Doe v. Notre Dame Du Lac University Of

Filing 24

OPINION AND ORDER: Defendant University of Notre Dame's Motion to Dismiss DE 12 is GRANTED IN PART with respect to Count I of the complaint and is DENIED WITHOUT PREJUDICE with respect to Counts II and III of the complaint. Plaintiff Jane Doe is granted 30 days in which to file a motion for leave to file a first amended complaint. A copy of the proposed first amended complaint must be filed with the motion. Signed by Judge Philip P Simon on 5/11/18. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JANE DOE,
Plaintiff,
v.
UNIVERSITY OF NOTRE DAME DU LAC,
Defendant.

)
)
)
)
)
)
)
)
)

CAUSE NO. 3:17CV690-PPS

OPINION AND ORDER
Plaintiff Jane Doe was an undergraduate student attending Holy Cross College
in South Bend, Indiana, and was a participant in the Gateway Program, designed to
transition her from Holy Cross to enrollment at the college across the street, the
University of Notre Dame. Her complaint alleges that she was sexually assaulted by a
Notre Dame football player in his dorm room, after she escorted him home to ensure his
safety because he was intoxicated. Jane Doe says she wanted to handle the assault “in
privacy.” [DE 1 at ¶10.] But the Notre Dame authorities ultimately found out about the
alleged assault and opened a Title IX investigation. This lawsuit challenges Notre
Dame’s handling of the matter.
The complaint has three counts. Count I is a claim that Notre Dame’s genderbased implementation of its harassment policy violates Title IX. In Count II, Jane Doe
alleges that Notre Dame breached a contract with her by its failure to comply with its

own policies and procedures, and that Notre Dame also violated the implied covenant
of good faith and fair dealing by handling the sexual assault case in an arbitrary and
capricious manner. Finally, Count III is a tort claim that Notre Dame was negligent in
“selecting, training, and supervising competent coaches, athletic directors, and
impartial investigators, to investigate and decide her case and protect her privacy
interests,” and a claim that Notre Dame’s handling of the sexual assault case involved
an invasion of Jane Doe’s privacy and a failure to protect Jane from foreseeable harm.
[DE at ¶51.]
Notre Dame seeks dismissal of all counts of the complaint under Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief can be granted. The motion is fully
briefed and ripe for decision. I heard oral argument on the motion at a hearing held
April 25, 2018.
Motion to Dismiss Standard
In reviewing a motion under Rule 12(b)(6), I “‘must accept as true all of the
allegations contained in a complaint’ that are not legal conclusions.” Toulon v.
Continental Casualty Company, 877 F.3d 725, 734 (7th Cir. 2017), quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The complaint must be construed in the light most favorable to
Jane Doe, and all possible inferences must be drawn in her favor. Fields v. Wharrie, 672
F.3d 505, 510 (7th Cir. 2012). “To survive a motion to dismiss, a plaintiff must allege
‘enough facts to state a claim to relief that is plausible on its face.’” Boucher v. Finance
System of Green Bay, Inc., 880 F.3d 362, 365-66 (7th Cir. 2018), quoting Bell Atl. Corp. v.
2

Twombly, 550 U.S. 544, 570 (2007). “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.” Iqbal, 556 U.S. at 678. “Plausibility”
does not require “probability,” but “more than a sheer possibility that a defendant has
acted unlawfully” is required to survive a challenge under Rule 12(b)(6). Id.
At oral argument on the motion, Jane Doe argued that her complaint was pled
for filing in state court, and that after removal to federal court by Notre Dame, she
should not be judged by federal pleading standards. The principal problem with this
argument is that it was made for the first time at oral argument, rather than in Jane
Doe’s brief in opposition to the motion to dismiss. Second, like the federal courts,
Indiana requires “notice pleading,” and Indiana’s pleading rule, Ind. Trial Rule 8, is
largely akin to Fed.R.Civ.P. 8. City of Clinton v. Goldner, 885 N.E.2d 67, 74 (Ind.Ct.App.
2008), Wee Scots, LLC v. Fleming, 765 N.E.2d 668, 671 (Ind.Ct.App. 2002). Jane Doe did
not explain any meaningful difference between the two forums’ pleading requirements
that would support her argument. Furthermore, if Jane Doe believed that Notre Dame’s
motion unfairly held her to federal pleading standards, and that she could readily
replead her claims so as to satisfy them, she might have responded to the motion to
dismiss with a request for leave to amend her complaint to do so. But she did not, and
the belated argument will not preclude my consideration of Notre Dame’s arguments.
Count I – Title IX

