JUAN R. SÁNCHEZ, Chief District Judge.
Plaintiff John Doe was accused by two women of sexual assault just before the beginning of his senior year at Defendant University of the Sciences (the University).
Plaintiff John Doe is a resident of North Carolina who, until January, 2019, was a student at Defendant University of the Sciences, a private university located in Philadelphia, Pennsylvania which receives federal funding. The relationship between Doe and the University was governed by the Sexual Misconduct Policy, see Am. Compl. Ex. A, and the Student Handbook (Handbook), see Am. Compl. Exs. B & C.
The events giving rise to this litigation stem from separate sexual encounters between Doe and two female students, identified as Jane Roe 1 (Roe 1) and Jane Roe 2 (Roe 2), in November, 2017, and January, 2018.
Having received the reports from Roes 1 & 2, the University then proceeded to investigate both claims simultaneously. On August 30, 2018, the University's Title IX Coordinator notified Doe that a formal investigation was being initiated to determine whether he had violated the University's Sexual Misconduct Policy. On that date, the University provided Doe a "Notice of Sexual Misconduct Investigation," which identified Roes 1 & 2, provided the dates and locations of the alleged assaults, described the sexual nature of the allegations, and listed the specific provisions of the University's Sexual Misconduct Policy Doe allegedly violated. See Mot. to Dismiss Ex. 1 at 1. On September 5, 2018, the University hired outside counsel to investigate Roes' allegations.
On November 13, 2018, the investigator tendered her Report of Investigation (Report),
On November 14, 2018, one day after the investigator completed the Report, the University's Title IX Coordinator informed Doe of the result. On December 7, 2018, the Coordinator informed Doe that, two days earlier, on December 5, 2018, an administrative panel had convened to determine the sanctions. This panel determined the appropriate sanction was expulsion, with a notation on his academic transcript, a campus restriction, and no contact order with respect to Roes 1 & 2. Doe then submitted a written appeal, which was subsequently denied after review by a separate administrative panel.
On January 24, 2019, Doe commenced the instant action by filing a Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction. After holding a two-day hearing and receiving proposed findings of fact and conclusions of law, the Court denied the Motion and issued a Memorandum discussing its reasons for doing so. See Order, Feb. 14, 2019, ECF No. 14. The University then moved to dismiss the action. Doe filed the Amended Complaint on April 15, 2019, and the University moved to dismiss again. The Court held oral argument on July 10, 2019. The Motion to Dismiss is now ripe for decision.
The Amended Complaint contains claims for gender-discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., for which the Court exercises jurisdiction pursuant to 28 U.S.C. § 1331, and state law claims for breach of contract and intentional and negligent infliction of emotional distress, for which the Court possesses jurisdiction pursuant to 28 U.S.C. § 1367(a).
To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When evaluating a pleading under Rule 12(b)(6), the Court "must accept all of the complaint's well-pleaded facts as true," and then "determine whether the facts alleged in the complaint are sufficient to show that plaintiff has a `plausible claim for relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
The Court begins with Doe's claim for relief under Title IX, which prohibits discrimination on the basis of sex by educational institutions receiving federal funding. See 20 U.S.C. § 1681(a) ("No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.").
The Court described erroneous outcome claims in its Memorandum concerning Doe's request for injunctive relief. As noted therein, in an erroneous outcome claim, the plaintiff alleges he or she is actually innocent of the charged conduct and was wrongly found responsible for the violation for which he or she is punished. See Memo. 8, Feb. 14, 2019, ECF No. 13. To be successful, a plaintiff must "allege particular facts sufficient to cast some articulable doubt on the accuracy of the discipline" and "allege particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); see also Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018); Trs. of the Univ. of Pa., 270 F. Supp. 3d at 822-23. The Amended Complaint fails to adequately allege either aspect of the claim.
First, the Amended Complaint does not allege facts sufficient to cast any articulable doubt on the accuracy of Doe's discipline. As the Report reflects, the investigator interviewed Doe, Roe 1, and Roe 2, on two separate occasions each (for a total of six separate interviews) and considered statements provided by ten separate witnesses, both male and female, and identified by Roes 1 & 2 and Doe. Despite the expansive process which resulted in his expulsion, Doe claims that it was tainted by five procedural flaws. He describes these as the use of (1) a single investigator to investigate multiple claims of misconduct; (2) special rules for claims involving sexual misconduct; (3) procedures denying the accused the ability to confront and cross-examine his accuser; (4) an inadequate appeals process; and, (5) policies that have been rescinded or questioned by the United States Department of Education.
