Benning v. Corporation of Marlboro College, The
Filing
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OPINION AND ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim; denying 10 Motion for Protective Order; denying 17 Motion for Expedited Leave to Take Depositions. Signed by Judge William K. Sessions III on 8/5/2014. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
LUKE BENNING,
:
:
:
v.
:
:
CORPORATION OF MARLBORO COLLEGE :
:
Defendant. :
:
Plaintiff,
Case No. 2:14-cv-71
OPINION AND ORDER
Plaintiff Luke Benning brings suit against Marlboro College
following his suspension in December 2013, alleging breach of
contract, breach of the covenant of good faith and fair dealing,
and defamation. Compl., ECF No. 1. Benning seeks an injunction
ordering Marlboro to reinstate him as a student in good standing
and to prevent Marlboro from representing that Benning engaged
in wrongdoing that led to his suspension. Id., p. 10. Benning
also seeks damages in excess of $75,000, with the exact amount
to be determined at trial. Id.
Before the Court is Marlboro’s motion to dismiss and two
discovery-related motions.
For the reasons stated below, the
Court denies in part and grants in part Marlboro’s motion to
dismiss, ECF No. 7. The Court denies Marlboro’s motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) because the Court has diversity jurisdiction to hear
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the case under 28 U.S.C. § 1332, but grants Marlboro’s motion to
dismiss Count III for failure to state a claim for defamation
under Rule 12(b)(6). The Court denies Benning’s motion to
expedite discovery, ECF No. 17. The Court denies Marlboro’s
motion for a protective order to prevent Benning from deposing
certain Marlboro employees, ECF No. 10.
BACKGROUND1
Plaintiff Luke Benning was a student in good standing at
Marlboro College during the 2011-2012 academic year. Compl. ¶ 1.
At the time, he was dating another student at the College,
[hereinafter referred to as “Complainant”]. ¶ 11. In the summer
of 2012 he visited Complainant’s home in Massachusetts, where
she introduced him to her family as her “boyfriend” and, to his
discomfort, encouraged him to “perform sexual acts on her.” ¶¶
11-13. The two eventually “engaged in consensual physical
intimacy” on August 28, 2012, after they returned to Marlboro. ¶
16. In the following days, the couple discussed the encounter
over Facebook messenger and then “engaged in consensual physical
intimacy” again. ¶¶ 17-19. The relationship deteriorated after
this second encounter. ¶¶ 20-21.
In the fall of 2012, Benning began spending time with
another female student, a friend of the Complainant, initially
1
Benning alleges the following facts in the Complaint. At the pleading
stage in response to a motion to dismiss, these facts are assumed to
be true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2
as friends and then as romantic partners. ¶ 22. The Complainant
reacted to Benning’s new relationship by publishing disparaging
comments about him on social media websites and by filing two
complaints with Marlboro that alleged that Benning had sexually
assaulted her. ¶ 23. At the end of the 2013 spring semester,
Marlboro closed the first complaint and deemed the second
unworthy of further action. ¶ 24.
In the fall of 2013, Complainant resumed a formal complaint
against Benning. ¶ 26. Marlboro officials investigated the
woman’s allegations and Benning cooperated with the
investigation by providing relevant electronic message history.
¶ 27. Marlboro convened a hearing with the Sexual Misconduct
Panel (“Panel”) to review the findings. ¶ 28. Benning received a
letter expelling him from Marlboro on November 1, 2013. The
letter stated that the Panel had found that Benning engaged in
sexual relations without obtaining effective consent;
retaliated, presumably against the Complainant; and had shown a
pattern of sexual misconduct. ¶ 30.
Benning appealed the Panel’s decision to the Dean’s
Advisory Committee. ¶ 31. The Committee found three “serious
material errors” in the Panel’s proceedings, and reduced
Benning’s punishment to a three-semester suspension. ¶¶ 33-34.
Despite these material errors, the Committee nonetheless upheld
the Panel’s first two findings (lack of consent and
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retaliation). ¶ 34. The Committee informed Benning that after
three semesters, Marlboro would allow him to apply to re-enroll
through the Deans of Faculty and Students, but that reenrollment would be contingent on his completion of sexual
respect training and counseling. ¶ 35.
