J.R. v. Allegheny Highlands Council, Inc.
Decision Date | 17 December 2020 |
Docket Number | 1:20-cv-00215-FPG |
Parties | J.R, As Parent and Natural Guardian of OR, a Minor, Plaintiff, v. ALLEGHENY HIGHLANDS COUNCIL, INC., BOY SCOUTS OF AMERICA; DONALD C. SHRIVER; and BOY SCOUTS OF AMERICA, INC., Defendants. |
Court | U.S. District Court — Western District of New York |
Plaintiff J.R., as parent and natural guardian of O.R., a minor, ("Plaintiff") brings this personal injury tort action against Defendants Boy Scouts of America, Inc. ("BSA"), Allegheny Highlands Council, Inc., Boy Scouts of America ("AHC"), and Donald C. Shriver ("Shriver"), alleging that Shriver, O.R.'s scout leader, sexually abused O.R. See ECF No. 1-2 at 3. Plaintiff brought this action in New York state court and BSA removed it to this Court. ECF No. 1. Plaintiff now moves to sever the claims against AHC and Shriver and remand them back to state court. ECF No. 3. For the reasons stated below, Plaintiff's motion is DENIED WITHOUT PREJUDICE.
On September 6, 2019, Plaintiff filed this action against Defendants BSA, AHC, and Shriver in the Supreme Court of the State of New York, Chautauqua County. ECF No. 1-2 at 3. Plaintiff alleged that Shriver sexually abused her son, O.R., in August 2017 during an overnight camping event organized by AHC. ECF No. 1-2 at 4, 6. She alleges that BSA and AHC are liable for Shriver's abuse because they failed to use due care in selecting, training, and supervising Shriver as a scout leader, and failed to educate, warn, train, and protect O.R. against sexual abuse. Id. at 3-6.1 Plaintiff's action is one of approximately 290 similar cases pending in state and federal courts throughout the country against BSA and its local councils (the "Pending Abuse Actions"). See ECF No. 1 at 2.
On February 18, 2020, BSA filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the District of Delaware ("Delaware Bankruptcy Court"). See ECF No. 1 at 2. That same day, BSA removed this action to this Court pursuant to 28 U.S.C. §§ 1334 and 1452(a).2
In order to consolidate all the Pending Abuse Actions, BSA filed a motion in the United States District Court for the District of Delaware ("Delaware District Court") seeking transfer of the Pending Abuse Actions to that court pursuant to 28 U.S.C. §§ 157(b)(5) and 1334(b). See id. 2-3.3
In its notice of removal—but without filing a motion or formal request for relief—BSA "submit[ted] that this Court should refrain from taking any further action in this case, including any decisions with respect to any motions to remand or abstain," pending the Delaware District Court's ruling on the transfer motion. ECF No. 1 at 4.
As anticipated by BSA, on March 17, 2020, Plaintiff filed a letter-motion to sever the claims against AHC and Shriver and remand them to state court. ECF No. 3. But Plaintiff's letter-motion did not acknowledge BSA's request that the Court refrain from deciding any such motion.On March 18, 2020, the Court ordered Defendants to respond to Plaintiff's motion, ECF No. 4, but none of them did.
On April 1, 2020, BSA and AHC filed a notice with this Court indicating that the Delaware Bankruptcy Court had entered a consent order regarding the Pending Abuse Actions, staying the prosecution of claims against BSA and AHC through May 18, 2020. ECF No. 6 at 3-5. The Delaware Bankruptcy Court has extended the stay three times, most recently until March 19, 2021. ECF No. 9 at 1.
