Opinion
Case No. 03-2155-DJW
November 24, 2003
MEMORANDUM AND ORDER
Pending before the Court is Defendant's Motion to Dismiss (doc. 26), which asserts that plaintiff's Complaint fails to state a claim for relief. Also pending before the Court is plaintiff's request that the Court assess Rule 11 sanctions against Defendant on the basis that the Motion to Dismiss is frivolous (doc. 30). For the reasons set forth below, the Court will deny both Defendant's Motion to Dismiss and plaintiff's request for sanctions.
I. Background Information
This is a diversity action in which Plaintiff alleges she was sexually molested by Defendant when she was nine, ten, and eleven years of age. The Complaint contains few factual allegations but does assert that, as a result of the alleged sexual molestation, Plaintiff was removed from her home where she lived with her mother and Defendant, placed in foster care, and institutionalized for mental health reasons. The Complaint alleges that as a result of the claimed sexual molestation Plaintiff attempted suicide and is currently being treated by mental health professionals for post-traumatic stress disorder. She seeks damages in excess of $75,000.
Complaint, doc. 1, ¶ IV.
Id., ¶ V.
Id.
Id., ¶ VI.
Defendant filed an answer to the Complaint on April 22, 2003. He filed the instant Motion to Dismiss on September 24, 2003. Defendant argues that the Court should dismiss this action because Kansas does not recognize a civil cause of action for sexual molestation.
II. Defendant's Motion to Dismiss
A. Timeliness of the Motion
Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. As noted above, Defendant filed his Motion to Dismiss after filing his answer in this case. Technically, it is impermissible to file an answer and thereafter file a Rule 12(b)(6) motion to dismiss. Because, however, Rule 12(h)(2) permits the court to consider "[a] defense of failure to state a claim upon which relief can be granted" within a Rule 12(c) motion for judgment on the pleadings, the court may treat a Rule 12(b)(6) motion as if it had been submitted under Rule 12(c). The distinction between the two motions is purely formal, because the court must review a Rule 12(c) motion under the same standard that governs a Rule 12(b)(6) motion.
See Fed.R.Civ.P. 12(b) (a motion asserting defense of failure to state a claim "shall be made before pleading if a further pleading is permitted"). See also Thomas v. Travnicek, No. 00-3360-GTV, 2003 WL 22466194, at *1 (D. Kan. Aug. 15, 2003) (it is impermissible under the Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to dismiss.") (citing Fed.R.Civ.P. 12(b); 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357 at 300-301 (2d ed. 1990) ("[A] post-answer Rule 12(b)(6) motion is untimely.").
Thomas, 2003 WL 22466194, at * 1; Faulk v. Tiffany, No. 99-2354-GTV, 2000 WL714336, at *1 (D. Kan. May 23, 2000) (citing Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980)).
Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003) ("[w]e review a dismissal on the pleadings pursuant to Fed.R.Civ.P. 12(c)under the same standard applicable to a 12(b)(6) dismissal.") (citing Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000)); Four B Corp. v. Daicel Chem. Indus., Ltd., 253 F. Supp.2d 1147, 1149 (D. Kan. 2003) ("A motion for judgment on the pleadings pursuantto Fed.R.Civ.P. 12(c) is governed by the same standards as a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.") (citing Mock v. T.G. Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992).
In light of the above, the Court will treat Defendant's post-answer Motion to Dismiss as if it had been styled a Rule 12(c) motion for judgment on the pleadings.
B. Standard for Granting the Motion to Dismiss or for Judgment on the Pleadings
For purposes of a Rule 12(b)(6) motion to dismiss or Rule 12(c) motion for judgment on the pleadings, the complaint is construed in the light most favorable to the non-moving party, and its allegations are taken as true. The court considers whether the allegations set forth in the complaint constitute a statement of a claim under Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a) provides that the pleading need only set out a generalized statement of facts from which the opposing party will be able to frame a responsive pleading. Thus, in appraising the sufficiency of the allegations, a court should not dismiss a complaint for failure to state a claim or enter judgment on the pleadings unless "it appears beyond doubt that the plaintiff can prove no set of facts in support at *1 (D. Kan. May 23, 2000) (citing Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980)). of his claim which would entitle him to relief." Further, the complaint should not be dismissed merely because the plaintiff's allegations do not support the stated legal theory, for the court is obligated to determine whether the allegations support relief on any possible theory.
Daigle v. Shell Oil Co., 972 F.2d 1527, 1533 (10th Cir. 1992) (Rule 12(b)(6) motion; Four B Corp., 253 F. Supp.2d at 1149 (Rule 12(c) motion).
See 5A Wright Miller, supra note 4, § 1363 at 460.
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (Rule 12(b)(6) motion); accord Four B Corp., 253 F. Supp.2d at 1149 (Rule 12(c) motion).
Perington Wholesale, Inc. v. Burger King Corp., 631 F.2d 1369, 1375 n. 5 (10th Cir. 1980) (citing Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967); 5 Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 1357 (1st ed. 1969)).
C. Analysis
As noted above, Defendant contends that the Complaint should be dismissed on the basis that Kansas law does not recognize a civil cause action for sexual molestation. Plaintiff counters that "[s]exual molestation encompasses a number of intentional, willful, and wanton acts committed by Defendant which harmed the Plaintiff." She further asserts that Defendant was convicted of "aggravated indecent liberties" with a child, and states that her deposition testimony and answers to written discovery requests reveal that Defendant's actions fall within the scope of that crime and "within the broad definition of tort actions." She also states that "plaintiff's allegations are a cause of civil action under Kansas law," citing K.S.A. 60-19aO2 for the definition of "personal injury" and K.S.A. 40-3103(h) for the definition of "injured person." Finally, Plaintiff directs the Court to Shirley v. Reif, in which the Kansas Supreme Court analyzed the proper statute of limitations to be applied to a civil claim for "childhood sexual abuse."
