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Doe v. USD No. 237

United States District Court, D. Kansas

September 1, 2017

JANE DOE, a minor individual, and ANGELA HARRISON, Jane Doe's Mother, as next friend of Jane Doe, Plaintiffs,
v.
USD No. 237, THE SMITH CENTER SCHOOL DISTRICT, and BROCK HUTCHINSON, Defendants.

          MEMORANDUM AND ORDER

          Teresa J. James, U.S. Magistrate Judge

         Plaintiff Angela Harrison commenced this action, on behalf of her minor child under the pseudonym Jane Doe, against USD No. 237, the Smith Center School District, and one of its teachers and coaches, Brock Hutchinson. Plaintiffs assert claims for hostile educational environment and retaliation against the School District, under Title IX of the Educational Amendments of 1972, [1] and claims against the School District and Hutchinson, under 42 U.S.C. § 1983. This matter is before the Court on Plaintiffs' Amended Motion for Leave to Amend Complaint (ECF No. 20) and Motion for Leave to Proceed by Pseudonym (ECF No. 36). Defendants oppose both motions, arguing that the proposed amendment is futile and that Doe, who has now reached the age of majority, has not demonstrated a need for privacy that outweighs the public's interest in open court proceedings to support her request to continue proceeding under a pseudonym.

         As explained below, Plaintiffs' Amended Motion for Leave to Amend Complaint is granted in part and denied in part. The Court concludes that it would be futile for Plaintiffs to amend their complaint to add their proposed claim for negligent supervision of children (Count VIII) against Defendant Hutchinson. The motion is otherwise granted. Doe's Motion for Leave to Proceed by Pseudonym is also granted.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On October 12, 2016, Plaintiffs submitted a five-page single-spaced letter titled “Notice of Claims Pursuant to K.S.A. 12-105b(d)” (“Notice”) to the School District through its school board members and clerk.[2] The Notice includes five sections of information, which it indicates “the School District will need in order to review [Plaintiffs'] claims.” One of those sections, titled “Concise statement of the factual basis of the claim, ” alleges a number of specific incidents of inappropriate conduct and statements, some sexual in nature, made by Hutchinson to or about Doe. The Notice states that Plaintiffs will assert seven causes of action against the School District under Kansas state law: Invasion of Privacy, Negligent Supervision of Employees, Negligent Hiring of Employees, Negligent Retention of Employees, Respondeat Superior/Vicarious Liability for Employee Conduct, Negligent Infliction of Emotional Distress and Negligent Supervision of Children.

         On November 1, 2016, the School District sent Plaintiffs a letter requesting additional information and documents to facilitate the School District's investigation. The letter requested a statement from Doe “administered under oath before a duly qualified reporter.”[3] Plaintiffs did not respond with the documentation requested.

         Plaintiffs filed their Complaint (ECF No. 1) on December 8, 2016. In Paragraphs 57-59, Plaintiffs allege they had previously sent their Notice of Claims to the School District, placing it on notice of the additional tort claims to be added by amendment after the Kansas Tort Claims Act period expired.

         On January 19, 2017, Hutchinson filed a motion to dismiss Plaintiffs' claims against him. In their response in opposition to the motion, Plaintiffs indicated that upon expiration of the Kansas Tort Claims Act's 120-day waiting period, on or about February 14, 2017, they would seek leave to amend the complaint to include:

causes of actions for Invasion of Privacy, Negligent Supervision of Employees, Negligent Retention of Employees, Respondeat Superior/Vicarious Liability for Employee Conduct, Negligent Infliction of Emotional Distress and Negligent Supervision of Children, as well as Kansas tort claims of Outrage and Negligent Supervision of Children against Defendant Hutchinson.[4]

         On February 9, 2017, the School District sent Plaintiffs a second letter noting that Plaintiffs had not responded to the District's previous November l, 2016 letter, but acknowledging the December 8, 2016 filing of this lawsuit alleging federal claims. The letter further stated, in pertinent part:

