JOSEPH C. SPERO, Chief Magistrate Judge.
Plaintiff Morteza Benjamin Ray Karimi, a law student proceeding pro se, brought this action against Defendants Golden Gate University School of Law ("Golden Gate") and Anthony Niedwiecki, Dean of Golden Gate, asserting diversity jurisdiction for state law claims of breach of contract, defamation, and intentional infliction of emotional distress. Defendants placed Karimi on interim suspension in September of 2017 and provided him with a formal disciplinary complaint on December 1, 2017. Karimi now moves for a preliminary injunction and temporary restraining order requiring Defendants to refund his tuition and barring Defendants from proceeding with disciplinary action against him. The Court held a hearing on April 20, 2018. For the reasons discussed below, Karimi's motion is DENIED.
Golden Gate is a private, nonprofit law school located in San Francisco, California and accredited by the American Bar Association and other organizations. Niedwiecki Decl. (dkt. 25) ¶¶ 6-7. Karimi relocated his family from China to the United States to attend law school at Golden Gate in the fall of 2017. Karimi Decl. (dkt. 18) ¶ 3; Niedwiecki Decl. ¶ 18. Classes began on August 14, 2017. Niedwiecki Decl. ¶ 20.
Karimi states that he was harassed by another student in his torts class on August 18, 2017. Karimi Decl. ¶ 13. The student, who was sitting behind Karimi, told him to put his hand down, but Karimi left his hand up and asked the professor if it was acceptable to ask questions, and the professor responded that it was. Id. The student behind Karimi then "cursed and threatened [him] in a low voice." Id. According to the allegations of Karimi's complaint, the student said, "`You punk mother fucker . . .' to which the rest was not heard clearly by [Karimi]." Compl. (dkt. 1) ¶ 17. Karimi left the class immediately in fear and met with Associate Dean of Student Support Jessica Bride and a security guard, telling them that he felt unsafe and wanted the other student to stay away from him. Karimi Decl. ¶ 13. He later sent an email to his professor apologizing for leaving early and stating that he "didn't feel safe" because the student behind him "told [him] to put [his] hand down and not ask questions," and then "cursed at [him]," and Karimi "had to leave and report it." Reply (dkt. 32) Ex. 12.
Bride said she would speak with the other student and suggested that Karimi change seats, which he did, but another student next to his new seat asked the professor to assign Karimi to a different seat. Karimi Decl. ¶ 13; see also Reply Ex. 13 (email from Karimi to Bride agreeing to change seats and requesting that the student who cursed at him avoid him in the future); Reply Ex. 14 (email from Bride to Karimi confirming that she had spoken to the student who cursed at him). Karimi expressed frustration to the professor, and Bride told Karimi that the student who had cursed at Karimi would move and Karimi could return to his original seat. Karimi Decl. ¶ 13. Later, that student joined a conversation that Karimi was part of in the library without invitation and interrupted Karimi, and Karimi "reported the incident to Bride and was increasingly concerned with [his] safety." Id.; see also Reply Ex. 15 (email from Karimi to Bride).
When a professor canceled class on the Friday before Labor Day weekend, which was September 1, 2017, at the request of some students, Karimi unsuccessfully requested that the class be reinstated. Karimi Decl. ¶ 14. Some students supported Karimi's view that the class should not have been canceled. Reply Ex. 28. According to Niedwiecki, the decision to cancel class fell within the discretion of that professor. Niedwiecki Decl. ¶ 21. Karimi contacted Golden Gate's student support services and threatened to file a complaint with the American Bar Association and demand reimbursement if the class was not reinstated. Niedwiecki Decl. ¶ 21. Karimi also sent emails to the class asking "for students not to request the professor to cancel classes arbitrarily[,] not to promote their student groups or bid for student elections during class time," and not to "talk about personal stories or any other irrelevant topics during class time." Karimi Decl. ¶ 14. An email that he sent to his classmates at 4:52 AM on Saturday, September 2, 2017, read in part as follows:
Niedwiecki Decl. ¶ 22; Defs.' Ex. B.
Karimi's professor, after apparently discussing the issue in class, sent Karimi the following email on September 8, 2017:
Reply Ex. 18.
