Elizabeth K. Dillon, United States District Judge.
In this action, plaintiff Federica Facchetti asserts claims against Bridgewater College, the college she attended for one year as a foreign exchange student; several of its employees; and a fellow student who sexually assaulted her in her on-campus dorm room after she allowed him to stay there while she slept. The case was originally filed in the Southern District of New York, and that court transferred it upon defendants' motion.
This opinion addresses two pending motions. The first is a motion to dismiss filed collectively by Bridgewater College and the employee defendants. (Dkt. No. 72.) The second is Facchetti's "cross-motion" for leave to file an amended complaint. (Dkt. No. 80.) The motions have been fully briefed and were argued before the court on November 16, 2015. For the reasons set forth below, the motion to dismiss will be granted, and Facchetti's motion for leave to file an amended complaint will be granted in part and denied in part.
The facts below are based on Facchetti's complaint and, where applicable, her proposed amended complaint, because the court accepts the well-pleaded, nonconclusory factual allegations in the complaint as true when ruling on a motion to dismiss. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.2011); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008). Facchetti's claims stem from a February 5, 2014 incident in which a fellow student, defendant Tyler Vest, sexually assaulted her. At the time of the assault, Facchetti, who is from Italy, was a foreign exchange student at Bridgewater. According to the complaint, the assault occurred in Facchetti's on-campus dormitory at Bridgewater, after she had invited Vest, whom she met in the fall of 2013, to join her there.
After Vest arrived and the two talked for a while, she told him she was tired and needed to go to sleep. She apparently did so, and it is not clear whether Vest was also sleeping in her bed or just present in the room while she slept. Facchetti alleges that, at about 1:00 a.m., Vest became sexually aroused and was physically and sexually aggressive toward her. Both remained fully clothed during the assault, but Vest began fondling Facchetti's breasts, genitals, and buttocks. She immediately instructed him to stop. Despite her instructions, he continued to act in a sexually aggressive way and, at one point, grabbed her arms and attempted to force her to touch his penis. Facchetti made attempts to get away from Vest, but he continued to engage in the aggressive behavior by forcing her to lie down on her bed while he lay on top of her in an attempt to engage in sexual intercourse. He held her down by pinning her arms to the bed, straddling on top of her. She told him she could not breathe, but he just laughed. (Compl. ¶¶ 29-32, Dkt. No. 1.)
After several minutes, he got up, but then became angry with her because she would not engage in sexual activity with him. He said that she was annoying him and that "he came to her room for nothing." Shortly thereafter, he began rubbing her leg and touching her vaginal area, and she again instructed him to stop touching her. He finally stopped, saying "If you want me to stay here, you have to give me a blow job." When she refused, he left. (Id. ¶¶ 33-34.)
Facchetti first reported the assault to the Bridgewater Campus Police in early May 2014, after receiving several months
Despite this discipline, Facchetti claims Bridgewater's response constituted deliberate indifference and that Bridgewater tried to conceal the assault against her or "sweep it under the rug." For support, Facchetti focuses on Bridgewater's investigative and disciplinary processes, pointing to a number of ways in which Bridgewater did not follow its own sexual misconduct policy. (Id. ¶¶ 46-49.) Most of the acts and omissions she attributes either to Picerno or Crystal Lynn, Bridgewater's Title IX coordinator. In general terms, Facchetti claims that Bridgewater failed to: (1) conduct a full investigation; (2) allow her to review submissions by Vest; (3) provide written notification of the determination of administrative review; and (4) distribute a written decision letter to her after the hearing, thereby making it impossible for her to appeal any decision. She also claims that she was not advised of her right to submit additional information in advance of the hearing, was not permitted to be present during the hearing, was not permitted to respond to any testimony regarding any alleged sexual or romantic history between her and Vest as set forth in the policy, and was not permitted to present witnesses. (Id.)