Following the Committee’s decision, Benning filed this
lawsuit against Marlboro College on April 15, 2014. In the
Complaint, he alleges that he has suffered irreparable
reputational harm, severe emotional distress, economic injuries,
and loss of educational opportunities, and claims that Marlboro
overlooked irrefutable exculpatory evidence in rendering its
decision. ¶ 41. As relief, he seeks monetary damages in excess
of $75,000 and an injunction requiring Marlboro to reinstate him
as a student in good standing and preventing Marlboro from
representing to students or the public that he engaged in
wrongdoing that resulted in his dismissal. Marlboro has now
moved to dismiss the Complaint. According to the parties at the
motions hearing, discovery has not moved forward pending the
release of this opinion.
DISCUSSION
There are three motions presently before the Court. First,
Benning moves to expedite discovery. Second, Marlboro moves to
dismiss the Complaint for lack of subject-matter jurisdiction
under 12(b)(1) or, alternatively, to dismiss Count III of the
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Complaint for failure to state a claim upon which relief can be
granted under 12(b)(6). Third, Marlboro moves for a protective
order to shield its employees from being deposed.
I.
Motion for Expedited Discovery
On April 30, 2014, Benning moved to expedite discovery in
order to depose witnesses before the end of the academic term on
May 13, 2014. The Court denied the motion on May 8, 2014 because
Benning failed to show that the witnesses would be unavailable
after May 13, 2014. Order, ECF No. 12. On the same day, May 8,
2014, Benning again filed a motion for expedited discovery.
Presumably Benning filed the second motion before seeing the
Court’s order. Regardless, the Motion is now moot because the
term in question has passed. The Motion is therefore denied.
II.
Motion to Dismiss
Marlboro moves to dismiss the entire Complaint for lack of
subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). In the alternative, Marlboro moves to
dismiss Count III for failure to state a claim for defamation
pursuant to Rule 12(b)(6).
a. Motion to Dismiss under Rule 12(b)(1)
This case is in federal court on diversity grounds. Under
28 U.S.C. § 1332, federal courts have jurisdiction where the
parties are completely diverse and the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332(a)(1). Here, there is no
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dispute that there is complete diversity between the parties.
Marlboro argues that the Court lacks jurisdiction because the
amount in controversy does not meet the required statutory
minimum, $75,000. Def.’s Mot. Dismiss, 1.
In determining the amount in controversy, the Court
includes all claims brought against a single defendant. Hall v.
EarthLink Network, Inc., 396 F.3d 500, 507 (2d Cir. 2005).2 The
Court must dismiss a suit if it is clear to a legal certainty
that the plaintiff will not recover more than the statutory
minimum. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289 (1938). Any uncertainty should be “resolved in favor of
the plaintiff’s pleadings.” Tongkook America, Inc. v. Shipton
Sportswear Co., 14 F.3d 781, 785 (2d Cir. 1994).
Benning seeks damages for breach of contract, breach of the
covenant of good faith and fair dealing, and defamation. When
all of these claims are considered, Benning properly alleges
that damages will exceed $75,000.
Benning first seeks contract damages for Marlboro’s
“fail[ure] to comply with its policies governing student
2
Regardless of its outcome, Defendant’s 12(b)(6) motion to dismiss
Count III does not affect the amount in controversy determination
because the amount in controversy depends on the amount claimed in
good faith in the complaint. See Wolde-Meskel v. Vocational
Instruction Project Cmty Serv’s, Inc., 166 F.3d 59, 63 (2d Cir. 1999)
(“a valid defense offered by the defendant or summary judgment on one
of the complaints doesn’t lead to dismissal of the whole case because
it falls short of the amount in controversy”); see also Horton v.
Liberty Mutual Ins. Co., 367 U.S. 348, 353 (1961) (“amount in
controversy is [to be determined] from the complaint itself”).
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discipline in the event of sexual misconduct.” Compl. ¶¶ 47, 52.
The “relationship between a student and a college is contractual
in nature.” Knelman v. Middlebury Coll., 898 F. Supp. 2d 697,
708 (D.Vt. 2012) aff’d, 2014 WL 2808091 (2d Cir. 2014); see also
Fellheimer v. Middlebury College, 869 F.Supp. 238, 243 (D.Vt.
