R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, et al

Filing 33

R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, et al

Doc. 33

Case 2:04-cv-02338-RSM

Document 33

Filed 04/28/2005

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1 2 3 4 5 6 7 8 KENNETH FLEMING and JOHN DOE, 9 Plaintiffs, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Defendants Corporation of the President of The Church of Jesus Christ of Latterday Saints and LDS Family Services ( defendants ) respond to plaintiffs Amended Complaint as follows: 1. Answering paragraph 1.1 of plaintiffs Amended Complaint, defendants v. THE CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, a/k/a "MORMON CHURCH"; LDS SOCIAL SERVICES a/k/a LDS FAMILY SERVICES, a Utah corporation, Defendants. DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT No. CV4-2338-M UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

admit that Kenneth Fleming and John Doe, R.K. and T.D. at one time were believed to have resided in Kent, Washington, where one or both of their parents also resided. Except as expressly admitted herein, defendants are without present knowledge or
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 1 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Dockets.Justia.com

Case 2:04-cv-02338-RSM

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information sufficient to form a belief as to the truth or falsity of the remaining allegations contained herein, and therefore deny the same. 2. Answering paragraph 1.2 of plaintiffs Amended Complaint, defendants

admit that Kenneth Fleming and John Doe were at one time members of the Church of Jesus Christ of Latter-day Saints ( LDS Church ) and resided within the Kent Second Ward. Except as expressly admitted herein, defendants are without present knowledge or information sufficient to form a belief as to the truth or falsity of the remaining allegations contained herein, and therefore deny the same. 3. Answering paragraph 1.3 of plaintiffs Amended Complaint, defendants

admit that the Corporation of the President of the Church of Jesus Christ of Latter-day Saints is a Utah corporation sole; admits that it is registered to do business, and does business, in the State of Washington. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 4. Answering paragraph 1.4 of plaintiffs Amended Complaint, defendants

admit that one of the ecclesiastical offices of the LDS Church is that of President and Prophet, and that said person possesses and exercises the authority commensurate with that office as defined by the doctrines and beliefs of the LDS Church. Defendants admit that the current President of the LDS Church is Gordon B. Hinckley. Defendants admit that the Corporation of the President of The Church of Jesus Christ of Latter-day Saints is registered to do business and does business in the State of Washington. Except as expressly admitted herein, any other allegations contained in said paragraph are denied.

DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 2 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

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5.

Answering paragraph 1.5 of plaintiffs Amended Complaint, defendants

admit that the LDS Church functions geographically based upon the designations of wards and stakes, which are geographically delineated. Defendants admit that there is also a geographic designation of area which is used for certain ecclesiastical administration purposes. Defendants admit that the LDS Church uses the designations of bishops, stake presidents, and area presidents; and admit that wards, stakes, and areas, as those terms are used within the LDS Church are not corporate entities. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 6. Answering paragraph 1.6 of plaintiffs Amended Complaint, defendants

admit that the religious doctrine of tithing is a part of the belief and doctrine of the LDS Church and that all members of the church are invited to practice this doctrine. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 7. Answering paragraph 1.7 of plaintiffs Amended Complaint, defendants

are without present knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained therein, and therefore deny the same. 8. Answering paragraph 1.8 of plaintiffs Amended Complaint, defendants

admit that LDS Social Services, now known as LDS Family Service, is an LDS Churchaffiliated social service organization, but is a corporate entity separate from defendant Corporation of the President of The Church of Jesus Christ of Latter-day Saints, and is also separate from the unincorporated association herein denominated as the LDS Church. Defendants further admit that LDS Family Services has state licensed social
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 3 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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service personnel on its staff and that some members of the staff of LDS Family Services believe the teachings of the Church of Jesus Christ of Latter-day Saints. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 9. Answering paragraph 1.9 of plaintiffs Amended Complaint, defendants

admit that LDS Family Services is and was a Utah corporation whose principal place of business is Salt Lake City, Utah. Defendants further admit that said corporation has offices in various geographic areas. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 10. Answering paragraph 1.10 of plaintiffs Amended Complaint, defendants

deny the same. 11. Answering paragraph 1.11 of plaintiffs Amended Complaint, defendants

admit that certain individuals employed by LDS Family Services may fall within the written definition of mandatory reporters as set forth in RCW 26.44.030. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 12. In answering paragraph 1.12 of plaintiffs Amended Complaint, defendants

admit that Herman M. Allenbach, as a male member of the church, participated in the lay priesthood of the church, as that term is defined and understood within the LDS Church, and that Mr. Allenbach had been a high priest, a counselor to the bishopric of the Kent Second Ward, and a scout leader. Defendants further admit that Herman M. Allenbach was an oral surgeon who maintained a practice in Kent, Washington. Except as expressly admitted herein, defendants are without present knowledge or information
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 4 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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sufficient to form a belief as to the truth or falsity of the remaining allegations contained therein, and therefore deny the same. 13. Answering paragraph 1.13 of plaintiffs Amended Complaint, defendants

admit that Herman M. Allenbach died on or about March 6, 2000. 14. Answering paragraph 1.14 of plaintiffs Amended Complaint, defendants

