Kim v. Lo et al

Filing 38

District Judge Julia E. Kobick: MEMORANDUM AND ORDER entered. For the foregoing reasons, the BU Defendants' motion to dismiss, ECF 15 , is GRANTED, and Kim's claims are DISMISSED in their entirety.SO ORDERED. (Currie, Haley)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JEONG HOON KIM,
Plaintiff,
v.
SUSAN LO, CATALDO LEONE,
TRUSTEES OF BOSTON UNIVERSITY
a/k/a B.U. SCHOOL OF DENTISTRY
a/k/a B.U. GRADUATE SCHOOL OF
DENTISTRY, JEFFREY HUTTER,
SHABTAI SAPIR, DOLRUDEE
PORSCHE JUMLONGRAS, WENDY
CHENEY, AND JANE DOES & JOHN
DOES 1-10,
Defendants.

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No. 1:24-cv-11134-JEK

MEMORANDUM AND ORDER ON THE MOTION TO DISMISS OF DEFENDANTS
TRUSTEES OF BOSTON UNIVERSITY, DOLRUDEE PORSCHE JUMLONGRAS,
SHABTAI SAPIR, AND CATALDO LEONE
Plaintiff Jeong Hoon Kim brings this action against Boston University’s Graduate School
of Dentistry (“BUGSD”) and several associated faculty members and administrators, alleging that
his February 25, 2020 dismissal from the school’s postdoctoral degree program and the events
leading up to that decision were motivated by discrimination on the basis of sex and race. He also
contends that his expulsion was not conducted in accordance with the disciplinary procedures set
forth in the school’s Postdoctoral Student Handbook (“Handbook”). Defendants Trustees of
Boston University, Dolrudee Porsche Jumlongras, Shabtai Sapir, and Cataldo Leone (the “BU
Defendants”) have moved to dismiss Kim’s claims against them as time barred and for failure to
state plausible claims for relief. Agreeing that Kim’s claims are untimely, the Court will grant the

BU Defendants’ motion. Because Kim’s claims against the remaining unserved defendants are
likewise time barred, the claims against those defendants will be dismissed as well.
BACKGROUND
The Court recounts the facts based on the allegations in the complaint and “the content of
documents . . . sufficiently referenced in the complaint.” Bazinet v. Beth Israel Lahey Health, Inc.,
113 F.4th 9, 15 (1st Cir. 2024).
Kim is a licensed dentist in South Korea. ECF 1, ¶¶ 1, 17. In 2016, he enrolled in a threeyear dual-degree program at BUGSD. Id. ¶ 2. The named individual defendants are all affiliated
with defendant BUGSD. Defendant Jeffrey Hutter is the former Dean of BUGSD and is now Dean
Emeritus. Id. ¶ 10. Defendant Cataldo Leone is the current Dean of BUGSD and was the Associate
Dean for Academic Affairs during the relevant time period. Id. ¶ 9. Defendant Wendy Cheney is a
Program Director and a Clinical Professor in the Department of Pediatric Dentistry at BUGSD. Id.
¶ 7. Defendant Susan Lo is a former Assistant Clinical Professor of Dentistry at BUGSD. Id. ¶ 8.
Defendant Dolrudee Porsche Jumlongras is an Associate Clinical Professor of Dentistry at BUGSD
and was the Interim Program Director for Kim’s postgraduate degree program during the relevant
time period. Id. ¶ 12. And defendant Shabtai Sapir is an Assistant Clinical Professor of Dentistry
at BUGSD. Id. ¶¶ 11, 47.
Kim completed his one-year Master of Science in Dentistry degree at BUGSD in 2017 and
then began working toward a two-year Certificate of Advanced Graduate Study (“CAGS”) in
Pediatric Dentistry. Id. ¶¶ 20-22. He was slated to begin the CAGS program on July 1, 2017. Id.
¶ 20. Following a background check, however, the Massachusetts Board of Registration in
Dentistry refused to issue Kim a limited student license based on a pending charge against him for
simple assault and battery in Boston Municipal Court. Id. ¶¶ 23, 26. Because Kim needed this