None of Doe's five conclusory allegations suffices to cast doubt upon the outcome of the disciplinary process. It is not obvious—and Doe has not adequately explained—why either the University's use of a single investigator or the Department of Education's decision to rescind non-binding guidance (after a change in administrations) could create an articulable doubt as to the outcome of the University's investigation. Doe similarly fails to explain why the University's appeals process, the special procedures applicable to sexual assault allegations, and his inability to cross-examine Roes 1 & 2—despite his having been interviewed twice by the investigator and suggesting seven separate witnesses in his defense—possibly tainted the outcome of the process here.
Second, even if the Court were satisfied that one or more of the five alleged flaws in the discipline process created some doubt about its accuracy, the Court would nevertheless grant the motion to dismiss because Doe has failed to adequately allege facts suggesting that gender bias motivated the allegedly erroneous outcome. The types of allegations that would raise the requisite inference include: statements from administrators or patterns of decision-making suggesting bias, Yusuf, 35 F.3d at 715, a combination of external pressure and a disciplinary board's decision to credit all female testimony and reject all male testimony, Baum, 903 F.3d at 586, and the combination of external pressure, a process allegedly designed to favor female complainants, public statements from university officials, and training materials used by the university which encouraged its employees to believe the accuser and presume the guilt of the accused, Trustees, 270 F. Supp. 3d at 823-24. Here, Doe has alleged no facts similar to those considered sufficient in Yusuf, Baum, or Trustees, and thus the Court finds that he has failed to bridge the gap between the allegedly flawed outcome and gender bias. See Yusuf, 35 F.3d at 315. Instead, Doe relies on generalities, see, e.g., Am. Compl. ¶ 94,
In his Opposition, Doe cites the Second Circuit's decision in Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016). The comparison is not helpful. In that matter, the plaintiff supported his allegation that the university had been motivated to discipline him by public pressure by referencing several, specific examples. See Columbia, 831 F.3d at 50-51. These included complaints by various student organizations that were publicized by the New York Post, efforts by the Columbia University Democrats to ensure the university was not giving "light punishments" to male students, a January 23, 2014, article in the student-run newspaper criticizing the university's handling of sexual assault cases, and twenty-three student complaints filed with the Department of Education alleging the university mishandled incidents of sexual assault. Id. Here, Doe vaguely avers that "there has been substantial criticism of universities" and that "on information and belief, the University's administration was cognizant of, and sensitive to, these criticisms." Am. Compl. ¶ 93 (emphasis added). This averment is deficient because, unlike the public pressure discussed in Columbia, it identifies no specific criticisms of the University, or actions the University may have taken in response to those criticisms at all, let alone those that would suggest that his discipline was motivated by gender bias.
At oral argument, the parties discussed the Seventh Circuit's June 28, 2019, decision in Doe v. Purdue University, ___ F.3d ___, 2019 WL 2707502 (7th Cir. 2019), which reversed and remanded a district court's decision dismissing due process and Title IX claims stemming from university disciplinary processes. The comparison to that decision is as unhelpful to Doe as the comparisons to Columbia, Yusuf, Baum, and Trustees. As an initial matter, the Seventh Circuit stated that the "Dear Colleague Letter"—which forms a key component of Doe's claim—is "standing alone . . . obviously not enough to get [plaintiff] over the plausibility line." 2019 WL 2707502, at *12 (citing Baum, 903 F.3d 586). Moreover, the allegations upon which the Purdue plaintiff relied in that matter were far more specific than those presented by Doe. For example, the Purdue plaintiff alleged that the Title IX coordinator credited the testimony of the complainant over his testimony without having met with the complainant and without providing more than a "cursory statement" as to why she did so. Id. Doe makes no such allegation here, nor could he because the Report makes clear he met with the University's investigator multiple times prior to the issuance of her report.
The plaintiff in Purdue also alleged the board responsible for recommending a punishment to the Title IX coordinator was biased against him because its members made up their minds before speaking to plaintiff and refused to hear from his witnesses. 2019 WL 2707502, at *12. Again, there is no such allegation here. Doe alleges that he timely appealed to the analogous board at the University by submitting a written statement to it, Am. Compl. ¶ 76, and the Report also makes clear that the investigator heard from him and the seven witnesses he identified. As further evidence of gender-motivated bias, the Purdue plaintiff also cited a Facebook post by the university's "Center for Advocacy, Response, and Education," entitled "Alcohol isn't the cause of campus sexual assault. Men are." 2019 WL 2707502, at *12. As described above, Doe offers no similar statements by University administrators or personnel.
