McClean v. Duke Univ.

Citation376 F.Supp.3d 585
Decision Date25 March 2019
Docket Number1:17CV603
Parties Colleen MCCLEAN, Plaintiff, v. DUKE UNIVERSITY, Sheila Broderick, and Steven Thomas Bishop, Defendants.
CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina

376 F.Supp.3d 585

Colleen MCCLEAN, Plaintiff,
DUKE UNIVERSITY, Sheila Broderick, and Steven Thomas Bishop, Defendants.


United States District Court, M.D. North Carolina.

Signed March 25, 2019

376 F.Supp.3d 595

Robert C. Ekstrand, Ekstrand & Ekstrand, LLP, Durham, NC, for Plaintiff.

Dan Johnson McLamb, John B. Ward, Yates, McLamb & Weyher, LLP, Raleigh, NC, David O. Lewis, Bryant, Lewis & Lindsley, P.A., Durham, NC, for Defendants.


OSTEEN, JR., District Judge

This case is currently before the court on three motions to dismiss, one filed separately by each Defendant: Duke University ("Duke"), (Doc. 29), Sheila Broderick ("Broderick"), (Doc. 26), and Steven Thomas Bishop ("Bishop"), (Doc. 31). Each Defendant moves to dismiss the relevant claims contained in Plaintiff Colleen McClean's First Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Based on the following analysis, this court determines that Duke's motion to dismiss should be granted in full. This court further finds that the motions to dismiss filed by Defendants Broderick and Bishop should each be granted in part and denied in part, as set forth herein.


A. Factual Background

In reviewing a motion to dismiss, this court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

Plaintiff was a dual-degree student enrolled in Duke's School of Medicine and Graduate School. (First Amended Complaint ("Am. Compl.") (Doc. 20) ¶ 13.) According to the Complaint, at some point in time, Plaintiff was raped and sexually assaulted by Bishop.1 (Id. ¶ 12.) Plaintiff reported the rape and then confronted Bishop, who became angry and threatened Plaintiff. (Id. ¶ 15.) Bishop was, at the time, in a relationship with Broderick, Duke's Coordinator of Gender Violence Intervention Services. (Id. ¶ 16-17.) Bishop allegedly continued to harass Plaintiff and threatened that Broderick, as his girlfriend, would use her position to undermine Plaintiff's credibility and destroy Plaintiff's reputation if Plaintiff continued to pursue complaints about the alleged assault.2 (Id. ¶¶ 16-19.) When Plaintiff attempted to report the assault through Duke, she was referred to Broderick and wrote Broderick to request counselling and other support services, (id. ¶¶ 21-22), which Broderick failed to provide.

Plaintiff alleges further that, over an unspecified time period, Bishop and Broderick engaged in a campaign to impugn Plaintiff's reputation by (1) making false stalking reports to the Duke Police Department, (id. ¶¶ 30-31), (2) disclosing Plaintiff's confidential sexual assault report widely within the university, (id. ¶ 32),

376 F.Supp.3d 596

(3) causing a Duke University Police officer to make false statements regarding Plaintiff at a custody hearing involving Bishop, (id. ¶¶ 35-37), and (4) compiling and disseminating negative information about Plaintiff to destroy her reputation both at Duke and within the medical community at large, (id. ¶¶ 43, 48-49.)

Plaintiff alleges that other Duke officials and administrators were involved, to varying degrees, in the scheme perpetrated by Bishop and Broderick. First, Broderick's immediate supervisor refused to provide any counselling or other services when Plaintiff followed up on her letter to Broderick and instead directed Plaintiff to seek help outside the university. (Id. ¶ 24.) Second, Broderick's colleague in the Student Affairs Division allegedly "interrogated" Plaintiff about her complaint and relationship with Bishop. (Id. ¶ 29.) Third, another Student Affairs administrative allegedly told Plaintiff that Duke would not treat Plaintiff's letter to Broderick as confidential and that Duke was not investigating the alleged rape. (Id. ¶¶ 32-33.) Finally, when one of Broderick's colleagues reported Broderick's behavior to "supervisors" and "managing employees" of the university, these supervisors "took no meaningful action." (Id. ¶¶ 47-50.)

B. Procedural History

Plaintiff filed her initial complaint in the Durham County Superior Court, (Doc. 4), and the case was then removed by Duke to this court. (Doc. 1.) Plaintiff filed an amended complaint (Am. Compl. (Doc. 20).) Each Defendant moved to dismiss the First Amended Complaint3 and filed a brief in support of that motion: Duke, (Docs. 29, 30), Broderick, (Docs. 26, 27), and Bishop, (Docs. 31, 32.) Plaintiff responded opposing each motion: Duke, (Doc. 37), Broderick, (Doc. 39), and Bishop, (Doc. 38). Each Defendant then replied: Duke, (Doc. 42), Broderick, (Doc. 43), and Bishop, (Doc. 44).

C. Jurisdiction and Governing Law

This court has jurisdiction over Plaintiff's Title IX claim because it arises under federal law. See 28 U.S.C. § 1331. When a federal court has federal question jurisdiction over some claims, it may exercise supplemental jurisdiction over all related claims that "form part of the same case or controversy." See 28 U.S.C. § 1367 ; see also Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 616 (4th Cir. 2001) (observing that the district court had discretion to exercise supplemental jurisdiction and could retain or remand to state court any state law claims after all federal claims were dismissed). Plaintiff's state claims all relate to the same factual nexus as Plaintiff's federal claims: Plaintiff's alleged rape, attempts to report and seek treatment following the rape, and the alleged harassment of Plaintiff by Bishop and Broderick. Therefore, these claims are all part of the same case or controversy, and this court may properly exercise supplemental jurisdiction over the state law claims.

A federal court sitting in diversity or supplemental jurisdiction applies state substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465-66, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) ; Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72-73, 79-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ; see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (holding that federal courts are "bound to apply state law" to pendant claims); In re Exxon Valdez, 484 F.3d 1098, 1100 (9th Cir. 2007) (finding

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that Erie's central holding applies to supplemental jurisdiction cases).

This court, sitting in supplemental jurisdiction, "has a duty to apply the operative state law as would the highest court of the state in which the suit was brought." Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th Cir. 1992). If the state's highest court has not addressed an issue, then a "state's intermediate appellate court decisions constitute the next best indicia of what state law is although such decisions may be disregarded if the federal court is convinced by other persuasive data that the highest court of the state would decide otherwise." Id. (internal quotation marks and citation omitted).

D. Standard of Review

"To survive a motion to dismiss, 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) ). To be facially plausible, a claim must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable" and must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955 ). When ruling on a motion to dismiss, a court must accept the complaint's factual allegations as true. Id. Further, "the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor." Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D.N.C. 2004) (citation omitted).

Nevertheless, the factual allegations must be sufficient to "raise a right to relief above the speculative level" so as to "nudge[ ] the[ ] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955 ; see also Iqbal, 556 U.S. at 680, 129 S.Ct. 1937 ; Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (applying the Twombly/Iqbal standard to evaluate the legal sufficiency of pleadings). A court cannot "ignore a clear failure in the pleadings to allege any facts which set forth a claim." Estate of Williams-Moore, 335 F.Supp.2d at 646. Consequently, even given the deferential standard allocated to pleadings at the motion to dismiss stage, a court will not accept mere legal conclusions as true and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

E. Statute of Limitations

The statute of limitations for a Title IX claim is determined by reference to the state statute most closely analogous to Title...

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