Key v. Robertson

• Decision Date: 05 June 2009
• Docket Number: Civil Action No. 2:08cv174.
• Citation: 626 F.Supp.2d 566
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Adam KEY, Plaintiff v. Marion Gordon "Pat" ROBERTSON and Regent University, Defendants.

626 F.Supp.2d 566

Adam KEY, Plaintiff v. Marion Gordon "Pat" ROBERTSON and Regent University, Defendants.

Civil Action No. 2:08cv174.

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

June 5, 2009.

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Michael Bruce Hamar, Michael B. Hamar PC, Norfolk, VA, Randell Lee Kallinen, Law Office of Randell L. Kallinen, Houston, TX, for Plaintiff.

William Delaney Bayliss, Brendan David O'Toole, Williams Mullen, Richmond, VA, for Defendants.

OPINION AND ORDER

JEROME B. FRIEDMAN, District Judge.

Currently before the court are (1) motions for summary judgment, filed by defendants Marion Gordon "Pat" Robertson and Regent University ("Regent"), (2) plaintiff Adam Key's motion to enlarge his time to respond to those motions, (3) defendants' motion to strike plaintiffs untimely response to their motions for summary judgment, and (4) plaintiffs motion for leave to file a sur-reply to defendants' motions for summary judgment. Defendants have requested oral argument on their motions for summary judgment and to strike, and plaintiff has opposed defendants' request. After examination of the briefs and the record, this court determines that oral argument is unnecessary, as the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. For the reasons stated herein, the court DENIES plaintiffs motion to enlarge his time to respond, GRANTS defendants' motion to strike plaintiffs opposition brief, DENIES plaintiffs motion for leave to file a sur-reply, GRANTS defendants' motions for summary judgment, and DISMISSES this matter, with prejudice.

FACTUAL BACKGROUND

Because the court concludes below that it will deny plaintiffs untimely motion for an enlargement of time to respond to defendants' motions for summary judgment, grant defendants' motion to strike plaintiffs untimely opposition brief, and deny plaintiffs motion for leave to file a surreply, the court considers defendants' motions for summary judgment—and, correspondingly, defendants' statements of undisputed facts contained therein— unopposed. The following facts, therefore, are drawn from those sources.

This lawsuit arises from a dispute between Adam Key, a former student at Regent University School of Law ("Regent Law"), and that school's chancellor and administration. Key enrolled at Regent Law in 2006 and began classes in August of that year. Although Key's first year of law school at Regent Law was, in the words of Regent, "confrontational, insubordinate and troubling" (Regent University's Memorandum in Support of Motion for Summary Judgment ("Regent Mem.") at 1), the events that lie at the heart of this litigation began in September 2007, when Key, then a second-year law student, viewed a video clip of Robertson on the popular video sharing website YouTube (http://www.youtube.com). The video clip depicted Robertson scratching his face with his middle finger. However, when the video clip was paused at a certain frame, it appeared that Robertson was "flipping the bird" at his viewing audience. Plaintiff uploaded this still frame image (the "image") of Robertson to his account on the popular social networking website Facebook (http://www.facebook.com) and set the image as the profile image for his account.

This act shortly thereafter came to the attention of Regent Law's administration. On September 24, 2007, Natt Gantt, Regent Law's Associate Dean for Student Affairs, requested to meet with plaintiff on the following day to discuss this act. At that September 25, 2007 meeting, Gantt asked plaintiff to remove the image from his Facebook account because it violated the Regent Standard of Personal Conduct's prohibition against profane or obscene behavior. Although plaintiff agreed in the course of that meeting to remove the image from his Facebook account, since Regent's prohibition included an exception for such expressions "when used in an appropriate academic context," plaintiff came away from the meeting with the impression that he could instead place the image in another such context.

As agreed, plaintiff thereafter removed the image from his Facebook account, but then posted a discussion of it, attaching the image, on "the Branch," which is "a public e-mail list on Regent's LISTSERV which is used as an informal community for Regent staff, faculty, and students." See http://www.regent.edu/admin/ctl/ orientation/community/thebranch.cfm. The Branch is only accessible to those with regent.edu email addresses, and is distributed on a voluntary subscription basis. Id. In this connection, Regent maintains that "[n]o one at Regent advised Key to post the Robertson image on the Branch; nor did any Regent official inform Key that the Branch constituted a `proper academic context' for posting the image." Regent Mem. at 3. In other words, if Key at any point actually believed that posting the image on the Branch would fall within the "academic context" exception to Regent's Standard of Personal Conduct governing profane or obscene expressions, that belief was formed without the imprimatur of Regent or any of its administrators. In the following days, plaintiff posted additional discussions relating to the image on the Branch, including a suggestion that "[t]he value the picture serves is to show that Pat Robertson is a very bad man." Regent Mem. at 4; Ex. G.