Because the school district was not allowed to obtain a statement from your client and to complete its investigation into the matters set forth in the Notice of Claim in the time allowed by K.S.A. 12-105b, the school district has no choice but to consider your client's Notice of Claim to have been withdrawn and abandoned. Nothing in this letter should be construed as a denial of your clients' claims and you are certainly entitled to resubmit your claim within the time period allowed by law.[5]

         On February 17, 2017, Plaintiffs filed a Motion for Leave to Amend Complaint (ECF No. 14) seeking to add five tort claims, pursuant to Kansas common law and/or the Kansas Tort Claims Act, against the School District and Hutchinson.

         On March 2, 2017, District Judge Lungstrum granted in part and denied in part Hutchinson's motion to dismiss on the basis of qualified immunity.[6] The Court concluded that Hutchinson is not entitled to qualified immunity on Plaintiffs' § 1983 equal protection claim, but is entitled to qualified immunity on Plaintiffs' claim based upon violations of Doe's constitutional right to privacy.

         On March 7, 2017, Plaintiffs withdrew their earlier motion to amend and filed the instant Amended Motion for Leave to Amend Complaint. Plaintiffs request leave under Fed.R.Civ.P. 15 to amend their complaint to add five Kansas state law tort claims against the School District and Hutchinson, and to add a new claim by Harrison for Title IX retaliation. On May 2, 2017, Doe filed her Motion for Leave to Proceed by Pseudonym. This case was reassigned to the undersigned Magistrate Judge on August 16, 2017.

         II. LAW GOVERNING REQUESTS TO AMEND THE COMPLAINT

         Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading “once as a matter of course” before trial if they do so within: (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a responsive pleading is required, ” 21 days after service of the responsive pleading or a motion under Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier.[7] Other amendments are allowed “only with the opposing party's written consent or the court's leave.”[8] Under Rule 15(a), leave to amend a complaint is freely given when justice so requires.[9] A party is typically granted leave to amend under this rule unless there is “a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendment previously allowed, or futility of amendment.”[10]

         A proposed amendment is futile if the amended complaint would be subject to dismissal.[11] To survive a motion to dismiss, a complaint must present factual allegations that, when assumed to be true, “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[12] “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.”[13]

         III. LEGAL ANALYSIS OF DEFENDANTS' OBJECTIONS TO PLAINTIFFS' PROPOSED AMENDMENT OF THE COMPLAINT

         A. Compliance with the Notice Provisions of K.S.A. 12-105b

         Defendants contend that Plaintiffs' proposed amendment is futile because Plaintiffs' October 12, 2016 Notice fails to comply with the notice requirements of K.S.A. 12-105b, such failure would deprive this Court of jurisdiction.

         K.S.A. 12-105b(d) requires a person asserting a claim which could give rise to an action brought under the Kansas Tort Claims Act against a municipality or an employee of a municipality to file a written notice with the clerk or governing body of the municipality before commencing such action.[14] This notice must contain the following:

(1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested.[15]

         The statute further provides: “[i]n the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.”[16]The Kansas Supreme Court has described a “sufficient notice” as one that gives the municipality the information needed for a “full investigation and understanding of the merits of the claims advanced.”[17] A notice is sufficient when it advises the municipality of the “time and place of the injury, affords the municipality an opportunity to ascertain the character and extent of the injury sustained, and allows for the early investigation and resolution of claim disputes.”[18]

         “The legislative intent of K.S.A. 12-105b is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim.”[19] Under K.S.A. 12-105b(d), a claimant may not commence an action “until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.”

