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Doe v. Mama Taori's Premium Pizza

April 5, 2001

JOHN DOE *FN1 , ET AL.
v.
MAMA TAORI'S PREMIUM PIZZA, LLC, ET AL.



Appeal from the Circuit Court for Sumner County No. 18268-C Thomas Goodall, Judge

The opinion of the court was delivered by: William C. Koch, Jr., Judge

This appeal arises out of homosexual conduct in the workplace between an adult employee and a sixteen-year-old, part-time employee. After the adult employee was arrested and charged with statutory rape and contributing to the delinquency of a minor, the minor employee and his parents filed suit in the Circuit Court for Sumner County seeking damages from the adult employee and the owner of the restaurant where the minor employee and the supervisor had worked. The restaurant denied liability and among its affirmative defenses asserted the defense of consent with regard to the minor's claims and the defense of comparative fault with regard to the claims of the minor's parents. The trial court denied the minor's and his parents' motions to strike these defenses but granted the minor and his parents permission to apply for an interlocutory appeal. We granted the interlocutory appeal and now hold that the trial court correctly denied the motions to strike the restaurant's defenses.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed

William C. Koch, Jr., J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and Patricia J. Cottrell, J., joined.

OPINION

When the events giving rise to this dispute occurred, John Doe was a high school student living with his parents in Sumner County. *fn2 In 1997, when he was sixteen years old, Mr. Doe began working after school as a part-time "crew member" at Mama Taori's, a pizza restaurant in Hendersonville. Later, in December 1997, Mama Taori's hired 32-year- old Christopher Abson *fn3 to work at its Hendersonville restaurant as a "crew member." Messrs. Doe and Abson were assigned to work on the same shift at the restaurant.

In early January 1998, Mr. Doe told his mother that Mr. Abson had made sexually suggestive comments and advances towards him. Ms. Doe passed this information along to her daughter who worked as a secretary for one of Mama Taori's executives. Ms. Doe's daughter informed Mama Taori's personnel manager that Mr. Abson was acting suspiciously toward her brother but, according to Mama Taori's, she did not report any specific acts of sexual misconduct. The management of Mama Taori's did not pursue the matter because of the information's lack of specificity and because there had been no other complaints about the quality of Mr. Abson's work or his conduct with other co-workers.

In mid-January 1998, Mama Taori's informed Mr. Abson that he was going to be transferred to its restaurant in Goodlettsville and promoted to the position of shift supervisor. After the information regarding Mr. Abson's promotion and transfer became known, Mr. Doe requested a transfer to the Goodlettsville restaurant. When the management of Mama Taori's denied his request, Mr. Doe threatened to quit and then apply for a job at the Goodlettsville restaurant. Mama Taori's management informed Mr. Doe that if he quit his job at the Hendersonville restaurant, he would not be hired at the Goodlettsville restaurant.

On or about Saturday, January 17, 1998, Ms. Doe talked by telephone with Mama Taori's personnel manager about information she had received regarding Mr. Abson's conduct at an after-hours party at the Motel 6 in Hendersonville. She stated that she had heard rumors about Mr. Abson and requested that Mama Taori's check his criminal record and that her son not be transferred to work at the Goodlettsville restaurant. Ms. Doe's daughter telephoned the Hendersonville Police Department on January 19, 1998, and was informed that Mr. Abson had no criminal record.

Mr. Abson began working at the Goodlettsville restaurant on January 22, 1998. According to Ms. Doe, Mr. Abson called her on January 25, 1998, to deny that he had ever "socialized with [Mr. Doe] . . . or the other boys after work or at any time." On January 26, 1998, Ms. Doe contacted the Hendersonville Police Department to request an investigation into Mr. Abson's background. Later that same day, Mr. Doe told his mother that Mr. Abson had engaged in sexual acts with him in the restaurant's bathroom after giving him a "marijuana cigarette [that] contained a `knock out drug' that caused [him] . . . to become incapacitated." The police also telephoned Ms. Doe to confirm that they had discovered that Mr. Abson had been previously convicted of rape under the name of Jonathan Vann Staten. On January 28, 1998, Mr. Doe, acting in concert with the police, engaged Mr. Abson in a recorded telephone conversation during which Mr. Abson confirmed that he had engaged in sexual acts with Mr. Doe. Following the telephone call, the authorities arrested Mr. Abson, and Mama Taori's fired him.