On September 27, 2007, Regent Law Dean Jeffrey Brauch joined Gantt in holding another meeting with plaintiff to discuss plaintiffs activities, after which plaintiff was given the choice of posting an apology for his conduct on the Branch or submitting a legal brief in support of his contention that Regent's disciplinary actions against him violated the American Bar Association's ("ABA") accreditation standards for law schools. Plaintiff opted for the latter course of action, submitting his brief on October 1, 2007 and further informing Brauch that he (1) demanded a trial pursuant to Regent Law's Honor Code before the school's Honor Council, (2) had retained counsel to assist in preparing to file a lawsuit against Regent, (3) intended to submit a formal complaint to the ABA challenging Regent Law's accreditation, and (4) intended to prepare and distribute to the U.S. media a press release detailing Regent's actions. Further email correspondence between plaintiff and Brauch ensued, and Brauch informed plaintiff on October 3, 2007 of his conclusion that plaintiffs actions raised issues both under Regent's Honor Code and its Standard of Personal Conduct.

After receiving Brauch's decision, plaintiff drafted his press release and attempted to deliver it to Regent's public relations department. While there, plaintiff "exhibited unusual behavior ... that frightened some employees," which led one of them to call the Regent police and inform them that plaintiff was "`creating a disturbance' in the building." Regent Mem. at 6 (quoting Ex. J at 2). Although the employee admitted that "she ha[d] never heard or seen any threats" by plaintiff, and plaintiff was reportedly "respectful and cooperative" when Regent police subsequently encountered him outside of her office, the report of the incident categorized it as "disorderly conduct." Plaintiff subsequently issued his press release to Regent and to the national media.

Upon receiving plaintiffs press release, Brauch emailed plaintiff, indicating that he believed plaintiff's press release misrepresented the nature of their prior interactions regarding plaintiffs activities. Brauch further explained that plaintiffs alleged violation of the Regent Standard of Persona] Conduct would continue to be handled administratively by Gantt, whereas plaintiff's alleged lies and misrepresentations would be handled by Regent's Honor Council.

In the ensuing days, Regent Law's administration began receiving reports from students expressing concern and even fear about plaintiffs behavior and, indeed, his continued presence in classes at Regent Law.¹ Regent's memorandum in support of its motion for summary judgment discusses in detail (and attaches) reports from multiple students, including two of plaintiffs former roommates, an ex-girlfriend, and other acquaintances and classmates. See Regent Mem. at 7-10, 12; Exs. N-T, Z. These reports variously characterized plaintiff and his behavior as "unstable" and "erratic" (Ex. N), "on a rampage" (Ex. P), "militant, crazy, out to get people" (Ex. Q), "troubled" and "a threat to the students at Regent" (Ex. S), "very disturbed," and "a potential danger to Regent University and its students" (Ex. T). Several students communicated their belief that plaintiff was likely "to snap" and "go nuts." Regent Mem. at 8; Exs. N, Q, Z.

More alarmingly, several students reported hearing that plaintiff owned a gun and kept it in his car. Regent Mem. at 8; Exs. N, O, R. These fears were particularly heightened by the tragic Virginia Tech massacre, which had occurred less than six months before the sequence of events at issue in this case. See, e.g., Regent Mem. at 9; Exs. S (one former roommate noting that plaintiff "could turn out to be like the guy from Virginia Tech" and "may go on a shooting spree if not handled with care"), T (indicating that "the events that took place at Virginia Tech" motivated another former roommate to write to Regent Law's administration with his concerns). Consequently, some students had apparently even "planned their escape route" should a similar incident occur at Regent Law. Regent Mem. at 8; Ex. O. Plaintiff's exgirlfriend reported that plaintiff had previously "wanted to get a gun and keep it at [her] house," but that she had refused. Regent Mem. at 8; Ex. Q. One of plaintiffs former roommates also reported that although he did "not want to create a false fear" and had never heard plaintiff say anything that he "took as a serious or deliberate threat," he reported that plaintiff had an "infatuation...