Shank v. Carleton College

Filing 221

ORDER granting 64 Motion to Alter/Amend/Supplement Pleadings(Written Opinion). Signed by Magistrate Judge Hildy Bowbeer on 10/15/2018. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Elizabeth M. Shank,

Case No. 16-cv-1154 (PJS/HB)
Plaintiff,

v.
ORDER
Carleton College,

Defendant.

HILDY BOWBEER, United States Magistrate Judge
This matter is before the Court on Plaintiff Elizabeth M. Shank’s (“Shank”)
Motion to Amend to Add a Claim for Punitive Damages (“Mot. to Amend”) [Doc. No.
64], which the Court took under advisement on September 11, 2018. See (Am. Minute
Entry Dated Sept. 11, 2018 [Doc. No. 214].) For the reasons set forth below, the Court
will grant the motion.
I.

Background
A.

The Lawsuit

Shank brings this action alleging violations of the Americans with Disabilities Act,
42 U.S.C. § 12181, Title IX of the Education Amendments of 1972, 2 U.S.C. § 1681
(“Title IX”), the Rehabilitation Act of 1973, 29 U.S.C. §§ 701–95, the Minnesota Social
Host Liability statute, Minnesota Statutes § 340A.90, and other related Minnesota state

1

law claims, including intentional infliction of emotional distress (“IIED”). 1 See (PSAC at
2–51. 2) Specifically, Shank alleges that Defendant Carleton College (“Carleton”) failed
to adequately respond to her allegations regarding two sexual assaults that she suffered at
the hands of Students One and Two. See, e.g., (id. ¶¶ 5, 86–88, 92–95, 109–10, 188–89,
191, 193–94, 213–14.) These allegations include Carleton’s: (1) mishandling of the
disciplinary proceedings against her assailants; (2) failure to impose adequate sanctions
against her assailants; (3) failure to explain or assist with the criminal prosecution of
these individuals; (4) failure to provide adequate medical assistance; (5) failure to arrange
or otherwise suggest alternative housing for Shank; and (6) failure to provide academic
assistance and other academic accommodations. See, e.g., (id. ¶¶ 5, 88, 92, 93–95, 109–
10, 182–83, 213–14.)
1.

Student One

Shank was assaulted by Student One in 2011 (Id. ¶¶ 77–85.) Shank did not
initially file a formal complaint against Student One. (Id. ¶ 88.) Rather, Carleton became
aware that she was raped on the basis of a community-concern form that was filed against
Student One, despite the fact that Shank was not specifically identified in the form. (Id.

1

Many of these claims were dismissed by the Honorable Patrick Schiltz, United States
District Judge on Carleton’s Motion to Dismiss [Doc. No. 13]. See (Jan. 8, 2017 Order,
“Schiltz Order” [Doc. No. 41].) The Court does not intend the factual recitation of the
case to revive these previously dismissed claims. By the same token, in granting Shank’s
motion the Court does not intend to revive the dismissed claims that were included in
Shank’s Proposed Second Amended Complaint (“PSAC”) [Doc. No. 72-3].

2

When discussing Shank’s allegations, the Court will refer to Shank’s PSAC, using the
CM/ECF pagination, as that is the pleading that must support her instant motion.
2

¶¶ 99, 106–07.) Shank was assigned a “sexual misconduct support advisor” (“SMS
advisor”), whose role was to assist Shank with obtaining appropriate support and assist
her during the complaint process. (Id. ¶ 105–06.) Shank informed her SMS advisor that
she was “terrified” to file a formal complaint against Student One. (Id. ¶ 111.) Shank’s
SMS advisor suggested that Carleton file a complaint against Student One on her behalf.
(Id. ¶¶ 113–14.) Shank agreed to this course of action. (Id. ¶ 114). Shank asserts this
decision deprived her of significant procedural rights, including the right to appear or
speak at the hearing, and the right to appeal the decision of the adjudicatory panel. 3 (Id.
¶¶ 128, 131, 133, 141.) The only avenue she was given in pursuing her complaint against
Student One was to write a statement about the rape. (Id. ¶¶ 117–123, 131.)
With respect to her written statement, Shank alleges that she informed Carleton
that the statement was a “draft” and that it omitted many details, including the brutality of
the assault and the level of violence to which she was subjected. (Id. ¶ 118.) Shank
informed Carleton that she needed assistance from her therapist or her SMS advisor to
provide sufficient details of the act. (Id. ¶ 119.) Shank alleges that Carleton reviewed the
draft as written, assured Shank that it was sufficient to secure a suspension or an
expulsion of Student One, and submitted the statement to the panel. (Id. ¶ 121.)
The panel found that Student One violated Carleton’s policy against sexual
assault. (Id. ¶ 137.) As punishment, the panel issued a no-contact order prohibiting
Student One from having any contact with Shank, but did not suspend or expel him. (Id.

