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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEAST DIVISION JORDAN BLAIR PLAINTIFF vs. Case No. 1:02CV88CAS BOB WILLS, AKA BOBBY RAY WILLS, AKA W. B. WILLS, BETTY SUE WILLS, SAM GERHARDT, DEBORAH GERHARDT, BO GERHARDT, JULIE GERHARDT, DREW PARRISH, ROBERT O’BRIANT, ROBERT KENNEDY, DBA “MOUNTAIN PARK BOARDING ACADEMY,” and PALM LANE BAPTIST CHURCH, INC. DEFENDANTS PLAINTIFF’S RESPONSE TO MOTIONS FOR SUMMARY JUDGMENT Comes now Plaintiff and for his response to motions for summary
judgment, filed by the various defendants in the instant case, and states: Docket #87 1.
Commencing with paragraph 1 of Docket Entry #87,
Motion for Summary Judgment by Defendants Bo Gerhardt et al, Plaintiff responds as follows
herein.
2.
Plaintiff admits paragraph 1. There is no
paragraph 2.
3.
Plaintiff denies paragraph 3. Based on recently
completed depositions, Ron and Jannett Blair would not have given Mountain Park Boarding
Academy any form of custody or control over their son if they had been informed that
Jordan Blair would have been subjected to the mistreatment alleged in Plaintiff’s
complaint. Since any consent obtained from Ron and Jannett Blair was not informed consent,
and further was not in compliance with the law, the Defendants are not entitled to any
defense that they obtained consent from Plaintiff’s parents.
4.
Paragraph 4 is denied.
5.
Paragraph 5 is denied. Defendants are an
unincorporated association. Under Missouri law, all members of the association are jointly
and severally liable for any torts committed by a member of the association in furtherance
of the operations of the association.
6.
Plaintiff admits that he cannot maintain
jurisdiction solely on the basis of diversity citizenship without the required amount in
controversy. However, as the Court said in Crawford v. F. Hoffman-La Roche Ltd.,
267 F.3d 760, 766 (8th Cir. 2001) “Punitive damages, of course, may be used to
establish diversity jurisdiction,” citing Allison v. Security Benefit Life Ins.
Co., 980 F.2d 1213, 1215 (8th Cir. 1992). In this case Plaintiff seeks $3 million in
punitive damages, considerably more than the amount required for diversity jurisdiction.
7.
Plaintiff responds to the Defendants’
“Statement of Undisputed Facts” which appears to be a verbatim copy of the
allegations in a separate document under Docket # 89, Statement of Material Facts filed by
Defendants Bo Gerhardt, et al.
8.
Plaintiff likewise submits a memorandum of law in
support of his arguments. Docket # 90 9.
The Motion for Summary Judgment by Palm Lane
Baptist Church, Inc., et al, (Docket #90) is laid out in a rather confusing manner,
starting with a list of the materials relied upon, proceeding to a numbered list of
statements of material facts, and concluding with a numbered list of three paragraphs
requesting summary judgment. Plaintiff counsel has made the decision to address both
motions for summary judgment jointly, since the issues are the same, and to respond to all
alleged statements of material fact in a separate single document, and to provide the
Court with a single brief addressing the arguments in briefs submitted by both groups of
Defendants.
10. As to Paragraph 1,
Plaintiff denies that Palm Lane Baptist Church, Inc. had any right whatever to control
Jordan Blair. There was no written delegation of authority. Defendants admit that Jordan
Blair was sent to Florida so that they would have more legal rights over Plaintiff. In
depositions recently held, Ron and Jannett Blair proffered authorizing documents for Palm
Lane Baptist Church, Inc., that did not contain any signatures of anyone, either in the
cover letter purportedly sending the authorizing documents, or in the authorizing
documents themselves.
11. As to Paragraph 2,
summary judgment cannot be granted on the battery. Plaintiff testifies under oath that the
battery took place. Bo Gerhardt denies the allegation under oath. Summary judgment cannot
be granted where material facts are genuinely disputed.
12. As to Paragraph 3,
summary judgment is not proper on the claims under the FLSA. The legal issues are briefed
in the memorandum filed contemporaneously. The facts show that Plaintiff performed
substantial work in excess of personal chores. A substantial issue remains for the jury. WHEREFORE, Plaintiff prays that the motions for summary judgment be
denied, and for such other and further relief as may be appropriate.
CERTIFICATE OF SERVICE I, Oscar Stilley, by my signature above certify that I have this
December 24, 2003 served the defendants with a copy of this pleading electronically by
CM/ECF to: John Oliver, Attorney at law, Oliver, Oliver, & Waltz, PO Box 559, Cape
Girardeau, MO, 63702-0559; and John Briggs, Attorney at law, Brown & James, P.C., 1010
Market Street, 20th Floor, St. Louis MO 63101-2000. |