Denson's Lawsuit Dismissed by Federal Judge

[clarkgoble]

I assume the stories will come out soon, but Deseret News is reporting that Denson's lawsuit against Bishop has been dismissed.

[JAHS]

Judge dismisses lawsuit against former LDS mission president for alleged sexual abuse

"A federal judge has formally dismissed a lawsuit against a former LDS mission president Joseph L. Bishop. 
The lawsuit against the LDS Church for fraud, however, has been upheld.
The attorney for McKenna Denson, the alleged victim, released the following statement about the dismissal: 
While we are disappointed that the claims against Mr. Bishop were dismissed because of the statue of limitations, we are pleased that the fraud claims against the Church were not dismissed. We respect Judge Kimball's decision. We look forward to the discovery phase of this case."

[jkwilliams]

I doubt anyone is surprised about the abuse suit being dismissed, but I wonder on what basis the fraud case is being allowed to continue. 

[Tacenda]

https://www.ksl.com/?nid=148&sid=46375388

I guess the statute of limitations wins. But that doesn't take away the fact that the church overlooked her accusations and knew of the abuse and did nothing, further causing possible harm to others. 

This article is terrible, it leaves out both McKenna and Bishop's first names, I've already forgotten Bishop's first name!!! I think KSL does this for a reason, to hide Bishop's identity, sort of like protecting his rep or something. And they left McKenna's first name out as well in order to not let it look too obvious, IMO.

And what's up with having the federal judge have a stake in it such as his membership in the church. Easy to see how he was doing his duty of protecting the church, IMO. 

[jkwilliams]

Just now, Tacenda said:

https://www.ksl.com/?nid=148&sid=46375388

I guess the statute of limitations wins. But that doesn't take away the fact that the church overlooked her accusations and knew of the abuse and did nothing, further causing possible harm to others. 

This article is terrible, it leaves out both McKenna and Bishop's first names, I've already forgotten Bishop's first name!!! I think KSL does this for a reason, to hide Bishop's identity, sort of like protecting his rep or something. And they left McKenna's first name out as well in order to not let it look too obvious, IMO.

And what's up with having the federal judge have a stake in it such as his membership in the church. Easy to see how he was doing his duty of protecting the church, IMO. 

I don't think that's a fair statement. If he were thus biased, I doubt he would have allowed the fraud suit to proceed.

[Tacenda]

3 minutes ago, jkwilliams said:

I don't think that's a fair statement. If he were thus biased, I doubt he would have allowed the fraud suit to proceed.

Maybe so...just a gut reaction to it I guess. Oh, I see that the fraud case is still open for investigation, quote below. According to the link JAHS put out by KUTV. 

"While we are disappointed that the claims against Mr. Bishop were dismissed because of the statue of limitations, we are pleased that the fraud claims against the Church were not dismissed. We respect Judge Kimball's decision. We look forward to the discovery phase of this case."

Edited August 13, 2018 by Tacenda

[USU78]

6 minutes ago, jkwilliams said:

I doubt anyone is surprised about the abuse suit being dismissed, but I wonder on what basis the fraud case is being allowed to continue. 

I would guess on the basis of "discovery" exception to the StatofLim.  Defense's response memo was decidedly unimpressive, and I suspect we are seeing the trial court making a good record on the assumption of appeal of the suit.

[provoman]

Case against Bishop dismisssed.

One claim against the Church will procede - the concealment claim. I hope the Church appeals, because the Court is saying and Denson is claiming she had the right to know of confidential communications e.g. priest/penitant confession. 

Or the Church will settle. I hope the Church appeals.

[bluebell]

Hopefully they'll have details soon.

 

[provoman]

25 minutes ago, jkwilliams said:

I don't think that's a fair statement. If he were thus biased, I doubt he would have allowed the fraud suit to proceed.

It is based on the assumption the Church had knowledge that Bishop was predator and still called him to be the MTC Mission President.

Edited August 13, 2018 by provoman

[JAHS]

Here's a DN link:

Judge dismisses sexual assault lawsuit against former MTC president

U.S. District Judge Dale Kimball found that McKenna Denson's legal claims for sexual assault, fraud and emotional distress expired under Utah's statute of limitations.
Kimball also threw out those same claims Denson made against The Church of Jesus Christ of Latter-day Saints but said the statute of limitations on her contention that the church concealed Bishop's predatory sexual behavior did not begin until she confronted him in December 2017.
The judge found Denson reported her claims to her local bishop, stake president and Elder Carlos E. Asay.
"Carlos Asay allegedly told Denson that he would inform her of the outcome of the investigation, but never did," the judge wrote. "Despite her efforts, she was not able to uncover that the (church) allegedly had knowledge that Bishop was a sexual predator prior to calling him as the MTC president."

