Routh v. Univ. of Rochester

• Decision Date: 05 November 2013
• Docket Number: No. 11–CV–6606 CJS.,11–CV–6606 CJS.
• Citation: 981 F.Supp.2d 184
• Parties: Dylan ROUTH, Plaintiff, v. UNIVERSITY OF ROCHESTER, Sarah Hulbert (as staff member of the University of Rochester) and Sarah Hulbert (individually), Defendants.
• Court: U.S. District Court — Western District of New York

981 F.Supp.2d 184

Dylan ROUTH, Plaintiff,

v.UNIVERSITY OF ROCHESTER, Sarah Hulbert (as staff member of the University of Rochester) and Sarah Hulbert (individually), Defendants.

No. 11–CV–6606 CJS.

United States District Court,

W.D. New York.

Nov. 5, 2013.

Jeffrey Wicks, Jeffrey Wicks, PLLC, Rochester, NY, for Plaintiff.

Harold A. Kurland, Anitra Das, Ward Greenberg Heller & Reidy LLP, Rochester, NY, for University of Rochester.

Paul L. Leclair, Mary Jo S. Korona, Laurie A. Giordano, Jeremy M. Sher, Leclair Korona Giordano Cole LLP, Rochester, NY, for Sarah Hulbert.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

In the instant action a male former student at the University of Rochester is suing the University and a female classmate over actions that resulted in him being expelled. Now before the Court are the following motions: 1) the University of Rochester's (“the University”) motion to dismiss (Docket No. [# 9] ); 2) Sarah Hulbert's (“Hulbert”) motion to dismiss [# 12]; 3) Hulbert's motion to seal [# 12]; 4) Hulbert's motion for sanctions [# 15]; 5) Plaintiff Dylan Routh's (“Plaintiff” or “Routh”) cross-motion to amend [# 19]; 6) Hulbert's second motion for sanctions [# 23]; and 7) Routh's second cross-motion to amend [# 34].

The applications are granted in part and denied in part as follows: Routh's motion to amend [# 19] is denied as withdrawn; Routh's motion to amend [# 34] is granted as to his defamation claim against Hulbert, but is otherwise denied as futile; the University's motion to dismiss [# 9] is granted in its entirety, and the University is dismissed from the action; Hulbert's motion to dismiss [# 12] is denied as to the defamation claim against her, but is otherwise granted; Hulbert's motions for sanctions [# 15] [# 23] are denied; and Hulbert's motion to seal [# 12] is denied.

BACKGROUND

At the outset the Court must determine what facts it can consider. It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited in that regard. See, e.g., Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y. Sep. 24, 2012) (“[T]he [general] rule [is] that documents outside the pleadings cannot be considered in a 12(b)(6) motion.”). On a 12(b)(6) motion,

the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.

Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.

Chambers v. Time Warner, Inc., 282 F.3d 147, 152–153 (2d Cir.2002) (citations omitted). In considering whether a document is “integral” to the complaint, “a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.” Id., 282 F.3d at 153 (citation and footnote omitted).

In this case, the Court finds that in addition to the Complaint (Docket No. [# 1] ) and the proposed Amended Complaint (Docket No. [# 34], Exhibit A), the Court may consider the following documents in the record: 1) Dean Levy's letter to Routh, (Docket No. [# 9–6] ), dated, September 22, 2011, informing him of the charges against him, since the letter is incorporated by reference into the proposed pleading, see, Docket No. [# 34], Exhibit A at ¶ 25; 2) the University of Rochester's (“the University”) Standards of Student Conduct, see, Docket No. [# 9–3], since the pleading repeatedly refers to the document and quotes it, in connection with Routh's claim that the University violated its terms; 3) the University's written decision expelling Routh, consisting of Dean Levy's letter dated September 30, 2011, (Docket No. [# 9–7] ), Routh's appeal dated October 14, 2011 (Docket No. [# 26] at pp. 33–41), Routh's reply to his appeal dated November 8, 2011 (Docket No. [# 26] at pp. 54–61) and Dean Lennie's letter-decision denying the appeal, dated December 2, 2011 (Docket No. [# 9–9] ), since they are incorporated by reference and since Routh obviously relied on them in drafting the pleading, see, [# 34], Exhibit A at ¶¶ 45–49, 76–80, 82; ¹ and 4) Dean Lennie's email to Routh dated November 1, 2011, concerning Routh's complaint of gender discrimination (Docket No. [# 9–8] at p. 2), and Paul Burgett's decision denying Routh's gender discrimination complaint (Docket No. [# 9–10] ), since the documents are incorporated by reference and since Routh obviously possessed them and relied on them in drafting the proposed amended pleading, see, docket no. [# 34–2] at ¶¶ 26–30, 88, 94, 96. From these documents (“the record”), the Court will set forth the facts of the case.

