Case Information
*1 UNITED S T A TE S D I S T R I C T C OU R T F O R T H E D I S T R I C T OF NEW J E R S E Y J AN E J ON E S ,
P l a i n ti ff ,
V.
P1 KAPPA ALPHA INTERNATIONAL
F R A TE R N I T Y , INC.; BR ETT H EL B E R G ;
DAVID MALINOWSKI; P1 KAPPA ALPHA
F R A TE R N I T Y -- LOCAL C HA P TE R MU
ZETA a t RAMAPO C O LLE G E ; S K E ND E R Civ. No. 2 : 16 - c v - 7720 - K M - M AH AGIC; J O HN HOGAN; J O S H U A WILLIAM
NEWMAN; RAMAPO C O LLE G E OF NEW
J E R S E Y ; RAMAPO C O LLE G E BOARD O F OPINION T R U S TEE S ; VINCENT MARKOWSKI;
P ETE R M E RC E R ; CORY ROSENKRANZ;
MELISSA VAN D E R WALL;
C H R I S T O P H E R RAINONE; J U S T I N
S O MM E R S ; KORIN LE V ET S ANO S ; WAYNE
J OHN S ON ; C H R I S T I AN L O P EZ ; NAKEEM
GARDNER; J OHN / J AN E DO E S 1 - 20 ; a nd
XYZ C O R P O R A T I ON S 1 - 10 ,
D e f e nd a n t s .
MCNULTY. U . S . D . J . :
P l a i n ti ff J a n e J on e s 1 h a s a ss e r t e d t w e n t y ca u s e s of ac ti on r e g a r d i ng a ll e g e d s e x u a l a ss a u lt s a t R a m a p o College on N o v e m b e r 14, 20 14 . (Compl. 33 (DE 161)).2 Two p e r s on s c r i m i n a ll y c h a r g e d w it h c o mm i ss i on of t h e s e xu a l
This fictional n a m e is u s e d to p r o t ec t t h e p l a i n ti ff s privacy. [2] C a it on s to ti r t a i n record items will be a ce bb r v e a t e i d as follows:
DE = Docket e n t r y nu m b e r
Compl. = F i r s t Amended Complaint and J u r y Demand (DE 161) Def. Brf. = PIKE F r a t e r n i t y Defendants’ Brief in S u pp o r t of Motion to Dismiss (DE 148-1)
P1. Brf. = P l a i n t i ff s Brief in Opposition (DE 159) *2 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.
Def. Reply Brf. = PIKE Fraternity Defendants’ Reply Brief in Further Support of Motion to Dismiss (DE 164)
[3] This action was stayed pending resolution of the criminal case. (DE 100) After the criminal proceedings were concluded, Plaintiffs motion to file an amended complaint was granted. (DE 142, 160). Among other things, the first amended complaint now names Gardner and Lopez as defendants. (They had previously been referred to in the factual narrative by their initials, N.G. and C.L.) The PIKE Defendants’ motion to dismiss was filed prior to the filing of the amended complaint, but the amendments do not affect the issues asserted in that motion. For simplicity, this Opinion cites to the facts as alleged in the first amended complaint (DE 161).
Also named as defendants are other fraternity members or officers, who are not movants here.
[5] Counts 1—2, 5—8, and 12—20 of the First Amended Complaint are not asserted against the PIKE Fraternity Defendants. The parties have stipulated that Count 11 is dismissed as to the Individual Defendants, leaving only PIKE itself. (DE 191). The parties have also stipulated that Counts 9 and 10 are dismissed as to the PIKE Fraternity Defendants. (DE 76).
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 plaintiff’s 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. ¶11 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 “complete[ly] 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, undenvear, 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 *4 dormitory. (Id. ¶ 6 1-62). 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. ¶1 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. ¶1J 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 conclusoiy statements.” DiCarlo v. St. Manj 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
*5
12(c) motion and a Rule 12(b)(6) motion. Spntill v. Gil/is,
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.,
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiff’s 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,
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 *6 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 Deiendants, 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,
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,
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,
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).
