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Case 2:18-cv-03462-JLS-KES Document 35 Filed 07/20/18 Page 1 of 35 Page ID #:229

1 Carolyn Kubota (Bar No. 113660)


ckubota@cov.com
2 Mitchell A. Kamin (Bar No. 202788)
mkamin@cov.com
3 Mark Y. Chen (Bar No. 310450)
mychen@cov.com
4 COVINGTON & BURLING LLP
1999 Avenue of the Stars, Suite 3500
5 Los Angeles, CA 90067-4643
Telephone: + 1 424-332-4800
6 Facsimile: + 1 424-332-4749
7 David Jolley (Bar No. 191164)
djolley@cov.com
8 COVINGTON & BURLING LLP
One Front Street, 35th Floor
9 San Francisco, California 94111-5356
Telephone: + 1 (415) 591-6000
10 Facsimile: + 1 (415) 591-6091
11 Attorneys for Defendant
UNITED STATES OLYMPIC COMMITTEE
12

13 UNITED STATES DISTRICT COURT


14 FOR THE CENTRAL DISTRICT OF CALIFORNIA
15 SOUTHERN DIVISION
16 Civil Case No.: 2:18-cv-3462-JLS-KES
JORDYN MARIE WIEBER, an individual
17

18 Plaintiff, NOTICE OF MOTION AND


MOTION TO DISMISS UNDER
19 vs. FRCP 12(b)(2) AND 12(b)(6);
20 MEMORANDUM OF POINTS AND
UNITED STATES OLYMPIC AUTHORITIES IN SUPPORT
21 COMMITTEE, USA GYMNASTICS, THEREOF
22 MICHIGAN STATE UNIVERSITY, Complaint Filed: April 17, 2018
LARRY NASSAR, STEVE PENNY, PAUL
23 Judge: Hon. Josephine L. Staton
PARRILLA, AND DOES 1 THROUGH
Hearing: September, 14, 2018
24 500
Time: 2:30 p.m.
25 Courtroom: 10A
Defendants.
26

27

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NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2) AND 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT THEREOF
Case 2:18-cv-03462-JLS-KES Document 35 Filed 07/20/18 Page 2 of 35 Page ID #:230

1 TABLE OF CONTENTS
2 I. INTRODUCTION .......................................................................................... 2
3 II. FACTUAL BACKGROUND......................................................................... 3
4 A. USOC’s Role Under the Ted Stevens Amateur Sports Act ................. 3
5 B. Larry Nassar’s Abuse of Plaintiff......................................................... 7
6 III. ARGUMENT .................................................................................................. 7
7 A. USOC Is Not Subject to Personal Jurisdiction in California ............... 7
8 B. The Complaint Relies on Impermissible Group Pleading ................. 10
9 C. The Complaint Fails to Set Forth Facts Sufficient to Establish Any
10 Negligence Cause of Action Against USOC ..................................... 12
11 The Law Imposes No Duty to Protect Others from Unforeseen
12 Criminal Acts by Third Parties ................................................ 13
13 The Complaint Also Fails to Allege a Breach of any Duty ..... 20
14 The Complaint Fails to Allege that USOC Proximately Caused
15 Nassar’s Abuse ......................................................................... 21
16 The Complaint’s Negligent Supervision and Negligent
17 Hiring/Retention/Training Claims Are Inapplicable to USOC 21
18 D. The Fifth Cause of Action Should be Dismissed Because the
19 Complaint Alleges No Fiduciary Duty .............................................. 22
20 E. The Sixth Cause of Action for Constructive Fraud Fails for the Same
21 Reasons as the Breach of Fiduciary Duty Claim ............................... 23
22 F. The Complaint’s Second Cause of Action for Violation of Masha’s
23 Law Is Inapplicable to USOC ............................................................ 24
24 G. The Complaint’s Third Cause of Action Does Not State a Claim of
25 Intentional Infliction of Emotional Distress as to USOC .................. 24
26 H. The Fourth Cause of Action for Unfair Business Practices Must Be
27 Dismissed ........................................................................................... 25
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1 I. The First Cause of Action (Sexual Harassment) is Inapplicable to


2 USOC ................................................................................................. 25
3 IV. CONCLUSION............................................................................................. 26
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1 TABLE OF AUTHORITIES
2
Page(s)
3
Cases
4
Ashcroft v. Iqbal,
5
556 U.S. 662 (2009) ...................................................................................................... 10
6
Avila v. Citrus Cmty. Coll. Dist.,
7 38 Cal. 4th 148 (2006) .................................................................................................. 13
8
Behagen v. Amateur Basketball Ass’n of U.S.,
9 884 F.2d 524 (10th Cir. 1989) ........................................................................................ 5
10 Bell Atl. Corp. v. Twombly,
11 550 U.S. 544 (2007) ...................................................................................................... 10
12 Bristol-Myers Squibb Co. v. Super. Ct. of Cal.,
137 S. Ct. 1773 (2017) .................................................................................................... 8
13

14 Burdick v. Super. Ct.,


233 Cal. App. 4th 8 (2015) ............................................................................................. 8
15

16
C.R. v. Tenet Healthcare Corp.,
169 Cal. App. 4th 1094 (2009) ..................................................................................... 26
17
Castaneda v. Olsher,
18 41 Cal. 4th 1205 (2007) .......................................................................................... 13, 20
19
Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,
20 20 Cal. 4th 163 (1999) .................................................................................................. 25
21 City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
22 68 Cal. App. 4th 445 (1998) ......................................................................................... 22
23 Clark v. Super. Ct.,
24
50 Cal. 4th 605 (2010) .................................................................................................. 25

25 Daimler AG v. Bauman,
571 U.S. 117 (2014) .................................................................................................... 7, 8
26

27 Del Castillo v. PMI Holdings N. Am. Inc.,


2016 WL 3745953 (S.D. Tex. 2016) ............................................................................ 20
28

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1 Doe I v. Wal-Mart Stores, Inc.,


2 572 F.3d 677 (9th Cir. 2009) .................................................................................. 10, 26

3 Doe v. Liberatore,
478 F. Supp. 2d 742 (M.D. Pa. 2007) ........................................................................... 24
4

5 Doe v. Schneider,
2013 WL 5429229 (E.D. Pa. 2013) .............................................................................. 24
6
Doe v. U.S. Youth Soccer Ass’n., Inc.,
7
8 Cal. App. 5th 1118 (2017) ....................................................................... 14, 15, 16, 17
8
Evan F. v. Hughson United Methodist Church,
9 8 Cal. App. 4th 828 (1992) ........................................................................................... 22
10
Fernandez v. Morris,
11 2008 WL 2775638 (S.D. Cal. 2008) ............................................................................. 25
12 Flores v. AutoZone W., Inc.,
13 161 Cal. App. 4th 373 (2008) ....................................................................................... 21
14 Flores v. Cty. of L.A.,
15
758 F.3d 1154 (9th Cir. 2014) ...................................................................................... 21

16 Garcia ex rel. Marin v. Clovis Unified Sch. Dist.,


627 F. Supp. 2d 1187 (E.D. Cal. 2009) ........................................................................ 20
17

18
Garcia v. Paramount Citrus Ass’n, Inc.,
164 Cal. App. 4th 1448 (2008) ..................................................................................... 17
19
Glazer Capital Mgmt., LP v. Magistri,
20 549 F.3d 736 (9th Cir. 2008) ........................................................................................ 17
21
Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins,
22 926 S.W. 2d 287 (Tex. 1996)........................................................................................ 20
23 Hinojosa v. Livingston,
24 807 F.3d 657 (5th Cir. 2015) ........................................................................................ 11
25 Hughes v. Pair,
26 46 Cal. 4th 1035 (2009) ................................................................................................ 26

27 In re Gilead,
536 F.3d at 1055 ....................................................................................................... 3, 11
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1 In re iPhone Application Litig.,


2 2011 WL 4403963 (N.D. Cal. 2011) ............................................................................ 11

3 JES Props., Inc. v. USA Equestrian, Inc.,


458 F.3d 1224 (11th Cir. 2006) ............................................................................ 5, 9, 16
4

5 John R. v. Oakland Unified Sch. Dist.,


48 Cal. 3d 438 (1989) ................................................................................................... 26
6
Kaplan v. Rose,
7
49 F.3d 1363 (9th Cir. 1994) ........................................................................................ 23
8
Kearns v. Ford Motor Co.,
9 567 F.3d 1120 (9th Cir. 2009) ...................................................................................... 25
10
Kelley v. Rambus, Inc.,
11 2007 WL 3022544 (N.D. Cal. 2007) ............................................................................ 11
12 Manzarek v. St. Paul Fire & Marine Ins. Co.,
13 519 F.3d 1025 (9th Cir. 2008) ...................................................................................... 10
14 Martinez v. Aero Caribbean,
15
764 F.3d 1062 (9th Cir. 2014) .................................................................................... 7, 8

