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Jones v. PI Kappa Alpha International Fraternity, Inc.

United States District Court, D. New Jersey

September 13, 2017

JANE JONES, Plaintiff,


          HON. KEVIN McNULTY, U.S.D.J.

         Plaintiff Jane Jones[1] has asserted seventeen causes of action regarding alleged sexual assaults at Ramapo College on November 14, 2014. (Compl. ¶ 33 (ECF no. I)).[2] 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.

         Currently 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 Wall.[3]

         Counts 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. § 10:5-12).

         For the 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.


         In 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:

         On or 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).

         When 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. ¶¶ 42-43).

         Other 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).

         C.L. 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).[4]

         Jones 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).

         Jones 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).


         A. Rule 12(b)(6) Standard

         Federal 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).

         Federal 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.

         B. Rule 12(b)(1) Standard

         A 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[4] (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 true. Id.

         I 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. ANALYSIS

         Section 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.

         A. Uncontested Dismissals

         Plaintiffs 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 dismissed.

         B. Sovereign Immunity

         The 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 Amendment.

         "'[E]ach 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).

         Ramapo 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.

         Under 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 ...

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