Update on McKenna Denson Lawsuit (Hearing Schedule)

[smac97]

The hearing has been scheduled for the two motions to dismiss filed in the McKenna Denson case (the Church's and Bishop's).  The hearing is scheduled for 7/11/2018, at 10:30 AM in Room 3.400 before Judge Dale A. Kimball.

Thanks,

-Smac

[jkwilliams]

Just now, smac97 said:

The hearing has been scheduled for the two motions to dismiss filed in the McKenna Denson case (the Church's and Bishop's).  The hearing is scheduled for 7/11/2018, at 10:30 AM in Room 3.400 before Judge Dale A. Kimball.

Thanks,

-Smac

What a sad, sordid tale. I still can't believe that guy was making us feel guilty for having any impure thoughts while he was downstairs in the basement with the sisters. 

[bluebell]

How long after the hearing will be able to know the results?

[hope_for_things]

30 minutes ago, jkwilliams said:

What a sad, sordid tale. I still can't believe that guy was making us feel guilty for having any impure thoughts while he was downstairs in the basement with the sisters. 

The whole theology around being judged for our thoughts is problematic from my perspective.  

[USU78]

Kimball's a good draw.

[USU78]

17 minutes ago, bluebell said:

How long after the hearing will be able to know the results?

We never know till we know.

[jkwilliams]

Just now, hope_for_things said:

The whole theology around being judged for our thoughts is problematic from my perspective.  

Several times while I was in the MTC, he told the story of a vision he had had, where the MTC was surrounded by black demons as far as the eye could see. But there was a ring of angels protecting the MTC and keeping the demons out. Every time we had an impure thought or touched ourselves, we were letting one of those demons in and driving away the spirit. After all these years, learning what he was doing in the basement was pretty shocking.

[smac97]

7 minutes ago, bluebell said:

How long after the hearing will be able to know the results?

Hard to say.  IIRC, the Court technically has 60 days to render a written decision.  Most of the time, however, the decision is either rendered at hearing or within a few weeks thereafter.  This case has received some media attention, and the hearing date is fairly prompt (I've had hearing dates be set as much as 5-6 months out), so I think we should probably have a decision by the end of July or some time in August.

I will note that the Court appears to have been a bit premature in scheduling the hearing.  The Church and Mr. Bishop are each entitled to file a reply to Ms. Denson's opposition to their respective motions to dismiss.  In my experience, the court normally waits until the motion is "fully briefed" (everyone involved has had enough time to file everything they're entitled to file), but in this case the Court didn't wait.  Not a significant issue, though, since both defendants will have plenty of time to prepare their replies, which they will probably file within the next few days.

The the motions to dismiss are granted, then the case is over.  Ms. Denson will then have 30 days from the date of dismissal to file an appeal to the federal appellant (Tenth Circuit) court.

My guess is that both motions will be granted, largely based on the "statute of limitations" arguments presented by the defendants, but perhaps also on additional grounds, such as failure to plead in accordance with Twombly/Iqbal, failure to plead fraud allegations with particularity per Fed. R. Civ. P. 9(b), and perhaps a few other issues that the defendants present or the court comes up with on its own.  

I also think that Ms. Denson will appeal the trial court's decision.  If that happens, then the appellate court reviews the case "de novo," meaning it essentially performs the exact same analysis as the trial court does, and gives no deference to the trial court's decision.

I also think the Tenth Circuit will reach the same conclusion as did the trial court.  We'll have to see, though.  Mr. Vernon raised some relatively decent arguments in his opposing memorandum.

Thanks,

-Smac

[smac97]

19 minutes ago, USU78 said:

Kimball's a good draw.

Yes, that was my thought.  I argued before him a few months ago.  He was fair, but also quite no-nonsense.

[rockpond]

59 minutes ago, smac97 said:

The hearing has been scheduled for the two motions to dismiss filed in the McKenna Denson case (the Church's and Bishop's).  The hearing is scheduled for 7/11/2018, at 10:30 AM in Room 3.400 before Judge Dale A. Kimball.

Thanks,

-Smac

I appreciate you keeping us updated, @smac97

[Exiled]

5 minutes ago, smac97 said:

Hard to say.  IIRC, the Court technically has 60 days to render a written decision.  Most of the time, however, the decision is either rendered at hearing or within a few weeks thereafter.  This case has received some media attention, and the hearing date is fairly prompt (I've had hearing dates be set as much as 5-6 months out), so I think we should probably have a decision by the end of July or some time in August.