Facchetti further alleges that Lynn and Bridgewater failed to make her aware of her Title IX rights, including the possibility of changes in housing or academic and extracurricular activities, and her right to report a crime to campus or local law enforcement. (Id. ¶ 48(c).) She complains that, despite Vest's admission that he sexually assaulted her, Bridgewater itself "failed to properly report the sexual assault" to the town police and other appropriate government agencies and entities. And she claims that she was discouraged from making any report to the town police by the campus police and Picerno. (Id. ¶ 48(e).) She also alleges that the hearing officers were not properly trained and that the hearing panel included two students, which she deems "outrageous." (Id. ¶ 48(q).) Finally, she complains that the discipline imposed on Vest was insufficient, and that allowing Vest to later return to Bridgewater "placed its students in imminent danger and inhibited their ability to obtain the benefits of the education to which they are entitled under Title IX." (Id. ¶ 45(r).)
Facchetti also relies heavily on her allegation that Bridgewater's public records show that there were five sexual assaults in on-campus dorms in 2013. She does not offer any additional detail about those assaults or Bridgewater's response to them. But she submits that Bridgewater's deliberate indifference to those attacks made her more vulnerable to the attack here. Based on this, she seeks to hold Bridgewater
Facchetti was supposed to be at Bridgewater for only one year. (Id. ¶ 19.) That year ended shortly after she made her report and — consistent with her plans — she apparently did not return thereafter. She claims that she suffered physical injuries (bruising and shortness of breath) during the assault, and that she continues to experience severe emotional harm as a result of the incident.
Facchetti's original complaint contains the following counts and claims:
(See generally Compl.)
In her proposed amended complaint, Facchetti seeks to: (1) add claims of intentional infliction of emotional distress against Picerno and Lynn; (2) include additional detail concerning her injuries; and (3) amend her Title IX claim so that it is asserted only against Bridgewater. (Pl.'s Mot. for Leave to Amend 3, Dkt. No. 81; Proposed First Am. Compl., Dkt. No. 81-1.)
The pending motion to dismiss seeks dismissal on behalf of Bridgewater and its employee defendants, pursuant to Federal Rule of Civil Procedure 12(b)(6).
As to Facchetti's motion for leave to file an amended complaint, defendants oppose her attempt to add claims of intentional infliction of emotional distress against Lynn and Picerno. (Defs.' Mem. in Opp'n to Pl.'s Mot. for Leave to Amend 1,
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff's allegations must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard "requires the plaintiff to articulate facts, when accepted as true, that `show' that the plaintiff has stated a claim entitling him to relief, i.e., the `plausibility of entitlement to relief.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The plausibility standard requires more than "a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
In determining whether the plaintiff has met this plausibility standard, the court must accept as true all well-pleaded facts in the complaint and in any documents incorporated into or attached to the complaint. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.2007). Further, it must "draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor," Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it need not "accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302.
Before turning to the merits of the motion to dismiss, the court must first determine which documents and other extrinsic materials, if any, it may consider in ruling on the motion. At this stage, a court should generally focus its "inquiry on the sufficiency of the facts relied upon by the plaintiff[ ] in the complaint." Zak v. Chelsea Therapeutics Int'l, Ltd, 780 F.3d 597, 606 (4th Cir.2015). Thus, a court is "limited to considering the sufficiency of allegations set forth in the complaint and the `documents attached or incorporated into the complaint.'" Id. (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc, 637 F.3d 435, 448 (4th Cir.2011)). If a court goes beyond these documents during the pleading stage, then it "improperly converts the motion to dismiss into a motion for summary judgment." Zak, 780 F.3d at 606. "Such conversion is not appropriate where the parties have not had an opportunity for reasonable discovery." Kolon, 637 F.3d at 448.
There are exceptions to this general rule, however. For example, the court may consider a document outside the complaint, without converting the motion into a summary judgment motion, if the document "was integral to and explicitly relied on in the complaint," and there is no challenge to its authenticity. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.1999)); see also Sec'y of State for Defence, 484 F.3d at 705.
The parties urge the court to consider specific, albeit different, documents
During the hearing, the court asked counsel to clarify the parties' respective positions as to which documents the court could consider. Bridgewater's counsel argued that the only extrinsic document the court should consider is a document that Facchetti filed as part of her opposition to the motion to dismiss. (Defs.' Mot. to Dismiss Ex. C, Dkt. No. 73-3.) Facchetti's counsel argued that the only document the court should consider is Facchetti's declaration.
