UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT LEXINGTON CIVIL ACTION NO WOB PLAINTIFFS COMBINED SUR-REPLY

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT LEXINGTON CIVIL ACTION NO WOB KEITH RENE GUY, SR., et al PLAINTIFFS VS. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, et al DEFENDANTS PLAINTIFFS COMBINED SUR-REPLY May it Please e Court: The Reply [DE#345] filed herein by e LFUCG in support of its for Summary Judgment on e Statute of Limitations [DE#341] contains ree specific areas at must be addressed in order for e Court to have a complete picture of e positions previously asserted by e LFUCG. The Doe and Roe Plaintiffs erefore submit e following as eir responsive Sur-reply: I. The LFUCG s attempt to manufacture an accrual date is untenable. The LFUCG s Reply argues long and hard at e facts are e facts and cannot be manipulated. Here are e facts: In various previous filings wi is Court and e Six Circuit Court of Appeals, e LFUCG has stated at e statute of limitations accrual period began in November 1997 at least 18 separate times. See Exhibit A, 1 attached hereto. In addition to ose 18

2 references, e LFUCG has referred to November 1997" or late 1997" or e end of 1997" as e accrual period on anoer 18 occasions. See Exhibit A, 2. More significantly, it has mentioned e specific date of November 20, 1997 as being e starting date at least 6 separate times. Id. Never once (before now) has it mentioned e summer of 1997 or August 1997 as e triggering date. Instead, it has consistently claimed at e statute commenced in November 1997, or late 1997, or by e end of See Exhibit A, 1-2. Moreover, contrary to e LFUCG s current argument as stated in its Reply at it has always qualified its position by adding e phrase at e latest, to its identification of November 1997 as e accrual date, e documents prove oerwise. In Doe II, e LFUCG specifically argued at e statute expired eier one year after November 20, 1997 e date of e first publication about e investigation of irregularities at Micro-City, or one year after November 22, 1997 e date of e first publication of e LFUCG s knowledge: Absent any tolling, e one-year statute of limitations would have run on or about November 20, 1998, one year after widespread publicity placed e Plaintiffs on constructive notice of eir claims against LFUCG and its officials. Because Guy was filed as a class action on October 15, 1998, e statute of limitations ceased running until class certification was denied on April 4, However, even applying tolling under American Pipe & Constr. Co. v. Utah, 414 U.S. 538, (1974), and Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, (1983), e statute of limitations on ese claims ran 38 days later on March 14, Doe II Defendants for Summary Judgment on Statute of Limitations, p. 9. There was no mention of an earlier date; ere was no qualification to e LFUCG s admission as to e commencement of e running of e statute of limitations in November This 2

3 paragraph is fatal to e LFUCG s current claim at e accrual date for tolling took place prior to November First, e LFUCG admits at e deadline was one year after e publicity; Second, it has admitted at e first publication was November 20, 1997; Third, e filing of Guy on October 15, 1998 tolled e running of e statute of limitations; and Four, by stating at 38 days remained on e one-year statute of limitations at e time of e Guy Order on February 4, 2000, e LFUCG acknowledges at even e first publication on November 20, 1997 was insufficient to trigger e commencement of e statute of limitations and at e November 22, 1997 news article actually provided e first public notice of e LFUCG s potential involvement wi e abuse of children at Micro-City (October 16, 1998 until November 22, 1998 = 38 days). Likewise, e LFUCG acknowledges at e accrual date was in November 1997 when it stated at By November 20, 1997, at e latest, e statutes of limitation began to run on all claims. Four years and ten mons elapsed between is accrual date and e date Doe II was filed. Doe II for Summary Judgment on Statute of Limitations, p. 3. Doe II was filed on September 25, Four years and ten mons prior to is filing date would have been is accrual date of November The LFUCG s current claim at e media coverage was so pervasive in e summer of 1997 at e Plaintiffs should certainly have been aware of eir claims is belied by e LFUCG officials emselves. In response to Doe I Interrogatory No. 12, which requested various LFUCG officials to Please give e first date at you ever heard allegations at 3

