Pettengill v. Curtis

• Decision Date: 30 September 2008
• Docket Number: C.A. No. 07-12174-MLW.
• Citation: 584 F.Supp.2d 348
• Parties: Forrest PETTENGILL, Plaintiff, v. Howard CURTIS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

584 F.Supp.2d 348

Forrest PETTENGILL, Plaintiff, v. Howard CURTIS, et al., Defendants.

C.A. No. 07-12174-MLW.

United States District Court, D. Massachusetts.

September 30, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lisa G. Arrowood, Matthew J. Fogelman, Todd & Weld LLP, Boston, MA, for Plaintiff.

Frank C. Corso, Sarrouf Corso, LLP, Michele E. Randazzo, Jackie A. Cowin, Kopelman & Paige, P.C., Michael J. Mazurczak, Raymond H. Tomlinson, Jr., Melick, Porter & Shea, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

Paul Ernst ("Ernst"), Joseph Anglim ("Anglim"), and David Park ("Park") (collectively the "Individual Defendants") have moved to dismiss Counts 10, 11, and 12 of the Amended Complaint against them for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The City of Haverhill, Massachusetts ("Haverhill") has moved to dismiss Counts 6, 7, and 8 of the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated in this Memorandum, the Individual Defendants' motions to dismiss are being allowed, and Haverhill's motion to dismiss is being allowed in part and denied in part. More specifically, Haverhill's motion to dismiss is being allowed as to Count 6, based on the statute of limitations, and denied as to Counts 7 and 8.

I. BACKGROUND

In the Amended Complaint ("Am. Compl."), plaintiff Forrest Pettengill ("Pettengill") alleges that he was sexually abused by his Boy Scout assistant scoutmaster, defendant Howard Curtis ("Curtis"), while in the Boy Scouts and then later while Curtis was employed at the Haverhill Public Library.¹ Therefore, he has sued Curtis, the City of Haverhill, the Boy Scouts of America ("BSA"), the Yankee Clipper Council ("Yankee Clipper"), which is a Boy Scout unit based in Haverhill and a successor entity to the Lone Tree Council of which Pettengill was a member, and five current or former executives of BSA. In addition to the Individual Defendants who have moved to dismiss, the other BSA-related defendants are John Doe One, an individual unknown to Pettengill who served as a liaison between BSA and the Lone Tree Council, and John Doe Two, the executor or administrator of the estate of James Tarr, the late former Chief Scout Executive of BSA.

Pettengill's claims against the various defendants include sexual harassment under Mass. Gen. Laws ch. 151B (Curtis, Count 1, and Haverhill, Count 6), sexual assault and battery (Curtis, Count 2), intentional infliction of emotional distress (Curtis, Count 3), negligence (Curtis, Count 4, and Haverhill, Count 7), negligent infliction of emotional distress (Curtis, Count 5, and Haverhill, Count 8), "respondeat superior" (BSA and Yankee Clipper, Count 9), and three negligence-related claims against BSA, Yankee Clipper, Ernst, Anglim, Park, John Doe One, and John Doe Two (Counts 10, 11, and 12).

The case was removed from Essex Superior Court pursuant to 28 U.S.C. § 1441. Jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332.

II. FACTS

The following are facts alleged in the Amended Complaint. Curtis began sexually abusing Boy Scouts, including David Carter and Edward Gilmore, in the mid-1970's. ¶¶ 13-14. He would give them alcohol and sleep one-on-one in tents with them, and molested Carter "hundreds of times" and Gilmore "approximately six times in a two-year span." ¶¶ 15-21.

Pettengill joined the Lone Tree Council of the Boy Scouts at approximately age eleven in 1983 or 1984. ¶ 33. Starting in approximately 1984 or 1985, Curtis, who was an assistant scoutmaster of Pettengill's troop, molested Pettengill "hundreds of times," including on camping trips, when sleeping one-on-one in a shared tent. ¶¶ 35-40. Curtis wrote Pettengill love letters and told him that their relationship was normal. ¶ 41. All defendants other than Curtis and Haverhill had a duty to supervise Curtis and to put policies in place to prevent such sexual abuse, but either did not do so or did so negligently. ¶¶ 44-49. But for these failures, Curtis could have been prevented from abusing Pettengill, such as by banning Curtis from the Boy Scouts. ¶ 48.