16 Martinez v. Cty. of Sonoma,


2015 WL 5354071 (N.D. Cal. Sept. 14, 2015) ............................................................. 25
17

18
Mehr v. Féderation Internationale de Football Ass’n,
115 F. Supp. 3d 1035 (N.D. Cal. 2015) .......................................................................... 9
19
Melton v. Boustred,
20 183 Cal. App. 4th 521 (2010) ........................................................................... 13, 17, 20
21
Monsanto Co. v. Geertson Seed Farms,
22 561 U.S. 139 (2010) ...................................................................................................... 25
23 Noble v. Sears, Roebuck & Co.,
24 33 Cal. App. 3d 654 (1973) .......................................................................................... 22
25 M.A. ex rel. P.K. v. Vill. Voice Media Holdings, LLC,
26 809 F. Supp. 2d 1041 (E.D. Mo. 2011) ........................................................................ 24

27 P.S. v. San Bernardino City Unified School Dist.,


174 Cal. App. 4th 953 (2009) ....................................................................................... 22
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1 Prakashpalan v. Engstrom, Lipscomb & Lack,


2 223 Cal. App. 4th 1105 (2014) ..................................................................................... 23

3 Ransom v. Lee,
2015 WL 6856978 (C.D. Cal. 2015) ............................................................................ 13
4

5 Regents of Univ. of Cal. v. Super. Ct.,


4 Cal. 5th 607 (2018) ............................................................................................. passim
6
Roman Catholic Bishop v. Super. Ct.,
7
42 Cal. App. 4th 1556 (1996) ........................................................................... 17, 18, 20
8
Rowland v. Christian,
9 69 Cal. 2d 108 (1968) ............................................................................................. 13, 17
10
SEC v. Yuen,
11 221 F.R.D. 631 (C.D. Cal. 2004) .................................................................................. 23
12 S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm.,
13 483 U.S. 522 (1987) .................................................................................................... 4, 5
14 Searcy v. Hemet Unified Sch. Dist.,
15
177 Cal. App. 3d 792 (1986) .................................................................................. 13, 15

16 Seo v. All-Makes Overhead Doors,


97 Cal. App. 4th 1193 (2002) ....................................................................................... 16
17

18
Strasner v. Touchstone Wireless Repair & Logistics, LP,
5 Cal. App. 5th 215 (2016) ............................................................................................. 9
19
Summers v. Earth Island Inst.,
20 555 U.S. 488 (2009) ...................................................................................................... 25
21
Swartz v. KPMG LLP,
22 476 F.3d 756 (9th Cir. 2007) .............................................................................. 7, 10, 26
23 Terracom v. Valley Nat’l Bank,
24 49 F.3d 555 (9th Cir. 1995) ............................................................................................ 8
25 U.S. Bank Nat’l Ass’n v. Friedrichs,
26 2013 WL 589111 (S.D. Cal. 2013) ............................................................................... 12

27 VanZandt v. Okla. Dep’t of Human Servs.,


276 F. App’x 843 (10th Cir. 2008) ............................................................................... 11
28

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1 Vess v. Ciba-Geigy Corp. USA,


2 317 F.3d 1097 (9th Cir. 2003) ...................................................................................... 23

3 Vizcaino v. Areas USA, Inc.,


2015 WL 13573816 (C.D. Cal. 2015) .......................................................................... 21
4

5 Warren v. Fox Family Worldwide, Inc.,


328 F.3d 1136 (9th Cir. 2003) ...................................................................................... 23
6
Wolf v. Super. Ct.,
7
107 Cal. App. 4th 25 (2003) ......................................................................................... 23
8
Statutes
9
18 U.S.C. § 2255 ................................................................................................................ 24
10

11 36 U.S.C. § 220505 .............................................................................................................. 5


12 36 U.S.C. § 220506 .............................................................................................................. 4
13 36 U.S.C. § 220521 .............................................................................................................. 4
14
36 U.S.C. § 220522(a) ....................................................................................... 5, 16, 19, 20
15
36 U.S.C. § 220523 .............................................................................................................. 4
16

17
36 U.S.C. § 220524 .............................................................................................................. 5

18 36 U.S.C. § 220525 .............................................................................................................. 5


19 Cal. Civ. Code § 51.9 ......................................................................................................... 25
20 Cal. Pen. Code § 11165.7............................................................................................... 3, 22
21
Cal. Pen. Code § 11166...................................................................................................... 22
22
Other Authorities
23

24
124 Cong. Rec. S9821-22 (daily ed. June 26, 1978) ........................................................... 4

25 Fed. R. Civ. Proc. 9(b) ................................................................................................. 23, 25


26 Fed. R. Civ. Proc. 12(b) ..................................................................................................... 10
27
Protecting Young Victims from Sexual Abuse and Safe Sport Authorization
28 Act of 2017, S. 534, 115th Cong. § 202 (2017) ........................................................ 6, 25

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1 S. Rep. No. 95–770 ............................................................................................................. 4


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1 NOTICE OF MOTION AND MOTION


2 PLEASE TAKE NOTICE that on September 14, 2018, at 2:30 p.m., or as soon
3 thereafter as the matter may be heard before the Honorable Josephine Staton, United
4 States District Court for the Central District of California, Southern Division, Ronald
5 Reagan Federal Building and United States Courthouse, 411 W. Fourth St., Courtroom
6 10A, 10th Floor, Santa Ana, CA 92701, defendant United States Olympic Committee
7 (“USOC”) will, and hereby does, move for an order dismissing each of plaintiff Jordyn
8 Marie Wieber’s (“Plaintiff”) causes of action against USOC pursuant to Federal Rules of
9 Civil Procedure 12(b)(2) and 12(b)(6), on the ground that the Court lacks personal
10 jurisdiction over USOC and that the Complaint fails to allege facts that would support
11 any of Plaintiff’s causes of action against USOC.
12 This motion is made following the conference of counsel pursuant to L.R. 7-3,
13 which took place on July 13, 2018. The motion will be based on this Notice of Motion
14 and Motion, the Memorandum of Points and Authorities filed herewith, the pleadings and
15 papers filed herein, and any such further evidence and argument as may be presented to
16 the Court at or before the hearing on this matter.
17

18 DATED: July 20, 2018 COVINGTON & BURLING LLP


19

20 By: /s/ Mitchell A. Kamin


Mitchell A. Kamin
21
Attorneys for Defendant
22 United States Olympic Committee
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NOTICE OF MOTION AND MOTION TO DISMISS UNDER FRCP 12(b)(2) AND 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT THEREOF
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1 MEMORANDUM OF POINTS AND AUTHORITIES


2 I. INTRODUCTION
3 This case stems from one of the most heinous examples of sexual abuse in the
4 history of sport, perpetrated by disgraced physician and convicted felon Larry Nassar.
5 There is no debate regarding the harm Nassar caused or Plaintiff’s courage and strength
6 in responding to Nassar’s crimes. Plaintiff was abused by Nassar while competing with
7 USA Gymnastics and while seeking treatment at Michigan State University (“MSU”). At
8 that time, Nassar was a full-time employee of MSU and working as the USA Gymnastics
9 team doctor. Both of these organizations are separate and independent from the United
10 States Olympic Committee (“USOC”), which neither employed nor controlled Nassar.
11 As the leader of the Olympic movement in the United States, USOC is
12 appropriately a subject of, and a participant in, discussions concerning moral and social
13 responsibility for sexual abuse, including legitimate questions about what could have
14 been done to recognize and stop Nassar’s abuse. The USOC has instituted structural and
15 legislative reforms in the field of amateur sports to increase awareness, detection,
16 reporting, and investigation of issues of abuse, whether sexual, physical, or emotional.
17 The Complaint in this case, however, asks the Court to assign legal responsibility for
18 Nassar’s crimes, which must be decided under the rules of law. Those rules mandate
19 dismissal of this action against USOC.
20 As a threshold matter, the Complaint fails to allege contacts with California
21 adequate to establish personal jurisdiction over USOC. The absence of personal
22 jurisdiction is dispositive and requires dismissing USOC from this action.
23 Further, most of the allegations against USOC take the form of conclusory
24 statements against the “Defendants,” collectively, lumping USOC together with MSU,
25 USA Gymnastics, USA Gymnastics employees, and five hundred Doe defendants. The
26 Court must disregard these allegations which are impermissibly conclusory and constitute
27 improper group pleading. What is left of the allegations against USOC do not state a
28 valid cause of action.

