7TH JUDICIAL DISTRICT COURT

SIERRA COUNTY NM
FILED IN MY OFFICE
101312016 2:44:33 PM
MARY MORA
DISTRICT COURT CLERK

STATE OF NEW MEXICO

SEVENTH JUDICIAL DISTRTCT COIIRT
COTINTY OF SIERRA

M.R. and C.R., individually and

next friend of M.A.R.,

/s/ Mary

Mora

101312016

as Parent

Pla(rtiffs,

NO D-721-CV,016-00040
v.

APPLETREE EDUCATIONAL CENTER,

BOYS & GIRLS CLUB OF SIERRA COLINTY,
nsnECCa DOW and AMELIA WILCOX,

Defendants.

DEFENDANTS' MOTION FOR PROTECTIVE ORDER

TO PROHIBIT RELEASE OF DISCOYERY DOCUMENTS
Immediately following the production of a personnel file fbr a now-imprisoned former
employee whose actions have given rise to this lawsuit, and after the Court's Order of September
13 arising out of a July 13 hearing where Plaintiff s counsel insisted he only sought to conduct

limited discovery and obtain documents directed at determining proper parties to his proposed
lawsuit, Plaintiff s counsel threatens to release the documents he has obtained to the public and
news media. Despite repeated assurances to the Court at the hearing that he did not want the
documents

to discover factual allegations to add to his proposed lawsuit, he

added extensive

factual detail quoting directly from the documents and then filed his lawsuit September 22
without tbking any depositions or adding or dropping any parties.
Defendants accordingly seek a Rule 1-026C protective order prohibiting the production
and disclosure of any documents received to date by any party, or anyone on their behalf, to
anyone who is not a parfy to this lawsuit. Defendants believe the documents produced have been

?27628.1

inisused already because detailed descriptions of their contents were added to the lawsuit that
was fi1ed, despite the assurances they were sought only to detennine proper parties. Defendants
seek

to prevent further

abuses

of the discovery process as this lawsuit proceeds, as well as to

protect the confidentiality and proper use of the documents already

produced.
\.

At the time of the document production, undersigned counsel specifically discussed with
Plaintiff s counsel that she "did not want to see these documents in the newspaper." and heard
his assent to that" so understood him to be in agreement with not producing them to third parties.

This was in the context of a continuing discussion about the media affention this lawsuit

*ur_____
__--,_-

generating. When

it

became apparent, through an exchange

of correspondence following the

September 15 document production, that Plainti{f s counsel intended to use the infonnation

obtained

to

add

to the factual

allegations

in the proposed lawsuit,

undersigned counsel

immediately and specifically objected in a letter. Plaintiff s counsel responded that he had to use

the information, or he might risk waiving the right to assert various claims or might risk
malpractice claim against

him. This argument

had not been made at the July 13 hearing, but

instead was made only after the documents were

in his possession. Excerpts from

the

correspondence are attached as Exhibit A.

The information was added despite the objection, and the lawsuit was filed on September

22 with Plaintiff s counsel not only abandoning the concept of using the information obtained
solely to determine the proper parties but also abandoning the plan to depose Defendants Dow
and

Wilcox that had been the stated predicate for fiiing his motion under Ruie 1-027. Plaintiffls

counsei now is disturbed by the media attention to this matter since the entry of the Coutc's
Order and the

filing of the lawsuit,

and especially is disturbed by comments and deniais made by

Defendant Rebecca Dow, who has been contacted repeatedly by the media because she is a

2287628

//
candidate for a state House seat in the November election. Piainti{f s counsel attached some

of

her campaign materials and made repeated references to her candidacy in his pleading, directly
putting her status at issue. This has made the claims against her and her comments about them a
topic of far more public attention than is typical in a litigated matter.

Plaintiff s counsel's justifying his use in the lawsuit of the information he obtainedl and

)
now his threat to release the documents themseives to the public and media, is in stark contrast to

the arguments he made at the July 13 hearing. He argued persuasively that he needed certain
documents and depositions only

to

determine who

to sue, and specifically to avoid

suing

innocent parties who did not deserve a "scar" on their careers or personal lives by being
associated

with having enabled a sexual predator to commit criminal acts. Plaintiff s counsel

assured the Court at least 15 times that

his only purpose in seeking the rarely-allowed pre-

litigation discovery under Rule 1-027 was to determine whether to sue any individual or entity
beyond the four he had already identified as being culpable in the proposed lawsuit he attached

to his motion.
The Court, in its questions and comments contained in the Hearing Tan!]og, Exhibit B,
and in portions of a transcript undersigned counsel has had prepared from the

officiai court audio

recording, addressed the extent of its ruling and the proper scope and use of the limited discovery
that was ordered. The Court made clear the discovery was only to be used to identify potential
additional parties, and was not to be used to provide a basis for any factual allegations. The
Court stated "fY]ou ought to be able to conduct discovery of the individuals you identified to be
abie to identily

with specificity individuals who ought to be named

as parties to the complaint."

The Court added "fY]ou can deal with causes of action in the context of identifying who the

2247624

appropriate parties to name as Defendants are, but not to discover the facts that might support
those causes of action otherwise." Id.. (emphasis supplied).
Despite the Court's admonishments and its ruling, a comparison of the factual allegations

in the proposed lawsuit that was attached to the Rule 1-027 petition and the lawsuit that was filed

shows lhat paragraphs 6 throu gh25,28h,28i,32,44, 45, andfn3, are completely new and are
based entirely on the personnel fi1e for the former employee that was produced, and that
paragraphs 29 and 39 contain new factual allegations reciting the contents of the

file.

Excerpts

from each pleading for comparison are attached as Exhibit C.

Significantly, even given Plaintiff s counsel's dispute of the concept that he could not use

the factual information in the allegations in his lawsuit, the agreement to not distribute the
documents themselves is acknowledged in footnote

on page 4 of the lawsuit he filed, where

it

is described as having been "mildly intimated." Semantics aside, PlaintifPs counsel seems to
believe he has been released from any constraints on further disclosure of the documents because
he might miss out on a cause

of action or be sued for malpractice,

as he states

in his September

27 Telter. Because he has since asserted he is going to release the documents themselves unless a

motion is filed to stop him, Defendants have been 1eft with no choice but to proceed accordingly.

This Court has broad discretion under Rules I-026 and 1-037 to control and remedy
discovery abuses. Chavez v. Bd. of Cntlr. Comm'rs, 2001-NMCA-065, fl 35, 130 N.M. 753, 31

P.3d

\027.

