Powers-Barnhard v. Butler

SARAH POWERS-BARNHARD, Plaintiff, v. RICK BUTLER, CHERYL BUTLER, GLV, INC. d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB andGREAT LAKES CENTER, and U.S.A. VOLLEYBALL, Defendants.

5:19-cv-01208 (BKS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 21, 2020

Appearances:

For Plaintiff:

Merson Law, PLLC

Jordan K. Merson

150 East 58th Street, 34th Floor

New York, NY 10155

For Defendant USA Volleyball:

Lorraine Rann Mertell

Dean J. DiPilato

Stephen T. Helmer

Mackenzie Hughes LLP

440 South Warren Street

Syracuse, NY 13202

For Defendants GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center, Rick Butler, and Cheryl Butler

Danielle D'Ambrose

D'Ambrose P.C.

500 North Michigan Avenue, Suite 600

Chicago, IL 60611 Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Sarah Powers-Barnhard filed a Complaint in New York Supreme Court, Onondaga County against Defendants Rick Butler; Cheryl Butler; GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center ("GLV" or the "Volleyball Club"); and USA Volleyball alleging: (1) negligence; (2) negligent infliction of emotional distress; (3) negligent hiring, retention, and supervision; (4) assault; and (5) battery. (Dkt. No. 2). On September 27, 2019, Defendant USA Volleyball removed the action under 28 U.S.C. § 1446 to this Court based on diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No. 1). Defendants now move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. (Dkt. Nos. 23, 31). In addition, Defendants Rick Butler, Cheryl Butler, and GLV (collectively, the "Illinois Defendants") move to dismiss under Federal Rule of Civil Procedure 12(b)(3) for improper venue. (Dkt. No. 31). Plaintiff has filed responsive briefing.¹ (Dkt. Nos. 27, 32). For the reasons that follow, USAV's motion is granted, and the Illinois Defendants' motions are granted in part.

II. FACTS²

A. Defendant Rick Butler's Conduct Against Plaintiff

Plaintiff Sarah Powers-Barnhard, a Florida resident, was a "rising top-ranked high school volleyball player" at the Sports Performance Volleyball Club. (Dkt. No. 2, ¶ 1). Plaintiff "wassubjected to sexual, emotional, and physical abuse" beginning in 1981 by her volleyball coach, Defendant Rick Butler. (Dkt. No. 2, ¶¶ 1, 16). Mr. Butler is "a volleyball coach who renders services throughout the United States," including in New York. (Id. ¶ 31). Mr. Butler "was an owner and instructor" at the Volleyball Club, which "was a domestic corporation duly organized and existing under" the laws of the State of Illinois.³ (Id. ¶¶ 2, 33, 36). Mr. Butler was also "an agent, servant and/or employee of" USAV. (Id. ¶ 13).

It was "known among the volleyball community and the girls at the volleyball club that Mr. Butler was a sexual predator." (Id. ¶ 2). "Despite Mr. Butler's reputation as a sexual predator to young girls, he continued to be a volleyball coach under the supervision and control of" the Club and USAV. (Id. ¶ 3). Mr. Butler had "previously committed sexual attacks." (Id. ¶ 57).

Mr. Butler "started to initiate inappropriate behavior" toward Plaintiff on her 16th birthday, when he took Plaintiff "to a back stairwell and hugged her." (Id. ¶ 16). In July 1981, Plaintiff's Volleyball Club team "took a trip to Michigan, Syracuse, New York, and Canada."⁴ (Id. ¶ 17). On that trip, at a volleyball practice, Mr. Butler threw a volleyball past Plaintiff's head and later forced her to "sit alone in the equipment bus" on the way to the dorm building while he took the rest of the team to get ice cream. (Id.).

During this trip, "Plaintiff and her teammates were staying in an empty summer dorm building in Syracuse" when Mr. Butler asked Plaintiff "to see him in an upstairs private loungein the dorm building." (Id. ¶ 18). He told Plaintiff that "she needed to understand that to achieve all of her . . . goals and dreams of becoming a professional volleyball player, she needed to follow him blindly and do as he said." (Id.). Mr. Butler then "forcibly attacked" Plaintiff "by groping her and trying to force himself onto her by kissing her." (Id. ¶¶ 38, 5, 18). This was the "beginning of the inappropriate sexual contact" between Mr. Butler and Plaintiff, which "only escalated from there." (Id. ¶ 18). During that same trip, while in Canada, Mr. Butler "plied the entire team, including [P]laintiff, with alcohol." (Id. ¶ 19). The team "became extremely intoxicated." (Id.). "Throughout this entire trip," Mr. Butler "kissed and fondled" Plaintiff. (Id.).

