Doe No. 6 v. School Board of Highlands County Florida

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 2:19-cv-14487-ROSENBERG/MAYNARD

JANE DOE NO. 6,

Plaintiff,

v.

SCHOOL BOARD OF

HIGHLANDS COUNTY FLORIDA,

Defendant.

_______________________________/

ORDER DENYING DEFENDANT’S MOTION FOR FINAL

SUMMARY JUDGMENT, GRANTING IN PART AND DENYING

IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION IN LIMINE

This matter comes before the Court on Defendant School Board of Highlands County

Florida’s Motion for Final Summary Judgment [DE 46], Plaintiff Jane Doe No. 6’s Motion for

Partial Summary Judgment [DE 32], and Defendant’s Motion in Limine [DE 44]. All three

Motions have been fully briefed. The Court has carefully considered the Motions, the Responses

and Replies thereto, and the record and is otherwise fully advised in the premises. For the reasons

set forth below, Defendant’s Motion for Final Summary Judgment is DENIED, Plaintiff’s Motion

for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART, and

Defendant’s Motion in Limine is GRANTED IN PART AND DENIED IN PART.

I. FACTUAL BACKGROUND

Plaintiff has alleged and has averred in a declaration that she attended an aftercare program

at Lake Country Elementary School during the 2004-2005 and 2005-2006 school years while she

was in kindergarten and the first grade. DE 24 ¶¶ 5, 16; DE 34-18. Defendant operates Lake

Country Elementary School. DE 24 ¶ 2; DE 26 ¶ 2. Maria Gonzalez was the manager of the

aftercare program during the 2004-2006 school years. DE 24 ¶¶ 6, 16; DE 34-18. Ms. Gonzalez’s

husband, Orestes Gonzalez, had access to and was sometimes left alone with the children who

attended the aftercare program. DE 24 ¶¶ 7-8, 14. Mr. Gonzalez sexually assaulted Plaintiff on

multiple occasions while she attended the aftercare program. Id. ¶¶ 17-19; DE 34-18. Before she

was assaulted, Ms. Gonzalez, Assistant Principal Steve Beck, and Principal Majel Bowerman had

notice that Mr. Gonzalez had pedophilia proclivities due to a report that he previously had sexually

assaulted a child in a daycare program. DE 24 ¶¶ 11-14.

Plaintiff contends that, while she was a minor, she never told anyone that Mr. Gonzalez

had sexually assaulted her. Id. ¶ 20; DE 34-18. She did not disclose that she had been assaulted

until 2019 when she was 19 or 20 years’ old. DE 24 ¶ 20; DE 34-18.

Plaintiff’s mother has averred in a declaration that she became aware while Plaintiff was a

child that Mr. Gonzalez had been arrested for sexually assaulting children at a daycare program at

Lake Country Elementary School. DE 34-19. She asked Plaintiff whether she “was ever touched

by” Mr. Gonzalez, and Plaintiff “said she was not.” Id. Given this denial, Plaintiff’s mother “did

not consider contacting a lawyer about bringing a claim” on Plaintiff’s behalf. Id. Plaintiff first

disclosed Mr. Gonzalez’s sexual assaults to her mother after Plaintiff turned 19 years’ old. Id.

Plaintiff now sues Defendant for damages for sexual discrimination in violation of Title IX

of the Education Amendments of 1972, 20 U.S.C. § 1681, et. seq. See DE 24. She alleges that

school officials and employees including Ms. Gonzalez, Assistant Principal Beck, and Principal

Bowerman were deliberately indifferent in failing to take action to protect her from the danger that

Mr. Gonzalez posed. Id.

