Abbott v. First Student, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
WHITNEY ABBOTT, on behalf of )
minor son G.A., )
)
Plaintiff, )
)
v. ) No. 2:25-cv-04002-WJE
)
FIRST STUDENT, INC., )
)
Defendant. )
ORDER
Pending before the Court is Defendant First Student, Inc.’s (“First Student”) Motion to
Strike (Bar) Plaintiff’s (Unpled) Claim for Punitive Damages and suggestions in support.1 (Doc.
60, 61). Plaintiff Whitney Abbott has filed suggestions in opposition. (Doc. 65). First Student has
filed a timely reply, to which Ms. Abbott filed a sur-reply without leave of the court. (Docs. 67,
68). The issue is now ripe for consideration. For the reasons that follow, the Motion to Strike (Bar)
Plaintiff’s Claim for Punitive Damages is denied.
I. Background
This action arises out of alleged student-on-student sexual misconduct on a school bus. Ms.
Abbott contends that First Student, the bus company contracted to provide transportation services
to the Jefferson City School District, negligently failed to protect her minor child, G.A., from
sexual assault perpetrated by another student with “known dangerous propensities.” (See Doc. 1-
1 at ¶ 49).
1 With the consent of the parties, this case was assigned to the Chief United States Magistrate Judge, pursuant to the
provisions of 28 U.S.C. § 636(c).
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In Count I, Ms. Abbott asserts a claim of negligence, alleging that First Student failed to
adequately monitor and supervise student passengers or otherwise provide G.A. with a reasonably
safe environment. In Count II, Ms. Abbott asserts negligent hiring, training, monitoring, retention,
and supervision of a First Student employee. (See Doc. 1-1 at 12-16). Ms. Abbot’s claims stem
from the transportation services First Student provided pursuant to contract with the Jefferson City
School District for the benefit of District students. (Id.).
This case was removed to federal court on January 6, 2025. (Doc. 1). On March 4, 2025,
the Court entered its Scheduling and Trial Order, setting a deadline to amend pleadings of July 21,
2025. (Doc. 17). Ms. Abbott requested leave to file an amended complaint to add additional parties
and suggestions in support on July 8, 2025, which the Court denied. (Docs. 28, 29, 33).
On December 9, 2025, First Student filed a Motion to Strike (Bar) Plaintiff’s (Unpled)
Claim for Punitive Damages and suggestions in support. (Docs. 60, 61). Ms. Abbott filed her
suggestions in opposition on December 22, 2025. First Student filed its reply on January 5, 2026,
to which Ms. Abbott filed a sur-reply on January 6, 2026, without leave of court. (Docs. 67, 68).
II. Discussion
First Student urges this Court to apply the doctrine of judicial estoppel to bar Ms. Abbott
from seeking punitive damages. (Doc. 61 at 3-7; Doc. 67 at 1-2). Ms. Abbott argues that her
petition sufficiently pleads punitive damages, that she has not stated inconsistent positions, and
that judicial estoppel should not prevent her from seeking punitive damages. (Doc. 65 at 9-10;
Doc. 68). The Court finds that Ms. Abbott may pursue punitive damages, and the doctrine of
judicial estoppel does not apply.
A. Ms. Abbott may pursue punitive damages at trial.
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First Student argues that Ms. Abbott should be prevented from seeking punitive damages
because her pleadings do not contain a claim for punitive damages. (Doc. 61 at 4-5). Ms. Abbott
argues that Rule 8 of the Federal Rules of Civil Procedure establishes the pleading requirements
here, and her pleading sufficiently alleges claims to seek punitive damages. (Doc. 65 at 9-10). The
Court finds that though Ms. Abbott’s Complaint does not specifically make out a claim for punitive
damages, she will not be prevented from pursuing punitive damages at trial.
Rule 8 of the Federal Rules of Civil Procedure, which governs pleading requirements in
federal court, does not bar claims for punitive damages from being pleaded in an initial complaint.
See Gaydos v. Gully Transportation, Inc., No. 4:21-CV-388-SPM, 2021 WL 4963523, at *2 (E.D.