The court has carefully weighed the propriety of considering these documents and concludes that it will not consider any of them, particularly in the absence of any agreement by the parties that it is proper to do so. There are two main reasons for the court's decision. First, it is unclear whether any of the documents squarely meets the requirements for consideration at the motion-to-dismiss stage. Second, regardless of whether the court considers all, some, or none of the documents, its ruling would remain the same. Accordingly, the court will err, if at all, on the side of being underinclusive.
The court turns next to Bridgewater's motion to dismiss the Title IX claim. To recover damages under Title IX in a case of peer-on-peer harassment, the plaintiff must show that "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures ... has actual knowledge of discrimination and fails to adequately respond." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998); see also Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 671, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (applying the Gebser standard in the context of student-on-student harassment).
In addition to the actual notice requirement, a Title IX plaintiff must show that the defendant's response to the third-party harassment was so inadequate as to constitute "deliberate indifference"; mere
The Supreme Court made clear in Davis that Title IX liability is limited to circumstances where the school "exercises substantial control over both the harasser and the context in which the known harassment occurs." Id. at 645, 119 S.Ct. 1661. In other words, "[a] recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action." Id. at 644, 119 S.Ct. 1661. Further, "the deliberate indifference must, at a minimum `cause [the plaintiff] to undergo' harassment or `make [her] liable or vulnerable' to it." Id. at 644-45, 119 S.Ct. 1661 (citations omitted).
The Davis court also expressly recognized that deliberate indifference could be decided on a motion to dismiss. Id. at 649, 119 S.Ct. 1661 ("In an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not `clearly unreasonable' as a matter of law."). As discussed next, the court concludes that this is an appropriate case where the court can say, as a matter of law, that the response was "not `clearly unreasonable.'" See id.
In its motion to dismiss, Bridgewater focuses almost exclusively on its conduct after Facchetti reported the assault, so the court addresses that period first. As alleged in the complaint, Facchetti reported the assault to campus police in early May, and within days, campus police had interviewed Vest. After Bridgewater officers obtained Vest's confession, Bridgewater "suspended [Vest] for a short period of time." (Compl. ¶ 48(r).) While Facchetti complains that Bridgewater did not follow its own policy, and that she was not kept advised about the hearing that was held, or given written notice of the discipline against Vest, she admits that her complaint was not ignored and that Bridgewater quickly interviewed Vest, held a hearing, and took disciplinary action against him. This conduct by Bridgewater simply does not amount to "deliberate indifference."
Even in her response to the motion to dismiss, Facchetti repeatedly questions whether the college's response was reasonable or proper, but that is not the correct standard. Instead, Bridgewater's response must have been "clearly unreasonable" to trigger liability. Facchetti emphasizes that Bridgewater — and Picerno and Lynn, in particular — discouraged her from reporting the assault to the police, failed to advise her of the rights available to her, and failed to allow her to present witnesses, and to otherwise keep her involved and advised of the disciplinary process, all in violation of its own Title IX policy. She also argues that the disciplinary sanction imposed was not sufficient.
First, a Title IX defendant's failure to comply with its own policy does not prove deliberate indifference, under clear Supreme Court precedent. Gebser, 524 U.S. at 291-92, 118 S.Ct. 1989; Doe v. Bd. of Educ. of Prince George's Cty., 982 F.Supp.2d 641, 657 (D.Md.2013) (citing Gebser for the proposition that "the failure to follow sexual harassment grievance procedures does not prove deliberate indifference under Title IX"). Moreover, any contention that Bridgewater tried to minimize the conduct or to sweep it under the rug is a mere conclusory label, particularly where the complaint also alleges that, upon receiving her complaint, an investigation occurred, a hearing was held, and Vest was suspended.