3

The adjudicatory panel is “comprised of one faculty member, one staff member, and
one student.” (Id. ¶ 128.)
3

¶¶ 138, 140.) Notwithstanding Shank’s protestations that the panel lacked information
regarding the incident, Shank was prevented from appealing the panel’s decision because
Carleton, as the initiator of the complaint, was the only party that could appeal the
decision. (Id. ¶¶ 141–44.) Ultimately, Carleton did not appeal the panel’s decision. (Id.
¶ 145.)
Furthermore, Carleton refused to provide Shank with written notice of the
outcome of the complaint and likewise did not disclose the sanctions levied against
Student One. (Id. ¶ 152.) Instead, Carleton informed Shank that “if she wanted to find
out about the outcome of the adjudication hearing,” she “would have to meet with
Student One.” (Id. ¶ 153.) Shank met with Student One in 2012. (Id. ¶ 166). Shank
alleges that Carleton knew or should have know that this meeting was improper based on
an April 4, 2011, correspondence from the Office of Civil Rights of the United States
Department of Education, which states in part, “it is improper for a student who
complains of harassment (this includes sexual assaults and rape) to be required to work
out the problem directly with the alleged perpetrator[,]” even if such a meeting is “on a
voluntary basis.” (Id. ¶ 164 (internal quotation marks omitted).) Shank alleges that as a
result of this coerced meeting, she was further traumatized and in fact was so terrified by
Student One during the meeting that she agreed to lift the no-contact order as a means to
placate him. (Id. ¶¶ 169–70.)
Due to subsequent run-ins with Student One, Shank requested that the no-contact
order be reinstated in 2015. (Id. ¶ 176.) Carleton complied. (Id.) Student One
nevertheless violated the no-contact order. (Id. ¶¶ 177–81.) Despite Carleton’s statement
4

that if Student One violated the no-contact order, “he was gone,” Student One suffered no
consequences. See (id. ¶¶ 175–81). In large part due to these violations, Shank requested
that Student One be prohibited from attending Shank’s and Student One’s graduation
ceremony so that Shank “would not have to face him and could attend the ceremony
without fear.” (Id. ¶ 182.) Carleton did not enforce the no-contact order for the
graduation ceremony, and Shank “was too terrified to attend.” (Id. ¶ 183.)
2.

Student Two

Shank was assaulted by Student Two in 2013. (Id. ¶¶ 188–195.) Approximately
two days after being raped by Student Two, Shank met with her SMS advisor (the same
SMS advisor she was assigned after being raped by Student One). (Id. ¶¶ 196.) At the
meeting, she informed her SMS advisor that she wanted to file a formal complaint against
Student Two. (Id. ¶ 196.) Shank alleges that her SMS advisor cautioned against bringing
a formal complaint because Student Two was a senior and would graduate in two months.
(Id. ¶ 198.) Instead, the SMS advisor suggested that Shank take a medical leave or
change majors to a less challenging one to address the emotional stress of the assault. (Id.
¶ 200). At no point did Carleton make an effort to remove Student Two from Watson
Hall, the dormitory that he shared with Shank. (Id. ¶ 208.)
B.

