Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.285 Page 1 of 44 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DENHOLLANDER, et al Plaintiffs, v. MICHIGAN STATE UNIVERSITY et al, Defendants. ) ) ) ) ) ) ) ) ) ) ) Lead Case No. 1:17-cv-00029-GJQ ESC and all consolidated member cases: 1:17-cv-00222-GQJ-ESC 1:17-cv-00244-GQJ-ESC 1:17-cv-00254-GQJ-ESC 1:17-cv-00257-GQJ-ESC 1:17-cv-00288-GQJ-ESC 1:17-cv-00349-GQJ-ESC 1:17-cv-00676-GQJ-ESC 1:17-cv-00684-GQJ-ESC Hon. Gordon J. Quist _____________________________________________________________________________/ DEFENDANTS TWISTARS USA, INC. AND JOHN GEDDERT’S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(2) {01507997} Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.286 Page 2 of 44 NOW COME the Defendants, TWISTARS USA, INC. (“Twistars”) and JOHN GEDDERT (“Mr. Geddert”), by and through their attorneys, ZAUSMER, AUGUST & CALDWELL, P.C., and moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2) for the reasons set forth in the attached Brief in Support. Respectfully submitted, Dated: January 12, 2018 {01507997} /s/ Cameron R. Getto Cameron R. Getto (P57300) ZAUSMER, AUGUST & CALDWELL, P.C. Attorneys for Defendant Twistars USA, Inc. and John Geddert 32255 Northwestern Hwy., Suite 225 Farmington Hills, MI 48334 (248) 851-4111 Fax: (248) 851-0100 cgetto@zacfirm.com 2 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.287 Page 3 of 44 TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................................. i, ii MOST CONTROLLING AUTHORITY .............................................................................. iii, iv, v I. INTRODUCTION .........................................................................................................1 II. FACTS LEGAL THEORIES & PROCEDURAL POSTURE ......................................2 A. The parties................................................................................................................2 1. Plaintiffs .............................................................................................................2 2. Defendants .........................................................................................................3 a. Nassar...........................................................................................................3 b. Michigan State University ...........................................................................4 c. Kathie Klages ..............................................................................................5 d. William Strampel .........................................................................................5 e. Dr. Jeffrey Kovan.........................................................................................5 f. Dr. Gary Stollak ...........................................................................................5 g. USA Gymnastics ..........................................................................................5 h. John Geddert and Twistars...........................................................................6 B. Legal Theories .........................................................................................................6 III. STANDARD OF REVIEW ...........................................................................................7 IV. LAW & ARGUMENT ...................................................................................................8 A. The statute of limitations has run out on most of the claims against Twistars and/or Mr. Geddert ....................................................................................8 1. The statute of limitations applicable to all Plaintiffs accrued when the alleged sexual abuse occurred ............................................................8 2. The tort claims alleged in the present case are all subject to a three year statute of limitations ..........................................................................9 3. Minors are permitted a one year grace period after reaching the age of majority .................................................................................................10 4. Insanity tolling/repressed memory tolling does not apply ...............................11 5. The “Discovery Rule” does not apply .............................................................11 {01507997} i Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.288 Page 4 of 44 6. There is no tolling under the facts pled in these cases based on fraudulent concealment ....................................................................................12 B. There is no cause of action as to any Plaintiff based on Geddert’s or Twistars’ alleged failure to report ..........................................................................15 C. There is no cause of action for “gross negligence”................................................19 D. The elements of intentional infliction of emotional distress are neither pled nor present here ......................................................................................................20 E. The elements of fraud and/or misrepresentation are not properly pled, nor are they present here ..............................................................................................21 F. Nassar was not an agent, and even if he had been, bedrock principles of law hold that sexual assaults are outside the scope of agency ...............................23 G. An analysis of the pleadings shows that the vast majority of claims should be dismissed because the statute of limitations is expired, there is no connection between Twistars and the particular Plaintiff, the claim is improperly pled, the elements of the claim are not present as a matter of law, or some combination of bases warrants dismissal .........................................24 Case No. 1:17-cv-00029 (A Group).......................................................................24 Case Nos. 1:17-cv-00222; 1:17-cv-00288 and 1:17-cv-00349 (B Group) ............26 Case No. 1:17-cv-00257 (C Group) .......................................................................29 Case No. 1:17-cv-00254 (D Group).......................................................................32 Case No. 1:17-cv-00244 (E Group) .......................................................................33 Case No. 1:17-cv-00676 (F Group) .......................................................................34 Case No. 1:17-cv-00684 (G Group).......................................................................34 III. CONCLUSION ............................................................................................................35   {01507997} ii Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.289 Page 5 of 44 MOST CONTROLLING AUTHORITY Cases Antos v. Diocese of Lansing, 200 Mich. App. Lexis 2830, (No. 262137) (Mich. App. Nov. 15, 2015) ............................................................................................................................. 11, 14, 15 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) .............................................................................. 7 Bauman v Grand T. W. R.R., 41 Mich. App. 611, 612, 200 N.W.2d 444, 444 (1972) ................. 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) ................................................................... 7 Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011) ..................................................................... 19 Bozarth v. Harper Creek Board of Education, 94 Mich. App. 351, 355 (1979) .......................... 24 Chandler v. Wackenhut Corp., 465 Fed. Appx. 425, 427 (6th Cir. 2012) ............................... 14, 15 Chase v. Sabin, 445 Mich. 190 (1994).......................................................................................... 12 Cherry Growers, Inc. v. Michigan Processing Apple Growers, Inc., 240 Mich. App. 153, 173 (2000) ........................................................................................................................................ 17 Chisea v Rowe, 486 F.Supp. 236 (W.D. Mich., 1980).................................................................. 10 Connelly v Paul Ruddy’s Equipment & Repair Service Co., 388 Mich. 146 (1972) ...................... 8 Cooper v. Auto Club Ins. Ass'n, 481 Mich. 399, 414, 751 N.W.2d 443, 451 (2008) ................... 22 Cummins v. Robinson Twp., 283 Mich. App. 677, 692 (2009)..................................................... 20 Dalley v. Dykema Gossett, P.L.L.C., 287 Mich. App. 296, 321, 788 N.W.2d 679, 694 (2010) ... 20 Detroit Free Press, Inc. v. Family Indep. Agency, 258 Mich. App. 544, 553 (2003) .................. 17 Doe v. Roman Catholic Archbishop, 264 Mich. App. 632, 642 (2004)............................ 13, 14, 15 Fassihi v. Sommers, Schwartz, Silver, Schwartz & Tyler, P. C., 107 Mich. App. 509, 517, 309 N.W.2d 645, 649 (1981) ........................................................................................................... 21 Fries v. Holland Hitch Co., 12 Mich. App. 178, 185(1968); Coats v. Uhlmann, 87 Mich. App. 385 (1978) ................................................................................................................................. 10 Guerra v. Garrat, 222 Mich. App. 285 (1997) ............................................................................. 11 Jennings v. Southwood, 446 Mich. 125, 129 (1994)..................................................................... 19 {01507997} iii Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.290 Page 6 of 44 Johnson v. Williams, No. 15-13856, 2017 U.S. Dist. LEXIS 156149, at *48 (E.D. Mich. Sep. 25, 2017) ......................................................................................................................................... 20 Jones v. Bitner, 300 Mich. App. 65, 74 (2013) ............................................................................. 18 Lemmerman v. Fealk, 449 Mich. 56, 64 (1995).................................................................... 8, 9, 11 Linebaugh v. Sheraton Mich. Corp., 198 Mich. App. 335, 343, 497 N.W.2d 585, 589 (1993) ... 23 Marcelletti v. Bathani, 198 Mich. App. 655, 659-60 (1993) ........................................................ 18 Martin v. Jones, 302 Mich. 355, 358 (1942) ................................................................................24 McCalla v. Ellis, 129 Mich. App. 452, 461, 341 N.W.2d 525, 528 (1983) .................................. 24 Placek v. Sterling Heights, 405 Mich. 638, 650 (1979) ................................................................ 19 Pohutski v. Allen Park, 465 Mich. 675, 683 (2002) ..................................................................... 17 Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) ........................... 7 Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236 (1999) ......................................................... 