MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
This case arises from alleged sexual misconduct that occurred on Defendant University of St. Thomas’s (“UST”) campus in December 2015. Even though the Ramsey County Attorney decided not to prosecute Plaintiff John Doe, UST initiated disciplinary proceeding and suspended Doe. Doe filed an Amended -Complaint regarding the disciplinary process, alleging six causes of action. UST moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the Court will grant UST’s motion to dismiss Counts I through V, but deny UST’s motion to dismiss Count VI,
BACKGROUND
1. UST SEXUAL MISCONDUCT POLICY
A. Prohibited Conduct
In December 2015, UST’s Sexual Misconduct Policy (the “Policy”) prohibited students from engaging in “[a]ll forms of sexual misconduct.” (Am. Compl., Ex. 1 at 2, May 20, 2016, Docket No. 34.) Students who “engaged in sexual misconduct ... [were] subject to disciplinary action.” (Id. at 3.) The Policy defined “sexual misconduct” to include “non-consensual sexual intercourse.” (Id,) The Policy also defined “consent” to engage in sexual acts as “conduct or words that indicate[d] a person freely agree[d].” (Id.) In defining “consent,” the Policy explicitly stated “Consent to one form of sexual activity [did] not imply consent to other forms of sexual activity” and “[s]ilence or failing to resist a sexual act [did] not constitute consent.” (Id.)
B. Response and Resolution Process
The Policy included a process to address allegations of sexual misconduct. (Id. at 7-8, 10-17.) The Policy set forth guidelines UST would follow when investigating allegations of sexual misconduct, but also stated the “provisions [were] intended to be flexible so as to allow UST to meet its legal obligations while fulfilling its educational mission.” (Id. at 10.) The Policy permitted “[t]he Title IX Coordinator [to]
UST applied its formal sexual-misconduct resolution. process when a complaint alleged nonconsensual intercourse. (Id. at 13.) Under this process, the “Response Manager”—the Dean of Students—would first take interim actions to protect the parties and assign a “Process Advisor” to “explain the response and resolution process and provide information about available resources.” (Id. at 10-12.) Next, the Response Manager would assign one or more “Factfinders” to “eonduct[ ] an investigation into the facts of the incident” and notify both the complainant and the respondent. (Id. at 14.) Following the notices, the Process Advisor would hold a meeting with the respondent to review the allegations, discuss available resources, review UST’s Policy, and answer any questions. (Id. at 14-15.) The Policy also indicated UST would provide the respondent a written summary of all allegations and defenses during the factfinding process. (Id. at 14.)
With regard to the Factfinders’ investigation, the Policy stated the Factfinders would conduct interviews, offer written summaries, and afford both the complainant and the respondent an opportunity to respond. (Id.) As part of the response, both the complainant and the respondent could identify witnesses, documents, and other evidence; offer questions to ask witnesses; and supply responsive statements. (Id.)
After completing the investigation, the Factfinders would “weigh the evidence and determine whether it [was] more likely than not. (using a ‘preponderance of the evidence’ standard) that the [Respondent [was] responsible for the misconduct ah leged.” (Id. at 15.) If the Factfinders found the respondent responsible, a determination would be made that the Policy had been “violated,” a report would be prepared, and the Response Manager would determine appropriate sanctions. (Id.) Finally, UST would provide a written notification of the Factfinders’ decision and give both the complainant and the respondent an opportunity to appeal. (Id. at 15-16.)
II. INCIDENT
On December 11, 2015, Doe—a freshman at UST—attended an on-campus party. (Am.- Compl.-¶¶ 1, 30.) Doe, the alleged female victim (“Jane Doe”), and others left to attend an off-campus party. (Id. ¶¶ 36-37.) Shortly thereafter, Jane Doe indicated she wanted to go back to her dorm room and Doe offered to walk with Jane Doe. (Id. ¶ 41.)
