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Doe v. Salisbury University

United States District Court, D. Maryland

August 21, 2015

JOHN DOE, et al., Plaintiffs
SALISBURY UNIVERSITY, et al., Defendants

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          For John Doe, Plaintiff: Laura Evelyn Hay, Robin R Cockey, LEAD ATTORNEYS, Cockey Brennan and Maloney PC, Salisbury, MD; Thomas Joseph Maloney, LEAD ATTORNEY, Cockey Brennan and Maloney, Salisbury, MD; Eric Rosenberg, PRO HAC VICE, Rosenberg and Ball Co Lpa, Granville, OH.

         For Richard Roe, Plaintiff: Laura Evelyn Hay, Robin R Cockey, LEAD ATTORNEYS, Cockey Brennan and Maloney PC, Salisbury, MD; Eric Rosenberg, PRO HAC VICE, Rosenberg and Ball Co Lpa, Granville, OH.

         For Jane Doe #1, Defendant: Asha S Reynolds, LEAD ATTORNEY, Sexual Assault Legal Institute, Silver Spring, MD; Joseph Ignatius Tivvis, Jr, Joseph I Tivvis Jr PA, Towson, MD.

         For Jane Doe #2, Defendant: John Paul Isacson, Jr., LEAD ATTORNEY, Mary Rose Hughes, Perkins Coie LLP, Washington, DC.

         For Jane Doe #3, Defendant: Mark Joseph Stiller, LEAD ATTORNEY, Jennifer Malia Sullam, Niles Barton and Wilmer LLP, Baltimore, MD.

         For Salisbury University, Helena Hill, Valerie Randall-Lee, Defendants: Erik James Delfosse, LEAD ATTORNEY, Office of the Attorney General, Baltimore, MD; Corlie McCormick, Jr, Maryland Office of the Attorney General, Educational Affairs Division, Baltimore, MD.

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         James K. Bredar, United States District Judge.

         This action was brought by John Doe and Richard Roe (collectively, " Plaintiffs" ) against Salisbury University (" SU" ), Valerie Randall-Lee,[1] Helena Hill,[2] Jane Doe #1, Jane Doe #2, and Jane Doe #3 (collectively, " Defendants" ) alleging defamation, intentional infliction of emotional distress (" IIED" ), negligence, civil conspiracy, and violations of Title IX, and seeking compensatory damages and injunctive relief. Now pending before the Court is Defendant Jane Doe #2's motion to dismiss (ECF No. 84), Defendant Jane Doe #3's motion to dismiss (ECF No. 85), Defendants Hill, Randall-Lee, and SU's (collectively, " SU Defendants" ) motion to dismiss (ECF No. 88), Defendant Jane Doe #1's motion to dismiss or in the alternative for summary judgment (ECF No. 92), Plaintiffs' motion to voluntarily dismiss claims (ECF No. 100), and Plaintiffs' motion to seal (ECF No. 101.) The issues have been briefed,[3] and no hearing is required, Local Rule 105.6 (D. Md. 2014). For the reasons explained below, SU Defendants' motion to dismiss (ECF No. 88) will be GRANTED IN PART AND DENIED IN PART, Defendant Jane Doe #1's motion to dismiss (ECF No. 92) will be GRANTED, Plaintiffs' motion to voluntarily dismiss claims (ECF No. 100) will be GRANTED IN PART AND DENIED AS MOOT IN PART, Defendant Jane Doe #2's and Defendant Jane Doe #3's motions to dismiss (ECF Nos. 84 and 85) will be DENIED AS MOOT, and Plaintiffs' motion to seal (ECF No. 101) will be GRANTED.

         I. Background [4]

         Plaintiffs' claims stem from events that took place on October 5, 2013, at a college house party hosted and attended by SU students. (Fourth Amended Complaint, ECF No. 83 ¶ 13.) Plaintiffs rely on an investigative report written by Defendant Hill to recount the details of that evening. ( Id. ¶ 14; Hill's Report, ECF No. 83-2.)

