Stenzel v. Bemidji State University et al

Filing 26

MEMORANDUM OPINION AND ORDER granting 5 Defendants' Motion to Dismiss(Written Opinion) Signed by Chief Judge John R. Tunheim on 09/13/2017. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-580 (JRT/LIB)

TYLER MICHAEL STENZEL,
Plaintiff,
v.

MEMORANDUM
OPINION AND ORDER
GRANTING DEFENDANTS’
MOTION TO DISMISS

DEBRA PETERSON, in her individual
and official capacity, TROY
GILBERTSON, in his individual and
official capacity, BEMIDJI STATE
UNIVERSITY,
Defendants.

Melvin R. Welch, WELCH LAW FIRM, 332 Minnesota Street, Suite W1610, Saint Paul, MN 55101, for plaintiff.
Kathryn M. Woodruff, MINNESOTA ATTORNEY GENERAL’S
OFFICE, 1800 Bremer Building, 445 Minnesota Street, Saint Paul, MN
55101, for defendants.
This case arises from alleged sexual violence that occurred on Defendant Bemidji
State University’s (“BSU”) campus in August 2014. Plaintiff Tyler Stenzel filed this
case against BSU and school officials Debra Peterson and Troy Gilbertson (collectively
“individual Defendants”) regarding the school’s disciplinary actions against Stenzel.
Stenzel alleges two claims: violation of Title IX (Count I); and Breach of the Covenant
of Good Faith and Fair Dealing (Count II). Defendants filed a motion to dismiss the
Complaint pursuant to Fed. R. Civ. P. 12(b)(6). The Court will grant Defendants’ motion
to dismiss because as to the Title IX claim, there is insufficient evidence to demonstrate
that BSU’s actions were motivated by gender. As to the claim alleging a Breach of the

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Covenant of Good Faith and Fair Dealing, the Court finds that BSU is protected by
immunity from state-law claims under the Eleventh Amendment.

BACKGROUND
I.

BSU SEXUAL VIOLENCE POLICY
BSU follows the Minnesota Colleges and Universities (“MnSCU”) Board of

Trustees’ Sexual Violence Policy when responding to allegations of “sexual violence.”
BSU’s Policy is consistent with MnSCU’s Policy. (Aff. of Troy Gilberston (“Gilbertson
Aff.”) Exs. 1-2, Mar. 15, 2017, Docket No. 9.) Both the BSU Policy and MnSCU Policy
(collectively, “the Policy”) define “sexual violence” as “a continuum of conduct that
includes sexual assault, non-forcible sex acts, dating and relationship violence, stalking,
as well as aiding acts of sexual violence.” (Id., Ex. 1 at 1 & Ex. 2 at 1.) The Policy
defines “sexual assault” to include “an actual, attempted, or threatened sexual act with
another person without that person’s consent.” (Id., Ex. 1 at 1 & Ex. 2 at 2.) The
definition includes “[i]ntentional and unwelcome touching, or coercing, forcing, or
attempting to coerce or force another to touch a person’s intimate parts (defined as
primary genital area, groin, inner thigh, buttocks, or breast).” (Id., Ex. 1 at 2 & Ex. 2 at
2.)
The Policy dictates BSU’s response to sexual violence. (Id., Ex. 3 at 1.) The
Policy protects the rights and privacy of “the complainant and respondent,” when an
allegation of sexual violence is reported.

Under the Policy, students are “strongly

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encouraged” to report sexual abuse and BSU employees are “urged to encourage and
assist complainants.” (Id. at 1-2.)
Once a complainant reports sexual violence to BSU, an officer designated by
BSU’s President conducts an investigation (“designated officer”). (Id., Ex. 4 at 2, 4.)
The designated officer is charged with ensuring that the complaint is made in writing, and
providing the respondent with information about the “existence and general nature of the
complaint.” (Id. at 5.) The designated officer must conduct an impartial investigation
and manage all data in accordance with the applicable privacy laws. (Id.) Following the
investigation, if the dispute remains unresolved, the “decision process” is followed. (Id.
at 7.) In the decision process, the designated officer prepares an investigatory report and
forwards it to the decisionmaker (a high-level administrator designated by BSU’s
President), who may ask for further investigation before making a decision. (Id.) The
decisionmaker meets with the “complainant, respondent, or other involved individuals”
and takes into account “the totality of the circumstances” to determine an appropriate
corrective action. (Id.)
If the corrective action includes a suspension of ten or more days, the student may
contest the corrective action under Minn. Stat. § 14.