Mo. Oct. 26, 2021).
In Missouri state court, plaintiffs may not seek punitive damages in their initial petition.
Mo. Rev. Stat. § 510.261. This Court’s jurisdiction in this case is based on diversity of citizenship,
so Missouri state law governs substantive issues. Am. Home Assur. Co. v. Pope, 591 F.3d 992, 998-
99 (8th Cir. 2010) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The Eighth Circuit has
not provided guidance as to whether § 510.261 applies in federal court proceedings. Gaydos v.
Gully Transportation, Inc., No. 4:21-CV-388-SPM, 2021 WL 4963523, at *2 (E.D. Mo. Oct. 26,
2021). However, federal trial courts in Missouri have found that § 510.261 “is a procedural
pleading rule that is not applicable to federal courts exercising diversity jurisdiction.” Hogquist v.
PACCAR, Inc., No. 3:21-CV-05013-MDH, 2021 WL 6050932, at *3 (W.D. Mo. Dec. 21, 2021);
see Bextermueller News Distributors v. Lee Enters., Inc., No. 4:22-CV-00344-SPM, 2023 WL
2187465, at *7 (E.D. Mo. Feb. 23, 2023) (collecting cases).
Federal procedural law “requires a pleading to state a claim and include a demand for the
relief sought.” Standlea v. Dunn, No. 4:21-CV-00147-BCW, 2021 WL 9667335, at *3 (W.D. Mo.
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Oct. 5, 2021) (citing to Fed. R. Civ. P. 8(a)(3)). Federal Rule of Civil Procedure 8 requires enough
facts to raise a reasonable expectation that discovery will reveal evidence of liability. Gray v. City
of Kansas City, Mo., No. 4:25-CV-00369-DGK, 2025 WL 3452373, at *3 (W.D. Mo. Dec. 1, 2025)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Rule 8 establishes a “simplified
standard for pleading in civil actions” and does not contain a heightened pleading requirement for
punitive damages. Bowles v. Osmose Utilities Servs., Inc., 443 F.3d 671, 675 (8th Cir. 2006); Fed.
R. Civ. P. 8(a)(3); see N. States Power Co. v. Fed. Transit Admin., 358 F.3d 1050, 1056-57 (8th
Cir. 2004) (“The essential function of notice pleading ‘is to give the opposing party fair notice of
the nature and basis or grounds for a claim, and a general indication of the type of litigation
involved.’”). A pleading need not allege punitive damages in her complaint in order to recover
punitive damages at trial. Bowles, 443 F.3d at 675 (8th Cir. 2006) (citing Fed. R. Civ. P. 54(c)). A
plaintiff’s ability to seek punitive damages is not “a function of [the] pleadings, but rather of
whether the plaintiff provided adequate notice or caused prejudice.” Lindt & Sprungli (N. Am.),
Inc. v. Gxo Warehouse Co., Inc., No. 22-00384-CV-W-BP, 2024 WL 448792, at *2 (W.D. Mo. Jan.
2, 2024) (citing Bowles, 443 F.3d at 675).
Bowles is instructive. In that case, the Eighth Circuit affirmed a jury award of punitive
damages even though the plaintiff’s complaint did not specifically seek punitive damages because
evidence at trial supported the award. Bowles, 443 F.3d at 674-75. The Eighth Circuit determined
that the plaintiff had provided the defendant with sufficient notice and “adequate time to conform
its defense to the plaintiff’s announced objectives” by filing a pretrial disclosure three weeks before
trial expressly stating that he intended to seek punitive damages. Id. at 675. The fact that the
plaintiff’s complaint did not specifically allege punitive damages was not fatal to the award. Id.
