United States District Court, D. New Jersey, Camden Vicinage
LAW FIRM, P.C. By: Robert R. Fuggi, Jr. Esq.; Jonathan M.
Penney, Esq.; Peter S. Pascarella, Esq. Counsel for Plaintiff
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
BAUM DEVITO KAPLAN SCHAER TODDY, P.C. By: Timothy P. Mullin,
Esq. Counsel for Defendant Pi Kappa Phi Fraternity, Inc.
OFFICE OF DEBRA HART By: Cindy B. Shera, Esq. Counsel for
Defendants Michael Colandrea, Sherie Reid-Colandrea, and
BENNETT, BRICKLIN & SALTZBURG LLC By: Michael Dolich,
Esq. Counsel for Defendants Amy Tomm (deceased) and Yin Ben
OPINION [DKT. NOS. 37, 38, 39]
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE.
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
“Defendants”), in relation to a series of alleged
sexual assaults during Plaintiff's time as a student at
Stockton University.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.
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),  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).
matter now comes before the Court upon Motions to Dismiss,
filed by all Defendants (other than the Tomm Defendants)
(collectively, the “Moving
Defendants”). [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.
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.
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.
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. 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
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.
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.
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”).
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.
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