Niedwiecki and others informed Karimi that the professor had discretion to cancel class, and Niedwiecki stated in an email that there was more classroom time on the schedule than was required under Golden Gate's rules, specifically so that professors could cancel some classes in their discretion. Niedwiecki Decl. ¶ 24; Reply Ex. 5. Niedwiecki states in his declaration that he also "informed [Karimi] directly that he was not to use the email system known as `TWEN' or any other tool to email his classmates," and Karimi agreed not to. Id. ¶ 26. A confirmation email that Niedwiecki sent to Karimi on September 12, 2017 states only that Karimi had agreed not to use TWEN, without mention of other methods of emailing the class. Defs.' Ex. D; Reply Ex. 3. An email that Niedwiecki sent on September 14 asked Karimi not to "use TWEN or any other tools to email [his] fellow students for any of [his] classes." Defs.' Ex. E; Reply Ex. 4. It is not clear whether Karimi sent any emails to his classmates between when he received the September 14 email and his suspension later that day.
On September 6, 2017, Karimi sent an email to his classmates beginning: "Dear class, Please stick to class topics, do not waste time with your personal stories or other irrelevant discussions. This is a law school not the Oprah Winfrey show." Defs.' Ex. F. The email went on to suggest that Karimi's classmates file complaints regarding the canceled class, and included links to a number of articles discussing Golden Gate students' low rate of passage of the California Bar Examination and a lawsuit against the school, as well as an internet forum post indicating that Golden Gate had been placed on probationary status by the American Bar Association. Id. On September 7, 2017, Karimi sent an email to his professor and classmates reading in part as follows:
Defs.' Ex. G. One of Karimi's classmates responded that Karimi's approach "IS A JOKE" and that Karimi is not entitled to "play lawyer," and asked that Karimi "stop harassing people with [his] never-ending baseless cowardly emails." Reply Ex. 20. The same day, Karimi's professor instructed him via email that Karimi could not "improperly impose [his] grievances on the rest of the class through the TWEN site." Reply Ex. 2.
On September 14, 2017, Karimi sent an email to his classmates reading as follows:
Defs.' Ex. H.
Another student responded to that email, stating that "[n]o one is having a wonderful day when they have to wake up to you incessantly chastising what they should or should not do like you're their parent." Defs.' Ex. I. That student accused Karimi of leaving class early and playing chess during class, and defended the existence of "ethnocentric groups" on the basis that they do not require members to be a particular ethnicity and "help anyone who asks for it." Id. Karimi responded that "[n]o one has the right to infringe upon class time" and stated that "if someone does something that effects [sic] what I paid for, I will say something about it." Id. Karimi disputed the accusations that he left class early and played chess during class, and argued that the campus group La Raza was "akin [to] if a group of white people started a group and called it `The Aryan Club.'" Id. He concluded that "[a]ny attempt to slander me or falsely accuse me of breaking student code conduct will be reported," and "[a]nyone who interferes with class time (that I paid for) will hear from me." Id. The student responded again, continuing to debate the equivalence of the La Raza group and the hypothetical "Aryan Club," and asking Karimi to use other means than emailing the whole class to express his concerns. Reply Ex. 25.
One student wrote to Karimi to request "for the last time[,] DO NOT EMAIL ME." Reply Ex. 21. The student called Karimi "a coward and a bully" and threatened to seek a restraining order from the police. Id. Karimi responded to one student who had apparently asked to be excluded from his emails
Reply Ex. 19.
Also in September 14, 2017, Karimi emailed Niedwiecki and a professor to complain that the professor was not treating him fairly by "sometimes ignor[ing] [Karimi] when [his] had was raised" and "abruptly cut[ting] [him] off," but Karimi received no response. Karimi Decl. ¶ 15.
Later the same day, Niedwiecki informed Karimi that he was suspended indefinitely by sending the following email:
Niedwiecki Decl. ¶ 32; Defs.' Ex. J; Reply Ex. 9; see also Karimi Decl. ¶ 4. Karimi lost access to the Westlaw and Lexis research tools as a result of his suspension. Karimi Decl. ¶ 12.
Niedwiecki states that he based his decision on reviewing Karimi's emails as well as reports from others, and that he concluded "the overall context created by" Karimi had "disrupt[ed] the educational environment for other students" and would continue to do so, that students were concerned "for their emotional and other safety and security while on campus," and that Karimi had disobeyed specific instructions from Niedwiecki and his professor not to email the class. Niedwiecki Decl. ¶ 29. Niedwiecki states that he also determined, based on an investigation by Golden Gate's Behavior Intervention Team, that Karimi might have had a criminal record involving unlawful possession of a firearm, which Niedwiecki states also contributed to his concern. Id. ¶ 30. Niedwiecki sent a security notice "to the Law School community" regarding Karimi's suspension and "hire[d] additional security guards to patrol the campus." Id. ¶¶ 33-34. According to Dan Devoy, Golden Gate's Assistant Director of the Office of Student Conduct and Professionalism (among other roles), the "interim suspension was appropriate under the circumstances" and Niedwiecki followed appropriate procedures in imposing the suspension. Devoy Decl. (dkt. 27) ¶ 32.
