Doe v. Salisbury Univ.

• Decision Date: 21 August 2015
• Docket Number: Civil No. JKB–15–517.
• Citation: 123 F.Supp.3d 748
• Parties: John DOE, et al., Plaintiffs v. SALISBURY UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — District of Maryland

123 F.Supp.3d 748

John DOE, et al., Plaintiffs
v.
SALISBURY UNIVERSITY, et al., Defendants.

Civil No. JKB–15–517.

United States District Court, D. Maryland.

Signed Aug. 21, 2015.

123 F.Supp.3d 754

Laura Evelyn Hay, Robin R. Cockey, Thomas Joseph Maloney, Cockey Brennan and Maloney PC, Salisbury, MD, Eric Rosenberg, Rosenberg and Ball Co. LPA, Granville, OH, for Plaintiffs.

Erik James Delfosse, Office of the Attorney General, Corlie McCormick, Jr., Maryland Office of the Attorney General, Mark Joseph Stiller, Jennifer Malia Sullam, Niles Barton and Wilmer LLP, Baltimore, MD, Asha S. Reynolds, Silver Spring, MD, Joseph Ignatius Tivvis, Jr., Joseph I. Tivvis Jr., PA, Towson, MD, John Paul Isacson, Jr., Mary Rose Hughes, Perkins Coie LLP, Washington, DC, for Defendant.

MEMORANDUM

JAMES K. BREDAR, District Judge.

This action was brought by John Doe and Richard Roe (collectively, "Plaintiffs") against Salisbury University ("SU"), Valerie Randall–Lee,¹ Helena Hill,² Jane Doe # 1, Jane Doe # 2, and Jane Doe # 3 (collectively, "Defendants") alleging defamation, intentional infliction of emotional distress ("IIED"), negligence, civil conspiracy, and violations of Title IX, and seeking compensatory damages and injunctive relief. Now pending before the Court is Defendant Jane Doe # 2's motion to dismiss (ECF No. 84), Defendant Jane Doe # 3's motion to dismiss (ECF No. 85), Defendants Hill, Randall–Lee, and SU's (collectively, "SU Defendants") motion to dismiss (ECF No. 88), Defendant Jane Doe # 1's motion to dismiss or in the alternative for summary judgment (ECF No. 92), Plaintiffs' motion to voluntarily dismiss claims (ECF No. 100), and Plaintiffs' motion to seal (ECF No. 101.) The issues have been briefed,³ and no hearing is required, Local Rule 105.6 (D.Md.2014). For the reasons explained below, SU Defendants' motion to dismiss (ECF No. 88) will be GRANTED IN PART AND DENIED IN PART, Defendant Jane Doe # 1's motion to dismiss (ECF No. 92) will be GRANTED, Plaintiffs' motion to voluntarily dismiss claims (ECF No. 100) will be GRANTED IN PART AND DENIED AS MOOT IN PART, Defendant Jane Doe # 2's and Defendant Jane Doe # 3's motions to dismiss (ECF Nos. 84 and 85) will be DENIED AS MOOT, and Plaintiffs' motion to seal (ECF No. 101) will be GRANTED.

I. Background⁴

Plaintiffs' claims stem from events that took place on October 5, 2013, at a college house party hosted and attended by SU students. (Fourth Amended Complaint, ECF No. 83 ¶ 13.) Plaintiffs rely on an investigative report written by Defendant Hill to recount the details of that evening. (Id. ¶ 14; Hill's Report, ECF No. 83–2.)

123 F.Supp.3d 755

In relevant part, while Defendant Jane Doe # 1

was outside of the house, she was definitely seen by many making out ... with [Plaintiff John Doe]. When she was inside the house, in the kitchen, several witnesses state that [Defendant Jane Doe # 1] was drunk and dancing around.... At some point, [Defendant Jane Doe # 1] traveled to the second floor of the house. Reports by two individuals are that [she] walked upstairs on her own, with [Plaintiff John Doe].... [Defendant Jane Doe # 1] was seen laying on the bed ... on her stomach and showing off her buttocks. [Plaintiff John Doe] has stated that they were making out with her, and has said that she wanted them to do things to her.... [Defendant Jane Doe # 1] remembers coming to for a very brief time, on her back, with guys all around her. She remembers hands on her breasts and being kissed, at the same time. She remembers being touched everywhere but did not elaborate as to where she was touched (she could not remember).

(Hill's Report at 1–2.) After leaving the party, Defendant Jane Doe # 1 "filed a complaint with the Wicomico County Sheriff's Office alleging Plaintiffs sexually assaulted [Jane Doe # 1] at the Party," and repeated these same allegations to unnamed "third-parties." (Fourth Amended Complaint ¶¶ 15–16.)

