Van Maanen v. Youth With A Mission–Bishop

• Decision Date: 14 February 2012
• Docket Number: No. 1:10–CV–00493 AWI–JLT.,1:10–CV–00493 AWI–JLT.
• Citation: 852 F.Supp.2d 1232,283 Ed. Law Rep. 197
• Parties: Jaco VAN MAANEN, Plaintiff, v. YOUTH WITH A MISSION–BISHOP; Youth With a Mission International, Inc. d/b/a YWAM Office of the Founders; University of the Nations, Inc. d/b/a YWAM–University of the Nations, and Does 1–10, Defendants.
• Court: U.S. District Court — Eastern District of California

852 F.Supp.2d 1232

283 Ed. Law Rep. 197

Jaco VAN MAANEN, Plaintiff,

v.YOUTH WITH A MISSION–BISHOP; Youth With a Mission International, Inc. d/b/a YWAM Office of the Founders; University of the Nations, Inc. d/b/a YWAM–University of the Nations, and Does 1–10, Defendants.

No. 1:10–CV–00493 AWI–JLT.

United States District Court,

E.D. California.

Feb. 14, 2012.

Joshua D. Yeager, PHV, William J. Cremer, PHV, Edmund J. Siegert, PHV, Heather L. Kingery, PHV, Cremer Spina Shaughnessy Jansen and Siegert, LLC, Chicago, IL, Timothy V. Magill, Magill Law Offices, Fresno, CA, for Plaintiff.

Jonathan Matthew Blute, Timothy J. Halloran, Murphy, Pearson, Bradley & Feeney, San Francisco, CA, William A. Munoz, Murphy, Pearson, Bradley & Feeney, Sacramento, CA, for Defendants.

ORDER ON PLAINTIFF'S MOTION TO STRIKE DECLARATION OF THOMAS BLOOMER

ORDER ON DEFENDANT UNIVERSITY OF THE NATIONS, INC.'S MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT

ANTHONY W. ISHII, Chief Judge.

This is an action for damages for injuries suffered by Plaintiff Jaco Van Maanen (“Plaintiff”) while using a zip line near Mammoth Lakes, California. As a result of this incident, Plaintiff suffered permanent spinal cord injuries and paralysis. Plaintiff has entered into good faith settlement agreements with Defendant Youth With a Mission–Bishop and Defendant Youth With a Mission–Ahualani, formerly known as Youth with a Mission–International, Inc. See Court's Docket, Doc. Nos. 147, 148. Defendant University of the Nations, Inc. (“University” or “Defendant”) is the sole remaining defendant. Plaintiff is a resident of the Netherlands, and University is incorporated and headquartered in Hawaii. This Court has jurisdiction ¹ over the subject matter of this case pursuant to 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1391, venue is proper in the Eastern District of California because a substantial part of the events giving rise to Plaintiff's claims occurred in this judicial district. Plaintiff alleges five causes of action against University, all of which sound in negligence. Specifically, Count II alleges negligence based on common carrier liability; Count III alleges negligent misrepresentation, training, and hiring; Count IV alleges negligence based on vicarious liability arising from an actual agency relationship; Count V alleges negligence based on vicarious liability arising from an ostensible agency relationship; and Count VIII alleges negligence based on alter ego liability. University now moves for partial or complete summary judgment on all remaining claims against it. Plaintiff has filed a motion to strike the declaration of Dr. Thomas Bloomer, submitted by Defendant in support of its motion for summary judgment. For the reasons that follow, Plaintiff's motion to strike will be denied, and University's motion for summary judgment will be granted.

I. PLAINTIFF'S MOTION TO STRIKE

Plaintiff objects to University's use of the Thomas Bloomer declaration in support of its motion for summary judgment. Dr. Bloomer is the International Provost and Vice President for Academic Affairs of non-party University of the Nations–International (“International”), a global network of educational programs and ministries that are operated independently by some 450 YWAM entities around the world. International publishes the University of Nations catalog, which lists courses that independent YWAM entities pay to register in the network. Defendant contends International is a separate and distinct entity from University of the Nations, Inc.

Plaintiff argues that University did not include Dr. Bloomer in its initial disclosures under Federal Rule of Civil Procedure 26, and it should therefore be stricken. Rule 26(a) requires that a party disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(A)(i). Rule 26(e) requires a party to supplement its initial disclosures, “in a timely manner if the party learns that in some material respect the disclosure ... is incomplete[,] or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” SeeFed.R.Civ.P. 26(e)(1)(A). Rule 37 states:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or was harmless.

SeeFed.R.Civ.P. 37(c).