Motion to Dismiss

The Honorable Patrick Schiltz, United States District Judge, granted in part and
denied in part Carleton’s Motion to Dismiss [Doc. No. 13] Shank’s Amended Complaint
[Doc. No. 6]. See (Jan. 8, 2017 Order, “Schiltz Order” [Doc. No. 41.]) Important to the
resolution of the instant motion, Judge Schiltz determined that multiple claims survived
5

under Rule 12(b)(6) of the Federal Rules of Civil Procedure including: (1) Shank’s claim
under Title IX with respect to the inadequacy of Carleton’s response to Shank’s rapes;
and (2) Shank’s claim for IIED with respect to Carleton’s “forced encounter with her
rapist.” See (Schiltz Order at 11–12, 22–23.)
1. Title IX
Under Title IX, recipients of federal funds may be liable “for their deliberate
indifference to known acts of peer sexual harassment.” Davis Next Friend LaShonda D.
v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999). Used in this context, “deliberate
indifference” is not satisfied by a mere showing of negligence. Choate v. Lockhart,
7 F.3d 1370, 1374 (8th Cir. 1993) (citing Wilson v. Seiter, 501 U.S. 294, 305 (1991);
Estelle v. Gamble, 429 U.S. 97, 105 (1976)). Instead, “deliberate indifference requires a
highly culpable state of mind approaching actual intent” to cause the harm alleged. Id.
Under this standard, “funding recipients are 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.” Davis,
526 U.S. at 648.
Applying this standard, Judge Schiltz concluded that Shank’s allegations
that Carleton failed to advise her of her procedural and substantive rights;
wrongfully denied her the ability to participate in the adjudicatory hearing
against Student One; discouraged her from pursuing a formal complaint
against Student Two; took only minimal action against her assailants;
coerced her into a one-on-one meeting with Student One (who then took the
opportunity to pressure her into lifting the only sanction of which she was
aware); and did not even enforce the minimal sanctions that it had
imposed[,]
6

survived rule 12(b)(6) scrutiny. (Schiltz Order at 12) (emphasis added). Notwithstanding
his caveat that these allegations might not survive disposition on summary judgment,
Judge Schiltz concluded that Shank plausibly alleged that Carleton was deliberately
indifferent because he could not determine “as a matter of law that Carleton’s response
was not clearly unreasonable” under the applicable Title IX standard. (Id.)
2. IIED
Under Minnesota law, claims for IIED must establish that “(1) the conduct was
extreme and outrageous; (2) the conduct was intentional or reckless; (3) it caused
emotional distress; and (4) the distress was severe.” K.A.C. v. Benson, 527 N.W.2d 553,
560 (Minn. 1995). Furthermore, the allegations must demonstrate the defendant
“intend[ed] to cause severe emotional distress or proceed[ed] with the knowledge that it
is substantially certain, or at least highly probable, that severe emotional distress will
occur.” Id. This requires that the conduct must be “so atrocious that it passes the
boundaries of decency and is utterly intolerable to the civilized community.” Hubbard v.
United Press Int’l., Inc., 330 N.W.2d 428, 439 (Minn. 1983) (internal quotation marks
omitted).
Judge Schiltz noted that claims for IIED are “sharply limited to cases involving
particularly egregious facts.” (Schiltz Order at 21 (internal quotation marks omitted).) He
nevertheless concluded that the Amended Complaint was sufficient to state a claim for
IIED because it “plausibly alleged that Carleton coerced [Shank] into a one-on-one
meeting with her assailant, knowing that such a meeting was likely to cause her severe
emotional distress.” (Schiltz Order at 22.)
7

C.

Motion to Amend

Shank filed the instant motion and supporting memorandum on August 28, 2018.
[Doc. Nos. 64, 66]. Carleton urges this Court to deny Shank’s motion because: (1) it is
untimely; (2) punitive damages are unavailable for Shank’s federal law claims; and
(3) Shank has not met the stringent punitive damages standard imposed by Minnesota
Statutes § 549.191. See generally (Def. Carleton College’s Mem. of Law in Opp’n to
Pl.’s Mot. to Amend to Add a Claim for Punitive Damages, “Mem. in Opp’n” [Doc. No.
132].) As it relates to timeliness, Carleton asserts that the pretrial Scheduling Order
[Doc. No. 52] required all motions to amend the pleadings must be filed on or before
August 1, 2017, and that the parties agreed to amend the Scheduling Order, but no
modification was made to this deadline. See (id. at 2–3.); see also (Order on Am.
Scheduling Order [Doc. No. 61.])
II.

Discussion
A.