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In relevant part, while Defendant Jane Doe #1

was outside of the house, she was definitely seen by many making out . . . with [Plaintiff John Doe]. When she was inside the house, in the kitchen, several witnesses state that [Defendant Jane Doe #1] was drunk and dancing around . . . . At some point, [Defendant Jane Doe #1] traveled to the second floor of the house. Reports by two individuals are that [she] walked upstairs on her own, with [Plaintiff John Doe]. . . . [Defendant Jane Doe #1] was seen laying on the bed . . . on her stomach and showing off her buttocks. [Plaintiff John Doe] has stated that they were making out with her, and has said that she wanted them to do things to her. . . . [Defendant Jane Doe #1] remembers coming to for a very brief time, on her back, with guys all around her. She remembers hands on her breasts and being kissed, at the same time. She remembers being touched everywhere but did not elaborate as to where she was touched (she could not remember).

(Hill's Report at 1-2.) After leaving the party, Defendant Jane Doe #1 " filed a complaint with the Wicomico County Sheriff's Office alleging Plaintiffs sexually assaulted [Jane Doe #1] at the Party," and repeated these same allegations to unnamed " third-parties." (Fourth Amended Complaint ¶ ¶ 15-16.)

         On October 7, Defendant Jane Doe #1 received a medical examination " and these tests failed to establish any evidence of sexual assault." ( Id. ¶ 19.) She also sent Plaintiff John Doe the following text message:

Hey [John Doe], I know I'm probably the last person you want to hear from right now but I really need to say something. I just got back from the Sheriff's office. I completely understand you don't give two shits about what I have to say or don't believe me at all. I have no idea what happened. The last thing I remember from last night is kissing you on the stoop. The next thing after that I remember is sitting on Ryan's floor hysterically crying and being walked to the cop car. All I know is that the girl that was at the party was not me. This thing is being blown really out of proportion. I feel awful for you and your friends and I completely understand if you hate me and never want to see me again. I just wanted to make things right. Also, I know that the detective told you not to contact me but he's the one that told me I should contact you and let you know.

(ECF No. 83-3.)

         Shortly thereafter, SU began an internal investigation into Defendant Jane Doe #1's sexual assault allegation. (Fourth Amended Complaint ¶ 21.) As part of SU's investigation, Defendants Randall-Lee and Hill prepared a report containing, inter alia, the following findings, conclusions, and recommendations:

(a) 'concluded' that 'a preponderance of evidence' established a 'sexual assault more likely than not occurred upon [Jane Doe #1]' at the Party; (b) reached a 'finding' that: '[a] preponderance of evidence also indicates that [Jane Doe #1] engaged in non-consensual sexual activity while upstairs in the bedroom; and (c) determined '[t]he conclusion drawn here is that someone who is drunk or otherwise intoxicated cannot say " no," and lacks the capacity to say " no," even if he/she doesn't want to have sexual contact. It might be that he/she is conscious but still intoxicated or that he/she passed out and is unconscious. Either way, the sexual contact is non-consensual.'

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( Id. ¶ ¶ 23, 25.) This report was then submitted to SU's Community Board (" the Board" ) for consideration. ( Id. ¶ 23.)

         On January 31, 2014, the Board conducted a hearing to determine " whether Plaintiffs violated the [SU Code of Conduct's] Sexual Harassment Policy ('The Policy') and/or other SU polices and/or procedures . . . ." ( Id. ¶ ¶ 21-22.) Plaintiffs attended the hearing without counsel and were placed behind a dividing wall so that they could not view testifying witnesses. ( Id. ¶ ¶ 26, 50.) Defendant Jane Doe #1 did not testify, and while Plaintiffs were allowed to ask some questions during the hearing, they were " prohibited from asking many critical questions of witnesses." ( Id. ¶ ¶ 28-29.) The Board heard conflicting testimony. Some witnesses, including Plaintiffs, testified that Defendant Jane Doe #1 " initiated any and all physical contact with Plaintiffs" at the party. ( Id. ¶ 30.) Other witnesses, including Defendants Jane Doe #2 and Jane Doe #3, testified that Plaintiffs were responsible for sexually assaulting Defendant Jane Doe #1. ( Id. ¶ 33.)