Second, there is ample authority holding that neither a school's negligence in addressing a sexual assault, nor its failure to provide the remedy wanted by the victim, constitutes deliberate indifference under Title IX. See, e.g., KF v. Monroe Woodbury Cent. Sch. Dist., 531 Fed.Appx. 132, 134 (2d Cir.2013) (concluding that a school was not deliberately indifferent when it refused to allow a high school student to transfer to another district — the remedy the parents sought — where it offered placement at a behavioral-problem high school once it learned of prior abuse and there was "no charge that the school unreasonably delayed its response or failed to prevent future harassment"); Ostrander v. Duggan, 341 F.3d 745, 751 (8th Cir. 2003) (holding that, after female student reported to university that she was drugged and raped by a member of a fraternity, the university's decision not to impose sanctions on the fraternity was not "clearly unreasonable" where it informed the chapter advisor of the report and wrote to the fraternity's national president, conveying the "expectation" that the local chapter of the fraternity would investigate); Doe, 982 F.Supp.2d at 657-58 (noting that Title IX plaintiffs lack the "right to make particular remedial demands" (citing Davis, 526 U.S. at 648, 119 S.Ct. 1661)), aff'd 605 Fed.Appx. 159 (4th Cir. 2015); Schaefer v. Las Cruces Public Sch. Dist., 716 F.Supp.2d 1052, 1069 (D.N.M. 2010) (dismissing Title IX claim based on lack of deliberate indifference because the school's response, even if negligent, was not "clearly unreasonable" and reasoning that liability cannot attach where the defendant "responds to reports of student-on-student sexual harassment, but simply does not do enough to stop the problem").
Further, Facchetti's allegations of deliberate indifference pale in comparison to other cases where a plaintiff's Title IX claim has survived dismissal or summary judgment. Most often, those cases involved allegations of complete inaction in the face of known harassment. See, e.g., Jennings v. Univ. of N.C., 482 F.3d 686, 701 (4th Cir.2007) (en banc) (holding that deliberate indifference was a jury issue where the evidence showed that a university administrator's response to a student's detailed complaint of extensive and pervasive sexual harassment by her soccer coach was to tell the student the coach was a "great guy" and that she should "work out her problems directly with him," and where
In light of the facts alleged, the discipline imposed, even if negligent, was not "clearly unreasonable." Thus, deliberate indifference is not adequately pleaded as to the period after Facchetti was assaulted.
In her response to the motion to dismiss, Facchetti contends that "the rampant, prior sexual assaults occurring on its campus of which Bridgewater was fully aware made plaintiff more vulnerable to being sexually assaulted by Vest." (Pl.'s Opp'n to Mot. to Dismiss 17, Dkt. No. 79; see also id. at 18 (referring to Bridgewater's knowledge of "the epidemic of sexual assaults occurring in its on-campus housing" and its "ability to attempt to remedy such heinous acts but fail[ure] to do so.") She thus relies on Bridgewater's alleged deliberate indifference to the prior attacks to establish her Title IX claim. (Id. at 13-14 (citing Lopez v. Metro. Gov't, 646 F.Supp.2d 891, 917-18 (M.D.Tenn.2009), as recognizing that Title IX liability can flow from a school exhibiting deliberate indifference before a harassing attack that makes the student more vulnerable to the attack itself).)
Facchetti cites to a number of cases for the proposition that prior harassing conduct need not be "plaintiff specific" or involve the same perpetrator that assaulted the plaintiff for a university's deliberate indifference to prior complaints to result in Title IX liability. (Dkt. No. 79 at 17-18.) In the Fourth Circuit, though, there is a requirement that the defendant have actual notice of harassment against the plaintiff. Specifically, in Baynard v. Malone, 268 F.3d 228, 237-38 (4th Cir.2001), the court noted that the school's principal should have been aware of the potential for abuse by the teacher because the principal had received information before the abuse that
Facchetti does not cite to Baynard in her papers, let alone attempt to distinguish it. Instead, she cites to a number of cases from other circuits that either: (1) conclude that notice of prior harassment by the same perpetrator was sufficient notice, see, e.g., Roe v. Gustine Unified Sch. Distr., 678 F.Supp.2d 1008, 1030 (E.D.Cal.2009) (collecting cases); or (2) adopt an even broader test, allowing "actual knowledge" of the harassment to be based on knowledge of similar types of harassment, even if the past harassment was not committed by the same perpetrator or against the same plaintiff, see, e.g., Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1173, 1177 (10th Cir.2007);
Under the more stringent test of Baynard, the notice here is plainly insufficient to impose liability on Bridgewater. There
For all of these reasons, the court will dismiss Facchetti's Title IX claim against Bridgewater.