17 Trentadue v. Gorton, 479 Mich. 378, 416 (2007) ............................................................... 8, 11, 12 Weast v. Duffie, 272 Mich. 534, 539 (1935) ................................................................................. 13 Williams v. Coleman, 194 Mich. App. 606, 613 (1992) ............................................................... 17 Statutes MCL § 600.2946a ......................................................................................................................... 20 MCL § 600.5827 ....................................................................................................................... 8, 12 MCL §600.5805 ............................................................................................................................ 12 MCL § 600.5805(10) .................................................................................................................9, 10 MCL §600.5813 ............................................................................................................................ 12 MCL §§ 600.5838 ......................................................................................................................... 12 MCL § 600.5839 ........................................................................................................................... 12 {01507997} iv Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.291 Page 7 of 44 MCL § 600.5851 ........................................................................................................................... 11 MCL §600.5851(1) ............................................................................................................. 9, 10, 15 MCL § 600.5855 ..................................................................................................................... 12, 13 MCL § 691.4107 ........................................................................................................................... 20 MCL §722.621 et seq.................................................................................................................... 16 MCL §722.623 ........................................................................................................................ 16, 18 MCL §722.623(1) ......................................................................................................................... 18 MCL §722.623(1)(a)-(c) ............................................................................................................... 18 MCL §722.624 .............................................................................................................................. 18 Rules Fed. R. Civ. P. ..............................................................................................................................2, 7 {01507997} v Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.292 Page 8 of 44 I. INTRODUCTION These eight consolidated cases arise out of allegations that a former MSU sports physician, Lawrence Nassar, sexually abused over a hundred minor girls over the course of two decades. He has pled guilty to multiple counts of criminal sexual conduct in Ingham and Eaton Counties and faces sentencing on the charges. He has been sentenced to 60 years as a result of guilty pleas in response to federal charges of child pornography. He remains incarcerated. No attorney has appeared on his behalf in any of the civil cases pending in this Court. He did not answer, defend or otherwise respond to any of Plaintiffs’ actions, and he has been defaulted. In Plaintiffs’ quest to bring Nassar to justice, they overzealously and wrongly accuse Mr. Geddert and his gym, Twistars, of a litany of wrongs, none of which are well-founded in either the facts or the law. These allegations are made even though Mr. Geddert was not a witness to the alleged abuse and did not learn of it until after Nassar was arrested. Just like everyone else, Mr. Geddert was at first incredulous when these accusations came to light only to ultimately realize that the allegations against Nassar were indeed true. In the face of these truths, there has been no acknowledgment by Plaintiffs that Mr. Geddert was simply one individual in an extraordinarily long line of people who were duped. We now know that Nassar used his knowledge, as well as his position of power and trust, to take advantage of virtually everyone he came in contact with. He systematically and intentionally created an environment in which he could commit crime after crime on victim after victim, week after week, for upwards of 20 years. Though Nassar is destined to spend the rest of his life in jail for these transgressions, the facts and circumstances surrounding these despicable acts do not provide sufficient basis for a viable cause of action against either Mr. Geddert or Twistars. John Geddert is the owner of a gymnastics gym in Dimondale, MI affiliated with {01507997} Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.293 Page 9 of 44 Twistars. He has an exceptional track record of success dating back to the late 1990s. His teams have an unparalleled record of success in winning meets and qualifying gymnasts for national events. He was Head Coach for the 2012 Olympic Team, named 2012 USA National Elite Coach of the Year, was the 2011 USA World Championship Team Head Coach and named State, Regional or National Coach of the Year 17 times. He was personal head coach to 2012 Olympic Champion, Jordyn Wieber. He has represented the USA as a coach in international competitions in 20 foreign countries. He owns and operates his gyms with his wife, Kathryn Geddert. In these eight consolidated cases, as detailed below, there are multiple bases for dismissal of the vast majority of claims. In the vast majority of claims, the statute of limitations has expired. A substantial number of Plaintiffs who were never members of Twistars, never visited Twistars and have no connection to Twistars fail to state a claim upon which relief may be granted. Mr. Geddert and Twistars therefore seek immediate dismissal of most of these claims under Federal Rule 12(b)(6) as detailed below. II. FACTS,1 LEGAL THEORIES & PROCEDURAL POSTURE A. The parties. 1. Plaintiffs There are currently more than 140 plaintiffs, most of whom are anonymous, who have brought suit in nine separate cases before this Court and several who have brought suit in their own names. Not all of the Plaintiffs have pled claims against Twistars and/or Mr. Geddert. Some Plaintiffs are current or former gymnasts who allege sexual abuse committed by Nassar. Others appear to be spouses of claimants. Yet others have brought suit as Next Friends of 1 The facts presented herein are provided for context only and are taken mostly from the pleadings. Some are taken from media accounts or websites. The relief requested in the present motion is based solely on the allegations made in the pleadings. {01507997} 2 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.294 Page 10 of 44 gymnasts who currently are minors. 2. Defendants a. Nassar Nassar is a former sports medicine physician accused of sexually abusing minors and young women at various locations throughout the country, including at Twistars’ gym in Dimondale, MI and at USA Gymnastics meets. He was a clinical practitioner and faculty member at Michigan State University from 1997 until he was fired in September 2016 after the scandal was publicized and he was charged. He was the team doctor at four Olympic games starting in 1996. He was a volunteer for USA Gymnastics and treated high performing gymnasts and amateurs for 20 years. He had a reputation as one of the top sports medicine doctors in the country for women athletes. He was publicly accused of sexual abuse for the first time in an article published by the Indianapolis Star on September 12, 2016 that was motivated by reports from two gymnasts, Jamie Dantzscher (a 2000 Olympian) and Rachael Denhollander, a gymnast who was allegedly abused when she was 15 years old. Nassar is accused of using his fingers to digitally penetrate the vaginas and rectums of over 100 female patients, most of them minors. He allegedly did so claiming to use a rare, but purportedly recognized and legitimate treatment technique. Since making this claim, he has recanted and admitted that these “treatments” involved sexual misconduct. Plaintiffs further allege that he failed to obtain informed consent from the minors or their parents. Several of the allegations suggest that he used these “techniques” to treat injuries in the extremities that would not be expected to implicate digital penetration. He is alleged to have not used gloves. The allegations suggest that he massaged the breasts of some of the girls, and it is unknown what therapeutic value this activity was purported to provide. The allegations suggest that Nassar was visibly sexually aroused at times when engaged in these activities. Some {01507997} 3 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.295 Page 11 of 44 allegations suggest that these procedures were done in the presence of a parent or other individual, and that Nassar in some way blocked the view of the person who was present to avoid detection. Other allegations suggest he engaged in the abuse while alone with some of these girls, and that when persons came into the room he was using, he attempted to avoid detection. Although not all of the complaints provide locations at which the abuse allegedly occurred, Twistars’ gym, various gymnastics meets, Nassar’s office at MSU, and Nassar’s home office are all places mentioned. Nassar was originally charged with 25 counts of first-degree criminal sexual assault involving 10 women, all of whom were under the age of 18 when the abuse occurred. One of these women claims she was a family friend who was abused at his house between the ages of 6 and 12. Nassar initially pled not guilty to these charges, but he has now pled guilty to several cases in both Eaton and Ingham Counties. In December 2016, the FBI charged Nassar with having 37,000 images of child pornography on his computer. He was also accused of using a GoPro camera to record himself sexually molesting girls in a swimming pool. The indictment suggests that he used a “third-party vendor” to attempt to permanently erase images and records from a computer. He also allegedly threw away external hard drives. He was remanded to custody and denied bail following these allegations. He subsequently pled guilty to the federal criminal charges. He was sentenced to 60 years on the federal child pornography charges and is awaiting sentencing on the state criminal charges. He is currently incarcerated. b. Michigan State University MSU is a large public university. It has a medical school and is known for its excellence in sports, including women’s sports and gymnastics. It has its own Sports Medicine Clinic, at which Nassar worked regularly for around 20 years. Plaintiffs