admit that Randy Borland, Phillip Coleman and Richard Petitt have served as bishops in the Kent Second Ward. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 15. Answering paragraph 1.15 of plaintiffs Amended Complaint, defendants

admit that Jack Allen Loholt, aka Jack Allen Onefrey, (hereinafter Loholt ) has been convicted of a crime in the State of Washington; has been a member of the LDS Church; and that, as a male member of the church, he participated in the lay priesthood of the church, as that term is defined and understood within the LDS Church. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 16. Answering paragraph 2.1 of plaintiffs Amended Complaint, defendants

admit that this Court has jurisdiction of the subject matter, subject to the constraints of the First Amendment of the Constitution of the United States, and Article I, Section II of the Constitution of the State of Washington, and of the parties hereto. Except as

expressly admitted herein, any other allegations contained in said paragraph are denied.

DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 5 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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17.

Answering paragraph 3.1 of plaintiffs Amended Complaint, defendants

admit that persons who are baptized and confirmed into the LDS Church are members of the church. Defendants further admit that various LDS Church ecclesiastical

authorities, in the practice of their religious beliefs and responsibilities, attempt to guide and encourage church member in their service in the church. Except as expressly admitted herein, any other allegations in said paragraph are denied. 18. Answering paragraph 3.2 of plaintiffs Amended Complaint, defendants

admit that male members of the LDS Church may be eligible for ordination to the lay priesthood of the church beginning at age 12; admit there are different offices in the priesthood with different responsibilities, and that eligible members of the church must meet the standards of worthiness, as that term is doctrinally defined by the church, before being ordained into an office of the priesthood. Defendants further admit that the offices of Elder and High Priest (in the Melchizedek Priesthood), are offices in the lay priesthood of the LDS Church. Except as expressly admitted herein, any other

allegations contained in said paragraph are denied. 19. Answering paragraph 3.3 of plaintiffs Amended Complaint, defendants

deny the same. 20. Answering paragraph 3.4 of plaintiffs Amended Complaint, defendants

admit that the LDS Church is and has been for an extended period of time one of many sponsoring organizations for the Boy Scouts of America. Except as expressly admitted herein, any other allegations contained in said paragraph are denied. 21. Answering paragraphs 3.5, 3.6 and 3.7 of plaintiffs Amended Complaint,

defendants admit that at various times LoHolt was involved in the scouting program in
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 6 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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the Kent 2nd Ward.

Except as expressly admitted, defendants are without present

knowledge or information sufficient to form a belief as to the truth or falsity of the remaining allegations contained therein, and therefore the same are denied. allegation that Loholt and Allenbach were Mormon priests is expressly denied. 22. Answering paragraphs 3.8, 3.9 and 3.10 of plaintiffs Amended Complaint, The

defendants deny the same. 23. In answering paragraphs 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18 and

3.19 of plaintiffs Amended Complaint, defendants are without present knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained therein, and therefore deny the same. 24. Answering paragraph 4.1 of plaintiffs Amended Complaint, defendants

incorporate herein by reference their responses to plaintiffs previous allegations, as though fully set forth herein. 25. Answering paragraphs 4.2, 4.3, 4.4, 4.5 and 4.6 of plaintiffs Amended

Complaint, defendants deny the same. 26. Answering paragraph 4.7 of plaintiffs Amended Complaint, defendants

admit that the LDS Church has promulgated general guidelines to assist members in helping victims of sexual abuse and sex offenders. Except as expressly admitted

herein, any other allegations contained in said paragraph are denied. 27. In answering paragraphs 4.8, 4.9, 4.10 and 4.11 of plaintiffs Amended

Complaint, defendants deny the same. 28. Answering paragraph 4.12 of plaintiffs Amended Complaint, defendants

deny the same. Further, defendants affirmatively assert that exemplary damages are
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 7 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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not permissible in the State of Washington, and that exemplary damages are not recoverable in the above-captioned case pursuant to an order of the Court dated March 25, 2005. 29. Answering paragraph 5.1 of plaintiffs Amended Complaint, defendants

incorporate herein by reference their responses to plaintiffs previous allegations, as though fully set forth herein. 30. Answering paragraphs 5.2 and 5.3 of plaintiffs Amended Complaint,

defendants deny the same. 31. Answering paragraph 6.1 of plaintiffs Amended Complaint, defendants

incorporate herein by reference their responses to plaintiffs previous allegations, as though fully set forth herein. 32. Answering paragraph 6.2 of plaintiffs Amended Complaint, defendants

deny the same. 33. Answering paragraph 7.1 of plaintiffs Amended Complaint, defendants

incorporate herein by reference those responses to plaintiffs previous allegations, as though fully set forth herein. 34. Answering paragraph 7.2 of plaintiffs Amended Complaint, defendants

deny the same. 35. Answering paragraphs 8.1, 8.2, 8.3, 8.4, 8.5 and 8.6 of plaintiffs Amended