(Id. at 8.)

A Minnesota

Administrative Law Judge (“ALJ”) hears the appeal, makes findings of facts and law, and
forwards those findings to BSU’s President to make a final decision. (Id.)

II.

THE INCIDENT

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On August 23, 2014, Stenzel, a first-year BSU student, attended an on-campus
event with a group of friends, including complainant Brittany Demers. (Compl. ¶ 17,
Feb. 24, 2017, Docket No. 1.) The two “were friendly and spent time with one another
outside of class.” (Id. ¶ 19.) The group returned to Stenzel’s dorm room around 10:30
p.m., and, shortly thereafter, Stenzel and Demers allegedly went to Demers’s dorm room
together. (Id. ¶¶ 23-24.) While in the dorm room, Stenzel alleges that Demers undressed
and initiated sexual contact, which Stenzel claims he stopped before the two went to bed.
(Id. ¶¶ 28-29, 31-32.) In contrast, Demers previously described that Stenzel accessed
Demers’s dorm room without Demers’s knowledge and had sexually penetrated Demers
without consent. (Id. ¶¶ 58(a), 58(c).) That night, Stenzel slept in Demers’s dorm room.
(Id. ¶ 34.)
The following day, Demers implied that she was uncomfortable with what
happened the previous evening. (See id. ¶ 35.) Demers’s discomfort caused her to send
several text messages about the incident, to both her roommate and Stenzel. (Id. ¶¶ 3537.) In one text message, Demers’s roommate asked how Stenzel raped Demers, and
Demers responded “‘I’m pretty sure he went inside of me when I was sleeping’ . . . ‘like
98% sure.’” (Id. ¶ 40.)
Stenzel alleges that, on August 25, 2016, he spoke with a BSU employee and
discussed “nonconsensual sexual contact the previous night.” (Id. ¶¶ 46, 178.) Stenzel
asserts that BSU did “no follow-up and began no investigation” into Demers. (Id. ¶¶ 47,
178.) On the same day, Demers underwent a physical examination. (Id. ¶ 44.)

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On or around August 27, 2016, Demers reported to law enforcement that Stenzel
raped her. (Id. ¶¶ 48-49.) Around the same time, Demers requested and obtained a
harassment restraining order from a Minnesota district court and swore in an affidavit
that Stenzel gained access into her dorm room using keys that Demers’s roommate
provided him. (Id. ¶¶ 41, 52.) Law enforcement investigated the incident, but charges
were never filed. (Id. ¶ 51.)
In tandem with the criminal investigation, BSU conducted an internal
investigation under the Policy after Demers made a report of sexual violence against
Stenzel. In compliance with the Policy, Peterson conducted an investigation, including
interviews of Stenzel, Demers, and other witnesses, and the collection of lawenforcement documentation. (Gilbertson Aff. ¶ 6.) Peterson completed an investigative
report and sent it to Gilbertson along with supporting evidence. (Id.) On or about
September 22, 2016, Stenzel asked to review the allegations against him, but BSU denied
him a copy over “‘privacy’ concerns.” (Compl. ¶ 61.) 1 Stenzel obtained a copy of the
law-enforcement record and other evidence prior to a contested hearing. (Id. ¶¶ 55, 63.)
Stenzel offered Peterson the information, but she did not accept it. (Id. ¶¶ 56, 63.) A
contested hearing occurred on October 31 and November 4, 2016.

(Id. ¶ 53.)

On

November 15, 2016, Gilbertson determined that it was more likely than not that Stenzel

1

On January 30, 2017, “[u]pon execution of a protective order necessary to protect
private educational data,” BSU provided Stenzel a complete copy of BSU’s investigative report.
(Aff. of Kathryn Woodruff ¶ 2, May 15, 2017, Docket No. 8.)

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“violated BSU’s sexual violence policy” and imposed a one-year suspension on Stenzel.
(Gilbertson Aff. ¶ 7 & Ex. 3 at 5; Compl. ¶ 11.)
Stenzel disagreed with Gilbertson’s determination and timely appealed, having his
case heard by an ALJ as permitted by the Policy. (Sealed Letter, Attach. 2 at 16, July 25,
2017, Docket No. 24.) Stenzel alleged to this Court that Peterson and Gilbertson made a
number of errors during the investigation, including reliance on Demers’s inconsistent
statements to support Gilbertson’s finding. (See Compl. ¶¶ 58-59.)
At oral argument, the Court inquired into the status of the ALJ appeal. The parties
admitted – and BSU filed sealed documents reflecting – that the ALJ held an evidentiary
hearing on April 21, 2017, the ALJ recommended BSU’s President rescind Stenzel’s oneyear suspension, and, on July 14, 2017, BSU’s President formally rescinded Stenzel’s
suspension. (Sealed Letter, Attach. 1 at 4, Attach. 2 at 7.)

III.

PROCEDURAL HISTORY
Stenzel filed the Complaint on February 24, 2017, alleging two causes of action:

(1) violation of Title IX; and (2) Breach of the Covenant of Good Faith and Fair Dealing.
Defendants responded with a motion to dismiss all claims, asserting that Stenzel failed to
state a claim upon which relief can be granted.

DISCUSSION
I.

STANDARD OF REVIEW
In reviewing a motion to dismiss brought under Rule 12(b)(6), the Court considers

all facts alleged in the complaint as true to determine if the complaint states a claim for
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“relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a
motion to dismiss, a complaint must provide more than “‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action.’” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the Court
accepts the complaint’s factual allegations as true, it is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops
short of the line between possibility and plausibility,’” and therefore must be dismissed.
Id. (quoting Twombly, 550 U.S. at 557).

II.

TITLE IX (COUNT I) 2
Title IX states “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
2

In Count I, Stenzel alleges individual Defendants violated Title IX in their individual
capacities. But claims under Title IX against individuals are improper because Title IX
explicitly applies to recipients of federal funding. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d
607, 611 (8th Cir. 1999) (citing Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 (5th Cir.
1996)) (“[T]he fact that Title IX was enacted pursuant to Congress’s spending power is evidence
that it prohibits discriminatory acts only by grant recipients.”). For that reason the Court will
grant Defendant’s motion to dismiss the Title IX claim against individual Defendants in their
individual capacities.
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assistance.” 20 U.S.C. § 1681(a). “As a general rule, Title IX is not an invitation for
courts to second-guess disciplinary decisions of colleges or universities.” Doe v. Univ. of
St. Thomas, __ F. Supp. 3d __, 2017 WL 811905, at *4 (D. Minn. Mar. 1, 2017) (citing
Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648-49 (1999)).
“And Title IX should be construed to give ‘[s]chool administrators . . . the flexibility they
require’ to initiate a reasonable disciplinary response.” Id. (quoting Davis, 526 U.S. at
648-49).
Title IX claims arising from disciplinary hearings can arguably be “analyzed under
the ‘erroneous outcome’ standard, ‘selective enforcement’ standard, ‘deliberate
indifference’ standard, and ‘archaic assumptions’ standard.” Doe v. Univ. of the S., 687
F. Supp. 2d 744, 756 (E.D. Tenn. 2009). Here, Stenzel does not articulate the standard
under which he alleges a plausible Title IX claim. The Court finds, however, that
Stenzel’s allegations can fairly be read to allege a Title IX claim under the selective
enforcement standard. 3

3

Prior to the BSU’s President’s decision, the Court could have construed the Complaint
as asserting a Title IX claim based on erroneous outcome. But with Stenzel’s admission that
BSU’s disciplinary proceeding ended in a finding that Stenzel did not violate the Policy, (see
Sealed Letter, Attach. 1 at 4), the facts no longer support a Title IX claim based on erroneous
outcome. See Doe v. Ohio State Univ., __ F. Supp. 3d __, No. 16-171, 2017 WL 951464, at *14
(S.D. Ohio Mar. 10, 2017) (“An erroneous outcome claim exists when an ‘innocent’ person was
wrongly found to have committed an offense because of his or her gender.” (citing Sahm v.
Miami Univ., 110 F. Supp. 3d 774, 777-78 (S.D. Ohio 2015)).
The Court also could have construed the Complaint as alleging a Title IX claim based on
deliberate indifference. “But it is an open question whether the Title IX deliberate indifference
standard applies to claims related to alleged gender discrimination in a university’s disciplinary
proceedings.” Univ. of St. Thomas, 2017 WL 811905, at *4 n.2 (collecting cases). Because
Stenzel did not specifically allege a deliberate indifference claim, the Court will not raise the
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To allege a selective enforcement claim, Stenzel must plausibly allege
circumstances suggesting gender bias motivated BSU’s disciplinary proceeding. See
Yusuf v. Vassar Coll., 35 F.3d 709, 715-16 (2d Cir. 1994) (holding that, under the
selective enforcement standard, “Title IX bars the imposition of university discipline
[only] where gender is a motivating factor in the decision to discipline”). Stenzel must
also show “that a female was in circumstances sufficiently similar to [plaintiff’s] and was
treated more favorably by the University.” Doe v. Case W. Reserve Univ., No. 14-2044,
2015 WL 5522001, at *6 (N.D. Ohio Sept. 16, 2015) (alteration in original) (quoting
Mallory v. Ohio Univ., 76 F. App’x 634, 641 (6th Cir. 2003)). Stated differently, “a
plaintiff demonstrates selective enforcement through the identification of a comparator of
the opposite sex who was treated more favorably by the educational institution when
facing similar disciplinary charges.” Id.
Recently, in Doe v. Amhurst College, the District of Massachusetts found
sufficient allegations to survive a motion to dismiss where Doe alleged that the college:
took proactive steps to encourage [the female complainant] to file a formal
complaint against Doe when it learned he may have . . . subjected her to
nonconsensual sexual activity. But, when the College learned [the female
complainant] may have initiated sexual activity with Doe while he was . . .
incapable of consenting, the College did not encourage him to file a
complaint, consider the information, or otherwise investigate.
__ F. Supp. 3d __, No. 15-30097, 2017 WL 776410, at *18 (D. Mass. Feb. 28, 2017).

issue here. See id. (electing not to decide whether deliberate indifference claims in this
circumstance are appropriate).

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Similarly, Stenzel alleges that he spoke with a BSU employee on August 25, 2016,
regarding “nonconsensual sexual contact the previous night.”

(Compl. ¶¶ 46, 178.)

Stenzel asserts that BSU “did no follow-up and began no investigation” into Demers. (Id.
¶¶ 47, 178.) Then, around August 27, 2016, “Demers accused Stenzel of sexual assault
to . . . BSU.”

(Id. ¶¶ 48-49.)

And, because of the accusation, “BSU began an

investigation into sexual assault.” (Id. ¶ 50.) Stenzel states that BSU’s “failure to initiate
a sexual misconduct investigation of Demers when they learned of Stenzel’s claims that
Demers engaged in non-consensual sexual activities with Stenzel can only be explained
by discriminatory gender bias against males in cases involving allegations of sexual
assault in violation of Title IX.” (Id. ¶ 179.)
But even with these allegations, Stenzel is required to allege specific facts
showing “gender [was the] motivating factor in the decision to discipline.” Yusuf, 35
F.3d at 715; see also Doe v. Univ. of Colo., Boulder, __ F. Supp. 3d __, 16-1789, 2017
WL 2311209, at *7 (D. Colo. May 26, 2017) (requiring plaintiff to “show that gender
bias was the source of the deprivation” for a selective enforcement claim (quoting
Johnson v. W. State Colo. Univ., 71 F. Supp. 3d 1217, 1224 (D. Colo. 2014))). Stenzel
points to a number of allegations in the Complaint to support his assertion that he alleged
sufficient, specific facts regarding gender bias to survive a motion to dismiss. Stenzel’s
allegations can be summed up into four categories: allegations that BSU (1) showed
Demers preferential treatment (Compl. ¶ 191); (2) improperly refused to consider

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Stenzel’s evidence (id. ¶ 63); (3) completed an “unfair” process (id. ¶¶ 183-90, 230); and
(4) failed to initiate a sexual-misconduct investigation against Demers (id. ¶ 179). 4
Stenzel’s allegations are insufficient to support a plausible claim for relief. First,
contrary to Stenzel’s broadly worded complaint, mere allegations that a disciplinary
process was unfair or failed to take into account certain information do not create an
inference of gender bias sufficient for Title IX. Yusef, 35 F.3d at 715 (“[A]llegations of a
procedurally or otherwise flawed proceeding that has led to an adverse and erroneous
outcome combined with a conclusory allegation of gender discrimination is not sufficient
to survive a motion to dismiss.”); Doe v. W. New England Univ., 228 F. Supp. 3d 154 (D.
Mass. 2017) (“[I]t is not the business of lawyers and judges to tell universities what
statements they may consider and what statements they must reject.” (quoting Schaer v.
Brandeis Univ., 735 N.E.2d 373, 380 (Mass. 2000)); Univ. of the S., 687 F. Supp. 2d at
755 (“[T]he law does not allow this Court to retry the University’s disciplinary
proceeding.” (quoting Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d 6, 14 (D. Me. 2005)).
Second, numerous courts have held that even if a university “treated [a] female
student more favorably than the Plaintiff, during the disciplinary process, ‘the mere fact
that Plaintiff is male and [the alleged victim] is female does not suggest that the disparate
treatment was because of Plaintiff’s sex.’” Salau v. Denton, 139 F. Supp. 3d 989, 999
4

Beyond these limited allegations, Stenzel makes no other arguments to show he was
discriminated against because of his sex. In fact, all of the cases Stenzel cites regarding an
inference of discrimination involve Title VII. Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998); Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000). “Title
VII, however, is a vastly different statute . . . . Title IX is a broadly written general provision on
discrimination . . . . By contrast, Title VII spells out in greater detail the conduct that constitutes
prohibited discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 177 (2005).

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(W.D. Mo. 2015) (second alteration in original) (quoting Doe v. Columbia Univ., 101 F.
Supp. 3d 356, 371 (S.D.N.Y. 2015)); see also Doe v. Regents of the Univ. of Cal., No. 152478, 2016 WL 5515711, at *4 (C.D. Cal. July 25, 2016); Case W. Reserve Univ., 2015
WL 5522001, at *5-6; Doe v. Univ. of Mass.-Amherst, No. 14-30143, 2015 WL 4306521,
at *8 (D. Mass. July 14, 2015). And “demonstrating that a university official is biased in
favor of the alleged victims of sexual assault claims, and against the alleged perpetrators,
is not the equivalent of demonstrating bias against male students.” Sahm v. Miami Univ.,
110 F. Supp. 3d 774, 778 (S.D. Ohio 2015). Thus, Stenzel’s allegations that BSU
showed Demers preferential treatment are insufficient to plead a plausible claim that
BSU’s actions were motivated by Stenzel’s gender.
Finally, with regard to Stenzel’s allegation that BSU failed to investigate sexual
misconduct against Demers, Stenzel admits in the Complaint that he did not formally
report sexual violence to initiate an investigation. (See Compl. ¶ 46; see also Gilbertson
Aff. ¶ 9 & Ex. 3 at 1-2.) The sum of Stenzel’s allegation is that he “spoke with a
. . . BSU employee regarding the nonconsensual sexual contact.” (Id. ¶ 46 (emphasis
added).) And the Policy did not require BSU employees to report allegations made by
the students. (See Gilbertson Aff., Ex. 3 at 2 (“[E]mployees are urged to encourage and
assist complainants.” (emphasis added)).) Further, Stenzel makes no allegation that he
was not encouraged to file a report or was dissuaded from filing a report. And the
Complaint is silent on the circumstances surrounding Demers’s formal report. Thus,
there are not specific facts to indicate Stenzel was treated differently during the process
because of his gender.
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Stenzel’s allegations of gender bias are also more perfunctory than other Title IX
claims dismissed by this Court for failure to state a claim. In University of St. Thomas,
the plaintiff failed to state a claim because his allegations were insufficient to show
gender bias. 2017 WL 811905, at *6. There, the plaintiff made much more specific
allegations, including: “the Federal government pushe[s] colleges and universities to
punish male students accused of sexual assault” and “UST [had] only applied the Policy
to male students accused by female students” of sexual misconduct. Id. at *5. Here,
there are no such allegations. And, unlike the process afforded the plaintiff in University
of St. Thomas, BSU’s disciplinary process included an appeal in front of an ALJ, which
resulted in a finding that Stenzel did not violate the Policy. (Sealed Letter, Attach. 1 at 4;
id., Attach. 2 at 7.)
Because Stenzel’s allegations are insufficient to show BSU was motivated by
gender, the Court will grant BSU’s motion to dismiss Count I.

III.

BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
(COUNT II)
Defendants also move to dismiss Stenzel’s Breach of the Covenant of Good Faith

and Fair Dealing claim. 5
BSU, like other MnSCU institutions have in the past, asserts that it is entitled to
immunity under the Eleventh Amendment from state-law claims. See Lewis v. St. Cloud
State Univ., No. 04-4379, 2005 WL 3134064, at *10 (D. Minn. Nov. 23, 2005). The
5

The Court notes that Stenzel did not respond substantively to the motion to dismiss the
breach of good faith and fair dealing claim. See Zimmerschied v. JP Morgan Chase Bank, N.A.,
49 F. Supp. 3d 583, 590-91 (D. Minn. 2014).
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Eleventh Amendment “bars federal court jurisdiction over state[-]law claims against
unconsenting states or state officials when the state is the real, substantial party in
interest, regardless of the remedy sought.” Cooper v. St. Cloud State Univ., 226 F.3d
964, 968 (8th Cir. 2000). “While there is no Eighth Circuit precedent squarely holding
that schools in the MnSCU System are entitled to Eleventh Amendment immunity, the
authority that does exist is highly suggestive of this conclusion.” Lewis, 2005 WL
3134064, at *11; see also Cooper, 226 F.3d at 968-69 (assuming St. Cloud State
University would be entitled to Eleventh Amendment protection); Egerdahl v. Hibbing
Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir. 1995) (holding that Hibbing Community
College, a Minnesota state college or university, had not waived its Eleventh Amendment
immunity). The Eighth Circuit has recognized that “[t]he majority of cases addressing
the question of eleventh amendment immunity for public colleges and universities . . .
have held that these institutions are arms of their respective state governments and thus
immune from suit.” Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996) (quoting
Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir. 1985)). Further, when the money to pay
an award will be derived from the state treasury, courts often accord the state treasury
factor “dispositive weight.” Lewis, 2005 WL 3134064, at *11. Therefore, the Court
finds Stenzel’s state-law claim against BSU is barred by the Eleventh Amendment and
the Court will grant BSU’s motion to dismiss Count II.
With regard to the claim against individual Defendants, “Minnesota does not
recognize a cause of action for breach of the implied covenant of good faith and fair
dealing without an underlying breach of contract claim.” I-Sys., Inc. v. Softwares, Inc.,
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No 02-1951, 2004 WL 742082, at *12 (D. Minn. Mar. 29, 2004). Stenzel does not allege
that a contract existed between Stenzel and individual Defendants. To the extent he
alleges the existence of a contract, it is with BSU – not individual Defendants. (See, e.g.,
Compl. ¶ 227.) Therefore, the Court finds Stenzel failed to allege the breach of the
covenant of good faith and fair dealing and will grant individual Defendants’ motion to
dismiss Count II.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants Bemidji State University, Debra Peterson, and
Troy Gilbertson’s Motion to Dismiss [Docket No. 5] is GRANTED and the Complaint
[Docket No. 1] is DISMISSED without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 13, 2017
at Minneapolis, Minnesota.

___________s/John R. Tunheim_________
JOHN R. TUNHEIM
Chief Judge
United States District Court

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