3

I’ll start with the federal claim colloquially called a “Title IX” claim. These claims
refer to a portion of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., a federal
law governing recipients of federal educational funding. In litigation stemming from
Title IX’s prohibition on “discrimination” (which includes sexual harassment) in
educational programs or activities receiving federal funding, the Supreme Court has
held that “a private damages action may lie against the school board in cases of studenton-student harassment...but only where the funding recipient acts with deliberate
indifference to known acts of harassment in its programs or activities,” and “only for
harassment that is so severe, pervasive, and objectively offensive that it effectively bars
the victim’s access to an educational opportunity or benefit.” Davis Next Friend
LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). Elaborating on this
standard, the Davis court said that a school is “deemed ‘deliberately indifferent’ to acts
of student-on-student harassment only where the recipient’s response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances.” Id. at 648.
The parties are in agreement on these standards. So the question for me to answer is
whether Jane Doe has sufficiently pleaded a claim that Notre Dame’s response to the
alleged harassment was “clearly unreasonable.”
Notre Dame essentially argues that Jane Doe has pleaded herself out of court by
alleging facts that demonstrate that the university’s conduct was not “clearly
unreasonable.” Here are the facts as told to me in the complaint, and which I accept as
true at this point. Notre Dame initiated an investigation into the attack on Jane when
4

the university learned of the allegation from another student. [DE 2 at ¶10.] At that
time, there was a report of an assault on another woman by the same football player.
[Id.] Notre Dame informed the alleged attacker that he was being investigated for an
assault on Jane, although Jane was not participating in the proceedings. [DE 2 at ¶11.]
Although Jane did not want an investigation by the university — because she did not
want to go public concerning her assault and wanted to avoid contact with the
perpetrator — it was certainly not unreasonable for Notre Dame to initiate an
investigation into claims that the football player had assaulted two female students. To
the contrary, it would have been unreasonable (and potentially actionable under Title
IX) for Notre Dame to fail to open investigations into the “known circumstances” of the
two reported incidents.
Notre Dame points out the contradictory nature of Jane’s complaint —
complaining that Notre Dame opened the investigation against her wishes, but also that
Notre Dame later closed the investigation. On this latter point, the complaint says that
“[a]fter violating her privacy rights, the University then ‘addressed’ her serious
concerns about being on campus with her attacker by orchestrating the closing of the
Title IX investigation so that the student athlete who attacked her, a football player,
could transfer to another university with a clean record.” [DE 2 at ¶1.] But the pleading
identifies “facing her attacker on campus” as “Jane’s paramount concern.” [DE 2 at
¶12.] She alleges that Notre Dame “recommend[ed] Jane close the Title IX
investigation,” and that she “agreed to close it.” [Id.] Jane is clearly dissatisfied with
5

the outcome that she sees as favorable to her attacker, but, by her own account, this
outcome (a) ameliorated her “paramount concern,” namely encountering the attacker
on campus, and (b) resulted from her agreement. No plausible claim of “deliberate
indifference” or “clearly unreasonable” conduct by the university is supported by Jane’s
allegations concerning the closure of the investigation.
The Seventh Circuit has referred to Title IX’s deliberate indifference standard as a
“high bar for plaintiffs seeking to hold schools and school officials liable for student-onstudent harassment.” Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014). And the Supreme
Court has made clear that “courts should refrain from second-guessing the disciplinary
decisions made by school administrators.” Davis, 526 U.S. at 648. As the term
“indifference” suggests, a Title IX deliberate indifference claim is ordinarily intended
for inaction on the part of school authorities: “usually this claim is asserted by a victim
against a school or university official who failed to protect him or her from harassment
or otherwise address the alleged misconduct.” Marshall v. Ohio University, No. 2:15-cv775, 2015 WL 1179955, at *8 (S.D.Ohio Mar. 13, 2015) (emphasis in original).
This case presents the unusual circumstance in which the alleged victim wanted
the school, even after notice of the attack, to stand down and take no action, in
deference to her wishes. But the school has an obligation to the larger community to
investigate the matter.
[E]ven assuming, arguendo, that Tubbs did not authorize a proceeding, the
university has an independent obligation to investigate allegations of
sexual misconduct. See OCR Letter (The duty to conduct a Title IX
6

investigation is a “university’s responsibility, regardless of whether a
student has complained, asked the university to take action, or identified
the harassment as a form of discrimination.”).
Tubbs v. Stony Brook University, No. 15 Civ. 0517 (NSR), 2016 WL 8650463, at *7 n.6
(S.D.N.Y. Mar. 4, 2016) Title IX does not support liability for a university’s
undertaking its investigation obligation simply because the alleged victim does not
want an official investigation.
In Hendrichsen v. Ball State Univ., 107 Fed.Appx. 680, 685 (7th Cir. 2004), the Court
of Appeals affirmed summary judgment for the school against a student who
complained that her identity had been revealed to the professor she charged with sexual
harassment, that the school should have done more than issue a no-trespass letter to the
professor, and that the professor should have been fired. The Seventh Circuit found
that the university was not deliberately indifferent because promptly investigating,
issuing the no-trespass letter and warning the professor not to contact or retaliate
against the student could not be considered “clearly unreasonable” in light of the
known circumstances. Id.
It is true that Hendrichsen was decided on a motion for summary judgment as
opposed to a motion to dismiss. But the “known circumstances” — in other words,
what were the facts as known to Notre Dame? — are fully set out in the fifteen page
complaint filed in the case. And what we know from the complaint is that there were
reports of two sexual assaults on fellow students by a Notre Dame football player, and
Notre Dame took appropriate action to investigate the matter. That is, in my judgment,
7