As the foregoing comparisons to Purdue, Columbia, Yusuf, Baum, and Trustees, make clear, Doe's Amended Complaint fails to allege facts that raise the inference of gender bias, and, his Title IX claim will be dismissed to the extent it relies on the erroneous outcome theory.
Doe next relies on the "selective enforcement" theory of Title IX liability, which requires a showing that "regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender." Yusuf, 35 F.3d at 715. Success on such a claim requires that a male plaintiff "allege a female was in circumstances sufficiently similar to his own and was treated more favorably by the university." Saravanan v. Drexel Univ., No. 17-3409, 2017 WL 5659821, at *6 (E.D. Pa. Nov. 24, 2017) (citation and internal quotation marks omitted). In order to make an appropriate comparison, the two students "must have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the [school's] treatment of them for it." Id. (quoting Ke v. Drexel Univ., No. 11-6708, 2015 WL 5316492, at *19 (E.D. Pa. Sept. 4, 2015)). The plaintiff must establish the selective enforcement was motivated by gender. Doe v. Rider Univ., No. 16-4882, 2018 WL 466225, at *9 (D.N.J. Jan. 17, 2018).
Here, Doe alleges that the University engaged in gender-motivated selective enforcement by punishing him, but not Roe 2, despite the fact that both he and Roe 2 had consumed alcohol prior to their sexual encounter. In other words, Doe now claims that, at the same time he allegedly violated the Sexual Misconduct Policy by having sex with Roe 2 without her affirmative consent, Roe 2 was allegedly violating the Sexual Misconduct Policy during the same encounter by having sex with him without his affirmative consent, and, that, because the University punished him, but not her, it should be liable under Title IX's selective enforcement theory.
Doe's argument is meritless. Roe 2 and Doe are not valid comparators. As the University points out, Doe never accused Roe 2 of sexual misconduct, and the Amended Complaint makes clear Doe's position that the encounter was consensual. See Am. Compl. ¶ 44 ("When John returned, he and Jane 2 began having sex on his bed. John recalls Jane 2 being an active participant and her being fully engaged the entire time. As on previous occasions that they had sex, Jane 2 occasionally got on top of and straddled John." (emphasis added)); see also id. ¶ 73 ("The evidence does not support the report's finding [that Doe violated the sexual misconduct policy by having sex with Jane 2 without securing her affirmative consent]."). The Court thus finds that Doe and Roe 2 did not engage "in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the [school's treatment] of them for it." Saravanan, 2017 WL 5659821, at *6.
Finally, Doe alleges the "deliberate indifference" theory of Title IX liability. This theory applies "where a plaintiff seeks to hold an institution liable for sexual harassment and requires the plaintiff to demonstrate that an official of the institution who had authority to institute corrective measures had actual notice of, and was deliberately indifferent to, the misconduct." Trs. of the Univ. of Pa., 270 F. Supp. 3d at 825 (quoting Mallory v. Ohio Univ., 76 F. App'x 634, 638 (6th Cir. 2003)). This theory also requires the plaintiff to establish that the "the official's response to the alleged gender bias must be clearly unreasonable in light of the known circumstances." Id. (quoting Doe v. Brown Univ., 166 F.Supp.3d 177, 190-191 (D.R.I. 2016)).
The parties dispute whether this theory reaches disciplinary proceedings. See Mot. to Dismiss at 7 n.5; Opp'n at 5. There is substantial and persuasive authority supporting the University's position that the theory does not. See Trs. of the Univ. of Pa., 270 F. Supp. 3d at 825 (citing Doe v. Baum, 227 F.Supp.3d 784, 820 (E.D. Mich. 2017), rev'd on other grounds, 903 F.3d 575 (6th Cir. 2018); Brown Univ., 166 F. Supp. 3d at 191; Doe v. Univ. of the South, 687 F.Supp.2d 744, 757-58 (E.D. Tenn. 2009)). Moreover, the Court finds Doe's citation to Wells v. Xavier University, 7 F.Supp.3d 746 (W.D. Ohio 2014), in which the district court denied a motion to dismiss a deliberate indifference claim stemming from university discipline, is unavailing. The district court's decision in Wells is not binding on this Court, nor is it persuasive, given that it provides only a cursory justification for its decision to apply the deliberate indifference theory outside its more frequent confines, Wells, 7 F. Supp. 3d at 751-52, and in light of the more recent decision in Doe v. Baum, in which the Sixth Circuit (of which the Western District of Ohio is a part) rejected the application of deliberate indifference to challenges to university disciplinary proceedings, Baum, 903 F.3d at 588.