The following day, Karimi came to campus despite Niedwiecki's email placing him on interim suspension and initially refused to leave. Niedwiecki Decl. ¶ 35. Karimi alleges that he "requested police intervention as he felt this was unjust and hoped for police to facilitate his entry into class." Compl. ¶ 24. After the police arrived, Karimi left campus. Niedwiecki Decl. ¶ 35. Karimi sent three emails to Niedwiecki in the days following his suspension, the first asserting that the suspension was invalid, Reply Ex. 31, the second apologizing if he had offended anyone and stating that he would "do whatever it takes to get back in," Reply Ex. 29, and the third stating that he was in "sever[e] distress" and had not slept in two days, concluding as follows:
Reply Ex. 30.
Niedwiecki sent an email to Golden Gate students on September 18, 2017 that read as follows:
Karimi Decl. ¶¶ 9-10 & Ex. 1; Reply Ex. 10.
Karimi then sent the following email to his classmates:
Defs.' Ex. I.
After Karimi tried to contact Niedwiecki about the suspension, Niedwiecki presented him with two options by letter dated September 19, 2017: (1) Karimi could voluntarily withdraw from Golden Gate within either seven or ten days of Niedwiecki's letter (different parts of the letter stated different deadlines) and receive a refund of his tuition without any formal record of discipline appearing on his academic record; or (2) Niedwiecki would submit a formal complaint that Karimi had not followed his "directions with regard to communications with others," and proceedings would commence that could lead to "various forms of discipline . . . ranging from warning through suspension to expulsion." Karimi Decl. ¶ 4; Niedwiecki Decl. ¶ 39; Defs.' Ex. K; Reply Ex. 6. In an accompanying email, Niedwiecki told Karimi that he might need to bring disciplinary charges based on "the numerous complaints from other students and [Karimi's] failure to follow [Niedwiecki's] directives not to email [the] entire class," and that Niedwiecki was "the final decision maker" and thus "the only person who can handle this matter." Reply Ex. 32.
Niedwiecki states in his declaration that the offer to allow Karimi to withdraw and receive a refund was based on Niedwiecki's conclusion that Karimi's "behaviors were demonstrating his unlikely ability to be successful in the program." Niedwiecki Decl. ¶ 40. In an email dated September 20, 2017, Niedwiecki told Karimi that he would prefer not to bring formal disciplinary charges because doing so might affect Karimi's ability to obtain admission to a different law school, but that he might need to do so if Karimi did not withdraw. Id. ¶ 41; Defs.' Exs. L, M. Karimi responded that he would not accept that offer because it did not account for interest on tuition, costs of relocation, and the delay of Karimi's legal career, and stated that although he was open to negotiation he would prefer to negotiate with someone other than Niedwiecki, to which Niedwiecki responded that Karimi could communicate with Barbara Karlin, the Vice President of Academic Affairs. Niedwiecki Decl. ¶ 43; Defs.' Exs. L, M. Karlin offered to refund Karimi's tuition, books, and interest he paid on his loans, but stated that Golden Gate could not offer anything more "[b]ecause this is based on a discipline complaint." Reply Ex. 16. The parties continued to discuss a resolution, but were not able bridge the gap between Golden Gate's offer of a $6,500 tuition refund
Karimi filed this action on October 3, 2017. See generally Compl. (dkt. 1). Mark Yates, Golden Gate's Associate Dean for Academic Affairs, sent Karimi an email on October 11, 2017 requesting to talk to him, and Karimi spoke to Yates by telephone. Karimi Decl. ¶ 11. Yates offered Karimi the opportunity to withdraw from Golden Gate and receive a $6,500 refund without releasing any claims so that he could apply to other law schools with a "clean record," but Karimi responded that he could not do so because other law schools required applicants to disclose any disciplinary actions taken against them, and that he was not willing to withdraw from Golden Gate because he might not be accepted by other schools. Id.; Reply Ex. 26. After Karimi "informed [Yates] that [Karimi] could use an injunction to achieve going back to [Golden Gate]," Yates told Karimi that Karimi was "not a lawyer," and that Karimi, like some of Yates's clients in his practice as a lawyer, was harming himself by refusing to accept Yates's advice. Karimi Decl. ¶ 11; Reply Ex. 27. Yates concluded, "It's your call, I did my best." Reply Ex. 27.
