Kerr v. The Johns Hopkins University
Filing
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MEMORANDUM. Signed by Judge Benson Everett Legg on 9/12/11. (dass, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
DOUGLAS KERR
Plaintiff
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v.
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CIVIL NO. L-10-3294
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THE JOHNS HOPKINS UNIVERSITY
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*******
MEMORANDUM
This is a breach of contract case. From 1996 to 2010, the Johns Hopkins University
(―JHU‖ or the ―University‖) employed Dr. Douglas Kerr as a research scientist and physician.
Dr. Kerr managed a laboratory that was studying the mechanisms of paralysis. In 2007, JHU
began investigating whether Dr. Kerr had committed ―research misconduct‖ by altering some of
his graduate students’ experimental data.
JHU has a detailed protocol for adjudicating allegations of research misconduct. The
protocol is set forth in the University’s ―Procedures for Dealing with Issues of Research
Misconduct‖ (the ―Procedures‖). This document defines research misconduct and outlines the
steps to be taken during the inquiry. The Procedures provide , inter alia, that the employee is
presumed innocent, that the allegations will be investigated and assessed by committees of the
employee’s peers, that the employee may be represented by counsel and present evidence, that
findings of misconduct must be supported by a preponderance of the evidence, and that the
employee may appeal an unfavorable decision to the Provost and Dean.
In February 2009, after interviewing witnesses and reviewing documentary evidence, the
―Investigation Committee‖ concluded that two of the allegations against Dr. Kerr were
sufficiently serious to be referred to the ―Standing Committee on Discipline‖ (the ―SCD‖). After
receiving additional evidence and comment from Dr. Kerr, the SCD ordered the Investigation
Committee to re-convene and consider Dr. Kerr’s submissions. Before the Investigation
Committee could complete its analysis, however, Dr. Kerr resigned from JHU.
Shortly thereafter, the Investigation Committee issued a second report that accepted some
of Dr. Kerr’s explanation and retracted certain findings of misconduct. Nevertheless, the
committee sustained its overall finding that Dr. Kerr had committed two instances of research
misconduct. The Investigation Committee then referred the matter to the SCD a second time.
After considering Dr. Kerr’s rebuttal, the SCD sustained the finding and recommended
disciplinary action, including termination of any remaining appointments and notification of Dr.
Kerr’s current employer. Dr. Kerr took appeals to the Dean and the Provost, but they separately
affirmed the SCD’s conclusions and recommendations.
In November 2010, Dr. Kerr filed the instant suit, which centers on his claim that JHU
breached his contract of employment by failing to adhere to the Procedures. At oral argument,
Dr. Kerr’s counsel acknowledged that the University followed all of the procedural steps
mandated by the contract. Counsel urged, however, that JHU nevertheless breached the contract
by reaching a demonstrably wrong conclusion. Dr. Kerr’s Amended Complaint also advances
several tort claims, each of which depends on the viability of the underlying breach of contract
count. Although all of the claims sound in state law, this Court has jurisdiction pursuant to 28
U.S.C. § 1332 (diversity jurisdiction).
Now pending is JHU’s Motion to Dismiss. Docket No. 22. Dr. Kerr has opposed the
Motion on on the merits. In addition, he contends that the University’s motion raises factual
issues that must be probed through discovery and tested later in the context of a motion for
summary judgment. Docket No. 30. The Court heard argument at a hearing on August 3, 2011.
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For the reasons stated below, the Court will GRANT JHU’s Motion to Dismiss, DENY Dr.
Kerr’s Motion for Discovery, and DIRECT the Clerk to CLOSE the case.
I.
Background
Unlike employment cases that rest on the myriad anti-discrimination statutes or the Due
Process Clause, this case centers on a private academic institution’s interpretation and
application of its internal procedures. Because of this, the Court must give effect to two related
principles. First, as a private employer, the University has broad discretion to hire, fire, and
discipline its employees subject to the terms of the employment contract. See Suburban Hosp.,
Inc. v. Dwiggins, 324 Md. 294, 310 (1991) (declining to infer a requirement of good faith and
fair dealing in employment contracts); MacGill v. Blue Cross of Maryland, Inc., 77 Md. App.