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1 The Complaint asserts that USOC acted negligently in failing to discover and
2 prevent Nassar’s misconduct. The law is clear, however, that a defendant has no duty to
3 protect against the criminal acts of a third party absent a special relationship. Here, the
4 Complaint fails to allege the basis of a special relationship between Plaintiff and USOC.
5 It also fails to adequately allege the crucial and related issue of foreseeability. As to the
6 remaining claims, the Complaint fails to allege any of the requisite mental states which
7 range from an intent to aid Nassar (Masha’s Law), an intent to deceive Plaintiff
8 (constructive fraud), or recklessness as to Nassar’s behavior (intentional infliction of
9 emotional distress). In fact, the Complaint expressly states that USOC was not even
10 aware of Nassar’s misconduct until USA Gymnastics terminated its relationship with him
11 and reported him to law enforcement in 2015. Compl. ¶ 18.
12 The Complaint also asserts a breach of a fiduciary duty predicated on the theory
13 that USOC is a “mandated reporter” under the California Penal Code. The Complaint
14 does not identify a basis for that conclusion and, even if it did, USOC’s status as a
15 “mandated reporter” would not create a fiduciary relationship. The Unfair Business
16 Practices claim fails because it does not identify a cognizable remedy. Finally, the sexual
17 harassment claim fails as to USOC because the allegations provide no basis for holding
18 USOC vicariously liable for Nassar’s misconduct.
19 Ultimately, the substantive allegations as to USOC’s conduct do not state any valid
20 claim for relief. The Court should therefore dismiss all causes of action against USOC.
21 II. FACTUAL BACKGROUND1
22 A. USOC’s Role Under the Ted Stevens Amateur Sports Act
23 USOC is a private, federally chartered, non-profit organization that serves as
24
1
25 This factual background is based on the factual allegations contained in the Complaint
and properly excludes “allegations that are merely conclusory, unwarranted deductions of
26
fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th
27 Cir. 2008) (citation omitted). It also relies on information set forth in the Ted Stevens
Amateur Sports Act, which is referred to throughout the Complaint.
28

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1 the coordinating body for athletic activity in the United States directly relating to the
2 Olympic, Paralympic, and Pan-American Games. It operates pursuant to the Ted Stevens
3 Amateur Sports Act of 1978 (“ASA”), which “was enacted to correct the disorganization
4 and the serious factional disputes that seemed to plague amateur sports in the United
5 States.” S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 544-45 (1987)
6 (citing H. R. Rep. No. 95-1627, at 8 (1978); S. Rep. No. 95–770, at 2–3 (1978)). Before
7 the ASA, there was no official process for selecting athletes to represent the United States
8 in the Olympic games. Rival sports organizations across the country often established
9 inconsistent eligibility criteria that led to uncertainty and infighting over which athletes
10 could compete in the Olympics. See id.
11 The ASA resolved this uncertainty by empowering USOC to designate a single
12 organization to serve as each sport’s “national governing body” (NGB), of which USA
13 Gymnastics is one. 36 U.S.C. § 220521. The ASA authorizes USA Gymnastics and the
14 other 49 NGBs to “represent the United States in the appropriate international sports
15 federation;” “conduct amateur athletic competition, including national championships;”
16 exercise jurisdiction over international competitions; and “recommend to [USOC]
17 individuals and teams to represent the United States in the Olympic Games, the
18 Paralympic games, and the Pan-American Games.” § 220523. Congress also gave
19 USOC the exclusive right under the ASA to license the “Olympic” brand in order to
20 generate funds, which USOC uses to support the NGBs and athletes. § 220506. For
21 example, USOC may license the right for a third-party training site to designate itself as
22 an “Olympic” site, or for a beverage to be the official “Olympic” drink. See id.
23 Congress specifically declined to give USOC control over the day-to-day affairs of
24 NGBs. 124 Cong. Rec. S9821-22 (daily ed. June 26, 1978) (statement of Sen. Ted
25 Stevens) (explaining that the sports organizations would remain “autonomous in the
26 governance of their sport”). Instead, Congress requires sports organizations to
27 demonstrate complete autonomy in order to become an NGB:
28

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1 An amateur sports organization is eligible to be recognized, or


2 to continue to be recognized, as a national governing body only
if it — . . . . demonstrates that it is autonomous in the
3 governance of its sport, in that it (A) independently decides and
4 controls all matters central to governance; (B) does not delegate
decision-making and control of matters central to governance;
5 and (C) is free from outside restraint.
6 § 220522(a)(5). USOC therefore has a statutorily limited role with respect to NGBs: It
7 chooses which organization to designate as an NGB for each sport, ensures that the
8 NGBs meet the eligibility criteria, and provides financial assistance to the NGBs.
9 § 220505; see also S.F. Arts & Athletics, Inc., 483 U.S. at 544-45; Compl. ¶ 8.
10 Each NGB exercises day-to-day control over its staffing and staff supervision, the
11 training of participating athletes and their medical care, and the competitions (other than
12 the Olympic games themselves) in which the athletes compete.2 See 36 U.S.C. §§
13 220524-220525 (describing NGB responsibilities).3 See also JES Props., Inc. v. USA
14 Equestrian, Inc., 458 F.3d 1224, 1230-31 (11th Cir. 2006) (the NGBs retain “monolithic
15 control” over their respective sports); Behagen v. Amateur Basketball Ass’n of U.S., 884
16 F.2d 524, 528-29 (10th Cir. 1989). Thus, athletes interface directly with the NGBs, not
17 USOC. For example, USA Gymnastics “was the NGB responsible for the supervision of
18 the Plaintiff while at both National and International events she attended as a minor
19 competitive gymnast; competitions in which she molested [sic] at, by NASSAR.”
20
2
21 Although extraneous to this motion, USOC notes that it can, through its power to
decertify an NGB, exert some influence over high-level staffing decisions of an NGB.
22
For example, USOC requested Steve Penny, USA Gymnastics’ CEO, to resign in 2017.
23 And it threatened to decertify USA Gymnastics in 2018 if the NGB’s board did not resign
due to their failure to detect and prevent Nassar’s abuse. See
24
<https://www.nytimes.com/2018/01/26/sports/usa-gymnastics-board-nassar.html>.
25 However, as set forth in the text of the ASA and confirmed by the Complaint, the NGBs
26
retain full autonomy and control over day-to-day affairs and staffing decisions.
3
27 The Complaint misidentifies Section 220525 as referring to USOC’s responsibilities.
Compl. ¶ 16.
28

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1 Compl. ¶ 22. More broadly, USA Gymnastics “selects and trains the United States
2 gymnastics teams for the Olympics and World Championships, promotes gymnastics
3 locally and nationally, and serves as a resource center for members, clubs, fans and
4 gymnasts throughout the United States.” Compl. ¶ 20. USA Gymnastics also organizes
5 and manages the Olympic qualifying events to select the gymnasts who will compete in
6 the Olympics. Id.
7 In 2012, USOC voluntarily launched a “SafeSport” initiative to help combat sexual
8 abuse in amateur athletics. Compl. ¶ 12. As part of that initiative, USOC provided the
9 NGBs with a resource guide called the “SafeSport Handbook,” to help NGBs develop
10 their own policies and staffing procedures. Id. USOC also established and funded the
11 Center for SafeSport. The Center was launched in 2017 with a mission to “safeguard[]
12 amateur athletes against abuse, including emotional, physical, and sexual abuse, in
13 sports” and to develop policies and procedures for preventing sexual abuse; it received
14 congressional authorization in 2018. Protecting Young Victims from Sexual Abuse and
15 Safe Sport Authorization Act of 2017, S. 534, 115th Cong. § 202 (2017).
16 Collectively, the NGBs have more than three million members and tens of
17 thousands of staff members or volunteers. According to the Complaint, USA Gymnastics
18 alone includes “more than 174,000 athletes and professional members, [and over] 25,000
19 professional, instructor[,] and club members.”4 Compl. ¶ 20. It sanctions
20 “[a]pproximately 4,000 competitions and events throughout the United States” each year.
21 Id. Consistent with its statutory mandate, USOC does not oversee the day-to-day
22 operations of this network of NGBs nor would it have the wherewithal to do so.
23

24

25
4
26 “Professional Members” are competitive coaches who participate in USA Gymnastics
sanctioned events. “Member Club[s]” are gymnastics clubs eligible to host USA
27
Gymnastics sanctioned events. See
28 https://usagym.org/pages/membership/pages/membership_overview.html.