have pled numerous allegations {01507997} 4 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.296 Page 12 of 44 that include purported Title IX violations, 42 U.S.C. § 1983 violations as well as other causes of action. c. Kathie Klages Klages is a fomer MSU women’s gymnastics coach. She is alleged to have failed to report Nassar’s wrongdoing. Klages recently retired as the MSU women’s gymnastics coach. d. Dr. William Strampel Dr. Strampel is the Dean of the MSU College of Osteopathic Medicine. He is accused of mishandling a 2014 investigation following an alleged report of Nassar’s misconduct to the police. Following that investigation, Dr. Strampel required Nassar to have a third party in the room, obtain informed consent and use gloves. e. Dr. Jeffrey Kovan Dr. Kovan is the former director of MSU sports medicine and currently a doctor at the clinic. He does not appear to be the subject of specific allegations and appears to be included as a defendant primarily because he was director of the clinic at which numerous instances of abuse occurred. f. Dr. Gary Stollak Dr. Stollak is a retired professor of psychology. He is accused of having been the mental health counselor for a victim of Dr. Nassar’s abuse. He allegedly failed to report the allegations. g. USA Gymnastics USA Gymnastics is the national governing body for gymnastics in the United States. It receives this designation from the U.S. Olympic Committee and the International Gymnastics Federation. It is a 501(c)(3) non-profit corporation. It has over 174,000 members, most of which are registered in competitive programs. It has more than 25,000 professional instructors and club members. {01507997} 5 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.297 Page 13 of 44 USA Gymnastics is accused of permitting members of the national team to be alone with Nassar. USA Gymnastics apparently cut ties with Nassar sometime during the summer of 2015 after an athlete complained about him. h. John Geddert and Twistars John Geddert is the owner and operator of two gymnastics gyms affiliated with Twistars. He has an exceptional track record of success dating back to the 1990s. His teams have unparalleled success in winning meets and qualifying gymnasts for national events. He was Head Coach for the 2012 Olympic Team, named 2012 USA National Elite Coach of the Year, was the 2011 USA World Championship Team Head Coach and named State, Regional or National Coach of the Year 17 times. He was personal head coach to 2012 Olympic Champion, Jordan Wieber. He has represented the USA as a coach in international competition in 20 foreign countries. He owns and operates his gyms with his wife, Kathryn Geddert. Nassar’s relationship with Twistars arose out of his employment with MSU. Nassar was a volunteer doctor employed by MSU who worked with Olympic level, elite gymnasts. He was willing to come to Twistars and help the gymnasts there work through stiffness and minor injuries. Nassar was never an employee of Twistars. B. Legal Theories2 The MSU Defendants (MSU, Board of Trustees of MSU, Klages, Kovan, Stollak and Strampel) are sued by all Plaintiffs under 42 U.S.C. § 1983 and 20 U.S.C. § 1681. The MSU Defendants are also sued for violations of the Elliot-Larsen Civil Rights Act, a state civil rights statute. Plaintiffs have further alleged negligence, gross negligence, vicarious liability, agency, negligent supervision, failure to warn, failure to train, negligent retention, intentional infliction of 2 Not all allegations are made against all Defendants in all eight actions. We have synopsized the allegations contained in all of the Complaints for purposes of providing context for the present motion. {01507997} 6 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.298 Page 14 of 44 emotional distress, fraud and misrepresentation. As to USA Gymnastics, Plaintiffs have alleged gross negligence, negligence, vicarious liability, agency, negligent supervision, failure to warn, failure to train, negligent retention, intentional infliction of emotional distress and fraud and misrepresentation. As to Twistars, Plaintiffs have alleged gross negligence, negligence, agency, negligent supervision, failure to warn, failure to train, negligent retention, intentional infliction of emotional distress and fraud and misrepresentation. Nassar is accused of assault and battery, intentional infliction of emotional distress, and invasion of privacy. III. STANDARD OF REVIEW A motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6) tests whether a legally cognizable claim has been pleaded in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). A motion to dismiss must be granted where a complaint merely offers “labels and conclusions,” “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” “a formulaic recitation of the elements of a cause of action,” “‘naked assertion[s]’ devoid of ‘further factual enhancement,’” or an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”) “Factual allegations must be enough to raise a right to relief above the speculative level. . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). In reviewing such a motion, the court should construe the complaint in the light most favorable to the non-movant, accept all factual allegations as true, and determine whether the plaintiff can prove any set of facts in support of his claims that would entitle him to relief. The court is not required, however, to accept as true unwarranted legal conclusions, summary allegations, or {01507997} 7 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.299 Page 15 of 44 factual inferences. IV. LAW & ARGUMENT A. The statute of limitations has run on most of the claims against Twistars and/or Mr. Geddert. Under Michigan law, as explained in detail below, statutes of limitations start running when they initially accrue. Michigan law holds that the statutes of limitations applicable to sexual abuse cases accrue at the time the abuse occurs. Once the statute has accrued, the statute starts running and a plaintiff has until the limitations period expires to bring an action. After the statute expires, the action is time-barred. Here, the statute of limitations applicable to the causes of action pled by Plaintiffs spanned three years, and then it expired. Alternatively, Plaintiffs who were minors age 16 or younger had until they turned 19 to bring a cause of action. There is no legal basis in Michigan law for any Plaintiff to claim an exception, extension or tolling of the statute of limitations. 1. The statute of limitations applicable to all Plaintiffs accrued when the alleged sexual abuse occurred. As a general matter, the period of limitations begins to run from the time the claim accrues. MCL § 600.5827. A claim accrues when the wrong upon which the claim is based was done, regardless of when the damage results. In “ordinary negligence” actions, Michigan’s Supreme Court has held that the term “wrong” as used in the accrual provision refers to the date on which the plaintiff was “harmed by the defendant’s negligent act.” Trentadue v. Gorton, 479 Mich. 378, 416 (2007) (quoting Connelly v, Paul Ruddy’s Equipment & Repair Service Co., 388 Mich. 146 (1972)). “[T]he time of the wrong triggering the running of the limitation period is the date a plaintiff’s injury results from a breach of duty.” Lemmerman v. Fealk, 449 Mich. 56, 64 (1995). The Lemmerman case is particularly relevant to the present case. The Michigan Supreme {01507997} 8 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.300 Page 16 of 44 Court specifically addressed the applicability of the “discovery rule” to cases involving the sexual abuse of children who had reached the age of majority and who had surpassed the statutory grace period provided by MCL § 600.5851(1). In those cases, plaintiffs pled assault and battery charges against their abusers, and one plaintiff pled negligence and intentional infliction of emotional distress claims against her parents for allowing the childhood abuse to occur and continue. In considering when plaintiffs’ assault claims (and the negligence claims predicated thereon) accrued, the Court held: The statute of limitations bars plaintiffs’ claims in the instant cases, absent some exception, because the assaults are alleged to have occurred some forty to fifty years ago. Such assaults would inflict immediate damage on the children so abused. Subsequent damage arising after the initial assaults would not give rise to a new cause of action or renew the running of the limitation period. Lemmerman, supra at 64. Pursuant to Lemmerman, then, Plaintiffs’ causes of actions for assault in this case accrued when the abuse occurred because the abuse itself “inflicted immediate damage on the children.” So too, Plaintiffs’ tort-based actions accrued when the assaults occurred. As a result, the tort-based causes of action stemming from Nassar’s sexual misconduct would have accrued on the date of the alleged assault. 2. The tort claims alleged in the present case are all subject to a three year statute of limitations. Plaintiff’s claims are governed by the statute of limitations set forth in MCL § 600.5805. MCL § 600.5805(10) states, “[e]xcept as otherwise provided in this section, the period of limitations is 3 years after the time of the death or injury for all actions to recover damages for the death of a person, or for injury to a person or property.” Thus, the three year statute of limitations applies to the following causes of action: Negligence, Gross Negligence,3 Negligent 3 Gross Negligence is not a cause of action in Michigan. This is discussed in more detail below. 9 {01507997} Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.301 Page 17 of 44 Supervision, Negligent Failure to Warn, Intentional Infliction of Emotional Distress (IIED), and Loss of Consortium.4 It is anticipated that Plaintiffs will attempt to apply an extended statute of limitations to the fraud claims. However, because the fraud claims pled here are based on “injuries to person or property,” well-settled Michigan law holds that these claims are subject to a three year statute of limitations. See MCL § 600.6805(10). Unless a fraud action is based on breach of an “express contract,” where the substance of the complaint is based on a tortious wrong, which is not arguably the situation here, the three year statute of limitations provided for in MCL § 600.5805(10) applies. Fries v. Holland Hitch Co., 12 Mich. App. 178, 185(1968); Coats v. Uhlmann, 87 Mich. App. 385 (1978). Hence, the three year statute of limitations is the baseline statute that applies to all claims pled. 3. Minors are permitted a one year grace period after reaching the age of majority. Under Michigan law, in all but medical malpractice cases, minors have until their 19th birthday to bring an action. Under MCL § 600.5851(1), “if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed . . . to bring the action although the limitations period has run.” Claims brought more than a year following the Plaintiff’s 18th birthday, are time-barred pursuant to §600.5851(1), unless another exception applies. Thus, Plaintiffs who were minors may rely on either the three year statute of limitations or the day they turn(ed) 19 as the outer boundary of their limitations periods, whichever is later. 