613, 620 (Md. Ct. Spec. App. 1989) (noting that courts do not ―act as super personnel officers,
overseeing and second-guessing the company’s decisions‖). Second, both the Supreme Court
and the Fourth Circuit Court of Appeals have written that the judiciary must be particularly
deferential to the academic decisions of educational institutions. University of Pa. v. E.E.O.C.,
493 U.S. 182, 199 (1990) (cautioning against ―review[ing] the substance of genuinely academic
decisions‖); Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1142 (4th Cir.
1990) (―When judges are asked to review the substance of a genuinely academic decision . . .
they should show great respect for the faculty’s professional judgment.‖).
In its Motion to Dismiss, JHU contends that Dr. Kerr’s suit, and the relief he seeks,
violates these principles of deference. The Court agrees. While Dr. Kerr concedes that he
received full ―procedural due process,‖ he argues that the decision reached by the University on
the merits—that he committed research misconduct—is against the clear weight of the evidence.
From this contention he reasons that the University, including its investigative committees, could
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not have given effect to the guarantees stipulated in the Procedures that, inter alia, an accused is
presumed innocent and that a factual finding of misconduct must be based on the preponderance
of the evidence. His suit, therefore, seeks to relitigate the entire controversy in hopes of
demonstrating that a mistake was made. Dr. Kerr asks a lay jury to substitute its judgment for
that of the University. This endeavor would invade the prerogatives that the University enjoys as
a private, academic employer.
As to Dr. Kerr’s Motion for Discovery, JHU makes two telling points. First, discovery
would necessarily center (primarily through depositions) on the subjective thought processes of
the numerous committee members who investigated and evaluated the evidence against Dr. Kerr.
This burdensome and expensive discovery would itself violate the principles of deference by
interjecting the Court and its cumbersome procedures into a private disciplinary matter. Second,
Dr. Kerr and his counsel (who represented Dr. Kerr during most of the University investigation)
have a virtually complete copy of the extensive record generated by his case. These materials
outline the charges of research misconduct, analyze the evidence in detail, and state the
reasoning of the committees with respect to each of the allegations. This record can be relied
upon at the motion-to-dismiss stage because it is integral to Dr. Kerr’s claim. See CACI Int'l,
Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (In considering a
motion to dismiss, the court may rely on any document that is ―integral to and explicitly relied on
in the complaint‖ without converting the motion to a summary judgment motion, irrespective of
whether the document is attached to the complaint, so long as the ―plaintiffs do not challenge its
authenticity.‖).
If the record was woefully inadequate, discovery might be in order. The extensive
record, however, establishes that the University thoroughly investigated the charges against Dr.
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Kerr, fully elaborated its conclusions, and carefully followed the procedural steps required.
Based on such a record, no grounds exist for a Court to interject itself into a university
disciplinary matter.
With this background in mind, the Court will turn to the facts alleged in the Complaint.
A.
Allegations in the Complaint
Dr. Kerr’s Amended Complaint presents a relatively bare-bones version of the facts. His
allegations state the following:
JHU employed Dr. Kerr from 1996 to 2010. During this time, Dr. Kerr supervised a
laboratory in which experiments concerning the mechanisms of paralysis were conducted on
rodents. In November 2006, ―an issue arose‖ as to whether certain laboratory reports kept
between 2004 and 2006 had been altered. JHU also developed concerns about whether Dr. Kerr
had modified computer programs to conceal the altered data and had provided false information
on a provisional patent application.
An internal investigating committee determined that Dr. Kerr had altered the records. Dr.
Kerr acknowledged that the data had been altered and that he had oversight responsibility for the
laboratory, but he contended that his investigation revealed that a laboratory technician made the
changes. Dr. Kerr presented this evidence to the investigating committee, which failed to give it
the proper weight, and concluded that he had committed research misconduct. Dr. Kerr further
alleges that this erroneous finding was wrongfully sustained by the SCD, the Dean, and the
Provost.