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II. PRIOR LITIGATION

This is not the first Title IX lawsuit against Defendant related to the conduct of

Mr. Gonzalez. Title IX claims of two other plaintiffs, Jane Doe Nos. 22 and 24, alleging sexual

assault by Mr. Gonzalez proceeded to a consolidated jury trial before a different Judge of this

District in 2016. See Case Nos. 2:12-cv-14348, 2:12-cv-14350 (S.D. Fla.).1

Before the consolidated trial, the court ruled on summary judgment that the Lake Country

Elementary School aftercare program was an “education program or activity receiving Federal

financial assistance” for the purpose of Title IX liability. DE 34-7 at 6-7; see 20 U.S.C. § 1681(a).

At trial, Jane Doe No. 24 maintained that Mr. Gonzalez had sexually assaulted her during the

2009-2010 school year, and Jane Doe No. 22 maintained that Mr. Gonzalez had sexually assaulted

her during the 2010-2011 school year. DE 34-10 at 4-5. Evidence was presented to show that, in

1994, Ms. Gonzalez and Assistant Principal Beck learned of a report that Mr. Gonzalez had

sexually assaulted a child. Id. at 11-13. Evidence was also presented to show that, in 2011,

Principal Bowerman learned of a report that Mr. Gonzalez had sexually assaulted a child.2

DE 34-11 at 14.

1 Jane Doe No. 22, who was also referred to in the record as A.A., brought the case associated with file number 14348.

Jane Doe No. 24, who was also referred to in the record as T.Y., brought the case associated with file number 14350.

Any citation in this Order to a docket entry in either of these cases is proceeded by the appropriate file number (14348

or 14350), whereas any citation to a docket entry that is not proceeded by a file number refers to a docket entry in the

instant case. In addition to the Jane Doe Nos. 22 and 24 cases, at least three other similar cases were filed in this

District and resolved before a trial. See Case Nos. 2:12-cv-14151 (Jane Doe No. 15), 2:12-cv-14206 (Jane Doe

No. 20), 2:12-cv-14349 (Jane Doe No. 23) (S.D. Fla.). The Court takes judicial notice of these court records.

See Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1075 n.9 (11th Cir. 2013) (stating that a court may take

judicial notice of court records under Fed. R. Evid. 201).

2 Defendant does not now contend that there was any evidence presented to show that, if Mr. Gonzalez sexually

assaulted Jane Doe Nos. 22 and 24, the assaults occurred outside of these year ranges. Defendant also does not now

contend that there was any evidence presented to show that, if Ms. Gonzalez, Assistant Principal Beck, and Principal

Bowerman learned of reports of sexual assault, they learned of such reports in different years.

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The jury was instructed in closing that its verdict could be based only on the evidence

presented at trial, that what the lawyers had said was not evidence, and that the jury was required

to separately consider each claim of each plaintiff and the evidence as it related to each claim.

Case No. 14350 DE 53 at 2-3, 13. The jury was instructed that, to find Defendant liable under

Title IX, the plaintiff must have demonstrated by a preponderance of the evidence that (1) “[o]ne

or more officials of Lake Country Elementary with authority to institute corrective measures had

actual notice that [Mr.] Gonzalez posed a substantial risk of sexual abuse or harassment to

Plaintiffs in the school,” and (2) “[s]uch school official was deliberately indifferent to

[Mr.] Gonzalez’s misconduct such that the school’s response to actual notice of harassment was

clearly unreasonable in light of the known circumstances.” Id. at 12. The jury found Defendant

liable to Jane Doe Nos. 22 and 24 under Title IX. Case No. 14348 DE 63; Case No. 14350 DE 56.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a). “A factual dispute is ‘material’ if it would affect the outcome of the suit under the

governing law, and ‘genuine’ if a reasonable trier of fact court return judgment for the non-moving

party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008).