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1 B. Larry Nassar’s Abuse of Plaintiff


2 Plaintiff was a member of USA Gymnastics’ National Team between 2006 and
3 2012. Compl. ¶¶ 48, 49. She was also a member of the 2012 United States Olympic
4 team and competed in the London Olympic games. USA Gymnastics retained Nassar as
5 its team doctor and “was the primary entity owning, operating and controlling the
6 activities and behavior of its employee agents, including, but not limited to NASSAR.”
7 Id. ¶¶ 31, 20. At the same time, Nassar “was a full-time employee of MSU” who
8 “routinely provided outreach for” USA Gymnastics. Compl. ¶ 27. Plaintiff “formed a
9 relationship with NASSAR, through his work at MSU, and through [USA Gymnastics].”
10 Compl. ¶ 48.
11 The Complaint states that Nassar abused Plaintiff approximately ten times, and that
12 this abuse “occurred on the [MSU] campus, as well as at [USA Gymnastics] events
13 across the Nation and the World . . . .” Compl. ¶¶ 49, 1.5 According to the Complaint,
14 USOC first learned of Nassar’s criminal behavior in 2015—after the abuse occurred,
15 after Plaintiff had ceased competing with USA Gymnastics, and after USA Gymnastics
16 removed Nassar from his position as team physician. Compl. ¶¶ 5, 18, 31.
17 III. ARGUMENT
18 A. USOC Is Not Subject to Personal Jurisdiction in California
19 A complaint must allege specific facts to establish that USOC is subject to either
20 general jurisdiction or specific jurisdiction in California. See Daimler AG v. Bauman,
21 571 U.S. 117, 126-27 (2014). Here, the Complaint fails to establish either basis for
22 jurisdiction as to USOC and so it must be dismissed. See Martinez v. Aero Caribbean,
23 764 F.3d 1062, 1066 (9th Cir. 2014) (plaintiff bears burden of establishing jurisdiction).
24

25 5
The Complaint alleges that USOC owed various legal duties with respect to the Karolyi
26 Ranch, although it does not allege any abuse there. See, e.g., Compl. ¶¶ 9, 10, 21. In any
event, the conclusory statements as to USOC’s legal duties must be disregarded at the
27
pleading stage, because the Complaint does not allege facts to suggest that USOC
28 controlled the Ranch. Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir. 2007).

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1 No General Jurisdiction. For corporate defendants like USOC, general


2 jurisdiction exists only where the corporation is “fairly regarded as at home,” the
3 paradigmatic bases of which are the state of incorporation and principal place of business.
4 Daimler, 571 U.S. at 137; Martinez, 764 F.3d at 1064. This demanding standard requires
5 more than a “substantial, continuous, and systematic course of business” in a state.
6 Martinez, 764 F.3d at 1070. For example, the Supreme Court in Daimler refused to find
7 that Daimler was subject to personal jurisdiction in California, even though it had
8 multiple facilities in California and was “the largest supplier of luxury vehicles to the
9 California market.” Daimler, 571 U.S. at 123.
10 Here, the Complaint alleges no facts to suggest that California is USOC’s “home”
11 state or that it had any course of business in the state at all. The Complaint states only
12 that USOC is based in Colorado and is not incorporated in any state. See Compl. ¶ 8.
13 Accordingly, USOC is not subject to general jurisdiction in California.
14 No Specific Jurisdiction. Likewise, the Complaint alleges no basis for specific
15 personal jurisdiction over USOC. Specifically, the Complaint fails to establish that (1)
16 USOC “purposefully avail[ed] [it]self of the privilege of conducting activities in the
17 forum, thereby invoking the benefits and protections of its laws,” or that (2) Plaintiff’s
18 own injuries would not have occurred but for USOC’s conduct in California. Terracom
19 v. Valley Nat’l Bank, 49 F.3d 555, 560 (9th Cir. 1995); see Burdick v. Super. Ct., 233 Cal.
20 App. 4th 8, 13 (2015) (“personal jurisdiction must be based upon forum-related acts that
21 were personally committed by the nonresident defendant, not upon the plaintiff’s
22 contacts with the forum or acts committed by codefendants or third parties.”) (emphasis
23 added). See also Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1781
24 (2017).
25 Here, the Complaint fails to identify any conduct by which USOC “purposefully
26 availed” itself of the laws of California, much less any conduct that was a “but for” cause
27 of Plaintiff’s injuries. Terracom, 49 F.3d at 561. The Complaint broadly alleges that
28 Nassar abused Plaintiff at various USA Gymnastics events, including “events in

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1 California” (Compl. ¶ 1), but does not identify any conduct by USOC as the direct cause
2 of this abuse. To the contrary, the self-evident direct cause of Plaintiff’s injuries was
3 Nassar’s utter disregard for morality, medical ethics, and the strictures of criminal law.
4 Additionally, the Complaint fails to allege that USA Gymnastics was USOC’s
5 agent, such that USA Gymnastics’ conduct in California should be imputed to USOC. To
6 support jurisdiction based on a theory of agency, the Complaint must allege that USOC
7 “exert[ed] power over [USA Gymnastics’] day-to-day operations . . . akin to a
8 nonresident puppeteer pulling the strings of a California puppet.” Strasner v. Touchstone
9 Wireless Repair & Logistics, LP, 5 Cal. App. 5th 215, 224 (2016).
10 For example, in Mehr v. Féderation Internationale de Football Association
11 (“FIFA”), plaintiffs were members of FIFA-sanctioned youth organizations who suffered
12 concussions while participating in FIFA-sanctioned events. 115 F. Supp. 3d 1035, 1043-
13 44 (N.D. Cal. 2015). The plaintiffs sued FIFA in California for negligence on the theory
14 that FIFA should have promulgated more rules and policies to prevent concussions. Id.
15 The Mehr plaintiffs argued for jurisdiction on the grounds that FIFA required its member
16 organizations to follow FIFA’s rules and policies, FIFA agents in California arranged
17 matches between FIFA-sanctioned teams in California, FIFA maintained a medical center
18 in California, and FIFA sponsored videogame competitions in California. Id. at 1049-50.
19 The court held that it lacked personal jurisdiction over FIFA because none of plaintiffs’
20 claims “ar[o]se from any specific FIFA forum-related activity, and to the extent there are
21 allegations regarding FIFA’s contacts with California, they are limited to allegations
22 relating to contracts of a commercial nature that are unrelated to claims based on FIFA’s
23 alleged failure to implement concussion-related protocols.” Id. at 1052.
24 Here, the argument for specific jurisdiction is far weaker because the Complaint
25 includes no allegations regarding USOC activities in California. Furthermore, whereas
26 FIFA “exert[ed] massive worldwide influence and regulation over all aspects of soccer,
27 including in the United States and in California” (id. at 1052), USOC exerts no such
28 control over gymnastics. See JES Props., Inc., 458 F.3d at 1230-31 (the NGBs retain

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1 “monolithic control” over their respective sports). The Complaint’s suggestion that
2 USOC has the statutory right to decertify USA Gymnastics as an NGB for failing to
3 adopt USOC’s policies (Compl. ¶ 13) is no different from FIFA’s right to do the same,
4 and does not convert USA Gymnastics (or any of its staff) into an agent of USOC. See
5 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) (Wal-Mart’s right to
6 terminate suppliers did not give Wal-Mart control over the suppliers’ employees).
7 Likewise, the Complaint does not state any basis to support its legal conclusion
8 that “each and every Defendant was an employee, agent, and/or servant of Defendants.”
9 Compl. ¶ 40. Swartz, 476 F.3d at 765 (allegations of “acting as agents” without “stated
10 factual basis are insufficient as a matter of law”). Indeed, the Complaint undermines the
11 existence of an agency relationship between Nassar and USOC by acknowledging that
12 “[USA Gymnastics] was the primary entity owning, operating, and controlling the
13 activities and behavior of its employees . . . including, but not limited to NASSAR.”
14 Compl. ¶ 20.
15 For all of these reasons, the Complaint fails to establish personal jurisdiction over
16 USOC and should therefore be dismissed.
17 B. The Complaint Relies on Impermissible Group Pleading
18 In addition to the absence of personal jurisdiction, all causes of action against
19 USOC should be dismissed because of the Complaint’s pervasive reliance on conclusory
20 allegations and improper group pleading.
21 To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a
22 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
23 570 (2007). A claim is facially plausible when supported by “factual content that allows
24 the court to draw the reasonable inference that the defendant is liable for the misconduct
25 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the plausibility of a
26 complaint, courts “accept factual allegations in the complaint as true,” Manzarek v. St.
27 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008), but must disregard
28 legal conclusions. Iqbal, 556 U.S. at 678. Courts also do not “accept as true allegations

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1 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”