 

[provoman]

22 minutes ago, Tacenda said:

https://www.ksl.com/?nid=148&sid=46375388

.....

And what's up with having the federal judge have a stake in it such as his membership in the church. Easy to see how he was doing his duty of protecting the church, IMO. 

Instead of Ad Hominem, can you provide a legal analysis as to way the portions of the case should not have been dismissed?

And, can an exmormon Judge be trusted to to be impartial against the Church? If an exmormon Judge broke covenants, can an exmormon Judge be trusted to not break Oath of Offixe?

[Tacenda]

7 minutes ago, provoman said:

Instead of Ad Hominem, can you provide a legal analysis as to way the portions of the case should not have been dismissed?

And, can an exmormon Judge be trusted to to be impartial against the Church? If an exmormon Judge broke covenants, can an exmormon Judge be trusted to not break Oath of Offixe?

My swift posting is pretty immature of me, yes I believe you're right, if an ex Mormon or non LDS were the federal judge, I'm sure someone would have cause to mistrust the outcome as well if it favored Denson's position. You and John are correct. 

[JulieM]

31 minutes ago, bluebell said:

Hopefully they'll have details soon.

 

I agree.  I’m reading elsewhere that this is a victory for Denson and she’s being congratulated.  

Let’s hear from some legal experts on here!!

Edited August 13, 2018 by JulieM

[smac97]

Some preliminary thoughts:

1. The judge allows the single fraud claim to proceed despite its vagueness.  Rule 9(b) of the Federal Rules of Civil Procedure requires allegations of fraud to be pleaded with "particularity."  I don't think that happened here.  But Rule 9(b) was not, I think, presented as basis for dismissal in the Church's Motion to Dismiss.  I'm not sure why, as it seems a pretty obvious basis for dismissal.

2. The judge was constrained, for the purposes of the Church's Motion to Dismiss, to take all of Ms. Denson's factual allegations as presumptively true.  Now that the Motion to Dismiss has been denied as to the fraud claim, that presumption goes out the window.

3. Without that presumption, Ms. Denson's case hinges on a very, very poor body of evidence.  Her allegations about what Bishop "confessed" to Wells will now have to be established.  I think she'll have a very hard time getting around the priest/penitent privilege.

4. She has admitted that she didn't tell Elder Asay about the rape (though she does claim that she told him about Bishop's purported other inappropriate behavior).

5. The Court makes extensive references to a lawsuit, Dummar v. Lewis.  That case involved a contested will purportedly written by Howard Hughes.

6. I'll be curious as to whether the Church will seek interlocutory appeal, or else proceed with discovery.

Thanks,

-Smac

[provoman]

7 minutes ago, smac97 said:

Some preliminary thoughts:

1. The judge allows the single fraud claim to proceed despite its vagueness.  Rule 9(b) of the Federal Rules of Civil Procedure requires allegations of fraud to be pleaded with "particularity."  I don't think that happened here.  But Rule 9(b) was not, I think, presented as basis for dismissal in the Church's Motion to Dismiss.  I'm not sure why, as it seems a pretty obvious basis for dismissal.

2. The judge was constrained, for the purposes of the Church's Motion to Dismiss, to take all of Ms. Denson's factual allegations as presumptively true.  Now that the Motion to Dismiss has been denied as to the fraud claim, that presumption goes out the window.

3. Without that presumption, Ms. Denson's case hinges on a very, very poor body of evidence.  Her allegations about what Bishop "confessed" to Wells will now have to be established.  I think she'll have a very hard time getting around the priest/penitent privilege.

4. She has admitted that she didn't tell Elder Asay about the rape (though she does claim that she told him about Bishop's purported other inappropriate behavior).

5. The Court makes extensive references to a lawsuit, Dummar v. Lewis.  That case involved a contested will purportedly written by Howard Hughes.

6. I'll be curious as to whether the Church will seek interlocutory appeal, or else proceed with discovery.

Thanks,

-Smac

would discover involve "gimme your financial statements so we can what damages are reasonable"

[smac97]

8 minutes ago, provoman said:

would discover involve "gimme your financial statements so we can what damages are reasonable"

Honestly, I am not sure how such a thing would pan out.  I think that would come across to the court as a pretty brazen Ms.-Denson's-attorneys-only-filed-this-lawsuit-in-order-to-use-discovery-to-forcibly-extract-information-from-the-LDS-Church shenanigans.

