Spagna v. Phi Kappa Psi, Inc.

• Decision Date: 05 April 2022
• Docket Number: 20-3697
• Citation: 30 F.4th 710
• Parties: Teresa SPAGNA, Plaintiff - Appellant v. PHI KAPPA PSI, INC., a non-profit corporation; Creighton University Beta Chapter of the Phi Kappa Psi Fraternity, an unincorporated association; Park Avenue Phi Psi House, Inc., a non-profit corporation, Defendants Collin Gill, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Daniel W. Tift, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Jonah M. Buss, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Cody M. Casper, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Troy M. Taylor, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Alan J. Anderson, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; David Meler, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Brendan Tobin Rezich, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Phi Kappa Psi Fraternity, Inc., a non-profit Corporation; Nebraska Beta Chapter of Phi Kappa Psi Fraternity, an unincorporated association, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

30 F.4th 710

Teresa SPAGNA, Plaintiff - Appellant

v. PHI KAPPA PSI, INC., a non-profit corporation; Creighton University Beta Chapter of the Phi Kappa Psi Fraternity, an unincorporated association; Park Avenue Phi Psi House, Inc., a non-profit corporation, DefendantsCollin Gill, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Daniel W. Tift, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Jonah M. Buss, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Cody M. Casper, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Troy M. Taylor, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Alan J. Anderson, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; David Meler, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Brendan Tobin Rezich, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Phi Kappa Psi Fraternity, Inc., a non-profit Corporation; Nebraska Beta Chapter of Phi Kappa Psi Fraternity, an unincorporated association, Defendants - Appellees

No. 20-3697

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2021

Filed: April 5, 2022

Matthew A. Lathrop, Law Office of Matthew A. Lathrop, Matthew Stein, Oval Car Accident Law By Stein, Omaha, NE, for Plaintiff-Appellant.

Michael T. Gibbons, Raymond E. Walden, Woodke & Gibbons, Omaha, NE, for Defendant-Appellee Collin Gill.

Douglas W. Krenzer, Amy Marie Locher, Locher & Pavelka, Omaha, NE, for Defendants-Appellees Daniel W. Tift, Jonah M. Buss, Nebraska Beta Chapter of Phi Kappa Psi Fraternity.

Karen K. Bailey, Engles & Ketcham, Douglas W. Krenzer, Amy Marie Locher, Locher & Pavelka, Omaha, NE, for Defendant-Appellee Cody M. Casper.

Thomas A. Grennan, John A. McWilliams, Gross & Welch, Douglas W. Krenzer, Amy Marie Locher, Locher & Pavelka, Omaha, NE, for Defendant-Appellee Troy M. Taylor.

Timothy A. Clausen, Douglas L. Phillips, Klass Law Firm, Sioux City, IA, Douglas W. Krenzer, Amy Marie Locher, Locher & Pavelka, David J. Myers, Berkshire & Burmeister, Omaha, NE, for Defendant-Appellee Alan J. Anderson.

Douglas W. Krenzer, Amy Marie Locher, Locher & Pavelka, Joseph P. Naatz, Kreikemeier Law Offices, Omaha, NE, for Defendant-Appellee David Meler.

Renee A. Eveland, Megan S. Wright, Cline & Williams, Lincoln, NE, Douglas W. Krenzer, Amy Marie Locher, Locher & Pavelka, Omaha, NE, for Defendant-Appellee Brendan Tobin Rezich.

Dana Livingston, Attorney, Cokinos & Young, Jennifer A. Riso, Spencer & Fane, Austin, TX, for Defendant-Appellee Phi Kappa Psi Fraternity, Inc.

Before BENTON, KELLY, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Teresa Spagna and Christopher Wheeler were students at Creighton University ("Creighton") in Omaha, Nebraska, during January and February of 2017. In the early morning hours of February 11, 2017, Wheeler, who was black-out drunk after the preceding weeks of participating in Phi Kappa Psi Fraternity's rush and initiation activities, entered Spagna's dorm room and slashed her throat with a pocketknife. Spagna survived the attack.

Spagna commenced this tort action against Phi Kappa Psi Fraternity, Inc., Nebraska Beta Chapter of Phi Kappa Psi Fraternity, and several other entities and individuals associated with the fraternity and university.¹ Each defendant either moved to dismiss the complaint or moved for a judgment on the pleadings. Spagna, in turn, moved for entry of final judgment. The district court² granted each of the defendants’ motions and denied Spagna's motion as moot. We review de novo the grants of the motions to dismiss and for judgment on the pleadings, East Coast Test Prep LLC v. Allnurses.com, Inc., 971 F.3d 747, 751 (8th Cir. 2020), and we affirm.