Doe and Jane Doe engaged in consensual kissing in the dorm’s common room! (Id. ¶ 46.) The pair eventually ended up in the bathroom connected to Jane Doe’s dorm room. (Id. ¶¶ 52-55, 93-95.) Doe and Jane Doe gave varying accounts regarding how they ended up in the bathroom. (Id.) While in the bathroom, Doe digitally penetrated Jane Doe. (Id. ¶ 62.) Doe and Jane Doe both agreed Jane Doe’s vagina bled after the digital penetration. (Id. ¶¶ 68-69.) Jane Doe also alleged in two police reports that she did not consent to the digital penetration. (Id. ¶¶ 95-97,107-08,112.) '
Doe does not dispute that Jane Doe did not verbally consent to the digital penetration. Doe alleges, however, that Jane Doe did not object to removal of her pants and that Jane Doe stroked his penis, which Doe interpreted as consent to the digital penetration. (Id. ¶¶ 59-62.)
III. INVESTIGATIONS
Jane Doe reported the incident to UST on December 13, 2015, and the St. Paul Police Department a day later. (Id., Ex. 2.) Police arrested Doe on December 14,2015, but the Ramsey County Attorney’s Office
UST also investigated the incident. Doe received a written notice from the Dean of Students informing Doe that Jane Doe made a complaint. (Am. Compl., Ex. 6.) The letter provided notice of interim actions UST would take, including (1) a no contact order applicable to both parties; (2) removal of Doe from his on-campus residence during the investigation; and (3) a prohibition against Doe being on campus except for specified purposes, such as going to class. (Id.) Doe received a second letter from the Dean of Students on December 15, 2015, advising Doe about the Policy, identifying the Factfinders, and informing Doe about his rights. (Am. Compl., Ex. 7.)
UST held a meeting with Doe and his attorney to explain Jane Doe’s allegations and the prQcess UST would follow. (Am. Compl. ¶ 130; id., Ex. 4.) The Factfinders investigated the incident and interviewed several witnesses, including Doe, Jane Doe, and witnesses identified by Doe. (Am. Compl. ¶¶ 132-42; id., Ex. 8.) Doe also provided additional evidence, which the Factfinders reviewed and considered as part of the investigation. (Am. Compl, Ex. 8.) When the Factfinders concluded the investigation, the Factfinders informed Doe he had been found responsible for non-consensual sexual intercourse and would be suspended from UST until fall semester 2017, pending his right to appeal. (Am. Compl. ¶¶ 144,153.)
Doe appealed. (Id., Exs. 11-12.) A five-member board and an Appeal Officer considered the appeal and found no grounds to change the determination. (Id. ¶¶ 154-55.) The Appeal Officer ultimately upheld the original determination of the Factfin-ders, but adjusted the sanction—extending the suspension period until spring semester 2018. (Am. Compl. ¶¶ 154-55; id., Ex. 12.)
IV. PROCEDURAL HISTORY
On May 20, 2016, Doe filed an Amended Complaint alleging UST violated Doe’s rights through its application of the Policy. The Amended Complaint alleged six causes of action: (1) Declaratory Judgment under Title IX (Count I); (2) Violation of Title IX—Erroneous Outcome (Count II); (3) Violation of Title IX— Deliberate Indifference (Count III); (4) Breach of Contract (Count IV); (5) Breach of the Covenant of Good Faith and Fair Dealing (Count V); and (6) Negligence (Count VI). (Id. ¶¶ 158-211.) On June 6, 2016, UST filed a motion to dismiss the Amended Complaint, in its entirety, asserting Doe failed to state a claim upon which relief can be granted.
DISCUSSION
I. STANDARD OF REVIEW
In reviewing a motion to dismiss brought under Rule 12(b)(6), the Court considers all facts alleged in the complaint as true to determine if the complaint states a claim for “relief that is plausible on its face.” Braden v. Watt-Mart Stores, Inc.,
II. DECLARATORY JUDGMENT (COUNT I)
UST first argues Doe’s claim seeking declaratory judgment fails as a matter of law. UST asserts Doe’s claim stems from UST’s alleged violation of Title IX’s regulatory requirements and that, under Supreme Court precedent, there is no private right of action for enforcement of regulatory requirements. Doe responds that the Supreme Court has never addressed the precise issue in this case— whether there is a private right of action when a student is wrongfully accused of sexual assault. Doe posits that because the law has, over time, expanded the implied private right of action for Title IX claims, the Supreme Court would find an implied private right of action in this case.