Under the circumstances presented here,

it would be an abuse of the unusual

discovery process undertaken pursuant to Rule l-02'7,which was on the specific assurance of a
very naffow purpose of determining proper parties, to permit Plaintiff s counsel to release to the

public and the media the documents he has obtained so far. He has described and quoted from
some of, them

2247624

in great detail in the lawsuit he fi1ed, which in itseif was improper, but he is under

no obligation to anyone to prove the descriptions or quotations ate accurate now by releasing the
documents themselves. Any release would vioiate the premise

of confidentiality that preceded

their production to him, whether it was "mi1dly intimated" or explicit.

Accordingly, Defendants request the entry of a protective order prohibiting release or

disclosure

Plaintiff

of any documents produced pursuant to the Court's Order of

s counsel was asked

September 13.

for concurrence in this motion, and concurrence was denied.

RODEY, DICKASON, SLOAN, AKINT & ROBB, P.A
By'.

/si lheresa

W.

Parrish - Electu

Lisa C. Ortega
Theresa W. Pan-ish
P.O. Box 1888
Albuquerque, New Mexico 87103

(s0s) 76s-seoo
.com
Attorneys for Defendnnts Appletree Educational Center, Rebecca
Dow and Amelia Wlcox

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of October, 20\6,I filed the foregoing electronically,
which caused the following parties or counsel to be served by electronic means, as more fully
reflected on the Notice of Electronic Filing.
Mark A. Filosa
The Filosa Law Firm
P O Box 391
Truth or Consequences,
(s7s)8e4-7t6r

NM

87901-0391

tlls@lrcl-Coml
Attorney s for

laintiffs

Clea Gutterson
Chapman and Charlebois
4100 OsunaNE, Suite 2-2A3
Albuquerque, NM 87109

[iq524?-6gaq
Attorneysfar Boys & Girls Clubs of
Atnerica

RODEY, DICKASON, SLOAN, AKlNl & ROBB, P.A

Bv ts/ Theresa L{. Pa'risk - Elec
Theresa W. Parrish

2287628.1

BRUCE HALL
P, SALAZAR
JOHN P.ilRTON
CAIHFfiINE T. GOTDAERO

JOHit

ENARD AGCO
W. ITAiK MOWERY
ELLEN T. SNFAI(
HENRY M. AOH}IHOFF
CHARLES K PURCLL
ANOREW O. SCHULTZ

smr

D.

vtD

LSLIE

EICKSBTLER
flsnil A, HOBWllz

$NOM L. EEEALE
VALERIE REGHARD EENTON
BRENOA M. SAIZ
gBIAil P.
TODD E. RINNER
CHffiLES R. HUGHSON
JOSE R.
MCHAET E. MEilPEB
I,ARGOI A. HEFLICI(

BUlTil

rcRooN

OF C&INSEL
ROBERT M. ST. JOHN
MARK K SAMS

ATTORNEYSAT LAW
2O1 THIRD ATREET NW, SUITE 22OO
ALBUAUERQUE, NEW MEXICO 87102

RJCHM
OEWfi

JFFREY M. CROASDE1L
NIXOT'I

JEFFREY L LOWRY
R. TRAOY SPEOULS

CN'STINA AOAMS

BEFHARD S. ROOEY (1858n927)

PEARCE A RODEY {1889i958}

ALAU }IALL
SETH I". SPARKS
ORTEGA
LISA SW
ECELYN C DRENNAN

ooN L BCUgOil 0s,6-1SS)

wLLtAM A SLOAN (t910-183)

TELEPHONE (5O5) 76+5300

JACXSON G. aKrN (1el$200)

JOHfl D. RO88 re4-201{)

FACSIMILE (505) 76&,7395

TERRff

MINEilR

MORdN

frNfHIAA LOEHR
JGN tr PATTERSON

www.RoDEY.COM

AffiNNON M S}IEffiELL

DOMLOB. rcNTHEIMEF

M.

PATflrcK tr 6HAY
cHmLES ?q" SEISERT lll

P.O. BOX l88B

ALBUQUERQUE, NEW MEXIGO 87'03

GLNN A. BEARO
ROBERT L. IUCERO
OEN]* il- CHANEZ
FE*RY E. BENDtrI(sEil il}
MVOP- BUCHHOLTZ
TYITB IV. CUFF
WTA$I E. STAi/IBAUGH

C.

b#rcNEUYER

KRY5AE A. THOiIAS

w 8uffililo
M#RHAPOSCA

SUNNYJ.

RODEY, DTCKASON, SLOAN, AI{IN & ROBB, P, A.

vlEls

XUFT 8. GILEERT

EWE

NELSON FFAHSE
1HERESA W. PARRIIIH
PAUL R. KOLLER
CHAELES J. VTGIT
THOMffi L, STAHL

tAnoN c.

$NTAtr OFFICE
13 EAST MARCY STFEET, SUITE 2M
6ANTA FE, NEW MP(ICO 8750i.2046
P.O. BOX 1387
sAa{rA FE. NEW TVEXICO 87S+1357
TELEFHONE (505)

JESSICA R.
STEPHP*IIE I.- UTMEN
LUIS G CARF{TSCO
JUAN M, lvlAR[IJEz
TAYLOR C. ANGAFA

September 20,2416

i{C}n& J BESqIA

Hsoq

FGIM|LE (5051Str{S?
WR'TffiS

DIRECT NIJMBER
{50s) 788"7?02

Email: filosa@zianet,com
Mark Filosa, Esq.
The Filosa Law Firm
P. O. Box 391
Truth or Consequences,

RE:

NM

87901-0391

M.R. v Appletree Educational Center: D-721-Cy-2016-00040

Dear Mr. Filosa:

In response to some matters you raise in your letters of Sept. 15, 16 and 19, we agree that you
*uy frl. your lawsuit as an amended complaint in the pending matter of your previously-filed
petltion tirat is assignsd to Judge Sweaza. Please remember, however, that pursuant to the
judge's order, the discovery that was allowed by him was allowed solely to address the issue of
the naming of varioue defendanls, and not as to the issue of any underlying facts or allegations.

Accordingly, I beliwe it would be improper, for exarnple, for you to put anything in the pleading
you submit that addresses information you obtained from the personnel file or other documents
we were ordered to produce and that you received on Sept. 15. This would include but not be
limited to the matters you discrss regarding Alejandro Hernandez and his employment in your
Sept. 19 letter. Please do not include any such information or references in the pleading that you
fi1e.