On November 2, 2017, Defendants' outside counsel contacted Karimi and instructed him to communicate with counsel regarding his lawsuit, rather than with Golden Gate directly. Karimi Decl. ¶ 5. Assistant Director Devoy contacted Karimi by email on November 28, 2017 asking to speak to Karimi by telephone. Id. ¶ 6; Devoy Decl. (dkt. 27) ¶¶ 2, 19; Defs.' Ex. U. Devoy and Karimi exchanged emails on November 28 and 29, with Karimi suggesting that Devoy had a conflict of interest in resolving the dispute because he worked for Golden Gate, and Devoy again asking whether Karimi was available to speak to him. Devoy Decl. ¶¶ 19-20; Defs.' Ex. V.
Niedwiecki filed a formal complaint with Devoy on or about November 28, 2017, charging Karimi with disruptive or unprofessional conduct, failure to comply (specifically, with instructions not to email his class and with the terms of his interim suspension), and acts harmful to others (including sending "aggressive" and "racially charged" emails that had the effect of discouraging students from attending class and contributing to discussions). Niedwiecki Decl. ¶¶ 51-53; Devoy Decl. ¶ 16; Defs.' Ex. O. Golden Gate's outside counsel sent Karimi an email on December 1, 2017 attaching the complaint form completed by Niedwiecki and stating that Karimi must submit a response by December 15, 2017. Karimi Decl. ¶ 7; Devoy Decl. ¶ 18; Defs.' Ex. T; Reply Ex. 23.
Karimi emailed Devoy on December 15, 2017 attaching his present motion and supporting documents and explaining that they "pretty much sum[] up [his] defense." Devoy Decl. ¶ 22; Defs.' Ex. W. Devoy responded on December 19 that he had reviewed those documents and added them to Karimi's file for the ongoing disciplinary proceedings. Devoy Decl. ¶ 23; Defs.' Ex. X. The next day, December 20, 2017, Devoy sent Karimi a "Disciplinary Action Letter" setting forth Devoy's conclusions. Devoy Decl. ¶ 24; Defs.' Ex. Y. Devoy concluded that Karimi "engaged in behavior that violated the Standards on Student Conduct by engaging in disruptive and unprofessional conduct; by engaging in acts harmful to other persons; and by failing to comply with instructions." Devoy Decl. ¶ 25; Defs.' Ex. Y. The letter set forth options for Karimi to engage in an informal resolution process, appeal to the Associate Dean, or resolve the matter through a formal hearing, with the latter two options to be completed no later than January 31, 2018. Devoy Decl. ¶¶ 26-28; Defs.' Ex. Y. The letter noted that Karimi could appear at an informal meeting or a formal hearing via videoconference if he so chose. Devoy Decl. ¶¶ 26, 29; Defs.' Ex. Y.
At the time that he filed his present motion, Karimi was in the process of applying to other law schools, and was required by those schools "to disclose any previous law schools attended and deliver all records from previous law schools." Karimi Decl. ¶ 8. Karimi states that one other law school had at that time denied him admission. Id. Golden Gate's registrar, Steven Lind, states that he is not aware of Karimi having requested a "transfer out package" to apply to other schools, and that Karimi's transcript did not (at the time of Defendants' opposition brief) include any record of disciplinary action. Lind Decl. (dkt. 26) ¶¶ 13, 19.
Karimi has "been severely depressed and anxious" since his suspension because he has "unexpectedly been thrown into the job market, unprepared, with a family to provide for." Karimi Decl. ¶ 16. He cannot work as a teacher in Texas, as he did in China, because he does not have a teaching certificate. Id.
Karimi presents evidence that Golden Gate and Niedwiecki emailed the student body about, and otherwise discussed or took positions on, political issues including immigration and cannabis. Reply Exs. 33-35. The Court does not find any such positions to be relevant to the present motion.
In potentially relevant part, the Golden Gate Student Handbook (the "Handbook") prohibits:
[E]ngaging in acts of disruptive or unprofessional conduct, such as:
Niedwiecki Decl. ¶ 12; Defs.' Ex. A (Handbook) at 103-04, §§ XVI.D.5-7.