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 necessanT 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.
Narleski turned to the liability of the 19-year-old host. The court had no difficulty with the concept that the host, already a parent himself, owed a duty “to injured parties to desist from facilitating the drinking of alcohol by underage adults in his place of residence, regardless of whether he owns, rents, or manages the premises.” Id. at 749. Such an expansion of liability, however, was imposed only prospectively.7
The common law claim is similarly lacking here. Where, despite a strong common-law background presumption of liability, the parent of a 19-year-old cannot be held liable for service of alcohol in her home, I cannot hold that “advisers and/or consultants” of a national fraternity can be held liable for service of alcohol at a local fraternity chapter’s party. Assuming that, e.g., Lopez (not a minor) could be liable for serving alcohol to Jones, who was under the legal age for the consumption of alcohol, I see no basis for extending that liability to the Individual Defendants. Nor, for what it is worth, was this on- campus property the Individual Defendants’ “residence” for purposes of the rules announced in Narleski.
I find no support for the legal viability of the cause of action alleged here. Accordingly, Count 3 is dismissed as against the Individual Defendants.
2. Negligent Supervision
In Count 4, Jones asserts a claim of negligent supervision against the PIKE Fraternity Defendants for failure to exercise reasonable care in supervising the Mu Zeta Chapter, members of which were responsible for the assault on her. (Compl. ¶ 160-167).
According to Jones, the local Mu Zeta Chapter is an unincorporated association. (Compl. 10). While not liable in equity, unincorporated associations may be sued. N.J. Stat. Ann. § 2A: 64-1, -6.
[7] The court’s caution in this area is palpable. It suspended its holding for 180
days to accommodate any further judicial or legislative response.
Few New Jersey cases have “addressed the scope of duties that may be
owed by a college fraternity, or its officers or members, to protect guests from
violent conduct that may occur at a social event hosted by members of a
fraternity.” Peguero v. Tau Kappa Epsilon Local Chapter,
The tort of negligent supervision has elements parallel to those of the tort
of negligent hiring, which has its roots in principles of agency law. See Smith v.
Harrah’s Casino Resort of Atl. City, No. A-0855-12T2,
tortfeasor. See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.s.
440, 448 (2006) (applying the common-law element of control as the “principal
guidepost” in determining whether an individual was an employee under
federal statutes); see also Lewis v. Bellows Falls Congregation of Jehovah’s
Witnesses,
In New Jersey, “[a]n agency relationship is created when one party
consents to have another act on its behalf, with the principal controlling and
directing the acts of the agent. Sears Mortg. Corp. v. Rose,
Here are the allegations that describe the positions of Helberg and Malinowski, the Individual Defendants:
8. At times relevant herein, specifically, at the time of the brutal sexual assault, Defendant Brett Helberg was a Member of the Pi Kappa Alpha International Fraternity, Inc. Upon information and belief, Defendant Brett Helberg served as an Adviser and/or Consultant to the Mu Zeta Chapter at Ramapo College on behalf of Pi Kappa Alpha Fraternity Inc. Upon further information and belief, Defendant Brett Helberg was responsible for training, supervising, monitoring and enforcing the National Fraternity’s Code of Conduct and Policies as to that Chapter. Defendant Brett Helberg is being sued in his individual and official capacities.
9. At times relevant herein, specifically, at the time of the brutal sexual assault, Defendant David Malinowski was a Member of the Pi Kappa Alpha International Fraternity, Inc. Upon information and belief, Defendant David Malinowski served as an Adviser and/or Consultant to the Mu Zeta Chapter at Ramapo College on behalf of Pi Kappa Alpha Fraternity Inc. Upon further information and belief, Defendant David Malinowski was *12 responsible for training, supervising, monitoring and enforcing the National Fraternity’s Code of Conduct and Policies as to that Chapter. Defendant David Malinowski is being sued in his individual and official capacities.
(Compi. 7, 8)
Count 3 (“Social Host Agency”) contains the following factual allegations regarding the roles of the Individual Defendants:
153. At all times relevant hereto, an agency relationship existed between Defendant Pi Kappa Alpha International Fraternity, Inc. and Defendant Pi Kappa Alpha, Mu Zeta Chapter.