Bridgewater also moves to dismiss the premises liability claim against it. A premises liability claim is a species of negligence claim, and thus "the factual allegations must establish the existence of a duty of care." Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 540 S.E.2d 134, 139 (2001). "Whether such duty exists is `a pure question of law.'" Id. (quoting Burns v. Johnson, 250 Va. 41, 458 S.E.2d 448, 451 (1995)).
Virginia strictly limits the circumstances in which a defendant has a duty to warn or protect another from the criminal acts of a third party. The general rule is that "a person does not have a duty to protect another from the conduct of third persons." Burns v. Gagnon, 283 Va. 657, 727 S.E.2d 634, 641 (2012) (citations omitted). The rule applies with particular force "when the third person commits acts of assaultive criminal behavior because such acts cannot reasonably be foreseen." Id. (quoting Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419, 420 (1992)). There are exceptions to this rule, though, including where "a special relation exists ... between the defendant and the plaintiff which gives a right to protection to the plaintiff." Burns, 727 S.E.2d at 641-42 (quoting Burdette, 421 S.E.2d at 420).
In Commonwealth v. Peterson, 286 Va. 349, 749 S.E.2d 307 (2013), the court explained that, where a special relationship does exist, "the degree of the foreseeability of harm that the plaintiff must establish depends on the nature of the special relationship." Id. at 311. There "are two levels of foreseeable harm: known or reasonably foreseeable harm, ... and `imminent probability of harm,'" which exists where a defendant knows that criminal assaults against persons are occurring, or about to occur, on the premises," based upon "notice of a specific danger just prior to the assault." Id. at 312 (citing Thompson v. Skate Am., Inc., 261 Va. 121, 540 S.E.2d 123, 127 (2001)). The "imminent probability" standard of foreseeability is applied in relationships like landlord/tenant and business owner/invitee. Id. at 312. The heightened duty to warn when the danger of third party criminal acts is "known or reasonably foreseeable" is imposed in certain other special relationships, such as innkeeper/guest, carrier/passenger, and employer/employee. Id. at 311-12. In Peterson, the court assumed, without deciding, that a special relationship existed between a university and its students, but concluded that the university had no duty to warn students from the criminal acts of a mass shooter on campus because those acts were not foreseeable under either standard. Id. at 313.
The parties here disagree over the nature of the special relationship, if any, between a college and its students. Bridgewater argues that its relationship with Facchetti here was akin to that of a landlord and tenant. (See Defs.' Br., Dkt. No.
The Wilson court reasoned that the relationship between a college or university and its resident dormitory student "is not identical or perceived to be the same relationship between a landlord and tenant in the ordinary course of business" and instead that a "student living in a college dormitory should reasonably expect a greater degree of protection from [his college] than would a tenant who leases residential property from a landlord in the open market." Id. Notably, though, the Wilson court did not cite to any authority for that proposition, id. nor has it been cited by any other case for that proposition, and its holding is not binding on this court. Cf. United States v. Little, 52 F.3d 495, 498 (4th Cir.1995) (discussing the circumstances under which the holding of a state's intermediate appellate court must be followed by federal courts).
Facchetti also seeks support in the following language from DiGiacinto v. Rector & Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365, 370 (2011): "Parents who send their children to a university have a reasonable expectation that the university will maintain a campus free of foreseeable harm." To support this proposition, the DiGiacinto court cited to Schieszler v. Ferrum College, 236 F.Supp.2d 602, 606-10 (W.D.Va.2002), and Hartman v. Bethany College, 778 F.Supp. 286, 291 (N.D.W.Va.1991), and the plaintiff relies on these cases as well. None of these cases, however, supports a plausible claim of premises liability against Bridgewater under the facts here.
As for the quoted statement in DiGiacinto, it has no bearing on the circumstances here. In that case, the Supreme Court of Virginia was not addressing whether a university could be held liable for a third party's tortious acts against a student, but whether the university could constitutionally prohibit a non-student from carrying a firearm into certain areas of campus. The quotation appears in the context of discussing the General Assembly's recognition that a university is a "sensitive place" and a setting different from "a public street or park" that has traditionally been open to the general public. Id. DiGiacinto does not speak to the issues here.
