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Jones v. PI Kappa Alpha International Fraternity, Inc.

United States District Court, D. New Jersey

December 17, 2019

JANE JONES, Plaintiff,
v.
PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC.; BRETT HELBERG; DAVID MALINOWSKI; PI KAPPA ALPHA FRATERNITY -- LOCAL CHAPTER MU ZETA at RAMAPO COLLEGE; SKENDER AGIC; JOHN HOGAN; JOSHUA WILLIAM NEWMAN; RAMAPO COLLEGE OF NEW JERSEY; RAMAPO COLLEGE BOARD OF TRUSTEES; VINCENT MARKOWSKI; PETER MERCER; CORY ROSENKRANZ; MELISSA VAN DER WALL; CHRISTOPHER RAINONE; JUSTIN SOMMERS; KORIN LEVETSANOS; WAYNE JOHNSON; CHRISTIAN LOPEZ; NAKEEM GARDNER; JOHN/JANE DOES 1-20; and XYZ CORPORATIONS 1-10, Defendants.

          OPINION

          McNULTY, U.S.D.J.

         Plaintiff Jane Jones[1] has asserted twenty causes of action regarding alleged sexual assaults at Ramapo College on November 14, 2014. (Compl. ¶ 33 (DE 161)).[2] Two persons criminally charged with commission of the sexual assaults, Nakeem Gardner and Christian Lopez, have now pled guilty and been sentenced.[3] This action is brought against Ramapo College, the fraternity of which the assailants were members, and a number of individuals.

         Currently 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.[4]

         The 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.[5]

         For the reasons set forth below, the PIKE Fraternity Defendants' motion to dismiss the First Amended Complaint is granted in part and denied in part.

         I. FACTUAL BACKGROUND

         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, 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).

         When 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.).

         Other 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).

         Christopher 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).

         Jones 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).

         Jones 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. ¶¶ 8-9).

         II. APPLICABLE LEGAL STANDARD

         Federal 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).

         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.

         III. ANALYSIS

         Section 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 various crossclaims.

         A. State-Law Tort Claims

         Counts 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.

         1. Social Host Liability

         In 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 Jersey.

         Social 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).

         Injuries 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.

         A 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 guide here.

         Narleski discussed the Social Host Statute, [6] 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.

         The 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.

         The 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.

         Narleski 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.

         Narleski 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 ...


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