B.
Integral Documents in the Record
Dr. Kerr’s Amended Complaint references a number of documents that are not attached
to the pleading but that are nevertheless integral to his claims. He quotes the Procedures at
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length and repeatedly refers to the ―Report of Investigation, the ―Standing Committee on
Discipline Report,‖ the ―Advisory Board Report,‖ and his appeals to the Dean and Provost.
Because Dr. Kerr alleges that JHU failed to properly consider his evidence and rebuttals, those
documents are integral to his case.
While briefing various motions, the parties submitted most of the disciplinary record. At the
hearing, the Court invited the parties to supply any other documents that they considered
pertinent. Following the hearing, Dr. Kerr and JHU submitted several additional documents.
Thus, both the Court and counsel have what amounts to the entire disciplinary record.
II.
Standard of Review
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must plead plausible, not merely conceivable, facts in support of his claim. See Bell Atl. Corp.
v. Twombly, 127 S. Ct. 1955, 1974 (2007). The complaint must state ―more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.‖ Id. at
1965. The court must, however, ―assume the veracity [of well-pleaded factual allegations] and
then determine whether they plausibly give rise to an entitlement of relief.‖ Ashcroft v. Iqbal,
129 S. Ct. 1937, 1950 (2009).
III.
Analysis
Dr. Kerr’s case centers on his allegation that JHU breached his employment contract by
failing to adhere to the Procedures. His tort claims are derivative of the breach of contract claim
because they rest on the assumption that JHU wrongfully concluded that he had committed
research misconduct. Thus, the bulk of the Court’s analysis will focus on the breach of contract
claim.
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A.
Breach of Contract
As a general rule, employment in Maryland is at-will, meaning that an employee can be
terminated or disciplined ―for any reason, even a reason that is arbitrary, capricious, or
fundamentally unfair.‖ Towson University v. Conte, 384 Md. 68, 82 (2004). Dr. Kerr’s
employment was not completely at-will because he received annual appointment letters. These
letters reference JHU’s faculty policies, including the Procedures, and JHU acknowledges that it
is fair to incorporate those documents into Dr. Kerr’s contract. See generally Scott v. Merck &
Co., Inc., No. L-09-3271, 2010 WL 4941994, slip op at *3 (Nov. 30, 2010) (noting that an
employment contract ―may be so modified by a personnel policy statement as to . . . limit the
employer’s discretion to terminate an employee‖). Nevertheless, JHU has raised the important
threshold question as to the enforceability of the Procedures.
The Court had occasion to thoroughly analyze this issue in the Scott v. Merck opinion
cited above. Rather than restate the law at length, the Court simply notes that for personnel
policies to be actionable, ―the benefits promised must be definite and specific, capable of
objective application in discrete cases.‖ Id. at *4. Thus, while aspirational statements of policy
are not enforceable, employers must adhere to specific promises that offer a defined benefit.
Compare Ayers v. ARA Health Services, 918 F. Supp. 143, 148 (D. Md. 1995) (statement of
company policy to ―behave in an ethical manner‖ too general to form basis for breach of contract
claim) and MacGill, 77 Md. App.at 618-19 (commitment to fill vacancies with most qualified
applicant consistent with law, fairness, and affirmative action did not promise any specific and
definite benefit) with Dwiggins, 324 Md. 294 (promise of specific grievance procedure before
termination is enforceable); Staggs v. Blue Cross of Maryland, Inc., 61 Md. App. 381, 392 (Md.
Ct. Spec. App. 1985) (promise of two counseling sessions prior to termination is enforceable).
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The statements that an employer makes in its handbooks fall along a continuum of
enforceability. Most are aspirational and unenforceable. Some, however, are sufficiently
definite and concrete to become part of the employment contract. See Scott, 2010 WL 4941994
(holding that promise that employer would not terminate employee in retaliation for raising
concerns about business practices in good faith was enforceable). With this background in mind,
the Court will address the contract sub judice.