2 In re Gilead, 536 F.3d at 1055.
3 When stating claims involving multiple defendants, the Complaint “must identify
4 what action each Defendant took that caused Plaintiff’s harm, without resort to
5 generalized allegations against Defendants as a whole.” In re iPhone Application Litig.,
6 2011 WL 4403963, at *8 (N.D. Cal. 2011). Otherwise, the Complaint fails to provide
7 fair notice of the allegations against each of the defendants. VanZandt v. Okla. Dep’t of
8 Human Servs., 276 F. App’x 843, 849 (10th Cir. 2008). Thus, “[w]hen the plaintiff’s
9 complaint uses blanket terms covering all the defendants, by lumping them together…,
10 these allegations are properly disregarded.” See Hinojosa v. Livingston, 807 F.3d 657,
11 684 (5th Cir. 2015); VanZandt, 276 F. App’x at 849; Kelley v. Rambus, Inc., 2007 WL
12 3022544, at *1 (N.D. Cal. 2007).
13 Here, the three entity defendants, USOC, USA Gymnastics, and MSU, are
14 independent organizations located in three different states. Their interactions with
15 Plaintiff and—in the case of MSU and USA Gymnastics—with Nassar took place at
16 different times, in different places, under different circumstances, and for different
17 purposes. The defendants’ conduct and knowledge are not interchangeable. Yet the
18 Complaint treats them as such. For example, the Complaint alleges that “Defendants
19 were apprised, knew or should have known of and/or were put on notice of NASSAR’s
20 past sexual abuse of children,” Compl. ¶ 59; “Defendants engaged in a pattern and
21 practice of employing sexual abusers,” id. ¶ 62; “Defendants willfully refused to notify,
22 give adequate warning and implement appropriate safeguards, thereby creating the peril
23 that ultimately damaged [Plaintiff],” id. ¶ 61; and “Defendants implemented various
24 measures designed to make NASSAR’s conduct harder to detect and ensure minors with
25 whom he came in contact, such as [Plaintiff], would be sexually abused.” Id. ¶ 67. None
26 of these statements is accurate, or even plausible, with respect to USOC.
27

28

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1 These allegations are both impermissibly conclusory and constitute improper group
2 pleading, and the Court must disregard all of them in considering this motion.6 The
3 remaining allegations of the Complaint do not identify any action, inaction, or duty that
4 would support a viable claim for relief against USOC; for that reason alone, dismissal of
5 all claims as to USOC is required. U.S. Bank Nat’l Ass’n v. Friedrichs, 2013 WL
6 589111, at *9 (S.D. Cal. 2013). Furthermore, each of the claims asserted against USOC
7 fails on its merits for the reasons set forth below.
8
C. The Complaint Fails to Set Forth Facts Sufficient to Establish Any
9 Negligence Cause of Action Against USOC
10 The Complaint acknowledges that USOC did not employ or retain Nassar and only
11 learned of his misconduct years after he abused Plaintiff. It nevertheless asserts that
12 USOC was negligent in failing to protect Plaintiff from Nassar (Seventh Cause of
13 Action); negligent in supervising Nassar (Eighth Cause of Action); negligent in
14 retaining/hiring Nassar (Ninth Cause of Action); and negligent in failing to warn, train, or
15 educate Plaintiff about Nassar (Tenth Cause of Action).
16 The negligence claims must be dismissed as to USOC because the Complaint does
17 not establish that USOC stood in a special relationship with Plaintiff such that it could be
18 held liable for the criminal conduct of a third party. Moreover, the Complaint fails to
19 allege that Nassar’s criminal conduct was highly foreseeable to USOC. Accordingly, the
20 Complaint fails to allege the existence of a duty or any other element of negligence.
21

22

23

24

25 6
Such conclusory allegations include paragraphs 33, 39-44, 46-47, 51-55, 57-61, 63-69,
26 71, and 73 of the Complaint, as well as every allegation in the causes of action (other
than those discussing Plaintiff’s own conduct). The Complaint resorts to this grouping
27
because, as demonstrated by the facts that are specifically alleged, USOC was not
28 involved in supervising or controlling either Nassar or Plaintiff.

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1 The Law Imposes No Duty to Protect Others from Unforeseen


2 Criminal Acts by Third Parties

3 The existence of a “duty” is a question of law. See Avila v. Citrus Cmty. Coll.

4 Dist., 38 Cal. 4th 148, 161 (2006). A defendant does not owe an affirmative duty to

5 protect individuals from the misconduct of third parties, absent a showing of a “special

6 relationship” between the defendant and the plaintiff. Melton v. Boustred, 183 Cal. App.

7 4th 521, 532 (2010). Even if a special relationship exists, a court must then apply the

8 factors articulated in Rowland v. Christian, 69 Cal. 2d 108, 113 (1968), to determine

9 whether and to what extent a duty should be imposed. Melton, 183 Cal. App. 4th at 532.

10 Under Rowland, the most significant factors are the foreseeability of the harm, weighed

11 against the burden of taking preventative measures. Castaneda v. Olsher, 41 Cal. 4th

12 1205, 1213 (2007) (“Foreseeability and the extent of the burden to the defendant are

13 ordinarily the crucial considerations.”).

14 Here, the Complaint fails to allege the existence of a special relationship because it

15 fails to establish that USOC exercised significant control over USA Gymnastics athletes

16 and the environment in which they practiced their sport. Similarly, the Complaint fails to

17 allege the high level of foreseeability necessary to establish a duty under Rowland.

18 No Special Relationship. As the California Supreme Court recently explained, a

19 special relationship requires a showing that the victim relies upon the defendant for

20 protection and the defendant has “superior control over the means of protection.”

21 Regents of Univ. of Cal. v. Super. Ct. (“Regents”), 4 Cal. 5th 607, 621 (2018) (“The

22 corollary of dependence in a special relationship is control.”). See also Ransom v. Lee,

23 2015 WL 6856978, *4 (C.D. Cal. 2015) (“A basic requisite of a duty based on a special

24 relationship is the defendant’s ability to control the other person’s conduct.”). The

25 concept of a defendant’s control over the victim’s welfare is key to cases finding the

26 existence of a special relationship, whether in a physical custodial setting such as a

27 school, Searcy v. Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 803-04 (1986), or

28

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1 because of control inherent in the parties’ relationship, Doe v. U.S. Youth Soccer Ass’n.,
2 Inc. (“US Youth”), 8 Cal. App. 5th 1118, 1129-30 (2017).
3 In Regents, the California Supreme Court focused on the concept of control to find
4 that a university has a special relationship with students participating in school activities,
5 but noted that this relationship does not extend to activities where the school’s control is
6 limited. 4 Cal. 5th at 633. Regents involved a UCLA student who was being treated at
7 the university clinic for mental illness, including paranoia, schizophrenia, and auditory
8 hallucinations, and later stabbed a classmate during a chemistry lab without provocation.
9 Id. at 614-17. The injured classmate sued UCLA for failing to protect her, and she
10 alleged that she stood in a special relationship with UCLA when the attack occurred. Id.
11 The Court explained that “special” relationships share certain features, the first of
12 which is, “[w]hereas one party [is] dependent, the other has superior control over the
13 means of protection.” Id. at 621. Special relationships also have “defined boundaries,”
14 meaning that “a duty of care is owed to a limited community, not the public at large.” Id.
15 After reviewing the forms of control that modern universities exercise with respect to
16 students, the Court concluded that “the modern university provides a setting in which
17 every aspect of student life is, to some degree, university guided.” Id. at 625. The Court
18 identified a host of means by which colleges exercise control over their students,
19 including the employment of health, safety and housing staff; disciplinary programs; the
20 provision of housing, security and a range of extracurricular activities; and influencing
21 students values, consciousness, relationships, and behaviors. Id. Hence, universities
22 “have superior control over the environment and the ability to protect students.” Id.
23 Based on these principles, the court held that UCLA stood in a special relationship with
24 students, but that its duty was limited to “enrolled students who are at foreseeable risk of
25 being harmed in a violent attack while participating in curricular activities at the school.”
26 Id. at 633. The court expressly stated that the special relationship does not extend to non-
27 school activities, over which the university has little control. Id. at 626.
28