154. Indeed, Defendants David Malinowski and Brett Helberg, upon information and belief, served as Advisers and/or Consultants to the Mu Zeta Chapter at Ramapo College on behalf of Pi Kappa Alpha Fraternity Inc.
155. At all times relevant hereto, Defendant Mu Zeta Chapter was acting in furtherance of the interests of the Defendant Pi Kappa Alpha International Fraternity, Inc. to wit: The purpose of the “Date Night” Fraternity Party included, but was not limited to, promotion of membership in Pi Kappa Alpha International Fraternity, Inc.
156. At all times relevant hereto, the PIKE Fraternity Defendants ratified by acquiescence in the service of alcohol at social functions such as the aforesaid “Date Night” Frat Party by the following: a, In failing to establish and communicate, and/or enforce, to individual Chapters and their Members, standards for the conduct of their activities;
b. In failing to monitor the conduct of Mu Zeta Chapter and other local Chapters;
c. In failing to take disciplinary action against the Mu Zeta Chapter for acts of misconduct, including prior incidents involving that Defendant;
d. In failing to take disciplinary action against the Mu Zeta Chapter after the PIKE Fraternity Defendants knew or should have known that Defendant Mu Zeta Chapter had been *13 disciplined for the types of alcohol violations and sexual assault incidents similar to those that impacted Plaintiff; and e. In continuing to sanction or permit Mu Zeta Chapter to hold social events where the consumption of alcohol was encouraged and/or promoted in direct contravention of the established policy of Ramapo College of New Jersey, New Jersey statute and common law.
(Compi. ¶ 153—56) Those allegations are incorporated by reference in Count 4 (Negligent Supervision). (Compl. 160) Count 4 contains the following additional allegations concerning the roles of the Individual Defendants:
161. The PIKE Fraternity Defendants retain the right to control the activities of their Members and Chapters.
162. Indeed, Defendants David Malinowski and Brett Helberg, upon information and belief, served as Advisers and/or Consultants to the Mu Zeta Chapter at Ramapo College on behalf of Pi Kappa Alpha Fraternity Inc.
163. Among other things, because of the actual relationship between the PIKE Fraternity Defendants and Defendant Mu Zeta Chapter, and its Members; because all social functions are on and for the benefit of the Defendant Pi Kappa Alpha International Fraternity, Inc.; because the PIKE Fraternity Defendants knew and/or reasonably should have known, that their duly authorized representative Chapters are managed by under-experienced students who are dependent upon the PIKE Fraternity Defendants for safety procedures and policies at Fraternity Events; because the PIKE Fraternity Defendants benefit financially from the activities for its duly authorized representative Chapters, its Members and student initiates (Pledgees like Christian Lopez); because the PIKE Fraternity Defendants create all risk management policies for the Chapters, its Members and student initiates given its specialized knowledge of the dangers that “Frat parties” can pose; and because the PIKE Fraternity Defendants have the ultimate power to revoke, suspend, cancel, permit, grant or allow membership in Pi Kappa Alpha Fraternity by Chapters, Members, or student initiates, the PIKE Fraternity Defendants had a duty to control and supervise its Fraternity Members and Chapters with an obligation to exercise reasonable care in supervising its Fraternity Members and *14 chapters and a duty to oversee Fraternity events/functions (such as “Date Night”) for Mu Zeta Chapter.
164. The PIKE Fraternity Defendants failed to use reasonable care by permitting its Members to host a Fraternity party which would include providing alcoholic beverages to minors.