In his Amended Complaint, Dr. Kerr alleges that JHU breached the following six
provisions of the Procedures:
―Research misconduct does not include honest error or honest
differences of opinion.‖
―Each of the following must be met to support a finding of
research misconduct: a) there has been a significant departure
from the accepted practices of the scientific community; b) the
misconduct was committed intentionally, knowingly, or
recklessly; and c) the allegation has been proven by a
preponderance of the evidence.‖
―The following procedures recognize that it may be very
difficult to determine whether misconduct has occurred, and
that the process of inquiry or investigation must be sufficiently
flexible to permit early termination of the proceedings when it
becomes clear that charges are unjustified . . . .‖
―Every inquiry and subsequent investigation will be based on a
presumption of innocence until proven otherwise . . . .‖
―Since a charge of misconduct, especially if unjustified, may
seriously damage an individual’s career, any allegation of
misconduct should be handled as confidentially as possible. As
few people should be involved at any stage of the procedure.‖
―The purpose of the investigation is to collect all evidence
relevant to the allegation of research misconduct, from
documentation, interviews, with those involved, and interviews
with those knowledgeable about the subject under
investigation. This collection of evidence is to be objective,
independent, unbiased, and thorough.‖
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Am. Compl. 9–10, Docket No. 16.
Almost all of these statements are plainly at the non-binding end of the spectrum. These
include the policies of conducting a ―sufficiently flexible‖ investigation, handling allegations of
misconduct ―as confidentially as possible,‖ and collecting evidence in an ―objective,
independent, unbiased, and thorough [manner].‖ Dr. Kerr’s list includes two guarantees that are
arguably non-aspirational. These are the the statements that the accused is presumed innocent
and that findings of research misconduct must be supported by a preponderance of the evidence.
The record reflects that both of these guarantees were observed.
The committee reports explicitly recite that they were aware of and applied these
standards.1 See, e.g., SCD Report, Docket No. 14-7, at 6 (―The SCD concluded that the
investigation was thorough and careful and that institutional procedures were followed . . . . The
SCD determined that the Investigation Committee’s findings with respect to Allegations 1 and 3
were justified based on the evidence available and the standard of proof required.‖).
This is all that the law requires. The Court has no cause either to (i) voire dire the
committee members to ascertain their understanding of the two guarantees, or (ii) independently
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To summarize, the Investigation Committee issued a lengthy report that outlined the
specific allegations against Dr. Kerr, detailed the investigative steps taken, which included
interviewing Dr. Kerr and 14 other witnesses, and supported its conclusions with abundant
references to facts in the record, including interview testimony and hard data. Notably, the
committee concluded that two allegations should be referred to the SCD but that three should be
dismissed. After Dr. Kerr submitted his mitigating evidence, the committee issued a second
lengthy report that painstakingly presented its analysis of that material. See Review of New
Material, Docket No. 22-3.
The SCD report is similarly thorough. It states that the SCD reviewed the Investigation
Committee’s initial report, the Investigation Committee’s review of Dr. Kerr’s mitigating
evidence, and Dr. Kerr’s rebuttals. The report also stated that it interviewed Dr. Kerr and three
members of the Investigation Committee. The SCD report specifically concluded that the
Investigation Committee had followed the Procedures and that its findings were ―justified based
on the evidence available and standard of proof required.‖ Docket No. 14-7 at 5. The Dean and
Provost’s appellate decisions reference the definition of research misconduct and uphold the
committees’ findings.
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weigh the evidence. Maryland courts have repeatedly counseled against precisely this type of
undertaking. Cf. Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 543 (2003) (―If the
gravamen of the action is the credentialing decision itself . . . and a resolution of the complaint
would require a judge or jury to determine whether, in their view, the decision was right or
wrong or fair or unfair, the action simply will not lie.‖). For these reasons, Dr. Kerr’s breach of
contract claim fails.
B.