4 Ron Berry may be engaging in inappropriate conduct wi children under e age of eighteen years, Mayor James Amato, Police Chief John McFadden, Arnold Gaier (Director of e Mayor s Training Center which oversaw e operations of Micro-City Government), Councilman Robert Jefferson, and Councilman Michael Wilson, each stated at his first knowledge of allegations involving Ron Berry came from e news media in eir reporting of e criminal indictment of Ron Berry. [Emphasis added.] Importantly, Ron Berry was 1 not indicted until in November, Apparently ese high-ranking LFUCG officials were not even aware of e allegations made in e Guy Complaint filed on October 15, According to Mayor Pam Miller, she first became aware of e allegations in a conversation wi Gayle Slaughter at took place at or near e time when a criminal investigation of Ron Berry had already been commenced which I believe was sometime in late As reflected by ese sworn statements, even e LFUCG s own officials charged wi e responsibility to e community to monitor such improper activities were supposedly unaware of e pervasive media coverage at e LFUCG is now claiming commenced in e summer of 1997, and remained unaware of such coverage until November, 1998 a mon after Guy was filed. One would certainly expect such pervasive media coverage as is now conveniently alleged by e LFUCG would at least alert e public officials. The professed lack of any such knowledge by e public officials involved clearly undermines e LFUCG s newly-manufactured timeline. 1 Berry v. Commonweal, 84 S.W.3d 82 (Ky.App. 2001)(indicating at e indictment of Berry was originally handed down in November, 1998). 4

5 II. The statute of limitations had not yet run as of e October 15, 1998 filing of Guy. The LFUCG is estopped from claiming an earlier date at would extinguish e Plaintiffs right to proceed wi eir claims when it has openly acknowledged in at least 16 separate statements at e filing of Guy tolled e running of e statute of limitations for putative class members. See Exhibit A, 3. If e LFUCG truly believed at e accrual date was in August 1997 as now claimed, en e filing of Guy would have not tolled anying because e statute would have already run. Significantly, e LFUCG acknowledged its position at e statute of limitations had not yet run as of e October 15, 1998 date of filing of Guy when, in e appeal taken from is Court s Opinion & Order Denying Rule 60(b) Relief [DE#101], it assured e Six Circuit Court of Appeals at e settlement of Guy would work no hardship on e putative class members: It was clear to everyone at e intervenors [Johnson and Jones] intended to take advantage of Crown Cork tolling and file a new class action if e district court approved e named plaintiffs settlement and denied intervention... After a orough discussion of ese issues including e concession by counsel for bo LFUCG and e plaintiffs at approval of e settlement would not have any preclusive effect due to e application of Crown Cork to tolling to putative class members... e district court indicated at it would deny [Johnson and Jones ] motion to intervene.. and fashion an order following e teachings of Crown, Cork & Seal. LFUCG Consolidated Final, ( # and ), at 8. [Emphasis added.] The LFUCG is now claiming at its prior reliance on and reference to November 1997 should not be binding because e pervasive media coverage allegedly commenced in August instead of November Apparently, neier its past nor present counsel, nor e LFUCG officials, were aware of is pervasive media coverage since it was never 5

6 mentioned previously. Incredulously, e LFUCG now claims at e references to November and late 1997 were simply gratuitous references to an outside, or at e latest time period. It is incomprehensible at e LFUCG and its highly-skilled counsel would have overlooked or passed up e opportunity to challenge e November 1997 accrual date for e past 10 years if it could have barred e Guy plaintiffs claims by so much as one day particularly when establishing is earlier accrual date back in 1999 would have saved e LFUCG millions of dollars at it paid out in stale claims. Surely, if e August 1997 coverage was so severe and pervasive as to put e Plaintiffs on notice, someone an LFUCG official, an LFUCG Council member, someone in e LFUCG Law Department, at least one of e hundreds of defense attorneys in e various firms hired by e LFUCG in ese matters, or even someone on eir support staff would have recalled is purportedly severe and pervasive media coverage in August and raised it as a defense to ese claims at some point during e last decade. II. Judicial Estoppel prevents e LFUCG from arguing statute of limitations. On multiple occasions, e LFUCG has cited to Judge Forester s Order of February 4, 2000 [DE#63], including quoting e provision at specifically states at e statute of limitations was tolled by e filing of Guy on October 15, That determination is e law of is case and cannot now be altered by e LFUCG. Similarly, in Doe I, e Court entered an Order at permitted John Doe #18's request to intervene in at litigation as late as 2002, holding: 6