I. BACKGROUND

We review the grants of motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) and motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) applying the same standard. Packard v. Darveau, 759 F.3d 897, 900 (8th Cir. 2014). At this stage of litigation, we accept as true the facts alleged in Spagna's amended complaint and grant all reasonable inferences in her favor, determining whether she pled "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of "entitlement to relief." ’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

In 2016 the Nebraska Beta Chapter of Phi Kappa Psi Fraternity (the "Chapter") at Creighton was accused of engaging in hazing and allowing underage drinking. An investigation ensued, resulting in a conclusion that the "Chapter violated multiple provisions of Creighton Student Conduct policy, Creighton Greek Event Guidelines, and State Law." Creighton placed the Chapter on "social probation." The terms of the Chapter's probation required "the Chapter, its officers, and members follow state law, local law[,] and Creighton guidelines regarding underage drinking and alcohol [at] fraternity events." One probation term specifically required the "Chapter's ‘Rush,’ and initiation activities in 2017" be alcohol-free. The national organization of Phi Kappa Psi Fraternity—Phi Kappa Psi Fraternity, Inc. (the "National Fraternity")—was aware of the Chapter's discipline and "affirmatively represented to Creighton that it would ensure the Chapter's 2017 Rush and initiation activities" would be safe and free of alcohol and drugs. The 2016 investigation and subsequent probation terms were allegedly not the Chapter's first run-in with Creighton's disciplinary measures regarding hazing, underage drinking, and other dangerous behavior.

During the Chapter's 2017 Rush, the Chapter brazenly violated the terms of its probation by requiring all recruits who had accepted the Chapter's "bid," or conditional invitation to join the fraternity, to engage in activities that can only be described as hazing. These activities included "multiple occasions of forced drinking, drinking games, providing alcohol to minors, going to local bars, and encouraging alcohol consumption by pledges [i.e., recruits who accepted the bid,] to the point of vomiting and/or blacking out." Wheeler, an underage student, was among the pledges required to participate in these activities.

Initiation activities began on January 30, 2017, and lasted about a week. This week was widely known as "Hell Week" within the Chapter. Spagna alleged that the initiation activities were "expressly directed by the National Fraternity" and included, but were not limited to, a slave auction, surrendering one's cell phone, keeping all activities secret, minors consuming alcohol at the Chapter House, forced consumption of alcohol by minors to the point of vomiting and/or loss of consciousness, and withholding food and/or water. Spagna alleged most, if not all, of these hazing events occurred at the Chapter's house, which is under the control of the National Fraternity, and others named in the complaint, and that the National Fraternity is aware that the Chapter is involved in Hell Week and hazing activities.

On February 3, 2017, Wheeler's initiation into the National Fraternity hinged on passing a trivia test about the Chapter and National Fraternity. He failed. Wheeler, however, was allowed to re-test the following week. Following the re-test on February 10, 2017, Wheeler, who was allegedly still "physically and psychologically drained from the hazing[ ] and excessive drinking," went to dinner with active Chapter members and was told he had to "go to the Chapter House to play drinking games and get drunk." Collin Gill, the Chapter's president, invited Wheeler to his room to drink with other fraternity officers, including Daniel Tift, Jonah Buss, Cody Casper, Troy Taylor, Alan Anderson, David Meler, and/or Brendan Rezich. While in Gill's room, Gill gave Wheeler more alcohol and another Chapter officer passed around a water bong from which Wheeler was required to smoke marijuana.

Around 1:00 a.m. on February 11, 2017, "[w]ith the knowledge, consent, and direction of" Gill, Tift, Buss, Casper, Taylor, Anderson, Meler, and Rezich, unnamed Chapter members took Wheeler "back to Creighton's campus, where he [was] abandoned." Wheeler was left on the campus unsupervised and in a "black-out" state due to his consumption of alcohol and marijuana. Witnesses who knew Wheeler and allegedly saw him on campus that early morning described Wheeler as confused, out of character, and, at times, belligerent.

Meanwhile, Spagna was in her dorm room during the early morning of February 11, 2017. Her dorm room was unlocked because she was ill and had asked her friends to check on her. Around 1:05 a.m., Wheeler entered Spagna's room without permission and without knowing where he was. The two did not know each other. Spagna asked Wheeler to leave, and he eventually turned to exit the room. Spagna realized Wheeler accidentally left his keys, so she grabbed them. As Spagna approached Wheeler to hand him the keys, Wheeler, suddenly and without warning, turned around and slashed Spagna with a pocketknife, leaving a five-inch-long wound across her neck.

In her amended complaint, Spagna alleged that the negligence of the National Fraternity; the Chapter; and Gill, Tift, Buss, Casper, Taylor, Anderson,...