RULING ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND DEFENDANT’S MOTION TO BIFURCATE
I. INTRODUCTION
Plaintiff John Doe No. 1 (herein “Plaintiff’) brings this action for damages arising from horrific sexual abuse he allegedly endured over a six-year period when he was a minor engaged in the activities of the Columbian Squires (“Squires”), the national youth program of defendant Knights of Columbus (“Defendant” or “KOC”). Specifically, Plaintiff alleges that he was sexually molested by Julian Rivera (“Rivera”), the adult leader assigned by KOC to supervise the Brownsville, Texas unit of the Squires, in which Plaintiff participated from 1978 to 1986.
Plaintiffs Complaint sets forth two counts: (1) negligence for KOC’s alleged failure to ensure Plaintiffs safety and well being while he was in the custody and care of the Squires, particularly, inter alia, by failing in its duties of “placement, retention and supervision of Rivera as an adult leader,” Doc. # 1 (Complaint), ¶¶ 25-33; and (2) declaratory relief — a request for declaratory judgment that Plaintiff relied on the intentional, fraudulent misrepresentations of a KOC agent to execute the signature page later attached to the document entitled “Settlement Agreement and Full Release” (“Release”), rendering the Release void in that KOC procured it “by fraud,” id., ¶¶ 34-42.
Pending before the Court is Defendant’s motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. # 17. Defendant sets forth three bases for dismissal: (1) Plaintiffs claim for negligence is barred by the Texas two-year statute of limitations; (2) Plaintiff fails to plead the required element of “foreseeability” to maintain a negligence action; and (3) Plaintiff fails to state a claim for fraud and misrepresentation with respect to Defendant’s procurement of the Release in that (a) Plaintiff was not justified in relying on the alleged misrepresentations of KOC’s agent when Plaintiff signed the Release, and (b) Plaintiff ratified the Release as a matter of law.
Also pending before the Court is Defendant’s alternative motion to bifurcate pursuant to Federal Rule of Civil Procedure 42(b). Doc. # 22. In that motion, Defendant requests “a separate trial” on each of the two counts set forth in Plaintiffs Complaint. Id., p. 1. KOC asserts that a preliminary trial of Plaintiffs declaratory relief claim, involving KOC’s alleged fraud and misrepresentation in procuring the Release, should precede trial on his negligence claim. In support, KOC seeks a preliminary determination as to the validity of the Release because that determination: (1) would be “potentially dispositive,” (2) may “save the Court and the parties valuable resources and time,” and (3) would prevent KOC from suffering “unnecessary and undue prejudice” which would likely occur if the same jury determining the validity of the Release heard the “potentially graphic” evidence of sexual abuse Plaintiff will present with respect to his negligence claim. Doc. # 23, p. 1-2.
The Court will first address Defendant’s Motion to Dismiss to determine which, if any, of Plaintiffs actions states a valid claim upon which relief may be granted. Upon making this ruling, the Court will turn to Defendant’s Motion to Bifurcate.
II. FACTS
A. The Parties
Plaintiff John Doe is an adult male resident of the State of Kansas who was born
Defendant KOC is a “Catholic fraternal benefit organization that was created as a social network intended to provide financial assistance to its members and engage in religious and charitable works.” Id., ¶ 7. The president of KOC is known as the “Supreme Knight” and the organization is governed by a board of directors, known as the “Supreme Council.” Id. Membership in KOC is open to men 18 years of age or older who are practicing Catholics committed to supporting the Catholic Church and improving their respective communities through “pro-life and youth activities.” Id., ¶ 8. Since its inception in 1882 in New Haven, Connecticut, KOC has increased in size from several members, comprising one council, to more than 1.8 million members, constituting more than 14,000 councils throughout the United States and various other countries in the world. Doc. #18, p. 9-10. Each KOC council is directly subordinate, “under the direction and control,” of the KOC headquarters in New Haven, Connecticut. Doc. # 1, ¶ 9.
The Columbian Squires program, founded in 1925, is the official national youth program of KOC. Id., ¶ 10. The Columbian Squires recruit Catholic boys “between the ages of 10 and 18 who are committed to developing their leadership qualities and supporting the Roman Catholic Church.” Id. Each Columbian Squires unit must operate within the structure and regulations of KOC. Id. Moreover, “[according to the [KOC] regulations, each Columbian Squires unit is overseen and supervised by at least one adult [KOC] member.” Id.
B. Allegations of Sexual Abuse
In 1978, when Plaintiff was approximately ten years old, he was introduced to the Columbian Squires in Brownsville, Texas. Id., ¶ 11. Plaintiff alleges that between 1978 and 1986 he was subjected to “horrific child sexual abuse” by Juan “Julian” Rivera, who was appointed by KOC as adult leader of the Columbian Squires program in Brownsville, Texas. Id., ¶ 6. Plaintiff asserts that Rivera “actively solicited” him to join the Columbian Squires, “telling [Plaintiff] and his family that as a Squire, [Plaintiff] could do much to help people” and that “his involvement in the Squires would positively affect [Plaintiffs] growth and development as a person.” Id., ¶ 11. According to Plaintiff, during his time as a Squire, Plaintiff was “groomed and sexually abused [by Rivera] at various locations throughout the United States,” “including many local and national events for the Columbian Squires.” Id., ¶¶ 6,17.
In particular, during Plaintiffs first two years in the Squires, on at least ten occasions, Rivera allegedly provided Plaintiff with increasingly sexually graphic pornography to view with Rivera, including “graphic sexual depictions” of “homosexual activity.” Id., ¶ 18. When Plaintiff was approximately twelve years old, Rivera allegedly took Plaintiff on an overnight trip and gave him “large amount[s] of whiskey and marijuana until [Plaintiff] became intoxicated and passed out.”
Plaintiff maintains that over the next six years, Rivera continued “brutally and horrifically sexually abus[ing]” him. Id., ¶ 16. Plaintiff alleges that Rivera also continued issuing threats of bodily harm and death to Plaintiff and/or his family if Plaintiff spoke of Rivera’s actions or refused to comply with his sexual demands.
Furthermore, according to Plaintiff, “[d]uring the years he was sexually abusing [Plaintiff], Rivera also bought him clothing, gave him money, took him out to dinners, and allowed him to drive Rivera’s [motor] vehicle.” Id., ¶ 18. In addition to such gifts, Rivera allegedly encouraged Plaintiff to date girls from school to prevent others from becoming suspicious about his own sexual activity with Plaintiff. Id.
With respect to locations of abuse, Plaintiff alleges that Rivera sexually abused him “in the local Knights of Columbus hall where the Columbian Squires met, as well as Rivera’s office and apartment.” Id., ¶ 17. Plaintiff also recounts that “[t]he horrible, nightmarish sexual abuse occurred at multiple locations in the United States on overnight trips, including many local and national events for the Columbian Squires.” Id. During such trips, not only did Rivera allegedly give Plaintiff and other minor boys alcohol, he repeatedly took the intoxicated Plaintiff to a “hotel room to engage him in sexual contact.” Id. Rivera also allegedly “shared” Plaintiff “with at least one other adult leader of the Columbian Squires in another city.”
Having alleged frequent and pervasive activities of sexual abuse by Rivera and at least one other Columbian Squires leader, including activities within the Brownsville Squires unit and in the KOC hall, Plaintiff contends that KOC “was aware that adult leaders used the Columbian Squires to gain access to boys for purposes of pedophilia.” Id., ¶ 21. Plaintiff further alleges that KOC “became familiar with the specific characteristics, patterns of behavior
Plaintiff ultimately left the Squires in Brownsville, Texas in approximately 1986 when he turned 18 years old.
C. Plaintiff’s Signature on KOC Document in December 2009
In 2009, when plaintiff was forty-one years old, he informed KOC officials that he had been sexually abused by Rivera during Plaintiffs years as a Squire. Id., ¶ 23. Plaintiff was “contacted by chief legal counsel of the [KOC], the Supreme Advocate.”
On December 23, 2009, a KOC agent and his wife met with Plaintiff.
Approximately one week later, Plaintiff “received a package in the mail with a copy of the document [ ]he signed acknowledging receipt of the $200, along with an eight page document he had never seen before entitled ‘Settlement Agreement and Full Release.’ ”
D. Plaintiff’s Complaint
Plaintiff filed the present action on December 14, 2010, in this Court. In his Complaint, he has set forth two claims against the KOC. Plaintiffs first count is a negligence action, alleging that KOC failed “to use reasonable care to ensure the safety, care, well being and health of the minor [Plaintiff] when he was under the care, custody or in the presence of the [KOC].” Doc. # 1, ¶ 26. In conjunction with this duty of reasonable care, KOC allegedly failed in its duties of “placement, retention and supervision of Rivera as an adult leader” of the Squires. Id. In particular, KOC allegedly failed to protect Plaintiff from “sexual assault and lewd and lascivious acts committed by Rivera.” Id., ¶ 27. Furthermore, “[a]t all relevant times, the [KOC] knew or in the exercise of reasonable care should have known that Rivera [possessed] the characteristics and behaviors of a person who would use the Columbian Squires as a means to gain access to boys for pedophilia, and that he was unfit, dangerous, and a threat to the health, safety and welfare of the minors entrusted to his counsel, care and protection.” Id., ¶ 28.