1994) (finding College “contractually bound to provide students
with the procedural safeguards it has promised”). Contract
damages restore the plaintiff to the “economic position he would
have been in had the defendant fulfilled his contract.” Adams v.
Lindblad Travel, 730 F.2d 89, 92 (2d Cir. 1984). Contract
damages measure lost value due to defendant’s breach, plus
incidental or consequential losses caused by the breach, less
any costs the plaintiff avoided by not performing. Rest.
(Second) of Contracts § 347.
Damages for Marlboro’s alleged breach of contract should
therefore measure the cost to Benning of Marlboro’s disciplinary
decision.3 Benning’s costs include lost earnings as a result of
the delay in graduation, expenses incurred during the
3
Benning claims that the price of Marlboro’s tuition reflects the
value of the education he expected to receive, and thus the cost of
Marlboro’s breach. Pl.'s Resp. to Def.’s Mot. Dismiss (“Pl. Resp.”),
ECF No. 15, ¶ 2. Marlboro responds that damages will not exceed
$75,000 because Benning has not yet paid tuition for the semesters of
his suspension.
The Court finds neither argument persuasive. If Benning does not
return to Marlboro, he loses $72,585 in educational value, but he also
avoids the cost of tuition by not performing. Because Benning has not
yet paid tuition, damages for a breach of contract should not depend
on the cost of tuition, but rather on the cost of delaying graduation.
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suspension, and the reputational and emotional cost of the
suspension. See Rest. (Second) of Contracts § 344(1)(a) (damages
“put [injured party] in as good a position as he would have been
in had the contract been performed”). Benning will likely
introduce an expert witness to testify that Benning would have a
greater earning potential with a timely college degree; over
time, damages for delayed graduation alone may amount to well
over $75,000.
In addition to contract damages, Benning also seeks damages
for defamation. Compl. ¶ 59. Damages for defamation in diversity
actions depend on the laws of the forum state. Imbrogno v.
Chamberlin, 89 F.3d 87, 89 (2d Cir. 1996). In Vermont, damages
for defamation have ranged from $40,000, Lent v. Huntoon, 470
A.2d 1162 (Vt. 1983) (employer wrote defamatory letter about
employee on company letterhead), to $350,000, Cooper v. Myer,
944 A.2d 915, 919 (Vt. 2007) (employee told third parties that
general manager was a thief and embezzler). Because the charges
of sexual assault underlying Benning’s defamation claim are very
serious, it is plausible that he could recover more than $75,000
in damages on this claim.
When both the contract claim and defamation claim are
considered, it is not clear “to a legal certainty” that he will
not recover more than the statutory minimum. St. Paul Mercury
Indem. Co. 303 U.S. at 289. Therefore, the Court accepts
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Benning’s good faith claim that compensatory and punitive
damages will exceed $75,000, particularly given that any
uncertainty must be resolved in favor of the complaint. Because
there is complete diversity in this case and the amount in
controversy exceeds $75,000, the Court has subject matter
jurisdiction under 28 U.S.C. § 1332. The Court therefore denies
the 12(b)(1) Motion to Dismiss for Lack of Subject Matter
Jurisdiction.
b. Motion to Dismiss Count III under Rule 12(b)(6)
Marlboro also moves under Rule 12(b)(6) to dismiss Count
III for failure to state a claim for defamation. In diversity
suits, the Court applies federal law to rules concerning the
“practice and procedure of district courts,” but applies the
Vermont law to substantive issues. Hanna v. Plumer, 380 U.S.
460, 464 (1965); Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). Therefore, the Court evaluates the Complaint under the
pleading standard set forth in the Federal Rules of Civil
Procedure and considers the elements of defamation according to
Vermont state law.
i. 12(b)(6) Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), the court
must dismiss a claim that fails to include “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (2009) (quoting
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At the
pleading stage, the Court accepts all factual allegations as
true. Twombly, 550 U.S. at 555.