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license to begin the clinical work required by the CAGS program, his start date in the clinical
portion of that program was delayed for six months until January 2018, when the simple assault
and battery charge was dismissed and Kim received his license. Id. ¶¶ 26, 29.
Kim alleges that once the defendants learned about the charge against him, they formed a
conspiracy to oust him from BUGSD because they believed that he is a “‘Korean, male
chauvinist’” and should not be associated with the school. Id. ¶¶ 27-28, 31, 34, 39, 46. The “object
of th[e] conspiracy,” according to the complaint, was to prevent Kim from graduating from the
CAGS program “by falsely rendering his clinical practice ability as ‘incomplete.’” Id. ¶ 40. As
evidence of this campaign against him, Kim claims that during his clinical rotation at Franciscan
Children’s Hospital, Cheney “harassed him routinely, and coerced [him] to use his ‘free time’ to
clean the Franciscan Hospital facilities.” Id. ¶ 31. Kim also alleges that Cheney secretly conferred
with Leone, Jumlongras, Lo, and Hutter to carry out the conspiracy. Id. ¶¶ 31-32. Due to his
conflict with Cheney, Kim was reassigned from his clinical rotation at Franciscan Children’s
Hospital to complete his clinical rotation at BUGSD’s facilities. Id. ¶ 33. Kim further alleges that,
on some unspecified date, Jumlongras told him that he was “‘seen poorly’” as a “‘Korean, male
chauvinist [pig],’ whose actions ‘might hurt B.U.’” Id. ¶ 32 (brackets and quotation marks in the
original).
Kim also alleges that Lo conspired with the other defendants to expel him from the dental
clinic at the East Boston Community Health Center (“EBCHC”). Id. ¶ 34. He claims that this
expulsion was based on a “personal grudge,” but that the defendants “concocted a bunch of
‘reasons’ and schemed to tell [him] that he was essentially at sub-par performance and in need of
‘remediation.’” Id. Kim additionally contends that on January 23, 2019, Jumlongras and Lo

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schemed to deny his temporary dental license to prevent him from graduating. Id. ¶ 42. Also on
that date, Cheney allegedly stated that Kim should not be permitted to graduate. Id. ¶ 41.
On January 29, 2019, Jumlongras sent Kim a letter notifying him that he was being placed
on formal remediation status. Id. ¶ 44; ECF 16-1. The letter created a seven-part remediation plan
and identified numerous performance deficiencies in Kim’s clinical work at Franciscan Children’s
Hospital from September to December 2018. ECF 1, ¶¶ 44-45; ECF 16-1. In particular, the letter
stated that “the most common complaints revolve around [Kim’s] communication skills in
English,” including his “listening, verbal and writing skills.” ECF 16-1, at 1 (emphasis omitted).
The letter explained that “lacking the necessary skills to effectively communicate with your
patients and their guardians creates a major obstacle for you to deliver optimal patient care.” Id. at
2. The letter also described Kim’s issues with record keeping, which included his frequent failure
to “include vital information related to patient care” and his “unintelligible” and
“incomprehensible” notes. Id. Other concerns included complaints that Kim was “‘heavy-handed’
with patients”; at times failed to complete required checks with faculty before initiating treatment
procedures on patients; had failed one class and an exam in another class; and often did not follow
infection control protocols, which resulted in cross-contamination. Id. at 2-3.
Kim alleges that the defendants’ personal animus and racist view of his accent motivated
this negative feedback. ECF 1, ¶¶ 45, 52. At the time, however, Kim states that he did not suspect
ulterior motives behind the letter and worked hard to complete his remediation plan. Id. ¶¶ 53-54.
Originally set to begin on January 1, 2019 and end on March 31, 2019, the remediation plan was
later extended by three months to “allow [Kim] more time to overcome the identified deficiencies.”
ECF 16-3, at 1; see ECF 16-1, at 2. By June 2019, Kim had completed six of the seven

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requirements. ECF 1, ¶ 55. Evaluations from the spring and summer of 2019 reflect his
improvement during that period. Id. ¶¶ 56-58.
Kim alleges that he faced further harassment in his interactions with Sapir during his
clinical rotation in the fall of 2019. Sapir allegedly “attacked [his] ‘English ability’” when
criticizing his communication with a patient, “made open accusations and threats to [Kim] in the
presence of his co-residents,” and “routinely ordered [Kim] to perform remedial, non-professional,
non-academic tasks,” such as cleaning up patient rooms and organizing supplies. Id. ¶¶ 48-50. Kim
eventually requested and was granted a reassignment to complete his clinical sedation course at
BUGSD’s facilities. Id. ¶ 50. Kim alleges that Sapir retaliated by telling one or more of the
defendants that Kim’s professional relationship with Dr. Athanasios Zavras, the Pediatric Dentistry
Department Chair, was “‘unethical and improper’” and reporting it to Hutter and the school
newspaper. Id. ¶ 51.
By December 2019, Kim had satisfied all seven requirements of his remediation plan. Id.
¶ 59. To graduate, Kim was required to give a Pediatric Clinical Case Presentation, which had
written and oral components. Id. ¶¶ 61-62. Kim submitted his written materials in December 2019
and alleges that these materials were satisfactory. Id. ¶ 62. However, he failed his January 28, 2020
oral presentation. Id. ¶¶ 63, 67. Kim alleges that “no graduate student is rumored to have failed
due to an imperfect or deficient presentation; what counted was the written presentation materials.”
Id. ¶ 64. Moreover, he claims that his performance was satisfactory and should have entitled him
to pass. Id. But shortly after his presentation, Kim alleges, Jumlongras approached him and “told
him, point-blank, ‘you will fail this presentation.’” Id. ¶ 65.
On February 25, 2020, Jumlongras sent Kim a letter, copying Zavras and Leone,
confirming that Kim had failed his Case Presentation and expelling him from the degree program.