Complaint, defendants deny the same. 36. Answering paragraph 9.1 of plaintiffs Amended Complaint, defendants

respond that said paragraph makes no allegations against these defendants. To the extent that an answer is required, defendants deny the same and affirmatively assert
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 8 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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that punitive damages are not allowed under the laws of the State of Washington, and that punitive damages are not recoverable in the above-captioned case pursuant to an order of the Court dated March 25, 2005. AFFIRMATIVE DEFENSES For further answer, and by way of affirmative defenses, defendants allege as follows: 1. Failure to State a Claim. Plaintiffs Amended Complaint fails, in whole or

in part, to state a claim upon which relief can be granted. 2. 3. No Fiduciary Duty. Defendants owe no fiduciary duty to plaintiffs. Failure to Mitigate Damages. Plaintiffs have failed to mitigate or

minimize their damages, if any. 4. No Proximate Cause. Plaintiffs damages, if any, were proximately

caused by the acts or omissions of others over whom these defendants had no control or right of control. 5. Contribution. If liability is established, these defendants are entitled to

contribution from any party or non-party whose negligence may have contributed as a proximate cause to the injury complained of in plaintiffs Amended Complaint. 6. Contributory Fault / Apportionment. Pursuant to RCW 4.22.070(1),

damages are to be apportioned according to the relative fault of all at-fault entities. In accordance with CR 12(i), in to preserve all potential defenses, defendants identify Jack LoHolt aka Jack Onefrey, Herman Allenbach, and Dorothy Kelly as unnamed at-fault parties who these defendants claim, pursuant to RCW 4.22.070(1), as being at fault.

DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 9 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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Defendants reserve the right to identify other unnamed or as yet unidentified at-fault entities, if any, once such identity has become known to defendants. 7. No Punitive Damages. Plaintiffs claims for punitive damages has been

stricken pursuant to a Court order dated March 25, 2005, because such damages are not available under Washington law. Further, any award of punitive damages in this case would violate the constitutional safeguards provided to defendants under the applicable federal and state constitutional provisions, including due process. 8. limitations. 9. No Liability for Damages Resulting From Intentional Misconduct. Statute of Limitations. Plaintiffs claims are barred by the statute of

Defendants are not liable under the laws of the State of Washington for any of plaintiffs damages caused by the intentional acts of Jack LoHolt aka Jack Onefrey (or by the intentional acts of such other tortfeasors, if any), and all of plaintiffs damages resulting form such intentional acts and omissions must be segregated from damages that are negligent/fault-based, on the basis of the varying degrees of culpability and causation among the actors. 10. Intervening or Superseding Cause. Defendants are not liable under the

laws of the State of Washington based on an intervening or superseding cause. MATTERS OF AVOIDANCE 1. Freedom of Religion. To the extent that plaintiffs claims are based upon

these defendants exercise of their religious beliefs, they are barred by the defendants rights under the First Amendment to the United States Constitution, and by Article I, Section II, of the Constitution of the State of Washington.
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 10 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

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RESERVATION Defendants hereby reserve the right to assert such further and other affirmative defenses, avoidances, and to otherwise allege, admit, or deny as may be warranted by discovery. WHEREFORE, defendants pray for judgment as follows: 1. That plaintiffs take nothing by way of their Amended Complaint against

these defendants and that the Complaint be dismissed with prejudice; 2. That defendants, each of them, be granted their attorneys fees and costs

against plaintiffs; 3. That, pursuant to RCW 4.22.070, if liability were to be established against

these defendants (either or both of them), that each of defendants (either or both of them) be severally liable only for its share of fault, if any (pursuant to RCW 4.22.015); 4. That, pursuant to established law, plaintiffs damages caused by

intentional conduct be segregated from those damages, if any, caused by negligent/ at fault conduct; and 5. That defendants be given such other and further relief as the Court deems just and equitable.
DATED: April 28, 2005 s/ Thomas D. Frey via ECF Thomas D. Frey, WSBA #1908 E-mail: [e-mail] s/ Marcus B. Nash via ECF Marcus B. Nash, WSBA #14471 Email: [e-mail] STAFFORD FREY COOPER 601 Union Street, Suite 3100 Seattle, WA 98101 Telephone: [phone] Fax: [phone] Attorneys for Defendants
DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 11 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885

Case 2:04-cv-02338-RSM

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CERTIFICATE OF SERVICE I certify that on the date noted below I electronically filed Defendants Answer to Plaintiffs Amended Complaint using the CM/ECF system which will send notification of such filing to the following persons:

Michael T. Pfau Gordon Thomas Honeywell Malanca Peterson & Daheim 600 University Street, Suite 2100 Seattle, WA 98101-4185 Email: [e-mail] Attorneys for Plaintiffs Timothy D. Kosnoff Law Offices of Timothy D. Kosnoff 600 University Street, Suite 2100 Seattle, WA 98101 Email: [e-mail] Attorneys for Plaintiffs

DATED this 28th day of April, 2005, at Seattle, Washington.

/s/ Thomas D. Frey

DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 12 No. CV4-2338-M
U:\Clients\7566\25226\Pleadings\PLD Answer - Amended.doc

PROFESSIONAL CORPORATION

601 Union Street, Suite 3100 Seattle WA 98101.1374
TEL

206.623.9900

FAX

206.624.6885