Exhibit A
22438,24.1

THE FILOSA LAV/ FIRM

ATTORNEY AND Cot'NsELoR AT LAw
501 Men'r SrRrer - Posr Ornce Dnawen 391

"Inurs on Cowsrquqn

lrj

NBw Mpxrco 87901

(s75)894-7161

MARKA. FILOSA

September

21,

FAx (s75) 894-757A

2016

VIA EPIAIL - Wa$ishqtodey.con

?heresa Parrish
20L Third St. NW, Ste. 2200
Albuquerque, NM 87102

RE: M,R. v. Appletree Educational

D-72l--CV-2015-00040
Our File Numbert L5026

Center

Dear Ms. Parrish:

I have your letter of Sept.ember 20, 20i-6. I respectfully

disagree with your conclusion that f cannoL refer to discovery
materials in my complaint. The language your referenced letter
refers Eo is discovery reguests. The discovery reveals your
cl-ients knew of problems with Ehe perpetrator before the
molest,ation. when r received the materials, you admonished. me
Lhat Lhe materiaLs showed that there was a background check. you
obviousry Lold me that so r would not include that allegation in
my complaint. ?he Defendants cannot have it boEh ways. rf the
materials exonerat.e as you argue you want reflected in my
Complaint, I also get to take not,ice of whaE, they did know.
with absolute respec! to you, you cannot possibry expect me not
Lo include information whi-ch disputes your client,s posiLion that
Ehey had absorutery no notice of this fellow and did. everything
they could t,o stop him. Thus, f have to reference that fict
about the March incidenL and April reprimand. in my
complaj-nt. Notwithst,anding Lhe fact thal Ms. Dow knowing about
the matter has to be part of the suit, as an accommodation to
you, r will agre at t,his time only not to att,ach new materials
to the pleadings as exhibit.s to the complaj-nt. This is only for
purposes of the Complaint at this tlme.
No doubt you also know r cannot do what you ask as r would be
courting a malpractice claim if r did not plead a cause of action
thaL I know exists. I assume you would want me to amend my
complaint, later. ff r did this, r may werl be waiving claims I
know exist;

RODEY, DICKASON, SLOAN, AKIN & ROBB, P' A'

AAFON C. VIEIS
(UAT B. GILBEi1

BNUCE HAIL
JOHN P. SATAZA'
JOHI] P. 8UB'ON
CATHIFISS T. GOLEEEFE
GDWARD BJCCO
W. MANX MNENY
ELLEN

NICX BEITIEB
JUSTIN A. IIO8WT2
SANOBA L. AEEFLE
VALEFIE BEIcHARD OENTO}I
8ffEilOA M. SAIZ
BRIAN P, BE}CX
TOOD E. AINNER
CHAffLES R, EUcHSON
J6SE fi. 3I-AI{TON
MICHAEI , XAEMPEs
MARdfr A. HCFLICX

T. SI(UK

BENAY M. BOHNHOFF
CHARLS (. PUNCI

ANDNEWS, SCHUL'IZ

scon

D. 60RooN
FAANSS

N4I;ON

TflMESA W. PA8NISH
PAUL B. XOLI.Efl

CHAFLESJ. VIS'L
THOMAS L. S'IANL
SAUD W. BUNTING
LlgLlE MCCAFTHY APo0ACA

JEFTREY M. &OA$OAL
SUNNY J. TIIXON
JEFFNEY
,IRACYL, LOWAY
SPEOULS
f,.
DONALD A, MOIINHHMEN

CHAVg

ORTEGA

JOCiLYN C. 9flENNAN
MIOTAEL

J.

I(RYSILE A' THOMA3

ALEN A. SEARO
NOEEET L, IUCEBO
DENISE M. CIIANEZ

TEBFY E. SENDICTSEN

P.O. BOX 1884

ALBUQUERQUE, NEW MEXIGO 87103
\MA'1/V. RODEY.COM
TELEPHONE (5O5) 765-5900
FACSIMILE (5O5) 768-73s5

[I

DAVID P. BUCHHOLE
TYIEN M. CUFF
MELAIIIE 8. STAMEAUGH
SHAtrNON M. SHEBBELL

OF CNNSEL

noBmT M. sr. JollN

MEX

K. AOAMS
FICHANO C, MNAH
JO SAX'ON gHAYER
OEMN M, MOR6A},{
PAIEICN M, SUY
CHANLTS A. SEIBFT III

cBrs1lllAAo irs

CYNTHIA A. IOR]F
.]OHN N. PATIESOX

8ENA80

S. iODEY na6!-1827)
pa8cE c. RoDEY lla80-l95El

DON r. DTCKAEON [906-19gl

UILBM A, SLOAN t1916-10931
JACXSON G. AKN ll8l3.2010l
JOHN O. f,O08 {1944"2014}

uo"-o]I*"o,

JESSICA R. TEREAZAS
SIEPHANIE L LA?MEN
LU|S G. CA8AASCO
JUAN M. MABOUEZ
TAYLON C. ZANGARA

ALAN HALL
SEB L. S'^fl(S
LISA

ATTORNEYS AT LAW
2O1 THIEO STREET NW SUITE 22OO
ALBUQUERQUE, NEW MEXICO 871 O?

BRESCIA

September 21,201.6

] 18 EAST MAflCI STA{Ef' SUIIE 2OO

SANTA E, ilEW MEXCO 87601-2046
P.O.80X 13s?
SANTA FE. NEW MEtrO 8760I.I357
rErEPlroN t6051 96{.3900
FACSIMILE {5051 951-39d2

WHIIEXS DEECT NUMEEh

1505)

748-7:02

TPAffiSH@RODEY.COM

Email: filosa@ziangt.com
Mark Filosa, Esq.
The Filosa Law Firm
P. O. Box 391
Truth or Consequences,

RE:

NM

8790i-0391

M,R, v Appletree Educational Center; D-7 2l.CY

-20

6-00040

Dear Mr. Filosa:

In response to youf letter of today, attached please find the hearing log for the July 13 hearing itt
judge's
this matter, for your reference for the basis for my comments about the scope of the

ruling and order.

Very truly yours,

RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A.

By:

-Sj$r#^

il

f*"'*"1'

Theresa W. Parrish

22A4601.1

Theresa Parrish
From:
Sent:
To:

Mark Filosa <filosa@zianet.com>

Wednesday, September 2l,?ALE 3:39 PM
Theresa Parrish

Cc:

'Office'
RE: Appletree/ltr to Mr. Filosa

Subject:

Tad,
I did not ask any questions in a deposition. The Judge was talking about me asking questions in a deposition. The
information provided to me was given within the frame work of the order; nothing in the order prevents me from
alleging things in the complaint. I cannot ignore materials provided pursuant to the order; everybody knew my position
was that your clients knew before (and even if they did not, we still have a cause of action). I plan on filing the suit
tomorrow in this cause number; if I leave out anything I may be barred from filing, if you want to prevent me from filing;
I suggest you obtain a TRO.
I assume I have your approval to amend the complaint, and will so note tomorrow, so let me know if you are
withdrawing that consenfi if you withdraw it, I will probably file a separate suit.

I honestly do not believe I am doing anything incorrect.

