John Doe v. Roe

• Decision Date: 31 January 2018
• Docket Number: Case No. 1:17–cv–401
• Parties: John DOE, Plaintiff, v. Jane ROE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

295 F.Supp.3d 664

John DOE, Plaintiff,

v.Jane ROE, et al., Defendants.

Case No. 1:17–cv–401

United States District Court, E.D. Virginia, Alexandria Division.

Signed January 31, 2018

Adam Ross Zurbriggen, Justin Emerson Dillon, Christopher Charles Muha, KaiserDillon PLLC, Washington, DC, for Plaintiff.

Jason Alexander Ross, Saul Ewing LLP, Washington, DC, Jason Richard Waters, Wilson Elser Moskowitz Edelman & Dicker LLP, McLean, VA, for Defendants.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

Plaintiff, John Doe ("Doe"), brings this action against Jane Roe ("Roe") and Marymount University ("Marymount"), asserting several causes of action arising from plaintiff's suspension from Marymount following Roe's allegations of sexual assault.¹

Specifically, against Marymount, Doe asserts s a Title IX claim, a breach of contract claim, and several common law tort claims. Against Roe, Doe asserts a single cause of action: defamation. Both Marymount and Roe have filed threshold motions to dismiss. Marymount's motion to dismiss will be addressed in a separate memorandum opinion. The sole focus here is whether Doe's defamation claim against Roe should be dismissed as a matter of law.

Roe's motion to dismiss Doe's defamation claim presents the following issues for resolution: (i) whether Doe's defamation claim is time-barred, (ii) whether Roe is entitled to either absolute or qualified immunity for her statements to Marymount investigators and others accusing Doe of sexual assault, and (iii) whether Doe's complaint identifies the defamatory statement(s) with sufficient specificity to survive a motion to dismiss. Because these legal issues have been fully briefed and argued, the matter is now ripe for disposition.

I.

The facts recited here are derived from plaintiff's complaint and must be accepted as true at this stage. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Doe, a subject of the United Kingdom, was an undergraduate student at Marymount between August 2014 and August 2016. Roe, a citizen of the Commonwealth of Virginia, was also a student at Marymount at that time and ultimately graduated in 2017. Doe and Roe first came into contact with one another in November 2014, when Roe contacted Doe by text message. The two arranged for Roe to visit Doe's dorm room on November 8, 2014.

On November 8, Roe arrived at Doe's room at 6:06 p.m. and the two talked for about twenty minutes in the presence of Doe's roommate. The complaint alleges that when Doe's roommate left the room, Doe and Roe "began to make out" and "fondle each other," but that neither touched the other's genitals. Compl. ¶ 65. The complaint further alleges that after approximately thirty minutes Roe got up and said she wanted to go visit some other friends. Doe purportedly "stood up and leaned against the door, in a friendly, playful effort to persuade [ ] Roe not to leave, [but] he did not forcefully restrain her from leaving." Id. ¶ 67. Thereafter, according to the complaint, Roe kissed Doe on the cheek, told him she needed to meet some friends, and then left his room without incident.

At 8:10 p.m., approximately one hour later, Doe texted Roe telling her that he was "hanging out" with his friends and asking her what she was doing. Roe responded at 8:23 p.m., asking "Y'all aren't going out," and then stating "I'm eating pizza haha." Id. ¶ 70. After that exchange, Doe texted Roe several times, but Roe "was slow to respond and did not appear ... to be interested in meeting up again." Id. ¶ 71. On November 15, 2014, after receiving no communication from Roe, Doe texted Roe the following message: "So I don't mean to be [a] weirdo but I wanna ask what's up[?] [I]t's bothering me." Id. ¶ 72. Six days later, Roe responded to Doe's November 15 message, saying, "Hey, so I don't know what you remember about when I was in your room the other night, but you really scared me when you wouldn't take no for an answer. I think you're a really nice guy, I really, really do, but you got really pushy and I just wanted to let you know ... I hope you have an amazing weekend!!" Id. Doe replied to Roe's message stating, "Ok I'm sorry I frightened you, you have a good one too." Id. ¶ 73. This text message was the last direct communication between Doe and Roe.