I will note that the Court appears to have been a bit premature in scheduling the hearing.  The Church and Mr. Bishop are each entitled to file a reply to Ms. Denson's opposition to their respective motions to dismiss.  In my experience, the court normally waits until the motion is "fully briefed" (everyone involved has had enough time to file everything they're entitled to file), but in this case the Court didn't wait.  Not a significant issue, though, since both defendants will have plenty of time to prepare their replies, which they will probably file within the next few days.

The the motions to dismiss are granted, then the case is over.  Ms. Denson will then have 30 days from the date of dismissal to file an appeal to the federal appellant (Tenth Circuit) court.

My guess is that both motions will be granted, largely based on the "statute of limitations" arguments presented by the defendants, but perhaps also on additional grounds, such as failure to plead in accordance with Twombly/Iqbal, failure to plead fraud allegations with particularity per Fed. R. Civ. P. 9(b), and perhaps a few other issues that the defendants present or the court comes up with on its own.  

I also think that Ms. Denson will appeal the trial court's decision.  If that happens, then the appellate court reviews the case "de novo," meaning it essentially performs the exact same analysis as the trial court does, and gives no deference to the trial court's decision.

I also think the Tenth Circuit will reach the same conclusion as did the trial court.  We'll have to see, though.  Mr. Vernon raised some relatively decent arguments in his opposing memorandum.

Thanks,

-Smac

Don't you think the court would give leave to amend if a claim isn't sufficiently pled under Twombly/Iqbal? Of course if the court believes the statute has run regardless, it might go straight to dismissal.

[Duncan]

If she loses and appeals it what would her grounds for appeal be? I am betting you can't just say 'I am unsatisfied with the decision and so I am appealing it' as in you have to have some legit reason for appeal, like jury tampering, witness tampering that kind of stuff ( I know she wouldn't have a jury in this case but a reason for appeal would be...)

[smac97]

1 hour ago, Exiled said:

Don't you think the court would give leave to amend if a claim isn't sufficiently pled under Twombly/Iqbal?

I doubt it.  The insufficiency pertains to the "date of discovery" issue, and I don't think that can be fixed by amendment because - according to Denson's narrative - she simply does not have any specific details sufficient to support a fraud claim.  That is, Denson has claimed that the Church knew about Bishop's status as a "sexual predator" because he confessed to a church leader (Elder Wells, though I'm not sure they specifically identified him in the Complaint) in the late 70s.  However, the allegation remains very, very vague.  Denson's attorneys, as officers of the Court, are constrained from speculating about what he "confessed," and they have no actual information as to the particulars of what he "confessed."  This is the very information that the Church is accused of fraudulently concealing (or fraudulently failing to disclose).  The court rules (Fed. R. Civ. P. 9(b)) requires that "{i}n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud."  "With particularity" is the key phrase there.  Mr. Vernon must present the particular details.  He must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat’l Bank, 645 F. Supp. 423, 425 (D. Utah 1986).  These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted).

If you go back and read Ms. Denson's complaint, I think you'll find that it is pretty much bereft of “the who, what, when, where, and how."  We don't know what the information is that Denson is claiming Bishop "confessed" to the Church, and hence what information was "fraudulently" concealed from or failed to disclose to her, and which she did not discovery until 2017.  No details, just conclusory labels like "sexual predator."  These are too vague and speculative and conclusory to form the basis of a lawsuit.   And this information - the particulars for which Denson does not have - is a necessary component for defeating the statute of limitations argument.

All of the foregoing relates to Rule 9(b) analysis.  I haven't really evaluated this case as much through a Twombly/Iqbal lense.  Here's the relevant text from Iqbal (citations omitted):

Quote

[A] pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”...[T]he pleading standard [under] Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion{s]” devoid of “further factual enhancement.”

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation.” Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will...be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.”

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Here's a more detailed summary I wrote up a few years back:

Quote

First Prong: A Complaint Must Contain More Than “Unadorned,” But Less Than “Detailed,” Factual Allegations.  Plus “Factual Allegations” v. “Conclusions of Law.”

To satisfy the first prong of the new Twombly/Iqbal analysis, a Complaint need not contain “detailed factual allegations,” but it must include more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”  Practitioners should therefore take heed to augment recitation of the elements of a cause of action with factual allegations.  They must also eschew confusing “facts” with “mere conclusory statements,” because while factual allegations are accepted as true, legal conclusions are not.  