(Compl. ¶t 160—64)
From these allegations, it can plausibly be inferred that an agency relationship existed between the national fraternity and its local chapter. It is plausible that members of a fraternity chapter consent to supervision by the national organization as a condition of membership. The Individual Defendants are alleged to have been the persons who, in particular, were responsible for supervising the Mu Zeta Chapter. Jones has alleged further that PIKE had the power to revoke or suspend membership based on noncompliance with the national fraternity’s oversight. (Compi. ¶ 163). This allows an inference of PIKE’s control over the local chapter and its members, control which was in this case to be exercised through the Individual Defendants. That inference might or might not be borne out in discovery, but it is sufficiently alleged. I add as a makeweight that the specific roles of these Individual Defendants in the governance of the fraternity are excusably alleged on information and belief, as those facts are within the control of the PIKE Fraternity Defendants.
I turn to whether Jones has plausibly stated a claim that the Individual Defendants were negligent in their supervision of the chapter. The elements of such a claim, drawn from Forrest, 930 F.3d at 112, are (1) whether they knew that the chapter exhibited dangerous characteristics; (2) whether they could reasonably have foreseen harm to others; and (3) whether their negligent supervision was the proximate cause of Jones’s injuries. The Complaint alleges defendants’ likely awareness of “studies available throughout the fraternity industry.., that guests at sponsored parties are in need of protection.” (Compl. ¶ 80) In addition, the Individual Defendants allegedly knew or should have known that the Mu Zeta Chapter had been disciplined in the past for similar incidents of alcohol policy violations and sexual assault. (Id. 156(d)). Such *15 allegations satisfy the first two elements, i.e., knowledge of dangerous characteristics and foreseeability of harm.
Cases rejecting potential liability are distinguishable. In Peguero, the
plaintiff did not allege any similar prior conduct that might have put the
defendants on notice of the danger.
As for the third prong, New Jersey courts have held that the standard for proximate cause depends on the nature of the tortious conduct:
In routine tort cases, “the law requires proof that the result complained of probably would not have occurred ‘but for’ the negligent conduct of the defendant. In cases where concurrent causes of harm are present, the law requires consideration of the “substantial factor” test. The “but for” standard concentrates on one cause that sets the other causes in motion, while the ‘substantial factor’ test recognizes that a tortfeasor will be held answerable if its negligent conduct was a substantial factor in bringing about the injuries, even where there are other intervening causes which were foreseeable or were normal incidents of the risk created. Under the substantial factor test, the law of negligence recognizes that there may be any number of concurrent causes of an injury, and it is enough if they are a “substantial factor” in bringing it about, even if those acts by themselves are capable of producing the injury.
Marina District Development Co., LLC v. They, No. 14-2283,
Jones has alleged wrongdoing on the part of multiple tortfeasors. The role of each is plausibly alleged to have been a substantial factor in her injuries. The full extent of the Individual Defendants’ role, if any, in the organization of the “Date Night” party is not known at this stage. Jones has alleged, however, that they were responsible for implementing PIKE’s “risk management” policies, were supposed to supervise the Mu Zeta Chapter, and had the power to revoke membership, presumably for noncompliance with standards. According to the allegations, fraternity members became aware of the sexual assault against Jones during the “Date Night” party, and, instead of intervening, encouraged the assailant to leave the premises with his victim, the visibly intoxicated Jones. Supervision by fraternity advisors such as the Individual Defendants allegedly could have prevented both the initial and subsequent assaults from taking place. Therefore, Jones has met her burden in alleging that negligent supervision by the Individual Defendants was a proximate cause of her injuries.9
Whether such allegations are supported by evidence, as I have indicated, is a question for another day. For now, I find that Jones has plausibly alleged the elements of a negligent supervision claim against the Individual Defendants. The motion to dismiss Count Four is therefore denied.
B. Discrimination Claims
The PIKE Fraternity Defendants contend that Count 11 fails to state a
claim against them. As discussed above, the parties have stipulated that Count
11 does not apply to the Individual Defendants. The cause of action at issue is
Foreseeability reenters the analysis at the proximate cause stage. See Marina
District Development Co.,
whether defendant PIKE is liable for violating the New Jersey Law Against Discrimination (“NJLAD”) on a “hostile educational environment” theory. The theory, while representing an extension of existing law, is sufficiently alleged to permit the case to go forward.