On the evening of November 8, 2014, the complaint alleges that Roe told another Marymount student, Z.M., that Doe had physically and sexually assaulted her. Z.M. was apparently the first person with whom Roe shared her assault allegations. According to the complaint, Roe did not tell anyone else about the alleged assault until late summer or early fall 2015, when she shared her allegations with her resident assistant C.S.² C.S., in turn, filed a written report with Marymount, detailing Roe's assault allegations. This report led Marymount to initiate a Title IX investigation into the November 8, 2014 incident. Doe was first notified by Marymount officials of Roe's allegations against him on September 8, 2015.³

As part of Marymount's investigation, Roe was interviewed by investigators on two separate occasions: October 1, 2015 and November 18, 2015. According to the complaint, Roe made the following statements to Marymount's investigators in these interviews:⁴

• Roe told investigators that Doe held her down on the bed and tried to remove her clothes by force.

• Roe stated that Doe performed oral sex on her without her consent and that she "kneed him in the face" to stop him.

• Roe further stated that when she got up off the bed, Doe pushed her into the door and put his fist up her vagina while she was standing there.

• Roe claimed that Doe locked the door from the inside, preventing her from leaving.

• Roe finally alleged that Doe took off his pants and threw her on the bed, but that she "grabbed and yanked his penis," and he let her leave saying "if you don't want me, that's ok." Id. ¶ 105.

According to the complaint, Marymount's investigators also interviewed Roe's roommate, L.J., who told investigators that Roe had previously stated that she wanted to "climb [Doe] like a [expletive] tree" and wanted him to "throw [her] against the wall." Id. ¶ 76. L.J. further reported to the Marymount's investigators that upon Roe's return to their shared dorm room on the evening of November 8, 2014, Roe was "happy and giddy," showed off her hickeys, and told her roommates that Doe was "good with his tongue." Id. ¶ 75. L.J. further stated to the investigators that after no one paid attention to Roe she started drinking heavily and her mood changed. According to the complaint, L.J. told investigators that only after being ignored by her roommates and consuming alcohol did Roe claim that Doe had been "aggressive" with her and that she "didn't ask for it." Id. ¶ 76. L.J. also allegedly told investigators that Roe was "good at making herself seem like a victim" and that she often "bent the truth." Id. ¶ 105. Another female student, W.R., was also interviewed by investigators and confirmed that immediately following the alleged assault, Roe was bragging about the hickeys she received from Doe.

After interviewing the relevant parties, Marymount's investigators determined "that there [was] sufficient information alleged to suggest that violations of [Marymount's sexual misconduct policy] may have occurred." On May 12, 2016, the investigators referred the matter for a hearing before an adjudicator. The investigators reached this conclusion over Doe's repeated procedural objections. In the complaint, Doe alleges that Marymount's procedures throughout the investigation were grossly inadequate and were designed to ensure that male students were found guilty of sexual assault. Specifically, the complaint identifies the following deficiencies: (i) that Doe was permitted to speak with his attorney for fewer than two minutes during his initial meeting with Marymount's investigators; (ii) that Marymount refused to allow Doe's attorney to review the draft investigative report; (iii) that Doe was not given his own copy of the investigative report, but was instead allowed to take notes after reviewing Marymount's copy of the report; (iv) that the investigative team overruled Doe's objections to the report and included objectionable information in the final report that was provided to the adjudicator; (v) that Marymount refused Doe's request to meet with the adjudicator in person; (vi) that the adjudicator refused to consider any evidence other than Doe's and Roe's competing written accounts of the event (including exculpatory evidence Doe had provided); (vii) that Marymount denied Doe access to records concerning the investigation and adjudication, i.e. he was given no formal discovery; (viii) that Doe was not allowed to call any witnesses or to present any documentary evidence; (ix) that Doe was not allowed to confront or to cross-examine Roe; and (x) that Marymount subsequently allowed a biased individual to serve as a Title IX adjudicator, evidencing its intent to adjudicate male students guilty of sexual assault.

Over Doe's objections, the report prepared by Marymount's investigators was provided to the adjudicator. The adjudicator also considered Doe's written statement, which was submitted on June 27, 2016, and Roe's written statement, which was submitted on June 30, 2016. On the basis of this record, which Doe claims was deficient in several respects, including the failure to include and assess exculpatory evidence, the adjudicator determined by a preponderance of the evidence that Doe had violated Marymount's sexual misconduct policy on November 8, 2014, and recommended suspending Doe from Marymount through the summer semester of 2018. The adjudicator issued his decision on July 11, 2016.

Doe appealed the adjudicator's decision, but this appeal was ultimately denied on August 8, 2016. Roe also submitted a written statement to the appellate adjudicator in response to Doe's appeal. Roe's final written statement was...