Mark A. Filosa
The Filosa Law Firm
Post Office Drawer 391
Truth or Consequences, New Mexico 87901
(s7s) 8e4-7 161 (office)
(s7s) 894-7s7a (Fax)

STATE OF NEW MEXICO

STATE OF NEW MEXICO

SEVENTH JUDICIAL OISTRIOT COURT

SEVENTH JUDICIAL DISTRICT

COUNTY OF SOCORRO

HoN. KEVIN R, swEAzEA

oivrstot'tttt

MONITOR, D. DENISE LUJAN

GA$E:
CAUSE

(-X

\ Y
* SO\\,

M R ET. AL V. APPLETREE EDUCATIONAL CENTEF' ET

AL

NO.: D-72t-CV-20{6"40

HEARING: VERIFIEtr PETITION TO TAKE DEPOSITION BEFORE ACTION

ATTORNEYS: P. MARK FILOSA / R. THERESA PARRISH
STARTING TIME; 1 1:24:56 AM
ENDING TIME: 12:27:18 PM
NOTE: THIS LOG lS NOT THE OFFICIAL RECoRD' THE OFFICIAL
RECORD IS THE CD. THE LOG IS CREATED TO ASSIST IN LOCATING
INFORMATION ON THE CD. THE LOG IS NOT THE VERBATIM RECORD
OF THE PROCEEDINGS .

LEGEND;
J - JUDGE DEX. DIRECT EXAMTNATION BW. BENCH WARMNT P.
PLAINTIFF'S ATTY XEX - CROSS EXAMINATION OBJ - QEJECTION D .
DEFENDANT'S ATTY
VD. VIOR DIRE EMMINATION O. OVERRULED PLF - PLAINTIFF
RB - REBUTTAL EXAMINATION $ -SUSTAINED
DFT.DEFENDANT RDEX - RE-DIRECT EXAMINAT]ON
JVR, INVOKE THE RULE W1-WITNESS NO. RXEX. RE.CROSS
EXAMINATION M. MONITOR

r:Im$AFr

.Ii.!i- I'.qj HI!$

Exhibit B

TOCD CR1

CAUSE

NO.: D-72{-CV'2015'40

HEARING: VERIFIED PETITION TO TAKE

DEPOSITION

BEFORE ACTION
ATTORNEYS: P- MARK FILOSA, R'THERESA PARRISH

E'i!i EdiNi' ircjiNTEUtTW\$"tHH"$H['iTEii CiN G"iu'i]t

oFmn. HERNANDEZ; KNoWLEDGE oF orHER oASE; TALK

iidF6 il

TO CLIENTS AND MAKE SUREIF EITHER HAVE CONCERN.

FRIENDS;A couPlq
ls; Nor FRIENDS;A
ili5,Eow
Pow is;:N
Ki\oWWHo MS,
iAi:So Ki\iotv'Wiio
wEeKs AGO, EATING LUNCH AT CAFE DOWN THE STREET;
MADE COMMENT ABOUT ANOTHER CASE INVOLVING

Aipr-=rnEe AND I wAsNt suRE WHAT SHEWAS TALKING

NAOUT; WE DIDN'T TALK ABOUT ANYTHING BUT MADE THAT

COf,rrndfUf lN PAS$[NG; NO DISCUSSION BUTWANTED TO
ioirur rr our; I HAVE tto corucenN BUT lr Ypu oR cLlENTs
ARE CONCERNED

pRdHtEi\,illiTiH

H' $Ai5r'i'f' SXiij Tii"Af iiilif"i'ii5

PRELIMINARY;WE HAVE NO PROBLEMS OBO PLF

CONCERN: WONBER IF YOU SHOULD TALK BY PHONE;

DON'TWANTTO MAKE ADVERSE RULING;

OiUV; SUSPEcT

YOU MAY BE TAKING UNDERADVISEMENT;

TEU. YOU NO PROBLEM FOR THIS MATTER; ONE

piruutruRRv MATTER; lF DENIED THEN wlLL FILE LAW$ulr;
iCAT,T

wi

HNVE NO PROBLEM ATALL; I CAN ASSURE YOU

HAVE NOT HAD OFPORTUNITYTO SPE"AKWITH MS' DOW

Cor,'rcrnt.ltruc D<ySAND DoN'T's; No PRoBLEM wlrH lssuE

BIG DEAL ABUT WANTED ALL TO KNOW

D-721-CV-2016-40

7113t2016

TOCD CR1

ro couNsEL
vERywELL; woNDERFULWoRKING

HNE-RIiDAoTED LETTERS; coPlEs

Counl xttow

RELATIONSHIP; REPRESENTING A CORPORATE OR AN

ENTIfi RATHER THAN PEOPLE; AS TO R RESPONSE
YEARS AGO, CLASSMATE OF MY KIDS;
DIED; DID THAT PERSON'S DIVORCE; SAW THEM AT THE
FUNEML;AFTER DIVORCE, THE DECEDENTS FATHER HAD
LEFT; CHILD CAME TO ME AND SAID I DIDN'T KNOW lWAs
ADOPTED; WENT THROUGH DIVORCE PAPERS, 3 CHILDREN
BORN oR ADOPTED; $HE THOUGHT ADOPTED; T0LD HER
SHE WASN,TADOPTED;POINT IS WE hIAVE TO BE CAREFUL
WHEN FILING I-AWSUITS; TAKE oFF WITH A LIFE OF THEIR
OWN; WANT TO BE CAREFUL WHO I NAME; SEXUAL ATTACK;
CORPORATE AND INDIVIDUAL PERSONS; l'M NOT
INTERESTED IN FILI NG AN EMOTIOML LAWSUIT AGAIN$T
SOMEONE; DON'T WANT TO WRONGLY SUE SOMEONE;
ALLEGATION DEVASTAT}NG TO CAREER EVEN IF THEY
DIDN'T DO IT

TO COVER EVERYTHING BEFORE I SUE THEM; TRYING To

PROTECT PEOPLE; EMOTIONALLY BATTENED CASE;ONE lS
RUNNING FoR OFFICE; TAKE A LOOK AT STATE RULE 1-027;
INGLUDED FEDEML RULE 27; STATE S VERSION AI{D
INDICATED DIFFERENCES; PROCEDURE PROPOSED IS
BEING SAID NoTAPPROPRIATE; JUSTICE WiLL BE SERVED
IF GRANTED; DON'T KNOWANYTHING ABOUT WHERE
PERPETMTOR WORKED PRIOR; COMPARE

PRELIMINARY MATTERS; f $ll PROVIDING TO COURT, I'VE

REDACTED MANYTHINGS. LETTERTO MS. DOW;ON PAGE 2;
INTERESTED IN BOYS,AND GIRLS. GLUB; APPLETREE;
GRANT; INSURANCE; GoT oNE INSURANCE P0LICY FROM
BOYS, AND GIRLS, CLUB; EMPLOYMENT APPLICATION;
INDICATE I WILL BE FILING WHAT'S HEARD TADAY; AS To
LETTERS