7 The intervenor... alleges at pursuant to Civil Rule 24 he should be allowed to intervene... John Does 1-17 and e defendants object to e motion to intervene. *** The Court having considered e matter is of e opinion at e issues presented differ markedly from issues presented in e Kei Guy case. The Court is obligated to protect scarce judicial resources and in so doing must insure at some degree of finality be presented... e motion to intervene is well-taken under bo Rule 24(a) and 24(b). Doe I, June 24, 2002 Order at 1-2. [Emphasis added.] Despite is clear language, e LFUCG, in its Reply, attempts to argue at ey should not be judicially estopped from asserting e statute of limitations defense based upon is Order because, despite e fact at it had objected to e intervention on e basis at e statute of limitations had run, and despite e fact at e Court specifically indicated at objection in its Order, e Court did not actually address e issue because it did not specifically make mention of e statute of limitations in its Order. This argument is easily refuted by quoting from e LFUCG s own argument in Doe II: Finally, e Plaintiffs suggest at Judge Forester s denial of class certification cannot be given preclusive effect because e June 28, 2002 Order fails, in its entirety, to address any of e merits of class certification and erefore cannot be utilized to preclude e subsequent filing of a Class Action. In so arguing, e Plaintiffs misunderstand e elements of collateral estoppel. Wheer or not e Court has issued a detailed written opinion on class certification is irrelevant. Collateral estoppel requires only at e issue be fully litigated and its determination necessary to e final judgment. Those requirements have been met in is case. [Citation omitted; emphasis added.] Doe II, LFUCG s Reply in Support of to Deny Class Certification Based on Collateral Estoppel, at 7-8. Apparently e LFUCG has eier forgotten its previous position, or now conveniently misunderstand[s] e elements of collateral estoppel, or does not believe at e rules regarding collateral estoppel apply equally when it is damaging to its 7

8 own position. As e LFUCG itself argued above, it is barred from attempting to relitigate e statute of limitations issue since at issue was fully litigated in Doe II. As previously explained by e Plaintiffs in eir Response [DE#344], e LFUCG is judicially estopped on multiple fronts from arguing at e statute of limitations has run: Judge Forester s Order referenced above [DE#63]; e Doe I Order at permitted John Doe #18 to intervene; and, most importantly, e decision rendered by e Six Circuit Court of Appeals at re-opened e present litigation following e appeals of e dismissals of Doe II and Doe III on e sole basis of e statute of limitations having run. The Six Circuit s ruling was issued only after e statute of limitations issue was fully litigated by all parties, and after e LFUCG had assured e Appellate Panel at e statute of limitations had been tolled by e filing of Guy. Interestingly, e LFUCG repeatedly advised e Appellate Panel at it need not even reach e issue of class notice because e statute of limitations ran at e time of abuse, ereby mooting any issue pertaining to notice. Obviously, e Six Circuit did not buy at argument. The LFUCG s efforts to have e Six Circuit s decision reversed by e United States Supreme Court failed, and e Six Circuit s ruling is now e law of is case. That ruling specifically indicated at e appeals of e dismissals of Doe II and Doe III on e basis of e statute of limitations having run was made moot by e re-opening of Guy. Obviously, e Six Circuit could not have reached e decision regarding class notice if, as e LFUCG asserted en and now, e issue was moot by e expiration of e statute of limitations. By rendering a decision on class notice, e Six Circuit has rejected e 8

9 position at e statute of limitations ran prior to Guy, based, in large part, on e LFUCG s repeated admissions at e triggering event was November 22, 1997 wiin one year of e filing of Guy. By declaring at e arguments regarding e statute of limitations in Doe II and Doe III were moot, e Six Circuit certainly did not believe at e re-opening of Guy would be subject to anoer attack on is same, oroughly-litigated, issue. To quote again from e LFUCG, a party simply cannot reargue e same issue over and over again because, To permit em to do so would raise e spectre of endless relitigation... Collateral estoppel is designed to prevent is unjust and wasteful result. Doe II, Defendants Reply in Support of to Deny Class Certification Based on Collateral Estoppel, at 3. CONCLUSION The LFUCG s Reply argues vociferously at e accrual date for e pervasive media coverage began in mid-1997 wi two or ree extraneous articles at make no mention of e LFUCG s knowledge of Ronald Berry s sexual abuse of e children at Micro-City instead of in November, 1997 as it has claimed roughout e past 8-10 years. This transparent change of position is blatantly manufactured in direct response to e reopening of Guy, and is an eleven-hour attempt to deprive e Plaintiffs of e ability to pursue eir claims a right at was clearly granted to em by e Six Circuit when it reopened is litigation for at express purpose. Accordingly, as set for herein and in eir Response, e Plaintiffs respectfully request at e Court DENY e LFUCG s for Summary Judgment on e basis of e statute of limitations. 9