         On February 6, Plaintiffs were notified that the Board found Plaintiffs " 'responsible' for allegedly engaging in non-consensual contact with [Jane Doe #1]," and concluded that " ' a reasonable person would have known that [Jane Doe #1] was intoxicated and thus [Plaintiffs] took advantage of [Jane Doe #1's] incapacity.'" ( Id. ¶ 40.) On the basis of these findings, Plaintiffs were disciplined by the Board. ( Id. ¶ 40.)

         In mid-February, Plaintiffs appealed the Board's findings. ( Id. ¶ ¶ 55-56.) And on March 5, 2014, SU's Associate Vice President of Student Affairs, Mentha Hynes-Wilson, denied Plaintiffs' appeals. ( Id. ¶ ¶ 57-58.) In addition to denying Plaintiffs' appeals, Associate Vice President Hynes-Wilson altered SU's disciplinary sanctions by requiring Plaintiffs to each draft a " Reflection" paper. ( Id. ¶ ¶ 49, 159.)

         Plaintiff John Doe filed this lawsuit in the Circuit Court of Maryland for Wicomico County on May 15, 2014. (ECF No. 2.) But the pleadings, parties, and posture in this case have been modified repeatedly and materially. Plaintiff Richard Roe was added as a party on October 3, 2014. (First Amended Complaint, ECF No. 29.) Plaintiffs then amended their complaint twice more (Second Amended Complaint, ECF No. 43; Third Amended Complaint, ECF No. 55) before SU Defendants filed a notice of removal on February 23, 2015, (ECF No. 1). Upon this case's removal, the Court dismissed Plaintiffs' preceding complaints without prejudice and ordered that Plaintiffs file a fourth, superseding amended complaint. (ECF No. 70.) Plaintiffs filed their Fourth Amended Complaint on March 20, 2015. (ECF No. 83.)

         II. Standard of Dismissal for Failure to State a Claim

         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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility exists " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, " Factual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 555. " A pleading that offers 'labels

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and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' . . . Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         III. Analysis

         The Court has carefully considered Defendants' motions to dismiss, Plaintiffs' responses in opposition, and most significantly Plaintiffs' Fourth Amended Complaint. As will be discussed below, the Court is troubled by Plaintiffs' inability to satisfy the pleading standards set forth in Twombly and Iqbal as to most of their claims, particularly given that Plaintiffs have already had four opportunities to amend their pleadings. The Fourth Amended Complaint suffers from a reliance on threadbare recitals of crucial elements. And while Plaintiffs have attempted to augment their factual allegations through affidavits and exhibits attached to their responses in opposition, courts " generally do not consider materials other than the complaint and documents incorporated into it when evaluating that complaint under Rule 12(b)(6), though courts may consider a document attached by the defendant to its motion to dismiss where the document 'was integral to and explicitly relied on in the complaint' . . . ." Braun v. Maynard, 652 F.3d 557, 559 n.1 (4th Cir. 2011) (emphasis added) (quoting Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)). In the absence of Plaintiffs' improperly relied upon affidavits and exhibits, Plaintiffs' Fourth Amended Complaint fails to state a plausible claim for relief in nearly every count.

         Plaintiffs may, of course, seek leave to amend their complaint for a fifth time pursuant to Federal Rule of Civil Procedure 15(a)(2). The Court does not now decide, however, whether such leave to amend would be granted.

         A. Defendant Jane Doe #1's Motion to Dismiss (ECF No. 92)

         Plaintiffs allege three claims against Defendant Jane Doe #1 in their Fourth Amended Complaint: Defamation (Count I), Civil Conspiracy (Count IV), and IIED (Count V). The Court considers each in turn.

         1. Count I: Defamation

         Plaintiffs claim that Defendant Jane Doe #1 is liable for defamation based on statements she made alleging that she had been the victim of sexual assault, and specifically that Plaintiffs committed the assault. (Fourth Amended Complaint ¶ ¶ 60-67.) " Under Maryland law, to present a prima facie case of defamation, a plaintiff must establish four elements: (1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm." Offen v. Brenner, 402 Md. 191, 935 A.2d 719, 723-24 (Md. 2007).