In his second count, Plaintiff seeks “declaratory relief’- — i.e. a declaratory judgment that the release document attached to his Complaint as Exhibit A, entitled “Settlement Agreement and Full Release,” is void as “procured by fraud.” Id., ¶ 42.
III. JURISDICTION
Plaintiff asserts that this Court has federal diversity subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), in that the matter in controversy exceeds $75,000, exclusive of interest and costs, and the action “is between citizens of different states.” Doc. #1, ¶ 4. In an effort to set forth his State of citizenship, Plaintiff declares in his Complaint that he is a “resident of the State of Kansas.” Id., ¶ 1. An individual’s citizenship for diversity purposes, however, is determined by his “domicile,” as opposed to residence. Palazzo v. Cono,
Although Plaintiff has inartfully pled his citizenship, stating his residence as opposed to his domicile, the Court gleans from his jurisdictional allegations that he considers himself a “citizen” of the state of Kansas for diversity purposes in this action. In the event, however, that Plaintiff resided in Kansas but was actually domiciled in a state other than Kansas when he commenced this action on December 14, 2010, he is directed forthwith to inform the Court and (1) seek leave to amend his Complaint and/or (2) file with the Court an affidavit regarding the state of his domicile, and hence citizenship at the com
Defendant KOC is a specially chartered corporation organized and existing under the laws of the State of Connecticut, with a principal place of business located at 1 Columbus Plaza, New Haven, Connecticut 06519. Id, ¶ 2. Pursuant to 28 U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” Accordingly, for diversity purposes in this action, defendant KOC is a citizen of the State of Connecticut.
In his Complaint, Plaintiff seeks damages “in excess of $5 million.” Id, ¶ 3. Such damages arise from, inter alia, Plaintiffs ensuing “severe and permanent physical and psychological injuries, including, but not limited to, chemical addictions, nightmares, depression, anxiety, suicidal tendencies, lack of trust, anger, shame, embarrassment, guilt, and low self-esteem.” Id., ¶ 22. In light of alleged damages well in excess of $75,000, the Court finds that the requisite jurisdictional amount under 28 U.S.C. § 1332(a)(1) has been met. Neither party has contested the alleged facts which give rise to the Court’s subject matter jurisdiction over this matter.
IV. STANDARD OF REVIEW — RULE 12(b)(6) MOTION TO DISMISS
“[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) ‘is to test, in a streamlined fashion, the formal sufficiency of the plaintiffs statement of a claim for relief without resolving a contest regarding its substantive merits.’ ” Halebian v. Berv,
In deciding whether to grant a Rule 12(b)(6) dismissal, the court construes the complaint liberally, “accepting all well-pleaded factual allegations in the complaint as true and drawing all inferences in favor of the plaintiff.”
“Although all allegations contained in the complaint are assumed to be true, this tenet is ‘inapplicable to legal conclusions.’ ” LaMagna v. Brown,
Procedurally, “a defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Staehr v. Hartford Fin. Servs. Group, Inc.,
V. DISCUSSION
A. Applicable Statute of Limitations — Texas or Connecticut
Defendant KOC has moved this Court to dismiss Plaintiffs negligence action on the ground that it is barred by the Texas two-year statute of limitations for negligence claims.
The Court notes preliminarily, as Judge Underhill observed in Dennany v. Knights of Columbus, No. 3:10cvl961 (SRU),
Plaintiff counters, arguing that Connecticut’s 30-year statute of limitations for intentional sexual abuse to a child applies to this action. Doc. # 21, p. 15 (citing Conn. Gen. Stat. § 52-577d).
1. Choice of Laws — Substantive
“When a federal district court sits in diversity, it generally applies the law of the state in which its sits, including that state’s choice of law rules.” In re Coudert Bros. LLP,
To determine the forum with the most significant relationship in the context of a tort case, the court considers “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” O’Connor,
The Court must consider such contacts in the context of the relevant policies and interests of the jurisdictions involved. MM Global Servs., Inc. v. Dow Chemical Co.,
In the case at bar, there are contacts with both states, Texas and Connecticut. With respect to Texas, it is the state where Plaintiff was allegedly primarily subjected to injury from Rivera’s sexual abuse.
In contrast, Connecticut contacts include the place of incorporation and the principal place of business of defendant KOC, the party who allegedly failed to use reasonable care to supervise Rivera and/or protect Plaintiff from being abused by him. According to Plaintiff, Connecticut is the state from which KOC administers all of its subordinate programs, including the units of its youth program, Columbian Squires, throughout the United States. Doc. # 1, ¶ 9 (“Each council is a direct subordinate organization under the direction and control of the [KOC] headquarters in Connecticut.”); id., ¶ 10 (“A Columbian Squires unit must operate within the structure and regulations of the [KOC].”).
Connecticut is also the state from which the Supreme Advocate orchestrated the December 2009 “agreements” with Plaintiff. In fact, the purported “Settlement Agreement and Full Release,” herein addressed as the “Release,” states in its first paragraph that the agreement is between Plaintiff and “Knights of Columbus, a specially-chartered Connecticut Corporation with its principal place of business located at One Columbus Plaza, New Haven, Connecticut.” Doc. # 1, Ex. A (introductory paragraph) (emphasis added).. The KOC address in New Haven reappears in the “agreement” at paragraph 5 of the “Confidentiality” provisions, requiring the Plaintiff to “immediately contact the Knight[s] of Columbus Supreme Advocate at the Supreme Office in New Haven, Connecticut ” if Plaintiff is ever “served or notified of a subpoena or other document request” with respect to the terms of the agreement at issue. Id., ¶ 5 (emphasis added).
In examining the location where the relationship between the parties was centered, it appears Plaintiffs relationship with Rivera was centered in Texas. However, the administration and/or supervision of the Columbian Squires Brownsville unit by the KOC was under the direction and control of the “Supreme Office” in New Haven, Connecticut.
Weighing the aforesaid factors in their entirety, the Court finds that the balance weighs in favor of Texas as the state with the most significant relationship to the tort at hand, the intentional sexual abuse of the minor Plaintiff. As stated above, Texas is the location where most of the allegedly abusive conduct occurred and thus the place where the injuries occurred. Under the most significant relationship test, I find that Texas substantive law applies.
2. Choice of Laws — Procedural
Nonetheless, such a determination does not resolve the issue of the applicable statute of limitations. “Where a statute of limitation is considered procedural, the law of the forum applies.” Icahn v. Todtman, Nachamie, Spizz & Johns, P.C., No. 99 CIV 11783(WHP),
Thus, even if the Court applies Texas substantive law with respect to the elements of the tort at hand, the Court must still determine the applicable procedural law, including the relevant statute of limitations. See Dennany,
Because statutes of limitations are labeled “procedural” under Connecticut law, Connecticut courts traditionally apply Connecticut’s statute of limitations when the plaintiff pursues a common law cause of action
Moreover, under Connecticut law, “unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim.” See Roberts,
With respect to the particular statute of limitations at issue for intentional sexual abuse, Conn. Gen. Stat. § 52-577d, a judge of this District has previously held that “§ 52-577d is not substantive, for it does not create a right of action to recover damages for sexual misconduct, but merely creates the appropriate statute of limitations for such [a] claim.” Borawick v. Shay, No. 5:92 CV 00033 (TFGD),
Despite the cited case law, KOC urges this Court to follow “the emerging trend” discussed in Phillips v. Scott,
An examination of Phillips v. Scott reveals that it was an exceptional case, based on extraordinary facts, rather than one designed to set new precedent. In Phillips, plaintiff brought an unjust enrichment claim which arose in California, involving an oral agreement he entered with his mother in California concerning his acquisition of California real estate. The only fact connecting the action with Connecticut was the mother’s move to that state prior to her death. Under such ex
Furthermore, the Court in Phillips specified that even if it had applied Connecticut law to the action at hand, the action would have remained time-barred. The Court thus explained: “Although California’s governing statute of limitations is substantially shorter than the applicable statute of limitations in Connecticut, see Conn. Gen. Stat. § 52-576, even if Connecticut’s six year statute of limitations were applied, plaintiffs claim would still be barred as his claim ..., accrued on May 2, 1998 and he did not initiate the current action until December 1, 2004. The foregoing notwithstanding, in light of the decision reached [herein], supra, further analysis of the application of Connecticut law need not be addressed.”
Defendant also cites Advest, Inc. v. Wachtel,
.The court in Advest, however, did not address the proper choice of procedural law in a Connecticut forum. In Advest, plaintiff securities dealers appealed from the trial court’s judgment denying their application to permanently enjoin nine defendant investors from bringing an arbitration claim in the state of New York. The arbitration claim had been adjudicated in the trial court as precluded under the applicable Connecticut three-year statute of limitations, Conn. Gen. Stat. § 52-577. On appeal, in determining whether the trial court’s denial of the injunction was an abuse of discretion, the Supreme Court discussed the issue of whether New York would thereafter permit the arbitration claim to proceed in New York. With respect to the state of New York, the Court thus mentioned the Restatement Conflict of Laws § 6 as it related to “whether the New York forum will apply Connecticut’s statute of limitations” and concluded that it would “depend upon New York’s choice of law.”