4 The Loss of Consortium claims have also have three year statutes of limitations. Bauman v. Grand T. W. R.R., 41 Mich. App. 611, 612, 200 N.W.2d 444, 444 (1972). If a cause of action has already accrued prior to the marriage, which we suspect was the case in most of these instances, there is no consortium claim. Chisea v. Rowe, 486 F.Supp. 236 (W.D. Mich., 1980). {01507997} 10 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.302 Page 18 of 44 4. Insanity tolling/repressed memory tolling does not apply. Plaintiffs are expected to argue that insanity tolling extends the applicable statute of limitations. It is anticipated that Plaintiffs will suggest that MCL § 600.5851 should apply to those who repressed memories of an actionable trauma or in some way had a later “revelation” that caused them to recall the abuse. Based on the “repressed memory” theory, Plaintiffs are expected to argue that they suffered from a version of insanity that was not lifted until sometime outside of the statutory period. Plaintiffs are likely to make the argument that they cannot be held to have known they had a cause of action where they did not realize they were being abused or where they mentally repressed the incident giving rise to a cause of action, until that mental impairment was lifted. These tolling theories are simply not viable under Michigan law. These types of arguments have been squarely rejected in Lemmerman (supra), Antos (infra), and Guerra v. Garrat, 222 Mich. App. 285 (1997). In fact, the Guerra Court specifically held that footnote 15 of the Lemmerman decision did not create an exception to the statute of limitations on the basis of “repressed memory.” Guerra, 222 Mich. App. at 288-292. The Guerra decision forecloses any argument that a “repressed memory” or similar allegation can serve to toll or resurrect an expired statute of limitations. 5. The “Discovery Rule” does not apply. It is also anticipated that Plaintiffs whose claims would otherwise be time-barred may attempt to rely upon the “discovery rule.” However, pursuant to the Supreme Court’s ruling in the Trentadue case, general discovery rule tolling is not allowed in Michigan. Trentadue, 479 Mich. at 390. In examining the statutory scheme that provides for tolling in limited circumstances, the Trentadue Court found that since the “Legislature ha[d] exercised its power to establish tolling based on discovery under particular circumstances, but has not provided for a {01507997} 11 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.303 Page 19 of 44 general discovery rule that tolls or delays the time of accrual if a plaintiff fails to discover the elements of a cause of action during the limitations period, no such tolling is allowed.” Id. at 391-392 (holding “courts may not employ an extrastatutory discovery rule to toll accrual in avoidance of the plain language of MCL § 600.5827” and reversing contrary decisions such as Chase v. Sabin, 445 Mich. 190 (1994)). MCL §§ 600.5838, 600.5838(a), 600.5839 and 600.5855 all provide specific limitations for tolling based on discovery in certain circumstances. For example, where medical malpractice, or fraudulent concealment is involved, tolling may be applicable. It follows, then (and Trentadue so holds), that if the Legislature wanted to provide discovery-rule based tolling for claims such as the tort-based claims alleged here, it would have so stated. Since it did not, common-law tolling does not apply to Plaintiffs’ claims, and they are bound by the applicable statutes of limitations provided in MCL §600.5805, potentially MCL §600.5813, and the claim accrual rules set forth in MCL §600.5827. 6. There is no tolling under the facts pled in these cases based on fraudulent concealment. It is further anticipated that Plaintiffs will claim fraudulent concealment of the causes of action herein, thereby claiming entitlement to tolling.5 Although Michigan law does allow this in situations where the tortfeasor intentionally and successfully concealed the wrong (or the action) beyond the expiration of the statute of limitations, the concept has no application here. Under MCL § 600.5855: If a person who is or may be liable for any claim fraudulently conceals the 5 The fraudulent concealment argument is inconsistent with, irreconcilable with and mutually exclusive of Plaintiffs’ other allegations. To prevail on this theory, Plaintiffs would have to show that Mr. Geddert knew specifically of the existence of a cause of action against Nassar as to each individual Plaintiff, and that he affirmatively took action to conceal this fact from each individual Plaintiff. No such factual allegations are even made in this matter. {01507997} 12 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.304 Page 20 of 44 existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations. To show “fraudulent concealment” and take advantage of the tolling period and two-year grace period in MCL § 600.5855, Plaintiffs must show that the alleged “concealer” employed “artifice, planned to prevent inquiry or escape investigation, and misled or hinder[ed] acquirement of information disclosing the right of action.” Doe v. Roman Catholic Archbishop, 264 Mich. App. 632, 642 (2004). Further, “the fraud must be manifested by an affirmative act or misrepresentation.” Id. In particular, that affirmative act must be aimed at the concealment of the existence of a claim or the identity of a particular defendant. Id. Additionally, Plaintiffs “must plead in the complaint the acts or misrepresentations that comprised the fraudulent concealment.” Id. This is important, because Michigan law requires that the tolling apply only to the cause of action against the person who does the fraudulent concealing. This theory of tolling does not operate in the context of vicarious liability, which is what Plaintiffs apparently seek here. Where there is a known cause of action, “there can be no fraudulent concealment which will interfere with the operation of the statute, and in this behalf a party will be held to know what he ought to know.” Id. (quoting Weast v. Duffie, 272 Mich. 534, 539 (1935)). In determining that the plaintiff had not properly alleged claims for fraudulent concealment against the defendants in a negligence and intentional infliction of emotional distress case, the Court of Appeals in Doe, supra, held that plaintiff’s fraudulent concealment argument must be aimed at the defendants and not the underlying abuser. That is, in order to rely on the tolling provision against the defendants accused of negligence and intentional infliction of emotional distress, plaintiff need show that {01507997} 13 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.305 Page 21 of 44 defendants engaged in actions designed to conceal causes of actions for negligence, and IIED alleged against them. Id. at 644. Holding that the plaintiff had not properly alleged a claim for fraudulent concealment against defendants, the Court of Appeals found that “mere silence” does not constitute fraudulent concealment. Id. The Court of Appeals in Antos v. Diocese of Lansing came to the same conclusion. Relying on Doe v. Roman, the Antos panel similarly found that the fraudulent concealment did not apply even where plaintiffs were minors on the date of the alleged abuse. Antos v. Diocese of Lansing, 200 Mich. App. Lexis 2830, (No. 262137) (Mich. App. Nov. 15, 2015) at *16-18. Neither Twistars nor Mr. Geddert could conceivably be held to have fraudulently concealed the statute of limitations. Silence does not toll a statute of limitations. Chandler v. Wackenhut Corp., 465 Fed. Appx. 425, 427 (6th Cir. 2012) (unpublished). Plaintiffs’ factual allegations herein state only that he was placed on notice of some type of “inappropriate” conduct just once by a single person in 1997 or 1998. The Sixth Circuit recently held that “’[t]he provisions of [the fraudulent concealment] section cannot be extended . . . to concealments made by persons other than those sought to be charged in the action.’ . . . Because the fraudulent concealment statute is designed to punish fraud, the statute’s purpose would not be served by punishing a defendant for the wrongful acts of a third party.” None of Plaintiffs’ factual allegations specify a single representation made by either Twistars or Geddert that would qualify as a fraudulent concealment of the statute of limitations for any Plaintiff. Chandler is a particularly striking case, because its facts involve absolutely reprehensible, criminal, intentional and conspiratorial conduct. Chandler involved a situation in which the defendant’s security guards were hired to provide security at a workplace strike in 1978. Id. at 426. About 70 guards took up temporary residence at a local motel, where the decedent, Ms. Chandler, worked at the front desk on the night shift. Id. Several of the guards {01507997} 14 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.306 Page 22 of 44 abducted Ms. Chandler, sexually assaulted her, and murdered her. Id. A substantial conspiracy involving supervisory personnel of the defendant was undertaken to cover up the crimes. Id. at 426-427. The defendant in Chandler “actively promoted a code of silence.” Id. at 427. Based on the Antos case, Doe v. Roman, and Chandler, Plaintiffs here have clearly failed to properly plead fraudulent concealment sufficient to toll the applicable statute of limitations. It should be no surprise that Plaintiffs are unable to properly plead it, since there is no substantive support for the theory. Mr. Geddert could not have conceivably concealed a statute of limitations he did not know was running on a cause of action he did not know existed. As in Doe, Plaintiffs were on notice of all applicable causes of action on the date that they were allegedly abused. Under Michigan law, minors had three years or until they turned 19, whichever was later, to file suit. The plaintiffs in Antos had nearly identical allegations against the Diocese-defendants as the Plaintiffs here have against Mr. Geddert and Twistars. There as here, the plaintiffs were minors at the time of the alleged abuse, who brought their causes of action against all defendants outside of the applicable limitations period and grace period afforded by MCL §600.5851(1). If the Antos plaintiffs could not avail themselves of tolling provisions pursuant to a theory of fraudulent concealment, then the Plaintiffs here cannot. All claims that have been filed against Mr. Geddert and/or Twistars on behalf of Plaintiffs beyond the applicable statute of three years or the grace period of one year past the age of majority should be dismissed with prejudice. B. There is no cause of action as to any