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Id. ¶ 67; ECF 16-3. The letter detailed “serious concerns” that had arisen over the course of his
residency, including multiple failed rotations, several failed classes, and a clinic’s decision to ban
him from working at its site “due to concerns related to [Kim’s] ability to practice pediatric
dentistry.” ECF 16-3, at 1. The letter noted that despite significant support from faculty, staff, and
Kim’s co-residents, Kim continued to struggle with his communication skills, sense of personal
responsibility, attendance, and adherence to infection control protocols. Id. In addition, the letter
stated that Kim had been barred from practicing on young children because of his “poor
communication skills” and his “heavy-handedness with patients.” Id. Finally, the letter reported
that Kim’s Case Presentation examiners had failed him unanimously and were “astounded” by
Kim’s poor performance at his presentation, including his misdiagnosis, improper treatment plans,
failure to interpret radiographs, and inability to defend his orthodontic treatment plan. Id. at 2. The
letter explained that on February 11, 2020, a committee had convened to review Kim’s academic
performance in the CAGS program and, after reviewing the many concerns about his competency,
failed classes, and failure to complete two clinical rotations, unanimously agreed that dismissal
from the program was warranted. Id.
Kim alleges that this expulsion arose out of a conspiracy between Hutter, Cheney, Lo,
Sapir, Jumlongras, and Leone to prevent him from graduating, and he claims that the BUGSD
leadership “manufacture[d] their own, fake ‘Rules, and policies,’ and . . . appl[ied] fake, nonexistent ‘standards’ of academic evaluation that had no reference to reality.” ECF 1, ¶¶ 68-69, 91.
Kim alleges that when Hutter “got wind that [Kim] had effectively rendered the presentation, and
would be eligible to graduate, internal machinations that began with defendants Dr. Cheney, Lo
and Sapir and Deans Leone and Hutter reacted antagonistically among themselves and redirected
the outcome.” Id. ¶ 69. Kim also argues that the expulsion “violated B.U. policy and basic due

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process by expelling a student who had not been on any probation, with no notice or opportunity
to address any concerns,” and that the Handbook entitled him to appear before the committee that
decided on his expulsion. Id. ¶¶ 70, 87. He claims as well that one of the members of his
presentation review committee was not a professor, which he asserts would have “rendered the
review committee’s actions void.” Id. ¶¶ 84-85.
The expulsion letter gave Kim a fourteen-day window to appeal. Id. ¶ 71; ECF 16-3, at 2.
He did so with the assistance of counsel on March 9, 2020, claiming that his expulsion was based
on manufactured grounds and that it violated the procedures laid out in the Handbook. ECF 1,
¶ 72. According to Kim, the Handbook has three tiers of academic discipline, and a student must
be placed on academic probation (which he was not) before being expelled. Id. ¶¶ 72-73.
Hutter affirmed the expulsion on March 23, 2020. Id. ¶ 76. On April 6, 2020, Kim appealed
Hutter’s decision to the provost. Id. ¶ 79. Kim did not receive a written decision from the provost.
Id. ¶ 80. Instead, on May 8, 2020, Jumlongras sent him a letter rescinding his dismissal and
reinstating him on probationary status. Id.; ECF 16-4. The terms of Kim’s probation required him
to retake and pass the Advanced Case Presentations in Pediatric Dentistry course; attend clinic;
adhere to infection control protocols; demonstrate an ability to communicate effectively with
patients, staff, faculty, and peers; keep accurate, clear, and timely records; improve his professional
behavior, including by adhering to clinic protocols, checking his schedule, and requesting absences
in advance; and meet with his probation supervisor on at least a monthly basis. ECF 16-4, at 1-2.
In view of the hold on clinical activity then in place because of the COVID-19 pandemic, Kim was
required to complete these tasks within two years of the resumption of clinical activity. Id. at 2.
Kim alleges that trying to satisfy these requirements would have been futile because the probation
was “pretextual” and the letter “contained junk ‘terms and conditions’ that were manufactured to