In the present action, the applicable forum is Connecticut and this Court must therefore apply Connecticut’s choice of law rules, which generally treat statutes of limitations as procedural in nature. No Connecticut case, including O’Connor v. O’Connor,
In Connecticut, the traditional choice of law rules distinguish between substantive and procedural law, with the law of the forum, or lex fori, controlling those issues which are construed as governing procedure. Morris Plan Industrial Bank v. Richards,
The exception to that rule, where the action is created by the statute itself, is not present here. Negligence is a common law claim both in Texas and Connecticut. Applying the substantive law of either jurisdiction does not alter the fact that Connecticut procedural law applies. Absent the lone exception where the relevant action is created by statute and the foreign statute of limitations is essentially interwoven with the statute creating the action, “Connecticut federal courts have uniformly held that Connecticut’s statutes of limitations ordinarily will govern in diversity actions such as the present case.”
As Judge Kravitz concluded in Landry v. Potter:
[Bjecause Plaintiffs’ complaint “sounds in simple negligence, a cause of action recognized at common law and not created by statute,” the exception noted above does not apply and therefore, a “Connecticut court would consider the statutes of limitations procedural and would apply the statutes of limitations of the forum, Conn. Gen. Stat. § 52-584.” Slekis [v. National RR Passenger Corp.,56 F.Supp.2d 202 ,] 205 [ (D.Conn.1999) ]. Because the Court sits in diversity, we do likewise.
Accordingly, this Court, sitting in diversity, will apply Connecticut’s 30-year statute of limitations for an “action for damages to [a] minor caused by sexual abuse, exploitation or assault” to the negligence action in suit.
Defendant next moves for dismissal of Plaintiffs negligence action on the grounds that he has failed “to allege any facts that would support a finding that the injuries to Plaintiff were foreseeable to the Knights [of Columbus].” Doc. # 18, p. 17 (emphasis in original). Under the substantive law of Texas, the state with the most significant relationship to the tort at hand, the requisite elements of a negligence action are: “1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach.” Greater Houston Transp. Co. v. Phillips,
“The threshold inquiry in a negligence case is duty.” Greater Houston Transp. Co.,
Whether a duty exists in a particular case “is a question of law for the court to decide from the facts surrounding the occurrence in question.” Greater Houston Transp. Co.,
Foreseeability means that a person of ordinary intelligence would have anticipated the danger his or her negligence creates. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Proximate cause incorporates two elements: cause in fact and foreseeability. The test for cause in fact, or “but-for cause,” is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred.
Foreseeability “requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Doe v. Boys Clubs of Greater Dallas, Inc.,
An examination of foreseeability and proximate cause “generally involves a practical inquiry based on common experience applied to human conduct.” Doe v. Boys Clubs of Greater Dallas, Inc.,
2. Defendant’s Argument
With respect to the pending motion, KOC argues that “Texas courts have consistently rejected cases against organizations regarding the alleged sexual abuse of minors by an employee or volunteer when there was nothing in the record to indicate that the organization had a specific reason to know that its employee or volunteer was likely to commit the alleged abuse.” Doc # 18, p. 18. In support KOC cites, inter alia, Doe v. Boys Clubs of Greater Dallas, Inc.,
In Doe v. Boys Club of Greater Dallas, Inc., the plaintiffs, grandparents of abused minor boys, sought damages based on the
Plaintiffs appealed that decision to the Texas Supreme Court. Doe v. Boys Clubs of Greater Dallas, Inc.,
The Texas Supreme Court affirmed summary judgment for the Boys Club on the basis of proximate cause, concluding that Mullens’ “prior DWI convictions did not indicate criminal conduct in any way akin to sexual assault of young boys.”
Furthermore, the Texas Supreme Court held that “since there [was] no evidence that Mullens molested or assaulted any boys at the club’s premises, there [was] no evidence the Boys Club’s alleged failure to supervise was a producing cause of the injuries to [the plaintiffs’ grandsons].” Id. at 478 (emphasis added). Specifically, all alleged assaults on the boys took place outside of the premises of the Boys Club, on private fishing and camping trips that “were not Boys Club-sponsored events.” Id. at 481.
Thus, in Doe v. Boys Clubs of Greater Dallas, Inc., the Texas Supreme Court reviewed the evidence presented on summary judgment in determining that, even “if the Boys Club breached a duty to investigate, screen, or supervise volunteers, this breach was not the cause in fact of the plaintiffs’ injuries.” Id. at 477.
KOC also cites Doe v. Catholic Soc. of Religious and Literary Educ., No. H-09-1059,
Both of KOC’s cited cases, Doe v. Boys Clubs of Greater Dallas, Inc. and Doe v. Catholic Soc. of Religious and Literary Educ., are distinguishable from the one in suit on two grounds. First, neither court examined the adequacy of the complaint on a Rule 12(b)(6) motion, i.e., whether plaintiffs’ allegations failed to state a claim for negligence. Rather, the courts addressed summary judgment motions and thus focused on the evidence presented to determine whether “there [was] no genuine dispute as to any material fact and the movant [was] entitled to judgment as a matter,” Fed.R.Civ.P. 56(a). Here, KOC has moved for dismissal of Plaintiffs negligence action as inadequately pled so there is no issue regarding an adequate factual basis to sustain his claim. Discovery has not closed and KOC has not, in the context of a 12(b)(6) motion, filed any stipulated facts, affidavits, or extraneous materials for the Court’s consideration.
Second, both cited cases are factually dissimilar from the present case in that the leaders in those cases assaulted the boys at private events. Mullens in Doe v. Boys Clubs of Greater Dallas, Inc. assaulted the boys on private camping and fishing trips; and Beeler, the offending teacher in Doe v. Catholic Soc. of Religious and Literary Educ., abused the plaintiff in his home. In contrast, in the case in suit, Plaintiff has alleged that Rivera abused him at the KOC hall and also on KOC-sponsored trips to local and national Squires events. Doc. # 1, ¶ 17. Under the alleged circumstances, one could reasonably conclude that KOC knew or reasonably should have known of the general danger Rivera posed to the boys in the Brownsville Squires. Given the KOC-related settings of abuse, KOC’s alleged failure to supervise or investigate Rivera, or to acknowledge what it may have learned, could have proximately caused Plaintiffs alleged injuries. In sum, the Texas common law has not foreclosed an action for negligent supervision where the injuries occurred at defendant-sponsored activities and locations, potentially creating the proximate cause that was lacking in both Doe v. Boys Clubs of Greater Dallas, Inc. and Doe v. Catholic Soc. of Religious and Literary Educ.
In Doe v. Norwich Roman Catholic Diocesan Corp.,
Applying the reasoning of the Restatement [ (Second) of Torts § 442B (1965) ], we must conclude, ... that there is a possibility that if Defendants had knowledge regarding Sullivan’s [the priest’s] misconduct, Defendants could have been a proximate cause of injury to Plaintiff. Therefore, we would need to know what level of knowledge Defendants had about Sullivan’s alleged misconduct, because they would only be relieved of liability if Plaintiffs alleged harm was not within the scope of risk created by their conduct.
At this point we simply do not have enough facts regarding Defendants’ knowledge of Sullivan’s alleged misconduct to make a determination regarding whether Defendants could have proximately caused the harm. A motion to dismiss is often ill-suited for disposing of proximate cause without the benefit of evidence indicating the Defendants’ knowledge, see Deglin v. Norwich Free Acad., No. 546339,1999 WL 231610 , at *2 (Conn.Super. Apr. 7, 1999), and it would be would be premature and inappropriate to dismiss the negligence claim at this stage of the pleadings, even though Plaintiff may have difficulty ultimately proving knowledge, and therefore, proximate cause.
As in the Norwich case, with respect to KOC’s possible negligence, based on Plaintiffs allegations of pervasive sexual abuse at the KOC hall and KOC sponsored events, there is, as set forth in Part II.B. supra, “sufficient information [in the Complaint] from which knowledge [of the Defendant] could be inferred.”
3. Plaintiff’s Allegations of Negligence
In the Complaint at issue, Plaintiff alleges that KOC failed to protect him “from sexual assault and lewd and lascivious acts committed by Rivera” by, inter alia, failing to supervise Rivera in his position.
4. Foreseeability — Duty and Proximate Cause
Accepting as I must on this motion the truth of the well-pleaded factual allegations in the Complaint, I conclude that, in general, KOC owed Plaintiff a duty of care to ensure his welfare as a Brownsville Squire. That duty included, inter alia, the responsibility to properly supervise the Squires’ leader, Rivera. KOC, as a renowned and long-established religion-based organization, urges parents to entrust the welfare of their boys, and actively recruits those boys, to dedicate their formative years to the Columbian Squires, an organization committed to developing leadership qualities and supporting the Roman Catholic Church. Doc. # 1, ¶ 10. Having made such representations, KOC owed the Squires, such a Plaintiff, a duty to exercise reasonable care to prevent foreseeable injury by overseeing their leader.