The two cases cited by DiGiacinto, while at least on topic, do not suggest that Bridgewater would have a duty to protect on the facts here. The first, Hartman, involved a 17-year-old college student who went to an off-campus bar, was drinking alcohol, and was subsequently assaulted by two men she had met at the bar. 778 F.Supp. at 289, 291. The court rejected any claim that her college breached any duties owed to the student and concluded that the college did not stand in loco parentis to the student. Id. at 294. In concluding that the college owed no duty to warn or protect the plaintiff, the court distinguished the facts before it from other cases, in which a duty was found to exist after a student was assaulted by a third party on campus grounds. Id. at 291. It cited to these cases from other jurisdictions — albeit none from Virginia — for the proposition
The second case cited by the DiGiacinto court, Schieszler, discussed the precise issue of whether a special duty is owed by a college to its students under Virginia law. 236 F.Supp.2d 602. There, after conducting a survey of Virginia and other states' laws, the court concluded that it was "unlikely that Virginia would conclude that a special relationship exists as a matter of law between colleges and universities and their students," but nonetheless concluded that a special relationship might exist on the particular facts alleged there. Id. at 609 (emphasis added).
In Schieszler, a full-time student, living in an on-campus dormitory, committed suicide. Prior to his suicide, the defendants were aware that the student had emotional problems, and in fact they had required him to seek anger management counseling before permitting him to return to school for a second semester. Id. at 605. Days prior to his death, campus police had left him alone in his room after finding him with self-inflicted bruises on his head, id. at 610, and knew that he had sent a message to his girlfriend, and others at the same time, stating that he intended to hang himself. Id. at 605. In response, the defendants had required him to sign a statement that he would not hurt himself. Id. The court reasoned that all of these facts could give rise to a duty to protect the student from the foreseeable danger that he would hurt himself. Id. at 610.
Much like the Schieszler court, this court is unsure whether Virginia would impose, as a matter of law, a heightened duty on a college to warn or protect its students from a third party's tortious acts on campus. But even assuming that the relationship between Bridgewater and Facchetti is akin to that of an innkeeper/guest, the duty imposed is one to protect from "known or reasonably foreseeable" risks. And Facchetti's allegations do not plausibly allege that the risk of Vest assaulting her in her dorm room was either "known" or "reasonably foreseeable" by Bridgewater. Indeed, the Peterson court summarized that "[i]n only rare circumstances has this Court determined that the duty to protect against harm from third party criminal acts exists" in this context, id. at 312, and it cited a single case — Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006).
In Taboada, the plaintiff was a hotel guest who was assaulted and shot in a hotel parking lot. Id. The Supreme Court of Virginia held that the plaintiff had stated sufficient facts to support his claim that the hotel owed a duty to protect him from the criminal conduct of a third party. Id. at 435. The motion for judgment in the case alleged that, nearly 100 times in the preceding three years, the hotel had called the police department to report the presence of trespassers who refused to leave and other criminal activity in the parking lot, including larcenies, disorderly persons, suspected drug offenses, robberies, malicious woundings, and shootings. Id. It further
Much like the other cases discussed above, Taboada does not require the imposition of a duty here, because the duty remains a duty to protect from reasonably foreseeable harm. Five assaults in the prior year in the dormitories of a college — even a small one, such as Bridgewater — is not the equivalent of 100 calls to the police in three years about possible criminal activity in the same parking lot. The five assaults, none of which are alleged to have been perpetrated by Vest, simply do not create the same level of foreseeability of harm. Cf. Peterson, 749 S.E.2d at 312 (recognizing that Taboada was one of the rare cases where the harm was reasonably foreseeable).
Similarly, this case is a far cry from Schieszler, where the college had notice of prior, recent suicide attempts by the same student Again, there is no allegation that Vest had previously assaulted anyone. And so while it may be generally foreseeable — as well as unfortunate and troubling — that sexual assaults occur on college campuses, including Bridgewater's, that general risk does not translate into a "reasonably foreseeable" risk that Vest would assault Facchetti.