I would think the Court would require discovery to first proceed on liability.  Discovery on damages could proceed later.

Thanks,

-Smac

[USU78]

1 hour ago, provoman said:

One claim against the Church will procede - the concealment claim.

I am greatly curious how our plaintiff has been damaged, even assuming the Church concealed anything, which I greatly doubt.

I am also greatly curious what duty is owed our plaintiff by the Church WRT the information claimed to have been concealed, and

whether the priest/penitent privilege can be blithely pooh-poohed in order to save plaintiff's claim.

[smac97]

1 hour ago, USU78 said:

I am greatly curious how our plaintiff has been damaged, even assuming the Church concealed anything, which I greatly doubt.

I think the theory is this:

• 1. Joseph Bishop confessed to being a "sexual predator" to Elder Wells when he (Bishop) was a mission president in Argentina in 1977 and Elder Wells as a General Authority over that area.
• 2. The LDS Church, having been made aware of Bishop's "sexual predator" proclivities, nevertheless called him to be the president of the MTC in 1984.
• 3. The LDS Church did not disclose Bishop's "sexual predator" proclivities to the missionaries over whom he presided in the MTC.
• 4. As a result of the LDS Church's failure to disclose Bishop's "sexual predator" proclivities, Ms. Denson agreed to meet with Bishop privately, during which he sexually assaulted her.

Lots of holes in this theory.  Very difficult to establish these things.

Quote

I am also greatly curious what duty is owed our plaintiff by the Church WRT the information claimed to have been concealed, and

whether the priest/penitent privilege can be blithely pooh-poohed in order to save plaintiff's claim.

If the Church was aware of Bishop's "sexual predator" proclivities, I could see the Church having an affirmative duty to disclose that.  

Consider the MUJI ("Model Utah Jury Instructions") for fraudulent concealment:

Quote

(1) that [name of defendant] knew [describe the important fact] and failed to disclose it to [name of plaintiff];

(2) that [name of plaintiff] did not know [describe the important fact]; and

(3) that [name of defendant]’s failure to disclose [describe the important fact] was a substantial factor in causing [name of plaintiff]’s damages.

So the jury instruction would be framed this way:

(1) that the LDS Church knew that Joseph Bishop had a history of sexually predatory behavior and failed to disclose it to McKenna Denson;

(2) that McKenna Denson did not know that Joseph Bishop had a history of sexually predatory behavior; and

(3) that the LDS Church’s failure to disclose Joseph Bishop's history of sexually predatory behavior was a substantial factor in causing McKenna Denson’s damages.

I think duty, causation and damages are fairly clear. 

If there is competent, probative, and sufficient evidence that the LDS Church knew that Joseph Bishop had a history of sexually predatory behavior, and

if there is competent, probative, and sufficient evidence that the Church disregarded this and appointed Bishop to a position of substantial authority where he had access to potential victims, and

if there is competent, probative, and sufficient evidence that Bishop did in fact sexually assault Denson, then liability could be there.

But those are a lot of "ifs."  And the path through those "ifs" cuts straight through the priest/penitent privilege.

Again, I am really wondering why the Church's attorneys didn't cite 9(b) as a basis for dismissal.  

Thanks,

-Smac

Edited August 13, 2018 by smac97

[USU78]

38 minutes ago, smac97 said:

Some preliminary thoughts:

1. The judge allows the single fraud claim to proceed despite its vagueness.  Rule 9(b) of the Federal Rules of Civil Procedure requires allegations of fraud to be pleaded with "particularity."  I don't think that happened here.  But Rule 9(b) was not, I think, presented as basis for dismissal in the Church's Motion to Dismiss.  I'm not sure why, as it seems a pretty obvious basis for dismissal.

2. The judge was constrained, for the purposes of the Church's Motion to Dismiss, to take all of Ms. Denson's factual allegations as presumptively true.  Now that the Motion to Dismiss has been denied as to the fraud claim, that presumption goes out the window.

3. Without that presumption, Ms. Denson's case hinges on a very, very poor body of evidence.  Her allegations about what Bishop "confessed" to Wells will now have to be established.  I think she'll have a very hard time getting around the priest/penitent privilege.

4. She has admitted that she didn't tell Elder Asay about the rape (though she does claim that she told him about Bishop's purported other inappropriate behavior).

5. The Court makes extensive references to a lawsuit, Dummar v. Lewis.  That case involved a contested will purportedly written by Howard Hughes.

