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Doe v. G-Star School of Arts, Inc.

United States District Court, S.D. Florida

May 19, 2017

JANE DOE NO. 60, Plaintiff,



         THIS CAUSE is before the Court upon Defendant G-Star School of the Arts, Inc.'s (“Defendant” or “G-Star School”) Motion to Dismiss Count I of Plaintiff's Second Amended Complaint, ECF No. [78] (the “Motion”). The Court has reviewed the Motion, all opposing and supporting submissions, the record and the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

         I. BACKGROUND

         The parties' familiarity with the procedural and factual background of this case is assumed. See ECF No. [84]. Relevant here, this action was brought by minor Plaintiff Jane Doe No. 60 ("Plaintiff") and arises out of the alleged sexual harassment and assault of Plaintiff by one of her high school teachers at G-Star School, a not-for-profit charter school. Specifically, Plaintiff alleges that an inappropriate relationship formed between her and her tenth grade history teacher, Ismael Martinez (“Martinez”), following a sexual encounter between the two of them that occurred in Martinez's classroom in April 2012-when Plaintiff was fifteen years old. See ECF No. [74] at ¶¶ 8, 24. According to Plaintiff, while she remained a student at G-Star School her parents were never made aware of the alleged April 2012 sexual encounter or her ensuing relationship with Martinez, which continued throughout her eleventh and twelfth grade years. See Id. at ¶¶ 26-27.

         After graduating from G-Star School in 2014, Plaintiff filed the instant action against G-Star School on March 21, 2016, and, in an Amended Complaint filed on April 25, 2016, ECF No. [6], asserted a claim for negligence (Count I) and a claim for violations of Title IX, 20 U.S.C. § 1681 et seq. (Count II). On September 6, 2016, the Court granted a Motion for Judgment on the Pleadings filed by G-Star School, dismissing Plaintiff's negligence claim without prejudice for Plaintiff's failure to allege that G-Star School was provided with pre-suit notice as required under Fla. Stat. § 768.28(6) (2016). ECF No. [35]. The Court advised that Plaintiff would be allowed to refile the negligence claim after complying with the pre-suit notice requirements of Fla. Stat. § 768.28(6). Id. at 15.

         On April 14, 2017, the Court, satisfied that Plaintiff had since complied with the pre-suit notice requirements of Fla. Stat. § 768.28(6), granted Plaintiff leave to file a Second Amended Complaint reasserting the negligence claim against Defendant, which Plaintiff filed on April 19, 2017. See ECF Nos. [72], [74]. The Second Amended Complaint indicates that Plaintiff provided G-Star School with pre-suit notice on September 27, 2016. ECF No. [74] at ¶ 31. In its Motion, G-Star School seeks dismissal of Plaintiff's negligence claim with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues that the negligence claim is now barred because, as reflected in the Second Amended Complaint, Plaintiff failed to provide pre-suit notice to G-Star School within three years from the time of the alleged April 2012 sexual encounter-the time her alleged injury occurred-as required by Fla. Stat. § 768.28(6)(a).


         A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the Rule 8 pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, (2002). While a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court has emphasized that “[t]o 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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010). “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).


         Pursuant to Fla. Stat. § 768.28, Florida's sovereign immunity statute, “[a]n action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency . . . within 3 years after such claim accrues and . . . the appropriate agency denies the claim in writing . . . .” Fla. Stat. § 768.28(6)(a) (emphasis added).[1] “Generally, an action pursued without first satisfying the statutory notice provision must be dismissed without prejudice, so that plaintiff may amend his complaint to comply with the requirement. . . . However, where the time for notice has expired and it is evident that the plaintiff cannot fulfill the requirement, a dismissal with prejudice is warranted.” Schaeffer v. Sch. Bd. of Broward Cty., Fla., 69 F.Supp.3d 1327, 1329 (S.D. Fla. 2014) (internal citations omitted). With respect to accrual, “[a] statute of limitations ‘runs from the time the cause of action accrues' which, in turn, is generally determined by the date ‘when the last element constituting the cause of action occurs.'” Hearndon v. Graham, 767 So.2d 1179, 1184-85 (Fla. 2000) (quoting Fla. Stat § 95.031 (1987)).