Under Plaintiffs allegations, it is thus plausible that KOC’s alleged failure to detect and thereafter prevent Rivera’s abusive behavior “proximately caused” Plaintiffs injuries. In other words, had KOC undertaken reasonable supervision of Rivera at Squires events, his alleged extensive abusive behavior, involving drugs, alcohol and pedophilia, would have come to light, resulting in Rivera’s termination. In short, Plaintiff would not have been injured.
Furthermore, I have examined the enunciated “interrelated factors” of Texas courts, Greater Houston Transp. Co., 801
Moreover, the magnitude of KOC’s burden to guard against Plaintiffs injury was manageable in light of the location of much of the abuse, KOC’s hall and events, and KOC’s massive size and numerous resources. Unscheduled supervisory visits by KOC officials to meetings and events and/or interviews with Squires would have sufficiently monitored Rivera’s leadership. Under such circumstances, KOC should not be allowed to profess ignorance of Rivera’s activities in the Brownsville Squires to excuse KOC’s failure to prevent abuse, especially where much of the alleged abuse occurred at KOC meetings and events. Just as a multi-national corporation cannot disclaim any and all liability for conduct committed in its outlying offices and locations, neither should an organization of KOC’s sophistication, size, and organized structure be allowed to avoid liability by claiming an inability to supervise those running its programs at satellite locations.
Finally, considering public policy factors — described by the Texas Supreme Court as “other relevant competing individual and social interests implicated by the facts of the case,” Peavy,
Children, as vulnerable members of society, are owed greater care than their adult counterparts, who, in contrast, possess the maturity necessary to remove themselves from harmful situations.
In sum, balancing Texas’ relevant factors regarding the multi-faceted issue of the legal duty of care, Peavy,
C. Fraud & Misrepresentation Claims — Declaratory Relief
Finally, Defendant seeks dismissal of Plaintiffs Complaint on the grounds that the “Settlement Agreement and Full Release” bars his claims for both negligence and declaratory relief. Defendant argues that (1) when Plaintiff signed the alleged release, he was not justified in relying on the alleged misrepresentations by the KOC agent; and, (2) in any event, Plaintiff later ratified the release as a matter of law. Doc. # 18, p. 25-33.
1. Declaratory Relief in General
In Count Two for “declaratory relief,” Plaintiff requests this Court to render declaratory judgment in his favor, thereby declaring the release at issue “void as procured by fraud.” Doc. # 1, ¶ 42. “The Declaratory Judgment Act [“DJA”] by its express terms vests a district court with discretion to determine whether it will exert jurisdiction over a proposed declaratory action.” Dow Jones & Co., Inc. v. Harrods Ltd.,
The district court thus retains discretion under the DJA to determine whether to exercise jurisdiction over the action at issue, Dow Jones & Co., Inc.,
An action for declaratory judgment must meet the “case or controversy” requirement in that it “must be sufficiently real and immediate, allowing specific and conclusive relief ... and be ripe for adjudication.” Dow Jones & Co., Inc. v. Harrods Ltd.,
In the case at bar, there exists, as Plaintiff contends, “an active controversy” between the parties with respect to the validity of the Release. Doc. # 1, ¶ 42. If as KOC asserts, the Release is valid, Plaintiff has broadly released “all claims against KOC, the Dioceses of Brownsville and Laredo, Texas, and all of their past, present, and future agents from any and all obligations, causes of action, or claims in law or in equity.” Doc. # 1, p. 11-12. Specifically, if valid, the Release encompasses and bars all of Plaintiffs claims in suit. If, however, the Release was in fact procured by KOC agents through fraud, the Release is invalid and comprises no bar to the actions herein. Because of this core controversy between the parties, the Court concludes, at the outset, that the matter of the Release is appropriately the subject of requested declaratory relief.
2. Plaintiff’s Claim for Declaratory Relief
In seeking declaratory relief, Plaintiff alleges that “[t]here is an actual controver
In its pending motion to dismiss, KOC asserts that Plaintiff has failed to state a valid claim for fraud and misrepresentation in that “(1) Plaintiff was not justified in relying on the alleged misrepresentation [when he signed the Release] and (2) Plaintiff has waived his right to assert fraud as a ground to avoid the Release because he ratified the transaction by accepting its benefits after gaining full knowledge of the alleged fraud.” Doc. # 18, p. 23. KOC reasons that because “[t]he Release is valid,” it “precludes Plaintiffs negligence claim.” Id., p. 34. As a result, KOC urges the Court to “dismiss Plaintiffs Complaint in its entirety.” Id., p. 23.
The facts Plaintiff has alleged regarding his signature with respect to the Release are as follows. In December 2009, Plaintiff reported abuse by Rivera to KOC officials, “disclosed his long history of chemical addiction as a result of Rivera plying him with drugs and alcohol,” and informed them “that he wanted to enter a treatment program.” Doc. # 1, ¶ 23. Plaintiff specifically asked the KOC Supreme Advocate for assistance in paying for treatment for his addictions. Id. According to Plaintiff, the Supreme Advocate agreed that KOC would pay for such treatment and never discussed or mentioned that the financial assistance would be given “to settle [Plaintiffs] claims” against the KOC. Id.
Thereafter, on December 23, 2009, when a KOC agent and his wife met with Plaintiff, they allegedly told him that “they wanted to give him $200 to pay for his travel expenses to the rehabilitation facility.” Id., ¶ 24. However, before giving Plaintiff the money, the agent requested that he sign a document to acknowledge receipt of the $200. Id. Plaintiff complied by signing. Id. The KOC agent then gave Plaintiff an additional, single piece of paper and asked Plaintiff “to sign it to acknowledge that [KOC] would pay for his [rehabilitation] treatment.” Id. Plaintiff alleges that he then signed that sheet and the agent’s wife notarized the document. Id. The agent then allegedly “gave [Plaintiff] $200 in cash and quickly left.” Id.
“About a week later,” Plaintiff “received a package in the mail with a copy of the document [he had] signed acknowledging receipt of the $200, along with an eight page document he had never seen before entitled ‘Settlement Agreement and Full Release.’ ” Id. Plaintiff alleges that attached to the “strange” eight-page document was “the second signature page” that the KOC agent had instructed Plaintiff to sign. Id. As described by Plaintiff, the document facially “purports to be a release of [Plaintiffs] claims against the Knights of Columbus arising from his sexual abuse by Rivera.” Id.
Defendant KOC counters that Plaintiff cannot “avoid the clear consequences of the Release” because the facts “show as a matter of law” that Plaintiff “was not justified in relying on the alleged misrepresentation” and, in any event, Plaintiff “ratified the transaction by accepting its benefits after gaining full knowledge of the alleged fraud.” Doc. # 18, p. 23.
3. Choice of Law
Before addressing the parties’ arguments — that is, the legal sufficiency of Plaintiffs claim with respect to declaratory relief for fraud and/or misrepresentation— the Court must determine the state law applicable to that claim. It is well-established that a district court sitting in diversity jurisdiction “must apply the choice of law rules of the forum state.” Brandewiede v. Emery Worldwide,
With respect to the case in suit, the purported release contains a “Governing Law” provision that states that any dispute arising under it will be governed by Texas law. In general, Connecticut law follows the Restatement (Second) of Conflict of Laws § 187 (1971), holding that, absent limited exceptions, “[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied.”
Furthermore, under Connecticut law, “[t]he fact that a contract was entered into by reason of misrepresentation, undue influence or mistake does not necessarily mean that a choice-of-law provision contained therein will be denied effect.” Elgar,
Here Plaintiff makes no specific claim that the “choice of law provision” was obtained by improper means. Rather he contends that the entire contract was obtained through fraud and deception. Accordingly, he claims that prior to signing the contract, he never saw any page or provision apart from the signature page. Although Plaintiff does not specify that KOC’s alleged deception was directed specifically toward the choice of law provision in the Release, the alleged deception essentially encompasses all provisions, including choice of law.
Under Connecticut law, where a party alleges fraud in the execution of the contract, the court applies the most significant relationship test in evaluating the choice-of-law question. See Economu v. Borg-Warner Corp.,
Examining the factors to be analyzed in the most significant relationship test, the facts surrounding the execution of the Release are not fully established in Plaintiffs Complaint. For example, Plaintiff does not specify in which state he executed his signature.
The Court need not, however, perform an in-depth choice of law analysis because the laws of all possible applicable states— Kansas, Missouri, Texas and Connecticut — are consistent on the issue of whether Plaintiff has properly pled fraud and misrepresentation with respect to the alleged release.