Notwithstanding the Court's doubts, the Court need not decide whether deliberate indifference is ever viable to challenge university disciplinary proceedings because, even assuming it is, Doe's claim is deficient. In Trustees, this Court rejected the notion that a cognizable claim of deliberate indifference could be "based solely on an assertion that [p]laintiff advanced arguments of gender bias and other procedural flaws in the adversarial disciplinary proceeding and [d]efendant rejected them." 270 F. Supp. 3d at 826. Yet, that appears to be what Doe alleges here. See Am. Compl. ¶ 78 ("John's appeal was denied. In denying the appeal, the panel ignored John's arguments that the investigation was flawed and incomplete."). Moreover, as discussed in greater detail with respect to Doe's erroneous outcome claim, Doe has failed to adequately allege misconduct by the University. Although he complains of many facets of the disciplinary process, he has failed to describe how they qualify as "misconduct" or allege facts which would support the inference that the University's response was "unreasonable in light of the known circumstances." Tr. of the Univ. of Pa., 270 F. Supp. 3d at 825. Accordingly, even if the Court did find that deliberate indifference reached challenges to the University's discipline, the Court would still dismiss this aspect of the claim.
Because Doe has failed to adequately allege a Title IX violation by means of any of the three theories he advances—erroneous outcome, selective enforcement, or deliberate indifference—the Court will grant the University's Motion to Dismiss as to Count I of the Amended Complaint in its entirety.
Having dismissed Doe's single claim arising under federal law, the Court considers Doe's remaining claims—breach of contract (Count II), intentional infliction of emotional distress (Count III), and negligent infliction of emotional distress (Count IV)—in turn. The Court will dismiss the breach of contract and intentional infliction of emotional distress claims because Doe has failed to state these claims on their merits. The negligent infliction of emotional distress claim will be dismissed because it is foreclosed by the gist of the action doctrine.
The Court first considers Doe's breach of contract claim. There are three elements to such a claim under Pennsylvania law: (1) a contract; (2) a breach of a duty imposed by that contract; and (3) resulting damages. Kaymark v. Bank of Am., N.A., 783 F.3d 168, 182 (3d Cir. 2015) (quoting Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. Ct. 2004)). Pennsylvania law permits a student to bring a suit for breach of contract where "the institution ignores or violates portions of the written contract." Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct. 1999) (citations omitted). "The contract between an educational institution and a student includes any agreement between the parties concerning disciplinary procedures, contained within a portion of the student handbook." Trs. of the Univ. of Pa., 270 F. Supp. 3d at 810 (quoting Reardon v. Allegheny Coll., 926 A.2d 477, 480 (Pa. Super. Ct. 2007)).
The University's Handbook, see Am. Comp. Exs. B & C, and the Sexual Misconduct Policy, see id. Ex. A, form the basis of Doe's claim.
Am. Compl. Ex. B at 49 (emphasis added). He also relies upon a policy statement attached to the Handbook, which states that the University is committed to "engaging in investigative inquiry and resolution of reports that are adequate, reliable, impartial, prompt, fair and equitable." Id. at 37. Doe's Amended Complaint—which is largely coextensive with his request for injunctive relief, which the Court denied in its entirety—alleges a number of different breaches of contract. The parties' briefing coalesces around three specific allegations: (1) inadequate notice, (2) use of a single-investigator model (i.e., the use of one investigator to investigate more than one allegation against the same person), and (3) the failure to conduct a full and fair investigation. The Court will consider each in turn.
First, Doe alleges that the University breached its obligation to provide him notice of the allegations against him. Am. Compl. ¶ 116(1). The Court will dismiss this aspect of the Amended Complaint for two reasons. Initially, this conclusory allegation is undermined by the "Notice of Sexual Misconduct Investigation," which Doe was provided on August 30, 2018, and identified Roes 1 & 2, the dates and locations of the alleged assaults, the sexual nature of the allegations, and the specific provisions of the University's Sexual Misconduct Policy he was alleged to have violated. See Mot. to Dismiss Ex. 1. Moreover, even more problematically, Doe cites no provision of either the Handbook or the Sexual Misconduct Policy that obligates the University to do more than provide him the notice it did. As the Court noted in its earlier Memorandum rejecting this assertion as a basis for injunctive relief, the University could have provided greater detail about the allegations to Doe, but no provision of the contract between it and Doe required it to do so. The Amended Complaint adds no further detail than the insufficient allegations already assessed by the Court, and therefore, Doe has failed to state a claim with respect to the alleged inadequacy of his notice. See See Trs. of the Univ. of Pa., 270 F. Supp. 3d at 816 (granting a motion to dismiss a breach of contract claim where the notice procedures "did not require [the university] to provide a copy of the complaint to [the accused], nor did they require [the university] to provide [the accused] with the level of factual detail that the [accused] alleges was lacking").