SATISFIED NOT GETTING lNFo;AS TO RULE 1-027

AHI'IC ACCUSED OF HAVING SOMETHING TO DO WITH THIS

ADMITTED CHILD MOLESTER IT WILL HAVE
REPRODUCTIONS ON ONSS CAREER;IT,S WRONG FOR ME
TO GO OUT AND JUST NAME PEOPLE; MET A, B' C;

D-721-CV-20104,0

7n3nu6

TOCD CR1

11:4?:?5 AM J
11:33:34 AM P

FOR INSUMNCE;OF COURSE: FOR THESE GMNT$ YOU

MUST HAVE INSURANCE; I NEED To TELL WHICH ENTITIES
ARE RESPONSIBLE;THE LETTERS SHOW EFFORTS ITIIADE;
WHERE IS EFFORT REQUIRED IN RULES; RSP'S ARE
PI-AYING A SHELL GAME;JUSTASKING FOR INFO ON
GMNTSAND ENTITIES;
WHAT DOES KNOWING ABOUT GMNTS HAVE TO DO WITH
ENTITIES BEING RESPONSIBLE
TRYING TO FIND OUT WHO EMPLOYED THIS MAM AS I
UNDERSTAND, GET A GMNT YOU NEED TO HAVE THEM DO
SOME DUE DILIGENCE ON THE EMPLOYEE AND
REQUIREMENTS FOR INSUMNCE; I CAN START NAMING A
BUNCH OF PEOPLE OVERTHERE BUT I DON'TWANTTO DO
THAT; JULY 27 TH LETTER OF WHAT ASKING FOR; ALL IS
DISCOVEMBLE SOONER OR LATER IJUST DON'TWANTTO
NAME SOMEONE I DON'T.NEED TO;

1.1:45:46 AM

11:46:01AM

11:47:54 AM
11:48:42 AM P

11:49:39 AM P

11:51:14 AM P

11r52:43 AM J
11153:04 AM P

11:54:t1AM

11:54:20 AI\

1:54:29 AN

WHAT WANTING TO IDENTIEY; SPECIFIGALLY

APPIICATiON; WHO WORKING FOR AT THE TIME; ASKING

D-721-CV.2014-40

AS TO PAGE 4 OF COUNSEUS BRIEF;

CANT. BE USED AGAINST ME; NOT FISHING EXPEDTTION; HE
ADMTTTED HE DID THIS; HE WAS EMPLOYED BY THE RSP,S;
CLEARLY THEY ARE RESPoNSIBLE; lN BRIEF lS LIMITED
POSITION ON FEDERAL RULE 27; BLUE DOT;SECOND
MATTER
SEMiNAR GiVrNnaour oHANGES stNcE DEALING wlrH
FEDERAL LAW; PAGE 1 OF THE PAPER; INDICATES RULE 27
MOVEMENT; AS TO SC CASES
DON'T WANT TO NAME TO MANY PEOPLE; tT WILL BE
DEVASTATING; TWO DOCUMENTS; MAJOR}TY AND MINORITY
RULE; EXPANDING RULE27 BEING INCREASED IN FEDEML
COURT;A SEMINAR IN 2OO4; MOVEMENTTOWARD
INCREASING 27; WORRIEDABOUT RSP.S EMPLOYEES
WITHOUT ATTORNEYS;

Ur.,lijHHdT;\!'ii5"Y6iii{}iEtitiH$f"To"iQ'ENTiFfcdRfEct^

"'"

"

PARTIES; SCOPE OF WHAT YOU SEEK IS DESIGNED

BROADER
LOOKAT PROPOSED COMPLAINT, IWANTTO FIND AUT
WHO'S RESPONSIBLE FOR EMPLOYEE, HIRING, NEGLIGENT
HIRING AND TRACING; FEDEML RULES TALKABOUT IS THE
INFO GOING TO GO AWAY;TREND lS ToALL0W EXPANDED
DISCOVERYAND I'MTRYING TO ELIMINATE PEOPLE; HAVE
RULE 11 BASIS
IDENTIFIED INDIVIDUALS OR ENTITIES FOR SUIiE
ONLY THE ONES ATTACHED TO COMPLAINT;
APPLETREE AND BOYS

7h3pa16

TOCD CR1

11:54;35 AM P

ANDmO

OTHERS; DO HAVE THE FOUR; R $TARTS OFF

WTH P LEADING COURT INTO ERROR; lF I LOOSE, Go

ALONGAND THEN NAME.OTHER PEOPLE;THISWILL BEA
SCAR;

WHO ARE IOU WANTING TO DEPOSE

AIUIEilA WTCOX AND REBECCA DOW AND SUBPOENA
DOCUMENTS; THANK YOU

T'ii66:i,S'Ai\/l
11:56:14 AM P

I ALSO HAVE A HAND OUT OF THE MAIN I I h,M$ I IiI(jH I tsU;

APPRECIATE THE POINTS P HAS MADE IN TRYING NOT TO
CAUSE A SCAR FOR INDIVIDUALS OR NAMING THOSE THAT
SHOULDN'T BE NAMED; HOWEVER, RSP'S DOWAND
WILCOX; BOTH EMPLOYEES OF APPLETREE; UNDER OUR
sYsTEMFOR RULES OF PROCEDURE,iNTC PLEADING; P
PROPOSED COMPLAINT VERY SPECIFIC ALLEGATION; RULE
27IS SUPPOSE TO BE U$ED IN INSTANCES WHERE
EVIDENCE IS A RISK OF LOSS OR DESTROYED; NO
EVIDENCE THATTHAT IS GOING TO HAPPEN; MS. DOW lS
RUNNING FOR OFFICE; SITUATION WHERE RULE 27 TO BE
USED IN L]MITED CIRCUMSTANCES;

Rdi,rT' $iTU[ii 0i{$TilAf id"Fo iiu iili*

FOR DISCOVERY;WITH THE FRAMEWORK PRESENTED IN
PROPOSED COMPLAINT;HE CAN GETTO INFO HE NEEDS
WITH 4 PARTIES NAMED; I AM HERE OBO DoW AND WILCOX;
PREMATURE TO DIG INTO GRANTS REQUIREMENTS FOR
NEW ENTITIES; NoTAPPROPRIATE; LIMITS oN RULE;
SIGHTEB EXTENSIVELY TO FEDEML COURT; ARTICLE
FROM 2011; I DON'T' SEE ANY TREND lN RULE 27 TO ALLOW
DISCOVERY BEING PROPOSED HERE; CASES SITED ARE
FOR PROPERAPPLICATION FOR RULE

i b6i\it"i,iiiUW'AiioU?'d;

12:00:57 PM

STARTED DEVELT]I'ING Lts I ItsI( I U IJTJVV, VVI

TO PRESERVE EVIDENCE; NO RI$KOF EVTDENCE BEING
LA$T; POLICIES ARE WHAT THEY ARE; PROVIDE FoR
COVEMGE; PONT IS INDEED AS WE HAVE ARGUED; RULE

27 LIMITED FoR CERTAIN TYPES oF DI$OOVERY; INDICATED

TCI P THAT WE UNDERSTAND HE HAS I.AW SUIT; WILL
DEFEND AS APPROPRIATEI

12:06;07

PI!