The Handbook's code of conduct applies to student conduct that "occurs on or adjacent to the property of Golden Gate . . . or otherwise occurs in connection with any activity or program operated or sponsored by the University," as well as any conduct "which, in the judgment of School officials, bears upon the student's ethical and moral fitness to practice law . . . wherever such conduct occurs." Niedwiecki Decl. ¶ 11; Defs.' Ex. A (Handbook) at 98, § XVI.B. Any member of the Golden Gate community may submit a complaint against a law student for engaging in prohibited conduct by filing a complaint form with the Office of Student Conduct & Professionalism. Niedwiecki Decl. ¶ 15; Defs.' Ex. A (Handbook) at 104, § XVI.F.1. "The complaint form is to be submitted as soon as possible after the event takes place and no later than one year from the date of the conduct forming the basis of the complaint." Defs.' Ex. A (Handbook) at 105, § XVI.F.1. A complaint triggers a process including an investigation and determination by the Assistant Director of Student Conduct & Professionalism, followed by either an informal resolution process or formal hearing process, at the choice of the student. Id. at 104-07, § XVI.F. Students are afforded a number of procedural rights, including the rights to present witnesses and evidence, cross examine the complainant and other witnesses, hire an attorney in an advisory capacity, and appeal a decision to the Dean. Id. at 107-110, §§ XVI.G-I. Disciplinary proceedings may occur "before, simultaneously with, or following civil or criminal proceedings." Devoy Decl. ¶ 9; Defs.' Ex. A (Handbook) at 104, § XVI.E. Possible sanctions for a finding of misconduct range from a warning to expulsion, and can include monetary penalties. Defs.' Ex. A (Handbook) at 110-111, § XVI.K.
The Handbook also provides for the possibility of interim suspension before a finding of misconduct, as follows:
Id. at 110, § XVI.J.
Karimi's complaint includes three claims. His first claim is for breach of contract, asserting that Defendants breached the terms of the Handbook by placing Karimi on interim suspension before a formal complaint was filed against him, that Niedwiecki breached the covenant of good faith and fair dealing by failing to cooperate with Karimi sufficiently in resolving the issue, that Golden Gate failed to provide classes in accordance with the schedule stated on the syllabus, and that the quality of instruction at Golden Gate did not meet Karimi's expectations. Compl. ¶¶ 25-30. Second, Karimi asserts a claim for defamation based on Niedwiecki's email to the student body regarding Karimi's suspension, which Karimi alleges falsely suggested that he had engaged in threatening behavior and led to friends and classmates cutting off contact with him. Id. ¶ 31. Finally, Karimi asserts a claim for intentional infliction of emotional distress, based on Defendants purportedly removing him from school without due process, instructing him not to contact other students or professors, and failing to respond appropriately to the incident where another student cursed at him in class. Id. ¶ 32-35.
Karimi's present motion seeks a preliminary injunction requiring Golden Gate to refund, with interest, the tuition that he paid, and prohibiting Golden Gate from proceeding with internal disciplinary action against him. Mot. (dkt. 18) at 8. He argues that his case is analogous to Babcock v. New Orleans Baptist Theological Seminary, 554 So.2d 90 (La. Ct. App. 1989), a case where a Louisiana Court of Appeal affirmed a preliminary injunction requiring the defendant seminary to confer a degree on the plaintiff because it had not followed its own procedures in denying him a degree. Id. at 8-9.
Karimi contends he is likely to succeed on his breach of contract claim because Golden Gate did not afford him due process as required by both American Bar Association accreditation standards and Golden Gate's own student handbook, because his emails were protected by California Civil Code section 94367(a) and were not actually harassing or aggressive, because Niedwiecki and Golden Gate failed to communicate with him in good faith, and because his alleged conduct was relatively minor in comparison to other cases where universities and colleges imposed similar punishments. Mot. at 9-11. He argues that he is likely to prevail on his defamation claim because Niedwiecki's announcement to Golden Gate students after Karimi spoke with police on campus wrongfully implied that Karimi had been hostile, aggressive, or threatening. Id. at 12-13. As for intentional infliction of emotional distress, Karimi contends that the "punishment the dean gave to [him] was extreme in that he was indefinitely kept out of the school without due process or notification of charges," also noting Golden Gate's suggestion that Karimi change seats rather than punishing a student a student who allegedly harassed him. Id. at 13. Karimi argues that he feel humiliated an embarrassed, that he and his family have experienced severe depression and anxiety, and that he and his wife have had trouble sleeping. Id.
Karimi contends that Golden Gate's handling of the matter thus far demonstrates "certainty of the school finding him guilty" in its own disciplinary proceeding, and thus that "[i]rreparable harm is certain to come to Karimi in absence of an injunction." Id. at 14. He argues that such an outcome would tarnish his record and might prevent him from obtaining admission to a different law school or becoming a lawyer. Id. According to Karimi, legal remedies are inadequate because it is impossible to determine how much money he would ultimately make in a career as a lawyer and because "[t]here is no price on obtaining an education," pursuing a desired career path, or the "happiness and pride of achieving the career one desires." Id. Karimi also contends that the equities favor an injunction because he faces potential harm as discussed above if an injunction is not granted, while "[v]irtually no harm comes to [Golden Gate] if an injunction is granted" because Karimi now lives in Texas and withholding disciplinary action would not affect the functioning of the school. Id.