A court ruling on a summary judgment motion views the evidence in the light most favorable to

the non-moving party and draws all reasonable inferences in that party’s favor. Furcron v. Mail

Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). The court does not weigh conflicting

evidence or make credibility determinations. Id. Upon discovery of a genuine dispute of material

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fact, the court must deny summary judgment and proceed to trial. Jones v. UPS Ground Freight,

683 F.3d 1283, 1292 (11th Cir. 2012).

If the movant shows that there is no genuine dispute as to a material fact, the burden shifts

to the non-moving party to come forward with specific facts showing that there is a genuine issue

for trial. Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018). The non-moving party

does not satisfy this burden “if the rebuttal evidence is merely colorable, or is not significantly

probative of a disputed fact.” Jones, 683 F.3d at 1292 (quotation marks omitted). “Conclusory

allegations and speculation are insufficient to create a genuine issue of material fact.” Glasscox v.

City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018). The non-moving party must “make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Jones, 683 F.3d at 1292 (quotation marks omitted).

III. ANALYSIS

A. Defendants Motion for Final Summary Judgment

Defendant seeks final summary judgment based on its affirmative defenses of statute of

limitations and laches. DE 46. Under Title IX, “[n]o person in the United States shall, on the basis

of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial assistance.”

20 U.S.C. § 1681(a) (listing various exceptions to this prohibition). Title IX does not provide a

statute of limitations. M.H.D. v. Westminster Schs., 172 F.3d 797, 803 (11th Cir. 1999). When a

statute creating a federal cause of action does not provide a statute of limitations, a court must

apply the most closely analogous statute of limitations under state law. Reed v. United Transp.

Union, 488 U.S. 319, 323 (1989). A Title IX claim for damages is most closely analogous to a

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common law personal injury claim, and therefore a state’s personal injury statute of limitations

applies in a Title IX action. M.H.D., 172 F.3d at 803. Florida’s personal injury statute of

limitations is four years. Baker v. Gulf & W. Indus., Inc., 805 F.2d 1480, 1482 (11th Cir. 1988)

(citing Fla. Stat. § 95.11(3)).

Defendant argues that the statute of limitations bars this action because it did not

commence within four years of Plaintiff’s alleged assaults that took place, at the latest, in 2006.

DE 46 at 6. Plaintiff responds that the statute of limitations did not begin to run in 2006 because

she was a minor incapable of suing and there was no parent or other representative who might have

sued on her behalf who had knowledge that she had been assaulted.3 DE 47 at 6-7.

When a court applies the most closely analogous state statute of limitations to a federal

claim, federal law controls the date on which the cause of action accrued and the limitations period

began to run. White v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1435 (11th Cir.

1997). The “general federal rule” for accrual is “the discovery rule,” meaning that a cause of

action accrues “when the plaintiff knew or should have known of his injury and its cause.”

Id. (quotation marks omitted); see also Bowling v. Founders Title Co., 773 F.2d 1175, 1178 (11th

Cir. 1985) (explaining that “the general federal rule . . . provides that the statute of limitations

begins to run when a plaintiff knows or should know of the injury”). A minor cannot sue on his

or her own behalf. See Fed. R. Civ. P. 17(c). Therefore, when the claimant is a minor, the cause

of action accrues when the parent knows or should know of the minor’s injury and the cause

3 Plaintiff also responds that this statute-of-limitations issue was raised and addressed at the motion-to-dismiss stage

of this case and that the Court’s ruling on Defendant’s Motion to Dismiss is now the law of the case. See DE 19;

DE 22; DE 47 at 4-5. The law of the case doctrine applies only where there has been a final judgment. Vintilla v.

United States, 931 F.2d 1444, 1447 (11th Cir. 1991). A district court may reconsider a previous ruling while the case

remains within the court’s jurisdiction. Id. Because there has been no final judgment in this case, the law of the case

doctrine does not apply. At the instant stage of this litigation, the Court has reviewed the briefing and its ruling from

the motion-to-dismiss stage while also reviewing the statute-of-limitations issue and the relevant caselaw anew.

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thereof. McKewin ex rel. Harrell v. United States, 7 F3d 224 (4th Cir. 1993); Landreth ex rel. Ore

v. United States, 850 F.2d 532, 534 (9th Cir. 1988).