In April 1998, the Sumner County grand jury indicted Mr. Abson on three counts of statutory rape and three counts of contributing to the delinquency of a minor. Two of the statutory rape counts involved oral sex with Mr. Doe, and two of the contributing to the delinquency of a minor counts involved furnishing alcoholic beverages and marijuana to Mr. Doe. On May 19, 1998, Mr. Doe and his parents filed suit in the Circuit Court for Sumner County seeking $3,000,000 in compensatory and $5,000,000 in punitive damages from Mr. Abson and Mama Taori's. The complaint contained three claims of violations of the Tennessee Human Rights Act, *fn4 five intentional tort claims, *fn5 and five negligence claims. *fn6 On August 3, 1998, Mr. Abson pleaded guilty to three counts of statutory rape and one count of contributing to the delinquency of a minor. Two of the rape convictions and the contributing to the delinquency of a minor conviction involved his conduct with Mr. Doe. *fn7

Mama Taori's filed an answer denying liability and asserting that Mr. Doe had contributed to his injuries by consenting to the sexual acts with Mr. Abson. The restaurant also asserted that Mr. Doe's parents were comparatively at fault. In response, Mr. Doe and his parents filed Tenn. R. Civ. P. 12.06 motions to strike Mama Taori's defenses based on Mr. Doe's consent and their contributory fault. The trial court denied the motions to strike but granted Mr. Doe and his parents permission to pursue an interlocutory appeal pursuant to Tenn. R. App. P. 9. We granted the application for permission to appeal.

I. Appellate Review of Rulings on Tenn. R. Civ. P. 12.06 Motions

The purposes of a motion to strike under Tenn. R. Civ. P. 12.06 are (1) to eliminate redundant, immaterial, impertinent, or scandalous matter from pleadings, (2) to object to insufficient defenses, and (3) to enforce Tenn. R. Civ. P. 8.05's requirement that pleadings be simple, concise and direct. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (2d ed. 1990) ("Federal Practice and Procedure"). *fn8 When used for their intended purpose, these motions help the parties and the courts avoid the time and money wasted litigating spurious issues by dispensing with these issues prior to trial. Sidney-Vinstein v. A.H. Robbins Co., 697 F.2d 880, 885 (9th Cir. 1983); United States v. Smuggler-Durant Mining Corp., 823 F. Supp. 873, 875 (D. Colo. 1993); Cameron v. Graphic Mgmt. Assocs., Inc., 817 F. Supp. 19, 22 (E.D. Penn. 1992). Despite their salutary purpose, motions to strike are not favored because the remedy they offer is drastic and because they are frequently used simply as a dilatory tactic. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs., Pty., Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981); Morell v. United States, 185 F.R.D. 116, 117 (D.P.R. 1999); 5A Federal Practice and Procedure § 1381, at 672; 2A James W. Moore, Moore's Federal Practice ¶ 12.21[2] (2d ed. 1995) ("Moore's Federal Practice").

A Tenn. R. Civ. P. 12.06 motion may be used to test the "legal sufficiency" of an affirmative defense. Usrey v. Lewis, 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977). To succeed with a Tenn. R. Civ. P. 12.06 motion, the moving party must show both that the challenged claim or defense does not involve a question of fact or law on which the non- moving party can succeed and that failure to strike the challenged claim or defense will be prejudicial to the moving party. SEC v. McCaskey, 56 F. Supp. 2d 323, 326 (S.D.N.Y. 1999); Abrams v. Lightolier, Inc., 702 F. Supp. 509, 511 (D.N.J. 1988); 5A Federal Practice and Procedure § 1380. Prejudice for the purpose of a Tenn. R. Civ. P. 12.06 motion arises when the challenged claim or defense has the effect of confusing the issues or is so lengthy and complex that it places an undue burden on the moving party. Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 11 F. Supp. 2d 1006, 1009-10 (N.D. Ill. 1998).

Whether a particular defense is insufficient for the purposes of a Tenn. R. Civ. P. 12.06 motion depends on the nature of the claim. 5A Federal Practice and Procedure § 1381. An affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstance or if it bears no possible relationship to the matters in controversy. Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953); FSLIC v. Burdette, 696 F. Supp. 1183, 1186 (E.D. Tenn. 1988). A motion to strike a defense should not be granted if there is any doubt that the challenged claim or defense might raise an issue of fact or law, Nwakpuda v. Falley's, Inc., 14 F. Supp. 2d 1213, 1215 (D. Kan. 1998); Sunshine Cellular v. Vanguard Cellular Sys., Inc., 810 F. ...


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