         To satisfy federal pleading standards, a plaintiff must specifically allege each defamatory statement. See English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., 172 F.3d 862, 1999 WL 89125, at *3 (4th Cir. 1999) (unpublished table decision) (In a defamation claim, " [a] plaintiff may not baldly allege a broad course of conduct over a lengthy period of time and later sue on any act that occurred during that time

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period." ); see also Tucker v. Specialized Loan Servicing, LLC, Civ. No. PWG-14-813, 83 F.Supp.3d 635, 2015 WL 452285, at *12 (D. Md. Feb. 3, 2015) (applying the pleading standard set out in English Boiler ); Gainsburg v. Steben & Co., 838 F.Supp.2d 339, 344 (D. Md. 2011) (" Every alleged defamatory statement constitutes 'a separate instance of defamation,' which 'a plaintiff must specifically allege.'" (quoting English Boiler, 1999 WL 89125, at *3)); Brown v. Ferguson Enters., Inc., Civ. No. CCB-12-1817, 2012 WL 6185310, at *3 (D. Md. Dec. 11, 2012) (finding that a plaintiff's allegations could not plausibly support a claim for defamation where they " contain[ed] no specific description of the content of the alleged statements, nor when and how they were communicated" ).

         In this case, Plaintiffs' defamation pleadings are wholly insufficient. Plaintiffs vaguely contend that, " [u]pon information and belief, [Jane Doe #1] published written and/or oral statements to third-parties alleging Plaintiffs sexually assaulted [Jane Doe #1] at the Party . . . ." (Fourth Amended Complaint ¶ 16.) Plaintiffs also contend that Defendant Jane Doe #1 made these allegedly defamatory statements " to SU and other third-parties." ( Id. ¶ 61.) Plaintiffs now " seek to dismiss their claims against [Jane Doe #1] for her defamatory statements made directly to SU employees who were directly involved in SU's disciplinary proceeding against Plaintiffs." (ECF No. 99-1 at 10.) Plaintiffs are left alleging simply that, upon information and belief, Defendant Jane Doe #1 made defamatory statements to unnamed and perhaps unknown third parties. The Fourth Amended Complaint is devoid of any reference to who these " third-parties" actually are. And while the Court takes as true Plaintiffs' pleadings--that Defendant Jane Doe #1 did make such defamatory statements--Plaintiffs fail to specifically allege any particular defamatory statement made to any particular third party.[5] For this reason the Court will grant Defendant Jane Doe #1's motion to dismiss Count I.

         Even if Plaintiffs had made sufficient allegations, Defendant Jane Doe #1's statements would likely be protected by a qualified or conditional privilege. Maryland courts recognize that " a person ought to be shielded against civil liability for defamation where, in good faith, [s]he publishes a statement in furtherance of his [or her] own legitimate interests, or those shared in common with the recipient or third parties . . . ." Gohari v. Darvish, 363 Md. 42, 767 A.2d 321, 328 (Md. 2001) (quoting Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129, 1131 (Md. 1978)). Once a conditional privilege has been identified, a plaintiff's defamation claim will only survive if he can show that the defendant acted with malice, " defined as 'a person's actual knowledge that his [or her] statement is false, coupled with his [or her] intent to deceive another by means of that statement.'" Piscatelli, 35 A.3d at 1148 (Md. 2012) (quoting Ellerin v. Fairfax Sav. F.S.B., 337 Md. 216, 652 A.2d 1117, 1129 (Md. 1995)).

         In this case, Defendant Jane Doe #1's alleged statements were probably made in furtherance of her legitimate interest in personal safety and the safety of those closest to her. Defendant Jane Doe #1 allegedly told her close friends and family that she had been, or may have been, the victim of a sexual assault. ( See

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ECF No. 99-1 at 8-10.) She has not been accused of publishing these allegations to a broad public forum such as the school newspaper or a social media network. Rather, Defendant Jane Doe #1 is accused of confiding in those people who are rightly understood to be part of Defendant Jane Doe #1's support system--close friends and family. The Court is mindful of the objectionable policy implications that could follow in a world where such statements are unprivileged. Victims would have to weigh, on the one hand, the value of reaching out for help in the aftermath of a traumatic sexual assault, and on the other hand the risk that they could be subject to civil liability for defamation if the occurrence of sexual assault is contested by the alleged perpetrator. Fortunately, Maryland courts do recognize a conditional privilege for such statements.

         2. Count IV: ...

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