United States District Court, D. Maryland
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
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.
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,
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.
Jane Doe #2, Defendant: John Paul Isacson, Jr., LEAD
ATTORNEY, Mary Rose Hughes, Perkins Coie LLP, Washington, DC.
Jane Doe #3, Defendant: Mark Joseph Stiller, LEAD ATTORNEY,
Jennifer Malia Sullam, Niles Barton and Wilmer LLP,
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.
K. Bredar, United States District Judge.
action was brought by John Doe and Richard Roe (collectively,
" Plaintiffs" ) against Salisbury University
(" SU" ), Valerie Randall-Lee, Helena
Hill, 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, 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
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.)
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
(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 ¶ ¶
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.)
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
(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.'
( Id. ¶ ¶ 23, 25.) This report was then
submitted to SU's Community Board (" the Board"
) for consideration. ( Id. ¶ 23.)
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.
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.)
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.)
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.)
Standard of Dismissal for Failure to State a Claim
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
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.
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.
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.
Defendant Jane Doe #1's Motion to Dismiss (ECF No.
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.
Count I: Defamation
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
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
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
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. For this reason the Court
will grant Defendant Jane Doe #1's motion to dismiss
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)).
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
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.
Count IV: ...