Defendants contend that Karimi cannot show a likelihood of success on any of his claims. Opp'n (dkt. 24) at 12-13. With respect to Karimi's breach of contract claim, Defendants argue that Niedwiecki acted and within his authority under the Handbook's provision for interim suspension, and appropriately in response to complaints from other students. Id. at 12; see also id. at 3. Contrary to Karimi's interpretation, Defendants contend that the interim suspension provision does not require charges to be filed before a student is suspended. Id. at 12. Defendants also argue that Karimi has not shown a likelihood of success on his emotional distress claim because the conduct at issue consisted of "management decisions," and that he cannot prevail on his defamation claim because Niedwiecki's message to the student body did not identify Karimi and was privileged under section 47(c) of the California Civil Code. Id. at 12-13 (erroneously citing the California Code of Civil Procedure).
As for irreparable harm, Defendants argue that Karimi's potential harm is merely speculative because, at the time of briefing, the disciplinary process had not yet run its course and Karimi's transcript did not reflect any adverse action. Id. at 14. Defendants contend that the balance of harms does not favor granting the motion because requiring Karimi to engage in Golden Gate's disciplinary process is not an undue hardship and it would not be feasible to reinstate Karimi for the spring semester when—due to his interim suspension—he did not complete required classes in the fall. Id. at 14-15. Defendants argue that the public interest favors denial because Karimi has made no showing as to that factor and Golden Gate's class of first-year law students as a whole would be affected by his return. Id. at 15.
Karimi argues in his reply that Defendants misstate a number of factual issues, including whether Karimi was ever instructed not to email his classmates (as opposed to merely an instruction not to use a specific tool, TWEN, for that purpose). Reply at 4. Karimi also asserts, for example, that Defendants misquoted the Handbook to mischaracterize the relationship between interim suspension and formal charges and to omit the role of the Assistant Director in interim suspensions, and that defense counsel falsely stated that the parties had met and conferred by telephone to discuss alternative dispute resolution.
Citing section 94367 of the California Education Code and cases addressing the scope of the First Amendment right to speech in academic settings, Karimi argues that his suspension is unwarranted because his emails to classmates did not constitute "`substantial disruption or material interference with school activities.'" Id. at 7-9 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969)). Karimi notes that he did not include a claim under section 94367 of the California Education Code in his complaint because he had not received the charges against him when he filed it, but upon receiving those charges, "it became clear that [Golden Gate] violated" that statute. Id. at 9-10. He argues that since he sent his emails to the class from off campus, they fall within the scope of speech protected by that statute. Id. at 10. He disputes Defendants' position that his emails were harmful to or targeted at anyone, and that they constituted harassment. Id. Karimi also argues that Golden Gate administrators, including Niedwiecki and Yates, have treated him with contempt and condescension. Id. at 10-11. Karimi contends that it was "outrageous" for Defendants to "indefinitely punish [him] without charging [him]." Id. at 11.
Karimi argues that Niedwiecki's message to the student body was defamatory for suggesting that Karimi posed a safety threat and for indicating that any behavior issues had occurred on campus, when in fact Karimi had sent the emails at issue from off campus. Id. at 12. Karimi also argues that he faces irreparable harm because even though there is no formal record of discipline on his transcript, he is required by other schools to disclose any disciplinary action against him and would be lying if he did not disclose the interim suspension and pending proceedings. Id. at 12-13. He contends that "[t]he nature of this case coupled with the certainty of expulsion from an internal disciplinary proceeding is also irreparable harm," and that expulsion would limit his ability to obtain admission to another law school. Id. at 13. With respect to balancing the equities, Karimi argues that the cases cited by Defendants are inapposite because he does not seek ex parte relief and did not confront staff members, and his behavior at issue was not as disruptive as in one case where a student encouraged classmates to hack into computers. Id. at 13-14. In response to Niedwiecki's assertion "that Karimi `mass emailed' his class," Karimi contends that Niedwiecki also sent mass emails to the student body, some of which—like an email regarding a meeting that included lawyers advocating cannabis legalization—Karimi found offensive. Id. at 14.
As an initial matter, the parties appear to dispute whether the Court should look to California law or federal law for the test of whether a preliminary injunction should issue. See Mot. at 8 (citing the California Code of Civil Procedure); Opp'n at 11-12 (citing federal court case law). While it is not clear that the outcome would differ under the California standard, federal law applies to this question of procedure. See Kane v. Chobani, Inc., No. 12-cv-02425-LHK, 2013 WL 3776172, at *2-3 (N.D. Cal. July 15, 2013) (applying the tests of Hana v. Plumer, 380 U.S. 460, 470 (1965), and Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938), and considering the decisions of district courts within the Ninth Circuit); see also, e.g., Masters v. Avanir Pharm., Inc., 996 F.Supp.2d 872, 878 n.3 (C.D. Cal. 2014); Compass Bank v. Hartley, 430 F.Supp.2d 973, 978 n.9 (D. Ariz. 2006).