         G-Star School contends that Plaintiff's claim accrued on April 2012, which is when G-Star School would have allegedly failed to protect Plaintiff from the sexual encounter that took place in Martinez's classroom. ECF No. [78] at 6. As such, G-Star School argues that the pre-suit notice provided by Plaintiff on September 27, 2016 was untimely, having been provided well after three years had passed since the alleged April 2012 sexual encounter. Id. Plaintiff, emphasizing that the Second Amended Complaint alleges that “Plaintiff's parents had no notice or knowledge in the relevant time period of facts concerning the sexually abusive and inappropriate relationship between teacher Martinez and [Plaintiff, ]” counters that in this case accrual is a question of fact based on notice to Plaintiff's parents that cannot be determined on a motion to dismiss. ECF No. [81] at 4-5, 9. The issue before the Court, then, is at what point in time Plaintiff's negligence claim against G-Star School accrued for purposes of the pre-suit notice requirement under Fla. Stat. § 768.28(6)(a).

         This issue necessarily concerns areas of Florida substantive law. “In rendering a decision based on state substantive law, a federal court must decide the case the way it appears the state's highest court would. Where the state's highest court has not spoken to an issue, a federal court must adhere to the decisions of the state's intermediate appellate courts absent some persuasive indication that the state's highest court would decide the issue otherwise.” Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (internal quotation marks and citations omitted). “Where, however, there is a conflict within the district courts of appeal, this Court must attempt to divine how the Supreme Court of Florida would resolve that conflict.” Albizu-Ayala v. Pitney Bowes, Inc., 2003 WL 25629693, at *2 (S.D. Fla. July 22, 2003); see also JB Oxford Holdings, Inc. v. Net Trade, Inc., 76 F.Supp.2d 1363, 1366 (S.D. Fla. 1999) (“Florida's intermediate appellate courts are divided over the meaning of subsection (1)(b) and the Florida Supreme Court has not resolved the conflict. Thus, the normal course would be for this court to discern how the Florida Supreme Court would rule if confronted with the issue.”). Here, the Florida Supreme Court has not addressed the particular issue at hand, and, as the parties have alerted to, there is a split of authority amongst the Florida District Courts of Appeal on the issue.

         Although the Florida Supreme Court has not addressed the specific issue in this case, two of its decisions bear particular relevance to the issue. In Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000), the Florida Supreme Court applied the “delayed discovery” doctrine, which generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action, to facts somewhat similar to those of this case. The plaintiff in Hearndon asserted a cause of action against her stepfather in 1991 for injuries resulting from childhood sexual abuse that began in 1968, when she was eight, and continued until 1975, when she turned fifteen. Id. at 1181. The Florida Supreme Court accepted for purposes of its review that the plaintiff's childhood sexual abuse caused her to suppress or lose memory of the events for several years and that she later filed suit upon recalling the abuse. Id. at 1182. After explaining the difference between the delayed accrual of a cause of action and the tolling of limitations once the limitations period is triggered, the Florida Supreme Court held that the delayed discovery doctrine applies to “causes of action alleging subsequent recollection of childhood sexual abuse[, ]” reasoning that the doctrine was appropriate in such cases because the lack of memory was caused by the abuser-i.e., the delayed discovery was attributable to the abuser. Id. at 1182, 1185-86. In doing so, Hearndon made clear that the delayed discovery doctrine operates to delay the accrual of a cause of action, rather than to toll the relevant statute of limitations.

         In Davis v. Monahan, 832 So.2d 708 (Fla. 2002), the Florida Supreme Court held that the delayed discovery doctrine applies only when the Florida legislature has provided for its application by statute. The Florida Supreme Court explained, in relevant part, as follows:

The Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred. The [l]egislature has also imposed a delayed discovery rule in cases of professional malpractice, medical malpractice, and intentional torts based on abuse. . . . .
Aside from the provisions above for the delayed accrual of a cause of action in cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, there is no other ...

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