Weckhorst v. Kan. State Univ.

Decision Date13 March 2017
Docket NumberCase No. 16–CV–2255–JAR–GEB
Citation241 F.Supp.3d 1154
Parties Sara WECKHORST, Plaintiff, v. KANSAS STATE UNIVERSITY, Defendant.
CourtU.S. District Court — District of Kansas

Cari Simon, Douglas E. Fierberg, The Fierberg National Law Group, PLLC, Lake Leelanau, MI, Dustin L. Van Dyk, Gary D. White, Jr., Meaghan M. Girard, Palmer, Leatherman, White, Girard & Van Dyk, LLP, Topeka, KS, for Plaintiff.

Allan V. Hallquist, Derek T. Teeter, Hayley E. Hanson, Michael T. Raupp, Husch Blackwell LLP, Kansas City, MO, for Defendant.



Plaintiff Sara Weckhorst brings this action against Defendant Kansas State University ("KSU"), alleging that KSU failed to adequately respond after Plaintiff, a KSU student, reported she was sexually assaulted at a KSU fraternity. Plaintiff alleges the following three claims: (1) violation of Title IX; (2) violation of the Kansas Consumer Protection Act ("KCPA"); and (3) negligence. This matter comes before the Court on KSU's Motion to Dismiss for Failure to State a Claim (Doc. 12), Plaintiff's Motion for Leave to Amend Complaint (Doc. 36), and KSU's Motion to Strike Portions of Proposed First Amended Complaint (Doc. 40). The parties have fully briefed the motions.

Additionally, the United States has filed a Statement of Interest (Doc. 26), to which KSU has responded (Doc. 35). The United States submits its Statement of Interest pursuant to 28 U.S.C. § 517, which provides that

[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States ... or to attend to any other interest of the United States.

The United States asserts it has an interest in this case because the United States Departments of Justice and Education share responsibility for enforcing Title IX in the education context, and because it has an interest in ensuring "effective private enforcement of Title IX in court" (Doc. 26 at 9). KSU argues that the Court should not consider the United States' Statement of Interest, because Plaintiff's administrative complaint is still pending before the Department of Education's Office of Civil Rights ("OCR"), and thus the United States should remain neutral in this litigation. Notwithstanding the apparently ongoing administrative proceedings before the OCR, the Court sees no reason why the United States cannot submit a statement of interest pursuant to § 517 to advance the various interests it has identified. Accordingly, the Court has considered the United States' Statement of Interest as well as KSU's response thereto.

Having considered the parties' and the United States' briefings, the Court is now prepared to rule. For the reasons stated in detail below, the Court grants in part and denies in part KSU's motion to dismiss, denies Plaintiff's motion for leave to amend, and grants in part KSU's motion to strike.

I. Motion to Dismiss
A. Standard

To survive a motion to dismiss for failure to state a claim, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level," and must contain "enough facts to state a claim to relief that is plausible on its face."1 To state a claim for relief under Rule 12(b)(6), "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."2 The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."3 "[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim."4 Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.5

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ "6 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.7 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."8 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."9

B. Factual Background

The following facts are taken from Plaintiff's Complaint and are construed in the light most favorable to Plaintiff. At all times relevant to this case, Plaintiff was a student at KSU.

KSU Fraternities

KSU fraternities are student housing organizations that are open only to KSU students. On its website, KSU describes its fraternities as "Kansas State University Organizations." Plaintiff alleges that 21% of the undergraduate population at KSU is affiliated with campus fraternities and sororities. The fraternities collect rent and dues from their student members, and provide housing at off-campus locations. The fraternities are overseen by national chapters as well as by KSU. The Director of the fraternity relevant to this cause of action is a KSU instructor.

In its promotional materials, KSU describes the relationship between the University and the Greek Community:

The Greek community at Kansas State University has been in existence since 1913, with a continuing tradition of excellence. Through the years we have been a community that fosters academic excellence, leadership ability, philanthropic services, and active contributions to both the campus and Manhattan communities. Our Greek community consists of 17 sororities and 28 fraternities, with a total membership of almost 4,000 undergraduate students. While each organization maintains its own activities, traditions, and national affiliations, each is founded on similar principles of scholarship, leadership, community service, and lifelong friendship.10

KSU further states in materials intended for parents of students:

The Greek experience at K–State provides a safe and fun way to maximize the college experience. Your son or daughter will also find personal growth and development extending far beyond his or her years on campus.11

Additionally, KSU employs five individuals in its Office of Greek Affairs, which is located in the KSU Student Union. The Office of Greek Affairs is responsible for carrying out a number of functions to support fraternities and sororities, including administrative assistance, advisory responsibilities, education and development, serving as a liaison to chapter presidents, holding regular meetings with chapters, and conducting chapter assessments. KSU has the authority to regulate fraternity houses, and promulgates rules for regulating parties and certain other activities at fraternity houses and events.

Alleged Sexual Assaults

On April 26, 2014, Plaintiff Sara Weckhorst attended a fraternity event at Pillsbury Crossing, a frequent K–State party location not far from campus. Plaintiff became extremely intoxicated and blacked out. Her last memory was speaking with a new acquaintance, J.F., a fellow KSU student and the fraternity's designated driver for the party. J.F. took Plaintiff into his truck and raped her while about fifteen KSU students looked on, some taking video and photographs. J.F. then transported Plaintiff to the fraternity house, which is situated about a quarter-mile from campus.

On the drive to the fraternity house, he assaulted her again. Once at the fraternity house, J.F. took Sara to the "sleep room," which was lined with beds, and raped her again. When he was finished, J.F. left her there, naked and passed out, and joined other fraternity members in partying downstairs. Several hours later, at about 10:00 p.m., Plaintiff awoke from blackout, not knowing where she was or how she got there. A man she did not know was raping her from behind. Plaintiff later learned the man was J.G., a KSU student and a member of the fraternity. Still very intoxicated and confused, Plaintiff made her way out of the bed and to a nearby patio. J.G. followed her to the patio and raped her again. J.G. informed Plaintiff that two fraternity brothers had penetrated her in the same day. Plaintiff began to cry uncontrollably, having no recollection of the earlier sexual assaults. She retrieved her clothing and went home. Plaintiff later received a text from a KSU student stating "heard you got fucked at the lake," and stating rumors about her. Plaintiff further alleges that photographs and videos of her were posted on social media and widely spread.

Plaintiff wanted to receive medical treatment the following day from the KSU Lafene Health Center, but it was closed. Plaintiff went to the Health Center the following day and received emergency contraception to prevent pregnancy from the rapes. Plaintiff next went to Mercy Regional Health Center, where a sexual assault nurse performed a rape kit to collect evidence of the assaults on her body. The rape kit procedure is an extremely intense and invasive process which takes hours. The rape kit included an examiner placing a probe in Plaintiff's vagina, taking samples off her skin and under her fingernails, combing through her pubic hair, and taking pictures of her body and vagina. Plaintiff also received antibiotics to prevent the transmission of sexually transmitted diseases she might have contracted from the rapes.

Plaintiff's Report of Sexual Assault and KSU Response

Plaintiff sought help from the KSU Women's...

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