Doe v. Boy Scouts of Am.

Decision Date31 August 2018
Docket NumberCase No. 1:13-cv-00275-BLW
Citation329 F.Supp.3d 1168
Parties John DOE I-XIX and John Elliott, Plaintiffs, v. BOY SCOUTS OF AMERICA, a congressionally chartered corporation authorized to do business in Idaho; Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, a foreign corporation sole registered to do business in Idaho; and Corporation of the President of the Church of Jesus Christ of Latter-Day Saints and Successors, a foreign corporation registered to business in Idaho, Defendants.
CourtU.S. District Court — District of Idaho

Ashley L. Vaughn, Dumas Law Group, Portland, OR, Gilion Claire Dumas, Portland, OR, Andrew M. Chasan, Chasan & Walton, Boise, ID, for Plaintiffs

Mindy Marie Muller, Stephen R. Thomas, Tyler J. Anderson, Hawley Troxell Ennis & Hawley LLP, Steven B. Andersen, Wade L. Woodard, Haley Krug, Andersen Schwartzman Woodard Brailsford, PLLC, Boise, ID, for Defendants


B. Lynn Winmill, Chief U.S. District Court Judge


Pending before the Court are the Defendants' Motions for Summary Judgment (Dkts. 274, 275, 281, 282, 283, 284, 285) and the Plaintiffs' Motions for Partial Summary Judgment (Dkts. 276, 277). For the reasons stated below, the Court will grant the Church Defendants motions, and will grant BSA's motions with respect to Doe I, Doe II, and Doe V. The Court will deny BSA's motions with respect to Doe IV, Doe XII, and Doe XVIII. Finally, the Court will grant Plaintiffs' motions in part, deny them in part, and reserve ruling in part.


The Plaintiffs in this case have alleged claims for constructive fraud against the Boy Scouts and the LDS Church. Third Am. Compl. , Dkt. 91. Each Plaintiff participated in Boy Scouts as a child, and each Plaintiff alleges he was sexually abused at the hands of an adult male volunteer. Id. The Plaintiffs allege that the Defendants made fraudulent misrepresentations about the safety of Scouting and failed to warn them about the risk of child sex abuse in scouting. Id. The Plaintiffs further allege that they relied on these false statements and omissions in deciding to participate in Boy Scouts, which led to their abuse. Id. As a result, Plaintiffs incurred both physical and emotional damages. Id.

1. Factual Background
A. Does I, II, and V

Doe I was born in 1973 and was nine years old when he began attending scouting events in 1982. Second Am. Compl. ¶ 25, Dkt. 47; Doe I Dep. I 52:20, Dkt. 275-4. Doe I's name appears on a January 1983 Cub Scout Pack roster for Pack 410 sponsored by the Caldwell Fourth Ward.2 Walton Decl. Ex. 22c at 20 (Troop Roster - BSA ID 9363), Dkt. 300-5. He remembers James Schmidt serving as the leader of his Cub Scout Pack. Id. at 52:16-20. During 1982, Schmidt sexually abused Doe I multiple times. Doe I Dep. I 61:8-69:17, Dkt. 300-6.

Doe II was a member of the of Boy Scout Troop 410, sponsored by the Caldwell Fourth Ward, during 1982-1983. Doe II Dep. I 12:2-4, Dkt. 282-12. He was between eleven and twelve years old. Id. at 12:7-10. He remembers James Schmidt serving as his Scoutmaster. Doe II Dep I 60:21-23, Dkt. 300-7. During this time period, Schmidt repeatedly abused Doe II, until Doe II quit scouting. Doe II Dep I , 97:21-100:4, 105:24-106:2, 109:7-16, 110:15-111:4, 111:25-112:15, 114:1-17, 116:16-21, 121:3-23.

Doe V was a member of the Boy Scout Troop sponsored by the Nampa Ninth Ward in 1979. Doe V Dep. II 82:16, Dkt. 282-6; Doe V Dep. I , 23:23, Dkt. 282-26. He was thirteen years old. Doe V Dep. I 7:4-5, Dkt. 282-26. James Schmidt served as the Assistant Scoutmaster for Doe V's scout troop. Doe V Dep. II 82:25, Dkt. 282-6. In August of 1979, James Schmidt took Doe V home after a scout meeting and sexually abused him. Doe V Dep. I 32:10-14, 34:14-37:20; Doe V Dep. II 82:8-16, Dkt. 282-6.

In 2007, Doe I, Doe II, and Doe V filed suit against the Boy Scouts of America and the Ore-Ida Council in Idaho state court. Thomas Dec. Ex. G, Dkt. 275-10. The complaint alleged that the defendants "represented to Plaintiffs, their parents and the general public that Defendants provide a safe, wholesome and protected environment for children;" that the defendants "promoted BSA's services and scouting programs under the representation that they provide a safe, wholesome, and protected environment for children, all the while knowing that Defendants BSA attracted, and had been infiltrated by, child predators, including SCHMIDT;" and that each defendant "had a practice and pattern of harboring child abusers, including SCHMIDT, and protecting their identities, thereby exposing unwitting parents and their children to further harm at the hand of said abusers." Id. ¶¶ 2.24, 2.25, 2.29. The complaint also alleged that Schmidt began abusing scouts as early as 1977. Id. at ¶ 2.13.


