Rossley v. Drake Univ. & Drake Univ. Bd. of Trs.

• Decision Date: 12 June 2018
• Docket Number: No. 4:17-cv-00058-RGE-SBJ,4:17-cv-00058-RGE-SBJ
• Citation: 336 F.Supp.3d 959
• Parties: Tom ROSSLEY, Plaintiff, v. DRAKE UNIVERSITY and Drake University Board of Trustees, Defendants.
• Court: U.S. District Court — Southern District of Iowa

336 F.Supp.3d 959

Tom ROSSLEY, Plaintiff,

v.DRAKE UNIVERSITY and Drake University Board of Trustees, Defendants.

No. 4:17-cv-00058-RGE-SBJ

United States District Court, S.D. Iowa, Central Division.

Signed June 12, 2018

Andrew T. Miltenberg, Pro Hac Vice, Diana R. Warshow, Pro Hac Vice, Gabrielle M. Vinci, Pro Hac Vice, Nesenoff & Miltenberg, LLP, New York, NY, David Harris Goldman, Phillip F. Van Liew, Babich Goldman, P.C., Des Moines, IA, for Plaintiff.

Frances M. Haas, Frank B. Harty, Mary E. Funk, Nyemaster Goode PC, Des Moines, IA, for Defendants.

ORDER RE: DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

Rebecca Goodgame Ebinger, United States District Judge

I. INTRODUCTION

Plaintiff Tom Rossley brings this suit against Defendants Drake University and Drake University Board of Trustees challenging his termination as a member of the University's Board of Trustees and contesting Drake's Title IX investigation of Rossley's son. Am. Compl., ECF No. 26. Defendants move for partial judgment on the pleadings as to Count I—alleging retaliation under Title IX—against Drake University. ECF No. 53. For the reasons set forth below, the Court determines Rossley has not pleaded he was subjected to discrimination under an education program or activity and therefore lacks statutory standing to bring a retaliation claim under Title IX. Consequently, the Court grants Defendants' motion for partial judgment on the pleadings.

II. FACTUAL & PROCEDURAL BACKGROUND

Rossley served as a member of the Drake University Board of Trustees for twenty-three years. ECF No. 26 ¶ 14. In the fall of 2015, Drake University commenced a Title IX¹ investigation into an allegation of sexual assault by Rossley's son. Id. ¶ 49. As relevant here, Rossley believed the investigation was unlawful and biased against his son due to his son's gender. See id. ¶¶ 30, 161. Rossley contacted Drake University's Dean of Students regarding his concerns. Id. ¶¶ 58, 65–69. In April 2016, Rossley wrote an email and sent a letter to Drake University's Dean of Students, the Board, and "select members of Defendant Drake's faculty and administration" expressing his concerns with the Title IX investigation of his son. Id. ¶¶ 87–95. In mid-July 2016, the Board voted to remove Rossley from the Board of Trustees. Id. ¶¶ 122, 127.

In February 2017, Rossley brought this suit. Compl., ECF No. 1. In July 2017, Rossley filed an Amended Complaint. ECF No. 26. Following the Court's December 20, 2017 Order on Defendants' Partial Motion to Dismiss, the following counts of the Amended Complaint remain: Count I (retaliation under Title IX against Defendant Drake University); Count II (breach of fiduciary duties against Defendant Board); Count III (breach of Drake's policies and procedures against both Defendants); and Count V (retaliation under the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act, and the Iowa Civil Rights Act against both Defendants).See ECF No. 41 at 15–16.²

On February 20, 2018, Defendants filed a motion for partial judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). ECF No. 53. Defendants request the Court dismiss Count I against Drake University. Id. ¶ 6. Defendants assert Rossley lacks statutory standing because "[a]s a non-student, Rossley cannot suffer the systemic denial of access to education programs and activities and [thus] is not within the zone of interests that Title IX is meant to protect." Id. ¶¶ 3–4. Rossley resists. ECF No. 54. Neither party requested a hearing.

III. LEGAL STANDARD

A. Defendants' Rule 12(c) Motion

Before the Court considers the substance of Defendants' motion, the Court first addresses Rossley's argument that Defendants have waived their right to bring a motion under Federal Rule of Civil Procedure Rule 12(c). Rule 12(c) provides "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." "A grant of judgment on the pleadings is appropriate ‘where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law.’ " Poehl v. Countrywide Home Loans, Inc. , 528 F.3d 1093, 1096 (8th Cir. 2008) (quoting Faibisch v. Univ. of Minn. , 304 F.3d 797, 803 (8th Cir. 2002) ).

Rossley contends Defendants have waived their right to bring a motion under Rule 12(c), as Defendants' Answer and affirmative defenses raise various factual disputes. ECF No. 54 at 4–6. Defendants resist, asserting affirmative defenses do not bar judgment on the pleadings in the Eighth Circuit and arguing their Rule 12(c) motion is procedurally appropriate. Defs.' Reply Supp. Mot. J. on the Pleadings 1, ECF No. 55. The Court determines Defendants did not waive their right to bring a 12(c) motion by raising affirmative defenses or filing an Answer.

