United States District Court, D. New Jersey
KEVIN McNULTY, U.S.D.J.
Jane Jones has asserted seventeen causes of action
regarding alleged sexual assaults at Ramapo College on
November 14, 2014. (Compl. ¶ 33 (ECF no.
The two persons who allegedly actually committed the sexual
assaults, identified herein as "C.L." and
"N.G., " are reportedly being prosecuted
criminally, and are not defendants here. This action seeks to
hold the College, its administrators and officials, and a
number of individuals liable for their roles in allowing
those assaults to occur.
before the Court is the motion of one group of defendants
(the "Ramapo Defendants") to dismiss the action for
lack of subject matter jurisdiction and failure to state a
claim upon which relief may be granted. See Fed. R.
Civ. P. 12(b)(1), 12(b)(6). The Ramapo Defendants are Ramapo
College of New Jersey, the Ramapo College Board of Trustees,
Ramapo College Public Safety Director Vincent Markowski,
Ramapo College President Peter Mercer, Ramapo College
Coordinator of Substance Abuse and Prevention Cory
Rosenkranz, and Ramapo College Acting Dean of Students and
former Title IX Coordinator Melissa Van Der
1-4 of the Complaint are not asserted against the Ramapo
Defendants, and are not implicated in the current motion.
Asserted against the Ramapo Defendants are Count 5 (state
tort law); Count 6 (Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681(a)); Count 7 (§ 1983,
deliberate indifference); Count 8 (§ 1983, state-created
danger); Count 9 (§ 1983, equal protection); Count 10
(New Jersey Civil Rights Act ("NJCRA"), N.J. Stat.
Ann. § 10:6-2); and Count 11 (New Jersey Law Against
Discrimination ("NJLAD"), N.J. Stat. Ann. §
reasons set forth below, the Ramapo Defendants' motion to
dismiss is for the most part denied. It is granted only as to
two claims as to which plaintiff did not contest the Ramapo
Defendants' contentions on this motion: Count 6, a Title
IX claim, insofar as it seeks injunctive relief, and Count 9,
an equal protection claim. The remainder of the complaint
will go forward as against the Ramapo Defendants.
considering a motion to dismiss, the Court is required to
treat the facts alleged in the complaint as true and to draw
all reasonable inferences in the plaintiffs favor. I
summarize those allegations as follows:
about Friday, November 14, 2014, Pi Kappa Alpha's Mu Zeta
Chapter held a "Date Night" party on Ramapo
College's Campus. (Compl. ¶¶ 33-35). The party
was held at the on-campus apartment of defendant John Hogan,
the fraternity chapter's sergeant-at-arms. (Id.
¶¶ 10, 12, 34-35). Plaintiff Jane Jones was a
nineteen-year-old Ramapo student at the time. (Id.
¶ 36). She was not originally invited to the party, but
attended after several fraternity members recruited
"random students outside of the apartment building"
to attend the party by "calling down" from
Hogan's balcony. (Id. ¶ 39).
Jones arrived at the party, a fraternity member named C.L.
served her alcoholic drinks until she was "completely]
inebriated." [Id. ¶¶ 38, 40). C.L.
then "lured" Jones into Hogan's bedroom.
(Id. ¶ 40). C.L. and Joshua William Newman
played "Rock, Paper, Scissors" outside Hogan's
bedroom door "to determine who would get to sexually
assault and rape" Jones. (Id. ¶ 41). C.L.
then sexually assaulted her. (Id. ¶¶
fraternity members, including Hogan, became aware of the
sexual assault. (Id. ¶ 43). Instead of
intervening to protect Jones, the other fraternity members
expelled C.L. and Jones from the party. Left behind at the
party were Jones's shoes, underwear, jacket, and school
identification. (Id. ¶¶ 43-47).
drove Jones across campus, passing through a number of campus
security checkpoints, to Mackin Hall, the freshman dormitory.
(Id. ¶ 50). C.L., who was not a freshman, did
not have access to the dorm. (Id. ¶ 51).
However, Christopher Rainone and Justin Sommers, who were
then Ramapo College students, provided C.L. with one of their
ID cards and allowed C.L. to use their dorm room.
(Id. ¶¶ 52-53). C.L. and another
individual, N.G., took Jones to the dorm room, where they
repeatedly sexually assaulted and raped her. (Id.
¶¶ 55-57). During much of this assault, the door
was open; Jordyn Massood, Christopher Rainone, and Justin
Sommers watched, "celebrated, " and videotaped the
assaults. (Id. ¶¶ 59-60).
suffered permanent and severe physical and psychological
injuries and emotional and mental distress, as well as
economic and other damages. (Id. ¶ 65). She was
unable to continue at Ramapo College and this incident has
had a negative effect on her educational career.
(Id. ¶ 66).
alleges that Ramapo College employees and representatives
(John and Jane Does), including public safety and security
employees on patrol and in security stations, were or should
have been aware that these events were unfolding, but failed
to intervene. (Id. ¶ 63). She also alleges that
members of Ramapo College's administration, named as
defendants in their official and individual capacities,
violated state, federal, and constitutional laws in that they
failed to implement and enact policies to prevent on-campus
sexual assault. (Id. ¶¶ 95-123).
APPLICABLE LEGAL STANDARDS
Rule 12(b)(6) Standard
Rule of Civil Procedure Rule 12(b)(6) provides for the
dismissal of a complaint, in whole or in part, if it fails to
state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products,
Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d
Cir. 2011). For the purposes of a motion to dismiss, the
facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff.