         The notice requirements of K.S.A. 12-105b(d) are a condition precedent to bringing a tort claim against a municipality and must be pled in compliance with Fed.R.Civ.P. 9(c).[20] “If the statutory requirements are not met, the court cannot obtain jurisdiction over the municipality.”[21]

         1. Tort Claims Against the School District

         The School District argues that Plaintiffs' Notice is deficient because the factual allegations contained in it do not support the causes of action Plaintiffs seek to pursue, the injuries alleged, or the damages demanded. The School District also argues it was deprived of the opportunity to investigate the claims by Plaintiffs' refusal to provide the sworn statement and additional information requested in its November 1, 2016 letter.

         Plaintiffs' five-page, single-spaced Notice included the following information set out in five enumerated sections: (1) The names and addresses of the claimants and claimants' attorneys; (2) A concise, but fairly lengthy and detailed statement of the factual basis of Plaintiffs' alleged claim(s), including specific months from January 2015 through June 2016, places, and circumstances surrounding a number of specific incidents of inappropriate conduct and/or statements, including some sexual in nature, made by Hutchinson to or about Doe; (3) The names and addresses of any public officers involved; (4) A concise statement of the nature and extent of injuries suffered, including a lengthy list of the particular types of injuries alleged (e.g. medically significant emotional distress, pain and suffering); and (5) A statement of the monetary amount being requested, itemized in four categories of expenses and damages. These sections mirror and comply with the five statutory notice requirements set out in K.S.A. 12-105b(d). Plaintiffs' Notice also includes additional information not expressly required by K.S.A. 12-105b(d), namely a list of the specific causes of action that Plaintiffs may assert under both Kansas law and federal law. Defendants' argument that Plaintiffs' proposed amendment would be futile because of their failure to comply with this statutory notice requirement with regard to the School District is rejected.

         The Court also rejects Defendants' argument that Plaintiffs abandoned their claims when they did not respond to Defendants' request following receipt of the Notice for more information. Defendants have provided no controlling or persuasive authority for their argument. Plaintiffs' Notice did provide adequate notice of their claims against the School District and the statute does not require Plaintiffs to provide sworn statements for their notice to be sufficient. Finally, Plaintiffs filed their motion to amend to add these tort claims after expiration of the 120-day period provided under K.S.A. 12-105b(d).

         The Court finds Plaintiffs' October 12, 2016 Notice provided proper and sufficient notice to the School District in compliance with K.S.A. 12-105b(d).

         2. Tort Claims Against Hutchinson

         Defendants argue that Plaintiffs' Notice refers repeatedly to claims against the School District but makes no mention of any claims against Hutchinson. The first sentence of the Notice states: “Please consider this letter as formal notice pursuant to K.S.A. 12-105b(d) of tort claims asserted against USD 237.”[22] The Notice states that Doe “by and through her mother, will assert the following causes of action against USD 237 under Kansas state law.”[23] And, in the final sentence of the Notice, Plaintiffs “reserve their rights to pursue other claims they may have against USD 237 [under] federal law.”[24] Defendants contend, therefore, that Plaintiffs' Notice fails to comply with the statutory notice requirement relative to Hutchinson.

         In December 2014, the Kansas Supreme Court overruled well-established Kansas case law that had interpreted K.S.A. 12-105b(d) to require claimants to give notice of claims against municipalities and municipal employees acting within the scope of their employment before commencing legal action.[25] In Whaley, the Kansas Supreme Court held that nothing in K.S.A. 12-105b(d) indicated that its requirements were meant to apply to anything other than lawsuits against municipalities themselves.

         The Kansas legislature acted swiftly in response to Whaley, amending the statute in 2015 to expressly require that: “Any person having a claim against a municipality or against an employee of a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action.”[26] The statute was also amended to clarify that “no person may initiate an action against a municipality or against an employee of a municipality unless the claim has been denied in whole or part.”[27]

         Plaintiffs provided their Notice in October 2016, after the 2015 amendment to K.S.A. 12-105b. The Court finds that Plaintiffs' proposed claims for Invasion of Privacy (Count VI), Negligent Supervision of Children (Count VIII), Negligent Infliction of Emotional Distress (Count IX), and Outrage (Count X)[28] “could give rise” to an action brought under the Kansas Tort Claims Act. Therefore, Plaintiffs were required to provide notice to the School District and Hutchinson prior to commencing legal action, pursuant to K.S.A. 12-105b. Plaintiffs do not dispute this. Rather, they argue that their Notice named Hutchinson as the perpetrator and that they substantially complied with the statutory notice requirement.