When the team returned home, Mr. Butler invited the team members to his house and again "got them extremely intoxicated." (Id. ¶ 20). Later that evening, Mr. Butler took Plaintiff's "head into his lap and stroked her hair while another player watched." (Id.). Days later, Mr. Butler's "conduct escalated" when he took Plaintiff "to his house and proceeded to rape her." (Id. ¶ 21). This was the first of multiple rapes Mr. Butler committed against Plaintiff. (Id.).

During a subsequent trip to Germany, Mr. Butler raped Plaintiff in a train car bathroom while her entire team was nearby. (Id. ¶ 22). Due to an "issue with their sleeping arrangements," Mr. Butler and "the entire team" were "forced to sleep on the floor in one large room." (Id.). Mr. Butler slept next to Plaintiff and "fondled her throughout the night, just feet away from the other girls" on the team. (Id.).

On several occasions, Mr. Butler "forced [Plaintiff] to watch pornographic movies so she could 'learn.'" (Id. ¶ 23). Mr. Butler used "intimidation tactics and the pretext of talking or meeting about 'team issues' to lure" Plaintiff to his "house, car, and/or other secluded locations to sexually abuse" her. (Id. ¶ 24). Mr. Butler would punish Plaintiff during practice if she did something to upset him. (Id. ¶ 25).

Mr. Butler "continued to harass and sexually abuse" Plaintiff when she graduated from high school and went on to school at a university. (Id. ¶ 26). Defendant Cheryl Butler has "repeatedly attacked" Plaintiff on social media. (Id. ¶ 28). The Butlers have "directed younger players to reach out" to Plaintiff "to tell her to stop telling her story." (Id.). As a result of Mr. Butler's "malicious, predatory, and intentional acts," Plaintiff has suffered "catastrophic and lifelong injuries." (Id. ¶ 27). Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief. (Id. at 14).

B. Defendant USA Volleyball and the Regional Volleyball Associations

According to a webpage submitted by Plaintiff, the United States Volleyball Association (the "Association"), USAV's predecessor entity, was founded in 1928 at the Yale Club in New York City, (Dkt. No. 27-2, at 2). The Association "was created for the purpose of representing the sport nationally and internationally, and for conducting an annual national open championship" and "has fulfilled this purpose ever since." (Id.). The Association incorporated in California in 1970, where it maintained its principal place of business. (Dkt. No. 23-3, at 5). In 1981, when the acts giving rise to Plaintiff's Complaint allegedly occurred, the Association was the national governing body for volleyball in the United States. (Dkt. No. 23-3, at 1-2). In or around 2010, the Association and USAV merged. (Dkt. No. 23-1, at 7-10). USAV is a nonprofit corporation with its principal place of business and place of incorporation in the state of Colorado. (Dkt. No. 23-3, at 1). According to an affidavit submitted by Kerry Klostermann, USAV's Secretary General, USAV is the national governing body for volleyball in the United States. (Id.; Dkt. No. 30-8, ¶ 5). The USAV webpage states that it conducts national championships and USA Volleyball Junior Olympic Volleyball Championships. (Dkt. No. 27-2, at 2).

There are various regional volleyball associations around the country. (Dkt. No. 27-3, at 2; Dkt. No. 30-8, ¶¶ 2-3). According to Klostermann, these regional volleyball associations "are independent not-for-profit corporations formed pursuant to the laws of the state(s) in which they are incorporated." (Id. ¶ 3). The regional volleyball associations "have their own system of governance" and are formed by individuals "interested in forming a local organization that will foster the sport of amateur volleyball." (Id.). USAV does not "form or incorporate these entities and they are not subsidiaries of USAV." (Id. ¶ 2). Subsequent to incorporation, a regional association "may elect to seek affiliation with USAV," but "[n]ot all volleyball organizations become affiliated with USAV." (Id. ¶ 4).

Additional webpages submitted with Plaintiff's response brief, describe the regional volleyball associations as "the backbone of USA Volleyball," (Dkt. No. 27-3, at 2), and state that each of the regional volleyball associations is "a Member Organization of USA Volleyball." (Dkt. No. 27-4, at 2). The webpages describe the regional associations' "grassroots efforts to grow the game and serve as a catalyst for USA Volleyball functions" and state that "[e]ach [regional association] is overseen by a commissioner or executive director." (Dkt. No. 27-3, at 2). Plaintiff asserts that the Iroquois-Empire Volleyball Association is the regional volleyball association for Onondaga County, where this suit was brought, and has included a page from that association's website.⁵ (Dkt. No. 27-4, at 2; Dkt. No. 27, at 5).

According to Klostermann, "not every volleyball player, team, coach and/or event in the United States is associated or affiliated with USAV or [a] regional volleyball association." (Dkt. No. 30-8, ¶ 5). Klostermann states that neither the 1981 volleyball trip at issue here, nor theevents in which Plaintiff participated on that trip, "were in any way associated with USAV or the Association." (Dkt. No. 23-3, ¶ 6). In his affidavit Klostermann stated that neither USAV nor the Association had an office or place of...