In addition, in M.H.D., the Eleventh Circuit analyzed when the statute of limitations

expired for a Title IX claim brought in Georgia and applied both Georgia’s two-year personal

injury statute of limitations and Georgia law concerning the accrual of a cause of action and

statute-of-limitations tolling. See M.H.D., 172 F.3d at 803-05. Under Florida law, a cause of

action for a minor claimant accrues at the earlier of such time that the minor reaches the age of

majority or that an adult who can bring an action on the minor’s behalf knows or should know of

the facts supporting the claim. Doe. No. 60 v. G-Star Sch. of Arts, Inc., Case No. 16-cv-80446,

2017 WL 2212429, *5-7 (S.D. Fla. May 19, 2017) (reviewing Florida caselaw and reasoning that,

prior to such time, there is no person capable of initiating a lawsuit because a minor cannot sue on

his or her own behalf); see also A.G.D. ex rel. Dortch v. Siegel, Case No. 09-80959, 2009 WL

4421259, *4 (S.D. Fla. Nov. 25, 2009) (stating that “the statute of limitations does not begin to run

in a case of abuse against the minor child, such as the present case, until the parent knew or

reasonably should have known those facts which supported a cause of action” (quotation marks

omitted)).

Under either federal law or Florida law on the accrual of causes of action, summary

judgment on Defendant’s statute-of-limitations defense is inappropriate. Defendant does not

contend that Plaintiff did not commence this action within four years of reaching the age of

majority. Defendant also does not contend that this action was not commenced within four years

of Plaintiff’s mother receiving actual knowledge that Mr. Gonzalez had assaulted Plaintiff.

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Defendant does argue that, despite Plaintiff’s denial while she was a child that

Mr. Gonzalez had assaulted her, Plaintiff’s mother should be charged with “constructive notice”

that Mr. Gonzalez had assaulted Plaintiff because Plaintiff’s mother was aware that Mr. Gonzalez

had been arrested for sexually assaulting other children. DE 46 at 6. Defendant provides no

caselaw to support its assertion that Plaintiff’s mother should have known, based on

Mr. Gonzalez’s arrest for sexual assaults of other children, that Mr. Gonzalez similarly had

assaulted Plaintiff as well. Defendant provides no caselaw to support a proposition that Plaintiff’s

mother’s knowledge that Mr. Gonzalez had been arrested for assaulting other children provided a

reasonable basis to institute a Title IX lawsuit on Plaintiff’s behalf. See generally Fed. R. Civ.

P. 11(b)(3) (requiring factual contentions in a pleading to have evidentiary support or to be likely

to have evidentiary support upon further investigation or discovery). Defendant does not explain

what steps Plaintiff’s mother might or should have taken earlier to discover that Plaintiff had been

assaulted. In short, Defendant has not demonstrated that it is entitled to summary judgment based

on its statute-of-limitations defense.

As an alternative to seeking final summary judgment on the statute-of-limitations defense,

Defendant seeks summary judgment based on its defense of laches. “Laches is a defense sounding

in equity that serves to bar suit by a plaintiff whose unexcused delay, if the suit were allowed,

would be prejudicial to the defendant.” Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of

Eng’rs, 781 F.3d 1271, 1283 (11th Cir. 2015) (quotation marks omitted). Laches may be a defense

to equitable relief, but it is not a defense to an action at law. Petrella v. Metro-Goldwyn-Mayer,

Inc., 572 U.S. 663, 978 (2014) (citing multiple Supreme Court cases addressing the application of

the laches defense); see also Corona Props. of Fla., Inc. v. Monroe Cnty., 485 So.2d 1314, 1318

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(Fla. 3d Dist. Ct. App. 1986) (citing Florida caselaw for the proposition that the “doctrine of laches

is to actions in equity what statutes of limitations are to actions in law.”). Defendant provides no

caselaw to support a proposition that laches might apply in this Title IX action for damages.

Defendant has not demonstrated that it is entitled to summary judgment based on its laches defense.