University claims it did not include Dr. Bloomer in its Rule 26(a) initial disclosures because the International entity was not named in the Complaint. This argument is unavailing. The plain language of Rule 26(a) required University to disclose the identity of each individual, whether a party representative or not, who was likely to have discoverable information that may be used to support that University's claims or defenses. University further contends Plaintiff elicited extensive testimony about Dr. Bloomer in the May 4–5, 2011 depositionof David Fairley and the June 1–2, 2011 deposition of Loren Cunningham. University argues this testimony encompassed the information required by Rule 26(a) and therefore no supplementation was required under Rule 26(e). A review of the deposition excerpts submitted by University reveals that Dr. Bloomer's name and position were mentioned several times. Mr. Fairley and Mr. Cunningham testified that Dr. Bloomer serves as the provost of International, a non-legal entity, separate from University, that publishes the University of the Nations catalog and offers accreditation to YWAM courses. The deposition testimony also revealed that Dr. Bloomer resides somewhere in Switzerland, and his office rents space from University in Kona, Hawaii.

Thus, although Dr. Bloomer was not identified in University's Rule 26(a) disclosures, his identity, position, location, and the subject of the information he possessed were made known to Plaintiff through the Fairley and Cunningham Depositions. SeeFed.R.Civ.P. 26(e). The discovery cut-off in this case was July 23, 2011, which gave Plaintiff ample time after the Cunningham deposition to issue further written discovery or notice Dr. Bloomer's deposition. The Court therefore finds that University's failure to include Dr. Bloomer in the initial disclosures was harmless. Plaintiff's motion to strike will be denied.

II. FACTUAL BACKGROUND²A. The YWAM Entities

Youth With a Mission (“YWAM”) is an international non-denominational Christian ministry movement founded by Loren Cunningham, and his wife, Darlene, in the 1960s. See Cunningham Decl. ¶¶ 26–27. It consists of 20,000 volunteers, located at approximately 1,000 different independently owned and operated entities, often referred to as “bases” or “branch locations,” throughout the world. See Cunningham Decl. ¶ 45. All defendants in this case are engaged in the YWAM movement.

Youth With a Mission–Bishop

Youth With a Mission–Bishop, doing business as Sea and Summit Expeditions (“YWAM–Bishop”), is a California religious corporation with a business address in Bishop, California. See DUMF No. 3. YWAM–Bishop is governed by its own Board of Directors that is independently selected, and meets regularly and operates pursuant to the requirements of its corporate bylaws. Its officers are appointed by the Board of Directors of Sea and Summit Expeditions. See DUMF No. 3. David Fairley is the Director of YWAM–Bishop. See Fairley Decl. ¶ 2. Plaintiff incurred the injuries that are the subject of this litigation while he was enrolled in a wilderness leadership training course at YWAM–Bishop. See Fairley Decl. ¶¶ 14–15.

Youth With a Mission International, Inc.

Youth With a Mission–Ahualani, formerly known as Youth with a Mission–International, Inc., (“YWAM–Ahualani”) is a domestic nonprofit corporation incorporated in Hawaii. See Court's Docket, Doc. No. 105, Ex. F. Loren Cunningham, the founder of the YWAM movement, currently serves as the President of YWAM–Ahualani.See Cunningham Depo. at 36. The Hawaii Department of Commerce and Consumer Affairs and a recent tax return list YWAM–Ahualani's address as 75–5851 Kuakini Highway, Ste. 210, Kailua Kona, Hawaii. See Court's Docket, Doc. No. 105, Exs. F, G. Mr. Cunningham has testified that those documents were completed erroneously, and the true address of YWAM–Ahualani is on Mamalahoa Highway, Kealakekua, Hawaii 96750. See Cunningham Depo. at 44.

University of the Nations, Inc.

Defendant University of the Nations, Inc.,³ is a not-for-profit public benefit corporation incorporated in Hawaii, providing education services to students. See DUMF No. 1. Defendant's mailing address is 75–5851 Kuakini Hwy, Kailua Kona, Hawaii—the same address listed by the Hawaii Department of Commerce and Consumer Affairs for Youth With a Mission–Ahualani. See Cunningham Depo. at 95, 286. University is governed by its own Board of Directors that is independently selected, and meets regularly and operates pursuant to the requirements of its corporate bylaws. See DUMF No. 2. The officers of University are appointed by the Board of Directors of University, and Loren Cunningham currently serves as President. See DUMF No. 2. Mr. Cunningham has testified that University of the Nations, Inc. was formerly known as Pacific and Asia Christian University, Inc. (“PACU”). See Cunningham Depo. at 238–240.

University of the Nations–International

In the moving papers, the parties also refer to a non-defendant, non-legal entity known as University of the Nations–International (“International”), or the “virtual” or “global” University of the Nations. Defendant contends International is an unincorporated global network distinct from University of...