"H***-

12:07:07 PM

12:07:53 EM J

i2:07:iili'PlUi

D-721-CV-2016-40

P HAS PROVEN HE IS ABLE TO GET TO INFO; PAGE 3 OF

BRIEF, EXTENSIVE;AS TO REQUEST
A LOT OF BROAD INFS HbYUNU WFIL, HIKtsUI TAYUH
AGREE COURT HA$.DIGRESSION;TAKING T0 FAR lF
EXPAND RUI.E 27;
REPLY
j,isi.Tc"iriilcil pA6E ;i..,.,-

vtri"AT"i5i_U,H"ijo.iji

7t13t2018

TOCD CR1
;

rnrruo; BAcK To RULE

1-027

NUMBER 3

nepneSrtflED BY COUNSEL; IFALL REPRESENTED THEY

WOULD BE HERE; URGING YOU TO RULE IN MY FAVOR; R

CLIENTS ARE PROBABLY GOING TCI BE. NAMED; BON.T WANT

TO DO ANYTHING NEFARIOUS

i$"ii',i?EiiHSY

oil J UdiiciH;l F*itll[H'i{dHii ii5ilVoti"WtSi"ft--

NEED TO WORRY; I WON'T APPEAL YOU; ASKING YOU TO DO

WHAT IS BEST INTEREST OF JUSTICE

ATTACHED PRoPoSED LAwsulr so Nor FITiHINo; lh F{uL

IN MY FAVOR ANTICIPATE THAT I'D BE GETTING A LOT OF
DOCUMENTS; THAT MIGHT SOLVE PROBLEMS; I WILL DO
REQUEST FOR PRODUCTION; TAKE A DEPOSITION; NoT
GOING To GO ON FISHING EXPEDITION; lF R THINKS OUT oF
SCOPE; I WILL STOP; CAN BRING lT EACKTO YOU; NO
PROBLEMS
SAME INDIVIDUALS THEYSAY ALREADY DID DEPOSITION;

iNT6; UNOTRSTAIIO CANT WAIST TIME ; I

BELIEVE GUNDERSON WiLL ENTER APPEARANCE; IF I GET
DOCUMENTS AND HAVE DEPOSITION THEN MAY NOT BEA
ME VERY HAPPY; I'M TO INTERESTED TO
U\i
I I MAKE
Hlvrvvr
I LAWSUIT;
'Yrr
leo oN wrH SoMETHING wHEN I HAvE RULE 0/127;
!lrurrResreD IN SETTLING cASE;
iJi-ii.H$J$"N,E,iii

ELSE

IANYTHING
^-*^"1'6liLY
RHACti0N AND RESpONSE;
gnvt\

2 TIER

LlrlcArlol

n.tv

ABOUTRULE 27 PURFOSE; AWARE OFANY

.r

lYt

APPLICATION AND STATE BEFORE ACTION;

D-721-CV-201S-40

711312014

TOCD CR1

ffi

RULE 27 A Lor oFTIMES; TRIED

TO STUDY IN PREPAMTION FOR TODAY; CASE LAW IS THIN;

COUPLE THAT PERMITTED DISCOVERY BEFORE ACTION

ineu ruEo; FEDEML RULE TALKED ABour PERPETUATING
TESTIMONY SO THAT NOT LOST OR DESTROYED WHERE
STATE RULE DOESN'T HAVE SAME LIMITATION;
INTERPRETED RULE; TITLE CAN BE HELPFUL; SETS FORTH
STRUONNOS FOR DISCOVERY; FEDEML CASES CAN BE
INFLUENTIAL WHEN. NO STATE CASE$; DIFFERENCES ARE
wOnfH GONEIDERING; UNDERSTAND ARGUEMENT; AS TO
STATE RULE SUB A-3;

LONG TIME; AFTER DISCOVERY OPT NOTTO NAMED;

oimosrnnrED THAT sulr HAs BEEN BRoUGHT; INTERE$T
lN SUBJECT MATTER; INDICTED FACTS THAT THE COURT
FINDING COMPELLING; FACTS OUGHT TO BE SUBJECT TO
oisCovrnv PRIoR To FILING; FACTS To IDENTIFY sPEclFlc
PARTIES TO NAME lN ACTION; INDIVIDUALS INVOLVED lN
EMPLOYMETN OR TRAINING OF.MR. HERNANDEZ; P
IDENTIFIED PERSONS WANT To DlPosE; MS' DoW AND

WILCOX
F'RAriliE"tliijioiiit"idi"itjiAKiNc MY oects to N N ; FE D EneL ls
Mone RESrRtcrlvE ; DtscovERY lN srATE RULE ls MoRE
EXTENSIVE: EXPANSE OF DISCOVERYTHAT YOU
SUGGESTED IS BROADER THAN WHA? YOU OUGHT TO BE
ABLE TO CONDUCT DISCOVERY OF INDIVIDUALS YOU
IDENTIFIED; DISCOVERY INDIVIDUALS THAT SHOULD BE
PARTIED IN CASE
I

fAKE A"Sl=A'd'At'Ai$6Hr,HCl6o'fiiHUUGLi-A'i:-:"*"'"'

piorrcnvr

oRDER THEN MAY ABLE LooK AGAIN; TALK

R AND SEE IFAPPEAL; UNDER$TNAD PEMMITERS; CAN
DEAL WITH CAUSES OF ACTION

D-721-CV-201640

To

7n3no16

7TH JUDICIAL DISTRICT COURT

SIERRA COUNTY NM
FILED IN MY OFF|CE
9!221201611:03;39 Atul
MARY MORA
DISTRICT COURT CLTRK

STATE OF I.,IEW MEXICO

SEYENTH JUDICIAL DISTR^ICT COURT
COUNTY OF SIERRA

/s/ Mary

Mora

No: No: D-72I-CV-2016-00040

Judge: The Honorable Kevin R. Sweazea

M. R. AND C. R.
individually and as Parent next friend of
M. A. R.

)
)
)

Plaintiffs,

)
)
)

vs.

)
APPLETREE EDUCATIONAL CENTER,
)
BOYS & GIRLS CLUB OF SIERRA COUNTY, )
REBECCA DOW and AMELIA lryILCOX
)
)
)

Defendants.

