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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION THOMAS ROSSLEY, JR., Plaintiff, v. DRAKE UNIVERSITY, DRAKE UNIVERSITY BOARD OF TRUSTEES, EARL MARTIN, KATHRYN OVERBERG, JERRY PARKER, SENTWALI BAKARI, MARY HOWELL SIRNA, TRICIA MCKINNEY, and JERRY FOXHOVEN, Defendants.

No. 4:16-cv-00623-RGE-SBJ ORDER RE: DEFENDANTS’ PARTIAL MOTION TO DISMISS I.

INTRODUCTION

Plaintiff Thomas Rossley, Jr. brings this suit against a private university and university employees challenging the Title IX investigation concluding Plaintiff sexually assaulted a female student. The investigation resulted in his expulsion. The university defendants move for partial dismissal of his suit. ECF No. 20. Plaintiff resists. ECF No. 28. On May 17, 2017, the matter came before the Court for hearing. Hr’g Pl.’s Mot. Proceed Under Pseudonym & Defs.’ Mot. Dismiss Mins., ECF No. 36. Attorneys Frances Haas and Mary Funk appeared on behalf of Defendants Drake University, Drake University Board of Trustees, Earl Martin, Kathryn Overberg, Jerry Parker, Sentwali Bakari, Mary Howell Sirna, Tricia McKinney, and Jerry Foxhoven (collectively, “Defendants”)

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and argued in support of their

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Defendants Drake University and Drake University Board of Trustees are referred to collectively as the “Drake Defendants.” Defendants Earl Martin, Kathryn Overberg, Jerry Parker, Sentwali Bakari, Mary Howell Sirna, Tricia McKinney, and Jerry Foxhoven are referred to collectively as “Individual Defendants.”

Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 1 of 10

2 motion.

Id.

Attorneys Philip Byler and David Goldman appeared on behalf of Plaintiff.

Id.

Plaintiff argued in resistance to Defendants’ Partial Motion to Dismiss.

Id.

For the reasons set forth below, the Court grants in part and denies in part Defendants’ Partial Motion to Dismiss.

II.

STATEMENT OF RELEVANT FACTS

Plaintiff alleges Defendants: 1) violated Title IX of the Education Amendments Act of 1972; 2) violated the due process clause of the Fourteenth Amendment; 3) breached a contract between Defendants and Plaintiff in their investigation of the incident; 4) breached the covenant of good faith and fair dealing; 5) are liable for damages under a theory of negligent infliction of emotional distress; 6) discriminated against Plaintiff based on his disability in violation of Title II of the Americans with Disabilities Act; and 7) are liable for damages under theories of estoppel and reliance. Am. Compl. ¶¶ 169–249, ECF No. 46.

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Defendants request partial dismissal of Plaintiff’s suit. ECF No. 20. Defendants contend, and Plaintiff concedes,

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the complaint does not support liability for the Individual Defendants as to Counts I, III, IV, VI, and VII.

Id.

; Def.’s Br. Supp. Partial Mot. Dismiss, ECF No. 20-1; ECF No. 28 at 1 n.1. The Court therefore dismisses these counts as to the Individual Defendants. The Court considers the contested counts raised in Defendants’ Partial Motion to Dismiss: Count I, alleging the Drake Defendants violated Title IX under a disparate impact theory; Count

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As directed in the Court’s order denying his motion to proceed under a pseudonym, Plaintiff filed an amended complaint. ECF No. 46. This amended complaint is substantively identical to the original complaint except for its identification of Plaintiff as Thomas Rossley, Jr. rather than John Doe. Compare ECF No. 1 with ECF No. 46. Because the claims Plaintiff is pursuing remain the same, the amended complaint does not moot the parties’ arguments regarding Defendants’ Motion to Dismiss.

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Plaintiff’s resistance to Defendants’ motion to dismiss expressly concedes Counts I, III, VI, and VII as to the Individual Defendants. ECF No. 28 at 1 n.1. At the hearing on the motion, Plaintiff additionally conceded Count IV as to the Individual Defendants.


3 II, alleging Defendants violated Plaintiff’s Fourteenth Amendment rights; and Count V, alleging the Individual Defendants

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are liable for negligent infliction of emotional distress.

III.

LEGAL STANDARD

Defendants assert several of Plaintiff’s claims against them should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly

, 550 U.S. 544, 570 (2007));

accord

Braden v. Wal-Mart Stores, Inc.

, 588 F.3d 585, 594 (8th Cir. 2009). “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.’”

Topchian v. JPMorgan Chase Bank, N.A.

, 760 F.3d 843, 848 (8th Cir. 2014) (quoting

Hopkins v. Saunders

, 199 F.3d 968, 973 (8th Cir. 1999)). The Court must accept as true all factual allegations in the complaint, but not its legal conclusions.

Iqbal

, 556 U.S. at 678–79 (citing

Twombly

, 550 U.S. at 555–56). A plausible claim for relief “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id.

at 678. A plaintiff must “nudge[ ]their claims across the line from conceivable to plausible, [else] their complaint must be dismissed.”

Twombly

, 550 U.S. at 570. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’”

Iqbal

, 556 U.S. at 678 (quoting

Twombly

, 550 U.S. at 557). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Id.

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Count V alleges all Defendants are liable for negligent infliction of emotional distress.

See

ECF No. 46 ¶¶ 225–34. Defendants presently request the Court to dismiss Count V only against the Individual Defendants. ECF No. 20 ¶ 5.