This case is now in limbo. Plaintiff asks the Court to sever the claims against AHC and Shriver and remand them to state court, but BSA asks the Court refrain to from taking any action pending the Delaware District Court's ruling on the transfer motion. Neither party has addressed the other's requests for relief. Further complicating matters, Plaintiff's letter-motion to sever and remand lacks a memorandum of law with citations to supporting legal authority, which, while not required under Local Rule 7(a)(2)(A) for such a motion, would have been helpful. And Defendants have not responded to Plaintiff's motion, despite the Court's order to do so. To the extent that BSA and AHC believe that the automatic stay and/or the consent order stay prevent or absolve them from filing a response, the Court is not persuaded. See Worldview Entm't Holdings Inc. v. Woodrow, 611 B.R. 10, 15 (S.D.N.Y. 2019) () (quoting In re Cashco, Inc., 599 B.R. 138, 147 (Bankr. D. N.M. 2019); LaFlair v. Johnson & Johnson, No. 8:18-CV-1270 (BKS/CFH), 2019 U.S. Dist. LEXIS 127481, at *13 (N.D.N.Y. July 31, 2019) ( ); Turner v. Borobio, No. 01 Civ. 7458 (SAS), 2001 U.S. Dist. LEXIS 20738, at *9 (S.D.N.Y. Dec. 13, 2001) ( ); Doe v. Archdiocese of New Orleans Indem., Inc., No. 20-1338, 2020 U.S. Dist. LEXIS 143512, at *5-6 (E.D. La. Aug. 11, 2020) ( ).
The Court observes that federal district courts around the country have handled the Pending Abuse Cases before them in different ways.
Some courts have denied remand without prejudice, stayed the federal actions, or refrained from ruling on pending motions to remand. See, e.g., Doe v. Greater St. Louis Area Council, No. 4:20-CV-273 JMB, 2020 U.S. Dist. LEXIS 215224, at *3-4 (E.D. Mo. Nov. 18, 2020) (); A.L. v. Boy Scouts of America, et al., No. 5:20-cv-181-GTS-TWD, ECF Nos. 10, 14, 15, 26, 29, 30 (N.D.N.Y. 2020) ( ); Doe v. Boy Scouts of America, et al., No. 1:20-cv-01438-LGS, ECF No. 19 (S.D.N.Y. April 13, 2020) ( ); see also generally Walker v. New Eng. Compounding Pharmacy Inc., No. 7:12-cv-564, 2013 U.S. Dist. LEXIS 64155, at *4 (W.D. Va. May 3, 2013) ( ); A.A. v. Soc'y of Jesus, No. C09-00262 MJP, 2009 U.S. Dist. LEXIS 139153, at *5 (W.D. Wash. May 7, 2009) ( ).
Other courts have remanded despite the pendency of a transfer motion. See, e.g., Dieterly v. BSA, No. 20-902, 2020 U.S. Dist. LEXIS 110534, at *7 (E.D. Pa. June 24, 2020) ( )(first citing In re Eight Adversary Proceedings Removed from State Court by Johnson & Johnson, 603 B.R. 849, 852 (Bankr. S.D. Fla. July 2, 2019); and then citing In re Johnson & Johnson, No. 19-cv-3531(KPF), 2019 U.S. Dist. LEXIS 95445, at *17-19 (S.D.N.Y. June 4, 2019)); Michael O'Malley v. Boy Scouts of America, et al., No. 1:20-cv-1526-WFK-RLM, ECF No. 13 (E.D.N.Y. Mar. 11, 2020) ( ); see also generally Tavener v. Johnson & Johnson, No. 5:19-CV-0459 (GTS/TWD), 2019 U.S. Dist. LEXIS 110034, at *8-9, 19 (N.D.N.Y. July 2, 2019) ( ); Powers v. Beacon C M P Corp, No. 6:19-CV-00504, 2019 U.S. Dist. LEXIS 119321, at *8 (W.D. La. July 1, 2019) () ; see also id. at *13 ( ).
Here, because Plaintiff has not addressed the issue of whether this Court should remand despite the pending transfer motion and has not included a memorandum of law with citations to legal authority on the merits of her motion, and because BSA and AHC have not responded to Plaintiff's motion, for now, the...
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