Second, Doe alleges that the University breached its contract with him by employing a single-investigator model. Am. Compl. ¶¶ 56-58. This aspect of Doe's claim is self-defeating. In the Amended Complaint, Doe avers that it is the University's policy to use a single-investigator model. See id. ¶ 58 (citing Sexual Misconduct Policy § 2.10.2 ("The Title IX Coordinator will assign an investigator to the complaint.")). In the following paragraph, he avers that that is exactly what the University did. See id. ¶ 59 ("On September 5, 2018, the University retained attorney Kane of the law firm Schnader Harrison Segal & Lewis LLP to be the sole investigator and issue a determination."). The University's decision to follow a provision of its contract with Doe cannot be considered evidence the University breached that contract.
Moreover, to the extent that Doe argues that the use of the single-investigator model is somehow in tension with the University's purported obligation to provide "fairness to all," the Court is not persuaded. A university's obligation to provide "fundamental fairness" as a matter of Pennsylvania contract law only requires a university to provide "notice of the charges and some opportunity for hearing." Trs. of the Univ. of Pa., 270 F. Supp. 3d at 812 (quoting Ruane v. Shippensburg Univ., 871 A.2d 859, 862 (Pa. Commw. Ct. 2005)).
Third, Doe alleges that the University failed to conduct a full and fair investigation. As noted, under Pennsylvania law, "fundamental fairness" in the context of student disciplinary proceedings requires a student be given "notice of the charges and some opportunity for a hearing." Trs. of the Univ. of Pa., 270 F. Supp. 3d at 812 (quoting Ruane v. Shippensburg Univ., 871 A.2d 859, 862 (Pa. Commw. Ct. 2005)). More specifically, Pennsylvania courts have found a student is entitled to a "statement of the specific charges and grounds which...would justify [discipline]," and should be provided "the names of the witnesses against him," "an oral or written report on the facts to which each witness testifies," and an "opportunity to present . . . his own defense against the charges and to produce either oral testimony or written affidavits of witnesses on his behalf." Id. (quoting Boehm v. Univ. of Pa. Sch. of Veterinary Med., 573 A.2d 575, 578-79 (Pa. Super. Ct. 1990)). Nevertheless, an educational institution need not provide "a full-dress judicial hearing, with the right to cross-examine witnesses." Boehm, 573 A.2d at 579.
The Court makes express that to which it could only gesture in its Memorandum disposing of Doe's motion for injunctive relief. Doe has failed to state a claim that the University breached its agreement with him by depriving him of fundamental fairness. Even accepting all the allegations of the Amended Complaint as true and drawing all inferences in Doe's favor, the motion to dismiss record shows Doe was provided with (1) the time, date, sexual nature, and locations of the alleged incidents, as well as the identities of his accusers, Mot. to Dismiss Ex. 1 at 1; (2) more than one opportunity to review the witness statements attached to the Report, Am. Compl. ¶ 116(3)(iii); (3) more than one opportunity to defend himself before the investigator, including the opportunity to provide an additional statement to her after reviewing the investigator's preliminary report, Mot. Dismiss Ex. 2 at 4; (4) the benefit of an administrative panel, distinct from the investigator, to determine his punishment, Am. Compl. ¶¶ 74-75, and yet another administrative panel to review his appeal of the initial panel's determination, id. ¶¶ 76-78; and (5) the opportunity to identify witnesses in his defense—a right which he exercised with such alacrity that seven of the ten total witnesses (excluding Roes 1 & 2) were people Doe identified, Mot. to Dismiss Ex. 2 at 3-4. These circumstances make it impossible for the Court to "draw the reasonable inference that the defendant is liable for the misconduct alleged," Iqbal, 556 U.S. at 678, and the Amended Complaint will be dismissed to the extent it alleges that the University breached its contract with Doe by depriving him of "fundamental fairness."
