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D. N. v. Stockton University

United States District Court, D. New Jersey, Camden Vicinage

June 28, 2019

D.N., Plaintiff,

          FUGGI LAW FIRM By: Robert R. Fuggi, Esq. Counsel for Plaintiff D.N.

          OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY By: Michael R. Sarno, Deputy Attorney General R.J. Hughes Justice Complex Counsel for Defendant Stockton University

          CONRAD, O'BRIEN, GELLMAN & ROHN, PC By: Kevin Dooley Kent, Esq. Counsel for Defendant Daniel Novak

          ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY, P.C. By: Timothy P. Mullin, Esq. Counsel for Defendant Pi Kappa Phi Fraternity, Inc.



         Plaintiff D.N. (“Plaintiff”) brings this action against Defendants Stockton University (“Stockton”), Daniel Novak (“Novak”), and Pi Kappa Phi Fraternity, Inc. (“PKP”) (collectively, “Defendants”), in relation to an alleged sexual assault during her time as a student at Stockton University. Plaintiff alleges that she was sexually assaulted by Defendant Daniel Novak, and possibly others, in Novak's dorm room on September 23, 2014, following an off-campus “date night” party at the local PKP fraternity house. Plaintiff's Complaint (the “Complaint”)[Dkt. No. 1] asserts causes of action under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, et seq. (Counts 1-2), Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 (Counts 3-4), the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”), 20 U.S.C. § 1092 (Count 5), [1] personal injury tort claims (Counts 6-16), as well as various derivative claims (Counts 17-25).

         This matter now comes before the Court upon Motions to Dismiss, filed by all Defendants. [See Dkt. Nos. 36, 38, 39]. Although the Court accepts all of Plaintiff's disturbing allegations as true for purposes of these motions, the Court is constrained by legal precedent mandating dismissal. For the reasons set forth herein, Defendants' Motions to Dismiss will be granted, and Plaintiff's Complaint will be dismissed, without prejudice. The Court, however, will allow Plaintiff thirty (30) days to file an amended complaint, addressing the deficiencies discussed in this Opinion.


         Plaintiff's Complaint describes her alleged sexual assault in grave detail. As averred, Plaintiff originally met Daniel Novak at Stockton University's freshman orientation early in summer 2014, kept in touch with him throughout the rest of the summer, and became friendly after they arrived on campus for their freshman year in the fall. See Compl. at ¶¶ 13-16. In September 2014, Novak invited Plaintiff to join him for a “Fraternity Date Night/Rush Event” for pledges and their dates at the Pi Kappa Phi fraternity house. Id. at ¶ 23. Novak told Plaintiff that the event would be “dressier than a regular party” and suggested that “Plaintiff wear something nice.” Id. at ¶ 24. Plaintiff states that it made her “feel a little special” that she had been asked to an “invite only” rush party. Plaintiff states that she was unaware that PKP was an “off-campus” fraternity that was “unrecognized” by the University. Id. at ¶ 25.

         Upon arriving at the fraternity house around 12:30 a.m. on September 23, 2014, multiple PKP members or pledges “gathered around” Plaintiff and complimented “her for the way she looked.” See Compl. at ¶ 57. After entering the party, “Novak brought over two alcoholic drinks, one for [Plaintiff] and one for him, which were both in clear cups, ” but one was red and the other was green. Id. at ¶¶ 63-64. Novak handed Plaintiff the drink with the “green concoction.” Id. Because the cups were clear, Plaintiff noticed that all of “the girls had to drink the green drinks and the guys were drinking the red drinks.” Id.

         Plaintiff recalls that her green drink “tasted like watered down fruit juice and also that it was very salty with an unusual taste.” See Compl. at ¶ 65. Plaintiff commented on the unusual taste of her drink and asked Novak if she could taste his drink. Plaintiff noticed that Novak's drink “tasted vastly different” than her own. Id. at ¶ 68. Plaintiff alleges that she asked Novak to taste her drink, but he refused. Id. at ¶ 69. After becoming uncomfortably hot and thirsty in the fraternity house, Plaintiff asked Novak for another drink and he provided her with another cup of the “green drink.” Id. at ¶¶ 70-71.

         Plaintiff danced with Novak, but soon thereafter, she “began to feel a very odd feeling suddenly come over her.” See Compl. at ¶ 73. Plaintiff remembers “feeling very weird. Not drunk but not right.” Id. at ¶ 75. Novak stated that he would get them a ride back to the Stockton campus. Id. at ¶ 76. Plaintiff states that her last memory of the night before “blacking out” was being in the PKP basement “with an extreme headache, being very thirsty and tired and feeling strangely” and telling Novak that she wanted to go back to her dorm. Id. at ¶¶ 77-78. Plaintiff estimates that she was only at the PKP house for forty-five minutes to an hour before becoming incapacitated. Id. at ¶ 79.

         Plaintiff's next memory was “waking up in Defendant Novak's on-campus Stockton dormitory room... in his bed with him staring at her naked.” See Compl. at ¶ 81. Plaintiff recalls that she “was unusually sore all over, including her vagina and anus, and felt that something sexual had happened to her.” Id. at ¶ 82. Plaintiff “did not remember taking off any of her clothes because she was too incapacitated.” Id. Plaintiff noticed that her undergarments were missing and that “the clothes she had worn to the party the night before were inside out and [] rolled into a ball on the floor as if they were pulled off her and thrown.” Id. at ¶¶ 84-85. “Barefoot, disheveled, and sore (including in her vagina and anus), ” Plaintiff headed back to her dorm room. Id. at ¶ 90.

         Plaintiff alleges that she “never consented to sexual relations with Novak that night in question. It would have been impossible for her to consent considering her incapacitated state.” See Compl. at ¶ 107. Later on September 23rd, Plaintiff saw a hometown friend at Starbucks and confided in him that “she thought something bad had happened, ” and “that she may have been drugged and/or sexually assaulted.” Id. at ¶¶ 93-94. Plaintiff missed two classes that day as she recovered from the previous night. Id. at ¶ 97. The next day, Plaintiff “was so sore she could barely move” and “for a few more days, she was extremely sore, bleeding vaginally and rectally.” Id. at ¶¶ 100, 102.

         In the days following the sexual assault, Plaintiff exchanged text messages with Novak and inquired as to whether he had sex with her on the 23rd, to which he replied “yes, don't you remember?” See Compl. at ¶ 106. The next month, Novak called Plaintiff and said “he was sorry for what happened a month before, ” but did not elaborate further. Id. at ¶ 110. Based on a subsequent police investigation that showed two of Novak's friends swiping into his dorm hallway within minutes of his arrival on September 23, 2014, “Plaintiff believes she may have been sexually assaulted by all three (3) male Stockton University students that night - both vaginally and anally.” Id. at ¶ 108.

         Following the sexual assault, Plaintiff claims that she “felt mentally distraught and emotionally unstable due to this traumatic experience.” See Compl. at ¶ 109. Plaintiff became depressed, anxious, and “found it difficult to make it through each week of school and she did not go out or attend Stockton University parties anymore.” Id. at ¶ 112. In the spring of 2015, Plaintiff began attending University-sponsoring counseling. Id. at ¶ 120.

         On April 15, 2015, Plaintiff disclosed the sexual assault to her University-sponsored counselor, Carlos Martinez, which immediately resulted in a meeting with representatives from the University, Laurie Dutton and Amy Jones. See Compl. at ¶ 123. As the Spring 2015 ended, Plaintiff alleges that she and her mother were told “not to discuss the incident publicly” ...

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