Defamation claims are evaluated under Rule 8(a), which
requires that the plaintiff make a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a); Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d
659, 671-72 (S.D.N.Y. 2007) (defamation claims are not evaluated
under heightened pleading standard of Rule 9(b)). Rule 8 “calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of illegal[ity].” Twombly, 550
U.S. at 556. The complaint “need not specifically plead the
alleged defamatory words” but must provide the opposing party
with “sufficient notice of the communications complained of to
enable him to defend himself.” East Amherst Plumbing, Inc. v.
Thompson Slip Copy, 2013 WL 5442263 *9 (W.D.N.Y. Sept. 27, 2013)
(internal citations omitted) (dismissing complaint that failed
to identify content, publication, and lack of privilege).
ii. Defamation Claim
In Vermont, the required elements of a defamation claim
are: “(1) a false and defamatory statement concerning another,
(2) some negligence, or greater fault, in publishing the
statement, (3) publication to a third person, (4) lack of
privilege in the publication, and (5) some actual harm so as to
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warrant compensatory damages.” Crump, 576 A.2d at 446 (Vt. 1990)
(internal citations omitted). The principal allegation
underlying Benning’s defamation claim is that he “experienced
hostile encounters” with students and staff whose only sources
of information were Marlboro employees with “first-hand
knowledge of the proceedings.” ¶ 56. From this Benning infers
that Marlboro employees must have made false and defamatory
statements to students and staff. ¶ 41. However, Benning fails
to allege any specific facts that would identify a particular
defamatory statement, its speaker, its audience, or when it was
said. Because the Complaint does not allege a particular
statement, it necessarily fails to allege that a statement was
negligent, published, or unprivileged. As a result, Count III
cannot withstand Marlboro’s 12(b)(6) Motion to Dismiss.
A statement is defamatory if it lowers the subject in “the
estimation of the community.” Marcoux-Norton v. Kmart Corp., 907
F.Supp. 766, 778 (D.Vt. 1993). Benning’s Complaint alleges that
Marlboro employees made statements “that [Benning] did sexually
assault a female student,” and Benning maintains that he did not
sexually assault a female student. Compl., ¶ 55. Accepting that
anyone made a defamatory statement from these allegations would
be mere speculation, since Benning provides no details to
establish the context of the statement.
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Benning also fails to indicate how any alleged statement,
if made, was negligent. A person acts negligently in publishing
a defamatory statement by failing perform a “check or lack of
check as to [the statement’s] accuracy.” Marcoux-Norton, 907
F.Supp. at 779 (quoting Restatement (Second) of Torts § 580B
comment h). Benning alleges that Marlboro employees spoke “with
reckless disregard for [the statements’] truth.” Compl. ¶ 57. As
Benning fails to identify any specific statement, his allegation
of recklessness is conclusory.
The Complaint also fails to allege publication. Publication
requires speaking or writing to a third party. See Knelman, 898
F.Supp.2d at 723.4 Benning’s Complaint infers that members of the
Panel or Committee must have made statements to third parties,
but fails to identify those people. Cf. Pasqualini, 498
F.Supp.2d at 664 (Plaintiff properly alleged defamation by
identifying that defendant “circulated an e-mail regarding
plaintiff’s termination” that described “plaintiff as disloyal
and incompetent” and was “distributed to numerous individuals,”
including a named prospective employer.).
4
Although Benning’s Complaint claims that Marlboro’s decision will
“necessarily be republished” if Benning applies to another college, ¶
60, self-publication does not satisfy publication. See Knelman, 898 F.
Supp. 2d 697, 724 (D.Vt. 2012)(“the requirement of publication is
generally not met when a defendant publishes a statement directly to a
plaintiff, even if the plaintiff then publishes the statement to a
third party.”); see also De Leon v. St. Joseph Hosp., Inc. 871 F.2d
1229, 1237 (4th Cir. 1989) (“the theory of self-publication has not
gained widespread acceptance” in defamation cases.).
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Finally, because Benning fails to identify any specific
defamatory statement, it is impossible to determine whether
members of the community were privileged to know the content of
the unidentified statement. See Knelman, 898 F. Supp. 2d at 725
(quoting Restatement (Second) of Torts § 596)(privilege
established if speaker “reasonably . . . believe[d] that there
[was] information that another sharing [a] common interest [was]
entitled to know.”).