In addition to the three allegations discussed above, Doe's Amended Complaint also alleges that the University breached its contract with him by (1) limiting his access to the evidence against him, (2) finding him responsible without sufficient evidence, and (3) treating him "as if he was guilty from the start." Am. Compl. ¶ 116(3-5). None of these allegations is sufficient to state a claim. Initially, he has not identified a provision of either the Handbook or the Sexual Misconduct Policy that obligates the University to provide copies of the witness statements for him to keep.
Doe's claim that the University breached its contract by misapplying the preponderance of the evidence standard also fails. In support, Doe avers that there was no physical evidence to support Roes' complaints. Am. Compl. ¶ 116(4)(ii). Doe raised the absence of physical evidence in connection with Doe's request for injunctive relief. The Court found that he was unlikely to succeed on the merits of such a claim because he did not identify any provision of the contract requiring such evidence. He still has not done so. In further support of his conclusion that the University did not employ a preponderance standard, he avers Roe 1's statements were aided by a witness, who gave more than one statement to the investigator and accompanied Roe 1 when Roe 1 made her complaint to the University. Id. ¶ 116(4)(iii). The Sexual Misconduct Policy grants the investigator the authority to consider witness statements and make findings of fact. Am. Compl. Ex. A at § 2.10.2. That the investigator made a finding of fact as to the credibility of the complainant with which Doe disagrees does not mean the investigator failed to apply the correct standard of review. In light of the foregoing, the Court finds Doe has failed to adequately allege the University breached its contract with him by misapplying the preponderance of the evidence standard.
Finally, the Amended Complaint avers the University violated its contract with Doe by "treat[ing] John Doe as if he was guilty from the start, thereby tainting the investigative process and violating the guarantees of fundamental fairness and fair and impartial hearing." Am. Compl. ¶ 116(5). In support of this conclusion, he avers "University administrators acted from the beginning as someone who believed the complainants without conduc[t]ing any investigation." Id. ¶ 116(5)(i). However, he cites no specific examples of such conduct and this conclusory averment is insufficient to support a claim. See Fowler, 578 F.3d at 210. He also avers the he was prohibited from confronting his accuser and denied the right to a hearing before a panel. Id. ¶ 116(ii-iii). However, the University's guarantee of "fundamental fairness" does not, as a general matter, entitle him to such trial rights and he has cited no specific provision of the Handbook or Sexual Misconduct Policy granting him such rights. Doe was entitled to no more or less than a "statement of the specific charges and grounds which . . . would justify [discipline]," "the names of the witnesses against him," "an oral or written report on the facts to which each witness testifies," and an "opportunity to present . . . his own defense against the charges and to produce either oral testimony or written affidavits of witnesses on his behalf." Trs. of the Univ. of Pa., 270 F. Supp. 3d at 812. He was not entitled to a judicial hearing, Boehm, 573 A.2d at 579, and thus the Court finds he has failed to state a claim for breach of contract based on the University's purported mistreatment.
The Court will grant the University's motion to dismiss as it pertains to Count II and dismiss the breach of contract claim in its entirety because none of his allegations are sufficient to survive scrutiny under Rule 12(b)(6).
In Count III, which the Court will also dismiss, Doe alleges the University intentionally inflicted emotional distress in the course of investigating and disciplining him. In order to state a claim for intentional infliction of emotional distress under Pennsylvania law, a plaintiff must allege "(1) the defendant's conduct was extreme and outrageous; (2) the conduct was intentional or reckless; (3) the conduct caused emotional distress; and (4) the distress is severe." Chuy v. Phila. Eagles Football Club, 565 F.2d 1265, 1273 (3d Cir. 1979). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). "It is for the Court to determine in the first instance whether the conduct is extreme and outrageous, such that recovery may be permitted." Cheney v. Daily News L.P., 654 F. App'x 578, 583 (3d Cir. 2016) (citing Small v. Juniata College, 682 A.2d 350, 355 (Pa. Super. Ct. 1996)).
The Court will dismiss this claim. Even accepting as true what few facts (as distinct from conclusions) Doe has averred, the Court cannot say the alleged misconduct is "extreme and outrageous" enough to proceed. In Hoy, the Supreme Court of Pennsylvania noted "only the most egregious conduct" is actionable as the intentional infliction of emotional distress. 720 A.2d at 754. As evidence, it cited actionable conduct in Banyas v. Lower Bucks Hospital, 437 A.2d 1236 (Pa. Super. Ct. 1981), in which the defendant intentionally fabricated records to suggest the plaintiff murdered a third party resulting in his indictment for homicide, Papieves v. Lawrence, 437 A.2d 118 (Pa. 1970), in which the defendant killed the plaintiff's son with an automobile, and then buried him in a field where he was discovered months later, and Chuy, in which the defendant knowingly released false information that the plaintiff was suffering from a fatal disease, 595 F.2d at 1265.