Standard of Review

Some recent decisions in this District have departed from past practice and are
applying Federal Rules of Civil Procedure 15 instead of Minnesota Statutes § 549.191
when considering motions to add punitive damage claims. See Rogers v. Mentor Corp.,
13-cv-1927 (ADM/LIB), 2018 WL 2215519, at * (D. Minn. May 15, 2018) (Rau, Mag.
J.) (concluding that Rule 15 of the Federal Rules of Civil Procedure and not Minnesota
Statutes § 549.191 controls), aff’d sub nom. Urbieta v. Mentor Corp., 2018 WL 3475484
(July 19, 2018) (Montgomery, J.); In re Bair Hugger Forced Air Warming Devices
Prods. Liab. Litig., MDL No. 15-2666 (JNE/FLN), 2017 WL 5187832 (D. Minn. July 27,
8

2017) (Noel, Mag. J.); see also Selective Ins. Co. of S.C. v. Sela, No. 16-cv-4077
(PJS/SER), 2018 WL 1960450 at *6 (D. Minn. Apr. 28, 2018) (Rau. Mag., J.)
(concluding that Rule 15 controls and not Minnesota Statutes § 604.18—a sister statute to
§ 549.191). But see Order Dated Mar. 8, 2018, Inline Packaging, LLC v. Graphic
Packaging Int’l, LLC, No. 15-cv-3183 (ADM/LIB) (D. Minn.) [Doc. No. 534] (Brisbois,
Mag. J.) (finding the court must apply Minn. Stat. § 549.191).
Under Rule 15, a court should “freely give leave” to amend a pleading when
justice so requires. Fed. R. Civ. P. 15(a). Minnesota Statutes § 549.191, on the other
hand, requires a “one or more affidavits” establishing “prima facie evidence” to support
the motion to amend. Naturally, Carleton urges this Court to follow the reasoning of
Judge Brisbois and review Shank’s claims under the heightened standard. See (Mem in
Opp’n at 7–8.) Shank urges the application of the Rule 15 standard. See (Pl.’s Mem. in
Supp. of Mot. Amend to Add a Claim for Punitive Damages (“Mem. in Supp.”) at 6-7
[Doc. No. 66].)
Having carefully reviewed the issue and the recent cases, the Court concludes that
the proper standard to apply is Rule 15 of the Federal Rules of Civil Procedure and not
Minnesota Statutes § 549.191. Specifically, the gatekeeping function that is required
under § 549.191 obligates the court to consider evidence in determining the propriety of
the motion to amend. But considering evidence “presents a stark contrast to the usual
analysis where a federal court need only consider whether the pleading ‘contain[s]
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Selective, 2018 WL 1960450, at *7 (alteration in original) (quoting Iqbal, 556
9

U.S. at 678). Because Rule 15 “answers the question in dispute,” it controls under the
circumstances. Cf. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S.
393, 398 (2010).
That is not to say that Minnesota law has no bearing; procedurally, the Court is
required to view the PSAC through the permissive Rule 15 lens, but must nevertheless
determine whether it states a plausible claim for punitive damages in light of substantive
Minnesota law. See, e.g., Prudential Ins. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.
2007) (stating that generally “[a] district court sitting in diversity applies the law . . . of
the state in which it sits” (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496,
61 S.Ct. 1020, 85 L.Ed. 1477 (1941))); see also Rogers, 2018 WL 2215519, at *8. In this
case, that substantive Minnesota law is § 549.20. Rogers, 2018 WL 2215519, at *8.
While Rule 15 is a permissive standard, leave to amend should not be given when
there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of amendment[.]”
Foman v. Davis, 371 U.S. 178, 182 (1962). “Denial of a motion for leave to amend on the
basis of futility means the district court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (internal quotation
marks omitted).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face. A claim has facial plausibility when the plaintiff pleads factual
10

content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009) (internal quotation marks and citations
omitted).
B.

Analysis

Of the relevant considerations that might preclude granting Shank’s motion, the
only issues addressed to any extent in Carleton’s response are timeliness and futility. Cf.
Foman, 371 U.S. at 182. The Court addresses each in turn.
1.

