United States District Court, D. New Jersey
Jane Jones has asserted twenty causes of action
regarding alleged sexual assaults at Ramapo College on
November 14, 2014. (Compl. ¶ 33 (DE 161)). Two persons
criminally charged with commission of the sexual assaults,
Nakeem Gardner and Christian Lopez, have now pled guilty and
been sentenced. This action is brought against Ramapo
College, the fraternity of which the assailants were members,
and a number of individuals.
before the Court is the motion of one group of defendants for
judgment on the pleadings. See Fed. R. Civ. P.
12(c). The movants (referred to collectively as the
"PIKE Fraternity Defendants") are Pi Kappa Alpha
International Fraternity, Inc. ("PIKE"), Brett
Helberg, and David Malinowski. Helberg and Malinowski (the
"Individual Defendants") are alleged to be advisers
or consultants to PIKE and are being sued in both their
personal and official capacities.
counts of the First Amended Complaint at issue on this motion
are Counts 3, 4, and 11. Count 3 (Social Host Agency) and
Count 4 (Negligent Supervision) are asserted against all of
the PIKE Fraternity Defendants. Count 11 (New Jersey Law
Against Discrimination ("NJLAD"), N.J. Stat. Ann.
§ 10:5-12) is asserted against PIKE only.
reasons set forth below, the PIKE Fraternity Defendants'
motion to dismiss the First Amended Complaint is granted in
part and denied in part.
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, PIKE's Mu Zeta Chapter
held a "Date Night" party on the Ramapo College
Campus. (Compl. ¶¶ 38-39). The party was held at
the on-campus apartment of defendant John Hogan, the
fraternity chapter's sergeant-at-arms. (Id.
¶¶ 12, 39). Plaintiff Jane Jones was a
nineteen-year-old Ramapo student at the time. (Id.
¶ 40). She was not originally invited to the party, but
entered after several fraternity members recruited
"random students outside of the apartment building"
to attend the party by "calling down" from
Hogan's balcony. (Id. ¶ 43).
Jones arrived at the party, a twenty-four-year-old fraternity
"pledge" named Christian Lopez served her alcoholic
drinks until she was "completely] inebriated."
(Id. ¶¶ 42, 44). Lopez then
"lured" Jones into Hogan's bedroom.
(Id. ¶ 44). Lopez 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. ¶ 45). Lopez
then sexually assaulted her. (Id.).
fraternity members, including Hogan, became aware of the
sexual assault. (Id. ¶ 46). Instead of
intervening to protect Jones, the other fraternity members
expelled Lopez and Jones from the party. (Id.
¶¶ 47). Left behind at the party were Jones's
shoes, underwear, jacket, and school identification.
(Id. ¶ 57).
Rainone, Justin Sommers, and Wayne Johnson, who were then
Ramapo students, assisted Lopez in putting the "visibly
intoxicated" Jones into Lopez's car. (Id.
¶ 50). Lopez drove Jones across campus, passing through
a number of campus security checkpoints, to Mackin Hall, the
freshman dormitory. (Id. ¶ 61-62). Lopez, who
was not a freshman, did not have access to the dorm.
(Id. ¶ 62). However, Rainone and Sommers
provided Lopez with one of their ID cards and allowed Lopez
to use their dorm room. (Id. ¶¶ 63-64).
Lopez and another individual, Nakeem Gardner, took Jones to
the dorm room, where they repeatedly sexually assaulted and
raped her. (Id. ¶ 65). During much of this
assault, the door was open; Jordyn Massood, Rainone, Sommers,
and Korin Levetsanos watched, "celebrated," and
Massood, Rainone, and Sommers videotaped the assaults.
(Id. ¶¶ 70-72).
suffered permanent and severe physical and psychological
injuries and emotional and mental distress, as well as
economic and other damages. (Id. ¶ 77). She was
unable to continue at Ramapo College, and this incident has
had a negative effect on her educational career.
(Id. ¶ 78).
alleges that PIKE sets the policies and standards for each
local fraternity chapter. (Id. ¶ 83). The PIKE
Fraternity Defendants allegedly knew or should have known
that the Mu Zeta Chapter had been previously disciplined for
alcohol violations and sexual assault incidents.
(Id. ¶ 156). The Individual Defendants were
allegedly advisors or consultants to the Mu Zeta Chapter on
behalf of PIKE and were responsible for training,
supervising, monitoring and enforcing PIKE's code of
conduct with respect to the Mu Zeta Chapter. (Id.
APPLICABLE LEGAL STANDARD
Rule of Civil Procedure Rule 12(c) provides for judgment on
the pleadings after the pleadings have been closed. "A
motion for judgment on the pleadings will be granted,
pursuant to Fed.R.Civ.P. 12(c) if, on the basis of the
pleadings, the movant is entitled to judgment as a matter of
law. The court will accept the complaint's well-pleaded
allegations as true, and construe the complaint in the light
most favorable to the nonmoving party, but will not accept
unsupported conclusory statements." DiCarlo v. St.
Mary Hosp., 530 F.3d 255, 262-263 (3d Cir. 2008)
(internal citations omitted). For present purposes, there is
no material difference in the legal standards between a Rule
12(c) motion and a Rule 12(b)(6) motion. Spruill v.
Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004).
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.