Finally, in Count IV, Doe brings a claim for negligent infliction of emotional distress, which will be dismissed based on the gist of the action doctrine. In order to state a claim, a plaintiff must plead the elements of an ordinary negligence claim, see Toney v. Chester Cty. Hosp., 961 A.2d 192, 198 (Pa. Super. Ct. 2008), in addition to one of four scenarios: "(1) that the [defendant] had a contractual or fiduciary duty toward him; (2) that [plaintiff] suffered a physical impact; (3) that [plaintiff] was in a `zone of danger' and at risk of an immediate physical injury; (4) that [plaintiff] had a contemporaneous perception of tortious injury to a close relative," Doe v. Phila. Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 27 (Pa. Super. Ct. 2000). A plaintiff must also allege to have suffered "immediate and substantial physical harm," a standard met by pleading "symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and on-going mental, physical and emotional harm." Trs. of the Univ. of Pa., 270 F. Supp. 3d at 282 (internal alterations and quotations omitted).
The University argues Doe's negligent infliction of emotional distress claim is barred by the gist of the doctrine action, which prohibits a plaintiff from "re-casting" a claim sounding in breach of contract to one sounding in tort. eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) (noting "the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims"). "Although claims for breach of contract and negligence derive from a common origin, tort actions stem from breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus." Powell v. Saint Joseph's Univ., Case No. 17-4438, 2018 WL 994478, at *7 (E.D. Pa. Feb. 20, 2018) (quoting Bash v. Bell Tel. Co., 601 A.3d 825, 829 (Pa. Super. Ct. 2002)). This doctrine bars a tort claim "(1) arising solely from the contractual relationship between the parties; (2) when the alleged duties breached were grounded in the contract itself; (3) where any liability stems from the contract; and (4) when the tort claim essentially duplicates the breach of contract claim." Reardon, 926 A.2d at 486. The University contends each of these elements is met here, and Doe's negligent infliction of emotional distress claim must, therefore, be dismissed as duplicative of his breach of contract claim. Doe only obliquely responds, arguing the University and Doe had a special relationship sufficient to state a cause of action for negligence (and thus, presumably, for negligent infliction of emotional distress).
The Court finds the Superior Court's decision in Reardon to be persuasive, and will, on this basis, dismiss Count IV. In Reardon, a student was accused of plagiarizing sections of a biology paper in violation of the college's handbook, known as "The Compass." 926 A.2d at 479. Her professor notified the school, which triggered an investigation by the college's Honors Committee and a hearing before the school's College Judicial Board, both of which found against the student.
The Superior Court affirmed the trial court's decision. Id. at 487. In so doing, the Superior Court noted the student's claims were "premised on the concept that [the defendants] owed appellant, as a member of the college community, duties that are in addition to and apart from any contractual obligation raised." Id. (internal quotation marks omitted). The panel rejected this argument:
Id. at 487.
The gist of the action doctrine forecloses Doe's negligent infliction of emotional distress claim for the reasons it foreclosed the appellant's cause of action in Reardon. Doe alleges the University owes him "a duty of care for [his] emotional well-being." Am. Compl. ¶ 127. In support of the existence of this alleged duty, he avers the University's disciplinary policies and procedures are the "product of . . . adhesion," id. ¶ 125, and the University "creates, interprets and implements its disciplinary policies unilaterally," id. ¶ 126. Even accepting these allegations as true, Doe has offered no authority to support his position such conditions support the finding of a duty of care separate and apart from the Handbook and/or Sexual Misconduct Policy. The Court is not persuaded Doe's hypothetical duty is different from the "external and undefined general duty of care" the Superior Court flatly rejected in Reardon. Much like the relationship at issue there, in the absence of the Handbook and Sexual Misconduct Policy, there would be no relationship between Doe and the University, and thus, any liability the University could incur with respect to the disciplinary process necessarily arises from its contract with Doe. Moreover, like the Superior Court also noted in Reardon, the Court does not perceive—and Doe has not explained—how the University could be liable to him if he were unable to demonstrate a breach of the Handbook or Sexual Misconduct Policy. Therefore, the Court finds Doe's negligent infliction claim is barred by the gist of the action doctrine. See Powell, 2018 WL 994478, at *7 (dismissing negligence claim on gist of the action grounds where the "allegations aver only breaches of duties imposed by the parties' contractual agreement").