4. Reliance on Alleged Misrepresentation
KOC asserts that, as a matter of law, Plaintiff has failed to plead a viable claim for fraudulent misrepresentation because Plaintiff could not have justifiably relied on the purported misrepresentation that the one-page document he signed was simply an acknowledgment that KOC would pay for his treatment. Doc. # 18, p. 25. KOC cites case precedent, quoting the Restatement (Second) of Torts, to argue that a recipient of a fraudulent representation cannot justifiably rely upon its truth “if he knows that it is false or if its falsity is obvious to him.” Id. (citing Restatement (Second) of Torts § 541 (1977)). See, e.g., Slaymaker v. Westgate State Bank,
Furthermore, KOC relies on United States Supreme Court precedent that although the recipient of a fraudulent misrepresentation is not barred from recovery based on negligent failure to discover its falsity, he must “use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation.” Field v. Mans,
“On the other hand, [this] rule ... applies only when the recipient of the misrepresentation is capable of appreciating its falsity at the time by the use of his senses.” Field,
“[W]hat constitutes reasonable prudence and diligence with respect to such reliance, and what constitutes a reckless failure to exercise such prudence” differs from case to case. Hanson v. Acceptance Finance Co.,
In the case at hand, KOC argues that “[e]ven a cursory glance” at the single piece of paper signed by Plaintiff “would have alerted him [to the fact] that he was not signing a simple acknowledgment” of payment for treatment. Doc. # 18, p. 27. KOC points to the five lines above Plaintiffs signature on that paper and states that “[t]his incomplete paragraph refers to ‘this Agreement’ and also references an earlier ‘paragraph 4’ that is not contained on the page.”
Plaintiff counters, arguing that he was justified in relying on the false statements of the KOC agent and his wife that he was being asked solely to sign an acknowledgment of his “receipt of a $200 payment and Defendant’s promise to pay for his rehabilitation.” Doc. # 21, p. 22. Plaintiff was not presented with the text of the Release and “had no idea that there were other pages.” Id.; see also Doc. # 1, ¶ 23. Furthermore, even if he should have been aware that “there was more to the document than what he had seen, he had no reason to believe that the remainder of the document was intended to extinguish a substantial legal claim through the general release of all liability.”
Most importantly, Plaintiff asserts that “[t]he falsity of Defendant’s representations was not known or obvious to him.” Id., p. 23. As Plaintiff states, “[i]t has long been the law in Connecticut that the victim of a misrepresentation has no duty to investigate the truthfulness of the deceit ... no authority can be found to warrant the doctrine, that a man must use diligence to prevent being defrauded, otherwise he shall be entitled to no remedy.” Chapman Lumber v. Tager, No. CV010086006S,
Having reviewed the parties’ arguments, the Court finds that it need not decide the merits of whether Plaintiff should have appreciated the falsity of the KOC agents’ statements on December 23, 2009. Rather, construing the Complaint liberally, accepting all well-pleaded factual allegations in the Complaint as true and drawing all inferences in Plaintiffs favor, the Court assesses his fraud/misrepresentation claim as to whether it contains sufficient factual matter to state a claim for fraud, and hence declaratory relief, that is plausible on its face. I find that it does.
Granted, as KOC emphasized, the signature page Plaintiff executed contained a reference to “this Agreement, as shall be determined by a court of competent jurisdiction,” and a designation at the bottom of the page that it is number “7.” Doc. # 1, p. 17. Nowhere on that page, however, is there any indication that such an agreement constituted a release of KOC’s liability. Even if a more worldly or discerning individual, upon being asked to sign, would have inquired regarding the text on possible additional pages, it remains a question of fact as to whether Plaintiff should have recognized the falsity of the KOC agents’ representations and performed an investigation before signing. With only four and a half lines of incomplete text referring to an “Agreement,” Plaintiff could plausibly have believed that the entire document was drafted to evidence Plaintiffs ac
In light of the facts pled by Plaintiff, the Court finds that Plaintiff has stated a valid legal claim upon which relief may be granted. Particularly with respect to justifiable reliance, Plaintiff claims that he was presented with a sole signature page and told that “the document he was being asked to sign pertained only to their agreement regarding treatment, which was false and made as a matter of fact.” Doc. # 1, ¶ 24. Nothing on that signature page mentioned a release, evidenced a direct falsehood and/or directly contradicted the Defendant’s representations at the signing.
5. Alleged Ratifícation of Release
Lastly, KOC argues that even if Plaintiff had justifiably relied on the alleged misrepresentations at the December 23, 2009 execution of the signature page, he “waived his right to assert fraud as a ground to avoid the Release because he ratified the transaction by accepting its benefits after gaining full knowledge of the alleged fraud.” Doc. # 18, p. 30. As Defendant asserts, at common law, the question of ratification is a matter of law if the supporting evidence is clear. Doc. # 18, p. 23. See, e.g., Old Rep. Ins. Co. v. Fuller,
Under the laws of all four potentially relevant state jurisdictions (Kansas, Missouri, Texas, and Connecticut), a party waives his right to avoid a contract for misrepresentation if he manifests to the other party his intent to affirm the contract, acts in a manner inconsistent with disaffirmance, or fails within a reasonable time to disclose his intention to avoid the contract. See e.g., Moore v. Farm & Ranch Life Ins. Co.,
With respect to a Rule 12(b)(6) motion to dismiss, the Court treats all well-pled facts in the Complaint as true. See Ashcroft v. Iqbal,
Plaintiff disagrees with this characterization of his post-signing behavior as “ratification” of the fraudulently created release. He accepts that he “discovered the fraud in approximately late-December 2009” and “filed this lawsuit on December 14, 2010.” Doc. #21, p. 24 (citing Complaint, Doc. # 1, ¶ 24). Nonetheless, he claims that he “never vacillated from his position that he was duped nor has he remained silent and accepted the full benefits of the Release.” Id. (internal quotations omitted). Plaintiff contends that he never bargained with KOC to enter into the Release and therefore did not accept the benefit of a bargain and repudiate it.
The Court examines the dates, as set forth in the Complaint, and Plaintiffs alleged actions to determine whether he may have ratified the release at issue as a
If the Release accurately represents the dates of Plaintiffs initial treatment for chemical dependency as December 26, 2009, he likely did not receive the Release documents in hand prior to his departure for Antigua for treatment. Plaintiff alleged that he did not receive the full release document until at least “[a]bout a week” after signing on December 23, 2009.” Doc. # 1, ¶ 24. Consequently, according to Plaintiffs Complaint, he would not have received the Release in hand until approximately December 30, 2009, by which time he would have already begun his chemical dependency treatment. Once in this program in Antigua, it is unknown whether Plaintiff was allowed to communicate with those in the outside world, such as KOC, and/or to seek legal assistance. Because Plaintiff alleges he was unaware of the purported Release at the time of signing — did not connect the $200 in pocket expenses and/or the tuition for his treatment with release of all of his potential claims prior to his entry into treatment— he could not repudiate such “benefits” pri- or to treatment.
The facts as pled leave open a number of factual issues — e.g., what were the actual and exact dates and programs of Plaintiffs chemical dependency treatment in Antigua or elsewhere; on what exact date and in what location did Plaintiff receive the Release in the mail; did Plaintiff contact KOC to discuss the contents or possible significance of the Release and, if so, when; what disbursements were made from KOC to Plaintiff and/or to any rehabilitation program provider, and when did such payments occur; did Plaintiff refuse or attempt to return funds received from KOC after learning of the Release. Such evidence could clearly bear on the outcome of the ratification issue, but does not appear on the face of the Complaint.
Finally, KOC relies on the filing date of this action — almost one year after Plaintiff allegedly learned of the alleged fraud and/or misrepresentation by KOC— as the sole basis for arguing that Plaintiff ratified the Release.
Absent specific evidence supporting ratification and in the context of a Rule 12(b)(6) motion, as opposed to summary judgment, the Court does not deem the Complaint’s filing date as sufficient evidence, standing alone, of ratification. At the pleading stage, in the absence of incontrovertible facts on the face of Plaintiffs Complaint that ratification occurred, and given that Plaintiff filed his fraud/misrepresentation claim within the requisite limitations period, the Court will not dismiss the claim for declaratory relief as a matter of law. Whether there was fraud or misrepresentation with respect to the Release, and Plaintiffs actions thereafter, must be investigated during discovery and ultimately found by the trier of fact. KOC’s motion to dismiss Count Two will be denied.
For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.
D. Defendant’s Motion for Bifurcation
1. Legal Standard to Bifurcate
Under Federal Rule of Civil Procedure 42(b), a district court has broad discretion to try issues and claims separately in order to “further convenience, avoid prejudice, or promote efficiency.”
Because “the general practice is to try all the issues in a case at one time,” Miller v. Am. Bonding Co.,
“In establishing that bifurcation is warranted, the burden falls squarely on the party seeking bifurcation.” Guidi v. Inter-Continental Hotels Corp., No. 95 Civ. 9006(LAP),
Bifurcation is within the district court’s discretion and decided on a case-by-case basis. Idzojtic v. Pennsylvania R.R. Co.,
Exercising its discretion, the Court examines such factors as: (1) whether the pertinent issues are significantly different from one another; (2) whether the issues are to be tried before a jury or to the court; (3) whether the posture of discovery on the issues favors a single trial or bifurcation; (4) whether the evidentiary issues overlap; and (5) whether the party opposing bifurcation will be prejudiced if it is granted. See, e.g., Strychasz v. Maron Const. Co., Inc., No. Civ. 3:01CV2063(PCD),
2. Defendant’s Request to Bifurcate
In the case in suit, Defendant seeks bifurcation for the following “three reasons: (1) “final determination on the validity of the Release is potentially dis-positive;” (2) “a preliminary determination as to the validity of the Release has the potential to save the Court and the parties valuable resources and time,” especially
Examining each of the Defendant’s bases for bifurcation in turn, the Court finds that Defendant has met the burden of establishing that bifurcation is merited. First, preliminary adjudication of the issue regarding the validity of the Release may entirely eliminate the need to litigate Plaintiffs negligence claim. As Defendant asserts, “[t]he course of this case ... hinges on the validity of Plaintiffs Release of his claims.” Doc. # 23, p. 1. Given the sweeping language of the Release’s provisions, if that agreement is found to be valid, Plaintiffs remaining negligence action may be barred. Disposition of the validity of the Release will thus potentially prevent unnecessary expenditure of resources by the parties and promote judicial economy.
