Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 1 of 12 PageID 826 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JANE DOE NO. 1, JANE DOE NO. 2, AND JANE DOE NO. 3 Plaintiffs, v. TEXAS CHRISTIAN UNIVERSITY, DR. DIANE SNOW, DR. ANDREW SCHOOLMASTER, DR. ROB GARNETT, DR. DARRON TURNER, RUSSELL MACK, J.D., LEIGH HOLLAND AND AARON CHIMBEL, Defendants. § § § § § § § § § § § § § § § CIVIL ACTION NO. 3:20-cv-00106-M DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND BRIEF IN SUPPORT George C. Haratsis Texas Bar No. 08941000 gch@mcdonaldlaw.com Rory Divin Texas Bar No. 05902800 rd@mcdonaldlaw.com Jennifer Littman Texas Bar No. 00786142 jnl@mcdonaldlaw.com McDONALD SANDERS, a Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 (817) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT DR. DARRON TURNER Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 2 of 12 PageID 827 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................................... 1 II. BACKGROUND........................................................................................................... 2 A. Summary of Doe No. 1’s Allegations ................................................................ 2 B. Plaintiff’s Pleaded Claims Against Turner ......................................................... 4 III. ARGUMENT AND AUTHORITIES ............................................................................. 4 A. Plaintiff has not pleaded a plausible substantive claim against Turner. ............ 4 1. Doe No. 1’s negligence claim should be dismissed ......................................... 5 IV. REQUEST FOR DISMISSAL ..................................................................................... 9 DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE i Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 3 of 12 PageID 828 INDEX OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ................................................................ 4, 8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ................................................. 4, 5 Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth 1999, no pet.) ............................................................................................................... 7 Boyles v. Kerr, 855 S.W.2d 593, 601–602 (Tex. 1993) ................................................... 8 Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ................... 5, 6 Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998, pet. denied) .................................................................................................................. 7 Hux v. S. Methodist Univ., 819 F.3d 776, 781–83 (5th Cir. 2016) ................................... 7 Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) ...................................................... 5 Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013)...................... 8 Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017) ................................... 5, 6 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted).................. 4 Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999) ..................................................... 5 Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) ............................................................... 5 DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 4 of 12 PageID 829 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Dr. Darron Turner (“Turner”) respectfully files this motion to dismiss (“Motion”) all of the claims of Jane Doe No. 1, (“ Doe No. 1”) against Turner in Plaintiffs’ First Amended Complaint [Doc. 19], and brief in support. I. INTRODUCTION This is a suit brought by Doe No. 1, a student at Texas Christian University (“TCU”), against TCU, Turner, Dr. Diane Snow (“Snow”), Russell Mack (“Mack”), Aaron Chimbel (“Chimbel”), Dr. Rob Garnett (“Garnett”), and Leigh Holland (“Holland”), after she was sanctioned for academic conduct, i.e., plagiarism, following a four week TCU Honors Exploration program in Washington, D.C. entitled “How Washington D.C. Works.” [Compl. ¶¶ 90-91, 126, 169-173-.] 1 Doe No. 1 does not deny that she submitted plagiarized assignments during the course or allege that she was falsely accused of plagiarism. As a result of the academic misconduct, Doe No. 1 received no-credit (NC) for the pass/fail course. After Doe No. 1 was confronted with the plagiarism, she proceeded to file a Title IX complaint with TCU’s Title IX Office, alleging mistreatment by Snow during the Washington, D.C. program. [Compl. ¶ 130.] Doe No. 1 also appealed the NC grade, and her appeal was denied. [Compl. ¶ 170, 173.] Before the internal Title IX complaint was resolved, Doe No. 1 sued TCU and the individual defendants. [Compl. ¶ 130.] Doe No. 1 alleges Turner was negligent in the handling of her Title IX complaint. Turner asks this Court to dismiss her claims against him. 1 References in this Motion to [Compl. ¶ ____.] are to paragraphs in Doe No. 1’s First Amended Complaint (“Complaint”). For example, a reference to [Compl. ¶ 90.] is a reference to paragraph 90 of her Complaint. DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 5 of 12 PageID 830 II. BACKGROUND A. Summary of Doe No. 1’s Allegations Individual defendants Mack, Chimbel, and Snow each facilitated one week of the four-week program in Washington, D.C., from July 7, 2019 through August 3, 2019. 