The final issue the Court must address is whether Doe will be granted leave to file a second amended complaint. Ordinarily, leave to amend must be "freely" given "when justice so requires." Fed. R. Civ. P. 15(a)(2). The Court need not do so, however, where amendment would be "inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The Court finds that dismissal with prejudice is appropriate here. Doe's Amended Complaint was filed with the benefit of this Court's decision on his request for injunctive relief (which raised nearly identical issues to those discussed here) as well as the University's motion to dismiss his original complaint. If Doe were able to develop additional support for his claims, he surely could and would have done so. He has not, and thus the Court finds that additional leave to amend would be futile.
In light of the foregoing, the Court will grant the University's Motion to Dismiss Doe's Amended Complaint for failure to state a claim upon which relief might be granted and dismiss each of the four counts contained therein with prejudice.
An appropriate order follows.
The Court appreciates the stakes of privacy in a matter as sensitive as this one and the parties' good intentions in maintaining that privacy thus far. Nevertheless, the matter of anonymity should have been put before the Court for the analysis required by Doe v. Megless, which requires a plaintiff to show "both (1) fear of severe harm, and (2) that the fear of severe harm is reasonable" as a precondition to rebutting the presumption of openness attached to judicial proceedings. Id. (quoting Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1043 (9th Cir. 2010)).
The Court has diversity jurisdiction to address Doe's state claims. The Court agrees with the University that citizenship is assessed as of the time the action is filed. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972) ("It is the citizenship of the parties at the time the action is commenced which is controlling."). Nevertheless, there is a general presumption that a college student who attends school outside of his home state is domiciled in his home state. Bradley v. Zissimos, 721 F.Supp. 738, 739 (E.D. Pa. 1989) ("It is generally presumed that a student who attends a university in a state other than the student's `home' state intends to return `home' upon completion of studies.") (citing Lyons v. Salve Regina Coll., 422 F.Supp. 1354, 1357 (D.R.I. 1976), rev'd on other grounds, 565 F.3d 200 (1st Cir. 1977)).
Here, Doe pled in the original complaint that he was a college student (prior to his expulsion), Compl. ¶ 3(b), and that he "currently resides in Philadelphia, Pennsylvania," id. ¶ 3(a). He did not plead that he was a "citizen" of Pennsylvania. In the Amended Complaint, Doe avers (1) he was a student at the University until January 18, 2019; (2) he "is a citizen of and domiciled in the state of North Carolina"; and, (3) he left North Carolina "only to attend college at the University". Am. Compl, ¶ 3(a-c). The two pleadings are not inconsistent. In the Amended Complaint, Doe merely avers in greater detail what the original pleading leaves to inference: Doe is a college student whose domicile is another state (North Carolina). Moreover, the University has done nothing to rebut the presumption that Doe, although residing in Philadelphia to attend school, was domiciled at the time in North Carolina. Accordingly, the Court finds that Doe was a citizen of North Carolina at the time the Complaint was filed, and thus there is complete diversity between the parties such that the Court has jurisdiction pursuant to 28 U.S.C. § 1332.
In the alternative, the Court finds that it possesses supplemental jurisdiction to hear Doe's state claims because they so overlap with his cause of action under Title IX that all of his claims— federal and state—form part of the same case or controversy. See 28 U.S.C. § 1367(a). Furthermore, the Court would not dismiss the state claims because it will dismiss the Title IX claim, see 28 U.S.C. § 1367(c)(3), because "considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification" for retaining supplemental jurisdiction. Sarpolis v. Tereshko, 625 F. App'x 594, 599 (3d Cir. 2016) (quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)). Dismissing Doe's state claims for lack of subject matter jurisdiction would defang this Court's decision by removing any preclusive effect vis-à-vis the intertwined state claims. See Tucker v. Secretary of Health and Human Services, 588 F. App'x 110, 114 (3d Cir. 2014) ("A judgment dismissing an action for lack of jurisdiction ordinarily has no preclusive effect on the cause of action originally raised."); see also Fed. R. Civ. P. 41(b) ("Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction . . . operates as an adjudication on the merits.") (emphasis added)). This would be a waste of resources, inconvenient and/or unfair because it would essentially allow Doe to refile his breach of contract and intentional and negligent infliction of emotional distress claims—which have been litigated through a preliminary injunction proceeding and an amendment in this Court—in state court, thus requiring the University to expend resources to defend the same claims in a different forum. As a result, even if the Court does not possess diversity jurisdiction, it would exercise supplemental jurisdiction to decide the pendent state claims on their merits.