III.A discusses Count 3 (Social Host Agency) and Count 4
(Negligent Supervision), in relation to the Individual
Defendants. Section B addresses Count 11 (NJLAD Hostile
Educational Environment), asserted against PIKE. Section C
addresses the Individual Defendants' motion to dismiss
State-Law Tort Claims
3 and 4 are asserted against all of the PIKE Fraternity
Defendants, but defendants do not dispute that these counts
state a claim against PIKE itself. (Def. Reply Brf. at 1).
Therefore, I will consider the motion to dismiss Counts 3 and
4 only insofar as they are asserted against the Individual
Defendants, Helberg and Malinowski.
Social Host Liability
Count 3, Jones alleges that the Individual Defendants are
subject to "social host agency" liability. That, at
least as it might apply here, is a novel legal theory in New
host liability was introduced in New Jersey through its
Supreme Court in Kelly v. Gwinnell, 96 N.J. 538
(1984). Certain of the principles stated in Kelly
were codified by the legislature several years later in N.J.
Stat. Ann. §§ 2A: 15-5.5 to -5.8 (the "Social
Host Statute"). Liability under that statute is limited
to injuries arising out of the "negligent operation of a
vehicle." N.J. Stat. Ann. § 2A: 15-6.6(b)(3).
Further, the Social Host Statute declares itself to be
"the exclusive civil remedy for personal injury or
property damage resulting from the negligent provision of
alcoholic beverages by a social host to a person who has
attained the legal age to purchase and consume alcoholic
beverages." N.J. Stat. Ann. § 2A: 15-5.6(a).
caused by the operation of a vehicle are not at issue here,
so the Social Host Statute does not apply. The statute
preempts other bases for liability for serving alcohol to an
adult, but leaves open liability for serving alcoholic
beverage to minors. See Dower v. Gamba, 647 A.2d
1364, 1369 ( N.J.Super.Ct.App.Div. 1994) (citing cases
imposing liability for serving alcohol to minors, stating
that the Social Host Statute left such liability
"subject to common-law development by the courts").
Thus a pre-Social Host Statute case applied the reasoning in
Kelly to provide a cause of action to an intoxicated
minor guest against the parents who owned the residence where
the party occurred. Batten by Batten v. Bobo, 528
A.2d 572, 573 ( N.J.Super. Ct. Law Div. 1986). A post-Social
Host Statute case cited Batten as good authority,
agreeing that the wording of the statute "strongly
suggest[ed] that principles of liability for permitting
minors to obtain alcoholic beverages is a subject for
common-law development by the courts." Morella v.
Machu, 563 A.2d 881, 884 ( N.J.Super.Ct.App.Div. 1989).
The parents, Morella held, were not present in their
home when the party occurred, but nevertheless "had a
duty to the public to exercise reasonable care to arrange for
competent supervision of their teenagers while they were out
of the state on vacation." Id. at 885.
recent Appellate Division case discussed at length the
current state of the law as to liability for provision of
alcohol to minors. Estate of Narleski v. Gomes, 211
A.3d 737 ( N.J.Super. Ct. App. Div.) (Sabatino, J.),
certif. granted, 218 A.3d 292 (2019). I take it as a
discussed the Social Host Statute,  but also considered an
alternative basis for liability under a "quasi-criminal
statute," N.J. Stat. Ann. § 2C:33-17 (the
"Service to Underage Drinkers" statute). 211 A.3d
at 744-45. The Service to Underage Drinkers statute mandates
that anyone who "purposefully or knowingly offers or
serves or makes available an alcoholic beverage to a person
under the legal age for consuming alcoholic beverages or
entices or encourages that person to drink an alcoholic
beverage" or "makes real property owned, leased or
managed by him available to, or leaves that property in the
care of, another person with the purpose that alcoholic
beverages will be made available for consumption by, or will
be consumed by, persons who are under the legal age for
consuming alcoholic beverages" shall be guilty of a
disorderly persons offense. N.J. Stat. Ann. § 2C:33-17.
While allowing for the possibility of such liability, the
Narleski court set it aside on factual grounds.
parent, the Narleski court found, did not make
alcohol available and was unaware that her son as host, or
his friends, were drinking there. Nor did the parent evince
any purpose to make alcoholic beverages available to the
underage drinkers in their home. As for the host, her son,
the Court found that it was actually a third party who
purchased the alcohol and furnished it-i.e., made it
"available." And the son did not own, lease, or
manage his parents' home, where the consumption occurred.
same holds true here. The Service to Underage Drinkers
statute limits liability to those who (1) purposefully or
knowingly made alcohol available to an underage drinker or
(2) owned, leased or managed real property where alcohol will
be consumed by underage drinkers. On the first prong, there
is no factual allegation that the Individual Defendants
themselves made alcohol available to any of the fraternity
members or their guests. At best, the complaint alleges that
they were generally responsible for supervising the
fraternity. As for the second, real-property prong, Jones
alleges that the party took place on the Ramapo College
campus, and there is no allegation that the fraternity, let
alone the Individual Defendants, had any ownership, rental,
or management-based interest in the property.
then discussed common law theories of liability. To
understand the discussion, it is necessary to know that the
general age of majority in New Jersey is 18, although the
drinking age is 21.
acknowledged the general principle that parents, even when
absent, are responsible to make reasonable arrangements for
supervision of their minor children in relation to alcohol.
See, e.g., Batten, supra. In relation to an adult
child, however, the court declined to recognize a parental
duty giving rise to social host liability. 211 A.3d at
747-48. The single, narrow exception to that rule was based
on a "special ...