Doe IV was twelve years old, in 1971, when he joined Boy Scout Troop 156, sponsored by the Lewiston Elks Lodge. BSA's Omnibus SOF at 2, Dkt. 285-2; Walton Decl. Ex. 58b at 18 (Troop Roster – BSA ID 9360, Dkt. 300-18. Lawrence Libey began serving as a scout leader for Troop 156 in 1968, and served as Doe IV's Scoutmaster. Eveland Dep. 20:6-9, Dkt. 300-16; see also, e.g. , Walton Decl. Ex. 58a at 11 (1968 Troop Roster – BSA ID 9342). A few weeks after Doe IV joined scouting, Libey began sexually abusing him. Doe IV Dep. 40:7-44:20; 64:10-12. Libey continued to sexually abuse Doe IV throughout the three years that he was a Boy Scout. Id. According to Doe IV, Libey quit as the Scoutmaster in 1974. Doe IV Dep 64:12-24, Dkt. 300-16.

Doe XVIII joined Boy Scout Troop 156 in approximately 1966. Doe XVIII Dep. I 40:15-17. Within a few months of getting involved with the troop in 1968, Libey began to sexually abuse Doe XVIII, culminating in his rape. Id. at 50:2-6-65-12; 64:15-25. Doe XVIII quit scouting a few weeks later. Id. 69:1-10.

Doe IV stated that he first learned that there was evidence of abuse in scouting from the news in 2012. Doe IV Dep. I 78:1-25, Dkt. 300-16. Doe XVIII stated that he did not learn about prior sexual abuse in scouting until he met with counsel in this action in 2014. Doe XVIII Dep. II 155:2-7, 157:16-24, Dkt. 300-16.

C. Doe XII

Doe XII joined a boy scout troop sponsored by the LDS Church in Nampa, Idaho in 1974. BSA Doe XII SOF ¶ 1-2; BSA Omnibus SOF ¶ 5. He was twelve years old. Id. Larren Arnold was the Scoutmaster for Doe XII's Troop. BSA Doe XII SOF ¶ 3. Doe XII Dep. I 15:13-14, 57:10-14. Arnold sexually abused Doe XII on two occasions, with the first occurring almost immediately after Doe XII joined scouts. Doe XII Dep. I 55:23-59:25, 62:13-64:15, Dkt. 300-15. After the second incident, Doe XII reported the abuse to his parents. Id. at 23:17-24:12. Eventually, Doe XII quit scouting. Id. at 48-10-15.

In May 2001, Doe XII sent a letter to the BSA Defendants. Anderson Decl. Ex. C at 2, Dkt. 274-6. The letter stated that Doe XII was abused by his Scoutmaster and described the impact the abuse had on his life. Id. Doe XII asked that the BSA apologize to him and "pay restitution for the havoc wreaked upon my life." Id. Doe XII sent a second letter in September 2001, stating that he had uncovered official documentation that Arnold had later abused another boy. Anderson Decl. Ex. E at 2, Dkt. 274-8. In that letter, Doe XI offered to "settle" the matter with BSA. Id. On February 14, 2002, Doe XII signed a document entitled "RELEASE AND SETTLEMENT OF ALL CLAIMS" (the "Release"). Anderson Decl. Ex. F, Dkt. 274-9. The Release states that in exchange for $2,500, Doe XII agreed to:

release, acquit and forever discharge [BSA] from any and all actions, causes of action, suits or demands of any kind or nature, claim and demands, damages, costs, loss of services, expenses and compensation on account of or in any way growing out of any and all known and unknown personal injuries arising out of acts resulting or to result from an accident which occurred during the years of 1974 and 1975.


Also during 2001, Doe XII contacted attorney Tim Kosnoff about the potential for a lawsuit against the BSA and the LDS Church. See Doe XII Dep. 197:22-25, Dkt. 274-5. Based on his conversation with Mr. Kosnoff, Doe XII believed his case had "great potential" but knew that Mr. Kosnoff was concerned there might be an issue with the statute of limitations. Id. at 225:16-22, 226:19-25. During 2007, Doe XII was briefly represented by the law firm Chasan & Walton. Chasan Decl. ¶ 2, Dkt. 293-2. The representation ended in August 2007. Id.

D. Defendants
(1) Boy Scouts of America

BSA is a congressionally chartered non-profit organization. Avery Decl. Dkt. 285-3.

The purpose of BSA is to promote "the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues." Id . ; 36 U.S.C. § 30902. Organizations such as churches, schools, and civic clubs may sponsor a local scout unit, such as a cub pack or a scout troop, with the guidance and support of local BSA councils. Avery Decl. Dkt. 285-3. Sponsoring organizations "agree to use BSA's program to operate local scouting units in accordance with the guidelines and polices set forth in the official BSA publications and literature. Id. Local councils are chartered by the national BSA, and the charters are "contingent on ... fulfilling the basic purpose of the Scout movement." BSA Bylaws Art. X, Sec.1 as amended November 1967 , Dkt. 300-19. They are "controlled" by the BSA bylaws, and by "the rules and regulations of the National Council or the Executive Board." Id. Art. X Sec. 2. BSA retains the authority to "revoke such charters when in its sole judgment such revocation is warranted." Id. Art. XII, Sec.1.

Adult volunteers, including Scoutmasters, Assistant Scoutmasters, and charter committee members, must apply to register with the BSA. Avery Decl. ¶ 8, Dkt. 285-3; BSA Bylaws Art. XII, Sec.5, Clause 3 as amended November 1967 , Dkt. 300-19. Applications are submitted to the...

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