Boy 1 v. Boy Scouts of Am.

• Decision Date: 19 May 2011
• Docket Number: Case No. C10–1912–RSM.
• Parties: BOY 1, Boy 2, Boy 3, Boy 4, Boy 5, and Boy 6, Plaintiffs, v. BOY SCOUTS OF AMERICA, a congressionally chartered corporation incorporated in the District of Columbia, Defendant.
• Court: U.S. District Court — Western District of Washington

832 F.Supp.2d 1282

BOY 1, Boy 2, Boy 3, Boy 4, Boy 5, and Boy 6, Plaintiffs,

v.BOY SCOUTS OF AMERICA, a congressionally chartered corporation incorporated in the District of Columbia, Defendant.

Case No. C10–1912–RSM.

United States District Court,

W.D. Washington,

at Seattle.

May 19, 2011.

Leander L. James, IV, James Vernon & Weeks P.A., Coeur D'Alene, ID, Timothy D. Kosnoff, Daniel T.L. Fasy, Kosnoff PLLC, Seattle, WA, for Plaintiffs.

Anthony Todaro, Barbara J. Kastama, Kelly P. Corr, William Randolph Squires, III, Corr Cronin Michelson Baumgardner & Preece, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court upon Defendant's Motion to Dismiss. Dkt # s 6, 20. For the reasons set forth below, Defendant's motion is GRANTED.

II. BACKGROUND

Plaintiffs are six adult men who were sexually abused by their scout leaders in connection with their participation in the Boy Scouts of America organization (“BSA”) when they were children. Plaintiffs allege that, long before Plaintiffs' abuse, BSA knew that it had a problem with pedophiles and other sexual deviants infiltrating their ranks. In 1910, shortly after BSA was founded as a congressionallychartered corporation, BSA implemented an internal record keeping system aimed at preventing scout leaders who were expelled for sexual deviance from rejoining other scout troops. Originally, the system entailed placing a red sticker on the expelled or rejected man's registration card. Later, the system grew into a large database in which each flagged individual's name and suspected activity was logged and stored. This database became known as the Ineligible Volunteer Files (“IV Files”). According to Plaintiffs, the IV Files highlighted BSA's vulnerabilities, including pedophiles' techniques for infiltrating the BSA organization and grooming victims. They also demonstrated biographical and behavioral characteristics shared by the pedophiles that had been discovered within the organization.

By 1935, the BSA had purportedly amassed a list of 2,000 ineligible volunteers. In the 1970s, BSA executives destroyed thousands of IV Files. According to Plaintiffs, had the files not been destroyed, the BSA would have catalogued over 20,000 pedophiles in its files by 2005. However, approximately 6,000 files survived the 1970s “purge,” 1900 of which are now in the public domain.

Plaintiffs allege that BSA opened a new IV File on a pedophile every other day for fifty years, demonstrating that BSA knew or should have known that scouting attracts pedophiles at a high rate and that scouting's distinctive characteristics attract pedophiles. However, until the late 1980s, BSA's only background check for scout leaders was a check of the man's application against the IV File list. According to plaintiffs, some pedophiles who had been rejected from the organization successfully reentered the BSA as scout leaders of different troops. In addition, BSA purportedly re-admitted some pedophiles it had previously removed for child abuse after a period of “probation.” BSA had a practice of not reporting scout abuse incidents to law enforcement and reaching agreements with suspected pedophiles in which pedophiles agreed to leave the organization in exchange for the BSA not reporting incidents of child abuse to the authorities.

Plaintiffs allege that BSA did not notify the public that the IV Files existed, did not advise anybody of the number of pedophiles it was rejecting from scouting each year, and did not advise scouts or their parents that it knew that its system did not completely prevent pedophiles that had been rejected from BSA from re-infiltrating the organization. Plaintiffs claim that the IV Files constituted a “treasure trove” of knowledge about pedophilia and the BSA but that the organization deliberately concealed the body of knowledge from police, scouts, scouts' parents, and the general public.

Each Plaintiff alleges that had BSA warned Plaintiffs or their parents about the problem of scout leaders molesting scouts or informed Plaintiffs or their parents about how to prevent scout leader sexual abuse, Plaintiffs would not have joined or been allowed to join the BSA, or would have taken steps to prevent the sexual abuse they ultimately suffered at the hands of their scout leaders. Plaintiffs bring claims against BSA for (1) negligence and breach of fiduciary duty; (2) willful misconduct, wanton misconduct and reckless misconduct; (3) intentional infliction of emotional distress; (4) violation of RCW 9.68A: Sexual Exploitation of Children Act (“SECA”); (5) Estoppel and Fraudulent Concealment; and (6) Civil Conspiracy.

Plaintiffs Boy 4, Boy 5, and Boy 6 originally filed a separate action in this district (C10–2032–RSM) in which Plaintiffs brought the same six claims against the BSA in connection with three additional allegations of sexual abuse at the hands of scout leaders. On April 5, 2011, this Court granted Plaintiffs' motion to consolidate the two actions for the purposes of pre-trial matters. Dkt. # 19. At the time of consolidation, BSA had pending in each action nearly identical motions to dismiss Plaintiffs' claims for failure to state a claim upon which relief could be granted. The pending motion in the C10–2032–RSM case was thereby transferred to the instant case (Dkt.# 20) for adjudication in conjunction with the motion to dismiss pending in the case at bar (Dkt.# 6). The two motions to dismiss argue that Plaintiffs' claims should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because (a) BSA owed no duty to protect Plaintiffs from the criminal acts of scout leaders; (b) Plaintiffs' claim for willful and wanton misconduct is not an independent cause of action under Washington law; (c) Plaintiffs have not pled the necessary elements for the claim of outrage; (d) Plaintiffs cannot recover under SECA because no criminal violations have been pursued; (e) estoppel and fraudulent concealment are not causes of actions recognized under Washington law; and (f) Plaintiffs' claim for civil conspiracy is barred by the intracorporate conspiracy doctrine. The Court hereby addresses the two motions to dismiss, which are referred to in the singular form, as “Defendant's Motion to Dismiss,” for ease of reference.

III. DISCUSSION

A. Standard of Review

Plaintiffs urge the Court to consider evidence outside the pleadings and thereby convert Defendant's Motion to Dismiss into a Motion for Summary Judgment under Fed.R.Civ.P. 56. The Court need not convert a Rule 12(b)(6) motion to a motion for summary judgment simply because extraneous materials are introduced if the Court does not consider those materials in deciding the motion. Keams v. Tempe Technical Institute, Inc., 110 F.3d 44, 46 (9th Cir.1997). Here, consideration of Plaintiffs' extraneous evidence is unnecessary to the resolution of Defendant's motion. Therefore, the Court declines to convert the motion.

In considering a Rule 12(b)(6) motion to dismiss, the Court must determine whether the plaintiff has alleged sufficient facts to state a claim for relief which is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible if the plaintiff has pled “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In making this assessment, the Court accepts all facts alleged in the complaint as true, and makes all inferences in the light most favorable to the non-moving party. Barker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir.2009) (internal citations omitted). The Court is not, however, bound to accept the plaintiff's legal conclusions. Iqbal, 129 S.Ct. at 1949–50. While detailed factual allegations are not necessary, the plaintiff must provide more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

B. Negligence

As a general rule, there is no duty to prevent a third party from intentionally harming another unless “a special relationship exists between the defendant and either the third party of the foreseeable victim of the third party's conduct.” Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217 227, 802 P.2d 1360 (1991). In other words, a duty arises where: “(a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or (b) a special relation exists between the [defendant] and the other which gives the other a right to protection.” Petersen v. State, 100 Wash.2d 421, 426, 671 P.2d 230 (1983) (quoting Restatement (Second) of Torts § 315 (1965)). BSA argues that Plaintiffs' negligence claim should be dismissed because the BSA does not have a special relationship with either the Plaintiffs or scout leaders.

“[S]pecial relationships are typically custodial,” as between common carriers and their passengers, or hotels and their guests. See Caulfield, 108 Wash.App. 242, 255, 29 P.3d 738 (2001). However, a relationship need not be custodial where there is a direct, supervisory component. See Taggart v. State, 118 Wash.2d 195, 219, 223, 822 P.2d 243 (1992) (special supervisory relationship may arise when parole officers have taken charge of parolees they supervise, even though there is no custodial relationship); but see Cox v. Malcolm, 60 Wash.App. 894, 900, 808 P.2d 758 (1991) (no special relationship between step-grandparent and step-grandchild), review denied,117 Wash.2d 1014, 816 P.2d 1224 (1991). In all cases, the duty to protect another person from the intentional or criminal actions of third parties generally arises where one party is...