New Jersey Carpenters & the Trustees Thereof
v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302
(3d Cir. 2014).
Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, "a
plaintiffs obligation to provide the 'grounds' of his
'entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint's factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level,
so that a claim is "plausible on its face."
Id. at 570; see also West Run Student Housing
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169
(3d Cir. 2013). That facial-plausibility standard is met
"when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While "[t]he
plausibility standard is not akin to a 'probability
requirement'... it asks for more than a sheer
possibility." Iqbal, 556 U.S. at 678.
Rule 12(b)(1) Standard
motion to dismiss for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) may
be raised at any time. Iwanowa v. Ford Motor Co., 67
F.Supp.2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges
are either facial or factual attacks. See 2 James Wm. Moore,
Moore's Federal Practice § 12.30 (3d ed. 2007).
The defendant may facially challenge subject matter
jurisdiction by arguing that the complaint, on its face, does
not allege sufficient grounds to establish subject matter
jurisdiction. Iwanowa, 67 F.Supp.2d at 438. Under
the "facial" 12(b)(1) standard, as under Rule
12(b)(6), the allegations of the complaint are assumed to be
construe the Ramapo Defendants' arguments for dismissal
based on sovereign immunity and qualified immunity as a
facial challenge to the complaint's jurisdictional basis.
Accordingly, for these purposes the Court will take the
allegations of the complaint as true. See Gould Elecs.,
Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
III.A briefly discusses claims as to which plaintiff does not
oppose dismissal: Count 6, insofar as it seeks injunctive
relief, and Count 9. Section B addresses defendants'
sovereign immunity arguments regarding Counts 7 and 8.
Section C discusses Counts 7 and 8 for failure to state a
claim and qualified immunity. Section D covers
defendants' motion to dismiss the remainder of Count 6
(i.e., the claim for damages). Section E addresses
defendants' motion to dismiss the state-law claims in
Counts 5, 10, and 11.
brief states that she "does not oppose" the motion
to dismiss the equal protection claim (Count 9) and the
portion of her Title IX claim (Count 6) that seeks injunctive
relief. (Def. Brf. at 25-27, 34-36; Pl. Brf. at 31, 43).
Plaintiffs are "the masters of their complaints."
Erie Ins. Exchange v. Erie Indem. Co., 722 F.3d 154
(3d Cir. 2013). Jones, absent prejudice to the opposing
party, may choose which claims to pursue. Count 9 and the
portion of Count 6 that seeks injunctive relief are therefore
Ramapo Defendants argue that they enjoy Eleventh Amendment
sovereign immunity with respect to the § 1983 claims
brought against the college itself as a State entity, and
against college officials in their capacities as State
officials. (Def. Brf. at 6). The underlying question is
whether Ramapo College is a State entity, i.e., an "arm
of the state" that is entitled to invoke the Eleventh
state university exists in a unique governmental context, and
each must be considered on the basis of its own peculiar
circumstances'- including the specific statutes at play
and the practical reality of the institution's
autonomy." Maliandi v. Montclair State Univ.,
845 F.3d 77, 85 (3d Cir. 2016) (quoting Kovats v.
Rutgers, 822 F.2d 1303, 1312 (3d Cir. 1987)). Some
institutions in the state system have been definitively held
to be arms of the State. See, e.g., Maliandi, supra
(resolving a split among district courts and holding that
Montclair State University is an "arm of the State"
for Eleventh Amendment purposes); Nannay v. Rowan
College, 101 F.Supp.2d 272 (D.N.J. 2000) (finding on
summary judgment that Eleventh Amendment immunity applied to
Rowan College). Some, however, have not. See Kovats,
822 F.2d at 1312 (Rutgers not an arm of the state for
Eleventh Amendment purposes); Bostanci v. N.J. City
Univ., No. 08-4339, 2010 WL 4961621, at *l-3 (D.N.J.
Dec. 1, 2010) (New Jersey City University not an arm of the
state for Eleventh Amendment purposes).
College's status has not been settled by case law. As to
Ramapo, then, the issue requires a "fact-intensive
review that calls for [an] individualized
determination!]." Bowers v. NCAA, 475 F.3d 524,
546 (3d Cir. 2007). The party asserting sovereign immunity
bears the burden of proving entitlement to it. Christy v.
Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1144 (3d
Cir. 1995). Moreover, state-law sovereign immunity "is
an affirmative defense ...." Garcia v. Richard
Stockton Coll of New Jersey, 210 F.Supp.2d 545, 548
(D.N.J. 2002) (citing Carter v. City of
Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999) (citing
Christy, 54 F.3d at 1144)). I do not say it is
impossible to decide the issue at the motion to dismiss
stage, see infra, but these considerations tend to
weigh against it.
the Third Circuit's three-part Fitchik test, a
court must examine the following three elements: "(1)
whether the payment of the judgment would come from the
state; (2) what status the entity has under state law; and
(3) what degree of autonomy the entity has." Bowers
v. NCAA,475 F.3d 524, 546 (3d Cir. 2007) (citing
Fitchik v. New Jersey Transit Rail Operations, Inc.,873 F.2d 655, 659 (3d Cir. 1989)). None of the three
Fitchik factors is itself dispositive. The factors
are co-equals, Benn v. First Judicial Dist Of Pa.,426 F.3d ...