Further, it is unclear how Facchetti could plausibly establish causation here, particularly where she invited Vest to her room and invited him to stay while she slept. Under those circumstances, and in the absence of any allegation in the complaint that Vest had previously committed any sexual assault, it is unclear what steps the college could have taken to protect Facchetti from attack. For all of the foregoing reasons, the court concludes that Facchetti has not adequately pleaded a negligence claim against Bridgewater. Accordingly, the court will grant Bridgewater's motion to dismiss that claim.
Defendants also argue that Facchetti's proposed amended complaint fails to state a claim for intentional infliction of emotional distress against Picerno or Lynn and that leave to amend should thus be denied. "The court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). A district court may deny leave to amend, however, under certain circumstances, including where "the amendment would [be] futile." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.2006) (en banc) (citation omitted). A proposed amendment is futile when it "is clearly insufficient or frivolous on its face" and thus would be subject to dismissal. Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir.1986). Here, amendment would be futile because the claims that Facchetti proposes to add are clearly insufficient under Virginia law.
To prevail on an intentional infliction of emotional distress claim, a plaintiff must prove, by clear and convincing evidence, that: (1) "the wrongdoer's conduct is intentional or reckless," (2) "the conduct is outrageous and intolerable," (3) "the alleged wrongful conduct and emotional distress are causally connected," and (4) "the distress is severe." Fuller v. Aliff, 990 F.Supp.2d 576, 580 (E.D.Va.2013) (citing
Furthermore, intentional infliction of emotional distress claims are not favored under Virginia law. Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir.2001). The Barrett court explained:
240 F.3d at 269.
In evaluating Facchetti's proposed claims, the court agrees with defendants that the claims would be subject to dismissal because Facchetti does not allege conduct by Picerno or Lynn sufficient to satisfy the second element of the tort — "outrageous and intolerable" conduct. See Crittendon v. Arai Americas, Inc., No. 2:13-cv-567, 2014 WL 31490, at *6 (E.D.Va. Jan. 3, 2014) (dismissing intentional infliction of emotional distress claim and noting that the second prong, requiring outrageous and intolerable conduct, "is seldom met by plaintiffs under Virginia law").
In emotional distress cases, "liability has been found only where the conduct has been so outrageous in character, and so outrageous in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Fuller, 990 F.Supp.2d at 580 (quoting Russo, 400 S.E.2d at 162); see also Coles v. Carilion Clinic, 894 F.Supp.2d 783, 796-97 (W.D.Va.2012) (holding that plaintiff's allegations failed to establish conduct sufficiently "severe and outrageous" to support an emotional distress claim, where fellow employees frequently referred to him as a drug dealer and by using the N-word, and where he was subjected to the display of shackles and a noose in the workplace, and also subjected to references to the Ku Klux Klan and lynching); Webb v. Baxter Healthcare Corp., No. 94-1784, 1995 WL 352485, at *6 (4th Cir. June 13, 1995) (concluding that the plaintiff's allegations that she was repeatedly ridiculed based on her gender, religion, and disability were insufficient to state a claim for emotional distress under Virginia law).
Facchetti's allegations against both Picerno and Lynn fail to plausibly satisfy this stringent requirement. She alleges that Picerno "intentionally discouraged, dissuaded and otherwise intimidated [her] from reporting" the assault to the local Bridgewater police, that he "told her that it would be harder to go to the local police and more complex," and that he "indicated that she would have to answer personal questions about the assault and suggested that the incident would become public knowledge." (Proposed First Am. Compl., ¶ 107.) She also alleges that he should have reported the incident himself, but that he did not, and that he failed to report it in order to "conceal it from the public." (Id. ¶¶ 45(d)-(e), 108.) These allegations are plainly insufficient under the case law discussed above to amount to "outrageous and intolerable" conduct.
Facchetti's allegations against Lynn are similarly infirm. As alleged by Facchetti, Lynn's conduct consists of negligence and failures or omissions, rather
For all of the foregoing reasons, the court will grant the motion to dismiss in its entirety. The court will deny the motion to amend to add new claims as futile, but will otherwise allow amendment. This will result in the dismissal of the Title IX claim against all defendants and the premises liability claim against Bridgewater, leaving only the state law claims against Vest.