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12 TABLE OF LFUCG QUOTES CONTRARY TO CURRENT POSITION [Emphasis added] 1. QUOTES INDICATING THAT MEDIA COVERAGE BEGAN OR COMMENCED IN OR AFTER NOVEMBER 1997: ii The Plaintiffs were on notice of bo eir abuse and e Defendants potential knowledge or involvement in e abuse by November 1997, at e latest. On at date, e media began widely disseminating allegations at Lexington public officials may have been aware of Ronald Berry s criminal behavior and allowed it to continue. 2 These November 1997 articles were e first of many Herald- Leader reports of e alleged knowledge and concealment of sexual abuse by LFUCG and its officials. 3 By November 20, 1997, at e latest, e statutes of limitation began to run on all claims. Four years and ten mons elapsed between is accrual date and e date Doe II was filed [i.e., September 25, 2002]. 7 The commencement of pervasive media coverage in November 1997 placed e Plaintiffs on notice on eir claims against LFUCG officials. 8 The Plaintiffs were on reasonable notice of eir claims when intense publicity began on November 20, Absent any tolling, e one-year statute of limitations would have run on or about November 20, 1998, one year after widespread publicity placed e Plaintiffs on constructive notice of eir claims against LFUCG and its officials. Reply The Plaintiffs cannot benefit from e doctrine of fraudulent concealment because e allegations against LFUCG and its public officials became public by November 1997, when e news media began reporting ese allegations. 1 These November 1997 articles were e first of many Herald- Leader reports of e alleged knowledge and concealment of sexual abuse by LFUCG and its officials. 1

13 Doe III S/L 4 There was widespread publicity of allegations of wrongdoing by LFUCG and its employees, starting in late By November 1997 at e latest, e statutes of limitation began to run on all claims. 8 The commencement of pervasive media coverage in November 1997 placed e Plaintiffs on notice of eir claims against LFUCG officials. 8 The Plaintiffs were on reasonable notice of eir claims when intense publicity began on November 20, 1997, publicity at was sustained rough e pendency of e Guy case. 15 Moreover, beginning in November 1997, media coverage regarding e Defendants alleged knowledge and concealment of Ronald Berry s abuse was widely publicized. Had Plaintiffs exercised reasonable diligence, all of e Plaintiffs had e means to learn of eir claims no later an November On September 25, 2002, almost five years after e publicity about Berry and LFUCG began, e Doe II plaintiffs filed e ird class action lawsuit against LFUCG. 25 The commencement of pervasive media coverage in November 1997 placed e Does on notice of eir claims against LFUCG officials. 26 The Does erefore were on reasonable notice of eir claims when intense publicity began on November 20, 1997, publicity at was sustained rough e pendency of e Guy case ere still could be no tolling for concealment after November 1997, when e allegations against LFUCG and its public officials became public knowledge due to news media reports. 36 Moreover, beginning in November 1997, media coverage regarding e Defendants alleged knowledge and concealment of Ronald Berry s abuse was widely publicized. 2

14 2. QUOTES INDICATING AN ACCRUAL DATE OF NOVEMBER 1997, OR LATE 1997, OR END OF 1997: ii all of e Plaintiffs claims accrued by e end of 1997 at e latest. 3 The Plaintiffs in is case have been on notice of eir injuries since e dates of e alleged abuse... and of allegations of wrongdoing against LFUCG and its employees since late Plaintiffs cannot benefit from e fraudulent concealment doctrine because ey should have discovered eir claims in e exercise of reasonable diligence by late fraudulent concealment was no longer possible by November 1997, when ese allegations against e Defendants had become public knowledge rough pervasive media coverage ii ii Had e Plaintiffs exercised reasonable diligence, ey would have learned of eir claims no later an November ere had been widespread knowledge of LFUCG s potential knowledge or involvement in e abuse by late Therefore, late 1997 is e latest possible timeframe wiin which any claim against e LFUCG or its public officials could have accrued. ii Because all of e Plaintiffs claims accrued by e end of 1997 at e latest... 9 Absent any tolling, e one-year statute of limitations would have, at e latest, run on or about November 20, 1998, one year after widespread publicity placed e Plaintiffs on notice of eir claims against LFUCG and its officials. 14 The Plaintiffs cannot benefit from e doctrine of fraudulent concealment because ey should have discovered eir claims in e exercise of reasonable diligence when ey were abused by Ronald Berry, or at e latest, by late 1997 when LFUCG s alleged role in e abuse had drawn publicity. 3