AMENDED PLEADING ORIGINAL COMPLAINT

COMES NOW the Plaintiffs by and tfuough their attomey, lv{ark A. Filosa, and for their
Complaint against the Defendants, allege as foliows:
1.

Plaintiffs are residents of Sierra County, State ofNew Mexico. Due to the sensitive
nature of this claim, Plaintiffs have elected not to disclose the fuIl names of the

Plaintiffs; nonetheless, Plaintiffs' names and identity are known to the Defendants.
2.

Forpurposes ofthis suit, all Defendants are residents of Siera County, New Mexico.

3.

Defendants are affiliated with a Protestant, evangelicai, theological, conservative,

Christian school located in Truth or Consequences, Sierra County, New Mexico.

Jurisdietion and Venue

4.

The events or admissions giving rise to this claim oceurred in Truih or

Exhiblt C

9J2212416

Consequences, Sierra County, New

Mexico, Therefore, venlre is proper in the

Seventh Judicial District for the State of New Mexico.

Aqenry
5.

Whenever

it is alleged that the Defendants did any act or thing, it is meant that

Defendants, officers, agents, servants, employees, or representatives did such act or

thing with full authorization, and ratification, or such act was done in the course and
scope of empioyment. In the alternative or in addition, officers, agents, servants,

employees

or representatives were aided in the agency in the actions of

Defendants, thus rendering Defendants vicariously liable,

ofall liability and

the

damages

asserled therein.

Earlier Litisation and Discovenr

6.

The Plaintiffs asked Defendanls for preiiminary infotmation when Plaintiffs were
told that their child had been molested by Defendants' empioyee.

7.

Plaintiffs sought this information

so that they could determine what

entity employed

the perpetrator and what entity was responsible for providing relief for

Plaintiffto be

able to care for their child.

8.

Defendants originally on their own, and then through counsel, resisted turning over
such inforrnation which then required Plaintiffs to file an action, asking for pretrial

discovery (see D-721-cv-2016-40). Defendants have aggressively resisted such

disclosure.
9.

The Plaintiffs filed a Complaint to obtain such materials.

10.

The Court held a hearing and required the disclosure of some materials, that

plaintiffs were
seeking.

11'

As wili be shown, Defendants knew

of the perpetrator,s tendenciespriorto
Defendants contributing to the pelpetrator
having an opportunity to molest plaintiffs,

child.

12'

Plaintiffs became aware of Defendants'

further d,rpricity in this matter
on or about
September lS, 2016, when
Defendants, pursuant to the
Cou( Order, released the
sought materials.

13'

14'
15'

The discovery materiar reveared

that Defendants, empro yee,
a$ownman, had
inappropriately questioned atleastone
teenage gir{ abouthaving
sex (in factrefening
to it as intercourse) with her
boyfriend. said incident occurred
,
on March 1g,2015.
Defendants investigated the
matter after the incident, such
i,vestigation resulted in
a written warning that was put
in the perpetrator,s empioyee
file on April

upon information and belief, a

trauma informed haining was
consequences

2,20r5.

statedasa

of the pelpetrator,s consequences,

but none was deemed ,o

have

occurred according to Defendants,

records.

t6.

17.

The perpetrator was not terminated

by the Defendants. Aithough
there was no
question that said incident
occurred, Defendants continuecr
to put the peqpetrator in
contact with pubescent and
pre, pubescent children.
Eighteen days rater on

Aprir 20, 2015, the perpeffator was

interviewed

for the

position of program Director.

18.

In said interviews, at reast three

interviewers were
Rebecca Dow.

preselrt, including Defendant

19.

At least two of the interviewers indicated significant concerns in their evaluations

about the perpetrator as refereneed in the materials produoed pursuant to the Court
Order noted as Bates Numbered 94 through 108.

20.

The perpetrator received positive comments from only one of the three interviewers

who upon information belief was Defendant Rebecca Dow as referenced in the
materials produced pursuant to the Court Order, and ate noted as Bates Numbered

94 -96 and 106 - 108.

21.

Upon information belief, Defendant Rebecca Dow wanted the perpetmtor to receive

the promoticn and in fact, Defendant Rebecca Dow's name was listed on the
perpefator's emergency contact informationonhis application and employmentform
when he was first hired,

as

referenced in the materials produced prnsuant to the Court

Order and noted as Bates Numbered 52.

22.

In his original application and other such documents for his first job with
Defendants, the perpetrator listed

as

the

his residence on his appiication 1603 Broadway,

The Court required production of malerials through the Order filed on September 13,
2016; nowhere in the order is it indicated that materials are subject of a Protective Order.
Defendants' counsel mildly intimated to Plaintiffs' counsel on September 16,20i6 that she may
be of the opinion that the discovery material rnight be subject of a Protective Order (although
these exact words were not indicated by counsel). Counsel for Plaintiffs dispute this belief.
Nonetheless, based upon the undersigned's great respect for Defendants' counsel and the fact that
said materials are not necessary to attach to this complaint at this time, for purposes of this
pleading only, the undersigned will not attach those court-ordered materials to this public
document, Of course, Plaintiff had to include additional causes of action which said disclosure
revealed.

2 While the two interviewers who had doubts about

the perpetrator used a numeric

scoring scheme, the third interviewer only provided comments (aibeit positive ones) and
indicated no numeric scores.

Truth or Consequences" New Mexico. This is the residence where he was apparently

living prior to being hired by Defendants. This is a residencE owned by Defendants.

In other words, upon information and beiief, the fact that Defendants provided
housing to the perpefator was

major factor in hiring him, and the other obvious red

flags were ignored, see Exhibit A altached hereto.

z).

In addition, on his application for his first job with the Defendants, the perpetrator
indicated he was informed aboutthejob from Defendant RebeccaDow,

as

referenoed

in the materials produced pursuant to the Court Order which are noted as Bates
Numbered 30.
24.

Even ihough the perpetrator held no degree, he was refeued to and paid as a teacher,
as referenced in the materials produced pursuant to the Court Order and noted as
Bates Numbered 46, and 48.

25.

In the discovery materials, the perpetrator's sig$ature is

indicated on several

documents, but the signature is never dated notwithstanding the fact that there is a

line for a date, as referenced in the materials produced pursuant to the Court Order
and noted as Bates Numbered 10, 11, 13, 18,

19,28,29,33,41,47,43,44, and 51).

Factual Allegations
26.

Defendants are the recipients of numerous grant monies to support their various

progftms in the community and to provide income to the individual Defendants.

zt,

To further that effort, Defendants hired Alejandro Hernandez as an employee to be

responsible

for children for whom

Defendants had responsibiliry. Alejandro

Hernandez is the agent of all Defendants.

28.

Defendants undertook

no reasonable and adequate efforts to

investigate Mr,

Hernandez's background under the circumstances, including but not iimited to,
deficiencies in the following areas:

a.