7

fit the situation desired by the” defendants’ conspiracy. ECF 1, ¶ 80. He does not allege whether
he attempted to fulfill his conditions of probation, nor does he allege any specific conduct from
the defendants after the May 8, 2020 letter. Kim does allege, however, that he only discovered the
defendants’ conspiracy in “recent months through discussions with one or more former BU
members.” Id. ¶ 93.
Kim filed his complaint in this matter on April 26, 2024. ECF 1. Against the Trustees of
Boston University, the complaint asserts claims for sex discrimination in violation of Title IX, 20
U.S.C. § 1681 et seq. (Count 1); breach of contract (Count 2); and breach of the implied covenant
of good faith and fair dealing (Count 3). Against all defendants except the Trustees of Boston
University, the complaint asserts tortious interference with Kim’s contract with the school (Count
4). Against all defendants, the complaint asserts discrimination on the basis of race, in violation of
42 U.S.C. § 1981 (Count 5). Contending that Kim’s claims are all time barred and otherwise fail
to state plausible claims for relief, the BU Defendants moved to dismiss the claims against them
under Federal Rule of Civil Procedure 12(b)(6). ECF 15. After a hearing, the Court took that
motion under advisement. ECF 33.
STANDARD OF REVIEW
In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court
must determine “‘whether, construing the well-pleaded facts of the complaint in the light most
favorable to the plaintif[f], the complaint states a claim for which relief can be granted.’” CortésRamos v. Martin-Morales, 956 F.3d 36, 41 (1st Cir. 2020) (quoting Ocasio-Hernández v. FortuñoBurset, 640 F.3d 1, 7 (1st Cir. 2011)). The complaint must allege “a plausible entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While
legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679. The Court “may properly consider only facts and documents that are part
of or incorporated into the complaint.” Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15
(1st Cir. 2009) (quotation marks omitted). Further, “when the pleader’s allegations leave no doubt
that an asserted claim is time-barred,” granting “a motion to dismiss based on a limitations defense
is entirely appropriate.” LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998).
DISCUSSION
I.

Timeliness of Kim’s Claims.
The BU Defendants first move to dismiss all of Kim’s claims as time barred. The parties

agree that the statute of limitations is three years for Kim’s Title IX, breach of contract, breach of
the implied covenant of good faith and fair dealing, and tortious interference claims, and four years
for his Section 1981 claim. See ECF 16, at 6-8; ECF 26, at 11. They disagree, however, on when
the clock for Kim’s claims started to run and whether tolling or an equitable exception to the
limitations periods is warranted. The BU Defendants contend that neither tolling nor any exception
applies, and that Kim’s claims accrued on February 25, 2020, the date he received notice of his
dismissal from BUGSD, so all of his claims are time barred. Kim contends that under the discovery
rule, the COVID-19 tolling order issued by the Massachusetts Supreme Judicial Court, and the
continuing violation doctrine, his claims have not yet expired.
A.

Limitations Periods.

Title IX does not codify its own limitations period, so in assessing the timeliness of Title
IX claims, courts generally adopt the forum state’s statute of limitations for personal injury actions.
Czerwienski v. Harvard Univ., 666 F. Supp. 3d 49, 77 (D. Mass. 2023); see also Doe v. Brown

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Univ., 43 F.4th 195, 205 n.6 (1st Cir. 2022) (noting that the First Circuit has not yet decided what
statute of limitations governs Title IX claims but observing that district courts in the Circuit have
applied the forum state’s limitations period for personal injury claims). In Massachusetts, the
limitations period for personal injury actions is three years. Czerwienski, 666 F. Supp. 3d at 77.
Tort claims, like the tortious interference claim Kim asserts in Count 4, are likewise subject to a
three-year limitations period. M.G.L. c. 260, § 2A. A Section 1981 claim, which Kim asserts in
Count 5, expires four years after accrual. See 28 U.S.C. § 1658; Buntin v. City of Boston, 813 F.3d
401, 405 (1st Cir. 2015) (citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004)).
Contract claims generally have a six-year limitations period, M.G.L. c. 260, § 2, but
contract claims alleging personal injuries have a three-year statute of limitations, id. § 2A. To
determine which limitations period applies to a contract claim, a court must look to the “gravamen”
of the claim. Pagliuca v. City of Boston, 35 Mass. App. Ct. 820, 823 (1994). “A claim is considered
a contract claim when it is ‘to recover from another money which in equity and good conscience
he is not entitled to keep,’ while a tort claim involves ‘an accident resulting in injuries to person
or property.’” Quinn v. Hewlett-Packard Fin. Servs. Co., No. 18-cv-10705-LTS, 2018 WL
6107071, at *5 (D. Mass. Nov. 21, 2018) (quoting Ansin v. River Oaks Furniture, Inc., 105 F.3d
745, 754-55 (1st Cir. 1997)). Kim does not specify the nature of his contract claim injuries in
Counts 2 and 3 of his complaint, but he has not disputed, either in his brief opposing the motion
to dismiss or at the hearing on that motion, the BU Defendants’ characterization of his contract
injuries as personal injuries subject to the three-year limitations period. See ECF 26, at 11 (Kim’s
brief representing that all of his claims are subject to either a three- or four-year statute of
limitations). He has therefore waived argument on that point, and the Court accordingly concludes
that Kim’s contract claims, like his Title IX and tort claims, are subject to a three-year statute of