Timeliness

As noted, the operative Scheduling Order contemplated that all motions to amend
be filed on or before August 1, 2017. See (Order on Am. Scheduling Order). The instant
motion was filed more than a year later, on August 28, 2018. Shank argued at the hearing
before the undersigned that the deadline in the scheduling order did not apply to a motion
to amend to add a claim for punitive damages for two reasons. First, she argued that
although the pretrial scheduling order had only one deadline for motions to amend the
pleadings, the minute entry that memorialized the pretrial conference had a separate line
for motions to amend the complaint to add claims for punitive damages, and it was left
blank. See (Mar. 10, 2017 Minute Entry [Doc. No. 45].) Thus, she contends, either there
was no deadline in the scheduling order at all for such motions, or the applicable deadline
was the October 15, 2018, “catch-all” deadline for all other nondispositive motions. See
(Order on Am. Scheduling Order at 2).
Second, Shank argues the August 1, 2017, deadline for motions to amend the
pleadings could not possibly have allowed for adequate discovery to determine whether
11

there was a basis for such a motion, particularly if (as was the prevailing view at the time)
she had to comply with the Minnesota Statutes § 549.191 requirement that evidence be
submitted to support the claim. Shank notes that fact discovery was not completed until
well into 2018, with depositions of key Carleton witnesses being conducted in May, and
that it took additional time thereafter to identify sufficient facts to support her prime facie
showing under § 549.191, particularly as to whether Carleton acted with the requisite
degree of intentionality to demonstrate deliberate indifference.
The Court is not persuaded by Shank’s argument that Judge Noel’s scheduling
order contemplated that the October 15, 2018, deadline for nondispositive motions, rather
than the August 1, 2017, deadline for motions to amend the pleadings, applied to motions
to amend the pleadings to add claims for punitive damages. First, it is much more
consistent with the language of the scheduling order that the deadline for motions to
amend includes all motions to amend in the absence of an explicit exception made for a
subset of such motions. Second, the deadline for dispositive motions to have been filed,
fully briefed, and heard was set for December 15, 2018, just eight weeks after the
deadline for nondispositive motions, scarcely allowing adequate time for a motion to add
punitive damages to be briefed, argued, and decided and then—if granted—incorporated
into the motion for summary judgment that was certain to be made. 4 As a result, the

4

Indeed, the inadequacy of that time interval was borne out by the fact that the
dispositive motion hearing scheduled before Judge Schiltz had to be cancelled and the
dispositive motion deadline stayed in view of the pendency of this motion. See (Sept. 14,
2018 Order [Doc. No. 215.])
12

Court concludes that the operative deadline for this motion was August 1, 2017, and
therefore Shank’s motion was not timely.
That said, “[i]f a party files for leave to amend outside of the court’s scheduling
order, the party must show [good] cause to modify the schedule.” Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008) (citing Fed. R. Civ. P. 16(b)). “The primary
measure of good cause is the movant’s diligence in attempting to meet the order’s
requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006). The first question,
then, is whether Shank was diligent under the circumstances. Arguably, under a Rule 15
approach, Shank could have brought the instant motion much earlier in the pretrial
progression; many of the factual allegations on which she now relies appear in her
Amended Complaint [Doc. No. 6], filed in 2016. But despite the Court’s conclusion
herein that Rule 15 controls the resolution of the motion, it cannot fault Shank for
believing in good faith that she needed to gather more evidence, some of which she did
not have until May 2018, to comply with Minnesota Statutes § 549.191, which until
recently was the prevailing approach in this District. See, e.g., Leiendecker v. Asian
Women United of Mn., 895 N.W.2d 623, 637 (Minn. 2017) (“The district court may not
allow an amendment where the motion and supporting affidavits do not reasonably allow
a conclusion that clear and convincing evidence will establish the defendant acted with
willful indifference.”) (internal quotation marks omitted) (emphasis added). Given the
evidentiary burden she thought she faced, the timeframe in which she obtained some of
the information, and what the Court concludes was a good faith, albeit mistaken,
interpretation of the scheduling order, the Court finds nothing to suggest that Shank was
13

dilatory or otherwise evinced a lack of diligence in bringing her instant motion. As a
result, the Court concludes that good cause exists to excuse Shank’s untimely filing.
The analysis does not end there, of course, as the Court must also address whether
the delay will cause prejudice to the opposing party. Foman, 371 U.S. at 182; see also
Bediako v. Stein Mart, Inc., 354 F.3d 835, 841 (8th Cir. 2004) (“Delay alone is not
enough to deny a motion to amend; prejudice to the nonmovant must also be shown.”).
Carleton contends that it will be prejudiced because fact discovery has already closed and
it might have conducted additional discovery if a claim for punitive damages had been
timely asserted. While Carleton did not elaborate on precisely what additional discovery
it requires, the Court would be receptive to reopening discovery and further deferring the
dispositive motion deadline for a brief time if Carleton can make a more specific showing
on this subject. In any event, the Court is not persuaded that Carleton has been
significantly prejudiced, if at all, by the belated motion. Thus, the Court will not deny
Shank’s motion on grounds of timeliness.
2.