Tort Claims
Each of Dr. Kerr’s tort claims is derivative of his breach of contract claim because they
rest on his contention that JHU wrongfully concluded that he had committed research
misconduct and disclosed this fact to others. For the reasons discussed above, the Court rejects
this argument and concludes that, on the facts alleged, Dr. Kerr cannot sustain a suit in either
contract or tort. Dr. Kerr’s tort claims contain many other fatal flaws that will be addressed in
passing.
1.
Defamation
Dr. Kerr’s claim of defamation is based on four documents that the University generated
during the adjudication of his case. Dr. Kerr concedes that JHU enjoys a conditional privilege to
make ―statements in furtherance of . . . the employee-employer relationship.‖ Seneschal v. AM
Broadband, LCC, Civil Action No. CCB-8-2171, 2010 WL 3522436, at *10 (D. Md. Sep. 8,
2010). Nevertheless, he maintains that the University violated this privilege by maliciously
leaking details of the investigation to outside institutions and other third parties. See Gen. Mot.
Corp. v. Piskor, 277 Md. 165 (1976) (holding that employee could overcome employer’s
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privilege by establishing that employer acted with malice).2 Dr. Kerr, however, advances no
specific allegations that the reports circulated outside of JHU. Further, he is not entitled to
discovery because the reports are not defamatory on their face.3
The SCD report summarizes the investigation and states the committee’s conclusions. It
also includes the fact that Dr. Kerr presented contradictory evidence. Likewise, the Dean’s
Report and Provost’s Report merely state their conclusions that the investigations were
procedurally sound and that the proposed disciplinary actions were appropriate. Therefore, it can
hardly be said that these reports are defamatory, meaning that they would expose Dr. Kerr to
―public scorn, hatred, contempt or ridicule.‖ Leese v. Baltimore County, 64 Md. App. 442, 473
(1985), overruled on other grounds, Harford County v. Bel Air, 348 Md. 363 (1998); see also De
Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229, 1239 (4th Cir. 1989) (upholding the district
court’s determination that statements in a hospital credentialing committee’s report were not
defamatory because the report consistently noted the plaintiff’s denial of its factual findings).
Finally, it is inevitable, given the number of individuals involved in the peer review, that
details of the disciplinary proceedings would become the subject of rumor and speculation
outside Hopkins. Dr. Kerr has no evidence that JHU took affirmative steps to blacken his
reputation, and the Court will not allow him discovery in an effort to prove what is no more than
speculation.
2
Malice includes ―a reckless disregard of truth, the use of unnecessarily abusive language, or
other circumstances which would support a conclusion that the defendant acted in an illtempered manner or was motivated by ill-will.‖ Sindorf v. Jacron Sales Co., Inc., 27 Md. App.
53, 69 (Md. Ct. Spec. App. 1975) (quoting Stevenson v. Baltimore Club, 243 A.2d 533, 536
(Md. 1968)). In considering an abuse of privilege, the Court must consider all relevant
circumstances, including ―whether the communication was made in a proper manner and only to
proper parties.‖ Id. at 69–70.
3
The Court further notes that any claims arising from the Investigation Committee’s August
2009 report are time-barred. See Md. Code Ann., Cts. & Jud. Proc. § 5-105 (one year statute of
limitations for defamation claims).
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2.
False Light Invasion of Privacy
Dr. Kerr further claims that by allowing the reports of his investigation to circulate
internally and externally, JHU exposed him to a false light invasion of privacy.4 Dr. Kerr’s
claim for false light suffers from the same deficiencies as his defamation claim. See Crowley v.
Fox Broadcasting Co., 851 F. Supp. 700 (D. Md. 1994) (―In Maryland, a claim for false light
invasion of privacy may not stand unless the claim also meets the standards for defamation.‖).
Accordingly, JHU’s Motion must be granted as to Dr. Kerr’s false light claim.
3.
Fraud
Dr. Kerr’s fraud claim also must be dismissed. Dr. Kerr has not identified with
particularity any statements made by JHU apart from the promises contained in his contract. See
P.’s Opp. at 22-23 (―Dr. Kerr believes that the failure to consider at all his Rebuttals to the
misconduct charges . . . under the standards set out in the research procedures show that a fraud
has been committed upon him.‖). Maryland courts have repeatedly stated that the ―failure to
fulfill a promise is merely a breach of contract.‖ Sass v. Andrew, 152 Md. App. 406, 438 (Md.