Defendants obtained no authorization

for receipt of personnel files from

prior employers,
b.

Upon information belief, Defendants did not require Hernandez to list all

prior employers in his application,

and

did not seriously consider

the

references he provided.

Defendants did not require Hernandez to list reasons for leaving a1l prior
employers,
d.

Defendants did not adequately contact or research the employment

Alejandro Hernandez, and failed

to

of

conduct interviews with former

employers, and further did not question the perpetrator on some of the
incredible claims in his resume which would have alerted
as to the accuracy or

veracity of these claims,

I By way of example, the perpetrator

reasonable person

was born on April I 1 1992; in his resume he

indicated that he established and coordinated the Clzildren's Evangelica! Fellowship five day
camps throughout the greater Houston area in April 2007 when he would have only been i5
years old; the perpetrator indicated he was the assistant to the Youth Minister for the El Buen
Baptist Church and was the children's ministry teacher, worship leader, Children's rninistry
teacher, and overseer of the art ministry in September 2006 when he would have been 14 years
old, in other words he would have been the assistant to the ordained minister at this young age;
and that he served as a coordinator of all dance presentations and Assisting in Administrative
Work for all meetings, workshops, and was in charge of all retreats for field mission trips in the
Dominican Republic and Haiti in July 2006 when he would have been 14 years old. Despite
these in*edible claims, the Defendants also had infonuation that after these impressive jobs thai
the perpetrator worked at The GAP Clothes Store in shipment beginning September 2012
forward, as refbrenced ln the materials produced pursuant to the Court Order which are noted as

Defendants

did not investigate and evaluate any gaps in

Hernandezos

employment,
Defendants completed no reasonable or adequate background check of any

nature

in light of the grave responsibility of his job which

entailed the

enlrustment of children,
o

ts.

Upon information belief, Defendants simpiy made inquiries and accepted

information regarding Hernandez's Christian faith, and upon information and

belief took the assurances of his rnother, who was also an employee of
Defendants.
h.

Did not follow-up on a bizane inclusion in the perpetrator's application

packet indicating that he was in his mother's womb with two of his friends
called tumor and diabetes, as referenced in the materials produced pursuant
to the Court Order and noted as Bates Numbered

i.

l6 and I 17.

Despite aU of his alleged career successes, the perpetrator indicated to

Defendants that he and his mother were homeless at times throughout his

high schooi attendance,

29,

Once Defendants hired Hernandez, he was provided no orientation or training

concerning "do's arld don't's" and appropriate boundaries with children. In fact, the
discovery material indicates that he was to receive specialized training in December
2013, however, there is no evidence this training ever occurred, as referenced in the

Bates Numbered 34, 53, and 54.

materials produced pusuant to the Court Order and noted as Bates Numbered

30.

i.

Upon information and belief, during all times rslevant, Defendants provided no
training to other employees with respect to awareness of known patterns regarding
sexual abuse ofperpetrators such as Alejandro Hernandez.

31.

On or about May 29,2015, Defendants arranged for Hemandezto be in control and

supervise children, including young boys,

in an overnight field trip located on

property owned by Defendants.

32.

The perpetrator was put in charge of this overnight activity despite the klarch

18,

2015 incident, and other troubling information indicated in his application.

33.

Hernandez ingratiated himself with M.A.R. and other children, and held himself out
as a gcod friend and someone whom the child could talk to.

34.

Defendants arranged a lockdown sleep over at the property, and Hemandez was the
adult chaperone at the sleep

over. M.A.R

and other children attended said activity.

During the lockdown sleep over occuming in the auditorium of the Defendants'
properly, the lights were turned off.

35,

Hernandez laid down there next to M.A.R. and put his hands on M.A,R's shoulder
and several times pulled M.A.R. toward him.

36.

Hernandez put his hands down M.A.R.'s shorts between five and 10 times and was

moving his hands around and undemeath M.A.R.'s shorts, Hemandez touched
M.A.R.'s penis and buttocks.

37.

M.A.R. moved away from Hernandez and told hirn to leave him alone. M.A.R. was
wearing a T-shirt and boxer shorts whiie Hernandez was wearing skinny jeans and

polo shirt.

38.

Hernandez used his position of authority to abuse and molest M.A.R.

39.

Defendants and other employees associated with Defendants should have known that

having a sleep over with Hernandez as an aduh chaperone was inappropriate

particularly in light of the March 18, 2015 incident, and other troubling information
indicated in his application and k:rown to Defendants.

40.

Hernandez was charged with engaging in sexual intercourse, cunnilingus, fellatio, or

anal intercourse as to another student at the same activity possibly other iimes.
41.

On or about March

2,2016, Hernandez pled guilty to two counts of Criminal

Sexual Contact in the Third Degree. (See DO-721-CR-201 5-00099 and DO-721 -CR201

42.

s-00100)

At his sentencing, no one on behaif of Defendants spoke to the Judge urging

significant penalty;1o the contrary, various representatives and persons associated

with the Defndants asked for leniency and questioned whether Hernandez really
committed these acts despite the fact that Hemandez pled guilty to the charges.
+ t.

During the sentencing, Hernandez's attorney, who apparently has ties to the
Defendants' organization, indicated that he did not understand why his ciient did
what he did, but stressed that it was not the employer's fault, thereby attempting to
reduce Def,endants' culpability, in essence, dealing with the

civil aspect of this

case

by trying to protect ihe Defendants.

AN

Defendants did not give notice to the Plaintiffs and ail parents of the perpetrator's
actions until an unciated letter was sent to the parents in July 20i 5, see Exhibit B

attached hereto.

45.

The letter did not mention the March 18, 2015 or the May2015 incidents,
molestation incident and other matters known to Defendants.

Count

Neglisent Hiring

46.

Plaintiffs reallege and incorporate by reference all the above referenced allegations.

47.

Defendants were under a duty to exercise reasonable care, as appropriate under the
circumstances, in the hiring of and retention of employees to whom it would expose

its students and participants in its programs,

48.

Defendants violated a duty of reasonable care in the hiring and retention of

Hemandez.

49.

As a direct and proximate resuit of Defendants' negligent hiring of Hernandez,

Plaintiffs suffered damage and injury
Count II Neglisent Training and Policies

50.

Piaintiffs reallege and incorporate by reference all the above referenced allegations.

t.

Defendants are under a duty to act with due care and establish appropriate policies

for the training of employees.

52.

Defendants are under

a duty of due care to act in

due consideralion and

circumspection in the tlaining of its employees.

53.

Defendants, at all relevant times, did not possess adequate policies, or books or
guideiines

with respect to training new employees on boundaries, appropriate

employee-student relationships and other such matters.

54. At ail relevant

times, Defendants possessed inadequate policies witir respect to

10