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limitations. See Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 19 (1st Cir. 2009) (“[I]ssues
adverted to . . . in a perfunctory manner, unaccompanied by some developed argumentation, are
deemed to have been abandoned.” (quotation marks omitted)).
B.

Claim Accrual, the Continuing Violation Doctrine, and Tolling.

The next question is when the clock on Kim’s claims started to run. The timing of claim
accrual depends on the claim alleged. Breach of contract actions accrue at the time a contract is
breached. See Saenger Organization Inc. v. Nationwide Ins. Licensing Assocs., Inc., 119 F.3d 55,
64 (1st Cir. 1997); Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 661 (1996). Tort actions
accrue at the time a plaintiff is injured. See Joseph A. Fortin Constr., Inc. v. Massachusetts Hous.
Fin. Agency, 392 Mass. 440, 442 (1984). For discrimination claims under federal statutes like Title
IX and Section 1981, “‘[t]he proper focus is upon the time of the discriminatory acts.’” Delaware
State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (emphasis omitted) (quoting Abramson v. Univ. of
Hawaii, 594 F.2d 202, 209 (9th Cir. 1979)).
Applying these standards, Kim’s claims all accrued on February 25, 2020, the date he
received notice of his dismissal from BUGSD. Although Counts 2 and 3 of the complaint do not
specify which contract the defendants allegedly breached, the complaint elsewhere references
Kim’s enrollment contract with BUGSD and the Handbook. ECF 1, ¶¶ 72, 104. Kim claims that
his dismissal from the program constituted a breach of the Handbook’s progressive academic
discipline policies. Id. ¶¶ 72-73. Because accrual of contract claims occurs when a contract is
allegedly breached, the clock on Kim’s contract claims in Counts 2 and 3 started running on the
day he was expelled from the CAGS program. Similarly, the injury asserted in Kim’s tortious
interference claim is his expulsion from BUGSD. He alleges that the defendants manufactured “a
sham ‘academic deficiency,’” which resulted in his injury: the termination of his “student-school

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agreement” with BUGSD. Id. ¶ 104. Accordingly, the limitations period on that claim also started
on February 25, 2020. Finally, Kim alleges in Counts 1 and 5 that the defendants’ discrimination
against him on the basis of sex and race interfered with his contract with BUGSD and otherwise
injured him, in violation of Title IX and Section 1981. Id. ¶¶ 96-97, 108. His federal discrimination
claims thus likewise accrued on the date of his dismissal, which, according to the complaint,
marked the culmination of the defendants’ alleged discriminatory scheme. Id. ¶ 65 (alleging that
the “defendants’ conspiracy revealed itself” after Kim’s Case Presentation in January 2020, when
Jumlongras told Kim that he would fail).
Kim disagrees, arguing that because the discovery rule applies, accrual did not begin on
the date of his dismissal from the CAGS program. Under both the federal and state discovery rules,
a plaintiff must have notice of the injury suffered and the identity of the person who caused that
harm before a claim can accrue. See Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 33 (1st
Cir. 2015) (for federal and state discrimination claims, accrual occurs once a plaintiff experiences
the “crystallized and tangible effect” of the discrimination and has “notice of both the act and its
invidious etiology”); Ouellette v. Beaupre, 977 F.3d 127, 136 (1st Cir. 2020) (under the federal
discovery rule, accrual only begins once a plaintiff “knows, or should know, . . . of both the fact
of his or her injury and the injury’s likely causal connection with the putative defendant”);
Harrington v. Costello, 467 Mass. 720, 727 (2014) (under Massachusetts’ discovery rule, “a cause
of action accrues when the plaintiff discovers or with reasonable diligence should have discovered
that (1) he has suffered harm; (2) his harm was caused by the conduct of another; and (3) the
defendant is the person who caused that harm”). The limitations period commences when “an event
or events have occurred that were reasonably likely to put the plaintiff on notice that someone may
have caused her injury.” Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 205-06 (1990)