Under federal law, a "preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20. Irreparable harm must be likely— it is no longer sufficient to grant a preliminary injunction upon a mere showing of a "possibility" of irreparable harm when the other factors weigh heavily in favor of the plaintiff. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Nonetheless, the Ninth Circuit still evaluates the likelihood of success on a "sliding scale." Id. A preliminary injunction may be warranted upon a showing of "serious questions going to the merits" as well as "a hardship balance that tips sharply toward the plaintiff," so long as the plaintiff is likely to suffer irreparable harm and the injunction is in the public interest. Id. (emphasis added).
The first form of relief that Karimi requests is a refund of his tuition payments. See Mot. at 8 ("The relief sought by Karimi in regards to his tuition being refunded takes the form of mandatory relief."). "[P]urely monetary harm measurable in damages" does not constitute irreparable injury to support a preliminary injunction. Oakland Tribune, Inc. v. Chronicle Publ'g Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985). Karimi does not discuss his request for a refund in his arguments regarding irreparable harm and the inadequacy of legal remedies. See Mot. at 14. Because any harm caused by Karimi's payment of tuition can be compensated through damages, and thus is not irreparable, Karimi's motion for a preliminary injunction requiring Golden Gate to provide a refund is DENIED.
"The second form of relief being sought by Karimi takes the form of prohibitory relief . . . to prevent [Golden Gate] from taking proceedings against him." Mot. at 8.
Karimi contends that Defendants breached their contractual obligations by placing him on interim suspension without following the process required by the Handbook. Specifically, he argues that the phrase "[p]ending action on charges" requires that a disciplinary complaint be filed before an interim suspension is implemented, and that the requirement that at least one of the enumerated grounds for interim suspension be "determined by the Assistant Director and approved by the dean" means the Assistant Director must be involved in the decision. Mot. at 10; Reply at 5-6. Defendants contend that the "pending charges" provision "does not state that charges must be filed . . . prior to the placement on interim suspension." Opp'n at 9, 12. Defendants' opposition brief does not meaningfully address the potential mismatch between Niedwiecki's unilateral action as Dean as compared to the Handbook's process of a determination made by the Assistant Director and ratified by the Dean—an issue first clearly raised in Karimi's reply—but Defendants assert that "it is within the authority of the Dean to place a student on interim suspension `pending charges.'" Id. at 9.
Assuming for the sake of argument that Karimi is correct and the procedures for placing him on interim suspension were defective, Defendants have effectively cured those defects. Niedwiecki filed a formal complaint against Karimi that Karimi received on December 1, 2017. Karimi Decl. ¶ 7; Niedwiecki Decl. ¶¶ 51-53; Devoy Decl. ¶¶ 16, 18; Defs.' Exs. O, T; Reply Ex. 23. In his declaration submitted with Defendants' opposition brief, Assistant Director Devoy concurred with Niedwiecki's determination that "interim suspension was appropriate under the circumstances." Devoy Decl. ¶ 32. Accordingly, whatever harm Karimi might have suffered as a result of Defendants' purported failure to file formal charges and obtain Devoy's determination before suspending Karimi does not include Karimi's current suspension, because the procedural conditions that Karimi contends are required by the Handbook have since been satisfied. A preliminary injunction vacating the suspension based on the lack of a formal complaint or Devoy's determination would be an empty formalism; with those conditions now satisfied, Defendants could immediately reinstate the suspension. If past harm from the purportedly defective procedure is redressable, it is redressable through damages, and is not the sort of ongoing or prospective irreparable injury that warrants injunctive relief.
As for the future hearing, Karimi argues that "it is absurd to hold an internal disciplinary hearing at this time after Karimi has sued the school." Mot. at 4. It is not. The contract that Karimi seeks to enforce in this case, i.e., Golden Gate's Handbook, specifically provides for the internal disciplinary hearings and decisions that Karimi seeks to enjoin. Defs.' Ex. A § XVI.F. If, as Karimi contends, the charges against him are not warranted under the Handbook, a disciplinary hearing is one of the procedures that the Handbook provides to make that determination. This is not to say that the Handbook necessarily prevents Karimi from obtaining recourse in court after a final disciplinary decision if some aspect of that decision violates the Handbook—an issue the Court has no occasion to reach on the present motion—but there is no basis to say that moving forward with the process stated in the Handbook would itself constitute a breach of the Handbook. Nor is there any evidence at this time that the panel for a formal hearing, which includes one student and several faculty members, see Defs.' Ex. A at 109, § XVI.H.4.b, would be likely to reach an outcome that is both adverse to Karimi and unwarranted under the Handbook. Accordingly, Karimi has not met his burden to show that proceeding with a disciplinary hearing is likely to cause him irreparable harm, that he is likely to succeed on the merits of his claim that the disciplinary hearing constitutes or would lead to a breach of contract, or that serious questions go to the merits.