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Here, Ms. Abbott’s discovery requests put First Student on notice that she intends to seek
punitive damages. Trial in this matter is set for June 2026. (See Doc. 17). On October 29, 2025,
almost eight months prior to trial, Ms. Abbott served an Amended Notice to take the deposition of
First Student’s corporate representative. The Amended Notice requested information on First
Student’s financial assets. (Doc. 49 at ¶ 35). Discovery requests into a company’s financial
resources offer sufficient notice for an assertion of punitive damages. Bowles, 443 F.3d at 675
(finding a discovery request into defendant’s net worth submitted three months before trial
provided sufficient notice that plaintiff would seek punitive damages); see Nation v. Moore, No.
3:22 CV 5063-MDH, 2024 WL 3837764, at *1 (W.D. Mo. Aug. 15, 2024) (holding defendant was
not on notice of plaintiff’s desire to seek punitive damages when plaintiff never sought discovery
on defendant’s assets).
In fact, this discovery request did put First Student on notice. On November 12, 2025,
counsel for First Student inquired via email why Ms. Abbott was seeking financial information
based on the belief that such information was only necessary for the issue of punitive damages.
(Doc. 60-1). The next day, counsel for Ms. Abbott informed First Student that she was seeking
punitive damages. (Id.). This email exchange took place seven months before trial.
First Student has been given ample notice of Ms. Abbott’s intent to seek punitive damages
at trial not only through discovery requests, but also through direct communication with Ms.
Abbott’s counsel. See Lindt, 2024 WL 448792, at *2 (finding counsel was on notice when they
were informed via email that plaintiff would seek punitive damages). The defendant in Bowles had
only three weeks’ notice of the plaintiff’s intent to seek punitive damages; First Student has seven
months. Bowles, 443 F.3d at 675 (finding that three weeks gave the defendant “adequate time to
conform its defense to the plaintiff’s announced objectives”).
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First Student argues that the state court and Missouri state law make it clear that
amendment is necessary for Ms. Abbott to seek punitive damages. (Doc. 67 at 5). But federal trial
courts in Missouri have found repeatedly that § 510.261(5) “is a procedural pleading rule that is
not applicable to federal courts exercising diversity jurisdiction.” Hogquist, 2021 WL 6050932, at
*3; see Bextermueller, 2023 WL 2187465, at *7 (collecting cases). Ms. Abbott’s Complaint is
governed by the Federal Rules of Civil Procedure, not Missouri’s. See Kilburn v. Autosport
Acquisitions, LLC, No. 1:20 CV 211 ACL, 2021 WL 307550, at *2 (E.D. Mo. Jan. 29, 2021) (“[A]
federal court exercising diversity jurisdiction should not apply a state law or rule if (1) a Federal
Rule of Civil Procedure ‘answers the same question’ as the state law or rule and (2) the Federal
Rule does not violate the Rules Enabling Act.”) (quoting Abbas v. Foreign Policy Grp., LLC, 783
F.3d 1328, 1333 (D.C. Cir. 2015)); see id. (determining that Rule 8 is valid under the Rules
Enabling Act). Ms. Abbott need not comply with Missouri procedural law that would require her
to file a later pleading containing a claim for punitive damages. See Bextermueller, 2023 WL
2187465, at *7 (rejecting the argument that a claim for punitive damages should be struck because
the plaintiff did not comply with the requirements of Mo. Rev. Stat. § 510.261(5)).
The record shows that Ms. Abbott’s discovery responses and correspondence between
counsel adequately notified First Student of her intent to seek punitive damages. Although her
Complaint does not use the words “punitive damages,” doing so is not required for her to seek and
recover punitive damages at trial. Bowles, 443 F.3d at 675 (citing Fed. R. Civ. P. 54(c)). Because
Ms. Abbott has sought discovery on First Student’s assets and counsel confirmed the intent over
email, First Student has received adequate notice that Ms. Abbott intends to seek punitive damages.
Additionally, the Court fails to see how First Student would be prejudiced at this stage of litigation
given the considerable amount of time that remains before trial to adjust strategy. See Lindt, 2024
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WL 448792, at *2 (noting that punitive damages are not “a function of [the] pleadings, but rather
of whether the plaintiff provided adequate notice or caused prejudice”).