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(Massachusetts’s common law discovery rule “prescribes as crucial the date when a plaintiff
discovers, or any earlier date when she should reasonably have discovered, that she has been
harmed or may have been harmed by the defendant’s conduct”); Ouellette, 977 F.3d at 136 (“the
federal discovery rule delays accrual until ‘a reasonably prudent person similarly situated’ to the
plaintiff would discover . . . the existence of the injury and its probable cause” (citation omitted)).
The dismissal letter put Kim on notice that he had suffered a concrete injury. See Shervin,
804 F.3d at 33 (a doctor placed on probation “had notice almost immediately after being placed on
probation that this disciplinary action was both tangible and concrete”). Kim also reasonably
should have known that the defendants were responsible for his alleged harm. Jumlongras sent him
the letter, copying Leone, on Boston University letterhead. ECF 16-3, at 1-2. Jumlongras was the
Interim Program Director for Kim’s degree and had previously communicated with Kim regarding
the school’s concerns about his performance. ECF 1, ¶¶ 12, 44, 55; ECF 16-1. Leone was the
Associate Dean for Academic Affairs and supervised administration of the CAGS program while
Kim was enrolled. ECF 1, ¶ 9. Kim further alleges that his dismissal decision was made “[u]nder
defendant Leone’s directorship.” Id. ¶ 87. And Hutter was Dean of BUGSD at the time Kim was a
student and allegedly “made the ultimate decision, along with the other defendants, to block [his]
completion in the Program.” Id. ¶¶ 10, 69. A reasonable person in Kim’s position would have been
on notice that Jumlongras, Leone, and Hutter, on behalf of BUGSD, were involved in the decision
to dismiss him from the program.
Kim also should have known that Sapir, Cheney, and Lo contributed to this decision. The
expulsion letter explained that the dismissal decision was based in part on complaints about Kim’s
clinical work, including critical feedback from faculty. ECF 16-3, at 1. Kim alleges that he was
“‘reassign[ed]’” from Franciscan Children’s Hospital based on a conflict with Cheney, who at the

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time was the Hospital’s Clinical Director of the Pediatric Dental Clinic. ECF 1, ¶¶ 31, 33. Kim
was also expelled from EBCHC’s dental clinic, allegedly at the direction of Lo, who was at the
time a faculty member at BUGSD and Clinical Director of EBCHC. Id. ¶ 34. And Sapir was an
Assistant Professor of Clinical Dentistry during the relevant time period and had helped oversee
Kim’s work. Id. ¶¶ 47, 49 (Sapir “solely had the grading authority” over a portion of Kim’s clinical
program). Kim had also had several negative interactions with Sapir that led to Kim requesting
reassignment to a different clinical instructor. Id. ¶ 50. Based on these interactions and the content
of the dismissal letter, a reasonably prudent person in Kim’s position should have known that the
professors’ evaluations of his work likely factored into his expulsion.
Kim nonetheless contends that the discovery rule should delay the date of claim accrual
until he became suspicious in January 2024 that the defendants’ dislike of him was motivated by
discriminatory animus. That argument is inconsistent with the allegations in the complaint and
with First Circuit precedent. As the complaint alleges, and as Kim’s counsel conceded at the motion
hearing, Jumlongras disclosed to Kim no later than the time of his expulsion that he “was seen as
a ‘Korean, male chauvinist [pig]’ whose actions ‘might hurt B.U.’” Id. ¶ 32 (brackets and quotation
marks in the original); see ECF 34, at 23:4-25:14. The complaint further alleges that “shortly after
the January 28, 2020, Pediatric Clinical presentation, defendants’ conspiracy revealed itself.” ECF
1, ¶ 65. Thus, the basis for Kim’s allegations of a discriminatory conspiracy against him were
known to him at the time of his dismissal. Furthermore, a plaintiff “need not know all the facts that
support his claim in order for [the] countdown to commence.” Morris v. Gov’t Dev. Bank of Puerto
Rico, 27 F.3d 746, 749-50 (1st Cir. 1994) (rejecting the plaintiff’s argument that his claim “existed
in . . . a state of suspended animation until he became aware of the racial and political motives”).
Once the plaintiff knows of the adverse action taken against him, the identity of the person or