Because of these deficiencies, the Complaint does not
allege sufficient facts to provide Marlboro notice to prepare a
defense on the defamation claim. Count III thus fails to meet
the pleading requirements of Rule 8(a) and is dismissed without
prejudice. If Benning uncovers evidence of defamation during
discovery, he may move to amend the Complaint to re-allege
defamation.
III. Motion for a Protective Order
Marlboro also moves for a protective order to prevent
Benning from deposing Marlboro employees under the deliberative
process privilege. Def.’s Mot. Protective Order ¶ 5. The
deliberative process privilege is an exception to the
“fundamental principle that ‘the public . . . has a right to
every man’s evidence.” Univ. of Penn. v. E.E.O.C., 493 U.S. 182,
189 (1990) (quoting Trammel v. United States, 445 U.S. 40, 50
(1980)). The privilege exempts from the Freedom of Information
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Act “inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C.A. § 552(b)(5). The
exemption applies to government-produced, “predecisional,”
“deliberative” content. Hopkins v. H.U.D., 929 F.2d 81, 84 (2d
Cir. 1991); see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S.
132, 150 (1975) (covering materials that are “part of a process
by which governmental decisions and policies are formulated.”).
Marlboro argues that the deliberative process privilege
should shield members of the Panel and Committee from deposition
because the Panel and Committee are analogous to government
entities. Def.’s Mot. Protective Order, ¶ 5. Marlboro further
suggests that deposing Panel and Committee members would chill
the “type of robust debate necessary” to make fair decisions.
Id. at ¶ 6
However, the deliberative process privilege does not apply
to Marlboro College because the College is not a government
entity. See New York City Managerial Employee Ass’n v. Dinkins,
807 F. Supp. 955, 957 (S.D.N.Y. 1992) (“The purpose of the
privilege is to ensure that the quality of government decisions
is not compromised by subjecting all government discussion to
public scrutiny”); see also Hopkins, 929 F.2d at 84
(deliberative process privilege sometimes known as “executive
privilege.”). In fact, the Supreme Court refused to apply the
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deliberative process privilege to another private college, the
University of Pennsylvania, when the University moved to shield
peer review files from the Equal Employment Opportunity
Commission. Univ. of Penn. v. E.E.O.C., 493 U.S. 182 (1990). The
Court warned that extending the privilege to private entities
would “embark the judiciary on a long and difficult journey to .
. . an uncertain destination,” id. at 588, and wrote, “indeed,
if there is a ‘smoking gun’ to be found that demonstrates
discrimination in tenure decisions, it is likely to be tucked
away in peer review files,” id. at 193. Although Marlboro’s
motion highlights similarities between the Panel, the Committee,
and the government, the motion cites only cases where the
privilege applied to executive agencies. See, e.g., Hopkins, 929
F.2d 81 (applying privilege to Department of Housing and Urban
Development); Ad Hoc Metals Coalition v. Whitman, 227 F. Supp.
2d 134 (D.D.C. 2002) (Environmental Protection Agency).
Applying the deliberative process privilege to a faculty
deliberation at Marlboro College would significantly expand the
privilege’s scope. Moreover, if there is a “smoking gun,” a
reason that the Panel or Committee overlooked exculpatory
evidence, Benning would discover that information by deposing
Panel and Committee members. Finally, the Court is not concerned
that allowing discovery will chill the “robust debate” necessary
to make thoughtful disciplinary decisions that follow the
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procedures outlined in the College’s student handbook.
Therefore, the Court denies the Motion for a Protective Order.
CONCLUSION
The Court denies the Motion for Expedited Discovery as
moot. The Court also denies the 12(b)(1) Motion to Dismiss for
Lack of Subject Matter Jurisdiction because the plaintiff has
claimed damages in excess of $75,000, but grants the 12(b)(6)
Motion to Dismiss Count III for Failure to State a claim because
the Complaint failed to allege defamation with sufficient facts.
Count III is therefore dismissed without prejudice. Finally, the
Court denies the Motion for a Protective Order because Marlboro
is not a government entity.
DATED at Burlington, in the District of Vermont, this 5th
day of August, 2014.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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