In Gebser v. Lago Vista Independent School District, the Supreme Court noted that it had “never held ... that the implied private right of action under Title IX allows recovery in damages for violation of ... administrative requirements.”
Here, Doe’s declaratory judgment claim relies solely on violations of regulations promulgated under Title IX—requiring the adoption of certain grievance procedures. (Am. Compl. ¶¶ 161-65.) Under Gebser, there is no private right of action to enforce the regulatory requirements under Title IX because failure to promulgate a grievance process is not itself discrimination.
III. TITLE IX—ERRONEOUS OUTCOME AND DELIBERATE INDIFFERENCE (COUNTS II & III)
UST next alleges Doe’s Title IX claims based on erroneous outcome and deliberate indifference should be dismissed because Doe failed to allege specific facts giving rise to a plausible inference of gender bias.
Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20’ U.S.C. § 1681(a). As a general rule, Title IX is not an invitation for courts to second-guess disciplinary decisions of colleges or universities. See Davis ex rel. LaShonda D. v. Monroe Cty.
To allege a Title IX claim based on a disciplinary proceeding under either erroneous outcome
Doe points to several allegations in the Amended Complaint to show Doe alleged sufficient facts regarding gender bias to survive a motion to dismiss. Doe highlights the following allegations: (1) a UST official stated, in the presence of the “ultimate decision maker,” that she was not surprised Ramsey County declined to prosecute Doe because Ramsey County “always” declines to prosecute “he said she said” cases, (Am. Compl. ¶ 130); (2) a UST official stated Doe could make things easier for everyone if he withdrew from UST and received a tuition refund, (id. ¶ 145); (3) UST questioned medical professionals differently regarding' Doe and Jane Doe, (id. ¶¶ 149-50); (4) UST challenged Jane
The Court finds Doe’s allegations are insufficient to support a plausible claim for relief.
Regarding UST’s alleged unbalanced questioning of Jane Doe (the complainant-victim) and Doe (the respondent-perpetrator), numerous courts have held that “[e]ven if [a] [ujniversity treated [a] female student more favorably than the [p]laintiff, during the disciplinary process, ‘the mere fact that [pjlaintiff is male and [the alleged victim] is female does not suggest that the disparate treatment was because of [plaintiffs sex.’ ” Salau v. Denton,
With respect to Doe’s claims about the Title IX Coordinator, Doe cannot show gender bias simply by alleging a decision-maker was involved in multiple roles. Id. And, accepting as true that the Policy has only been applied to men, numerous courts have held a court “cannot plausibly infer ... a higher rate of sexual assaults committed by men against women, or filed by women against men, indicates discriminatory treatment of males accused of sexual assault.” Doe v. Regents of the Univ. of Cal., No. 15-2478,
This leaves Doe’s allegation that gender bias existed in the disciplinary process because the federal government pressured colleges and universities to punish male students accused of sexual assault. (Id. ¶¶ 10-14, 175-76). Some courts have allowed a Title IX discrimination claim to proceed even where the only evidence of gender bias was pressure from the federal government. See Regents of the Univ. of Cal.,
This finding is consistent with the Second Circuit’s recent decision in Doe v. Columbia University,
[T]he Complaint allege[d] that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleged] further that the University’s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue.
Id. The Second Circuit concluded that “[ajgainst this factual background, it [was] entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.”
In contrast to Columbia University, while Doe alleged UST faced general federal pressure to “treat male students accused of sexual misconduct with a presumption of guilt,” (Am. Compl. ¶ 11), Doe did not allege any targeted stress UST faced from government institutions or the public at large for UST’s handling of previous sexual misconduct complaints on campus. Thus, unlike Columbia University, Doe does not point to a specific stressor that would cause UST to “favor the accusing female over the accused male” because of the accused male’s gender.
Because Doe’s allegations are insufficient to show UST’s disciplinary process was motivated by gender bias, the Court will grant UST’s motion to dismiss Count II and Count III.