The Boy Scouts have had problems with sexual abuse by scoutmasters for decades, and knew about them for nearly 100 years. ¶ 54. In 1911, BSA developed ineligible volunteer files, also known as confidential files, which were kept on men who were deemed ineligible to serve or volunteer with the Scouts, including child molesters. Id. These files were kept in the national office in part to make them harder to subpoena. ¶ 55. In the early to mid-1970's, the Boy Scouts had information that scoutmasters were encouraging boys to share tents or sleeping bags with them. ¶ 58. Furthermore, in the 1970's and 1980's, the Individual Defendants were responsible for the confidential files, including investigating and banning individuals suspected of wrongdoing. ¶ 59. Despite their actual knowledge of the abuse problems in general and at least one incident in Massachusetts, the Individual Defendants and BSA did not warn Scouts or their parents about the potential for abuse until 1988. ¶¶ 61, 64-66, 68-76.

Curtis worked at the Haverhill Public Library starting in the mid-1970's. ¶ 23. In approximately 1976-77, he recruited Carter and Gilmore, who were then two teenaged Boy Scouts whom he was already sexually abusing, to work for him at the Library. ¶¶ 25, 28. Curtis spent an unusual amount of time with each boy in one-on-one situations, and sexually abused Carter at the Library and elsewhere. ¶¶ 26-27, 29. In 1980, the City promoted Curtis to Library Director, although it knew or should have known that he had a pattern of recruiting young boys from the Boy Scouts and was abusing Carter at the Library. ¶ 31. As Library Director, Curtis had greater autonomy and authority than before, and was "virtually supervised." ¶ 32.²

Subsequently, starting in approximately 1986, Curtis recruited Pettengill, who began working for the City of Haverhill in the Library "on and off" on a part-time basis. ¶ 79. Curtis repeatedly abused Pettengill both while Pettengill was an employee and when he was not. ¶ 80. Curtis was Pettengill's direct supervisor at the Library. ¶ 81. He lured Pettengill to the Library after business hours for sexual activity. ¶ 82. He told Pettengill that their relationship was normal and natural, and gave him gifts. ¶ 83. Haverhill knew or should have known of Curtis's pattern of luring and abusing young boys dating back at least to approximately 1976, and failed to act reasonably in hiring, supervising, and promoting Curtis. ¶¶ 84-88.

Pettengill had psychiatric problems "[t]hroughout the 1990's," including hyper-sexuality and sexual identity confusion, but led a "relatively `normal' life" until 2002. ¶ 92. In 2002 through 2005, he had such serious problems, including "a psychotic episode" in 2004, that he lost his job and his house, used drugs, and was eventually diagnosed with post-traumatic stress disorder, obsessive-compulsive disorder, and bipolar disorder. ¶¶ 93-95. Not until 2006, when he was undergoing therapy, did he realize that Curtis had sexually abused and harassed him, and that his psychiatric injuries were due to that abuse. ¶¶ 97-98.

Apart from the allegations in the Amended Complaint, Pettengill states in his opposition to the Individual Defendants' motions to dismiss that while the Boy Scouts have refused to give him access to any confidential files, including that of Curtis, he has located 59 confidential files on molesters in Massachusetts. They include 164 letters sent by Ernst to scout leaders in Massachusetts and 84 letters received from them between 1971 and 1991. Pettengill alleges that Ernst engaged in this correspondence "in consultation with Park and Anglim." Pl. Opp. to Ind. Defs. Mot. to Dismiss at 2. He supports these allegations with redacted examples of confidential files, affidavits, deposition transcripts of the Individual Defendants from other cases, and other materials. Pettengill does not, however, allege that any of the Individual Defendants had actual knowledge that Curtis was abusing him at the time. Nor does he allege that any of them wrote a letter or did anything else concerning Curtis.

III. INDIVIDUAL DEFENDANTS

A. Legal Standard

Where, as here, it has been challenged, Pettengill has the burden of showing that the court has personal jurisdiction over each of the defendants. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Ticketmaster-New York v. Alioto, 26 F.3d 201, 207 n. 9 (1st Cir.1994); Tidgewell v. Loon Mountain Recreation Corp., 820 F.Supp. 630, 631 (D.Mass.1993). Since none of the Individual Defendants are alleged to be residents of Massachusetts, to own property here, or to have otherwise consented to the court's jurisdiction, personal jurisdiction is only appropriate if the defendants fall within the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3, and exercising jurisdiction comports with the requirements of due process. See, e.g., World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

On a motion to dismiss for lack of personal jurisdiction, courts most commonly apply a "prima facie" standard, under which "the plaintiff [must] proffer[] evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction." Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992). "The prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record. The plaintiff must go beyond the pleadings and make affirmative proof." Id. (citations and quotations omitted). The court must not act as a factfinder, instead "accept[ing] properly supported proffers of evidence by a plaintiff as true." Id....