Doe v. Univ. of Neb.

• Decision Date: 08 February 2021
• Docket Number: 4:18CV3142
• Parties: JOHN DOE, Plaintiff, v. UNIVERSITY OF NEBRASKA, UNIVERSITY OF NEBRASKA BOARD OF REGENTS, JAKE JOHNSON, LAURIE BELLOWS, MEAGAN COUNLEY, and TONI ANAYA, Defendants.
• Court: U.S. District Court — District of Nebraska

JOHN DOE, Plaintiff, v. UNIVERSITY OF NEBRASKA,

UNIVERSITY OF NEBRASKA BOARD OF REGENTS, JAKE JOHNSON,

LAURIE BELLOWS, MEAGAN COUNLEY,

and TONI ANAYA, Defendants.

4:18CV3142

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

February 8, 2021

MEMORANDUM AND ORDER

This matter is before the court on Defendants' motion for summary judgment (Filing No. 72). Upon careful review of the pleadings, evidence, and briefs, the court concludes the motion should be granted with respect to the remaining federal law claim (Count I of Plaintiff's Amended Complaint), but all state law claims (Counts II through V of Plaintiff's Amended Complaint) should be remanded to the District Court of Lancaster County, Nebraska, where this action originated.¹

I. BACKGROUND

Plaintiff, suing under the anonym of John Doe, was a Ph.D. student in the Political Science Department at the University of Nebraska-Lincoln ("UNL"), from August 2015 until May 2018, when he was expelled for violating the Student Code of Conduct when it was determined he had sexually assaulted another UNL student ("Jane Roe") on July 24, 2017. Defendants include UNL and the Board of Regents of the University of Nebraska,plus four UNL employees who are each sued in their individual and official capacities: (1) Jake Johnson, Assistant Vice Chancellor for Student Affairs; (2) Laurie Bellows, Interim Vice Chancellor of Student Affairs; (3) Meagan Counley, Deputy Title IX Coordinator and Investigator; and (4) Toni Anaya, Associate Professor and Chair of the University Student Conduct Board.

In a Memorandum and Order entered on April 3, 2020 (Filing No. 63), the court granted a motion for partial summary judgment filed by the four employees (Filing No. 39), and dismissed with prejudice Count VI of the Amended Complaint, in which Plaintiff claims his rights to procedural and substantive due process under the Fourteenth Amendment were violated. The dismissed Count VI is the only claim alleged against the employees in the Amended Complaint, so they effectively have been dismissed from the action, in both their individual and official capacities.

Count I is a Title IX claim which is alleged against UNL,² while Counts II through V are state-law claims which are alleged jointly against UNL and the Board of Regents. UNL denies it has the capacity to be sued.

II. SUMMARY JUDGMENT STANDARD

"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).

In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

The moving party bears the initial responsibility of informing the court of the basis for the motion, and must identify those portions of the record which the moving party believes show the lack of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does so, the burden then shifts to the nonmoving party, who "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946 F.3d 420, 424 (8th Cir. 2019).

III. DISCUSSION

The "statement of undisputed material facts" section of Defendants' brief (Filing No. 73, pp. 7-41)³ corresponds to the findings of undisputed facts that were made by the court in granting the previously filed motion for partial summary judgment. (See Filing No. 63, pp. 7-36.) The court now reaffirms each of those findings, which will not be repeated here. Plaintiff, in opposing Defendants' motion for summary judgment, relies upon transcripts of two depositions that were taken on taken on September 14, 2020 (Filing Nos. 87-1, 87-2), and upon his personal affidavit, which was attached to the brief filed in opposition to Defendants' previously filed motion (Filing No. 55, pp. 25-26). In rebuttal, Defendants have filed the affidavit of Meagan Counley (Filing No. 94-1), who was one of the deponents. The court will make reference to this additional evidence as necessary.