Ct. Spec. App. 2003) (Hollander, J.). Thus, ―fraud cannot be predicated on statements which are
merely promissory in nature, or upon expressions as to what will happen in the future.‖ Id.
(citing Levin v. Singer, 227 Md. 47, 63 (1961)). Because Dr. Kerr’s allegations would support,
at most, a breach of contract, his fraud claim will be dismissed.
4.
Tortious Interference
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A publication unreasonably places a plaintiff in false light if: (i) the false light would be highly
offensive to a reasonable person and (ii) the defendant knew or recklessly disregarded the falsity
of the publicized matter and the false light in which the plaintiff would be placed. Ostrzenski v.
Seigel, 177 F.3d 245, 252 (4th Cir. 1999). ―Publicity consists of communication to the public at
large, or to so many persons that the matter must be regarded as substantially certain to become
one of public knowledge.‖ Mayer v. Safeway, Inc., 398 F. Supp. 2d 412, 429 (D. Md. 2005)
(citing Restatement (Second) of Torts § 652D, cmt. A (1977)).
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Kerr seeks damages for tortious interference with contractual relations and an injunction
preventing JHU from notifying his current employer that he was found responsible for research
misconduct. In order to state a claim for tortious interference with business or contractual
relations, a plaintiff must allege ―(1) intentional and willful acts; (2) calculated to cause damage
to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such
damage and loss, without right or justifiable cause on the part of the defendants (which
constitutes malice); and (4) actual damage and loss resulting.‖ Kaser v. Financial Protection
Marketing, Inc., 831 A.2d 49 (Md. 2003) (quoting Willner v. Silverman, 71 A. 962, 964 (Md.
1909)).
Regardless of the other elements, Kerr’s claim fails because the disclosure he seeks to
prevent would not satisfy the ―unlawful purpose‖ element of the tort. In Alexander & Alexander
Inc. v. B. Dixon Evander & Associates, Inc., 650 A.2d 260 (Md. 1994), the Maryland Court of
Appeals explained that this element requires proof of ―conduct that is independently wrongful or
unlawful, quite apart from its effect on the plaintiff's business relationships.‖5
None of the considerations that could support a finding of malice is present in this case.
As discussed supra, the disclosure would not be independently tortious because JHU is
privileged to inform future employers of the circumstances surrounding Kerr’s resignation. See
Carter v. Aramark Sports and Entertainment Servs., Inc., 835 A.2d 262, 280–281 (Md. Ct. Spec.
App. 2003) (upholding summary judgment on both defamation and tortious interference claims
because defendant’s statements were protected by a conditional privilege).
IV.
Conclusion
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Such conduct includes ―common law torts and violence or intimidation, defamation, injurious
falsehood or other fraud, violation of criminal law, and the institution or threat of groundless
civil suits or criminal prosecutions in bad faith.‖ Id. at 271 (internal citations and quotations
ommitted).
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As explained above, all of Dr. Kerr’s claims require dismissal. The only remaining
question is whether he should be afforded leave to file a second amended complaint. The Court
concludes that he should not. Dr. Kerr has stated that, in essence, he seeks a second review of
the evidence. He has already once amended his complaint in attempt to present this theory in a
legally actionable way. Because the law forecloses this theory, however, no further litigation
will be permitted.6
For these reasons, the Court will, by separate Order of even date, GRANT JHU’s Motion,
DENY Dr. Kerr’s Motion, and DIRECT the Clerk to close the case.
Dated the 12th day of September, 2011.
/s/
Benson Everett Legg
United States District Judge
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Because of the deference that must be accorded to the University’s disciplinary decision
making, the Court has not reviewed the merits of the academic misconduct findings against Dr.
Kerr. This decision is not a validation of those findings. Rather, the Court has concluded, based
on clear Maryland law, that the University’s decisions are unreviewable by this Court.
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