Examining judicial economy, the Court notes that bifurcation will result in limited, evidentiary overlap. The majority of facts pertaining to the validity of the Release, especially the testimony regarding negotiations and signing of the Release, are separate and distinct from the facts relevant to Plaintiffs negligence claim stemming from his alleged sexual abuse by Rivera. It is thus unlikely that bifurcation of discovery and trial would result in multiple witnesses being recalled or evidence being presented repeatedly.
Furthermore, considering undue prejudice to Defendant, segregation of the issue of validity of the Release will prevent one jury from considering that issue simultaneously with the negligence claim arising from the alleged horrific sexual abuse of Plaintiff. Because the evidence regarding negligence is likely emotionally disturbing
3. Plaintiff’s Objection to Bifurcation
Plaintiff objects to Defendant’s Motion to Bifurcate “on two grounds.” Doc. # 30, p. 1. He argues that “[f]irst, the evidence of sexual abuse that Defendant contends would prejudice the jury in deciding the release issue, is in fact relevant to both Counts in the Complaint, and thus bifurcation would not materially reduce any potential prejudice.” Id. “Second, separating issues with overlapping evidence into two completely separate trials would inconvenience the Court and the parties, and would not be in the best interest of judicial economy or justice.” Id., p. 1-2.
With respect to prospective prejudice to KOC and overlapping evidence, Plaintiff states that “the testimony underlying sexual abuse is relevant to both the Negligence Count and the Release Count” such that there will be “substantial overlap in the proof of both claims.” Id., p. 2. Thus, “[i]n proving that Defendant deceptively induced Plaintiff into signing a purported release document, Plaintiff intends to present testimony and evidence relating to the motive and intent of Defendant to deceive Plaintiff’ — that is, “to fraudulently evade a claim for substantial damages arising from child sexual abuse, and instead only pay the nominal amount of $200 and the costs of psychological treatment.”
Granted, the elements of fraud at common law in either Connecticut or Texas, two states with significant relationships to the action, include an intent by the defendant to induce the plaintiff to act and damage to the plaintiff as a result of his reliance on defendant’s knowingly or recklessly false statements. However, the Court is unpersuaded that Plaintiff will have to present all detailed evidence of his sexual abuse in order to prove KOC’s intent. Rather, with respect to KOC’s motive, Plaintiff need only present evidence of what KOC knew regarding the alleged
With respect to damages, Plaintiff may provide evidence of damages he sustained as a result of the alleged sexual abuse, which may include, inter alia, his out-of-pocket costs of treatment for narcotics addiction and/or resulting emotional damage. Plaintiff may thus present a reasonably approximate calculation of the amount he seeks to recover by pursuing his negligence action. Once again, all details of Plaintiffs sexual abuse need not be presented.
In sum, although there is necessarily a limited amount of evidentiary overlap with respect to Plaintiffs negligence and declaratory relief/release claims, such overlap does not negate the fact that adjudication on the validity of the Release may dispose of this action, thereby preventing further proceedings and testimony.
Lastly, holding an initial trial on the validity of the Release will not prejudice Plaintiff or delay resolution of his claims, but rather streamline any subsequent trial on his negligence action. The facts surrounding the signing of the Release, including the documents and testimony of the handful of witnesses who were then present, may be presented at the first, and potentially only, trial. Moreover, according to KOC, “[djiscovery can be completed in weeks, not months or years.” Doc. # 23, p. 2.
In sum, the Court finds it in the best interest of both parties to grant Defendant’s Motion to Bifurcate pursuant to Federal Rule of Civil Procedure 42(b). Doc. #22. Bifurcation will further convenience, avoid prejudice, and likely promote efficiency. The validity of the Release will be addressed first, both in discovery and subsequently, if necessary, at trial. Should the Release be held invalid- — -that is, procured fraudulently via misrepresentations by KOC’s agent — the remaining discovery and trial on the negligence claim will follow.
The Court thus ORDERS that, on or before March 22, 2013, the parties shall confer and file with the Court their recommendations for case deadlines with respect solely to Count Two: the issue of whether the Release was obtained through fraud and misrepresentation. Upon receipt and review of the proposed deadlines, the Court will set revised case deadlines to reflect bifurcation of Counts One and Two. Upon adjudication of Count Two, regarding validity of the Release, the Court will, if necessary and after recommendation by the parties, set similar deadlines with respect to Plaintiffs negligence action.
VI. CONCLUSION
For all of the foregoing reasons, Defendant’s Motion to Dismiss for Failure to State a Claim (Doc. # 17) is DENIED in its entirety. Defendant’s Motion to Bifurcate Counts One and Two of Plaintiffs Complaint for trial (Doc. # 22) is GRANTED. Bifurcation of these claims will further convenience of the parties and witnesses, avoid prejudice to Defendant, and promote judicial efficiency in potentially disposing of the entire action or moving expeditiously forward. Consequently, discovery and trial will be held first on Plaintiffs second claim for declaratory relief with respect to whether the release document attached to Plaintiffs Complaint as Exhibit A, entitled “Settlement Agreement
It is the Court’s understanding from the papers that Plaintiff was a citizen of the state of Kansas at the commencement of this action, and thus his citizenship is diverse from that of Defendant, as a Connecticut corporate citizen. Such diversity of citizenship confers subject matter jurisdiction on this Court. 28 U.S.C. § 1332(a)(1). If, however, Plaintiff was a citizen of (ie., domiciled in) a state other than Kansas at the action’s commencement, he must so inform the Court by affidavit on or before March 22, 2013. Absent such a filing by Plaintiff with respect to his citizenship, the Court will accept that the Complaint’s jurisdictional allegation that, for diversity purposes, Plaintiff and KOC are citizens of Kansas and Connecticut, respectively.
Finally, both parties are directed to confer and submit their joint recommendations for updated case deadlines for discovery and trial of Count Two, regarding the validity of the Release, on or before March 22, 2013.
The parties may wish to consider waiving a jury with respect to the bifurcated trial of Count Two, and consenting to a bench trial on that issue.
It is So Ordered.
Notes
. Plaintiff’s complaint states that he is "sui juris.” According to Black's Law Dictionary (9th ed. 2009), "sui juris” is defined as “[o]f full age and capacity.”
. Plaintiff cites numerous instances of Rivera plying him and/or other Squires with alcohol or narcotics prior to sexual abuse. See, e.g., Doc. # 1, ¶ 11 (Plaintiff "quickly learned that ... [Rivera] frequently gave [the other boys] alcohol and encouraged them to drink around him”); ¶ 17 (during trips to local and national Squires events, "Rivera would give [Plaintiff] and the other boys alcohol”); ¶ 19 (Rivera
. Plaintiff described such threats as follows:
[Rivera] often told [Plaintiff] that if he told anyone what was happening, Rivera would kill [Plaintiff's] family, or cut off [Plaintiff's] penis and send it to [Plaintiff's] mother in a jar. [Plaintiff] frequently saw Rivera carrying a firearm and believed Rivera's threats. On at least one occasion, Rivera held a gun to [Plaintiff's] head and threatened to kill him if [he] did not comply with Rivera’s demands for sex.
Doc. # 1, ¶ 16.
. Plaintiff also alleges that "[o]n another occasion, Rivera brought [Plaintiff] to visit Rivera's brother, who showed Rivera pornography and sexually abused [him].” Doc. # 1, ¶ 19.
. Reading the Complaint broadly, in addition to abuse at KOC activities, such "red flags” might include, inter alia, the unusual gifts and privileges Rivera provided to Plaintiff during the period of abuse {e.g., gifts of clothing, money, and dinners and use of Rivera’s motor vehicle). Doc. # 1, ¶ 18.
. Plaintiff contends that during the period when Rivera abused him, Rivera commented frequently about engaging other boys in sexual conduct and clarified that he "would ‘trade [Plaintiff] in’ when he turned 18 because he would be too old and Rivera would not want him anymore.” Doc. # 1, ¶ 20.
. During his contact with the KOC Supreme Advocate in December of 2009, Plaintiff "was informed that Rivera [was] still active as a leader of the Columbian Squires." Doc. # 1, II23.
. The Complaint does not specify where the documents at issue were executed. Doc. # 1, ¶ 24. “John A. Mahon,” whose name appears on the Notary Public stamp and on the Notary Public signature line as the person who witnessed Plaintiff's signature on the alleged release, was commissioned by the “State of Kansas” according to his stamp. Doc. # 1, p. 17. However, it is also possible that the signing took place in Missouri because the signature page mentions that the Plaintiff was "presently residing in Missouri” and identified by the Notary Public through an identification card "issued by the state of Missouri.” Id., p. 17.