On October 7, Defendant Jane Doe # 1 received a medical examination "and these tests failed to establish any evidence of sexual assault." (Id. ¶ 19.) She also sent Plaintiff John Doe the following text message:

Hey [John Doe], I know I'm probably the last person you want to hear from right now but I really need to say something. I just got back from the Sheriff's office. I completely understand you don't give two shits about what I have to say or don't believe me at all. I have no idea what happened. The last thing I remember from last night is kissing you on the stoop. The next thing after that I remember is sitting on Ryan's floor hysterically crying and being walked to the cop car. All I know is that the girl that was at the party was not me. This thing is being blown really out of proportion. I feel awful for you and your friends and I completely understand if you hate me and never want to see me again. I just wanted to make things right. Also, I know that the detective told you not to contact me but he's the one that told me I should contact you and let you know.

(ECF No. 83–3.)

Shortly thereafter, SU began an internal investigation into Defendant Jane Doe # 1's sexual assault allegation. (Fourth Amended Complaint ¶ 21.) As part of SU's investigation, Defendants Randall–Lee and Hill prepared a report containing, inter alia, the following findings, conclusions, and recommendations:

(a) ‘concluded’ that ‘a preponderance of evidence’ established a ‘sexual assault more likely than not occurred upon [Jane Doe # 1]’ at the Party; (b) reached a ‘finding’ that: ‘[a] preponderance of evidence also indicates that [Jane Doe # 1]’ engaged in non-consensual sexual activity while upstairs in the bedroom; and (c) determined ‘[t]he conclusion drawn here is that someone who is drunk or otherwise intoxicated cannot say "no," and lacks the capacity to say "no," even if he/she doesn't want to have sexual contact. It might be that he/she is conscious but still intoxicated or that he/she passed out and is unconscious. Either way, the sexual contact is non-consensual.’

123 F.Supp.3d 756

(Id. ¶¶ 23, 25.) This report was then submitted to SU's Community Board ("the Board") for consideration. (Id. ¶ 23.)

On January 31, 2014, the Board conducted a hearing to determine "whether Plaintiffs violated the [SU Code of Conduct's] Sexual Harassment Policy (‘The Policy’) and/or other SU polices and/or procedures...." (Id. ¶¶ 21–22.) Plaintiffs attended the hearing without counsel and were placed behind a dividing wall so that they could not view testifying witnesses. (Id. ¶¶ 26, 50.) Defendant Jane Doe # 1 did not testify, and while Plaintiffs were allowed to ask some questions during the hearing, they were "prohibited from asking many critical questions of witnesses." (Id. ¶¶ 28–29.) The Board heard conflicting testimony. Some witnesses, including Plaintiffs, testified that Defendant Jane Doe # 1 "initiated any and all physical contact with Plaintiffs" at the party. (Id. ¶ 30.) Other witnesses, including Defendants Jane Doe # 2 and Jane Doe # 3, testified that Plaintiffs were responsible for sexually assaulting Defendant Jane Doe # 1. (Id. ¶ 33.)

On February 6, Plaintiffs were notified that the Board found Plaintiffs " ‘responsible’ for allegedly engaging in non-consensual contact with [Jane Doe # 1]," and concluded that " ‘a reasonable person would have known that [Jane Doe # 1] was intoxicated and thus [Plaintiffs] took advantage of [Jane Doe # 1's] incapacity.’ " (Id. ¶ 40.) On the basis of these findings, Plaintiffs were disciplined by the Board. (Id. ¶ 40.)

In mid-February, Plaintiffs appealed the Board's findings. (Id. ¶¶ 55–56.) And on March 5, 2014, SU's Associate Vice President of Student Affairs, Mentha Hynes–Wilson, denied Plaintiffs' appeals. (Id. ¶¶ 57–58.) In addition to denying Plaintiffs' appeals, Associate Vice President Hynes–Wilson altered SU's disciplinary sanctions by requiring Plaintiffs to each draft a "Reflection" paper. (Id. ¶¶ 49, 159.)

Plaintiff John Doe filed this lawsuit in the Circuit Court of Maryland for Wicomico County on May 15, 2014. (ECF No. 2.) But the pleadings, parties, and posture in this case have been modified repeatedly and materially. Plaintiff Richard Roe was added as a party on October 3, 2014. (First Amended Complaint, ECF No. 29.) Plaintiffs then amended their complaint twice more (Second Amended Complaint, ECF No. 43; Third Amended Complaint, ECF No. 55) before SU Defendants filed a notice of removal on February 23, 2015, (ECF No. 1). Upon this case's removal, the Court dismissed Plaintiffs' preceding complaints without prejudice and ordered that Plaintiffs file a fourth, superseding amended complaint. (ECF No. 70.) Plaintiffs filed their Fourth Amended Complaint on March 20, 2015. (ECF No. 83.)

II. Standard of Dismissal for Failure to State a Claim

A complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679, 129 S.Ct. 1937. As the Twombly opinion stated, "Factual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 555, 127 S.Ct. 1955. "A pleading that offers ‘labels

123 F.Supp.3d 757

and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ... Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955 ). Although when considering a motion to dismiss a court must accept as true all...