Unfortunately, the distinction between “questions of law” and “questions of fact” is unclear.  The U.S. Supreme Court has noted that “the appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive,” and that it has “yet to arrive at a rule or principle that will unerringly distinguish a factual finding from a legal conclusion.”  Miller v. Fenton, 474 U.S. 104, 113 (1985) (internal citations omitted) (quoted in Gonzalez v. Kay, 08-20544 (5th Cir. 2009)). The Supreme Court has also noted that

the decision to label an issue a “question of law,” a “question of fact,” or a “mixed question of law and fact” is sometimes as much a matter of allocation as it is of analysis.

At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.

Miller, 474 U.S. at 113-114 (citations omitted).i  The Court went on to take unto itself the duty to make the “fact/law distinction” in some instances (such as First Amendment libel cases requiring proof of actual malice, or where the trier of fact has “perceived shortcomings…by way of bias or some other factor…”), while in other circumstances leaving that duty to the trial court (such as credibility of witnesses and juror bias).  Id. at 114 (citations omitted).

Second Prong: Assessing “Plausibility” Based on “Judicial Experience and Common Sense.”

The second prong in the Twombly/Iqbal analysis requires a complaint to state “a plausible claim for relief” in order to survive a motion to dismiss under Rule 12(b)(6).  “[F]acial plausibility” is shown “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  Iqbal, 129 S. Ct. at 1940 (citation omitted).

Here the Supreme Court describes a spectrum in which legal claims may come to rest on factual “possibility,” “plausibility” or “probability.”  In order to survive a motion to dismiss, a claim move “across the line” from mere “possibility” (or “conceivability”) to “plausib[ility].”  Id. at 1952 (citation omitted).  A claim need not go beyond this area of the spectrum (into the “probability” area) in order to defeat a motion to dismiss.  The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.  Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. at 1949.

A trial court’s assessment of a claim’s plausibility is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.   But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’”  Id. at 1949-1950 (citations omitted).

When I first read Ms. Denson's Complaint, one of the first things than went through my mind was the reference by SCOTUS to "threadbare recitals" in the First Prong above.  The various references to Bishop being a "sexual predator" are nothing but "threadbare recitals" and "mere conclusory statements."

As to the Second Prong, Denson is presenting a claim based on something like "In 1977 Bishop confessed something to someone about some form of misconduct, and the Church didn't tell me about that misconduct, and I didn't find out about the Church's nondisclosure until 2017, so I now want to litigate claims from 1984."  This is hugely speculative.  And it depends entirely on Denson being able to defeat the priest/penitent privilege.  And it also runs into the substantial statute of limitations and particularity issues we've been discussing.  So I don't think Denson's Complaint meets this "plausibility" claim, either.

Quote

Of course if the court believes the statute has run regardless, it might go straight to dismissal.

I don't know if the Court will dismiss by citing the statute of limitations, or Rule 9(b), or Twombly/Iqbal, or any combination thereof.

But I think it will get dismissed.

Thanks,

-Smac

Edited June 21, 2018 by smac97

[smac97]

16 minutes ago, Duncan said:

If she loses and appeals it what would her grounds for appeal be?

The same grounds she is using now.  A trial court's dismissal under Rule 12(b)(6) is, on appeal, reviewed "de novo," described as follows:

Quote

Under de novo review, the appellate court acts as if it were considering the question for the first time, affording no deference to the decisions below [the trial court's decision]. Legal decisions of a lower court on questions of law are reviewed using this standard. This is sometimes also called plenary review or the "legal error" standard. It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law.

Judge Kimball's decision is reviewed, but is not given any "deference" (as opposed to a situation where a trial court renders a decision on a factual issue, which decision would be given some deference by the appellate court).

16 minutes ago, Duncan said:

I am betting you can't just say 'I am unsatisfied with the decision and so I am appealing it' as in you have to have some legit reason for appeal, like jury tampering, witness tampering that kind of stuff ( I know she wouldn't have a jury in this case but a reason for appeal would be...)

On a Rule 12 dismissal, yes, you can pretty much say "I am unsatisfied with the decision."

Thanks,

-Smac

[Calm]

1 hour ago, jkwilliams said:

Several times while I was in the MTC, he told the story of a vision he had had, where the MTC was surrounded by black demons as far as the eye could see. But there was a ring of angels protecting the MTC and keeping the demons out. Every time we had an impure thought or touched ourselves, we were letting one of those demons in and driving away the spirit. After all these years, learning what he was doing in the basement was pretty shocking.