14

persons responsible, and the stated reason for that action, the clock starts running on the limitations
period. Id. The February 25, 2020 letter, together with Jumlongras’ contemporaneous disclosures,
put Kim on notice of the injury that undergirds each of his claims.
Nor is the Court persuaded by Kim’s argument that the defendants’ alleged fraudulent
concealment of their scheme warrants tolling the limitations periods for his claims. The federal
doctrine of fraudulent concealment may justify tolling a statute of limitations if “‘(1) sufficient
facts were [not] available to put a reasonable [person] in plaintiff[’s] position on inquiry notice of
the possibility of fraud, and (2) plaintif[f] exercised due diligence in attempting to uncover the
factual basis underlying this alleged fraudulent conduct.’” Salois v. Dime Sav. Bank of New York,
FSB, 128 F.3d 20, 25-26 (1st Cir. 1997) (quoting Maggio v. Gerard Freezer & Ice Co., 824 F.2d
123, 128 (1st Cir. 1987)). Massachusetts’ counterpart to this doctrine provides that limitations
periods may be tolled “where ‘the defendan[t] concealed the existence of a cause of action through
some affirmative act done with intent to deceive,’” but not if the plaintiff has actual knowledge of
the claim. Magliacane v. City of Gardner, 483 Mass. 842, 852 (2020) (quoting White v. Peabody
Constr. Co., Inc., 386 Mass. 121, 133 (1982)); see M.G.L. c. 260, § 12. Because Kim has conceded
that he had actual knowledge that the grounds for his expulsion were “manufactured by the
defendants” when he appealed his initial expulsion letter on March 9, 2020, ECF 1, ¶¶ 65, 72, his
fraudulent concealment argument fails under both the federal and Massachusetts standards.
Kim next argues that his claims are not time barred because “the continuing denial of [his]
right to graduate is an ongoing violation.” ECF 26, at 9. Under the continuing violation doctrine,
a plaintiff may recover for discriminatory conduct that would otherwise be time barred, so long as
it is “part of an ongoing series of discriminatory acts and there is some violation within the statute
of limitations period that anchors the earlier claims.” O’Rourke v. City of Providence, 235 F.3d

15

713, 730 (1st Cir. 2001) (quotation marks omitted). The doctrine is limited “only to claims that
cannot be said to occur on a particular day and that by their very nature require repeated conduct
to establish an actionable claim, such as hostile work environment claims.” Ayala v. Shinseki, 780
F.3d 52, 57 (1st Cir. 2015). The doctrine does not apply to “discrete acts” of alleged
discrimination—such as “‘termination, failure to promote, denial of transfer, or refusal to hire’”—
which are “easily identifiable” and immediately actionable. Id. (quoting Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002)). Courts must “distinguish between a continuing
violation and the continuing effects of a prior, yet discrete and no longer existent, discriminatory
act.” DeNovellis v. Shalala, 124 F.3d 298, 309 (1st Cir. 1997) (quotation marks omitted).
Kim’s Title IX and Section 1981 claims are not saved by the continuing violation doctrine
because his expulsion was a discrete act that resulted in an instantly actionable injury. See PérezSánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). In his opposition to the motion to
dismiss, Kim argues that the injury he has suffered is the “denial of graduation,” not his expulsion,
and that his injury is therefore “perpetual and ongoing.” ECF 26, at 8 (emphasis omitted). But “[i]t
is not enough to show that plaintiff is merely feeling the effects of some earlier discriminatory
action.” Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994); Velazquez v. Chardon, 736 F.2d
831, 833 (1st Cir. 1984). Moreover, Kim does not allege that the defendants continued a pattern of
race- or sex-based discrimination in the years between his dismissal and the filing of his complaint,
so he has not identified any act within the limitations periods that could anchor his otherwise
expired claims. 1