NJLAD is aimed at eradicating the “cancer” of discrimination, and by its own terms is to be “liberally construed.” N.J. Stat. Ann. § 10:5-3. Thus NJLAD provides that “[a]ll persons shall have the opportunity to obtain ... all the accommodations, advantages, facilities, and privileges of any place of public accommodation ... without discrimination because of ... sex ....“ N.J. Stat. Ann. § 10:5—4. See also N.J. Stat. Ann. § 10:5-12(f).
Membership-based organizations can qualify as places of public
accommodation. See Dale v. Boy Scouts of America,
Whether this fraternity qualifies as a place of public accommodation may raise factual issues. Jones has alleged that, at least with respect to the “Date Night” party, the solicitation was general. Indeed, members “call[edj down to recruit guests to the party” from the apartment’s balcony. (Compl. 43). The PIKE Fraternity Defendants have emphasized PIKE’s selectivity of membership and secrecy of rituals. (Def. Brf. at 9). That emphasis may be misplaced, as Jones does not claim that she sought and was denied membership.
True, NJLAD public accommodation claims often do involve
discriminatory policies or practices in relation to membership or access. Denial
*18
of access is not the only basis for liability, however. NJLAD is broad enough to
accommodate a “hostile environment” claim. Typically, such a claim relates to
discriminatory conditions in the workplace. See, e.g., Nuness v. Simon &
Schuster, Inc.,
Less well established, but nevertheless present in the case law, is a
NJLAD cause of action based on the discriminatory behavior of a business
owner. Such behavior may be actionable if it is outrageous enough to imply’ a
design to discourage an individual’s use of that public accommodation on
account of her protected status. See Turner v. Wong,
In this case, the allegations relate not to Jones’s exclusion from the fraternity event, but rather to her treatment when she attended it. Jones is alleging hostile educational environment discrimination on the basis of sex. (Compl. 238). She alleges that she was sexually assaulted by a PIKE pledge while at an event hosted by PIKE’s local chapter. Other fraternity members encouraged or were at best indifferent to the assault. Such an environment *19 would tend to subject a female person to discrimination in the enjoyment of the facilities of that fraternity.
The contours of a hostile educational environment claim remain somewhat unsettled. It is unclear, for example, whether the plaintiff would have to demonstrate PIKE’s actual notice and deliberate indifference. Likewise unclear is the extent to which a hostile educational environment claim may extend to a fraternity social event, albeit one occurring on campus.
In short, the NJLAD theory of this claim has some novel features. I will
not cut it off at this early stage, but will permit factual development. See
generally JM. ex rel. A.M. v. E. Greenwich flop. Rd. of Ethic, No. 07-2861, 2008
WL 819968, at *9 (D.N.J. 2008) (“As noted above, this Court in Woodntffv.
Hamilton Twp. Public Schools,
reL S.C. v. Corsey,
PIKE’s motion to dismiss Count 11 (NJLAD Hostile Educational Environment) is therefore denied.
C. Cross Claims The PIKE Fraternity Defendants move, not very specifically, to dismiss crossclaims asserted by codefendants against the Individual Defendants. Federal Rules of Civil Procedure 13(g) governs crossclaims:
A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for *20 all or part of a claim asserted in the action against the crossclaimant.
The PIKE Fraternity’ Defendants do not state which crossclaims they seek to dismiss. They merely assert that since the cross-claimants have asserted no facts against them, the crossclaims must be dismissed. The crossclaims, however, are all based—as they must be—on the same factual transactions alleged in the complaint. Dismissal of crossclaims is not appropriate at this stage.
CONCLUSION
For the foregoing reasons, the PIKE Fraternity Defendants’ motion to dismiss the First Amended Complaint is GRANTED as to Count 3 insofar as it relates to the Individual Defendants, Helberg and Malinowski. The motion to dismiss is DENIED as to all other Counts and claims. What remains of Counts 3, 4, and 11 are the following:
Count 3 (against PIKE only)
Count 4 (against PIKE, Helberg, and Malinowski) Count 11 (against PIKE only)
An appropriate Order follows.
Dated: December 17, 2019