6. I'll be curious as to whether the Church will seek interlocutory appeal, or else proceed with discovery.

Thanks,

-Smac

You made the following point earlier in this thread, which I both recall (but am too lazy to look up) and agree with:

The alleged failure to disclose is being claimed to excuse the failure to report to police or bring civil suit by 1987, when Utah's 3-year statute of limitation for fraudulent concealment ran.  Both the complaint and the Memorandum Decision are very fuzzy on when precisely the alleged assault took place and when plaintiff went to her bishop to report it [late '87 or early '88].  When precisely the alleged assault occurred and when the report was made are highly relevant here.  It is irrelevant, it seems to me, whether the implication of Elder Asay's alleged failure to report back to her lulled her into a false sense of security if the statute had already run before he even became aware of the matter.  In any case, she already knew, assuming her story is remotely accurate, at the time of the '84 assault that Bishop was not a safe person.  No intervening assurance, especially implicit from silence assurances, could overcome what she already knew.

[smac97]

11 minutes ago, USU78 said:

You made the following point earlier in this thread, which I both recall (but am too lazy to look up) and agree with:

The alleged failure to disclose is being claimed to excuse the failure to report to police or bring civil suit by 1987, when Utah's 3-year statute of limitation for fraudulent concealment ran.  Both the complaint and the Memorandum Decision are very fuzzy on when precisely the alleged assault took place and when plaintiff went to her bishop to report it [late '87 or early '88].  When precisely the alleged assault occurred and when the report was made are highly relevant here. 

Agreed.  But if the Church's attorneys had wanted to make these things relevant for the purposes of a Rule 12 Motion to Dismiss, they should have raised them in the Motion to Dismiss.

But they didn't.  Not sure why.

11 minutes ago, USU78 said:

It is irrelevant, it seems to me, whether the implication of Elder Asay's alleged failure to report back to her lulled her into a false sense of security if the statute had already run before he even became aware of the matter. 

"If the statute had already run" being the operative phrase there.  I don't think the Complaint is sufficiently clear on that point.

Also, I am not sure how "Elder Asay's alleged failure to report back to her lulled her into a false sense of security."  How could such a "lulling" have occurred?  What was she "lulled" into doing or not doing?  

11 minutes ago, USU78 said:

In any case, she already knew, assuming her story is remotely accurate, at the time of the '84 assault that Bishop was not a safe person.  No intervening assurance, especially implicit from silence assurances, could overcome what she already knew.

Yep.  It would seem that if she was "lulled" into anything, it would be that she was "lulled" into trusting Bishop enough to meet with him privately.  On that point, disclosure to Elder Asay is irrelevant.

Is her theory that the LDS Church "lulled" her into not reporting Bishop's misconduct to the police?  Or that the Church "lulled" her into not filing a lawsuit against the Church?

Thanks,

-Smac

[USU78]

43 minutes ago, smac97 said:

Again, I am really wondering why the Church's attorneys didn't cite 9(b) as a basis for dismissal.  

I suspect because judges are supposed to be lenient on matters related to pleading:  yes, it's insufficient, but no, I'm not going to dismiss but rather grant leave to amend.

Why go through that hassle up front, especially when you have some pretty darn good stuff which could reasonably be believed to be sufficient to get the entire suit kicked.

[smac97]

1 minute ago, USU78 said:

I suspect because judges are supposed to be lenient on matters related to pleading:  yes, it's insufficient, but no, I'm not going to dismiss but rather grant leave to amend.

The leniency in pleading does not apply to fraud claims.  This should particularly be so in federal court, which operates under the Twombly/Iqbal standard, rather than the "short and plain statement" standard from Conley v. Gibson, which is still used in state courts in Utah.

And even if leave to amend had been granted, I don't think Vernon could have improved on his claims.  He simply doesn't have information sufficient to state a claim for fraud (IMO).  “A complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.”  Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).

To satisfy the pleading requirement, the claimant 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).  Vernon didn't have any further data points to add.  He had no further "particularity" to add.  All he had was guesswork and innuendo.  That should not have been enough to get in through the courthouse doors.  

1 minute ago, USU78 said:

Why go through that hassle up front, especially when you have some pretty darn good stuff which could reasonably be believed to be sufficient to get the entire suit kicked.

Re-drafting a complaint is far less of a hassle then having the parties spend months in discovery.

Thanks,

-Smac

[USU78]

2 minutes ago, smac97 said:

The leniency in pleading does not apply to fraud claims.  This should particularly be so in federal court, which operates under the Twombly/Iqbal standard, rather than the "short and plain statement" standard from Conley v. Gibson, which is still used in state courts in Utah.

