Doe v. USD No. 237, Smith Ctr. Sch. Dist., Case No. 16-2801-JWL

JANE DOE and ANGELA HARRISON, Plaintiffs, v. USD No. 237, the Smith Center School District, and BROCK HUTCHINSON, Defendants.

Case No. 16-2801-JWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

October 29, 2019

MEMORANDUM AND ORDER

In this case, plaintiff Jane Doe and her mother, plaintiff Angela Harrison, assert federal and state-law claims against defendants USD No. 237 ("the District") and Brock Hutchinson, arising from Mr. Hutchinson's alleged sexual harassment of Ms. Doe while serving as a teacher and coach at her high school. The matter presently comes before the Court on various motions filed by defendants. For the reasons set forth below, the Court rules as follows. The Court grants in part and denies in part the motions for summary judgment on plaintiff Doe's claims filed by Mr. Hutchinson (Doc. # 200) and the District (Doc. # 202). The motions are granted with respect to Ms. Doe's claims for Title IX retaliation; her claims for invasion of privacy, other than a claim for intrusion upon seclusion based on the snapping of her bra strap; her negligence claims against the District, other than a claim for injuries directly resulting from the snapping of her bra strap; and her claims for medical expenses, and defendants are awarded judgment on those claims. The motions are otherwise denied. The Court grants the District's motion for summary judgment on plaintiff Harrison's claim against it (Doc. # 195), and the District is awarded judgment on that claim. The Court denies defendants' motion to strike certain declarations submitted by plaintiffs in opposition to the summary judgment motions (Doc. # 223). Finally, the Court grants defendants' motion to determine the place of trial (Doc. # 193), and it designates Topeka as the place of trial for this matter.

I. Defendants' Motion to Strike Declarations

As a preliminary matter, the Court addresses defendants' motion to strike five declarations submitted by plaintiffs in opposition to defendants' summary judgment motions. The declarations at issue are by the following witnesses: Jade Colclasure, a former student; Drew Mann, a former student and Ms. Doe's sister; John McDonald, Ms. Harrison's father and Ms. Doe's grandfather; Z. Doe, a former student; and Beth Fischer, Z. Doe's mother. Defendants argue that plaintiffs failed to disclose those witnesses sufficiently in their disclosures pursuant to Fed. R. Civ. P. 26(a), which requires a party to provide, for any individual likely to have discoverable information that the party may use to support a claim or defense, the individual's name, his or her address and telephone number (if known), and the subjects of the information. See id. Defendants further argue that the Court should strike the declarations pursuant to Fed. R. Civ. P. 37(c)(1), which provides that if a party has failed to provide information about a witness required by Rule 26(a), the party may not use that witness to supply evidence on a motion unless the failure was substantially justified or was harmless. See id. The Court concludes that any failure by plaintiffs in this case was harmless, and it therefore denies the motion to strike.

On September 13, 2017, plaintiffs served their initial Rule 26(a)(1) disclosures. Plaintiffs identified Beth Fischer, gave her telephone number (but not an address), described her as a substitute teacher and parent at the high school, and stated that she "has information regarding Coach Hutchinson, Principal Greg Koelsch and Smith Center's handling of complaints against Coach Hutchinson." Plaintiffs also identified Z. Doe (Ms. Fischer's son) without any contact information, described him as a former student at the school, and stated that he "has information concerning Coach Hutchinson's conduct." Plaintiffs also included Mr. Doe's "social media post" among the documents listed in the disclosure, and plaintiffs later produced such posts to defendants in discovery. On March 20, 2019, plaintiffs served supplemental disclosures pursuant to Rule 26(e). The disclosures included the following persons likely to have discoverable information, although without any contact information: Jade Colclasure, identified as a former student, who "may have knowledge regarding Brock Hutchinson's conduct;" Drew Mann, identified as plaintiff Doe's sister, who "may have knowledge regarding Plaintiffs' claims and damages;" and John McDonald, identified as plaintiff Harrison's father, who "may have knowledge regarding reports made to the School District about Brock Hutchinson's conduct and Plaintiffs' damages."

On April 29, 2019, defendants' counsel sent plaintiffs' counsel a letter requesting further supplementation of disclosures to include full contact information and subjects of knowledge, as required by Rule 26(a)(1), although the letter did not call out any disclosure of a particular witness. At a status conference the following day, and as memorialized in the third amended scheduling order, the Magistrate Judge instructed the parties to supplement their Rule 26(a) disclosures to include the information required by the rule. Plaintiffs did not provide any additional supplementation, however. Defendants now argue that the Court should strike these five witnesses' declarations because plaintiffs did not provide information about those witnesses sufficient to comply with the rule and the Magistrate Judge's order.

The Court has broad discretion in applying Rule 37(c)(1). See HCG Platinum, LLC v. Preferred Product Placement Corp., 873 F.3d 1191, 1200 (10th Cir. 2017). The Court considers the prejudice to the party against whom the evidence is offered, as well as the offering party's bad faith or willfulness. See id.

The Court does not minimize any non-compliance with the rule and the Magistrate Judge's order. The Court notes, however, that plaintiffs did include all five witnesses in their disclosures. Defendants nevertheless argue that they did not have contact information and more detailed subject descriptions, and thus that they were denied the opportunity to seek discovery from those witnesses before the discovery deadline. The Court does not agree, however, that defendants suffered any such prejudice from any deficiency in plaintiffs' disclosures. Defendants were told that these individuals may have relevant information, and they were told the general subjects of that information. Moreover, discovery had provided more information to defendants concerning these witnesses' knowledge. Defendants had already received Ms. Fischer's declaration in February 2019, and that declaration included information received from her son, Z. Doe. Defendants had been provided with Z. Doe's social media posts. There had been deposition testimony about Ms. Colclasure, Ms. Mann, and Mr. McDonald, and plaintiffs had produced Mr. McDonald's notes. If defendants were truly in the dark about the subject of a witness's knowledge, they could have sought such information specifically from plaintiffs' counsel.

Defendants have also failed to show that they were denied the opportunity to contact these witnesses or to seek discovery from them. Defendants have not stated that counsel tried and failed to contact a witness. Plaintiffs had disclosed Ms. Fischer's telephone number, and defendants could have contacted her to locate Z. Doe, her son. Ms. Mann and Mr. McDonald are plaintiffs' relatives, and plaintiff Harrison identified Mr. McDonald's city of residence in her deposition, but defendants apparently made no attempt to locate those witnesses; nor did defendants take the simple step of requesting that plaintiffs' counsel produce them for depositions. Finally, defendants do not dispute that in June 2019 their counsel did contact Ms. Colclasure, who answered counsel's questions; defendants have not explained why they were not able to make such contact earlier, or why they could not have used school records to attempt to contact former students and parents.

Finally, the Court notes that defendants never asked plaintiffs for additional information, even after plaintiffs failed to provide additional supplementation after the status conference. If defendants believed that they lacked sufficient information to determine whether to undertake any discovery, they were obliged to make such a request of plaintiffs or to seek relief from the Court in a timely fashion, prior to the close of discovery. For these reasons, the Court concludes that plaintiffs substantially complied with the rule and that defendants have not shown any prejudice from any technical violation. The Court also does not agree with defendants that there is any basis to conclude that plaintiffs acted in bad faith. Accordingly, the Court denies the motion to strike.

II. Defendant Hutchinson's Motion for Summary Judgment

A. Governing Standards

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue of fact is "genuine" if "the evidence allows a reasonable jury to resolve the issue either way." See Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). A fact is "material" when "it is essential to the proper disposition of the claim." See id.

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant...