Doe v. Brown University et al

Filing 82

MEMORANDUM AND ORDER denying 40 Motion to Strike ; granting in part and denying in part 41 Motion to Dismiss; denying 50 Motion to Dismiss for Failure to State a Claim; denying 51 Motion to Strike ; granting in part and denying in part 65 Motion for Judgment on the Pleadings. So Ordered by Chief Judge William E. Smith on 1/16/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
JANE DOE,
)
)
Plaintiff,
)
C.A. No. 16-562 WES
)
v.
)
)
)
BROWN UNIVERSITY; PHI KAPPA PSI,
)
INC.; JOHN SMITH; PHI KAPPA PSI)
RHODE ISLAND ALPHA CHAPTER
)
PRESIDENT R.H.; PHI KAPPA PSI)
RHODE ISLAND ALPHA CHAPTER
)
SECRETARY 1; PHI KAPPA PSI-RHODE
)
ISLAND ALPHA CHAPTER PRESIDENT
)
J.P.; and PHI KAPPA PSI-RHODE
)
ISLAND ALPHA CHAPTER SECRETARY 2, )
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
This case is before the Court on motions from Defendants John
Smith (ECF Nos. 40, 41), Phi Kappa Psi, Inc., (“PKP”) (ECF Nos.
50, 51), and Brown University (“Brown” or “University”) (ECF No.
65),

variously

attacking

Plaintiff

Jane

Doe’s

Second

Amended

Complaint (“SAC”) (ECF No. 39). After a brief overview of the
alleged facts, the Court considers and denies all but part of
Brown’s Motion for Judgment on the Pleadings and part of Defendant
John Smith’s Motion to Dismiss.

I.

Background 1
As alleged in the SAC, on October 17, 2014, Doe attended a

party hosted by the members of Phi Kappa Psi – Rhode Island Alpha
Chapter (“Alpha Chapter”) at the fraternity’s residence on the
Brown campus. Then a junior at Brown, Doe arrived at the party
with her friend, Mary Roe, who soon found herself in conversation
with

John

Smith.

Eventually

Smith

offered

Roe

a

drink.

Roe

assented, but requested a drink that would not aggravate one of
her myriad food allergies.
Smith obliged, mixing an ostensibly hypoallergenic cocktail,
out of the view of Doe and Roe. Roe took a sip and handed the drink
to Doe who also partook before handing the drink back to Roe to
finish. Both women soon entered something of a fugue, experiencing
a loss of motor function, cognitive awareness, and memory. After
they became separated as a result of their disorientation, Doe
stumbled into Michael Jones, a Brown student she had met once
before. In the early hours of October 18, 2014, Jones led Doe to
her

dormitory

room

and

had

sex

with

her

while

she

lay

incapacitated.

1

As it must, this section presents Doe’s rendering of the
facts. See Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st
Cir. 2002) (Motions to dismiss require courts to “assume the truth
of all well-pleaded facts and indulge all reasonable inferences
therefrom that fit the plaintiff's stated theory of liability.”).
2

The

next

University

morning

Health

Doe

sought

Services

medical

(“Health

treatment

Services”),

at

Brown

where

she

requested testing for ingestion of date-rape drugs. Dr. Marsha
Miller at Health Services took blood and urine samples and sent
them to the Rhode Island Hospital Toxicology Laboratory. On October
27, 2014, Dr. Miller informed Plaintiff that her samples had tested
positive for gamma-Hydroxybutyric acid (“GHB”).
In response to the positive test and a formal complaint filed
with

Brown

by

Doe,

the

University

opened

three

disciplinary

proceedings, one each against Alpha Chapter, Jones, and Smith. On
December

10,

fraternity

2014,

Brown’s

“Responsible”

Student

for

Conduct

charges

that

Board

found

included

the

illegal

possession or use of drugs; illegal provision, sale, or possession
with intent to sell drugs; and actions that result in or can be
reasonably expected to result in physical harm to a person. And on
December 22, 2014, the Student Conduct Board found Jones “Not
Responsible” on two sexual misconduct charges.
Brown set the disciplinary hearing regarding Smith’s conduct
for December 19, 2014. But on December 15 the hearing was enjoined
by court order. In January, through no fault of her own, there
appeared reason to doubt much of the physical evidence supporting
Doe’s

claims:

A

toxicology

analysis

of

Roe’s

hair

came

back

negative for GHB. A report by Dr. David Greenblatt (who had been
retained by Smith) concerning the toxicology testing of Doe’s urine
3

sample concluded that such testing produced invalid results. The
University’s

own

expert,

Dr.

Guy

Vallaro,

agreed

with

Dr.

Greenblatt as to the invalidity of the urine sample, and also found
that the testing of Doe’s blood sample and of Roe’s hair sample
had been faulty, producing inconclusive results.
News of the invalid tests led University Provost Joseph Meisel
to reduce the penalty previously handed down to Alpha Chapter, and
the University dropped its disciplinary proceeding against Smith. 2
Ruling on Doe’s appeal, Dr. Meisel also upheld the Student Conduct
Board’s “Not Responsible” determination as to Jones. All three
determinations were made despite the Provost’s continued belief,
based on the witness testimony in the Alpha Chapter proceeding,
that Doe and Roe had been given a substance that incapacitated
them.
Doe

appealed

investigation

the

into

University’s

Smith,

which

the

decision
University

to

drop

its

denied.

Doe

suspects this decision was part of an effort on Brown’s part to
shield

Smith

–

the

son

of

a

University

Trustee

–

from

investigation. As grounds for this suspicion, Doe notes that the
University rejected receipt of evidence that Smith was running a
false-identification business, and that University officials had

2

Brown also issued notice to the campus community that it
would no longer use the laboratories to which it sent Doe’s
samples.
4

previously

told

Doe

that

Smith’s

disciplinary

hearing

would

continue regardless of the toxicology results.
Emboldened by what they considered their successful defense
of Doe’s complaints against them, Alpha Chapter and Smith began
intimidating
University

Doe,

with

withdrawing

impunity.
its

For

recognition

instance,
of

Alpha

despite

the

Chapter,

the

fraternity went on to recruit new members and gather at the
fraternity house. The purpose of one such gathering was raising
the fraternity’s flag in counter-protest as a group of Brown
students marched through campus against the University’s handling
of Doe’s and Roe’s cases. There was also an incident where Alpha
Chapter distributed leaflets on campus that disclosed confidential
information regarding Doe’s allegations. For his part, Smith began
staying overnight in Doe’s dormitory in violation of a “No Contact”
order, a situation that made Doe uncomfortable.
Not only did the University stand by as others moved against
her, it also denied her an interview to Brown’s medical school –
even though Doe was, on paper, one of Brown’s best students, and
was ultimately offered admission by many other top medical schools.
Doe believes that Brown’s decision was not on the merits, but
rather retaliation for Doe’s vigorous assertion of her rights
throughout the University’s investigations.

5

II.

Discussion
Doe brings claims against Brown for discrimination (count

one) and retaliation (count two) in violation of Title IX. She
also charges the University with negligence (counts three and
four). Doe’s claims against PKP (count five) and Alpha-Chapter
representatives (counts four and five) sound in negligence. And
finally, Doe sues Smith for assault and battery (count six).
Doe
emotional

asks
harm

for
she

damages

to

allegedly

compensate
experienced

her
as

for
a

the

result

severe
of

the

incident at Alpha Chapter’s party and Brown’s conduct during its
investigation of the incident. Doe claims that her compromised
emotional state disrupted her studies, extracurricular activities,
and overall enjoyment of campus life. She also asks for punitive
damages.
As mentioned above, and discussed below, Defendants have
variously challenged the SAC. Some of these challenges succeed;
most do not.
A.

Brown University’s Motion for Judgment on the
Pleadings

Brown moves for judgment on the pleadings as to counts one,
two, three, and four of Doe’s SAC. “The standard of review of a
motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is the same as that for a motion to dismiss under
Rule 12(b)(6).” Frappier v. Countrywide Home Loans, Inc., 750 F.3d

6

91, 96 (1st Cir. 2014) (quotation marks omitted). So, the Court
will view “the facts contained in the pleadings in the light most
favorable to the nonmovant and draw all reasonable inferences
therefrom,” and then decide whether the complaint “contain[s]
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” In re Loestrin 24 Fe
Antitrust Litig., 814 F.3d 538, 549 (1st Cir. 2016) (alteration
and quotation marks omitted).
1.

Count One: Title IX Discrimination

Count one alleges Title IX discrimination against Brown.
Under Title IX, “recipients of federal funding may be liable for
‘subject[ing]’

their

students

to

discrimination

where

the

recipient is deliberately indifferent to known acts of studenton-student sexual harassment and the harasser is under the school's
disciplinary authority.” Davis v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 646-47 (1999) (alteration in original).
That is, funding recipients like Brown may be liable under
Title IX “only where the recipient’s response to the harassment or
lack

thereof

is

clearly

unreasonable

in

light

of

the

known

circumstances.” Id. at 648. In order to prevail under this Title
IX

theory,

“a

plaintiff

must

establish

sexual

harassment

of

students that is so severe, pervasive, and objectively offensive,
and that so undermines and detracts from the victims’ educational
experience, that the victim-students are effectively denied equal
7

access to an institution's resources and opportunities.” Id. at
651.
The First Circuit has developed a five-part test for Title IX
liability in cases of student-on-student harassment. Porto v. Town
of Tewsbury, 488 F.3d 67, 72-73 (1st Cir. 2007). These cases
require a plaintiff to show:
(1) that he or she was subject to severe, pervasive, and
objectively offensive sexual harassment by a school
peer, . . . (2) that the harassment caused the plaintiff
to be deprived of educational opportunities or benefits
. . . (3) [and that the funding recipient] knew of the
harassment, (4) in its programs or activities and (5) it
was deliberately indifferent to the harassment such that
its response (or lack thereof) is clearly unreasonable
in light of the known circumstances.
Id. (quotation marks omitted).
Moreover, “[i]f an educational institution takes ‘timely and
reasonable measures to end the harassment, it is not liable under
Title IX for prior harassment.’ However, if earlier measures have
proved inadequate to prevent further harassment, a school ‘may be
required to take further steps to avoid new liability.’” Doe v.
Emerson Coll., Civil Action No. 14–14752–FDS, 2017 WL 4273301, at
*15 (D. Mass. Sept. 26, 2017) (quoting Wills v. Brown Univ., 184
F.3d 20, 26 (1st Cir. 1999)).
There is no denying that Brown responded to Doe’s complaints,
and that at least from a certain vantage, its response was arguably
far

from

perfunctory.

Indeed,

even

in

Doe’s

telling

the

University’s response included collecting blood and urine samples
8

to test for the date-rape drugs GHB and flunitrazepam; issuing
statements to the Brown community regarding Doe’s allegations and
findings Brown made during its investigation of those allegations;
conducting

disciplinary

proceedings

against

Alpha

Chapter

and

Jones; and imposing a sanction on Alpha Chapter that withdrew its
university recognition for two-and-a-half years.
But the law makes plain that a response to Doe’s complaints
does not, by itself, shield Brown from liability under Title IX;
the nature of the response matters. See Brodeur v. Claremont Sch.
Dist., 626 F. Supp. 2d 195, 210 (D.N.H. 2009) (“A ‘school's
investigation, though promptly commenced . . . may be carried out
so inartfully as to render it clearly unreasonable.’” (quoting
Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 175 (1st Cir.
2007), rev’d on other grounds, 555 U.S. 246 (2009))); Emerson
Coll., 2017 WL 4273301, at *15 (“Under some circumstances, an
educational
complaints

institution’s
of

sexual

failure

harassment

to
may

adequately
constitute

respond

to

deliberate

indifference.”); Leader v. Harvard Univ. Bd. of Overseers, Civil
Action No. 16-10254-DJC, 2017 WL 1064160, at *4 (D. Mass. Mar. 17,
2017) (“[W]hile an institution that takes timely and reasonable
measures to end the harassment . . . is not liable under Title IX
for prior harassment, the institution may still be liable under
Title IX if those measures fail to solve the problem.”) (quotation
marks omitted).
9

Furthermore, if a university “learns that its measures have
proved inadequate, it may be required to take further steps to
avoid new liability.” Leader, 2017 WL 1064160, at *4 (quotation
marks omitted); see Vance v. Spencer Cty. Pub. Sch. Dist., 231
F.3d 253, 261 (6th Cir. 2000) (concluding that “[w]here a school
district has actual knowledge that its efforts to remediate are
ineffective, and it continues to use those same methods to no
avail, such district has failed to act reasonably in light of the
known circumstances”); cf. Wills, 184 F.3d at 26 (“[E]vidence of
an inadequate response is pertinent to show fault and causation
where the plaintiff is claiming that she was harassed or continued
to be harassed after the inadequate response.”).
And in fact, here Doe alleges that Brown’s investigation was
bungled, and in a way that led to further harassment. For example,
Doe alleges that Brown routinely sent blood and urine samples to
a laboratory incapable of conducting definitive tests for daterape drugs – despite Brown’s knowledge that other female students
reported being drugged at campus events. Moreover, Doe alleges
that by sending samples to an ill-equipped laboratory, Brown in
effect lost evidence that may have supported her complaint against
Smith.
Without this evidence, according to Doe, Brown had an easier
time convincing the campus community and general public that its
reason for discontinuing its disciplinary process concerning Smith
10

was a lack of evidence, and not in furtherance of a secret design
to drop the case as a favor to Smith’s father, a University trustee
– a decision that was at least curious given that Brown officials
had found in the proceedings against Alpha Chapter that Smith had
spiked Doe’s drink.
The Court finds that these allegations – again, taken as true,
and in the light most favorable to Doe – make out a plausible claim
that Brown’s response was “carried out so inartfully as to render
it

clearly

unreasonable.”

Brodeur,

626

F.

Supp.

2d

at

210.

Especially when the Court considers Doe’s claim that the harassment
negatively affected her educational opportunities. See Hunter v.
Barnstable Sch. Comm., 456 F. Supp. 2d 255, 263 (D. Mass. 2006)
(“Sexual

harassment

will

reach

the

severity

or

pervasiveness

required for a viable Title IX claim where it adversely affects
the victim's educational opportunities.”). And her assertion that
Brown’s mishandling of physical evidence caused her to endure
further harassment, including an incident where Alpha Chapter
distributed leaflets to the University community that disclosed
confidential information regarding Doe’s allegations.
2.

Count Two: Title IX Retaliation

Count two of the SAC alleges a Title IX retaliation claim
against Brown. A plaintiff may establish a prima facie case for a
retaliation claim by alleging facts sufficient to show that “she
engaged

in

activity

protected

by
11

Title

IX,

that

the

alleged

retaliator

knew

of

the

protected

activity,

that

the

alleged

retaliator subsequently undertook some action disadvantageous to
the actor, and that a retaliatory motive played a substantial part
in prompting the adverse action.” Frazier v. Fairhaven Sch. Comm.,
276 F.3d 52, 67 (1st Cir. 2002).
In her SAC, Doe contends that after she complained to Brown
about the alleged drugging and sexual assault, the University
denied her a medical school interview in retaliation for her
complaints. Doe has therefore alleged that she engaged in activity
protected by Title IX that the retaliator knew about. See Minnis
v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.
620 F. App’x. 215, 222 (5th Cir. 2015) (protected activity includes
making complaints “related to gender inequality”). Further, Doe
claims that Brown, with retaliatory intent, subsequently denied
her

an

interview,

while

“higher-ranked”

schools

not

only

interviewed but accepted her.
The Court finds that Doe has made out a prima facie Title IX
retaliation claim. See Fox v. Town of Framingham, Civil No. 14CV-10337-LTS, 2016 WL 4771057, at *7 (D. Mass. Sept. 13, 2016)
(“In

a

retaliation

reasonable

[student]

case,
would

a

plaintiff
have

found

need
the

only

show

challenged

that

a

action

materially adverse, which in this context means it well might have
dissuaded a reasonable [student] from making or supporting a charge

12

of discrimination.” (quoting Rodríguez-Vivez v. P.R. Firefighters
Corp. of P.R., 743 F.3d 278, 284 (1st Cir. 2014))).
3.

Count Three: Negligence

In count three, Doe alleges that Brown was negligent in its
handling of the physical evidence related to her case, resulting
in “significant emotional harm.” In its motion for judgment on
this

count,

Brown

assumes,

arguendo,

that

it

has

a

duty

to

adequately collect, maintain, and test samples provided in cases
of suspected drugging and

sexual assault.

But

the University

argues, correctly, that because Doe does not allege she suffered
any physical harm as a result of Brown’s alleged mistreatment of
the physical evidence in her case, her claim is one for negligent
infliction of emotional distress. See Frisina v. Women and Infants
Hosp. of R.I., No. CIV. A. 95-4037, 2002 WL 1288784, at *3 (R.I.
Super. Ct. May 30, 2002) (“Mental anguish or emotional distress
claims can fall into one of two categories: either negligent
infliction of emotional distress or intentional infliction of
emotional distress.”).
And under Rhode Island law, this type of claim is limited to
two

groups,

neither

of

which

includes

Doe.

See

Perrotti

v.

Gonicberg, 877 A.2d 631, 636 (R.I. 2005) (“Only two groups of
plaintiffs are able . . . to seek recovery under a theory of
negligent

infliction

of

emotional

distress:

those

within

the

‘zone-of-danger’ who are physically endangered by the acts of a
13

negligent defendant, and bystanders related to a victim whom they
witness

being

injured.”

(quotation

marks

omitted)).

Doe’s

negligence claim based on Brown’s handling of physical evidence is
therefore dismissed.
Doe also alleges in count three that Brown was negligent in
its supervision of Alpha Chapter. This claim fails, Brown argues,
because the university-student relationship is not the type of
“special relationship” that may qualify for an exception to the
general rule that “a landowner has no duty to protect another from
harm caused by the dangerous or illegal acts of a third party.”
Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005); see, e.g.,
Karasek v. Regents of Univ. of Cal., Case No. 15-cv-03717-WHO,
2015 WL 8527338, at *20 (N.D. Cal. Dec. 11, 2015) (“California
courts have repeatedly held that a university does not have a
special relationship with its students such that it may be held
liable for failing to protect them from the wrongful acts of third
parties.”); Hernandez v. Baylor Univ., 6:16–CV–69–RP, 2017 WL
1322262, at *10 (W.D. Tex. Apr. 7, 2017) (“Courts across the
country have determined . . . that the general foreseeability of
sexual assault on campus is insufficient to warrant negligence
liability [against universities].”).
Under

Rhode

Island

law,

“[a]

special

relationship,

when

derived from common law, is predicated on a plaintiff's reasonable
expectations and reliance that a defendant will anticipate harmful
14

acts of third persons and take appropriate measures to protect the
plaintiff from harm.” Martin, 871 A.2d at 915 (quotation marks
omitted); see Ferreira v. Strack, 652 A.2d 965, 967-68 (R.I. 1995)
(finding that social host owed no duty of care to “an innocent
third party who suffers injuries as a result of the negligent
operation of a motor vehicle by an adult guest if the negligence
is caused by the guest's intoxication.”).
The Ferreira court found no duty in part because holding
social hosts liable for their guests’ torts would have “such
serious implications that any action taken should be taken by the
Legislature after careful investigation, scrutiny, and debate.”
Ferreira, 652 A.2d at 968. The Court finds that similarly serious
implications would attend holding universities like Brown liable
for the torts of their students. Therefore, discretion dictates
dismissing this claim; any change in this area of third-party
liability law must come from the legislature.
4.

Count Four: Premises Liability

Count four alleges premises liability against Brown based on
the University’s ownership of Sears House, which served as campus
residence for Alpha Chapter, and where Doe was allegedly drugged.
The law of premises liability “imposes an affirmative duty upon
owners and possessors of property: to exercise reasonable care for
the safety of persons reasonably expected to be on the premises
includ[ing]

an

obligation

to

protect
15

against

the

risks

of

a

dangerous

condition

existing

on

the

premises,

provided

the

landowner knows of, or by the exercise of reasonable care would
have discovered, the dangerous condition.” Correia v. Bettencourt,
162 A.3d 630, 637 (R.I. 2017) (quotation marks omitted).
The Court finds that the same sweeping social implications
that have made the judiciary hesitate to hold universities liable
under the special-relationship theory (discussed above) counsel
similar caution as to Doe’s premises-liability theory. See Bucki
v. Hawkins, 914 A.2d 491, 495-96 (R.I. 2007) (finding that one
factor to consider in determining whether a duty exists under
premises-liability theory is “the extent of the burden to the
defendant and the consequences to the community for imposing a
duty to exercise care

with resulting

liability

for breach.”)

(quotation marks omitted)).
Moreover, the dangerous condition that allegedly hurt Doe –
a spiked drink at the fraternity – is not something Doe plausibly
alleges that Brown knew of or should have reasonably discovered.
See id. at 495 (“foreseeability of harm to the plaintiff” also a
consideration

in

duty-of-care

analysis

in

premises-liability

cases). While Doe asserts that in the span of approximately four
years the University charged Alpha Chapter with five disciplinary
infractions involving unregistered parties and serving alcohol to
minors,

this

does

not

make

what

allegedly

happened

to

Doe

reasonably foreseeable. See, e.g., Facchetti v. Bridgewater Coll.,
16

175 F. Supp. 3d 627, 644 (W.D. Va. 2016) (finding no duty of care
existed

between

college

and

student

where

five

assaults

in

college’s dormitories occurred in the year prior). As the Facchetti
court found, a college’s awareness of five assaults in the past
year, “none of which are alleged to have been perpetrated by
[alleged assailant], simply do not create the . . . level of
foreseeability of harm” necessary for a viable premises-liability
claim. Id. The same is true here where the prior charges against
Alpha Chapter and its members were not for drugging its guests, or
for sexual assault.
B.

PKP’s Motion to Dismiss

PKP moves to dismiss count five of the SAC, which claims PKP
negligently

failed

to

take

reasonable

steps

to

control

the

dangerous behavior of Alpha-Chapter members. PKP argues that count
five should be dismissed because PKP owed Doe no duty of care. Doe
responds that her complaint contains enough factual matter to make
the existence of a duty of care plausible, and therefore PKP’s
motion should be denied. The Court sides with Doe.
In order to survive

PKP’s motion,

Doe’s complaint “must

contain sufficient factual matter to state a claim to relief that
is plausible on its face.” Rodríguez-Reyes v. Molina-Rodríguez,
711 F.3d 49, 53 (1st Cir. 2013) (quotation marks omitted). The
factual matter in the SAC relevant to count five against PKP
includes the following:
17

PKP “provided for the existence and recognition of
[Alpha Chapter]” which was “a prerequisite for Alpha
Chapter’s eligibility to administer Program Housing at
Sears House on the campus of Brown University.”
PKP “authorized and supervised the operation of [Alpha
Chapter].”
PKP “exercise[d] control over [Alpha Chapter] . . . and
[its] individual members.”
PKP “had . . . the authority to discipline
Chapter] and to revoke its charter.”

[Alpha

Study data show that “sexual assault is endemic on
college campuses”; “that the most significant risk
factor for campus sexual assault is the use of alcohol”;
that “[f]raternities pose . . . [a] well-known risk
factor for campus sexual assault of women with
fraternity members being statistically more likely than
non-members to commit assaults against female students”;
and that “[f]raternity members are twice as likely to
use incapacitation by alcohol or other substances to
facilitate sexual assault of women rather than direct
physical force.”
Alpha Chapter “had a reputation on campus . . . of being
a source for the purchase of illegal drugs, including .
. . hallucinogenic substances.”
“Between 2011 and the unregistered party on October 17,
2014, [Alpha Chapter] was charged in five disciplinary
cases, involving unregistered parties, serving alcohol
to minors, misconduct by members, and property damage.”
PKP “was aware of the disciplinary measures taken by
Brown University against [Alpha Chapter].”
In response to known risks surrounding fraternities,
alcohol, and sexual assault, PKP “issue[d] risk
management policies to all local chapters concerning the
use of alcohol and drugs, and the prevention of sexual
assault.”
Under

Rhode

Island

law,

“[t]o

prevail

on

a

claim

of

negligence, a plaintiff must establish a legally cognizable duty

18

owed

by

a

defendant

to

a plaintiff,

a

breach of

that

duty,

proximate causation between the conduct and the resulting injury,
and the actual loss or damage.” Ouch v. Khea, 963 A.2d 630, 633
(R.I. 2009) (quotation marks omitted).
Although the question whether a duty exists is one of law,
“there is no clear-cut formula to determine whether a duty exists
in a specific case.” Id. “Instead, the court will employ an ad hoc
approach that turns on the particular facts and circumstances of
a given case, taking into consideration all relevant factors,
including the relationship between the parties, the scope and
burden of the obligation to be imposed upon the defendant, public
policy considerations, and the

foreseeability of

harm to the

plaintiff.” Id. (quotation marks omitted).
Rhode Island courts emphasize the foreseeability prong of
this inquiry. See Selwyn v. Ward, 879 A.2d 882, 887 (R.I. 2005)
(“The linchpin in the analysis of whether a duty flows from a
defendant

to

a

plaintiff

is

foreseeability.”).

Rhode

Island

borrows its formulation of foreseeability from the famous Palsgraf
case:
As Justice Cardozo of the New York Court of Appeals said:
“The risk reasonably to be perceived defines the duty to
be obeyed, and risk imports relation; it is risk to
another or to others within the range of apprehension.”
Palsgraf v. Long Island R.R. Co.,162 N.E. 99, 100 (N.Y.
1928). This Court has expressed this concept of limiting
the scope of a defendant’s duty according to risks he or
she reasonably perceived, saying that a duty must be

19

based on conduct sufficiently likely to result in the
kind of harm suffered by the plaintiff . . . .
Id. (citation and quotation marks omitted).
PKP points to two Indiana Supreme Court cases wherein the
court found there was no duty of care running from a national
fraternity to third parties harmed by fraternity members. See
generally Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154 (Ind. 2014);
Yost v. Wabash Coll., 3 N.E.3d 509 (Ind. 2014). But as Doe notes,
both cases were decided against the plaintiff at the summaryjudgment, not the motion-to-dismiss, stage. So while Doe’s claim
may meet the same fate as her counterparts’ in Yost and Smith, the
Court finds that she has pled enough factual matter to make her
negligence claim plausible, especially given Rhode Island’s dutyof-care

analysis

“that

turns

on

the

particular

facts

and

circumstances of a given case.” Carlson v. Town of South Kingstown,
131 A.3d 705, 708-09 (R.I. 2016) (noting that Rhode Island courts
have “frowned upon the disposition of negligence claims by summary
judgment” (quotation marks omitted)).
Moreover, even though the Indiana Supreme Court has on two
occasions found that there was no duty of care owed by national
fraternity organizations, Rhode Island courts have yet to decide
the issue, and other courts have disagreed with those in Indiana.
See, e.g., Brown v. Delta Tau Delta, 118 A.3d 789, 796 (Me. 2015)
(holding that national fraternity had duty of care where “it is

20

certainly foreseeable that turning a fraternity house over to
college students, where parties and alcohol-related events are
likely to occur, creates the potential for sexual misconduct – a
known safety issue on college campuses”); Grenier v. Comm’r of
Transp., 51 A.3d 367, 388 (Conn. 2012) (affirming denial of summary
judgment

where

plaintiff’s

negligence

claims

against

national

fraternity raised a genuine issue of material fact, and finding
that “whether a national fraternity may be held liable for the
actions of one of its local chapters depends both on its ability
to exercise control over the local chapter as well as its knowledge
either that risk management policies are not being followed or
that the local chapter is engaging in inappropriate behavior”). 3
C.

Smith’s Motion to Dismiss

Defendant Smith moves to dismiss Doe’s assault and battery
claims. Smith argues that there can be no assault where, as here,
the plaintiff had no apprehension of an injury before that injury

3

The Court notes that there is some similarity between the
premises-liability claim against Brown and the negligence claim
against PKP. However, dismissing the former while allowing the
latter to proceed is the result of Brown’s being further removed
from Doe’s alleged injury. See Bucki, 914 A.2d at 496 (noting “the
closeness of connection between the defendant's conduct and the
injury suffered” as factor in duty-of-care analysis). The
allegations, after all, are that PKP supervised and had control
over Alpha Chapter and its individual members. The relative
closeness between PKP’s alleged conduct and the alleged injury
nudges Doe’s claim against the fraternity “across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
21

occurred. He argues that Doe’s battery claim must be dismissed
because (1) there is no medical evidence that an offensive touching
occurred; (2) there is no evidence from which intent to injure can
be inferred; and (3) Doe has not pleaded fraud with particularity.
The Court dismisses Doe’s assault claim. In Rhode Island,
“[a]n assault is a physical act of a threatening nature or an offer
of corporal injury which puts an individual in reasonable fear of
imminent bodily harm. It is a plaintiff's apprehension of injury
. . . which renders a defendant's act compensable.” Hennessey v.
Pyne, 694 A.2d 691, 696 (R.I. 1997) (citations and quotation marks
omitted)

(finding

that

claim

of

assault

will

not

lie

where

plaintiff was unaware of errant golf ball before it struck her).
Doe argues that she was put in reasonable fear of imminent
bodily

harm

after

she

had

sipped

the

allegedly

adulterated

beverage. But by then the battery, if one there was, had already
been committed – the golf ball had already struck her. There is no
allegation that Doe was in fear of harmful or offensive bodily
contact before such contact occurred. See Restatement (Second) of
Torts § 21 (Am. Law Inst. 1965) (“An actor is subject to liability
for another for assault if (a) he acts intending to cause a harmful
or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b) the
other is thereby put in such imminent apprehension.”); see also
Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo. Ct. App. 1998)
22

(dismissing assault claim where plaintiff had not alleged “fear of
imminent peril” prior to ingesting what he thought was medicine,
but was in fact floor wax). Doe’s alleged fear of some future harm
resulting from her inability to protect herself while inebriated
does not save her claim: Any fear of this sort was not of contact
imminent enough to support

an assault

claim. See Restatement

(Second) of Torts § 29 (Am. Law Inst. 1965) (“The apprehension
created must be one of imminent contact, as distinguished from any
contact in the future.”).
Doe’s battery claim, on the other hand, survives. Rhode Island
law defines battery as “an act that was intended to cause, and in
fact did cause, an offensive contact with or unconsented touching
of or trauma upon the body of another.” Hennessey, 694 A.2d at 696
(citations omitted). “An intent to injure plaintiff, however, is
unnecessary in a situation in which a defendant willfully sets in
motion a force that in its ordinary course causes the injury.” Id.
(quotation marks omitted).
Doe alleges that Smith intentionally mixed then served a drink
that caused her harmful mental and physical effects. Cf. Snouffer
v. Snouffer, No. 92 CA 499, 1993 WL 248603, at *4 (Ohio Ct. App.
July 9, 1993) (“The administration of poison to a person generally
constitutes a battery.”) (citing 6 Am. Jur. 2d Assault & Battery
§ 113 (1963)). Notwithstanding Smith’s argument to the contrary,

23

the dearth of medical evidence supporting Doe’s claim does not
doom it at this stage.
Moreover, Smith’s argument that there can be no battery where
there is no allegation Smith specifically intended the drink for
Doe is unavailing. Under Rhode Island law, it is “not necessary
that defendant intend to injure plaintiff. To constitute a battery,
it is enough to set in motion willfully a force that in its ordinary
course causes an injury.” Proffitt v. Ricci, 463 A.2d 514, 518
(R.I. 1983). Doe alleges that Smith willfully spiked the drink he
made for Doe’s friend. Once set in motion, this force could
reasonably be expected to find Doe’s lips, causing injury in its
ordinary course.
Finally, Smith’s attempt to convert Doe’s battery claim into
one for fraud that is subject to the heightened pleading standards
required by Federal Rule of Civil Procedure 9 is without merit.
See Connectu LLC v. Zuckerberg, 522 F.3d 82, 93 (1st Cir. 2008)
(“[T]he

plaintiff

is

both

the

author

and

the

master

of

its

complaint. As such, it has the power to decide what law [it] will
rely

upon.

We

think

that

principle

extends

to

a

plaintiff's

decision as to which causes of action to bring . . . .” (citation
omitted)). Doe has pled the law she believes applies to her claims;
she has not pled fraud, and therefore the heightened pleading
standard applicable to fraud claims does not apply.

24

D.

PKP’s and Smith’s Motions to Strike

PKP and Smith move to strike certain parts of the SAC. A party
may move pursuant to Federal Rule of Civil Procedure 12(f) to
strike

“from

a

pleading

.

.

.

any

redundant,

immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Rule
12(f) is designed to reinforce the requirement in Rule 8(e) that
pleadings be simple, concise, and direct.” Fundi v. Citizens Bank
of R.I., No. CA 07–078 ML, 2007 WL 2407106, at *3 (D.R.I. Aug. 22,
2007) (citations omitted).
But “while ruling on a motion to strike is committed to the
district court's sound judgment, such motions are narrow in scope,
disfavored in practice, and not calculated readily to invoke the
court's discretion. This is so because striking a portion of a
pleading is a drastic remedy and . . . it is often sought by the
movant simply as a dilatory or harassing tactic.” Manning v. Bos.
Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013) (citation and
quotation marks omitted).
1.

PKP’s Motion

PKP wants stricken three paragraphs in Doe’s complaint that
refer to studies that estimate the prevalence of sexual assault on
college campuses, and that describe how alcohol and fraternities
have

contributed

information

is

to
not

these
relevant

assaults.
to

25

Doe’s

PKP

argues

claims,

that
and

in

such
the

alternative, that to the extent such information is relevant, it
is nevertheless unduly prejudicial.
PKP’s arguments fail because, as Doe points out, data on the
prevalence of campus sexual assault are relevant to, among other
things, establishing the duty of care for her negligence claim
against PKP. See Ouch, 963 A.2d at 633 (“To prevail on a claim of
negligence, a plaintiff must establish a legally cognizable duty
owed

by

a

defendant

to

a plaintiff,

a

breach of

that

duty,

proximate causation between the conduct and the resulting injury,
and

the

actual

loss

or

damage.”

(citations

omitted)).

The

prevalence of sexual assault on college campuses, and the extent
to which such is facilitated by alcohol served at fraternities, is
relevant to the foreseeability of Doe’s alleged harm. See id.
(finding that Rhode Island courts use an ad hoc approach to
determining whether a duty of care exists, which turns on, among
other things, “the foreseeability of harm to the plaintiff”).
Moreover,

PKP’s

arguments

that

these

data

may

not

be

admissible are insufficient to support a Rule 12(f) motion to
strike. See Sheffield v. City of Boston, 319 F.R.D. 52, 54 (D.
Mass. 2016) (“[I]nadmissibility is insufficient to support a Rule
12(f) motion.”). Also deficient is PKP’s attempt to use a Rule
12(f)

motion

to

strike

Doe’s

demand

for

punitive

damages.

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th
Cir. 2010) (“Rule 12(f) does not authorize district courts to
26

strike claims for damages on the ground that such claims are
precluded as a matter of law.”).
2.

Smith’s Motion

Smith moves to strike several paragraphs from Doe’s brief
that allege Smith operated a fake-identification business out of
his residence at Brown. Smith argues that these allegations are
immaterial and impertinent to the issues in the case, and that
they are unduly prejudicial.
Doe

responds

that

these

allegations

support

her

claims

insofar as they identify how Smith purchased alcohol for the party,
which was the medium through which Smith committed the alleged
battery. Doe also claims that the University declined to accept
evidence of Smith’s business, which, she argues, is evidence for
her contention that the University unfairly protected Smith during
its investigation of the incident.
The Court recognizes that allegations of running a fakeidentification business do not cast Smith in the best light, and
are not at the heart of Doe’s case. However, Doe has sufficiently
demonstrated how these allegations could be relevant to her case.
And in any event Smith has not made it “clear that the allegations
in question can have no possible bearing on the subject matter of
the

litigation.”

Lennon

v.

Seaman,

63

F.

Supp.

2d

428,

446

(S.D.N.Y. 1999) (quotation marks omitted). The Court therefore
denies Smith’s motion.
27

III. Conclusion
As set out above, the Court grants in part and denies in part
Brown University’s Motion for Judgment on the Pleadings (ECF No.
65); denies Phi Kappa Psi, Inc.’s, Motion to Dismiss (ECF No. 50);
grants in part and denies in part John Smith’s Motion to Dismiss
(ECF No. 41); and denies both PKP’s (ECF No. 51) and Smith’s (ECF
No. 40) motions to strike.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: January 16, 2018

28