Thus, Defendant’s Motion for Final Summary Judgment is denied.

B. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff, in her Motion for Partial Summary Judgment, contends that Defendant is

collaterally estopped from relitigating liability in this case based on court rulings and the verdicts

in the Jane Doe Nos. 22 and 24 cases. DE 32. According to Plaintiff, the only issues for trial in

this case are whether Mr. Gonzalez sexually assaulted her and her damages. Id. at 13.

Collateral estoppel, also known as issue preclusion, bars the relitigation of an issue

previously decided in a judicial proceeding “if the party against whom the prior decision is asserted

had a full and fair opportunity to litigate that issue in an earlier case.” In re St. Laurent, 991 F.2d

672, 675 (11th Cir. 1993) (quotation marks omitted). For collateral estoppel to apply:

(1) the issue at stake must be identical to the one decided in the prior litigation;

(2) the issue must have been actually litigated in the prior proceeding; (3) the prior

determination of the issue must have been a critical and necessary part of the

judgment in that earlier decision; and (4) the standard of proof in the prior action

must have been at least as stringent as the standard of proof in the later case.

In re Se. Banking Corp., 69 F.3d 1539, 1552 (11th Cir. 1995).

Title IX applies to an “education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). To hold a school district liable under Title IX, a school

employee who qualifies as an “appropriate person” must have had “actual notice” of misconduct

and have been “deliberately indifferent” to the misconduct by failing to adequately respond.

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Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277, 285-90 (1998) (rejecting arguments that

a school district could be held liable under theories of respondeat superior or constructive or

imputed notice); see Hill v. Cundiff, 797 F.3d 948, 969 (11th Cir. 2015) (stating that the employee

must have had actual notice of a “substantial risk” to the student (quotation marks omitted)). An

“appropriate person” is an employee who has authority “to address” the misconduct and “to

institute corrective measures” on the school’s behalf. Gebser, 524 U.S. at 290; see Doe v. Sch. Bd.

of Broward Cnty., Fla., 604 F.3d 1248, 1255 (11th Cir. 2010) (explaining that the person “must be

high enough up the chain-of-command that his acts constitute an official decision by the school

district itself not to remedy the misconduct” (quotation marks omitted)). Deliberate indifference

means a response or lack thereof that “is clearly unreasonable in light of the known circumstances.”

Hill, 797 F.3d at 973.

As an initial matter, Defendant does not contest that it is collaterally estopped from

relitigating the subject of whether Lake Country Elementary School’s aftercare program was an

education program or activity receiving federal financial assistance. See generally DE 40. As that

same issue was briefed in the Jane Doe Nos. 22 and 24 cases, was resolved on summary judgment,

and was necessary to impose Title IX liability, each element of collateral estoppel is satisfied.

See DE 34-3 at 7; DE 34-7 at 6-7. This issue is resolved for the purpose of this litigation.

Plaintiff’s collateral estoppel argument focuses on Jane Doe No. 24. Plaintiff contends that

evidence presented at trial showed that Jane Doe No. 24 was sexually assaulted during the

2009-2010 school year, that evidence further showed that Ms. Gonzalez and Assistant Principal

Beck received notice of Mr. Gonzalez’s proclivity for pedophilia in 1994, and that, based on this

evidence, the jury found Defendant liable to Jane Doe No. 24 under Title IX. Because this notice

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to Ms. Gonzalez and Assistant Principal Beck pre-dated Plaintiff’s alleged assaults during the

2004-2006 school years, she argues that the notice issue in this case—whether an employee of

Defendant had actual notice prior to her assaults that Mr. Gonzalez posed a danger—has been

resolved.