In recognition of the Rule 12(c) requirement that there be "no material issue of fact" as to the parties' claims, courts have determined a defendant's answer or affirmative defenses may create a "material issue of fact" barring a judgment on the pleadings. See, e.g., Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church , 887 F.2d 228, 230 (9th Cir. 1989) ; Munt v. Minn. Dep't of Corr. , No. 16-cv-1206 (SRN/SER), 2017 WL 1232410, at *10 (D. Minn. Jan. 27, 2017), adopted as modified , No. 16-1206 (SRN/SER), 2017 WL 1180452 (D. Minn. Mar. 29, 2017) ; Lasser v. Am. Gen. Life Ins. , No. 14-cv-3326 (MJD/LIB), 2015 WL 12778004, at *3 (D. Minn. Apr. 3, 2015). However, contrary to Rossley's assertions, these decisions do not stand for the proposition that a defendant waives its right to bring a Rule 12(c) motion by raising affirmative defenses or denying factual allegations in an answer. Rather, the cases cited by Rossley involve a plaintiff's inability to move for judgment on the pleadings after a defendant has raised affirmative defenses. See Gen. Conference Corp. , 887 F.2d at 230 ; Munt , 2017 WL 1232410, at *10 ; Lasser , 2015 WL 12778004, at *3–4 ; Lake v. Aetna Life Ins. , 54 F.Supp.3d 331, 334–35 (D.N.J. 2014) ; Clark v. Transamerica Life Ins. , No. 4:09-CV-00877 GTE, 2010 WL 2771916, at *2–3 (E.D. Ark. June 18, 2010) ; see also ECF No. 54 at 4–6 (discussing these cases). Rossley has pointed to no case law to support his proposition that a defendant waives its right to bring a Rule 12(c) motion by raising affirmative defenses or denying the plaintiff's factual allegations. Cf. Gallagher v. City of Clayton , No. 4:11-CV-392 CAS, 2011 WL 6140905, at *1–2, *8 (E.D. Mo. Dec. 9, 2011) (granting defendants' judgment on the pleadings after the plaintiff failed to plausibly assert a claim alleging the city's smoking ban failed rational basis review)

Defendants are required, pursuant to Rule 8(b)(1), to raise all affirmative defenses in their answer and respond to the factual allegations in the plaintiff's complaint. See Fed. R. Civ. P. 8(b)(1) (requiring a responding party to "state in short and plain terms its defenses to each claim" and "admit or deny the allegations asserted against it by an opposing party"). This Rule would be undermined if a responding party had to choose between raising affirmative defenses and filing a motion under Rule 12(c). This is especially true as Rule 12(c) may only be brought after the pleadings are closed. See Fed. R. Civ. P. 12(c).

Finally, the Federal Rules of Civil Procedure expressly permit parties in Defendants' position to bring Rule 12(c) motions. Specifically, Defendants assert Rossley lacks statutory standing and thus cannot pursue his claim for retaliation under Title IX. ECF No. 53 ¶ 4. This is, in essence, an argument that Rossley has failed to assert a claim under which relief may be granted. See Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 1387 & n.4, 188 L.Ed.2d 392 (2014) (considering a party's motion to dismiss for failure to state a claim and determining statutory standing is not a "jurisdictional" question, but rather a consideration of whether the plaintiff "has a cause of action under the statute"); Leyse v. Bank of Am. Nat'l Ass'n , 804 F.3d 316, 320 (3d Cir. 2015) (noting because "[s]tatutory standing goes to whether Congress has accorded a particular plaintiff the right to sue under a statute, ... ‘[a] dismissal for lack of statutory standing is effectively the same as dismissal for failure to state a claim’ ") (second alteration in original) (quoting Baldwin v. Univ. of Pittsburgh Med. Ctr. , 636 F.3d 69, 73 (3d Cir. 2011) ); see also Grasso Enters., LLC v. Express Scripts, Inc. , 809 F.3d 1033, 1040 (8th Cir. 2016) (citing with approval Pa. Chiropractic Ass'n v. Indep. Hosp. Indem. Plan, Inc. , 802 F.3d 926, 928 (7th Cir. 2015) ) (discussing Pennsylvania Chiropractic which held statutory standing "is not an issue of Article III standing to seek relief in federal court"). The Federal Rules of Civil Procedure explicitly allow defendants to move for judgment on the pleadings in such circumstances. See Fed. R. Civ. P. 12(h)(2)(B) ("Failure to state a claim upon which relief can be granted ... may be raised ... by a motion under Rule 12(c)."); cf. Leyse , 804 F.3d at 320–22 (discussing Rule 12(h)(2) and determining because the defendant had filed a second motion to dismiss under Rule 12(b)(6), rather than a post-answer Rule 12(c) motion, the district court erred by considering the motion).

Consequently, Defendants' motion for partial judgment on the pleadings is properly before the Court.

B. Applicable Legal Standard

When a party moves for dismissal for failure to state a claim pursuant to Rule 12(c), a court will apply the same standard it would have used had the motion been brought under Rule 12(b)(6). See Poehl , 528 F.3d at 1096 ; see also Westcott v. City of Omaha , 901 F.2d 1486, 1488 (8th Cir. 1990) ("[W]e review this 12(c) motion under the standard that governs 12(b)(6) motions."); 5C Charles A. Wright et al., Federal Practice and Procedure §...