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1 In Searcy, the plaintiff student was injured while walking home from school and
2 sued the school district, among others. 177 Cal. App. 3d 792, 796 (1986). The California
3 Court of Appeal affirmed the trial court’s grant of demurrer on the basis that no special
4 relationship existed. Id. at 796, 803. The court held that, because the school only has
5 “discretionary authority to influence conditions affecting the safety of students’
6 transportation to and from school,” the school’s special relationship to students does not
7 apply where “a student had departed homeward after school hours.” Id. at 796, 804.
8 Consistent with Regents, the defendant’s special relationship existed only in
9 circumstances in which the defendant controlled the plaintiff’s environment.
10 In US Youth, the Court of Appeal considered the existence of a special relationship
11 in the context of a children’s soccer organization. 8 Cal. App. 5th 1118. In that case, the
12 plaintiff child was abused by his coach and sued the national soccer organization (“US
13 Youth”) and the state and regional affiliates through which US Youth operates. The
14 court’s analysis focused on a different form of control, namely, US Youth’s control of its
15 state and regional affiliates and, through them, the adults with whom the plaintiff
16 interacted—including his coach/molester. Id. at 1131. Specifically, the Court found that
17 US Youth “determined which individuals, including [the perpetrator], had custody and
18 supervision of children involved in its programs.” Id. at 1131; see also id. at 1135 (“US
19 Youth and [its affiliates] controlled which individuals had access to the children in their
20 programs”). Given US Youth’s control of its affiliates and their hiring practices, the
21 court concluded that, “as in the school, daycare, and scouting settings, [US Youth and its
22 affiliates], through the coaches, acted as ‘quasi-parents’ by assuming responsibility for
23 the safety of the players whose parents were not present.” Id. at 1130.
24 Regents, Searcy, US Youth, and the prior special relationship cases support the
25 conclusion that USOC has no special relationship with USA Gymnastics athletes,
26 including Plaintiff. At an organizational level, USA Gymnastics is not an “affiliate”
27 through which USOC operates, unlike the local soccer organizations in US Youth. To the
28 contrary, under the ASA, USA Gymnastics is an independent, autonomous organization

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1 that exercises complete control over its sport. 36 U.S.C. § 220522(a)(5); see also JES
2 Props., Inc., 458 F.3d at 1230-31. USOC therefore does not control USA Gymnastics in
3 the way that US Youth controlled its local affiliates.
4 At an operational level, the Complaint itself states that USA Gymnastics “selects
5 and trains the United States gymnastics teams for the Olympics and World
6 Championships,” and that USA Gymnastics organizes and controls the events at which its
7 athletes competed. Compl. ¶ 20. Further, USA Gymnastics “independently decides and
8 controls all matters central” to its governance (§ 220522(a)(5)), including procedures for
9 hiring employees or retaining volunteers. In other words, control of USA Gymnastics is
10 alleged to reside with USA Gymnastics itself. Unlike US Youth and its affiliates, USOC
11 is not alleged to control USA Gymnastics’ facilities or personnel. Importantly, USOC
12 does not “determine[] which individuals, including [Nassar], had custody and supervision
13 of children involved in [USA Gymnastics’] programs.” Cf. US Youth, 8 Cal. App. 5th at
14 1131. Certainly the Complaint does not allege facts demonstrating that USOC acted as a
15 “quasi-parent” to USA Gymnastics’ athletes. See id.
16 In contrast to UCLA’s dominion over its campus in Regents, USOC does not
17 establish and maintain the environment in which USA Gymnastics athletes live or
18 practice. Unlike student life on a university campus, it cannot be said that “every aspect
19 of [a USA Gymnastics athlete’s] life is, to some degree . . . guided” by USOC. Cf.
20 Regents, 4 Cal. 5th at 625. The Complaint therefore does not support the existence of a
21 special relationship.
22 The lack of a special relationship is dispositive and warrants dismissal of the
23 negligence causes of action. Seo v. All-Makes Overhead Doors, 97 Cal. App. 4th 1193,
24 1203 (2002). See also Quigley, 65 Cal. App. 4th at 1034 (“[C]ourts should be hesitant to
25 impose new tort duties when to do so would involve complex policy decisions, especially
26 when such decisions are more appropriately the subject of legislative deliberation . . . .”).
27 No Foreseeability. Even if the Complaint properly alleged a special relationship,
28 it fails to demonstrate that the harm was foreseeable. Melton, 183 Cal. App. 4th at 532;

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1 see also US Youth, 8 Cal. App. 5th at 1131. Foreseeability is a pillar of the duty analysis
2 under Rowland and where, as here, the Complaint alleges failure to foresee criminal
3 conduct, the level of foreseeability required is “extraordinarily high.” Melton, 183 Cal.
4 App. 4th at 532; see Garcia v. Paramount Citrus Ass’n, Inc., 164 Cal. App. 4th 1448,
5 1457 (2008) (same). An “extraordinarily high” level of foreseeability is required for
6 claims involving criminal conduct because there is a “strong inference” that criminals
7 strive to conceal their wrongdoing from others. Glazer Capital Mgmt., LP v. Magistri,
8 549 F.3d 736, 746–47 (9th Cir. 2008) (“To the contrary, the surreptitious nature of the
9 transactions creates an equally strong inference that the payments would have
10 deliberately been kept secret—even within the company.”). The facts of this case bear
11 out this presumption: the Complaint states that Nassar actively concealed his abuse
12 “under the guise of providing her care and treatments necessary for [Plaintiff] to
13 compete.” Compl. ¶ 49.
14 The California Court of Appeal’s decision in Roman Catholic Bishop v. Superior
15 Court is instructive regarding the foreseeability of a third party’s criminal conduct. 42
16 Cal. App. 4th 1556 (1996). There, the plaintiff (through her parents) sued Reverend
17 Omemaga for sexual abuse and sued the church that employed him for negligence.
18 Specifically, the plaintiff alleged that the church was responsible for supervising its
19 priests, had represented that it was a safe environment for religious worship, had held
20 Omemaga out to the public as a “competent and trustworthy Roman Catholic Priest,” and
21 had negligently failed to warn the public of his dangerous propensities. Id. at 1560. The
22 court dismissed plaintiff’s claims against the church as a matter of law because (1) the
23 church lacked actual knowledge of Omemaga’s actions, and (2) the church would not
24 have known about Omemaga’s dangerous propensities because he did not have a criminal
25 history. Id. at 1565. Accordingly, the church did not owe a duty to protect the plaintiff
26 from Omemaga because the church could not have foreseen his conduct. Id. at 1565-67.
27 Here, the facts weigh even more heavily against finding foreseeability as to USOC.
28 As the Complaint acknowledges, USOC lacked actual knowledge of Nassar’s actions just

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1 as the defendant in Roman Catholic Bishop lacked knowledge of Omemaga’s. But


2 whereas the defendant church in Roman Catholic Bishop employed Omemaga, USOC
3 had no employment or other supervisory relationship with Nassar. USOC’s lack of a
4 direct relationship with Nassar meant that it had no basis, and certainly far less basis than
5 Omemaga’s employer, to foresee his wrongdoing—particularly when the highest officers
6 at USA Gymnastics purportedly engaged in a “calculated” and “ongoing concealment” of
7 Nassar’s abuse. Compl. ¶¶ 35, 36.
8 Regents, discussed above, is also instructive. In Regents, UCLA officials had
9 ample information, for months before the attack, regarding the attacker’s mental
10 instability and aggression. The university had dealt with multiple, unsubstantiated
11 complaints by the attacker that other students in his classes had made inappropriate
12 comments about or accusations of him. Id. at 614. He was involved in physical conflicts
13 at his university dorm and was ultimately expelled from university housing. Id. at 615.
14 He reported to university psychologists that he heard voices, he was diagnosed with
15 schizophrenia and prescribed anti-psychotic medication, and he began behavioral therapy
16 at the university clinic. Id. Shortly before the attack, the university became concerned
17 that the particular student “may need urgent outreach.” Id. at 616. Foreseeability was
18 manifest from these facts.
19 Here, the Complaint alleges no facts comparable to those in Regents. The
20 Complaint first states that in 2012, USOC issued to the NGBs a “SafeSport Handbook”
21 which “adopted and promulgated safeguards and safety precautions for minor athletes,
22 from the ravages of sexual abuse.” Compl. ¶ 12. The Complaint goes on to allege that
23 “Defendant USOC was acutely aware of the ravages of sexual abuse posed to minors in
24 amateur sports, for at least a decade prior to this SafeSport program being created, as they
25 were informed by former Defendant USAG President, Robert ‘Bob’ Colarossi. See
26 infra.” Id. The Colarossi allegations appear in Paragraph 56 and state that “[a]s early as
27 1999, Defendant USOC was placed on notice by former USAG president Bob Colarossi,
28 who wrote a letter to the USOC, explaining that the safety procedures and policies that

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1 USOC required USAG to follow, were part of a ‘. . . fundamentally flawed process . . .’