In his complaint and his present motion, Karimi bases his defamation claim on the email that Niedwiecki sent to the student body in September of 2017 after Karimi was required to leave campus, which stated that a student (i.e., Karimi) had "in our judgment been experiencing some behavior issues" and had been asked to leave campus, that he had "left the campus on his own accord without resistance," and that while police had been present and Golden Gate had heightened its security procedures, "there was no known safety concern." See Compl. ¶ 31; Mot. at 12-13; Reply at 12 & Ex. 10. Karimi has not explained any connection between the injunctive relief that he seeks—barring Defendants from continuing with disciplinary proceedings—and the reputational harm that he suffered as a result of Niedwiecki's purportedly defamatory statement in September. The Court concludes that Karimi has not met his burden to show a likelihood of irreparable harm due to defamation redressable by the proposed injunction.
The final claim of Karimi's complaint, for intentional infliction of emotional distress, fails to support his requested injunction for much the same reason as his contract claim. Even assuming for the sake of argument that Karimi could prevail on this claim based on Defendants' past conduct such as purportedly failing initially to follow the correct procedure for imposing an interim suspension, giving Karimi conflicting instructions about how to communicate with Golden Gate, and communicating with Karimi in a contemptuous or condescending manner, Karimi has not explained how such conduct relates to a likelihood of "irreparable harm in the absence of [the] preliminary relief" that he seeks, i.e., and injunction against further disciplinary proceedings. See Winter, 555 U.S. at 20. Looking to the actual conduct that Karimi seeks to enjoin—his continued interim suspension and future disciplinary hearing—Karimi is not likely to prevail on a claim that the disciplinary procedures specifically called for the in Handbook, including the adjudicative procedure of a hearing, themselves constitute conduct "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Hughes v. Pair, 46 Cal.4th 1035, 1050-51 (2009) (setting forth the elements of a claim for intentional infliction of emotional distress under California law).
One of Karimi's primary arguments is that Defendants punished him for protected speech and thus violated section 94367(a) of the California Education Code, which reads as follows:
Cal. Educ. Code § 94367(a); see Mot. at 1-2; Reply at 9-10, 14. Subsection (b) of that statute provides that a student subject to such a rule or enforcement "may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court." Cal. Educ. Code § 94367(b).
The Supreme Court has described the remedy of a preliminary injunction as "appropriate to grant intermediate relief of the same character as that which may be granted finally." De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945). "This requires a sufficient nexus between the claims raised in a motion for injunctive relief and the claims set forth in the underlying complaint itself." Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). Based on that principle, courts have held that a plaintiff may not obtain a preliminary injunction based on a claim not asserted in the operative complaint. E.g., Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) ("Here, the suit is one for damages on a claim of fraud. In his injunction Kaimowitz sought equitable relief regarding a First Amendment issue, but that relief was not of the same character that could be granted finally, and dealt with a matter that was wholly outside of the issues in the suit."); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994); Varnell v. Wash. Dep't of Corr., 2017 WL 378571, at *1 (W.D. Wash. Jan. 24, 2017) (denying a request for injunctive relief under the Americans with Disabilities Act as "beyond the scope of the operative complaint," which asserted an Eighth Amendment violation), aff'd sub nom. Varnell v. Sawyer, 692 F. App'x 906 (9th Cir. 2017); England v. Foster, No. 3:13-CV-00188-RCJ-VP, 2015 WL 51181, at *2 (D. Nev. Jan. 2, 2015) Johnson v. Dep't of Corr., No. C08-5426BHS, 2009 WL 528957, at *2 (W.D. Wash. Feb. 27, 2009).
Karimi's complaint does not assert a claim under section 94367, otherwise reference that statute, or even generally allege that Defendants violated Karimi's right to free speech under either the United States Constitution or the California Constitution. See generally Compl. In his prayer for relief, Karimi seeks only monetary damages. See id. at 10-11, ¶¶ a-e.
For the reasons discussed above, Karimi has not met his burden to justify the "extraordinary remedy" of a preliminary injunction. See Winter, 555 U.S. at 22. The motion is DENIED.
