United States District Court, D. Maryland, Southern Division
Charles B. Day United States Magistrate Judge
the Court is Defendant's Motion to Dismiss Or, In the
Alternative For Summary Judgment (“Defendant's
Motion”) (ECF No. 13). The Court has reviewed
Defendant's Motion and the opposition and reply thereto.
No hearing is deemed necessary. Local Rule 105.6 (D. Md.).
For the reasons that follow, the Court hereby GRANTS
Defendant's Motion to Dismiss.
The Legal Standard for a Motion to Dismiss
to Fed.R.Civ.P. 12(b)(1), Defendant contends the claims
should be dismissed due to a lack of subject matter
jurisdiction. Defendant also asserts the right to similar
relief pursuant to Fed.R.Civ.P. 12(b)(6) due to
Plaintiff's failure to state a claim upon which relief
can be granted. Under either prong, the Court will accept the
facts as asserted in the Complaint as true, but relevant
Supreme Court caselaw requires more. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) makes clear that
the complaint must contain more than “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action, ” without “further factual
enhancement.” Moreover, Ashcroft v Iqbal, 556
U.S. 662, 678 (2009) states that the complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face'.” Last, in ruling upon the motion to dismiss,
the Court can consider documents attached to the Complaint,
particularly a verified complaint like the one that is pled
here. See Philips v. Pitt County Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
Defendant's Claim of Sovereign Immunity Prevails Over
the Breach of Contract Claim Alleged in Count
parties agree that Defendant is entitled to assert the
defense of sovereign immunity because it is an arm of the
state government. Sovereign immunity can be waived, and the
Maryland statute sets forth the parameters of when said
waiver can occur.
[T]he State, its officers, and its units may not raise the
defense of sovereign immunity in a contract action, . . .
based on a written contract that an official or employee
executed for the State . . . while the official or employee
was acting within the scope of the authority of the official
Md. Code Ann., State Gov't §12-201(a)(LexisNexis
2014). The question here is whether Defendant has waived
immunity consistent with the method permitted by the statute.
The Court finds no waiver of immunity has occurred.
clear language of Stern v Bd. of Regents, 380 Md.
691, 846 A.2d 996 (2004) requires far more than policy
guidelines set forth in booklets, forms or manuals to be
necessary to create a “written contract” as
contemplated by the statute. “There must be a signature
from a duly authorized person empowered to execute the
contract in question.” Id. at 1014. See
also, Keerikkattii v. Hrabowski, Civ. A. No.
WMN-13-2016, 2013 WL 5368744, at *8 (D. Md. Sept. 23, 2013).
Nor will “performance” serve as a substitute for
a “written contract.” The clear words of the
statute do not allow for such a construction.
has not identified a “written contract” signed by
an authorized official or employee of the State. Of the three
items attached to Plaintiff's verified complaint, none
satisfy the standard. Said items being: 1) St. Mary's
College of Maryland Policy Against Sexual Misconduct (the
“Policy”)(ECF No. 4-1); 2) St. Mary's College
of Maryland Procedures to Resolve Complaints of Sexual
Misconduct against a Student (the “Procedures
Manual”) (ECF 4-2); and 3) St. Mary's College of
Maryland Anti-Harassment Statement (the
“Anti-Harassment Statement”) (ECF 4-3).
resolution of the immunity question is dispositive, there is
no need to address the related question regarding the
timeliness of the filing of suit and the limitations period.
Accordingly, the breach of contract claim must fall.
Defendant's Motion as to Count I is GRANTED.
There is No Factual Support In The Complaint For
Plaintiff's Title IX Claim Set Forth in Count
IX protects citizens against discrimination in education when
institutions receive federal funding. The statute provides
that “[n]o person shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance. . . .”
20 U.S.C. § 1681(a) (2017). There is no dispute that
Defendant is subject to the requirements of Title IX.
contends in the Complaint, ¶ 63, that Defendant engaged
in “selective enforcement” and reached “an
erroneous outcome.” The Complaint goes on to assert
that Defendant treated Plaintiff unfairly because of his sex
and violated basis due process protections. Despite hurling
numerous allegations from ¶63-71, they all are mere
conclusory statements devoid of factual content based on
alleged misdeeds of Defendant.
elements of a Title IX “erroneous outcome” claim
(1) showing that Plaintiff was subjected to a procedurally
flawed or otherwise ...