2 and that at USOC there was an ‘. . . apparent indifference to the welfare of young
3 children manifest in the Committee’s actions.’” Id. ¶ 56. This mischaracterizes the
4 contents and context of the letter, which is attached as Exhibit A to the Complaint.
5 The letter addressed a disagreement between USA Gymnastics and the USOC
6 “Membership and Credentials Committee”7 regarding whether USA Gymnastics’ bylaws
7 complied with the ASA requirement that any athlete, coach, trainer or other official be
8 afforded the opportunity for a hearing before being declared ineligible to participate in
9 USA Gymnastics events. 36 U.S.C. § 220522(a)(8). Colarossi repeatedly stressed USA
10 Gymnastics’ diligence in combatting any form of sexual abuse. He described USA
11 Gymnastics as a “leader” in protecting athletes from sexual abuse and stated that the
12 NGB has “investigated every charge and processed each complaint in an effort to protect
13 the children who put their faith in us,” and that USA Gymnastics had spent hundreds of
14 thousands of dollars on such investigations. Compl. Ex. A. Colarossi did not suggest
15 that USA Gymnastics had substantiated any allegations of sexual abuse; instead, he
16 emphasized the effectiveness of USA Gymnastics’ procedures in addressing such
17 allegations. Regardless of whether Colarossi’s description of USA Gymnastics’ policies
18 and practices was accurate, the letter advised USOC that USA Gymnastics was both
19 diligent and aggressive in pursuing allegations of sexual abuse. This information is
20 contrary to, if not the opposite of, the inference the Complaint seeks to draw, namely, that
21 USOC knew that USA Gymnastics was permitting its “sexually abusive staff” to remain
22 “in contact with minor children.” Compl. ¶ 56. Certainly, the Colarossi letter did not
23 mention Nassar or make his abuse highly foreseeable to USOC.
24

25
7
26 Although not necessary to the resolution of this motion, the USOC notes for context that
the Membership and Credentials Committee was a volunteer group comprised of athletes
27
and representatives of NGBs, and a representative from USOC. The committee was
28 disbanded in 2003 and its functions are managed by USOC staff with relevant expertise.

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1 The Complaint’s failure to sufficiently allege foreseeability is dispositive and


2 warrants dismissal of the Complaint’s negligence-based claims. See Melton, 183 Cal.
3 App. 4th at 536; Roman Catholic Bishop v. Super. Ct., 42 Cal. App. 4th at 1565-67
4 (church’s lack of knowledge regarding priest’s propensity for sexual abuse was
5 dispositive for finding lack of duty).
6 The Burden on USOC of Taking Further Preventative Measures Was
7 Substantial. Like foreseeability, “the extent of the burden to the defendant is a “crucial
8 consideration[]” in determining the existence and scope of a duty. Castaneda, 41 Cal.
9 4th at 1213. In contrast to the minimal foreseeability of Nassar’s misconduct, the burden
10 on USOC to oversee the activities of each NGB employee and volunteer would be
11 substantial. USA Gymnastics alone has over 174,000 athletes and professional members,
12 and over 25,000 professional instructors and club members, and it is just one of 50
13 NGBs. Compl. ¶ 20; see Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v.
14 Akins, 926 S.W. 2d 287, 290 (Tex. 1996) (“[T]o place a duty on [Defendant] to screen
15 adult volunteers about whom it has no knowledge and over whom it has little or no
16 control would be a tremendous burden. There are about 130,000 units nationwide run by
17 approximately 1,300,000 adult volunteers.”). Further, Congress required that the NGBs
18 “independently decide[] and control[] all matters central to” the governance of their sport.
19 36 U.S.C. § 220522(a)(5). Imposing on USOC a requirement to oversee all NGB
20 employees and volunteers would run counter to this congressional intent.
21 The Complaint Also Fails to Allege a Breach of any Duty
22 Because the Complaint has not sufficiently alleged a duty as to USOC, it cannot
23 plausibly allege a breach of that duty. Indeed, the Complaint simply alleges that
24 “Defendants” (collectively) failed to meet various legal duties. See, e.g., Compl. ¶ 63.
25 These allegations are legal conclusions and fail to identify any specific conduct by USOC
26 giving rise to the alleged breach. See Garcia ex rel. Marin v. Clovis Unified Sch. Dist.,
27 627 F. Supp. 2d 1187, 1208-09 (E.D. Cal. 2009); Del Castillo v. PMI Holdings N. Am.
28

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1 Inc., 2016 WL 3745953, at *16 (S.D. Tex. 2016) (“The only fact alleged in support of the
2 element of breach is the explosion itself, but this is not sufficient” because “[t]he Court
3 cannot infer breach, much less proximate causation, from the fact of injury alone.”).
4 The Complaint Fails to Allege that USOC Proximately Caused
5 Nassar’s Abuse
6 The only allegation in the Complaint touching on causation is the general and
7 vague assertion that USOC’s failure to “adequately train and supervise all staff” or its
8 failure to “adopt and implement safety measures, policies and procedures” fostered “an
9 environment where such abuse could continue to occur.” Compl. ¶¶ 65-69. Such
10 conclusory allegations of causation are inadequate. Vizcaino v. Areas USA, Inc., 2015
11 WL 13573816, at *7 (C.D. Cal. 2015). This is particularly true in light of the fact that
12 Nassar was retained by USA Gymnastics, a separate organization. Compl. ¶ 27. The
13 Complaint does not indicate how changes in USOC’s policies and procedures supposedly
14 would have affected Nassar’s conduct.
15 There is also no basis to infer that more or different USOC policies would have
16 deterred Nassar, because criminal actors who are undeterred by the threat of criminal
17 sanctions are unlikely to be deterred by corporate policies or training. See, e.g., Flores v.
18 Cty. of L.A., 758 F.3d 1154, 1160 (9th Cir. 2014) (“If the threat of prison time does not
19 sufficiently deter sexual assault, it is not plausible to assume that a specific instruction
20 not to commit sexual assault will provide such deterrence.”); Flores v. AutoZone W., Inc.,
21 161 Cal. App. 4th 373, 385 (2008) (dismissing theory that an employee’s physical attack
22 of a customer was proximately caused by insufficient training). The Complaint’s failure
23 to sufficiently allege causation offers a third, independent basis for dismissing the
24 negligence claims.
25 The Complaint’s Negligent Supervision and Negligent
26 Hiring/Retention/Training Claims Are Inapplicable to USOC
In addition to all of the above deficiencies, the Complaint’s negligent supervision
27
and negligent retention/hiring/training causes of action are inapplicable to USOC because
28

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1 Nassar was not USOC’s employee or agent. See Noble v. Sears, Roebuck & Co., 33 Cal.
2 App. 3d 654, 664 (1973) (holding that there can be no liability for negligent supervision
3 “in the absence of knowledge by the principal that the agent or servant was a person who
4 could not be trusted to act properly without being supervised”) (emphasis added); Evan
5 F. v. Hughson United Methodist Church, 8 Cal. App. 4th 828, 837 (1992) (“[T]he theory
6 of negligent hiring here encompasses the particular risk of molestation by an employee
7 with a history of this specific conduct.”) (emphasis added).
8
D. The Fifth Cause of Action Should be Dismissed Because the Complaint
9 Alleges No Fiduciary Duty
10 The Complaint fails to sufficiently allege any factual basis to infer (1) the existence
11 of a fiduciary relationship creating a duty; (2) a breach of that duty; and (3) damages
12 proximately caused by that breach. City of Atascadero v. Merrill Lynch, Pierce, Fenner
13 & Smith, Inc., 68 Cal. App. 4th 445, 483 (1998) (elements of claim).
14 The Complaint advances the theory that USOC was a fiduciary because it was a
15 “mandated reporter” under the California Reporting Act, California Penal Code section
16 11165.7. 8 Compl. ¶¶ 108, 19. However, USOC is not a legally “mandated reporter”
17 under the plain language of that Reporting Act. The Reporting Act contains a
18 comprehensive list of legally “mandated reporters,” such as athletic coaches, therapists,
19 and child welfare service workers, all of whom are required to report known or suspected
20 sexual abuse. None of the roles or occupations listed in Section 11165.7 corresponds to
21 USOC. In fact, a mandatory reporting requirement can apply only to an individual, not to
22 an entity. See Cal. Penal Code §§ 11166, 11165.7. Thus, the category of legally
23 “mandated reporter” is inapplicable to USOC. And even if USOC could be a legally
24

25
8
26 The California Reporting Act was amended in 2000 to replace the term “Childcare
Custodian” with “Mandated Reporter.” P.S. v. San Bernardino City Unified Sch. Dist.,
27
174 Cal. App. 4th 953, 963 (2009). Nevertheless, the Complaint occasionally uses the
28 term “Childcare Custodian” in place of “Mandated Reporter.” Compl. ¶ 108.