IV. BREACH OF CONTRACT (COUNT IV)
UST next argues Doe’s breach of contract claim should be dismissed because Doe failed to allege the existence of a contractual relationship. UST asserts contractual obligations between students and their schools generally do not arise based upon a student handbook. Doe responds that his breach of contract claim should not be dismissed because UST made specific promises to follow the Policy in several letters and, by failing to comply with those specific promises, UST breached its contract.
In Minnesota, “[e]lements of the law of contracts have been applied to the student-university relationship, but rigid importation of contractual doctrine has been rejected.” Abbariao v. Hamline Univ. Sch. of Law,
Here, as pointed out by UST, Doe’s Amended Complaint does not point to any specific provisions of the Policy that UST breached. In fact, many of Doe’s allegations do not arise from specific terms in the Policy. For example, Doe contends UST breached its contract by preventing an independent investigation, refusing to provide all materials related to the investigation, and denying him access to the identities of individuals interviewed as part of the investigation. (Am. Compl. ¶¶ 121,145-46, 201(f), (h).) But the Policy did not mandate any of those actions. In fact, the Policy only required “a written notification” regarding the outcome of the investigation and explicitly stated that “UST [was] limited in the information it [could] share in providing [a] notice of outcome.” (Id., Ex. 1 at 15.) Further, the Policy provided that the respondent could “identify” witnesses, documentation, and other evidence for the Factfinders to review, but the Policy did not speak to whether a respondent could conduct an independent
Doe attempts to circumvent the Amended Complaint’s failure to identify a' breach of specific provisions in the Policy by arguing UST made specific promises to Doe in letters dated December 14, 2015, December 15, 2015, and February 10, 2016. (See Am. Compl., Exs. 6 & 7.) Doe asserts that these letters amount to specific promises made to Doe that UST would adhere to the Policy in its. investigation. Doe then argues, the Amended Complaint stated a claim for relief because UST did not provide a written summary of all allegations and defenses or allow Doe time to respond.
There is no evidence in the record that the Factfinders provided' “a written summary of all allegations and defenses” during the factfinding process—as required by the Policy. (See id., Ex. 1 at 14.) But, in the Amended Complaint, Doe does not allege a breach of contract for UST’s failure to comply with this provision, (See Am. Compl. ¶¶ 197-202.) Further, the Amended Complaint and attached exhibits evidence that UST provided Doe an opportunity to respond to the allegations and identify witnesses, documentation, and other evidence. (See id. ¶¶ 135-38; id., Exs. 8-9.)
For these reasons, Doe failed to allege a breach of contract claim under Minnesota law. Not only is it unlikely UST formed a unilateral contract under Minnesota law, see Rollins, 626 N.W,2d at 471, Doe did not allege any breaches of the Policy in the Amended Complaint. Further, even if UST formed a unilateral contract with Doe by sending several letters, the Policy provided that the “provisions [were] intended to be flexible” and that the “Title IX Coordinator [could] authorize departures from [the] provisions when warranted by the circumstances.” (Am. Compl., Ex. 1 at 10.) To the extent UST failed to provide Doe a “written summary of all allegations and defenses,” the remainder of UST’s response substantially complied with the Policy. See, e.g., Ross,
Therefore, the Court will grant UST’s motion to dismiss Count IV.
