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D.D. v. Stockton University

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

July 26, 2019

D.D., Plaintiff,
STOCKTON UNIVERSITY, et al., Defendants.

          FUGGI LAW FIRM, P.C. By: Robert R. Fuggi, Jr. Esq.; Jonathan M. Penney, Esq.; Peter S. Pascarella, Esq. Counsel for Plaintiff D.D.

          OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY By: Michael R. Sarno, Deputy Attorney General R.J. Hughes Justice Complex Counsel for Defendants Stockton University and the Stockton University Board of Trustees

          GREENBAUM, ROWE, SMITH & DAVIS, LLP By: John D. North, Esq.; Jemi Goulian Lucy, Esq.; Irene Hsieh, Esq. Counsel for Defendants Stockton University and the Stockton University Board of Trustees

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

          LAW OFFICE OF DEBRA HART By: Cindy B. Shera, Esq. Counsel for Defendants Michael Colandrea, Sherie Reid-Colandrea, and Katie Colandrea

          BENNETT, BRICKLIN & SALTZBURG LLC By: Michael Dolich, Esq. Counsel for Defendants Amy Tomm (deceased) and Yin Ben Tomm

          OPINION [DKT. NOS. 37, 38, 39]


         Plaintiff D.D. (“Plaintiff”) brings this action against Defendants Stockton University (“Stockton”), the Stockton University Board of Trustees (the “Stockton Board”)(together with Stockton, the “Stockton Defendants”), the Pi Kappa Phi Fraternity, Inc. (“PKP”), Katie Colandrea, Michael Colandrea, and Sherie Reid-Colandrea (the “Colandrea Defendants”), and Yin Ben Tomm and Amy Tomm (the “Tomm Defendants”)(collectively, “Defendants”), in relation to a series of alleged sexual assaults during Plaintiff's time as a student at Stockton University.[1]Plaintiff alleges that these sexual assaults occurred in October 2012 at the off-campus PKP fraternity house in Egg Harbor City, New Jersey, and in December 2015 at the Colandrea family's house in Barnegat, New Jersey.

         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, 20 U.S.C. § 1092 (the “Clery Act”) and Title IV of the Higher Education Act of 1965, 20 U.S.C. § 1070, et seq. (the “HEA”)(Counts 5-12), [2] the Drug-Free Schools and Communities Act Amendments of 1989, 20 U.S.C. § 1011 (the “DFSCA”)(Count 13), personal injury tort claims (Counts 14-21), as well as various derivative claims and theories of liability (Counts 22-35).

         This matter now comes before the Court upon Motions to Dismiss, filed by all Defendants (other than the Tomm Defendants) (collectively, the “Moving Defendants”).[3] [See Dkt. Nos. 37, 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 claims against the Moving Defendants 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 alleges that she was the victim of sexual misconduct during her time at Stockton, including at least two sexual assaults. First, Plaintiff alleges that she was subjected to sexually inappropriate behavior at two parties hosted at PKP's off-campus house in October 2012. Upon arriving at the first party, Plaintiff contends that unnamed PKP members told her that only “really attractive” female students would be admitted to the party for free, and that “she wasn't pretty enough to get in for free.” See Compl. at ¶ 20. Plaintiff states that she told she either needed to flash her breasts or pay $15 for admission. Id. at ¶ 21-22. Plaintiff decided to pay the $15 entrance fee.

         At a second PKP party in October 2012, Plaintiff alleges that an unnamed PKP member with a “blonde crew cut” came up from behind Plaintiff and “grabbed her buttocks... then proceeded to put his hand between D.D.'s legs, making contact with D.D.'s vagina outside her pants” and called her a “cunt.” See Compl. at ¶¶ 26-28. Plaintiff states that she responded by hitting her assailant, who then “forcefully push[ed]” her in return. Id. Plaintiff alleges that she reported the sexual assault to local police officers who had arrived to shut down the party, but that they told her to “stop talking since she had assaulted her attacker” in response. Id. at ¶ 29. Plaintiff makes no allegation that she reported either October 2012 incident to representatives from Stockton University. However, Plaintiff claims that she heard from another friend who allegedly reported PKP that “the University could not do anything, despite the fact that the fraternity members were Stockton University student[s], ” because PKP “was operating as an unrecognized organization.” Id. at ¶ 32.