a plainly reasonable response to a possible danger on campus. Jane Doe’s Title IX claim
is therefore subject to dismissal.
Supplemental Jurisdiction
At this point in the analysis, I must switch gears. This case was removed from
state court on the basis of the federal question jurisdiction supplied by the Title IX
claim. [DE 1 at 2.] After determining that the Title IX claim in Count I is subject to
dismissal, I have the option to decline to exercise supplemental jurisdiction over the
state law claims in Counts II and III for breach of contract and negligence. Provisions of
the supplemental jurisdiction statute, 28 U.S.C. §1367(c)(1) and (3), authorize the court
to return the case to the Indiana court from which it was removed if the remaining
claims raise “a novel or complex issue of state law,” or the district court has “dismissed
all claims over which it has original jurisdiction.”
Both of these bases for declining supplemental jurisdiction apply here, given the
dismissal of the Title IX claim and the uncertainty under Indiana law of issues of
assumption of a duty and the viability of negligence claims parallel to a breach of
contract or Title IX claim. The Seventh Circuit has suggested that declining
supplemental jurisdiction is the best course in just such a case as this. In Doe-2 v.
McLean County Unit District No. 5 Bd. of Directors, 593 F.3d 507 (7th Cir. 2010), the Court
of Appeals questioned the district court’s failure to invoke §1367(c) after it dismissed a
Title IX claim:

8

Ordinarily, when a district court dismisses the federal claim conferring
original jurisdiction before trial, it relinquishes supplemental jurisdiction
over any state-law claims under 28 U.S.C. §1367(c)(3)...Here, following the
dismissal of Doe-2’s Title IX claim under Rule 12(b)(6), nothing indicates
that the district court or the parties thought of dismissing Doe-2's statelaw claims without prejudice for the Illinois courts to resolve. Given the
relatively novel issues of Illinois tort law presented by Doe-2’s case, it
would have been appropriate to consider such a dismissal.
Id. at 513. See also Hagan v. Quinn, 867 F.3d 816, 830 (7th Cir. 2017) [“On the contrary, the
court might well have abused its discretion if it had retained jurisdiction over a strictly
state-law claim in an area where important state policy goals may conflict.”].
But the Seventh Circuit also teaches that “[g]enerally, if a district court dismisses
for failure to state a claim, the court should give the party one opportunity to try to cure
the problem, even if the court is skeptical about the prospects for success.” Bausch v.
Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). So, without addressing Notre Dame’s
arguments as to the state law claims, I will grant the motion to dismiss in part, with
respect to the Title IX claim, and allow Jane Doe the opportunity to offer an amended
complaint in which she attempts to replead the Title IX claim. If Jane Doe does not seek
leave to file an amended complaint, or if she does but the Title IX claim is still deficient,
I will decline to exercise supplemental jurisdiction and remand the case to state court.
I fully recognize that if I decline to exercise supplemental jurisdiction, and
remand the state claims, Notre Dame could again attempt to remove the case on the
basis of diversity jurisdiction, in view of the allegation in Jane’s complaint that she now
“resides in the state of Colorado.” [DE 2 at ¶2.] But even if diversity of citizenship

9

exists, Notre Dame would be prevented from removing the case to federal court on that
basis, if Jane objected to the removal. This is so because of the non-jurisdictional
“forum defendant rule” found in 18 U.S.C. §1441(b)(2): “A civil action otherwise
removable solely on the basis of the jurisdiction under section 1332(a) of this title may
not be removed if any of the parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought.” See Morris v. Nuzzo, 718 F.3d
660, 665 (7th Cir. 2013); Hurley v. Motor Coach Industries, Inc., 222 F.3d 377, 379-80 (7th Cir.
2000).
Conclusion
Jane Doe’s sole federal claim, the Title IX claim in Count I, fails to state a claim
upon which relief can be granted. The case may be subject to remand after I decline to
exercise supplemental jurisdiction over Jane’s remaining claims, which are brought
under state law. The Seventh Circuit nonetheless requires a second opportunity to
plead her claims, and Jane Doe will be granted 30 days in which to file a motion for
leave to file a first amended complaint in which she attempts to replead her Title IX
claim. A copy of the proposed first amended complaint must be filed with the motion.
ACCORDINGLY:
Defendant University of Notre Dame’s Motion to Dismiss [DE 12] is GRANTED
IN PART with respect to Count I of the complaint, and is DENIED WITHOUT
PREJUDICE with respect to Counts II and III of the complaint.

10

Plaintiff Jane Doe is granted 30 days in which to file a motion for leave to file a
first amended complaint. A copy of the proposed first amended complaint must be
filed with the motion.
SO ORDERED.
ENTERED: May 11, 2018.

/s/ Philip P. Simon
United States District Judge

11