After review of the Complaint and the record, the Court finds that Ms. Abbott has provided
First Student with sufficient notice of her intention to seek punitive damages at trial. Therefore,
First Student’s request to strike or bar Ms. Abbott from pursuing punitive damages is denied.
B. The doctrine of judicial estoppel does not apply.
First Student argues the doctrine of judicial estoppel precludes Ms. Abbott from asserting
claims for punitive damages because she represented in a state court filing that her pleading did
not contain a claim for punitive damages, and she did not seek leave to add punitive damages claim
prior to the deadline to amend pleadings set by the Scheduling Order. (Doc. 61 at 3-7; Doc. 67 at
3-4). First Student suggests that allowing Ms. Abbott to seek punitive damages will “disrupt the
orderly progress of the case” and unfairly disadvantage First Student. (Doc. 61 at 3). Ms. Abbott
contends that she has made it clear that she intends to seek punitive damages. (Doc. 65 at 9-10;
Doc. 68). The Court finds that the doctrine of judicial estoppel does not apply.
Judicial estoppel is an equitable doctrine intended to protect the integrity of judicial
proceedings. Stallings v. Hussman Corp., 447 F.3d 1041, 1047 (8th Cir. 2006). It “prevents a party
from prevailing in one phase of a case on an argument and then relying on a contradictory argument
to prevail in another place.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citing Pegram
v. Herdrich, 530 U.S. 211, 227 n.8 (2000) (internal quotation marks omitted)). Equity most clearly
demands the application of judicial estoppel where “the attempted assertion of a ‘contrary position’
‘prejudices the party who acquiesced in the position formerly taken.’” Hughes v. Canadian Nat’l
Ry. Co., 105 F.4th 1060, 1068 (8th Cir. 2024) (citing Stallings, 447 F.3d at 1047). In a diversity
case, courts apply the state’s law of judicial estoppel. Kirk v. Schaeffler Grp. USA, Inc., 887 F.3d
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376, 383 (8th Cir. 2018). Missouri applies the factors discussed in New Hampshire v. Maine as
guideposts, not elements, to evaluate whether judicial estoppel is appropriate. Vacca v. Missouri
Dep’t of Lab. & Indus. Rels., 575 S.W.3d 223, 235 (Mo. 2019).
There are three factors that go into this analysis:
First, a party’s later position must be “clearly inconsistent” with its earlier position. Second,
courts regularly inquire whether the party has succeeded in persuading a court to accept
that party’s earlier position, so that judicial acceptance of an inconsistent position in a later
proceeding would create “the perception that either the first or the second court was misled
. . . .” A third consideration is whether the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair detriment on the opposing party if
not estopped.
New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001); see Johnson v. City of Kansas City, 695
S.W.3d 165, 172 (Mo. Ct. App. 2024).
“Under Missouri law, the first New Hampshire factor, whether a party’s positions are
‘clearly inconsistent,’ is ‘the threshold essential to a judicial estoppel defense.’” Kirk., 887 F.3d at
385 (quoting Imler v. First Bank of Mo., 451 S.W.3d 282, 292 (Mo. App. 2014)). “Determining
whether two positions are ‘clearly inconsistent’ requires interpreting the allegedly contrary
representations in context, identifying the underlying legal positions they represent, and analyzing
whether those positions can be reconciled.” Id.; see Berger v. Emerson Climate Techs., 508 S.W.3d
136, 143-45 (Mo. App. 2016).
In Missouri state court, plaintiffs may not seek punitive damages in their initial petition.
Mo. Rev. Stat. § 510.261. A plaintiff may only assert a claim for punitive damages after obtaining
the court’s leave. § 510.261(5).
In compliance with Missouri pleading requirements, Ms. Abbott’s initial state court petition
did not contain a claim for punitive damages. (See Doc. 60-2 at 2). Before this case was removed
to federal court, First Student filed a motion arguing that Ms. Abbott’s petition included
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“inflammatory and immaterial allegations,” and “such incendiary langue” should be struck as an
impermissible prayer for punitive damages. (Doc. 1-1 at 53-55). In response, Ms. Abbott stated,
“Plaintiff concedes Missouri rules prohibit claims of punitive damages in initial pleadings. RSMO
510.261.5 states: ‘No initial pleading in a civil action shall contain a claim for a punitive damage
award.’ The petition, however, does NOT contain a claim for punitive damages.” (Doc. 60-2 at 2).