         Plaintiff also alleges that she was sexually assaulted at the Colandrea family's house following their holiday party in December 2015 (by a male guest referred to only as “Eric” in the Complaint). As described in the Complaint, Plaintiff attended the Colandrea holiday party on December 14, 2015, where “there was an abundance of underage drinking involving minors... and many Stockton University students had been invited to the party.” Compl. at ¶ 37. Plaintiff alleges that she was informed by Katie Colandrea that “Eric” had shown an interest in Plaintiff.[4] Id. at ¶ 39. Around 3:00 a.m. on December 15, 2015, Plaintiff contends that an intoxicated Eric “headed over to D.D. and placed his hands on her waist in a sexual manner” and stated that “she was ‘beautiful.'” Id. at ¶ 41. In response, Plaintiff told Eric not to touch her and he “immediately removed both of his hands from her waist.” Id.

         Later in the early morning hours on December 15, 2015, Plaintiff accepted Katie Colandrea's offer to spend the night at the house because it was very late. See Compl. at ¶ 43. Plaintiff states that she was laying on an air mattress on the floor of Katie Colandrea's room, when Eric, who had been sleeping on the other side of the room, approached Plaintiff and told her that “he did not want D.D. to be lonely.” Id. at ¶ 45. Although Plaintiff advised Eric that she was not lonely, “Eric began touching D.D. all over, groping and sexually assaulting her.” According to Plaintiff, “Eric forcefully pulled her hair, ripped/tore D.D.'s shirt and bra off, and digitally penetrated her in her vagina.” Id. Plaintiff “believes she froze during the sexual assault since she was involved in a previous sexual assault at the Phi Kappa Phi [sic] fraternity house.” Id. at ¶ 46.

         Plaintiff states that she escaped from the sexual assault and told Eric “not to touch her” after Katie Colandrea “violently awoke sick from being so intoxicated from the party earlier and was throwing up.” Compl. at ¶ 47. Plaintiff alleges that she ran from her assailant in tears to the bathroom connected to the bedroom, followed by Katie who was throwing up, and then “advised Katie of the sexual assault that had just occurred.” Id. at ¶ 48. Plaintiff contends that Katie's mother, Sherie, entered the bathroom while Plaintiff was telling Katie about the sexual assault. Id. Plaintiff states that Katie began throwing up again and “Sherie made no attempt to keep D.D. from leaving the house after she had just been sexually assaulted.” Id. Around 4:00 a.m., Plaintiff gathered her belongings, left the Colandrea house, and headed back to her dorm room on the Stockton University campus. Id. at ¶¶ 49-50.

         After returning to her dorm room, Plaintiff told her roommate about the alleged sexual assault. See Compl. at ¶ 50. Plaintiff claims that she reported the sexual assaults to Karen Matsinger, Assistant Director of Counseling Services at Stockton University, in a counseling session that following Monday. Id. In turn, Plaintiff alleges that Matsinger referred her to Laurie Dutton, Stockton University's Director of Counseling, who contacted the Stockton Police Department (the “SPD”). Id.

         Plaintiff contends that Dutton and the SPD launched “a campaign of manipulation, control, and non-disclosure” to “talk D.D. out of pursuing criminal charges against her attacker.” Compl. at ¶ 51. Plaintiff states that Dutton and the SPD pressed her on whether she “really wanted to press charges” and told her that doing so “wasn't good for her mental health, ” adding that Plaintiff “would not win” a case against her attacker. Id. at ¶ 52. Meanwhile, Plaintiff continued her counseling sessions with Matsinger, which Plaintiff describes as “a clear conflict of interest with D.D. also being an employee of the Counseling Center.” Id. at ¶ 53.

         On September 3, 2018, Plaintiff commenced this action against Defendants, alleging, among other things, that the sexual assaults “have had a negative and very detrimental effect on D.D.'s everyday life.” Compl. at ¶ 55. Now, this matter comes before the Court upon Moving Defendants' motions to dismiss. The Moving Defendants present varying arguments in favor of dismissal, but all ...

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