His son described him as having a more than usual concern with thoughts of purity (implying all his talk of being a sex addict was just an overwrought response to what were typical "male" thoughts).  While I think it was much, much more than that, I think he also had this obsession and probably talked about it a lot because he assumed others had the same.  Iow, he saw his life as surrounded by demons, so everyone else was as well.

There is a certain arrogance to framing life that way, pitching one into heroism but also potentially paranoia.

Edited June 21, 2018 by Calm

[jkwilliams]

2 minutes ago, Calm said:

His son described him as having a more than usual concern with thoughts of purity (implying all his talk of being a sex addict was just an overwrought response to what were typical "male" thoughts).  While I think it was much, much more than that, I think he also had this obsession and probably talked about it a lot because he assumed others had the same.  Iow, he saw his life as surrounded by demons, so everyone else was as well.

There is a certain arrogance to framing life that way, pitching one into heroism but also potentially paranoia.

At 19, I couldn't decide if he was uber-spiritual or just weird/creepy. Guess I have my answer now.

[Calm]

Quote

accordance with Twombly/Iqbal,

I think my babelfish fell out.

(Thanks for the info later on so I didn't have to google) 

[hope_for_things]

2 hours ago, jkwilliams said:

Several times while I was in the MTC, he told the story of a vision he had had, where the MTC was surrounded by black demons as far as the eye could see. But there was a ring of angels protecting the MTC and keeping the demons out. Every time we had an impure thought or touched ourselves, we were letting one of those demons in and driving away the spirit. After all these years, learning what he was doing in the basement was pretty shocking.

Yikes, I've heard other stories like this before.  It might be worthy of some study, to analyze the ideas of people about supernatural expectations and a connection between personal obedience to arbitrary rules and their expectations of supernatural influences. 

I wonder if those who describe the unseen world in the way this MTC president did, if they are suffering from a particular type of psychosis that reflects past trauma in their personal life, or something else in a Freudian sense.  

Its clear to me as a more reflective adult, just how harmful these ideas are, and its the promotion of these kinds of ideas that make me question whether religion can ultimately have a net positive value for society.  

[strappinglad]

In an attempt to " follow the money " , who is covering Denson's legal bills? Is this pro bono or contingency or whatever the phrases are? Billable hours seem to be piling up.

[smac97]

6 minutes ago, strappinglad said:

In an attempt to " follow the money " , who is covering Denson's legal bills? Is this pro bono or contingency or whatever the phrases are? Billable hours seem to be piling up.

There's no way to know, really.  However, I strongly suspect that it's a contingency fee deal.  That would explain Mr. Vernon's scorched-earth strategy, his melodramatic filings with the court, his admission that his client blowing the settlement negotitations took him by surprise, his admission that they didn't plan on filing suit until his client's leaks "forced {their} hand."

Thanks,

-Smac

[Duncan]

6 minutes ago, smac97 said:

There's no way to know, really.  However, I strongly suspect that it's a contingency fee deal.  That would explain Mr. Vernon's scorched-earth strategy, his melodramatic filings with the court, his admission that his client blowing the settlement negotitations took him by surprise, his admission that they didn't plan on filing suit until his client's leaks "forced {their} hand."

Thanks,

-Smac

correct me if I am wrong and maybe this is Canadian law but if you bring some lawsuit to someone and you lose you pay for the other person's lawyer or at least their legal fees?

[Thinking]

4 hours ago, jkwilliams said:

Several times while I was in the MTC, he told the story of a vision he had had, where the MTC was surrounded by black demons as far as the eye could see. But there was a ring of angels protecting the MTC and keeping the demons out. Every time we had an impure thought or touched ourselves, we were letting one of those demons in and driving away the spirit. After all these years, learning what he was doing in the basement was pretty shocking.

It's amazing that I heard about the same vision when I was in the MTC in 1982 - before Bishop was president.

[jkwilliams]

5 minutes ago, Thinking said:

It's amazing that I heard about the same vision when I was in the MTC in 1982 - before Bishop was president.

I guess those guys got some mileage out of that story. 

[bluebell]

2 minutes ago, jkwilliams said:

I guess those guys got some mileage out of that story. 

I heard that same story while at the MTC in 1998, but it was not in a formal setting.  I think one of my roommates or companion recounted it.

[jkwilliams]

Just now, bluebell said:

I heard that same story while at the MTC in 1998, but it was not in a formal setting.  I think one of my roommates or companion recounted it.

I have vivid memories of Pres. Bishop telling that story very dramatically at least two or three times. What I remember is that he had oversized glasses and very tall hair.