1

Indeed, the complaint contains no concrete allegations that postdate the May 8, 2020 letter
rescinding Kim’s expulsion and placing him on probation. That letter gave Kim a pathway to
graduate from the CAGS program. See ECF 16-4. Setting aside his vague and conclusory
allegations about an ongoing conspiracy, Kim does not allege with specificity that the defendants
impeded any efforts he might have made to satisfy the conditions of probation set forth in that
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The continuing violation doctrine similarly does not apply to Kim’s breach of contract and
tortious interference claims. Because a breach of contract is a “single, readily ascertainable, event,”
courts have resisted applying the continuing violation doctrine to contract claims. Quality Cleaning
Prods. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 206 (1st Cir. 2015) (“We are not aware
of any case in which a court . . . has applied the doctrine to a contract claim.”). Similarly, Kim’s
tortious interference claim hinges on the alleged breach of Kim’s enrollment contract at BUGSD,
a discrete event, so it is likewise not subject to the doctrine. Nor does the allegation that BUGSD
continued to violate a contract with Kim when it affirmed and then later rescinded his expulsion
qualify as a continuing violation. See id. at 205 (a plaintiff cannot “‘avoid filing suit so long as
some person continues to violate his rights’” (quoting Pérez-Sánchez, 531 F.3d at 107)).
Finally, Kim contends that the Supreme Judicial Court’s COVID-19 tolling order, which
paused all civil statutes of limitations for 105 days, applies to his claims. See Shaw’s Supermarkets,
Inc. v. Melendez, 488 Mass. 338, 342 (2021). The order governed claims that apply state statutes
of limitations, such as contract claims, tort claims, and Title IX claims, but not Section 1981 claims,
which are subject to the federal limitations period set forth in 28 U.S.C. § 1658. See Czerwienski,
666 F. Supp. 3d at 78. Accordingly, Kim’s Title IX, contract, and tort claims expired three years
and 105 days after February 25, 2020—that is, in June 2023—and his Section 1981 claim expired
in February 2024, four years after the point of accrual. Kim filed this lawsuit in April 2024. All of
his claims are therefore time barred and must be dismissed.

letter. Thus, to the extent Kim contends that his injury is the denial of graduation, as distinct from
his initial dismissal from the CAGS program, his complaint does not contain facts to support
standing to assert that injury. See Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir.
2016) (to establish standing to assert an injury, the complaint must plausibly allege an injury that
is “concrete and particularized and actual or imminent, not conjectural or hypothetical” (quotation
marks omitted)).
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II.

Remaining Matters.
That conclusion leaves two outstanding matters. First, Kim seeks leave to amend his

complaint in the event of a dismissal. Because Kim’s claims are all time barred, and he makes
nothing more than an unadorned request for leave to amend, devoid of any proposed additional
factual allegations or claims, his request for leave to amend is futile and is therefore denied. See
Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013) (“[A] district court may deny
leave to amend when the request is characterized by ‘undue delay, bad faith, futility, [or] the
absence of due diligence on the movant’s part.’” (quoting Palmer v. Champion Mortg., 465 F.3d
24, 30 (1st Cir. 2006))); Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50, 58 (1st Cir. 2006) (a
plaintiff’s “bare request for leave to amend,” lacking a preview of “what additional facts or legal
claims might be included” should amendment be allowed, “may, in and of itself, be a sufficient
reason for the denial of leave to amend”).
Second, the motion to dismiss was brought only by defendants Trustees of Boston
University, Jumlongras, Sapir, and Leone. Defendants Cheney, Hutter, Lo, and Jane and John Does
Nos. 1 through 10 have yet to be served. As to the unserved defendants, Kim is well past the 90day period for service set by Federal Rule of Civil Procedure 4(m). When, as here, an “action is
dismissed as to all defendants who have been served and only unserved defendants ‘remain,’ . . .
there is no reason . . . to preclude the immediate and automatic entry of a final judgment since
there is no basis for believing there will be any further adjudications in the action.” Leonhard v.
United States, 633 F.2d 599, 608 (2d Cir. 1980). Furthermore, where all claims against the served
defendants are time barred, and where there are no different claims against the unserved defendants
or factual allegations that could render the claims against those defendants timely, the presence of
unserved defendants “does not defeat finality.” Manley v. City of Chicago, 236 F.3d 392, 395 (7th

18

Cir. 2001); accord Cooper v. Pickett, 137 F.3d 616, 621-22 (9th Cir. 1997); Ins. Co. of N. Am. v.
Dealy, 911 F.2d 1096, 1099 (5th Cir. 1990). Here, the conclusion that Kim’s claims against the BU
Defendants are time barred applies with equal force to the claims against Lo, Hutter, Cheney, and
any Jane or John Doe defendants. Kim had the opportunity to address the timeliness of his claims
in briefing and at the motion to dismiss hearing, and his complaint contains no distinct allegations
against the unserved defendants that could render his claims against them timely. Accordingly,
Kim’s claims against the unserved defendants are also dismissed.
CONCLUSION AND ORDER
For the foregoing reasons, the BU Defendants’ motion to dismiss, ECF 15, is GRANTED,
and Kim’s claims are DISMISSED in their entirety.
SO ORDERED.
/s/ Julia E. Kobick
JULIA E. KOBICK
UNITED STATES DISTRICT JUDGE

Dated: March 7, 2025

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