Pltf's Resp. to Mm. to Dismiss (doc. 30) at p. 1.
Id.
Id.
260 Kan. 514, 902 P.2d405 (1996).
Id., 260 Kan. at 515, 517-19.
The Court finds plaintiff's reliance on K.S.A. 60-19a02 and 40-3103(h) to be totally misplaced. K.S.A. 60-19a02 deals with the limitation on damages for personal injury actions, while K.S.A. 40-3103(h) deals with the Kansas Automobile Injury Reparations Act. The Court does, however, find plaintiff's reliance on Shirley appropriate. In Shirley, the plaintiff's filed an action against a former priest to recover damages for sexual abuse he allegedly perpetrated against them when they were minors. They asserted five causes of action against the priest: childhood sexual abuse, assault, battery, intentional infliction of emotional distress, and invasion of privacy.
Id. at 515.
Id.
The issue before the court in Shirley was whether the claims were timely. While that issue is not presently before this Court, the Shirley court's discussion is instructive. In analyzing the timeliness issue, the Shirley court reviewed KS.A. 60-523, which provides:
(a) No action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced more than three years after the date the person attains 18 years of age or more than three years from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse, whichever occurs later.
(b) As used in this section:
(1) "Injury or illness" includes psychological injury or illness, whether or not accompanied by physical injury or illness.
(2) "Childhood sexual abuse" includes any act committed against the person which act occurred when the person was under the age of 18 years and which act would have been a violation of any of the following:
(A) Indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto; (B) aggravated indecent liberties with a child as defined in K.S.A. 21-3504 and amendments thereto (C) aggravated criminal sodomy as defined in K.S.A. 21-3506 and amendments thereto; (D) enticement of a child as defined in K.S.A. 21-3509 and amendments thereto; (E) indecent solicitation of a child as defined in K.S.A. 21-3510 and amendments thereto; (F) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments thereto; (G) sexual exploitation of a child as defined in K.S.A. 21-3516 and amendments thereto; or (H) aggravated incest as defined in K.S.A. 21-3603 and amendments thereto; or any prior laws of this state of similar effect at the time the act was committed.
The Shirley court stated:
Typically, under current statutory law, a childhood sexual abuse claim is based on K.S.A. 60-523, which allows a plaintiff to recover damages suffered as a result of childhood sexual abuse if the action is commenced within 3 years after the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse.
Shirley, 260 Kan. at 518.
In light of K.S.A. 60-523 and the Kansas Supreme Court's discussion regarding a claim for "childhood sexual abuse," it appears that Kansas law does recognize a civil cause of action for childhood sexual abuse. Although Plaintiff fails to use that specific term, the Complaint alleges that Defendant "sexually molested" her when she was a child. Furthermore, Plaintiff states in her response to the Motion to Dismiss that Defendant was convicted of taking aggravated indecent liberties with a child, which K.S. A. 60-523 defines as "childhood sexual abuse." While Defendant denies he was convicted of taking aggravated indecent liberties with a child, he does admit he entered a no-contest plea to the charge of indecent solicitation of a child under K.S.A.21-3510. That criminal act is also defined in K.S.A. 60-523 as "childhood sexual abuse."
See K.S.A. 60-523(b)(2) ("childhood sexual abuse" includes any act committed against a minor that would have been an aggravated indecent liberty with a child as defined in K.S.A. 21-3504).
In short, the Court holds that Kansas law recognizes a civil cause of action for childhood sexual abuse and that plaintiff's allegation that she was sexually molested by Defendant while a child is sufficient to state a claim for childhood sexual abuse. The Court will therefore deny Defendant's Motion to Dismiss, which the Court is treating as a motion for judgment on the pleadings.
III. plaintiff's Rule 11 Request for Sanctions
In her response to the Motion to Dismiss, Plaintiff asserts that Defendant's motion is frivolous and asks the Court to assess sanctions under Federal Rule of Civil Procedure 11(c) for plaintiff's alleged violation of Rule 11(b)(1), (2), and (3). Rule 11(c) permits a court to impose sanctions on a party if, "after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated." Subdivision (b) sets out a number of requirements with which a party presenting "a pleading, written motion, or other paper" to the court must comply.
Rule 11(c)(1)(A) explains how a party seeking sanctions must initiate a Rule 11 motion. First, the motion for sanctions "shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b)." Second, the motion "shall be served as provided by Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." The plain language of Rule 11 indicates that compliance with these provisions is mandatory.
Id.
Hughes v. SSI, No. 02-2042-JWL, 2002 WL 922129, at *2 (D. Kan. Apr. 18, 2002) (citations omitted).
Plaintiff has failed to comply with these requirements. Plaintiff failed to file a separate motion for sanctions and failed to serve it on Defendant twenty-one days before filing it with this Court. Accordingly, plaintiff's request for Rule 11 sanctions must be denied.
As noted above, plaintiff's request for Rule 11 sanctions is contained within the body of her response to the Motion to Dismiss. See doc. 30 at p. 2.
IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss (doc. 26), which the Court has treated as a Rule 12 Motion for Judgment on the Pleadings, is denied.
IT IS FURTHER ORDERED that plaintiff's request for Rule 11 sanctions, which is contained in plaintiff's Response to the Motion to Dismiss (doc. 30), is denied. IT IS SO ORDERED.