Plaintiff based on Geddert’s or Twistars’ alleged failure to report. Even if the statutes of limitations had not expired, Plaintiffs have no viable causes of action based on a failure to report. Michigan’s statutes clearly define who is required to report suspected child abuse. Because neither Mr. Geddert nor Twistars is required to report suspected {01507997} 15 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.307 Page 23 of 44 child abuse, there is no cause of action under Michigan law for their alleged failure to do so. Further exacerbating and confusing this issue is the fact that some of Nassar’s victims revealed his treatment “techniques” to other victims and third parties over a span of approximately 20 years.6 Thus, if Plaintiffs’ theory were correct, every individual who learned of a potential instance of abuse would be civilly liable for their own independent failures to report. Other than the Defendants named herein in these consolidated cases, Plaintiffs have not sued anyone, not even those who we know were provided specific details about what happened that were not arguably provided to Mr. Geddert and/or Twistars. Under Michigan’s Child Protection Law (“CPL”) (MCL §722.621 et seq.), certain individuals are considered “mandatory reporters” of child abuse and neglect. MCL § 722.623. According to the statute, only certain individuals are required to “immediately report” (orally or by online reporting system) suspected child abuse or neglect and file a written report of the same within 72 hours upon “reasonable cause”.7 Neither Mr. Geddert nor Twistars meets the statutory 6 For example, Rachael Denhollander testified publicly and under oath in one of the criminal proceedings concerning Nassar. According to her testimony, she was abused at MSU Sports Medicine in East Lansing. Following the abuse, Ms. Denhollander came to believe that Nassar’s action constituted sexual abuse. As early as 2000 or 2001, she and/or her mother consulted with two physical therapists, who did not think Nassar’s “treatments” were legitimate. Around the same time she told a coach (not affiliated with Twistars) who was in a relationship with a police officer, who purportedly did some checking on the allegations. In 2003, she consulted with Shirley Sanders, PA, who also told her the “treatments” were not legitimate. Leaving aside the obvious problem with the statute of limitations, which is clearly expired based upon the belief back in the early 2000s that a wrong had been committed, neither the PA nor the police officer, who are mandatory reporters, made a report. The coach, the PTs, and Ms. Denhollander’s mother also did not report. Plaintiffs have failed to justify why none of these people were sued or brought into the case for failing to do exactly the same thing that Plaintiffs allege Mr. Geddert and Twistars failed to do. 7 Mandatory reporters are listed in MCL § 722.623 and include the following: a physician, dentist, physician's assistant, registered dental hygienist, medical examiner, nurse, person licensed to provide emergency medical care, audiologist, psychologist, marriage and family therapist, licensed professional counselor, social worker, licensed master's social worker, licensed bachelor's social worker, registered social service technician, social service technician, a person employed in a professional capacity in any office of the friend of the court, school {01507997} 16 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.308 Page 24 of 44 definition of a mandatory reporter. Where the plain and ordinary meaning of statutory language is clear, judicial construction is “normally neither necessary nor permitted.” Detroit Free Press, Inc. v. Family Indep. Agency, 258 Mich. App. 544, 553 (2003); Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236 (1999). “Courts may not speculate regarding the probable intent of the Legislature beyond the language expressed in the statute. Id. (quoting Pohutski v. Allen Park, 465 Mich. 675, 683 (2002); Cherry Growers, Inc. v. Michigan Processing Apple Growers, Inc., 240 Mich. App. 153, 173 (2000)). Where the language of the statute is “unambiguous,” courts presume that “the Legislature intended the meaning clearly expressed” and “the statute must be enforced as written.” Pohutski, 465 Mich. at 683. “Similarly the courts may not speculate about an unstated purpose where the unambiguous text plainly reflects the intent of the Legislature.” Id. “When parsing a statute” the court presumes “every word is used for a purpose. As far as possible, [the courts] give effect to every clause and every sentence.” Id. at 684. The Court may not assume that the Legislature inadvertently made use of one word or phrase instead of another, and it should avoid any construction that renders any part of the statute surplusage or nugatory. Id. The Court should also read separate sections of the statute “within the context of the entire statute so as to produce a harmonious whole.” Detroit Free Press v. FIA, 284 Mich. App. 544, 553. Additionally, pursuant to the maxim expressio unius est exclusio alterius, “where a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.” See Williams v. Coleman, 194 Mich. App. 606, 613 (1992) (superseded by statute administrator, school counselor or teacher, law enforcement officer, member of the clergy, or regulated child care provider who has reasonable cause to suspect child abuse or child neglect. {01507997} 17 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.309 Page 25 of 44 on other grounds as stated in Jones v. Bitner, 300 Mich. App. 65, 74 (2013)). Because MCL § 722.623 (1)(a)-(c) specifically delineates the class of persons who are required to report under the CPL, under expressio unius est exclusio alterius, any person or profession not identified in the statute is properly excluded as a mandatory reporter. Furthermore, if MCL §722.623(1) were to be construed to include persons or entities such as Twistars or Geddert, who are not explicitly named in the statute, it would render MCL §722.624 regarding who “may” report a “nugatory” since MCL §722.623(1) would then include both the statutorily delineated classes of people required to report as well as those who are “permitted” to report under MCL §722.624, essentially combining the two classes of people and eradicating the Legislature’s distinction between those who are “required” to report versus those who may report. Most importantly, however, is that statutory interpretation is only allowed when the language of a statute is ambiguous or unclear. MCL §722.623(1)(a)-(c) is crystal clear as to who is required to report versus who is not. To expand that definition to include unnamed classes of people, would not only run afoul of the common law rules regarding statutory construction but it would also subvert the purpose of the act as enacted by the Legislature. Additionally, MCL §722.623 includes language which limits the availability of claims for damages under the statute to the identified abused child. Marcelletti v. Bathani, 198 Mich. App. 655, 659-60 (1993) (holding that a doctor who failed to report suspected abuse of an infant by a babysitter was not liable to a second, yet to be identified, child under the CPL). In interpreting the CPL, the Marcelletti Court held “Michigan’s child abuse reporting statute creates a private right of action only in an identified abused child.” Id. at 661. Reasoning that because the “statute authorizes liability only for damages proximately caused by the failure [to report abuse]” liability only attaches where a person whose damages were “proximately caused by the failure to {01507997} 18 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.310 Page 26 of 44 report.” Id. Because a failure to report suspected child abuse of a different child cannot be said to be the proximate cause of the injuries of a later child, the Court found that any alleged failure to report under the CPL is only actionable by the child for whom the report should have been made in order to prevent further abuse. Id. Thus, under Michigan law, neither Twistars nor Mr. Geddert could conceivably be liable for failure to report. There is no allegation that he was ever told of any alleged abuse against any particular victim prior to its occurrence, and Michigan law limits liability for failure to report to that specific child. Not a single Plaintiff has made allegations sufficient to withstand a 12(b)(6) motion as to this issue. C. There is no cause of action for “gross negligence.” Plaintiffs wrongly claim a cause of action for “gross negligence.” Michigan once recognized gross negligence as a separate cause of action but no longer does. As did many other jurisdictions, Michigan once operated under the regime of contributory negligence, in which any negligence on the part of a plaintiff barred recovery for the defendant’s negligence. Jennings v. Southwood, 446 Mich. 125, 129 (1994). Michigan therefore “fashioned the rule of gross negligence to avoid the harsh rule of contributory negligence.” Id. In 1979, however, Michigan abandoned the contributory-negligence rule in favor of pure comparative fault. Id. at 130 (citing Placek v. Sterling Heights, 405 Mich. 638, 650 (1979). This eliminated the justification for common-law gross negligence in Michigan. See id. Presently therefore, as explained by the Western District of Michigan, “Michigan law does not create an independent cause of action for gross negligence.” Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011) (gross negligence “is not an independent cause of action” under Michigan law). Instead, gross negligence operates primarily as a way to plead around state law statutory immunities or other limiting provisions of statutes. Under the governmental-immunity statute, {01507997} 19 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.311 Page 27 of 44 for example, plaintiffs can hold government officials liable only if the official was grossly negligent. MCL § 691.4107. Also, proof of gross negligence in the product-liability context lifts a cap on damages that applies to ordinary-negligence claims. MCL § 600.2946a. Gross negligence is therefore an important concept to Michigan’s substantive law, but it is not an independent cause of action, and it has no application in the context of any of the allegations against Mr. Geddert and Twistars. According to the Michigan Court of Appeals, these statutes do not themselves “create a cause of action called gross negligence.” See Cummins v. Robinson Twp., 283 Mich. App. 677, 692 (2009). Recently, Judge Tarnow in the Eastern District issued an opinion agreeing that gross negligence was no longer a cause of action in Michigan. “[G]ross negligence claims no longer are independent causes of action under Michigan law, since the Courts have repudiated contributory negligence principles and adopted comparative negligence.” Johnson v. Williams, No. 15-13856, 2017 U.S. Dist. LEXIS 156149, at *48 (E.D. Mich. Sep. 25, 2017). D. The elements of intentional infliction of emotional distress are neither pled nor present here. “To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1) the defendant's extreme and outrageous conduct, (2) the defendant's intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff." Dalley v. Dykema Gossett, P.L.L.C., 287 Mich. App. 296, 321, 788 N.W.2d 679, 694 (2010). Here, the allegations pled are not consistent with extreme and outrageous conduct, nor are they consistent with intent or recklessness. The statements pled in each of the Complaints and Amended Complaints merely re-frame the existing negligence allegations. For example, Defendants are accused of allowing Nassar “to be in a position where he could sexually assault, abuse and molest children . . .” Fourth Amended Complaint (A Group), {01507997} 20 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.312 Page 28 of 44 Case No. 1:17-cv-00029, p 210, ECF 143, Page ID 5865. The allegations further state that a “reasonable person would not expect Defendant Twistars to tolerate or permit their employee, agent, representative to carry out sexual assault, abuse, or molestation.” Id. The allegations continue that Twistars held Nassar “in high esteem and acclaim” which encouraged others to do the same and not question him. Id. This was done “in part to bolster and sustain his national and international reputation in the gymnastics community.” Id. Reasonable people, the allegations continue, “would not expect Defendant Twistars to be incapable of supervising Defendant Nassar” and preventing the abuse. Id. Although the allegations differ in minor ways from case to case, the gravamen of the allegations remains the same. In each consolidated case, Plaintiffs state that the conduct supporting the IIED claims was intentional or reckless. No facts are pled supporting this allegation. No facts are pled supporting the allegation that simply not being aware of Nassar’s alleged crimes could constitute extreme and outrageous conduct. Put simply, even if the statute of limitations had not been expired, the allegations do not fit the stated cause of action. The infliction of emotional distress claim should be dismissed. E. The elements of fraud and/or misrepresentation are not properly pled, nor are they present here. Actionable fraud requires the following elements: (1) a material representation which is false; (2) known by defendant to be false, or made recklessly without knowledge of its truth or falsity; (3) that defendant intended plaintiff to rely upon the representation; (4) that, in fact, plaintiff acted in reliance upon it; and (5) thereby suffered injury. Fassihi v. Sommers, Schwartz, Silver, Schwartz & Tyler, P. C., 107 Mich. App. 509, 517, 309 N.W.2d 645, 649 (1981). Plaintiffs have, however, failed to plead actionable fraud. Here, there is no attempt to plead the purported fraud with particularity. “[F]raud must be pleaded with particularity, MCR 2.112(B)(1), and is not to be lightly presumed, but must be clearly proved.” {01507997} 21 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.313 Page 29 of 44 Cooper v. Auto Club Ins. Ass'n, 481 Mich. 399, 414, 751 N.W.2d 443, 451 (2008) (internal quotes and citations omitted). In each Complaint (or Amended Complaint) there is just one set of generic allegations and no specific, particular recitation of the allegations of fraud broken down as to each Plaintiff. The way Plaintiffs chose to plead the fraud allegations strongly suggests that the cause of action is no more than a re-framing of the same negligence allegations and issues pled elsewhere using different words. There is no more particularity to the fraud counts than there is to any of the other counts. In fact, a comparison of the fraud allegations from Complaint to Complaint (or Amended Complaint) show that none are particular to any Plaintiff. In fact, the allegations that are purported to constitute fraud were true at the time they were made,8 and most are undisputed. Nonetheless, each Plaintiff has failed to state precisely what she was told that was fraudulent, when it was stated, and who stated it. The element of causation is not satisfied by any of the allegations. Plaintiffs went to see Nassar for their injuries not because Defendants fraudulently said nice things about him. Plaintiffs saw Nassar for their injuries because he was a recognized expert, and virtually everyone in the gymnastics community held him in high esteem up until the time his crimes were revealed. MSU Sportsmedicine believed him to be the proverbial “rock star.” The Korolyi Ranch had him see Olympic hopefuls. Nassar’s colleagues at MSU Sports Medicine and at MSU thought he was a considerable asset to the university and to the community. Other gymnasts and their families believed Nassar to be a top doctor. It was well known that he flew all over the world treating Olympic level elite gymnasts. Public school sports programs thought he was an 8 For example, in case no. 1:17-cv-00222, Plaintiffs claim that Defendants represented that Nassar “was a team physician and athletic physician at Defendant MSU and a National Team Physician with Defendant USAG.” ECF No. 102, Page ID 2154, paragraph 926. The same allegations are made in case no. 1:17-cv-00254. ECF No. 94, Page ID 2326-27, paragraph 532. It is not disputed that these were true statements at the time they were made. {01507997} 22 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.314 Page 30 of 44 excellent option for sports medicine referrals. USAG had him see its gymnasts Olympians and considered him the Olympic team doctor for a time. It is legally impossible for Plaintiffs to base their fraud allegations on a community-wide, pervasive opinion concerning Nassar’s qualifications and abilities at the time, especially when that opinion was then widely agreed upon. Moreover, the sexual assaults were not caused by anything Twistars or Mr. Geddert said. These assaults were crimes committed intentionally and surreptitiously by Nassar and Nassar alone. The fraud allegations should be dismissed for lack of particularity, because the substance of the allegations do not constitute fraud and because, even if taken as true, both the causation and reliance elements are absent. F. Nassar was not an agent, and even if he had been, bedrock principles of law hold that sexual assaults are outside the scope of agency. Plaintiffs erroneously allege that Nassar was an agent and/or employee of Twistars. This is simply untrue. He was not under contract. He was not employed. Nassar volunteered his time. Until his arrest, he was recognized as a leader in the field of sports medicine, particularly as it related to treating gymnasts. Unaware of what we now know were carefully concealed ulterior motives, Twistars, its gymnasts, and its members’ families tragically believed at the time that they were lucky to be recipients of his volunteerism. But even if he had been an employee, or an agent of some type, the unspeakable acts he is accused of committing were clearly outside the scope of the employment and/or agency. No Plaintiff has pled that any Defendant authorized Nassar to engage in sexual abuse. It is a bedrock principle of law that a principal is not responsible for the intentional torts of its agent committed outside the scope of the agency. Linebaugh v. Sheraton Mich. Corp., 198 Mich. App. 335, 343, 497 N.W.2d 585, 589 (1993) (intentional infliction of emotional distress {01507997} 23 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.315 Page 31 of 44 outside the scope of employment); McCalla v. Ellis, 129 Mich. App. 452, 461, 341 N.W.2d 525, 528 (1983) (sexual assault outside the scope of employment); Bozarth v. Harper Creek Board of Education, 94 Mich. App. 351, 355 (1979) (sexual assault not within the scope of agency and does not constitute apparent authority); Martin v. Jones, 302 Mich. 355, 358 (1942) (master not responsible for intentional torts of his servant). Thus, agency does not provide a viable basis for liability here. G. An analysis of the pleadings shows that the vast majority of claims should be dismissed because the statute of limitations is expired, there is no connection between Twistars and the particular Plaintiff, the claim is improperly pled, the elements of the claim are not present as a matter of law, or some combination of bases warrants dismissal. Case No. 1:17-cv-00029 (A Group) In case 1:17-cv-00029, Plaintiff has filed a Fourth Amended Complaint [ECF No. 143]. The original Complaint was filed on January 10, 2017 [ECF No. 1]. In this matter, there are eight claimants who have alleged causes of action against Twistars. Mr. Geddert is not a Defendant in this case. The claimants are: Jane A6 Doe, Jane A8 Doe, Jane A16 Doe by Next Friend Jane A17 Doe, Jane A24 Doe, Jane A38 Doe, Jane A44 Doe, Jane A50 Doe and Jane A71 Doe. As detailed below, the statute of limitations has expired on the claims of seven of the eight claimants. Thus, all claims pled against Twistars should be dismissed as to Jane A6 Doe, Jane A8 Doe, Jane A24 Doe, Jane A38 Doe, Jane A44 Doe, Jane A50 Doe and Jane A71 Doe. Just one claimant in this case, Jane A16 Doe, by her Next Friend, Jane A17 Doe, has properly pled a claim with a viable statute of limitations. Jane A6 Doe claims she was sexually abused from 1999-2003. Plaintiffs’ Fourth Amended Complaint [ECF No. 143] p 47, ¶ 336, Page ID 5702. She further alleges she was age 14-17 at the time. Id. ¶ 334. Construing her allegations in her favor, and assuming that she was {01507997} 24 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.316 Page 32 of 44 17 on the last day of 2003, she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2006, more than a decade ago. Jane A8 Doe claims she was abused from 2005-2006. Id. p 49, ¶ 361, Page ID 5704. She alleges she was 16-17 years old at the time. Id. ¶ 359. Again, construing her allegations in her favor, and assuming that she was 17 on the last day of 2006, she had three years to file. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2009. Jane A24 Doe claims she was abused from 1999-2003. Id. p 65, ¶¶ 517-520, Page ID 5720. She alleges she was 14-17 years old at the time. Id. Construing her allegations in her favor, and assuming that she was 17 on the last day of 2003, she had three years to file. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2006, more than a decade ago. Jane A38 Doe claims she was abused from 2005 to 2014 or 2015. Id. p 83, ¶ 701, Page ID 5738. She was 17 in 2013. Id. ¶ 699. She claims she was abused at multiple locations, including Twistars’ facility, but she failed to specify her birthdate or her last date of membership with Twistars. Thus, if her last date of membership with Twistars was in 2013 or earlier, her claim is barred. As the pleadings currently stand, she has failed to state a claim up on which relief may be granted due to the lack of specificity of the timeline. Jane A44 Doe claims she was abused from 1994-2001. Id. p 89-90, ¶¶ 763-768, Page ID 5744-45. She alleges she was 9-15 years old at the time. Id. Construing her allegations in her favor, the statute of limitations would have expired upon reaching the age of 19. Assuming that she was 15 on the last day of 2001, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2005. {01507997} 25 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.317 Page 33 of 44 Jane A50 Doe claims she was abused from 2010-2016. Id. p 95, ¶¶ 818-822, Page ID 5750. She, too, claims she was abused at multiple locations, including Twistars’ facility, but she failed to specify her date of birth or her last date of membership with Twistars. Thus, as the pleadings currently stand, she has failed to state a claim upon which relief may be granted due to the lack of specificity of the timeline. If she was added to the complaint after her 19th birthday and more than three years after the last instance of claimed abuse, her claim is barred. Jane A71 Doe claims she was abused from 1996-2000. Id. p 120, ¶¶ 1082-1084, Page ID 5775. During this time, she was 10-14 years old. Id. Construing her allegations in her favor, the statute of limitations would have expired upon reaching the age of 19. Assuming that she was 14 on the last day of 2000, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2005. Case Nos. 1:17-cv-00222, 1:17-cv-00288 and 1:17-cv-00349 (B Group) In case 1:17-cv-00222, Plaintiff filed a First Amended Complaint on August 18, 2017. ECF 102. This filing included all Plaintiffs from the B Group, which included cases 1:17-cv- 00222, 1:17-cv-00288 and 1:17-cv-00349. On January 9, 2018, counsel for the B Group clarified the list of Plaintiffs who are moving forward with claims against Mr. Geddert and/or Twistars.9 Of these claims, most are not viable because the statute of limitations is expired, the claimants are not connected to Twistars, or both. Larissa Boyce10 claims she was sexually abused from 1997-1999. Id. p 34, ¶¶ 177-178, Page ID 2038. She further alleges she was age 15-17 at the time. Id. p 35, ¶ 189, Page ID 2039. 9 Counsel for the B Group notified counsel for Twistars and Mr. Geddert on January 9, 2018 that it intends to seek an amendment to the B Group Complaint in the near future. This amendment is expected to withdraw most of the claims against Mr. Geddert and Twistars, leaving only thirteen active claims in this group. The remaining claims are asserted on behalf of Jane Does B1, B2, B12, B13, B14, B15, B16, B18, B23, B29, B35, B38 and B42. 10 John B Doe pursues a derivative claim based on Plaintiff Boyce’s claims. {01507997} 26 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.318 Page 34 of 44 Construing her allegations in her favor, and assuming that she was 17 on the last day of 1999, she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2002. Jane B111 does not allege any connection to Twistars or Mr. Geddert. None of the legal theories advanced by Plaintiff could therefore apply without any connection to Twistars. Id. p 36, ¶¶ 198-213, Page ID 2040-42. There are no facts pled suggesting that Twistars had any legal duty to her, which is an essential element of negligence. Id. Nothing is pled suggesting that Twistars had any supervisory role over Nassar when he worked at MSU Sportsmedicine. Id. There is no assertion that Twistars knew who Plaintiff was, that Plaintiff was seeing or planned to see Nassar, or that Twistars had any opportunity to warn her. Id. There is no suggestion that Twistars would have trained Nassar for purposes of his work as a physician at MSU Sportsmedicine. Id. There is no factual support for the negligent retention theory as to this Plaintiff, and the facts and circumstances pled are not consistent with a negligent retention theory against Twistars. Id. There is no support any theory of intentional infliction of emotional distress as to Twistars. Id. There is no fact pled that Twistars made any representation to Jane B1 Doe ever, much less any fact suggesting a fraudulent misrepresentation. Id. Thus, the failure to plead any connection to Twistars renders Jane B1 Doe’s claims insufficient as a matter of law, and they should be dismissed. Jane B2 Doe claims she was sexually abused from 2004-2013. Id. p 38, ¶ 215, Page ID 2042. She further alleges she was age 11 or 12 years old in 2004 at the time. Id., ¶ 216. Construing her allegations in her favor, she would have reached the age of majority in 2011 and age 19 in 2012. She had three years from the last instance of alleged abuse in 2013 to file, or to her 19th birthday, whichever was later. The latest statute of limitations applicable to any of her 11 John B1 Doe also pursues a derivative claim. {01507997} 27 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.319 Page 35 of 44 claims would have expired in 2016. Jane B12 Doe claims she was sexually abused from 2006-2009. Id. p 49, ¶¶ 321-322, Page ID 2053. She further alleges she was age 14-17 at the time. Id. Construing her allegations in her favor, and assuming that she was 17 on the last day of 2009, she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2012. Additionally, due to the lack of connection to Twistars, Jane B12 Doe’s case should be dismissed just as Jane B1 Doe’s case should be, as detailed above. Jane B13 Doe claims she was sexually abused in 2010. Id. p 49-50, ¶ 330-332, Page ID 2053-54. She further alleges she was age 14 at the time. Id. Construing her allegations in her favor, and assuming that she was 14 on the last day of 2010, she had until age 19 to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2015. Additionally, due to the lack of connection to Twistars, Jane B13 Doe’s case should be dismissed just as Jane B1 Doe’s case should be, as detailed above. Jane B14 Doe claims she was sexually abused in 2006-2007. Id. pp 50-51, ¶¶ 338-343, Page ID 2054-55. She further alleges she was age 9-10 at the time. Id. Construing her allegations in her favor, and assuming that she was 10 on the last day of 2007, she had until age 19 to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2016. Additionally, although Jane B14 Doe was a member of Twistars, her case should be dismissed just as Jane B1 Doe’s case should be, as detailed above, because she failed to plead that the alleged abuse occurred at Twistars. Jane B15 Doe claims she was sexually abused in 2009. Id. p 52, ¶ 352-356, Page ID 2056. She further alleges she was age 13 at the time. Id. Construing her allegations in her favor, and assuming that she was 10 on the last day of 2009, she had until age 19 to file suit. {01507997} 28 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.320 Page 36 of 44 Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2015. Additionally, although Jane B15 Doe was a member of Twistars, her case should be dismissed just as Jane B1 Doe’s case should be, as detailed above, because she failed to plead that the alleged abuse occurred at Twistars. Jane B16 Doe’ claims should be dismissed due to the lack of connection to Twistars, just as Jane B1 Doe’s case should be, as detailed above. Id. p 52-53, ¶¶ 361-368, Page ID 2056-57. Jane B18 Doe claims she was sexually abused in 2012. Id. p 54, ¶¶ 378-381, Page ID 2058. She further alleges she was age 17 at the time. Id. Construing her allegations in her favor, and assuming that the alleged abuse occurred up to and including the last day of 2012, she had three years file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2015. Additionally, due to the lack of connection to Twistars, Jane B18 Doe’s case should be dismissed just as Jane B1 Doe’s case should be, as detailed above. Although Jane B23 Doe was a member of Twistars, her case should be dismissed just as Jane B1 Doe’s case should be, as detailed above, because she failed to plead that the alleged abuse occurred at Twistars. Id. p 60, ¶ 435-444, Page ID 2064-65. Jane B2912 Doe claims she was sexually abused from 1996-2002. Id. p 68, ¶¶ 510-514, Page ID 2072. She further alleges she was age 12 at the time. Id. Construing her allegations in her favor, she had until her 19th birthday or three years after the last occurrence of alleged abuse to file her claim. The latest possible date on which her statute of limitations would have been viable would have been December 31, 2005. Case No. 1:17-cv-00257 (C Group) Plaintiffs filed a Complaint in Case No. 1:17-cv-00257 [ECF No.1]. The Complaint was 12 John B29 Doe has filed a derivative claim. {01507997} 29 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.321 Page 37 of 44 filed on March 20, 2017. Id. Plaintiffs have since filed a Third Amended Complaint. ECF 91. In this action, there are ten Plaintiffs making claims against Twistars: Lindsey Lemke, Jane C1 Doe, Jane C2 Doe, Jane C4 Doe, Jane C5 Doe, Jane C8 Doe, Jane C11 Doe, Jane C14 Doe, Jane C18 Doe and Jane C21 Doe. Of these eight claimants, two are minors, Jane C11 Doe and Jane C18 Doe. They have properly alleged viable statutes of limitations. A third claimant, Jane C8 Doe, could conceivably have a viable statute for some of her claims occurring for a short period of time (if any), but the pleadings are insufficiently specific to calculate the statute, and she has therefore failed to state a claim upon which relief may be granted. As to the remaining claimants, none have an arguably viable statute of limitations. Plaintiff Lemke does not make any allegations specific to Twistars or Mr. Geddert that occurred later than 2012. ECF 91 at 28-29, Page ID 2301-02. She was a minor at the time, as she turned 18 in 2013. ECF 1, p 21, ¶ 143, Page ID 2294. She would therefore have the later of three years or her 19th birthday to file a claim. Construing her allegations in her favor, and assuming that she turned 19 on the last day of 2014, her statute of limitations would have expired on December 31, 2014. Using the three year statute, she would have been required to file prior to December 31, 2016. Either way, her statute of limitations was expired prior to filing her case. Jane C1 Doe claims she was sexually abused from 2008-2012. ECF 91 p 31, ¶ 200, Page ID 2304. She further alleges she was age 12-17 at the time. Id. ¶ 198. Construing her allegations in her favor, and assuming that she was 17 on the last day of 2012, she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2015. Jane C2 Doe claims she was sexually abused in 2011-2013. Id. p 32, ¶ 213, Page ID 2305. She further alleges she was age 14-17 at the time. Id. p 33, ¶ 222, Page ID 2306. Construing her allegations in her favor, and assuming that she was 17 on the last day of 2013, {01507997} 30 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.322 Page 38 of 44 she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2016. Jane C4 Doe claims she was sexually abused in 2008-2013. Id. p 35, ¶ 244, Page ID 2308. She further alleges she was age 13-18 at the time. Id. ¶ 246. Construing her allegations in her favor, and assuming that she was 18 on the last day of 2013, and the abuse continued until then, she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2016. Jane C5 Doe claims she was sexually abused in 2009-2011. Id. p 36, ¶ 260, Page ID 2309. She further alleges she was age 15-17 at the time. Id. ¶ 261. Construing her allegations in her favor, and assuming that she was 17 on the last day of 2011, and the abuse continued through that period, she had three years to file suit. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2014. Jane C8 Doe claims she was sexually abused from 2009-2014. Id. p 40, ¶ 302, Page ID 2313. She further alleges she was age 12-13 in 2009, which would make her 17-18 in 2014. Id. p 41, ¶ 305, Page ID 2314. Construing the allegations in her favor, Plaintiff has pled insufficient facts to determine whether the statute of limitations is viable as to any portion of her claim and therefore has failed to state a claim upon which relief may be granted. If the alleged abuse stopped before March 20, 2014, then the statute is expired. If it occurred after March 20, 2014, then Plaintiff has an arguably viable statute of limitations for a portion of her claim. Jane C14 Doe claims she was sexually abused in 2001-2002. Id. p 47, ¶ 366, Page ID 2320. She further alleges she was age 14 in 2001. Id. ¶ 367. Construing her allegations in her favor, she would have turned 19 in 2006. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2006. Jane C21 Doe claims she was sexually abused in 2010. Id. p 56, ¶ 466, Page ID 2329. {01507997} 31 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.323 Page 39 of 44 She further alleges she was age 14 in 2010. Id. ¶ 467. Construing her allegations in her favor, she would have turned 19 in 2055. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2015. Case No. 1:17-cv-00254 (D Group) Plaintiffs have filed a Fourth Amended Complaint in Case No. 1:17-cv-00254 [ECF No. 94]. The original Complaint was filed on March 20, 2017 [ECF No. 1]. Twistars is a Defendant, but Mr. Geddert is not. There are three claimants listed in this case, Jane D1 Doe, Jane D2 Doe and Jane D3 Doe, who is a minor represented by a Next Friend, Jane D4 Doe. Although the statute of limitations appears to be viable for Jane D1 Doe and Jane D3 Doe, neither were allegedly abused at Twistars or have any connection to Twistars. Jane D2 Doe did not plead with sufficient specificity to determine her statute of limitations. Thus, the claims asserted by Jane D1 Doe and Jane D3 Doe should be dismissed as to Twistars, and Jane D2 Doe should be required to provide specificity as to the timing and locations of her alleged abuse at Twistars so that this Court can determine whether her statute of limitations is expired. Jane D1 Doe claims she was sexually abused on March 24, 2014. ECF No. 94, pp 24-26, ¶¶ 111-113, Page ID 2250-52. Her factual allegations are specific, and they span more than 10 pages of text. Id. pp 23-34, Page ID 2249-60. Jane D1 Doe was an undergraduate student at Michigan State University from 2007 to 2012. Id. p 24, ¶ 105, Page ID 2250. In 2014, she was enrolled in a post-baccalaureate program at MSU. Id. ¶ 107. She did not plead any connection to Twistars whatsoever. It is indeed difficult to fathom how any of the legal theories advanced by Plaintiff could apply to Twistars without any connection to Twistars. There are no facts pled suggesting that Twistars had any legal duty to her, which is an essential element of negligence. Nothing is pled suggesting that Twistars had any supervisory role over Nassar when he worked {01507997} 32 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.324 Page 40 of 44 at MSU Sportsmedicine. There is no assertion that Twistars knew who Plaintiff was, that Plaintiff was seeing or planned to see Nassar, or that Twistars had any opportunity to warn her. There is no suggestion that Twistars would have trained Nassar for purposes of his work as a physician at MSU Sportsmedicine. There is no factual support for the negligent retention theory as to this Plaintiff, and the facts and circumstances pled are not consistent with a negligent retention theory against Twistars. There is no support any theory of intentional infliction of emotional distress as to Twistars. There is no fact pled that Twistars made any representation to Jane D1 Doe ever, much less any fact suggesting a fraudulent misrepresentation. Thus, the failure to plead any connection to Twistars renders Jane D1 Doe’s claims insufficient as a matter of law, and they should be dismissed. The claims concerning Jane D2 Doe are insufficiently specific to state a claim upon which relief may be granted. The timeline of her membership in Twistars is not specified, and she has not detailed the alleged dates or specific ranges of dates on which abuse is alleged to have occurred at Twistars. Jane D3 Doe did not plead any connection to Twistars. ECF No. 94, pp 36-37. For the reasons stated as to Jane D1 Doe above, the failure to plead any connection to Twistars renders Jane D3 Doe’s claims insufficient as a matter of law, and they should be dismissed. Case No. 1:17-cv-00244 (E Group) In this case, Plaintiff has filed an Amended Complaint [ECF No. 92]. The original Complaint was filed on March 17, 2017 [ECF No. 1]. In this matter, there is just one claimant. She pursues her claims against both Twistars and Mr. Geddert. Jane E-1 Doe claims she was sexually abused on multiple occasions over three months in 2010. Id. p 14, ¶¶ 72, Page ID 2460. She further alleges she was a minor at the time. She reached the age of majority in 2015. Id. ¶ 70. Construing her allegations in her favor, and assuming that she turned 19 on the last day of {01507997} 33 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.325 Page 41 of 44 2016, one year beyond her age of majority, her statute of limitations expired at the very latest in 2016. The latest possible date on which her statute of limitations would have been viable would have been December 31, 2016, months before the present lawsuit was filed. Thus, her statute of limitations is expired as a matter of law, and her case should be dismissed as to Twistars and Mr. Geddert with prejudice. Case No. 1:17-cv-00676 (F Group) Neither Twistars nor Mr. Geddert were sued in this individual case. Case No. 1:17-cv-00684 (G Group) In case 1:17-cv-00684, Plaintiff has filed a First Amended Complaint [ECF No. 7]. The original Complaint was filed on July 28, 2017 [ECF No. 1]. In this matter, there are three claimants who have alleged causes of action against Twistars. Mr. Geddert is not a Defendant in this case. The claimants are Katherine Payne, Maureen Baum and Jane G1 Doe. As detailed below, the statute of limitations has expired on all three claims. Thus, all three claims should be dismissed. Plaintiffs Payne and Baum further did not specify and connection to Twistars, which provides an additional basis for dismissal of these two claims. Jane G1 Doe claims she was abused from 2001-2003. ECF No. 7. pp 14-15, Page ID 9697. She alleges she was about 12 years old at the time. Id. Construing her allegations in her favor, and assuming that she was 12 on the last day of 2003, she had seven years to file. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2010. Katherine Payne claims she was abused for three years starting in 1996 or 1997. Id. p 8, ¶¶ 60-63, Page ID 90. She alleges she was 14 years old at that time. Id. p 7, ¶ 53, Page ID 89. Construing her allegations in her favor, and assuming that she was 16 on the last day of 2000, she had three years to file. Thus, the latest possible date on which her statute of limitations {01507997} 34 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.326 Page 42 of 44 would have been viable would have been December 31, 2003. Maureen Baum claims she was abused for an unspecified length of time starting in 1997 or 1998. Id. p 11, ¶¶ 102-106, Page ID 93. She alleges she was 12 years old in 1997. Id. p 10, ¶ 95, Page ID 92. Construing her allegations in her favor, and assuming that she was 12 on the last day of 1997, she had seven years to file. Thus, the latest possible date on which her statute of limitations would have been viable would have been December 31, 2004. III. CONCLUSION This court should dismiss all of the gross negligence claims, because gross negligence is not an independent cause of action under Michigan law. This Court should dismiss the vast majority of the rest of the claims, as detailed above, including negligence, negligent supervision, failure to warn, failure to train, negligent retention, intentional infliction of emotional distress and fraud, because the statute of limitations is expired on most of them as a matter of law. As to the handful of claims discussed that have potentially viable statutes of limitations, this Court should order Plaintiffs to immediately disclose all facts relevant to a statute of limitations analysis concerning the timeline of alleged abuse so that the Court may rule. The Court should further dismiss all of the agency theories for any claims left pending, because the tortious and intentional conduct Nassar is accused of was outside the scope of agency under Michigan law, as a matter of law. This Court should dismiss all of the intentional infliction of emotional distress and fraud and misrepresentation claims because the allegations do not sufficiently plead the elements of the torts or the facts giving rise to them, and the fraud is not pled with particularity. The negligence based claims should be dismissed because they are basically claims alleging a duty to report that merely re-frames the issues using different words. As set forth above, there is no viable claim for failure to report under the facts and circumstances of this case. {01507997} 35 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.327 Page 43 of 44 Mr. Geddert was just one person in an extremely long line of people who were fooled by Nassar. This fact does not give rise to liability. Even if it somehow could, the statute of limitations is expired as to all but a handful of Plaintiffs. There is no merit to any of the allegations made against him or against his award-winning gym. Respectfully submitted, Dated: January 12, 2018 {01507997} /s/ Cameron R. Getto Cameron R. Getto (P57300) ZAUSMER, AUGUST & CALDWELL, P.C. Attorneys for Defendant Twistars USA, Inc. and John Geddert 32255 Northwestern Hwy., Suite 225 Farmington Hills, MI 48334 (248) 851-4111 Fax: (248) 851-0100 cgetto@zacfirm.com 36 Case 1:17-cv-00684-GJQ-ESC ECF No. 32 filed 01/12/18 PageID.328 Page 44 of 44 CERTIFICATE OF SERVICE The foregoing document was filed electronically on the 12th day of January, 2018 in accordance with the Court’s ECF system. Notice of this filing will be sent to all parties by operation of the Court’s ECF system. A copy of the foregoing document was served by First Class U.S. Mail to Defendant Nassar, c/o Ingham County Correctional Facility, 630 North Cedar Road, Mason, MI 48854 pursuant to Fed R. Civ. P. 5(b)(2)(C). /s/ Cameron R. Getto CAME RON R. GETTO (P57300) Attorney for Defendants Twistars USA, Inc. and John Geddert {01507997} 37