Futility

While the process established by Minnesota Statutes § 549.191 specifically
contemplates consideration of evidence proffered outside the pleadings, the Federal Rules
of Civil Procedure do not. On the contrary, the Court cannot consider matters outside the
pleadings when determining whether a complaint adequately states a claim upon which
relief may be granted; therefore, it must base its determination of this motion on a fourcorners analysis of the PSAC. See Arias v. Am. Family Mut. Ins., No. 13-cv-1681
(PJS/JJG), 2013 WL 12145854, at *2 (D. Minn. Oct. 28, 2013) (Graham, Mag. J.)
14

(stating “[n]o matters outside the pleading may be considered” when conducting a futility
analysis under Rules 12(b)(6) and 15).
At the hearing before the undersigned, Shank confirmed that she was seeking to
amend her complaint to pursue punitive damages for her state law claims only, i.e., her
claims for negligence and for IIED. See (Schiltz Order at 14–17, 21–22.)
Under Minnesota law, punitive damages may be awarded “only upon clear and
convincing evidence that the acts of the defendant show deliberate disregard for the rights
or safety of others.” Minn. Stat. § 549.20 subdiv 1(a). The statute goes on to explain that
A defendant has acted with deliberate disregard for the rights or
safety of others if the defendant has knowledge of facts or intentionally
disregards facts that create a high probability of injury to the rights or
safety of others and:
(1) deliberately proceed to act in conscious or intentional
disregard of the high degree of probability of injury to the rights or
safety of others; or
(2) deliberately proceed to act with indifference to the high
probability of injury to the rights or safety of others.
Minn. Stat. § 549.20 subdiv 1 (b). Thus, a “‘mere showing of negligence is not
sufficient’ to sustain a claim of punitive damages” under Minnesota law. Berczyk v.
Emerson Tool Co., 291 F. Supp. 2d 1004, 1008 (D. Minn. 2003) (quoting Admiral
Merchants Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 268 (Minn.
1992)); see also Ulrich v. City of Crosby, 848 F. Supp. 861, 868 (D. Minn. 1994)
(Erickson, Mag. J.) (stating “the mere existence of negligence or of gross negligence does
not rise to the level of willful indifference so as to warrant a claim for punitive damage”).
Here, the Court is not working with a tabula rasa in evaluating whether the
15

conduct alleged meets this bar. First, Judge Schiltz has already determined that the
operative complaint was sufficient to state a claim under Title IX, which requires that for
liability to attach, there must be not just mere negligence but deliberate indifference. See
Davis, 526 U.S. at 633; Choate, 7 F.3d at 1374. Likewise, for Shank to prevail on her
IIED claim, she must plead facts sufficient to show “intentional or reckless” conduct that
is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the
civilized community.” See K.A.C., 527 N.W.2d at 560; Hubbard, 330 N.W.2d at 439. In
analyzing those claims under Rule 12(b)(6), Judge Schiltz concluded that the allegation
that Shank was coerced into a one-on-one meeting with Student One plausibly stated a
claim for relief both under Title IX and under Minnesota law for IIED. (Schiltz Order at
12, 21–23.) Moreover, while Shank does not pursue punitive damages for her Title IX
claim, some of the conduct that Judge Schiltz found adequate to sustain that claim also
underlies her IIED claim—specifically the manner in which Carlton responded to the
assaults on Shank. See, e.g., (Schiltz Order at 12 and 21-22.) Thus, Judge Schiltz’s
analysis of Shank’s Title IX claims is illuminating because the deliberate indifference
standard under Title IX closely approximates the punitive damages standard under
Minnesota law. Compare Davis, 526 U.S. at 633 (requiring a showing of deliberate
indifference to the acts of harassment), with Minn. Stat. § 549.20; see also (Schiltz Order
at 9–12 (applying the Title IX standard).) That is, if Shank’s allegations plausibly claim
deliberate indifference by Carleton with respect to how it handled Shank’s assaults under
Title IX, they are likely also sufficient to support a plausible punitive damages claim
under Shank’s IIED allegations concerning the same handling of Shank’s assaults.
16

