that Braunesreither’s claims of assault, battery, and false
imprisonment should be dismissed pursuant to Rule 12(b)(6). See Joyce v.
Armstrong Teasdale, LLP, 635 F.3d 364, 367 (8th Cir. 2011) (noting that a
statute of limitations defense is a ground for Rule 12(b)(6) dismissal only when
the complaint itself establishes the defense).
Braunesreither responds in two ways. First, Braunesreither argues that
the claims are of a personal injury nature and should be allowed to proceed
under the three-year statute of limitations for personal injury actions as set
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forth in SDCL 15-2-14. Second, Braunesreither argues that the two-year
statute of limitations period was tolled under SDCL 15-2-20 because Keating
was out of the state.
SDCL 15-2-14(3) provides a three-year statute of limitations period for
actions in personal injury, “except where, in special cases, a different
limitation is prescribed by statute.” Braunesreither argues that her claims of
assault, battery, and false imprisonment sound in personal injury and should
receive the statute of limitations period found in § 15-2-14(3). Braunesreither’s
argument fails because the language in § 15-2-14 makes it clear that the
three-year period does not apply in the special cases where there is a different
limitation prescribed by a separate statute. Here, such a statute exists. SDCL
15-2-15 provides a two-year statute of limitations period for “an action for
libel, slander, assault, battery, or false imprisonment.” SDCL 15-2-15(1).
Therefore, a two-year statute of limitations period applies to Braunesreither’s
claims for assault, battery, and false imprisonment.
Braunesreither also argues that the two-year statute of limitations
period should be tolled under SDCL 15-2-20, which provides that “if after
such cause of action shall have accrued, such person shall depart from and
reside out of the state, the time of his absence shall not be deemed or taken as
any part of the time limited for the commencement of such action[.]”
Braunesreither argues that because Keating is a resident of Canada, and for
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the majority of the statute of limitations period was in Canada, the limitation
period was tolled under SDCL 15-2-20.
The issue here is whether Braunesreither was required to plead tolling
in her complaint to avoid a Rule 12(b)(6) motion to dismiss. Because this is a
diversity case, this court applies South Dakota law to determine substantive
issues and federal law to determine procedural issues. Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 427 (1996). The rules governing the sufficiency
of pleadings are procedural in nature, and the court applies federal law to
determine the sufficiency of the pleadings here. Roberts v. Francis, 128 F.3d
647, 650-51 (8th Cir. 1997).
The Eighth Circuit Court of Appeals has previously been confronted with
the issue of whether a plaintiff is required to plead a basis for tolling in the
complaint but chose not to decide the issue. Jessie v. Potter, 516 F.3d 709,
713 (8th Cir. 2008) (“We will . . . leave to another day the question of whether
a Rule 12(b)(6) dismissal would also be proper when a plaintiff fails to plead a
basis for tolling in the complaint.”). In side-stepping the issue, the Eighth
Circuit recognized that “[b]ar by a statute of limitation is typically an
affirmative defense, which the defendant must plead and prove.” Id. at 713
n.2. Plaintiffs, on the other hand, are not required to anticipate defenses nor
are they required to attempt to defeat defenses in their pleadings. Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009) (“[A] plaintiff
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need not plead facts responsive to an affirmative defense before it is raised.”).
The Eighth Circuit has noted that “a district court may be required to hold an
evidentiary hearing on an equitable tolling claim” if the record has not been
developed. Lyons v. Potter, 521 F.3d 981, 983 (8th Cir. 2008). Lastly, the
Federal Rules of Civil Procedure only require that a complaint present “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8.
Courts in other circuits have examined whether a plaintiff is required to
plead facts that support the tolling of the statute of limitations. The Fifth
Circuit Court of Appeals has generally held that “[b]ecause the statute of
limitations is an affirmative defense and not a pleading requirement, it is an
issue that must be resolved through discovery and summary judgment or
trial.” Frame v. City of Arlington, 657 F.3d 215, 240 (5th Cir. 2011); see also
Richards v. Mitcheff, No. 11-3227, 2012 WL 3217627, at *1-*2 (7th Cir. Aug. 9,
2012) (“What a complaint must plead is enough to show that the claim for
relief is plausible. Complaints need not anticipate defenses and attempt to
defeat them.”). When discussing equitable tolling, the Ninth Circuit Court of
Appeals concluded that “the allegations of the complaint alone will not
properly yield a conclusion that equitable tolling does not apply.” Cervantes v.
City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993). The Ninth Circuit further
stated that the “sole issue is whether the complaint, liberally construed in
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light of our ‘notice pleading’ system, adequately alleges facts showing the
potential applicability of the equitable tolling doctrine.” Id.
The Fourth and Fifth Circuit Courts of Appeal have held that Rule
12(b)(6) dismissal based on the statute of limitations defense should only be
granted when the plaintiff, through his or her complaint, forecloses any
potential retort to a statute of limitations defense. See Goodman v. Praxair,
Inc., 494 F.3d 458, 466 (4th Cir. 2007); Jaso v. The Coca Cola Co., 435 Fed.