Yes, I agree that's what's supposed to happen.  My experience varies.

And even if leave to amend had been granted, I don't think Vernon could have improved on his claims.  He simply doesn't have information sufficient to state a claim for fraud (IMO).  “A complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.”  Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).

No argument here.  Plaintiff's case sucketh.

To satisfy the pleading requirement, the claimant 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).  Vernon didn't have any further data points to add.  He had no further "particularity" to add.  All he had was guesswork and innuendo.  That should not have been enough to get in through the courthouse doors.  

I've noticed a disinclination in many, probably most, judges to kick a case prior to completion of discovery.  In the Tanner v FAIR case, we presented in federal court an out-of-the-chute motion for summary judgment in front of this very judge, as memory serves.  We lost.  We went through discovery.  We refiled the same motion with cosmetic differences.  We won.  Then we won on appeal.  Now, maybe the issue was bringing up the very few facts that, sketchily,  hadn't been pleaded.  No idea.

Re-drafting a complaint is far less of a hassle then having the parties spend months in discovery.

Sometimes young lawyers especially overthink things.  I was just suggesting a possible strategy explaining the actions.

Thanks,

-Smac

 

[smac97]

19 minutes ago, USU78 said:

The leniency in pleading does not apply to fraud claims.  This should particularly be so in federal court, which operates under the Twombly/Iqbal standard, rather than the "short and plain statement" standard from Conley v. Gibson, which is still used in state courts in Utah.

Yes, I agree that's what's supposed to happen.  My experience varies.

So does mine, I guess.

19 minutes ago, USU78 said:

And even if leave to amend had been granted, I don't think Vernon could have improved on his claims.  He simply doesn't have information sufficient to state a claim for fraud (IMO).  “A complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.”  Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).

No argument here.  Plaintiff's case sucketh.

To satisfy the pleading requirement, the claimant 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).  Vernon didn't have any further data points to add.  He had no further "particularity" to add.  All he had was guesswork and innuendo.  That should not have been enough to get in through the courthouse doors.  

I've noticed a disinclination in many, probably most, judges to kick a case prior to completion of discovery. 

I've had a very different experience.  But then, I work in consumer finance litigation.  There is a remarkable sameness to the legal theories that are presented by borrowers suing lenders on home loans.  I think both federal and state court judges are sick and tired of these cases (which are virtually always crapola) clogging up their dockets.

But this case is quite different.  High profile parties.  Lots of media coverage.  Sensitive issue (sexual assault).  Turbulent times ("#MeToo" movement).  

It may well be that the Court can see the end from the beginning, and all of the evidentiary and procedural messiness in between, and nevertheless want to give Ms. Denson - who in some ways comes across as a very sympathetic figure - her "day in court."  So the judge dismisses all claims against Bishop (which were totaly untenable) and all but one claim against the LDS Church, leaving a single claim that is, as a matter of evidence and procedure, one of the most difficult civil claims to successfully prosecute.  And all she's got is her say-so, the credibility of which is very low.

So where does that leave things?  Well, it leaves Ms. Denson with a terrible, perhaps impossible, case to prove and a mountain of procedural and evidentiary problems to overcome.  And on the other side we have the LDS Church, which is generally averse to litigation and may well have settled this matter but for Ms. Denson's incomprehensibly dumb efforts to destroy her own attorney's negotiating position.

Might we see a second effort at settlement?  Might the parties be able to structure something that is structured so that both sides can come away at least marginally satisfied (for example, a solid non-disclosure agreement about the settlement terms, buttressed by payment terms over time and a hefty liquidated damages provision should Ms. Denson choose to breach the terms of settlement)? 

Just spit-balling here.

19 minutes ago, USU78 said:

In the Tanner v FAIR case, we presented in federal court an out-of-the-chute motion for summary judgment in front of this very judge, as memory serves.  We lost.  We went through discovery.  We refiled the same motion with cosmetic differences.  We won.  Then we won on appeal.  Now, maybe the issue was bringing up the very few facts that, sketchily,  hadn't been pleaded.  No idea.

Re-drafting a complaint is far less of a hassle then having the parties spend months in discovery.

Sometimes young lawyers especially overthink things.  I was just suggesting a possible strategy explaining the actions.

Again, my experience is in consumer finance litigation.  Both federal and state courts are pretty tired of seeing these cases, particularly if an attorney is presenting them (since attorneys shoudl know better).

Thanks,

-Smac