Factual History

At all relevant times Routh and Hulbert were students enrolled at the University. Hulbert was employed by the University as a Resident Assistant (“RA”), and Hulbert's father was also an employee of the University. At all relevant times Routh and Hulbert were adults.

Prior to September 16, 2011, Routh had not been accused by anyone at the University of sexual misconduct. Routh did, however, have a record of certain disciplinary infractions at the University. Specifically, Routh, who admits to having had a drug addiction prior to the events at issue here, was cited for possessing drug paraphernalia and for violating the University's alcohol policy. Routh contends, though, that the latter infraction merely involved him possessing a shot glass that he purchased at the University bookstore. Routh was also cited for being in the University library after closing time and for having a wireless computer router in violation of University policy. Routh was also cited for possessing chairs belonging to the University, although he maintains that the University had discarded them. Lastly, Routh was cited for possessing a knife, which he contends he needed because he had previously been robbed at gunpoint in Rochester.

Between September 2008 and September 2011, Routh and Hulbert engaged in sexual activity with each other at the University. Some of the sexual acts involved “bondage.” It is undisputed that all of the sexual activity prior to September 2010, and some of it thereafter, was consensual. Routh maintains, though, that all of his and Hulbert's sexual activity was consensual. Hulbert, however, as discussed further below, disagrees.

On or about September 16, 2011, Routh informed Hulbert that he was no longer interested in having sexual activity with her. As of that date, Hulbert had never made any complaints about Routh to the University. On September 19, 2011, Hulbert filed a complaint against Routh with the University, accusing him of committing sexual acts against her without her consent, and otherwise assaulting her, during the previous year. In that regard, Hulbert submitted a five-page written statement, which is not part of the record, in which she described the alleged assaults. Routh maintains that Hulbert's statement accused him of acts involving strangulation, rape and forcible imprisonment.

On September 20, 2011, the University notified Routh that he was summarily suspended and had to leave the campus. On September 22, 2011, Morgan Levy (“Levy”), a Dean at the University, sent Routh a letter which stated, in pertinent part:

Dear Mr. Routh,

I received a report containing allegations that you have physically, sexually and emotionally abused University of Rochester student Sarah Hulbert on repeated occasions beginning September 2010 and continuing until the present time. Specifically the report alleges that at various times you had anal and vaginal sexual intercourse with Sarah without her consent, hit her, burned her, whipped her, strangled her and detained her against her will. The full details of these allegations are included in the case file which will be made available for you to review. As a result of this report you have been charged by the University with allegedly violating the Standards of Student Conduct, Section VI, item(s):

5(a) Disorderly conduct including: fighting, threats, assault, attempted assault, harassment, or other actual or attempted conduct which threatens the health or safety of yourself or another.

11. Sexual harassment, racial harassment, or any other forms of illegal discrimination.

12. Sexual misconduct or assault, including any form of unwanted sexual contact. ‘Unwanted’ means against a person's wishes or without consent, including those instances in which the individual is unable to give consent because of unconsciousness, sleep, impairment, or intoxication due to alcohol or other drugs.

I am providing official notification that a hearing has been scheduled to determine whether or not you are responsible for violating these policies. The hearing will be held on Thursday, September 29th, at 9AM in Wilson Commons 510. (This location is subject to change. If a change of location is necessary you will be notified prior to the hearing.

)

You are invited to have a University community member as an advisor to assist you during the hearing, as long as this person is not an attorney. I sent you a list of specially trained advisors via e-mail yesterday and would encourage you to use one of the individuals on that list if you plan to have an advisor.

If you plan to have any witnesses present, I will need their names, telephone numbers, and addresses by 4:00 p.m. on Tuesday, September 27th, 2011. Prior to the time of the hearing, I highly recommend that you read the Standards of Student Conduct regarding procedures, policies, conduct regulations, and student rights. A copy of the Standards of Student Conduct can be found at the following link: http:// www. rochester/ edu/ college/ dos/ conduct/

The file containing all pertinent case documentation will also be available for your review. Typically,...