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1 mandated reporter, it would not then automatically become a fiduciary. See generally
2 Wolf v. Super. Ct., 107 Cal. App. 4th 25, 30 (2003) (describing basis for fiduciary duty).
3 Given that the Complaint fails to establish a fiduciary relationship, the Complaint
4 necessarily fails to allege breach of a fiduciary duty or that such a breach caused
5 Plaintiff’s damages. Accordingly, the Fifth Cause of Action should be dismissed.
6
E. The Sixth Cause of Action for Constructive Fraud Fails for the Same
7 Reasons as the Breach of Fiduciary Duty Claim
8 Constructive fraud requires (1) a breach of a fiduciary duty; (2) non-disclosure of
9 that breach; (3) intent to deceive; and (4) reliance resulting in injury. Prakashpalan v.
10 Engstrom, Lipscomb & Lack, 223 Cal. App. 4th 1105, 1131 (2014). Because the
11 Complaint fails to allege a breach of a fiduciary duty, this claim fails as well. Moreover,
12 the constructive fraud claim is subject to the heightened pleading standards of Federal
13 Rule of Civil Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103–
14 04 (9th Cir. 2003) (even “[i]n cases where fraud is not a necessary element of a claim, a
15 plaintiff may choose nonetheless to allege . . . that the defendant has engaged in
16 fraudulent conduct,” in which case, Rule 9(b)’s heightened pleading requirement must be
17 met). To satisfy Rule 9(b)’s heightened standard, “the pleadings must state precisely the
18 time, place, and nature of the misleading statements, misrepresentations, and specific acts
19 of fraud.” Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (emphasis added),
20 overruled on other grounds, City of Dearborn Heights Act 345 Police & Fire Ret. Sys. v.
21 Align Tech., Inc., 856 F.3d 605, 616 (9th Cir. 2017); SEC v. Yuen, 221 F.R.D. 631, 634
22 (C.D. Cal. 2004). Here, the Complaint does not identify any misstatements,
23 misrepresentations, or other acts of fraud by USOC, nor does it specify the time, place, or
24 nature of any such acts. The Complaint’s conclusory fraud allegations are insufficient to
25 survive dismissal. Compl. ¶ 136 (alleging that “Defendants USOC, USAG, MSU,
26 PENNY, PARRILLA, and and DOES 1 through 500” acted “with the intent to conceal
27 and defraud”); ¶ 139 (basing claim off of “the fraud of Defendants USOC, USAG, MSU,
28 PENNY, PARRILLA and DOES 1 through 500”); Warren v. Fox Family Worldwide,

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1 Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (the mere allegation that a defendant acted with
2 a particular state of mind is a conclusion, not a fact, and must therefore be disregarded on
3 a motion to dismiss).
4
F. The Complaint’s Second Cause of Action for Violation of Masha’s Law
5 Is Inapplicable to USOC
6 Masha’s Law (Child Abuse Victims’ Rights Act, 18 U.S.C. § 2255) is a federal
7 statute that creates a civil cause of action for victims of certain criminal offenses against
8 the perpetrator and those who directly aided and abetted him. Doe v. Liberatore, 478 F.
9 Supp. 2d 742, 754-6 (M.D. Pa. 2007); see also Doe v. Schneider, 2013 WL 5429229, at
10 *10 (E.D. Pa. 2013) (for defendant to “be liable under CAVRA, the Plaintiff must
11 demonstrate that . . . the defendant knew the offense was being committed; and . . . the
12 defendant acted with the intent to facilitate it.”). Here, nothing in the Complaint suggests
13 that USOC “knew the offense was being committed” or that USOC “acted with the intent
14 to facilitate it”; to the contrary, the Complaint acknowledges that USOC was unaware of
15 Nassar’s misconduct while it was ongoing. Thus, the Complaint fails to allege aiding and
16 abetting liability. Liberatore, 478 F. Supp. 2d at 754-6. The Masha’s Law cause of
17 action is completely meritless and should be dismissed out of hand. See M.A. ex rel. P.K.
18 v. Vill. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1054 (E.D. Mo. 2011)
19 (dismissing Masha’s Law claim where plaintiff’s “allegations. . . d[id] not describe the
20 specific intent required for aiding and abetting under § 2.”).
21 G. The Complaint’s Third Cause of Action Does Not State a Claim of
22 Intentional Infliction of Emotional Distress as to USOC
The Complaint contradicts its own allegations that USOC committed intentional
23
infliction of emotional distress (“IIED”). Specifically, the Complaint asserts that all
24
defendants are liable for IIED because they (1) put Nassar in a position of authority; and
25
(2) failed to report Nassar’s misconduct. Compl. ¶¶ 94-95. Yet Plaintiff acknowledges
26
that USA Gymnastics, not USOC, designated Nassar as USA Gymnastics’ team
27
physician. Compl. ¶ 31. Further, the Complaint alleges that USOC did not learn of
28

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1 Nassar’s misconduct until his termination in 2015. Id. ¶ 18. While his misconduct was
2 ongoing, or even while Plaintiff was participating in USA Gymnastics, USOC knew of
3 no wrongdoing to report. Furthermore, USOC’s failure to discover or report conduct of
4 which it was unaware is necessarily neither “outrageous” nor “reckless.” See Martinez v.
5 Cty. of Sonoma, 2015 WL 5354071, at *9 (N.D. Cal. Sept. 14, 2015) (discussing elements
6 of IIED). Cf. Fernandez v. Morris, 2008 WL 2775638, at *11 (S.D. Cal. 2008).
7
H. The Fourth Cause of Action for Unfair Business Practices Must Be
8 Dismissed
9 For the reasons discussed above, the conclusory allegations underlying the Unfair
10 Competition Law (“UCL”) cause of action fail to satisfy the heightened pleading
11 standards of Rule 9(b), and thus, the UCL claim should be dismissed. Kearns v. Ford
12 Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); Compl. ¶¶ 101-103. Moreover, the
13 UCL claim fails to allege a cognizable form of relief and therefore fails to allege
14 standing. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). The
15 available relief for a UCL claim is limited to injunctive relief and restitution, not
16 damages. Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 179
17 (1999). Here, the Complaint fails to demonstrate an “actual and imminent” threat of
18 future harm, which is necessary for injunctive relief. Summers v. Earth Island Inst., 555
19 U.S. 488, 493 (2009). Nassar is effectively serving a life sentence and a new entity,
20 SafeSport, has been created to specifically safeguard against future sexual abuse. See
21 Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017,
22 S. 534, 115th Cong. § 202 (2017). Likewise, restitution is inapplicable because Plaintiff
23 did not provide USOC with any money due to an unfair business practice. Clark v.
24 Super. Ct., 50 Cal. 4th 605, 614 (2010).
I. The First Cause of Action (Sexual Harassment) Is Inapplicable to
25
USOC
26 The Complaint alleges that Nassar made sexual advances to Plaintiff, all for his
27 “sexual gratification.” Compl. ¶ 77; Cal. Civ. Code § 51.9 (elements of sexual
28

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1 harassment claim); Hughes v. Pair, 46 Cal. 4th 1035, 1044 (2009). In an attempt to hold
2 USOC vicariously liable, the Complaint alleges that (1) Nassar’s misconduct was “in the
3 course and scope of his agency/employment with Defendants” (Compl. ¶ 77), and (2) that
4 “Defendants . . . ratified the sexual misconduct of NASSAR by retaining him in
5 employment after discovering, or ignoring the facts that would have led them to discover,
6 his misconduct.” Id. ¶ 81.
7 The first theory fails because the Complaint does not allege facts to establish that
8 Nassar was USOC’s employee or agent. John R. v. Oakland Unified Sch. Dist., 48 Cal.
9 3d 438, 452 (1989) (discussing principles of respondeat superior). To the contrary, the
10 Complaint states that USA Gymnastics “was the primary entity owning, operating and
11 controlling the activities and behaviors of . . . NASSAR.” Compl. ¶ 20. As to USOC, the
12 Complaint merely asserts that “NASSAR was an employee, agent, and/or servant of
13 USAG, USOC, MSU, and DOES 1 through 500,” which is simply a legal conclusion the
14 Court must disregard. Compl. ¶¶ 33, 78; Wal-Mart Stores, Inc., 572 F.3d at 683; Swartz,
15 476 F.3d at 765.
16 The ratification theory also fails as to USOC. Since USOC never employed Nassar
17 or engaged him as agent, it follows that it did not “retain” him in either of those
18 capacities. See C.R. v. Tenet Healthcare Corp., 169 Cal. App. 4th 1094, 1110-11 (2009)
19 (ratification requires principal/agent or employer/employee relationship).
20 IV. CONCLUSION
21 For the foregoing reasons, the Complaint should be dismissed with prejudice.
22

23
DATED: July 20, 2018 COVINGTON & BURLING LLP

24 By: /s/ Mitchell A. Kamin


25 Mitchell A. Kamin

26 Attorneys for Defendant


27 United States Olympic Committee

28

26
NOTICE OF MOTION; MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES

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