. The Court notes, as stated supra herein at n.8, that the notary’s name on the attached “Settlement Agreement and Full Release” (Doc. # 1, Ex. A) is "John A. Mahon” and Plaintiff contends that the document he actually signed was notarized by the KOC agent’s wife. Doc. # 1, ¶ 24. There thus appears to be a factual discrepancy as to who notarized the "single piece of paper” Plaintiff signed on December 23, 2009. Id.
. Plaintiff attached the document entitled, "Settlement Agreement and Full Release" to his Complaint as Exhibit A. Doc. # 1, Ex. A; see also id.., ¶ 24. That purported agreement states, in the section captioned, "Full Release of Liability”:
In consideration of the Settlement Amount set forth in Paragraph 1 of this Agreement [i.e., $11,000 paid by the KOC to Crossroads Centre in St. John’s, Antigua, West Indies, for the treatment of plaintiff's chemical dependency from December 26, 2009, till January 24, 2010, the expense of round-trip airfare to travel to and from Antigua, and reasonable additional itemized sums not to exceed $100,000 and yet to be determined], the Releasor [Plaintiff] expressly waives any and all rights, benefits, and defenses he may have or which may be derived from the provisions of applicable law including, without limitation, any and all known and unknown claims and resulting damages and losses, and the consequences thereof, sustained by the Releasor which have resulted or may result from the Releasor’s involvement with the Knights of Columbus, the Dioceses of Brownsville and Laredo, Texas, including, but not limited to, those in connection with any dealings between or among the Knights of Columbus Texas State Council and any of its subsidiaries, Knights of Columbus Squires and Julian J. (“Julian”) Rivera.
Doc. # 1, p. 12, ¶ 2 ("Full Release of Liability”) (emphasis added); see also id., ¶ 1 ("Settlement Amount”). On its face, this self-styled "agreement” and "release" explicitly lists the office of the “Knights of Columbus Headquarters, 1 Columbus Plaza, New Haven, CT 06510” as the address of the Supreme Advocate of the KOC, who is the KOC "contact” to be notified by Plaintiff in the event that there is an impending breach of "confidentiality” under the agreement. Id., p. 14-15, ¶ 5.
. See also John Birch Soc. v. Nat’l Broadcasting Co.,
. The United States Supreme Court has described "residency” as occurring "when a a person takes up his abode in a given place, without any present intention to remove therefrom.” Martinez v. Bynum,
. See, e.g., Joseph v. Leavitt,
. Both parties have reviewed the Complaint and have made no challenges in their papers as to the stated citizenship of the parties. Moreover, there is no indication that Plaintiff ever lived, much less was ever domiciled, in Connecticut, KOC's state of citizenship, at any time; and diversity exists where the plaintiff's citizenship is diverse from that of all defendants, St. Paul Fire and Marine Ins. Co. v. Universal Builders Supply,
. Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint "contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard set forth in Rule 8 “does not require 'detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
. Accord Lopez v. Jet Blue Airways,
. "Although the general rule is that a district court may not look outside the complaint and the documents attached thereto in ruling on a Rule 12(b)[ (6) ] motion to dismiss, [the Second Circuit has] acknowledged that the court ‘may also consider matters of which judicial notice may be taken.' ” Staehr v. Hanford Fin. Servs. Group, Inc.,
. Defendant's argument is premised on its assertion that, applying the requisite choice of law rules, this Court should apply Texas substantive and procedural law.
. Under Texas law, a minor "younger than 18 years of age" is labeled as being “under a legal disability,” such that "when the cause of action [for injury due to sexual abuse] accrues, the time of disability is not included in the limitations period.” Tex. Civ. Prac. & Rem. Code Ann. § 16.001(a)-(b).
. Texas Civil Practice & Remedies Code § 16.0045, entitled, "Five-Year Limitations Period,” states in pertinent part:
(a) A person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates:
(1) Section 22.011, Penal Code (sexual assault);
(2) Section 22.021, Penal Code (aggravated sexual assault);
(3) Section 21.02, Penal Code (continuous sexual abuse of young child or children) ....
Tex. Civ. Prac. & Rem. Code § 16.0045(a)(1)-(3).
. Conn. Gen. Stat. § 52-577d, captioned, "Limitation of action for damages to minor caused by sexual abuse, exploitation or assault,” provides:
Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.
. Although Plaintiff asserted that he was sexually abused by Rivera "at multiple locations in the United States on overnight trips” to KOC local and national events, Plaintiff did not specify the particular states. It is thus unknown whether any of the abusive activities occurred in Connecticut. Doc. #1, ¶ 17.
. As the court explained in Bilodeau v. Vlack, No. 07-CV-1178 (JCH),
. See also Dennany v. Knights of Columbus, No. 3:10cvl961 (SRU),
. In Spencer v. Hartford Fin. Servs. Group, Inc.,
[T]he Connecticut Supreme Court's decision in Baxter [v. Sturm, Ruger and Co., Inc.,230 Conn. 335 ,644 A.2d 1297 (1994)], which applied Connecticut’s traditional choice of law rule that the statute of limitations for common law claims is considered procedural, postdates both O’Connor and the 1988 revision to section 142. Until the Connecticut Supreme Court declares otherwise, it is this court’s conclusion that it should follow the traditional rule.
See also Bilodeau,
. Cf. Feldt v. Sturm, Ruger & Co.,
. The Court also notes, though the parties do not address, that "the Connecticut statute of limitations [also] applies to state law fraud claims.” Spencer,
. Even were this Court to break with Connecticut’s general rule to apply the Restatement (Second) of Conflict of Laws at §§ 6 & 142, the Connecticut statute of limitations would still potentially apply in this action because, barring “exceptional circumstances” that would make the "result unreasonable,” “[t]he forum will apply its own statute of limitations permitting the claim unless: (a) maintenance of the maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence.” 1 Restatement (Second), Conflict of Laws § 142 (1989 pocket part). Here, Texas arguably possesses a more significant relationship to the parties and occurrences and would bar the common law actions. Nonetheless, Connecticut would arguably have a "substantial interest” in whether or not a Connecticut corporation, headquartered with its principal place of business in Connecticut, directs and controls a national boys' youth program in which numerous minors are horribly and repeatedly sexually abused by the program’s leaders at official meetings and functions. Therefore, even if the Court were to find that Texas has a “more
. See also Walker v. Harris,
. See also Escobar v. Goss, 392 S.W.3d 142, 156-58 (Tex.App.-Corpus Christi 2010) (finding proximate cause/foreseeability to affirm judgment that psychiatrist was negligent in medical malpractice case (for failing to involuntarily commit patient and thereby prevent suicide) and distinguishing holding in Doe v. Boys Clubs of Greater Dallas, Inc. on the basis that counselor who molested boys in Doe did so "on overnight camping trips ... [that were] not organized by the Boys and Girls Club, but personally between the counselor and the [boys’] grandparents,” making Boy’s Club's failure to supervise the counselor merely "a preliminary condition” to the boys’ injuries rather than a “producing cause”); Scott Fetzer Co. v. Read,
. See, e.g., Doc. # 1, ¶ 28 (KOC "knew or in the exercise of reasonable care should have known that Rivera ... “was unfit, dangerous, and a threat to the health, safety and welfare of the minors entrusted to his counsel, care and protection”); ¶ 31 (KOC "had inadequate policies and procedures to protect children in the Columbian Squires it was entrusted to care for and protect”).
. Even assuming arguendo that initial screening by KOC prior to appointment of Rivera might not have revealed past misconduct or a propensity for sexually abusive be
. For Plaintiff’s allegations of pervasive abuse by Rivera within the Brownsville Squires program, see, e.g., Doc. #1, ¶ 11 (from attending Squires meetings, Plaintiff “quickly learned that the other children considered Rivera to be a 'cool' leader because he frequently gave them alcohol and encouraged them to drink around him”); ¶ 13 (Rivera gave Plaintiff "Playboy” and other "magazines with more graphic sexual depictions, including homosexual activity”); ¶ 16 (Plaintiff "frequently saw Rivera carrying a firearm” and was threatened by him that he and/or his family would be killed "if [he] did not comply with Rivera's demands for sex”); ¶ 17 ("The horrible, nightmarish sexual abuse occurred at multiple locations in the United States on overnight trips, including many local and national events for the Columbian Squires;” and Plaintiff was sexually abused “in the local Knights of Columbus[ ]hall where the Columbian Squires met, as well as Rivera’s office and apartment”); ¶ 19 (Rivera " ‘shared’ [Plaintiff] with at least one other adult leader of the Columbian Squires in another city”).
