The family of a former Carmel High School student who says he was assaulted on a basketball team bus has filed its long-awaited federal lawsuit against Carmel Clay Schools, saying school officials were negligent in failing to prevent the attack.To see the rest of the article, click here.
The suit, filed Tuesday in U.S. District Court in Indianapolis, describes the assault as "flashing of (sexual organs) and buttocks, verbal and physical intimidation, groping and numerous acts of violent, sexual assault and battery." Two former Carmel basketball players, Robert Kitzinger and Brandon Hoge, were charged with misdemeanors in the incident and since have pleaded guilty through an agreement with prosecutors.
The lawsuit seeks unspecified damages, but Indianapolis attorney Robert Turner said his clients were seeking at least $2.25 million, the figure set in an earlier tort claim informing the school district of the family's plans to sue.
In the lawsuit, Turner claims the boy, identified only by his initials in court documents, had been a target of "bullying, harassing and assault in a highly sexualized nature, at the hands of upperclassmen members of the basketball team."
The suit maintains that the school district was negligent in training coaches, who Turner says knew of the abuse before the incident and ignored the boy's screams for help on the bus.
I have a lot of respect for Robert Turner, both as former public safety director and as an attorney. I certainly believe the kid who was attacked should be compensated for what happened to him. However, the attorney in me has to wonder about the choice of federal court for this lawsuit.
The federal court has an easier summary judgment standard than does the one employed in state courts. While in theory the difference is only slight, in practice the slipper slope of decisions over time has resulted in the difference growing to the size of the Grand Canyon. In state courts, summary judgment is rare and litigants usually get their day in court. In federal court, summary judgment has become so common that defendants generally won't even consider settlement until after summary judgment. Summary judgment now seems to be nothing more than both sides putting their evidence on the table, and the court determining which case it likes better. That's not how summary judgment is supposed to work, but unfortunately that is the way it is too often working.
But it gets worse. The United States Supreme Court a few years ago handed down a couple cases, Ashcrof v. Iqbal and Bell Atlantic v. Twombley, where the Supreme Court approved the dismissal of cases for not being pled adequately. Unfortunately some of the federal court have misinterpreted these narrow, fact-based rulings to open the door for defendants to make exhaustive and groundless challenges to whether a complaint has been pled adequately, often challenging every fact in a complaint and citing to summary judgment cases in support for their claim that the facts are inadequate to support the claim. While the 7th Circuit has made clear that the federal standard is still notice pleading, the district court is still allowing these harassing and baseless pleading challenges to be made by defendants, increasing substantially the time attorneys for the plaintiffs have to defend on a matter - the adequacy of a complaint - that used to be a slam dunk.
It should be noted that in a case handed down last year, Skinner v. Switzer, the United States Supreme Court never even mentioned Iqbal and Twombley in a challenge to the adequacy of a complaint. The Court instead reiterated that the federal standard is that all that is required is to put the defendants on notice of the claim. I have little doubt that the Court is concerned about the misapplication of Iqbal and Twombley by some federal courts.
Then you have the issue of discovery. The local federal rule is that when there is a "discovery dispute" you're supposed to confer to try to work out the dispute. Many law firms representing defendants will never answer any discovery initially because they know they know the local rule protects them. Instead, they will use the rule to require the plaintiffs to explain in detail why they need every piece of discovery before they will provide it. Discovery is already very time-consuming. The local rule has the unfortunate impact in many cases of multiplying that by a factor of 2 or 3,, the time involved in discovery. The federal magistrates and judges, with the notable exception of Judge Larry McKinney, don't seem inclined to crack down on discovery abuses.
Although I haven't seen the complaint, Turner has undoubtedly made a federal civil rights claim. Maybe that was his only route to go given the lack of teeth in Indiana's civil rights law. Still I would have worked overtime to find state-only legal theories to keep it out of federal court.
I'm not the only attorney who believes state court is the better venue for the "little guy" seeking redress against a deep-pocket defendant. I ran into one of the top civil rights attorneys in Indianapolis. He said that federal courts favor defendants and the big law firms, and that whenever possible he pleads to avoid federal court because he believes he will get a more fair shot with the more political state court judges. Interesting. Federal courts, which were once seen as the protector of the little guy, are not always viewed that way any longer.