App’x 346, 352 (5th Cir. 2011). In summary, these courts have concluded that
a Rule 12(b)(6) dismissal based on a statute of limitations defense is rarely
appropriate, and when dismissal is appropriate, it is because the complaint
clearly shows that the statute of limitations defense is impenetrable.
Courts have applied a stricter test when the plaintiff’s claim sounds in
fraud and thus must meet the heightened pleading requirements of Rule 9(b).
See, e.g., Summerhill v. Terminix, Inc., 637 F.3d 877, 881 (8th Cir. 2011)
(“Under Rule 9(b)’s heightened pleading standard, allegations of fraud,
including fraudulent concealment for tolling purposes, must be pleaded with
particularity.”) (internal quotations omitted); Wasco Products, Inc. v. Southwall
Technologies, Inc., 435 F.3d 989, 991-92 (9th Cir. 2006); Guerrero v. Gates,
357 F.3d 911, 920 (9th Cir. 2004) (plaintiff’s equitable estoppel defense to
statute of limitations was barred where plaintiff failed to plead with
particularity any fraudulent behavior); Larson v. Northrop Corp., 21 F.3d 1164,
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1173 (D.C. Cir. 1994) (holding “allegations of fraudulent concealment, which
toll the statute of limitations, must meet the particularity requirements” of
Rule 9(b)). To ensure that its holding was only applicable in the limited
circumstances in which the Rule 9(b) heightened pleading standards exist, the
Ninth Circuit Court of Appeals stated “[w]e express no opinion as to pleading
requirements if the object of the conspiracy is non-fraudulent.” Wasco
Products, Inc., 435 F.3d at 992. Here, Braunesreither has not alleged a claim
for fraud in her complaint. As a result, the heightened pleading requirements
found in Rule 9(b) are not present. Thus, the court concludes that the cases
that require a plaintiff to affirmatively plead tolling are distinguishable from
the facts here.
In conclusion, the court finds that Braunesreither was not required to
plead tolling in her complaint. The complaint does not entirely foreclose the
possibility that Braunesreither can successfully rebut Keating’s statute of
limitations defense because the complaint includes an allegation that Keating
resides in Canada. More generally, a plaintiff is not required to anticipate
defenses and attempt to defeat them within the complaint. The burden is on
the defendant to prove a defense, including a statute of limitations defense.
Lastly, Braunesreither’s claims do not sound in fraud and are not subject to
heightened pleading requirements. As a result, Braunesreither was not
required to plead tolling in her complaint, and her claims for assault, battery,
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and false imprisonment are not subject to a Rule 12(b)(6) motion to dismiss
based on a statute of limitations defense.
Even if Braunesreither were required to plead tolling, the court finds
that she properly did so. The South Dakota Supreme Court has held that “the
defendant’s mere absence from the state does not activate the tolling
provisions of SDCL 15-2-20.” Openhowski v. Mahone, 612 N.W.2d 579, 582
(S.D. 2000). “The absence of the defendant from the state must be coupled
with the plaintiff’s inability to pursue [her] remedy because of the absence.” Id.
Keating argues that Braunesreither did not plead facts that showed her
inability to pursue her remedy as a result of Keating’s absence and, therefore,
did not satisfy her Rule 8 obligations.
Rule 8 does not require a plaintiff to plead specific facts explaining
precisely how the defendant’s conduct was unlawful. Braden, 588 F.3d at 595.
Therefore, Braunesreither is not required to plead specific facts explaining
precisely how the defendant’s conduct hampered her ability to pursue her
remedy. Rule 8 requires that the plaintiff merely “give the defendant fair notice
of what the claim is and the grounds upon which it rests.” Id. (citing Erickson
v. Pardus, 551 U.S. 89, 93 (2007)). In her complaint, Braunesreither indicated
that Keating is a citizen of Canada. Docket 1 at ¶2. The assertion that Keating
is a citizen of Canada put Keating on notice that he was plausibly absent from
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South Dakota during the limitations period, thus notifying him of the potential
applicability of the tolling provision found in SDCL 15-2-20.
III.
Intentional Infliction of Emotional Distress
Keating argues that Braunesreither’s complaint cannot support a
separate cause of action for intentional infliction of emotional distress solely to
circumvent the shorter limitations periods for assault, battery, and false
imprisonment. Because the court has already decided that Braunesreither’s
claims for assault, battery, and false imprisonment are not dismissed,
Keating’s argument is moot at this point in the litigation.
CONCLUSION
South Dakota law does not recognize the independent civil causes of
action for breaking and entering, burglary, or rape. Here, however,
Braunesreither’s complaint alleges the causes of action for assault, battery,
false imprisonment, intentional infliction of emotional distress, and trespass.
Braunesreither’s claims for assault, battery, and false imprisonment can
plausibly be tolled by SDCL 15-2-20 and should not be dismissed as a result.
Accordingly, it is
ORDERED that Keating’s motion to dismiss Braunesreither’s claims for
breaking and entering, burglary, and rape (Docket 5) is granted.
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IT IS FURTHER ORDERED that Keating’s motion to dismiss
Braunesreither’s claims for assault, battery, false imprisonment, and
intentional infliction of emotional distress (Docket 5) is denied.
Dated November 1, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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