V. DUTY OF GOOD FAITH AND FAIR DEALING (COUNT V)
UST next argues Doe failed to allege a plausible claim for breach of the duty of good faith and fair dealing because Doe failed to state a claim for breach of contract. “Minnesota does not recognize a cause of action for breach of the implied covenant of good faith and fair dealing without an underlying breach of contract claim.” i-Sys., Inc. v. Softwares, Inc., No. 02-1951,
VI. NEGLIGENCE (COUNT VI)
UST finally argues Doe failed to allege a plausible negligence claim. In Minnesota, to survive a motion to dismiss, Doe must allege: (1) UST owed Doe a duty of care; (2) UST breached that duty of care; (3) Doe was injured; and (4) UST’s breach of the duty of care was the proximate cause of Doe’s injury. Glorvigen v. Cirrus Design Corp.,
UST argues Doe failed to allege a duty of care because' Minnesota law does not recognize a claim for negligent breach of contract. See Lesmeister v. Dilly, 330
“Minnesota law follows the general common law rule that a person does not owe a duty of care to another— e.g,, to aid, protect, or warn that person— if the harm is caused by a third party’s conduct.” Doe 169 v. Brandon,
While a close case, construing the Amended Complaint in the light most favorable to Doe, Doe pled sufficient facts to allege' UST owed him a duty of care. Even though the cases cited by Doe are not directly on point, Abbariao and Rollins provide that there are some instances where a special relationship between a student and a college or-university creates a duty of care. Abbariao,
UST also argues that, to the extent Doe alleged a duty of care, Doé failed to plead facts giving rise to a plausible inference that UST breached any duty. But the Amended Complaint sets forth allegations that UST officials made a plethora of errors during the disciplinary process that amounted to a breach of UST’s alleged duty of care. (See Am. Compl. ¶¶ 208, 210, see also id. ¶¶ 131, 145-46, 149-51, 163-64, 173,186-90, 201(d)-(k).) Further, the Court finds it difficult to assess whether UST breached any alleged duty of care without UST’s report or other documents underlying UST’s disciplinary decision. Because Doe has not had access to this information and, therefore, the Court must - rely on Doe’s characterization of the proceedings, the Amended Complaint alleged enough facts to give rise to a plausible inference that UST breached a duty of care.
Therefore, the Court finds Doe pled sufficient facts to support a plausible negligence claim and the Court will deny UST’s motion to dismiss Count VI.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that the University of St. Thomas’s Motion to Dismiss [Docket No. 43] is GRANTED in part and DENIED in part as follows:
1. The motion is GRANTED as to Counts, I, II, III, IV, and V.
a. Plaintiffs claims for Declaratory Judgment (Count I), Breach of Contract (Count IV), and Breach of the Covenant of Good Faith and Fair Dealing (Count V) are dismissed with prejudice.6
b. Plaintiffs claims for Violation of Title IX—Erroneous Outcome (Count II) and Violation of Title IX—Deliberate Indifference (Count III) are dismissed without prejudice.
2. The motion is DENIED with respect to the negligence claims found in Count VI of the Amended Complaint.
Notes
. A plaintiff may assert a claim under Title DC based upon an erroneous outcome theory when "the plaintiff ‘attack[s the] university disciplinary proceeding on grounds of gender . bias' by arguing that the plaintiff ‘was innocent and wrongly found to have committed an offense,’” Sahm v. Miami Univ.,
. In general, a plaintiff alleges a Title IX deliberate indifference claim by "demons-tratpng] ... an official of the institution who had authority to institute corrective measures had actual notice of, and was deliberately indifferent to, the misconduct” directed at the plaintiff. Mallory v. Ohio Univ.,
But it is an open question whether the Title IX deliberate indifference standard applies to claims related to alleged gender discrimination in á university’s disciplinary proceedings. Compare Doe v. Baum, No. 16-13174,
Because the Court finds Doe did not allege a plausible claim of gender bias to survive a motion to dismiss on any Title IX claim, the Court does not decide whether a deliberate indifference claim is appropriate in this circumstance. See Mallory,
. Doe cites a number of cases to argue his allegations are more than conclusory and show gender bias. Doe’s cases are distinguishable from the Amended Complaint. In Doe V. Washington & Lee University, the plaintiff alleged the Title IX officer endorsed an article discussing sexual misconduct in gendered terms. No. 14-52,
Here, in contrast,"Doe does not point to the endorsement of gender-based articles by school officials or the existence of any UST communication that would show UST disciplined Doe because of his gender. Further, while a pattern of disparate treatment of men can in some instances show gender bias, a court "cannot plausibly infer .,. that a higher rate of sexual assaults committed by men against women, or filed by women against men, indicates discriminatory treatment of males accused of sexual assault.” Regents of the Univ. of Cal.,
. In Columbia University, the Second Circuit also appeared to apply a more lenient standard of review.
. Plaintiff also implies that UST failed to provide notice of the outcome of the investigation in writing. But the notice provided by UST is attached to the Amended Complaint as Exhibit 10,
. The Court finds that, for Counts I, IV, and V, it "is unable to conceive of any set of facts under which [Doe] would be entitled to relief.” Hamilton-Warwick v. U.S. Bancorp, No. 15-2730,