On December 11, 2024, the Honorable Jon E. Beetem denied First Student’s motion stating, in
relevant part, “Motion to Strike is denied. Petition does not contain a prayer for punitives.” (See
Doc. 1-1 at 1).
First Student argues that Ms. Abbott’s representation to the state court that her petition did
not seek punitive damages is inconsistent with her intent to pursue them now. (Doc. 61 at 4). Ms.
Abbott’s case began in Missouri state court, where pleading requirements prohibited her from
including a claim for punitive damages in her initial petition. See Mo. Rev. Stat. § 510.261(5). She
represented to the Missouri state court that her petition did not contain a claim for punitive
damages. (Doc. 60-2 at 2). Ms. Abbott’s now-federal Complaint still does not contain a claim for
punitive damages. In federal court, failure to specifically plead a claim for punitive damages does
not defeat a plaintiff’s ability to actually seek punitive damages at trial. Bowles, 443 F.3d at 675
(citing Fed. R. Civ. P. 54(c)); Lindt, 2024 WL 448792, at *3 (“[E]xpressly alleging punitive
damages are merely one way of providing notice, not the mandatory or exclusive way.”); id.
(“Nothing in the district court’s orders [denying leave to amend the Complaint and add a claim for
punitive damages] prohibit the plaintiff from presenting evidence and argument on the issue of
punitive damages, and later seeking a jury instruction on the issue of punitive damages.”) (quoting
In re Manning, No. 15-2332 (8th Cir. Jun. 25, 2015)). Ms. Abbott’s prior representation to the
state court is not inconsistent with her intent to seek punitive damages. See Kirk, 887 F.3d at 386
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(“When a party’s position is not clearly inconsistent with the position taken in another proceeding,
‘there is no reason to estop it from asserting that position.’”) (quoting Hossaini v. W. Mo. Med.
Ctr., 140 F.3d 1140, 1143 (8th Cir. 1998)).
Ms. Abbott did not change her position when she failed to amend her Complaint after
removal. She need not amend her Complaint in order to pursue punitive damages in federal court.
Further, her request to do so is untimely and therefore is denied. (See Doc. 17). Rather, as explained
above, Ms. Abbott has provided First Student with sufficient notice of her intention to pursue
punitive damages at trial. She has not taken two inconsistent positions in two different courts.
Therefore, judicial estoppel is not appropriate.
First Student argues that Ms. Abbott would gain an unfair advantage if allowed to proceed
with punitive damage claims because it would alter the scope of litigation. (Doc. 61 at 5-6).
However, First Student does not explain how it will be prejudiced or harmed. First Student has not
identified any way in which it would have conducted discovery differently or prepared its defense
differently. Indeed, discovery is still ongoing. With seven months until trial, First Student has
ample time in which to adjust its trial strategy to account for Ms. Abbott’s plan to seek punitive
damages. Although actual prejudice is not a requirement of judicial estoppel, “in these
circumstances, with no prejudice to the [party] asserting judicial estoppel and no other showing of
harm or unfairness,” there is no reason to apply judicial estoppel. Hughes, 105 F.4th at 1070.
Accordingly, the doctrine of judicial estoppel does not apply.
III. Conclusion
For the reasons set forth above, the Court finds that Defendant First Student’s Motion to
Strike (Bar) the Petition’s Request for Punitive Damages should be DENIED. Accordingly, it is,
therefore
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ORDERED that Defendant First Student’s Motion to Strike (Bar) the Petition’s Request
for Punitive Damages is DENIED.
Dated this 9th day of January 2026, at Jefferson City, Missouri.
Willie J. Epps, Jr.
Willie J. Epps, Jr.
Chief United States Magistrate Judge
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