Defendant points out that there was evidence presented at trial of a third way that an

employee of Defendant may have had notice of Mr. Gonzalez’s proclivity for pedophilia: Principal

Bowerman learning in 2011 of a report that Mr. Gonzalez had sexually assaulted a child. This

notice alone cannot support liability as to Plaintiff, who alleges that her assaults occurred several

years earlier. Plaintiff counters that Principal Bowerman’s notice in 2011 was irrelevant to liability

as to Jane Doe No. 24, who was assaulted during the 2009-2010 school year; the jury must have

imposed liability as to Jane Doe No. 24 based on a finding of notice to Ms. Gonzalez in 1994,

notice to Assistant Principal Beck in 1994, or both. Defendant’s reply is that the specific

employee(s) that the jury identified to support liability for Jane Doe Nos. 22 and 24 cannot be

known, as the jury was not asked this question on the verdict forms. Essentially, Defendant

contends that the jury might have found liability as to Jane Doe No. 24 based on an untenable

conclusion that the notice to Principal Bowerman in 2011 was sufficient.4

Jurors are presumed to follow their instructions. Weeks v. Angelone, 528 U.S. 225, 234

(2000); see also Richardson v. Marsh, 481 U.S. 200, 206-07 (1987) (discussing “the almost

invariable assumption of the law that jurors follow their instructions, which [courts] have applied

4 To the extent that Defendant contends that the verdict forms were insufficient to ascertain that the evidence and the

law supported the verdicts, that issue should have been, and was, raised and litigated in the prior cases. See DE 34-15

at 9 (seeking a new trial based, in part, on an argument that the “verdict forms make it unclear as to who the jury found

to be an appropriate person under Title IX” and “it is factually unclear as to what the jury’s findings were and,

therefore, impossible to determine whether such findings are legally valid”); DE 34-16 (denying the motion for a new

trial).

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in many varying contexts” (citation omitted)); United States v. Brown, 983 F.2d 201, 203 (11th

Cir. 1993) (“The presumption that juries follow their instructions is necessary to any meaningful

search for the reason behind a jury verdict.”). The jury was instructed to base its verdict on the

evidence presented at trial and to separately consider the evidence as to each claim of each plaintiff.

Case No. 14350 DE 53 at 2, 13. The jury was instructed that Title IX required an official of Lake

Country Elementary School to have had actual notice that Mr. Gonzalez posed a substantial risk

of sexual abuse or harassment to a plaintiff and to have been deliberately indifferent in response

to that notice. Id. at 12.

To have followed these instructions and to have returned the verdict for Jane Doe No. 24

on her Title IX claim, the jury must have concluded that a school official had actual notice, prior

to her assault during the 2009-2010 school year, of Mr. Gonzalez’s proclivity for pedophilia. And

the only notice that either party has identified in the instant briefing that may have been given

before Jane Doe No. 24’s assault is the notice to Ms. Gonzalez and/or Assistant Principal Beck in

1994. Thus, to return the verdict for Jane Doe No. 24, the jury necessarily found that Ms. Gonzalez

and/or Assistant Principal Beck received notice in 1994. The jury therefore also resolved the issue

of whether an employee of Defendant had actual notice of Mr. Gonzalez’s misconduct prior to

Plaintiff’s alleged assaults during the 2004-2006 school years.

All elements of collateral estoppel are satisfied on this issue of notice. As explained above,

the jury must have decided that an employee of Defendant received notice in 1994. This issue of

notice was litigated at trial, and Defendant had a full and fair opportunity to present its evidence

and arguments to the jury. A finding of notice in 1994 was critical and necessary to imposing

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Title IX liability as to Jane Doe. No. 24. And the standards of proof for Jane Doe Nos. 6, 22, and

24’s Title IX claims undoubtedly are the same.