15 Reply Supreme Court Writ 10 The Plaintiffs cannot benefit from e doctrine of fraudulent concealment because e allegations against LFUCG and its public officials became public by November, 1997, when e news media began reporting ose allegations. Moreover, e Plaintiffs have conceded at e allegations against e Defendants were public knowledge by October 15, 1998, at e latest, and, erefore, at e Plaintiffs were on notice from at time forward. 4 The Does had a duty to exercise due diligence in pursuing eir claims by late 1997 at e latest, when allegations about LFUCG s knowledge of Berry s actions had become public knowledge. 8 In late 1997, long before e filing of eier Doe II or Doe III, ere was widespread publicity of LFUCG s potential knowledge of Berry s abuse. 9 Thus, by late 1997, ere was pervasive media attention to LFUCG s purported knowledge, which would have placed any potential plaintiff on notice at he or she had a cause of action against LFUCG. 17 Even if e Does were deemed not to be on notice of eir claims until widespread publicity of allegations against LFUCG in late 1997, ey were required at at time to exercise due diligence in pursuing eir claims. 53 statutes of limitation began to run at e time e Does were allegedly abused by Berry or, at e latest, when allegations against LFUCG became public knowledge in November of This revisionist view [i.e., at more victims would come forward], however, overlooks... e fact at few victims had come forward despite e wide-spread coverage of Berry s conviction [in 2002] and e filing of e Guy suit itself. 4

16 Doe I Interrog. Answers #12 Councilman Robert Jefferson, Mayor James Amato, Mayor s Training Center Director Arnold Gaier, Police Chief John McFadden, Councilman Michael Wilson, each admitted at his first knowledge of allegations involving Ron Berry came from e news media in eir reporting of e criminal indictment of Ron Berry [in November, 1998]. [Emphasis added.] Pam Miller admitted at her first knowledge occurring a conversation wi Gayle Slaugher, which occurred at or near e time when a criminal investigation of Ron Berry had already been commenced which I believe was sometime in late

17 3. QUOTES INDICATING THAT GUY TOLLED RUNNING OF STATUTE, WHICH COULD NOT OCCUR IF THE STATUTE HAD ALREADY EXPIRED: 3 Moreover, e limitations period on e Plaintiffs claims was tolled only for e one year and five mon period in which e Guy class action was pending. 9 Because Guy was filed as a class action on October 15, 1998, e statute of limitations ceased running until at lawsuit was dismissed on February 4, even applying tolling under American Pipe... and Crown, Cork & Seal..., e statute of limitations on ese claims ran 38 days later on March 14, e statute of limitations was tolled for e putative class members during Guy, but not during Doe I. Because Guy was pending from October 15, 1998 until February 4, 2000, e statute of limitations on class members claims was tolled for e one year, ree mons, and 20 days until at case was dismissed as settled. Reply Reply Reply 2 Tolling under e Supreme Court s decision in Crown, Cork & Seal... took place only during e first Micro-City class action [Guy] and ceased when class certification was denied in at case on April 4, Under settled law, e limitations period was tolled during e pendency of at action [Guy] but began to run again as soon as class certification was denied on April 4, Under ese precedents, e statute of limitations was tolled for e putative class members during Guy, but not during Doe I. This period of tolling from October 15, 1998 to April 4, 2000 is plainly insufficient to save [e Doe II] Plaintiffs one-year claims. 9 Because Guy was filed as a class action on October 15, 1998, e statute of limitations ceased running until at lawsuit was dismissed on February 4,

18 Reply 2 FN 13: This Order of dismissal [in Guy] acknowledged at e pendency of e class action had tolled e statute of limitations wi respect to e individual claims of putative class members. See Order, 2/4/00. 5 e limitations period on e Plaintiffs claims was tolled only for e period during which Guy was pending prior to e denial of class certification. 13 e statute of limitations was tolled for e putative class members during Guy, but not during Doe I. Because Guy was pending from October 15, 1998 until February 4, 2000, e statute of limitations on class members claims was tolled for e one year, ree mons, and 20 days until at case was dismissed as settled. 14 e youngest Plaintiff, was born in 1981 and was 16 years old in 1997 when he was allegedly abused. He erefore received e benefit of tolling for minority until he reached e age of 18 on October 30, At at time, e Guy clas action was pending...[e]ven accounting for Crown, Cork tolling during Guy, e one-year statute of limitations expired on April 4, 2001, one year after class certification was denied in Guy. 5 Under ese precedents, e statute of limitations was tolled for e putative class members during Guy, but not during Doe I. Id. at Moreover, while e limitations period was tolled during e pendency of e first class action (Guy), no furer tolling periods may be piggy-backed onto at one Under ese precedents, e statutes of limitation were tolled for e putative class members during Guy, but not during Doe I. Because Guy was filed on October 15, 1998 and class certification was denied on April 4, 2000, e limitations periods on class members claims were tolled only for e roughly one year and five mons until class certification was denied. Supreme Court Writ 13 But e Six Circuit s decision warrants review for e additional reason at it creates uncertainty in e class action context, calling into question old settlements and dismissals, and reviving expired statutes of limitations. 7