         It is true that K.S.A. 12-105b(d) explicitly requires only substantial compliance with its notice requirement. The Court thus must address the question of whether Plaintiffs' Notice constitutes sufficient notice under K.S.A. 12-105b as to Plaintiffs' claims against Hutchinson. “The legislative intent of K.S.A. 12-105b is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim.”[29]As noted above, a “sufficient notice” is one that gives the municipality the information needed for a “full investigation and understanding of the merits of the claims advanced.”[30] A notice is sufficient when it advises the municipality of the “time and place of the injury, affords the municipality an opportunity to ascertain the character and extent of the injury sustained, and allows for the early investigation and resolution of claim disputes.”[31]

         Notable, also, is the fact that in its 2015 amendment to K.S.A. 12-105b the legislature chose not to change the required contents of the statutory notice. If it had intended to do so, the legislature could easily have amended the statute to require the statutory notice to contain specific additional information regarding any claims against an employee of the municipality. Instead, the amended version of K.S.A. 12-105b(d) retains the same enumerated list of five categories of information that must be included in the notice.

         As discussed earlier with regard to the School District, Plaintiffs' Notice includes the five categories of information required under K.S.A. 12-105b(d). It includes a factual statement replete with detailed factual allegations of inappropriate behavior by Hutchinson toward or related to Doe. Indeed, the Notice does portray Hutchinson as the “perpetrator” of the alleged bad acts. The Notice revolves around the alleged misconduct of Hutchinson and the damages Doe suffered as a result of that alleged misconduct. The Notice clearly gave the municipality the information necessary for a full investigation and understanding of the merits of the claims being asserted as to both the School District and Hutchinson. Reviewing the Notice carefully and keeping in mind K.S.A. 12-105b requires only substantial compliance, the Court concludes that the Notice provided sufficient notice, in compliance with the K.S.A. 12-105b(d), with regard to the tort claims Plaintiffs seek to assert against Hutchinson.

         3. Outrage Claim

         Defendants next argue Plaintiffs should not be permitted to amend their complaint to add a state law claim for outrage (also known as intentional infliction of emotional distress) because it was not included in the list of seven causes of action in their Notice. Defendants contend Plaintiffs failed to present any facts that would support an outrage claim against either Defendant. Plaintiffs counter that nothing in K.S.A. 12-105b requires a claimant to spell out all of its legal theories. They point out the Notice includes facts and a specific reference to a claim for negligent infliction of emotional distress, alleges that Doe suffered “medically significant emotional distress, ” and includes facts showing reckless disregard and conduct of an outrageous nature.

         K.S.A. 12-105b, by its express terms, only requires notice of the “factual basis” for the claim; there is no requirement that the notice set forth in detail the legal theory behind the claim.[32] “Notice of the occurrence and facts surrounding the occurrence sufficient to provide the defendant with the ability to investigate the claim and determine the level of damages is required, rather than notice of the particular theories of liability to be pursued.”[33] Plaintiffs were not required to expressly identify “outrage” as one of their causes of action in the Notice, rather they were required to set out a “concise statement of the factual basis” of their claims.

         For purposes of their motion to amend, the Court finds the facts set out in the Notice provided sufficient notice that Plaintiffs might assert a claim for outrage.[34] Defendants have not shown that it would be futile for Plaintiffs to assert an outrage claim against the School District and/or Hutchinson based upon non-compliance with K.S.A. 12-105b.

         4. Notice of ...


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