However, the Court has one concern that the parties have not addressed and that prevents

the Court from granting Plaintiff’s Motion for Partial Summary Judgment in full. The Court

questions whether the verdicts reflect a finding that the employee(s) who received notice in 1994—

Ms. Gonzalez, Assistant Principal Beck, or both—had authority “to address” the misconduct and

“to institute corrective measures” on Defendant’s behalf prior to Plaintiff’s alleged assaults during

the 2004-2006 school years. See Gebser, 524 U.S. at 290; see also Doe, 604 F.3d at 1256 (stating

that “the ultimate question of who is an appropriate person is necessarily a fact-based inquiry

because officials’ roles vary among school districts” (quotation marks omitted)). Certainly, the

verdict as to Jane Doe No. 24 reflects a finding that the employee(s) that received notice in 1994

had such authority prior to her assault during the 2009-2010 school year. But, legally, does the

employee’s authority need to exist at the time that the employee receives actual notice? Was there

evidence that Ms. Gonzalez and Assistant Principal Beck had the same roles and authority during

the 2004-2006 school years as they did during the 2009-2010 school year? Might their roles and

authority have changed at some point? Importantly, what finding as to authority was critical and

necessary to the verdicts?

The parties’ briefing does not resolve the Court’s questions on this matter. Therefore, the

Court cannot grant Plaintiff summary judgment on liability at this time. The Court grants Plaintiff

summary judgment only on the issue of whether Lake Country Elementary School’s aftercare

program was an education program or activity receiving federal financial assistance, which has

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been resolved in the affirmative. Plaintiff’s Motion for Partial Summary Judgment is denied in all

other respects.

C. Defendant’s Motion in Limine

Defendant’s Motion in Limine raises two issues. First, the parties have agreed that

“Plaintiff shall only be referred to at trial as Jane Doe, without reference to number 6.” DE 44 at

2, 5. Based on the parties’ agreement, Defendant’s Motion in Limine is granted as to this issue.

Second, Defendant moves to exclude from the trial

any reference or evidence of any events at [Defendant] after 2006, including but

not limited to any allegations made by five other Jane Does who alleged abuse in

the 2008-2010 timeframe; any reference to those five other Jane Does, or their

lawsuits and settlement; the fact that [Mr.] Gonzalez was arrested in 2011 and

subsequently convicted for allegations involving three of the other Jane Does for

conduct that occurred in the 2008-2010 timeframe; the fact that he was in jail from

2011-2019; the fact that [Ms.] Gonzalez was arrested in 2011 and subsequently

convicted on charges that she tampered with a witness in regards to the

investigation surrounding the five other Jane Does; or any implication or reference

to any alleged abuse, conduct or victims after 2006.

Id. at 2.

Defendant states that it intends to challenge the veracity of Plaintiff’s allegation that

Mr. Gonzalez sexually assaulted her. Id. at 4. Thus, the Court can identify at minimum one way

in which the evidence that Defendant seeks to exclude would be relevant at trial: to show that

Plaintiff is not mistaken that assault occurred. See Fed. R. Evid. 404(b)(2) (stating that evidence

of crimes, wrongs, or other acts may be admissible to prove “absence of mistake”); Rodriguez v.

GeoVera Specialty Ins. Co., 426 F. Supp. 3d 1334, 1339 (S.D. Fla. 2019) (“In order to exclude

evidence in limine it must be inadmissible on all potential grounds.” (quotation marks omitted)).

Defendant’s Motion in Limine on this issue is therefore denied without prejudice. The Court will

analyze admissibility, including applying the balancing test under Fed. R. Evid. 403, and will

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address the appropriateness of any limiting instructions before or during trial in the context of

specific objections to particular pieces of evidence.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Final Summary Judgment [DE 46] is

DENIED, Plaintiff's Motion for Partial Summary Judgment [DE 32] is GRANTED IN PART

AND DENIED IN PART, and Defendant’s Motion in Limine [DE 44] is GRANTED IN PART

AND DENIED IN PART.

This matter is REFERRED to Magistrate Judge Shaniek M. Maynard for a Settlement

Conference. The date and time of the Settlement Conference will be set by Judge Maynard by

separate order.

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 28th day of August,

2020. 7).

( sh. A. Her oben,

ROBIN L. ROSENBERG U

Copies furnished to: Counsel of Record UNITED STATES DISTRICT JUD

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