Shank alleges in her PSAC that Carleton coerced her into a meeting with Student
One in October of 2012 despite guidance in April of 2011 from the Office of Civil Rights
of the United States Department of Education that stated in part, “it is improper for a
student who complains of harassment (this includes sexual assaults and rape) to be
required to work out the problem directly with the alleged perpetrator[,]” even if such a
meeting is “on a voluntary basis.” (PSAC ¶¶ 164, 166 (internal quotation marks
omitted).) Furthermore, Shank alleges that the meeting had both disastrous and
predictable results, causing her harm. See (id. ¶¶ 167–71.)
Judge Schiltz concluded that these allegations—which for purposes of this motion,
just as the motion before Judge Schiltz, must be assumed true—stated a plausible claim
“that Carleton coerced her into a one-on-one meeting with her assailant, knowing that
such a meeting was likely to cause her severe emotional distress” because the encounter
left her traumatized and stripped her of her only means to protect herself on campus. See
(Schiltz Order at 22–23); see also (Schiltz Order at 12 (concluding that coercing Shank
into the one-on-one meeting with Student One plausibly alleged deliberate indifference
under Title IX).) That is, Shank has alleged “facts that create[d] a high probability of
injury” to her rights or safety and that Carleton “deliberately proceed[ed] to act with
indifference to the high probability of injury to” her rights or safety. See Minn. Stat.
§ 549.20.
In sum, because the Court must assume that Shank’s factual allegations are true
and must draw all reasonable inferences in her favor, and given the conclusions already
drawn by Judge Schiltz with regard to the adequacy of the existing Title IX and IIED
17

claims, the Court is satisfied that Shank’s PSAC alleges a plausible claim “that the acts of
the defendant show[ed] deliberate disregard for the rights or safety of others.” Minn. Stat.
§ 549.20. See (Schiltz Order at 9–12, 20–23); see also M.H. v. Caritas Fam. Servs., 488
N.W.2d 282, 289–90 (Minn. 1992) (suggesting that the same “allegations of outrageous
and willful misconduct” may support both claims for IIED and punitive damages).
That is not to say, however, that Shank will ultimately be entitled to relief on the
merits. As stated elsewhere, the Court may not conduct an evidentiary analysis of
Shank’s allegations in analyzing the propriety of her Motion to Amend. See Arias, 2013
WL 12145854, at *2. Moreover, it is not at all clear that the evidence, when adduced,
would be sufficient to meet the demanding “clear and convincing” standard established
by § 549.20. But those are issues properly addressed in the context of the upcoming
motions for summary judgment and not on this motion. 5
III.

Conclusion
Because Shank demonstrated good cause for failing to timely file her motion,

because any prejudice to Carleton can be addressed, if necessary, through limited
additional discovery, and because Shank plausibly alleges Carleton deliberately
disregarded her rights or safety under Minnesota Statutes § 549.20, Shank’s motion is
granted.

5

Even if the Court were inclined to agree with Carleton that the instant motion could be
dispensed with under the standard provided by Rule 56, see (Mem. in Opp’n at 31–32), in
view of the stage of the case and the imminence of dispositive motion practice,
considerations of efficiency both for the Court and the parties also militate against
deciding the fate of a single claim in this limited setting.
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Accordingly, IT IS HEREBY ORDERED that
1) Plaintiff Elizabeth M. Shank’s Motion to Amend to Add a Claim for Punitive
Damages [Doc. No. 64] is GRANTED.
2) Shank must file her PSAC on or before seven (7) days from the date of this Order.
3) Carleton must promptly meet and confer with Shank concerning what, if any, limited
additional discovery Carleton believes it now requires in view of the claim for
punitive damages, how much time is needed to complete that discovery, and a new
deadline by which dispositive motions must be filed. The parties must e-file a joint
letter with the results of that meet-and-confer on or before fourteen (14) days from the
date of this Order. If the parties do not reach agreement, their respective positions on
any matters in dispute should be set forth in the letter. The Court will thereafter enter
an amended scheduling order.

Dated: October 15, 2018

s/ Hildy Bowbeer
HILDY BOWBEER
United States Magistrate Judge

19