A. UNL'S Capacity to be Sued

UNL's capacity to sue or be sued in federal district court is determined by Nebraska law. See Fed. R. Civ. P. 17(b). The court is not aware of any reported decisions directly onpoint, but the Eighth Circuit's decision in Lundquist v. Univ. of S.D. Sanford Sch. of Med., 705 F.3d 378 (8th Cir. 2013), made with reference to South Dakota law, appears controlling. In that case, a former employee of the University of South Dakota Sanford School of Medicine brought an ADA claim against the School of Medicine. The district court granted summary judgment in favor of the School of Medicine, based on its lack of capacity to be sued, and the Court of Appeals affirmed, stating:

Rule 17(b) defines when a party has the capacity to sue or be sued in federal court. Unlike the doctrines of standing and real-party-in-interest, "capacity is conceived to be a party's personal right to litigate." 6A Wright, Miller & Kane, Federal Practice and Procedure § 1542 (3d ed. 2010). The capacity of a unit of state or local government that is incorporated, like that of a private corporation, is determined "by the law under which it was organized." Rule 17(b)(2); see 6A Wright, Miller & Kane at § 1562; Campbell v. Davol, Inc., 620 F.3d 887, 895 n. 6 (8th Cir.2010). The capacity of an unincorporated unit of government is determined, in most cases, "by the law of the state where the court is located." Rule 17(b)(3).

The South Dakota Constitution provides that the legislature "shall direct by law in what manner and in what courts suits may be brought against the state." S.D. Const. Art. III § 27. The legislature by statute created the University of South Dakota, S.D. Codified Laws § 13-57-1, and later its School of Medicine, § 13-57-3.1. However, the University was not given the power to sue and be sued. Rather, the statutes created a nine-member Board of Regents that was explicitly granted "power to sue and be sued," § 13-49-11, and placed the University "under the control of the Board of Regents," § 13-57-1. Thus, the district court held that it is the Board of Regents, not the University or its School of Medicine, that has the personal capacity to sue and be sued under South Dakota law. Accord Pushkin v. S.D. State Univ., No. 10-4108, 2010 WL 5089480, at *1 (D.S.D. Dec. 8, 2010). We agree.

Id. at 379-80. The Court of Appeals also held that the exception in Rule 17(b)(3)(A), which provides that "a partnership or other unincorporated association with no such capacity [to sue or be sued] under that state's law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws," does not apply in this situation. The Court stated:

By its express terms, for a federal action venued in South Dakota, the exception permits a partnership or unincorporated association "with no ... capacity" to sue or be sued under South Dakota law to be sued in its common name in an action to enforce federal rights, such as the ADA claimsLundquist asserted. When state law does grant such an entity the capacity to sue or be sued, but specifies the manner in which that capacity may be exercised, state law limitations on the manner of exercise apply. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. City of Albany, 250 F.Supp.2d 48, 61-62 (N.D.N.Y.2003). That is the situation here. The South Dakota legislature did not deny the University and its School of Medicine the capacity to sue and be sued. Rather, the legislature mandated that the capacity resides in the Board of Regents, the unit of government that controls the University. Thus, the School of Medicine only has the capacity to be sued in an action against the Board of Regents, ....

Id. at 380-81 (emphasis in original).

Nebraska law is comparable. The Nebraska Constitution provides that "[t]he general government of the University of Nebraska shall, under the direction of the Legislature, be vested in a board of not less than six nor more than eight regents to be designated the Board of Regents of the University of Nebraska, ...." Neb. Const. art. VII, § 10; see Neb. Rev. Stat. § 85-103. UNL is one of four universities that comprise the University of Nebraska. Neb. Rev. Stat. §§ 85-101, 85-102.1. The Board of Regents is "a body corporate" and has the power to sue and be sued. Neb. Rev. Stat. § 85-105. UNL is not incorporated and does not have statutory authority to sue or be sued in its own name. Accordingly, UNL is not a proper party and must be dismissed from this action.

Defendants contend UNL's dismissal from this action also requires the dismissal of Count I of the Amended Complaint (the Title IX claim) because it is alleged only against UNL. Plaintiff, while not denying that UNL is an improper party, agues Count I should be construed as if it were alleged against the Board of Regents, as the governing body for UNL. Neither side cites any supporting legal authority...