. See, e.g., Welch v. Hurd Oil Field Service, Inc., No. 07-08-0160-CV,
. See, e.g., Read v. Scott Fetzer Co.,
. Defendant KOC argues that the allegations set forth in Plaintiff's Complaint regarding KOC's knowledge of sexual abuse by Columbian Squires leaders are merely conclusory, lacking specificity and supporting facts. Doc. #18, p. 20-21 (citing Doc. # 1 (Complaint), ¶¶ 21-22). The Court, however, finds factual support that KOC knew or should have known of Rivera’s blatant abusive behavior in paragraphs not cited by KOC, such as ¶ 13 (Rivera gave Plaintiff pornography to review with Rivera on at least 10 occasions), ¶ 17 ("[t]he horrible, nightmarish sexual abuse occurred at multiple locations in the United States on overnight trips, including many local and national events for the Columbian Squires”); id. (on those occasions, Rivera gave Plaintiff and other boys alcohol); id. (Rivera sexually abused Plaintiff "in the local Knights of Columbus[ ] hall where the Columbian Squires met, as well as Rivera's office and apartment”); and ¶ 18 (Rivera plied Plaintiff with clothing, money, dinners and the use of Rivera's motor vehicle).
. Plaintiff alleges that from 1978 to 1986, Rivera engaged in blatantly abusive behavior at official KOC settings, including lending Plaintiff to another Squires leader for sexual purposes and distributing drugs and alcohol at Squires meetings in the local KOC hall and at KOC events. Doc. # 1, ¶ 17. Where inappropriate behavior was observable at KOC events, it is reasonable to impute constructive notice of abuse to KOC. Whether and to what extent KOC actually knew of Rivera’s particular abusive conduct with the Squires during his years of leadership is a question of fact, which may be established during discovery.
. Reasonable supervision by KOC may have included unexpected attendance by outside KOC leaders at the Brownsville meetings; interviews with Squires under Rivera's supervision, either directly or anonymously; and/or general inspection of the KOC meeting premises and events {e.g., for alcohol, narcotics, "pornographic” materials, and/or abusive conduct).
. See, e.g., Doe v. Boys Clubs of Greater Dallas, Inc.,
. Plaintiff and the other boys who attended Brownsville Squires meetings and took overnight trips to KOC national events, traveled under Rivera’s supervision and counted on him for guidance and protection. Instead of protection, they were allegedly plied with alcohol and drugs, and/or sexually abused and passed around as victims from Rivera to at least one other KOC leader. As a matter of public policy, KOC should not be permitted to turn a blind eye to such horrific conduct by its youth program’s leaders, which, the Complaint plausibly alleges, could reasonably have been detected at its meetings and events and hence prevented.
. At the preliminary pleading stage, reading the Complaint in the light most favorable to Plaintiff and resolving all ambiguities in his favor, the allegations suffice to state a plausible claim for negligent retention and supervision of Rivera. Upon completion of discovery, should KOC determine that the facts do not support Plaintiff's contentions of blatant sexual abuse within the Squires program, KOC may, if so advised, move for summary judgment, as did the defendants in the previously discussed Texas state cases of Doe v. Boys Clubs of Greater Dallas, Inc.,
. 28 U.S.C. § 2201(a) states in relevant part:
In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
See also Fed.R.Civ.P. 57 (stating that “[t]hese rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. § 2201”).
. The Second Circuit has also acknowledged the test of "[ojther circuits [who] have built upon this test, to ask also: (1) whether the proposed remedy is being used merely for 'procedural fencing’ or a 'race to res judicata'; (2) whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and (3) whether there is a better or more effective remedy.” See Dow Jones & Co.,
. See Doc. # 1, p. 11-17 (releasing, in consideration for $11,000 payment to Crossroads Center of St. John’s, Antigua, West Indies, for treatment of Plaintiffs "professed chemical dependency,” "one round-trip airfare to and from Antigua,” and "payment of reasonable additional sums not to exceed $100,000” for further treatment "within two years from January 24, 2010,” all claims against "[KOC,] the Dioceses of Brownsville and Laredo, Texas, and all of their past, present, and future agents” from any and all “obligations, actions, causes of action, .... [or] claims and demands whatsoever, in law or in equity”).
. Such exceptions to application of the stated choice of law include when either—
"(a) the chosen state has no substantial relationship to the parties or the transactionand there is no other reasonable basis for the parties' choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.”
Elgar v. Elgar,
Under Restatement (Second) of Conflicts of Laws § 188, "[t]he rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction.” Restatement (Second) of Conflict of Laws § 188(1). In the absence of "an effective choice of law by the parties,” courts look to such factors as: the place of contracting, the place of negotiation of the contract, the place of performance, the location of the subject matter of the contract, and the domicile, residence, nationality, place of incorporation and place of business of the parties. Id. § 188(2).
. Comment b, captioned “Impropriety or mistake,” provides in relevant part:
A choice-of-law provision, like any other contractual provision, will not be given effect if the consent of one of the parties to its inclusion in the contract was obtained by improper means, such as by misrepresentation, duress, or undue influence, or by mistake. Whether such consent was in fact obtained by improper means or by mistake will be determined by the forum in accordance with its own legal principles. A factor which the forum may consider is whether the choice-of-law provision is contained in an "adhesion” contract, namely one that is drafted unilaterally by the dominant party and then presented on a "take-it-or-leave-it” basis to the weaker party who has no real opportunity to bargain about its terms.
1 Restatement (Second) of Conflict of Laws § 187, Comment b (1971).
. Such factors include: "(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145 (1971).
. In his Complaint, Plaintiff states that he is a "resident of the State of Kansas.” Doc. # 1, ¶ 1. On the signature page of the Release, however, Plaintiff indicates that he was "presently residing in Missouri” at the time of his signature. Id., Ex. A, p. 7. John A. Mahon, the Notary Public who witnessed Plaintiffs signature on December 23, 2009, indicated through his notary stamp that he was commissioned by the "State of Kansas.” Doc. # 1, p. 17.
. Where the law of two jurisdictions is the same on a particular issue, a "false conflict” is created in which no conflict of law analysis is necessary. Dugan v. Mobile Medical Testing Services, Inc.,
. The five lines above Plaintiffs signature read as follows:
... invalidated provision comprises an integral part of, or is otherwise clearly inseparable from, the intent and sense of this Agreement, as shall be determined by a court of competent jurisdiction (see paragraph 4 hereof), in which case the parties will attempt to agree upon a valid legally enforceable replacement provision.
Doc. # 1, p. 17.
. As Plaintiff contends, the “reasonableness of [his] reliance on Defendant's misrepresentation is a quintessential question of fact at this stage of the proceedings.” Doc. # 21, p. 24 (citing Celanese Corp. v. Coastal Water Authority,
. Of particular note, the word "release” does not appear on the one-page document, such that a cursory examination, a re-read, or a more careful read of that page would have revealed that a release of claims was intended. Consequently, Plaintiff has not blindly relied upon a misrepresentation which would have been "patent to him if he had utilized his opportunity to make a cursory examination or investigation.” Field v. Mans,
. Indeed, if Plaintiff had negotiated with KOC, it appears unlikely from the face of the Complaint that he would have considered $200 and a brief treatment program for substance abuse as adequate compensation to release all of his claims arising from sexual abuse by KOC Squires leader Rivera. According to Plaintiff, such abuse derailed his teenage and adult years, and chemical addiction was just one aspect of the severe damage he incurred. See Complaint, Doc. #1, V 22 (As a direct and proximate result” of KOC's "acts and omissions,” Plaintiff "suffered severe and permanent physical and psychological injuries, including, but not limited to, chemical addictions, nightmares, depression, anxiety, suicidal tendencies, lack of trust, anger, shame, embarrassment, guilt, and low self-esteem.”).
. Plaintiff contends that he never knowingly released his claim against KOC and could not, therefore, repudiate a contract he did not form. Doc. # 21, p. 24-25.
. Although, as Defendant claims, the filing date of Plaintiff's action may be viewed as one date upon which he repudiated the purported Release, it is also possible that Plaintiff previously disclosed his opinion that the Release was invalid through other means. The existence of any prior statements by Plaintiff as to the Release's invalidity remains an unknown question of fact.
. Fed.R.Civ.P. 42(b), captioned, "Separate Trials,” provides in relevant part:
. See also Advisory Committee's Notes to Rule 42(b), admonishing that "separation of issues for trial is not to be routinely ordered.” Advisory Comm. Notes, 1996 Amend., Fed. R.Civ.P. 42(b).
. See also Morse/Diesel, Inc. v. Fidelity Deposit Co. of Maryland,
. The Court notes that Plaintiff has demanded a jury trial with respect to this action. The right to a jury trial in a declaratory judgment action depends on whether a claim is legal or equitable. Beacon Theatres, Inc. v. Westover,
Moreover, even when a claim is considered equitable in nature, a jury may be used in an advisory capacity to find the facts, after which the Court enters the declaratory judgment. See, e.g., (American) Lumbermens Mut. Casualty Co. of Illinois v. Timms & Howard,
Here the declaratory judgment sought involves a determination as to whether common law fraud and/or misrepresentation has been employed to procure a release agreement. Such actions have traditionally been cognizable at common law, making them subject to determination by a jury, as Plaintiff has demanded.
. KOC counters Plaintiff's characterization of monies it paid Plaintiff with respect to the Release as "nominal,” maintaining that KOC intends to demonstrate through documentary evidence that the actual amounts it paid on the Release between December 2009 and December 2010 for Plaintiff’s treatment and other benefits were in fact substantial — "in excess of $120,000.” Doc. #31, p. 2 n.2. The actual amounts and dates of payment remain unproven and may, if Defendant is so advised, be revisited upon a motion for summary judgment.