2 Near the end of the program, it was determined Doe No. 1 had plagiarized written assignments submitted during the program. As a sanction for the academic misconduct, Doe No. 1 received a grade of No Credit for the pass/fail course. Doe No. 1 appealed the decision to co-defendant Garnett, Associate Dean of the Honors College, but he upheld the decision and denied Doe No. 1’s appeal. Around the same time, Doe No. 1 raised allegations of mistreatment during the Washington, D.C. trip. After Doe No. 1 returned to TCU, Doe No. 1 proceeded to file a Title IX complaint over her perceived treatment during the Washington, D.C. program. [Compl. ¶ 130.] Turner, TCU’s Chief Inclusion Officer and Title IX Coordinator, worked with Doe No. 1 concerning her Title IX complaint. [Compl. ¶ 130.] The events giving rise to Plaintiff’s causes of action are described in the 106-page Complaint, but specific allegations against Turner are summarized as follows: • On July 29, 2019, Doe No. 1 complained to Turner that she was being subjected to discriminatory treatment at the hands of TCU and told him she intended to file a formal complaint but would wait until the summer program ended to avoid retaliation. [Compl. ¶ 122.] At that point (with no formal complaint), Turner did nothing. [Compl. ¶ 122.] 2 Dr. Frederick Gooding (“Gooding”) also led one week of the four-week program. Doe No. 1 dismissed her claims against Gooding when she filed the First Amended Complaint. DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 • Page 6 of 12 PageID 831 When Doe No. 1 returned to campus after Snow confronted her about the plagiarism, Doe No. 1 began working to formalize her complaints of discrimination and hostile treatment with Turner and the Campus Life Dean’s Office. [Compl. ¶ 130.] On August 16, 2019, Doe No. 1 conducted a video interview with Turner, recounting her summer experience to him. On or about August 26, 2019, Doe No. 1 spoke with Turner and co-defendant Leigh Holland, TCU’s Title IX investigator and emailed them a written Title IX statement and list of witnesses. [Compl. ¶ 130.] 3 • On September 23, 2019, Doe No. 1 met with Turner and received an update on the progress of the investigation of her Title IX complaint. At the meeting, Doe No. 1 learned Turner’s office had already interviewed the students she had identified as having knowledge of her Washington, D.C. experience. [Compl. ¶ 130.] Turner also let Doe No. 1 know they would interview the professors the following week. [Compl. ¶ 130.] According to Doe No. 1, Turner also informed her of her rights to press criminal charges against Snow for any alleged assault she believed had been committed. He also told her that she “will be seeing some changes in staff” but no changes in staff occurred. [Compl. ¶ 130.] • Doe No. 1 filed this lawsuit before her Title IX complaint was resolved. [Compl. ¶ 131.] On January 16, 2020, Turner emailed Doe No. 1 in “Invitation to Review Investigative Report.” [Compl. ¶ 131.] Doe No. 1 did not come in to review the report, but instead requested that TCU forward a final copy to her attorneys. [Compl. ¶ 131.] On March 23, 2020, Holland sent Doe No. 1 a Title IX Decision 3 Absent from this Complaint are the names of a single witness to any of the acts alleged to have occurred. DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 7 of 12 PageID 832 Letter which concluded “Dr. Snow did not violate [TCU policy] on Prohibited Discrimination, Harassment and Related Conduct.” [Compl. ¶ 131.] B. Plaintiff’s Pleaded Claims Against Turner Based on the facts alleged above, Plaintiff asserts a negligence causes of action against Turner. III. ARGUMENT AND AUTHORITIES A. Plaintiff has not pleaded a plausible substantive claim against Turner. A plaintiff’s complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Courts “do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted); see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). Although “a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 697 (2009). The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557.) If “the plaintiffs have not nudged their claims across the line from conceivable to plausible, their complaint DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 8 of 12 PageID 833 must be dismissed.” (Twombly, 550 U.S. at 570.) Turner moves the Court to dismiss each of Doe No. 1’s negligence claim action against him for failure to state a claim. 1. Doe No. 1’s negligence claim should be dismissed. Doe No. 1’s negligence claim fails as a matter of law. To state a negligence claim, Doe No. 1 must allege facts showing (1) Turner owed her a legal duty, (2) Turner breached that duty, and (3) damage proximately caused by the breach. Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999). To be liable for negligence under Texas law, an individual acting as an agent or employee must have an independent duty of reasonable care to the plaintiff, separate from the employer's duty. Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) (citing Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). Doe No. 1 has not alleged a single fact that would indicate Turner was acting outside the scope of his employment with TCU in handling Doe No. 1’s Title IX complaint. In fact, Doe No. 1 alleges that at all relevant times, TCU agents– which includes Turner - were acting within the course and scope of their employment and/or at the direction and under the control of TCU. [Compl. ¶ 231.] Therefore, to state a claim of negligence against Turner individually, Doe No. 1 must plead sufficient facts to establish Turner owed her a legal duty independent of any duty owed by TCU. Doe No. 1’s Complaint fails in that regard. The existence of a legal duty is a question of law and the threshold inquiry of the court. Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017) (citing Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). Texas courts have not imposed a general duty on university faculty members and administrators to act with reasonable care towards their adult students. “When a duty has not been recognized in particular DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 9 of 12 PageID 834 circumstances, the question is whether one should be.” Pagayon, 536 S.W.3d at 504. When analyzing whether a common law duty exists, courts consider the risk, foreseeability and likelihood of injury weighed against the social utility of the actor’s conduct, the burden of guarding against the injury and the consequences of placing the burden on the defendant. Id.; Phillips, 801 S.W.2d at 525. According to Doe No. 1, she informed Turner of mistreatment on or about July 29, 2019, but did not want to formalize her complaint until the trip was over. [Compl. ¶ 122.] When she returned from the trip, Turner conducted a video interview of Doe No. 1 and on August 26, 2019, she submitted her formal written complaint and list of witnesses. [Compl. ¶ 130.] Turner advised Doe No. 1 of the progress of the investigation and advised her of her rights to separately pursue criminal charges of assault against Snow. [Compl. ¶ 130.] Turner invited her to view the investigation report and provided her a copy of the outcome of the investigation. [Compl. ¶ 131.] Viewing Doe No. 1’s allegations in a light most favorable to her, the utility of Turner’s actions, the burden of guarding against injury to Doe No. 1 and the consequences of placing that burden on Turner far outweighs any potential risk, foreseeability or likelihood of injury to Doe No. 1. Individuals such as Turner work to remedy complaints of discrimination and harassment on college campuses every day. Some cases can be resolved quickly; others take longer. Sometimes there are many witnesses; sometimes there are none. Almost always, one party is unhappy with the outcome. If college administrators, including Title IX officials, risk personal liability for the manner in which internal complaints are investigated and resolved, no one will undertake that responsibility. Accordingly, the Court should not impose an independent duty on Turner. DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 6 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 10 of 12 PageID 835 In addition to applying the risk-utility test, courts also consider whether there was a special relationship between the parties. Doe No. 1 asserts Turner owed her a legal duty because he had a special relationship with [ Doe No. 1] as designated point-persons for discrimination complaints. [Compl. ¶ 237.] But the relationship between a university faculty member or administrator and his or her adult student is not a special relationship. See Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998, pet. denied); see also Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.— Fort Worth 1999, no pet.); Hux v. S. Methodist Univ., 819 F.3d 776, 781–83 (5th Cir. 2016). Therefore, the Court should not find a duty exists because of a special relationship. Assuming, for purposes of this Motion, that Turner owed an independent duty to Doe No. 1, she failed to plead sufficient facts demonstrating Turner breached a duty. Doe No. 1’s conclusory statement that “the act and omissions detailed herein constitute breaches of said duties” is insufficient. If anything, if Turner owed Doe No. 1 an independent duty, Doe No. 1’s allegations do not demonstrate a breach. Turner worked with Doe No. 1 to formalize her complaints of discrimination and hostile treatment. [Compl. ¶ 130.] He met with Doe No. 1 and kept her apprised of the investigation, including the timing of completing and scheduling witness interviews. [Compl. ¶ 130.] He informed Doe No. 1 of her rights to press criminal charges if she felt it was warranted. [Compl. ¶ 130.] Although Doe No. 1 claims Turner told her to expect changes in unidentified “staff,” and no such changes were made, she has not identified the “staff” changes alluded to by Turner, or how this was a breach of any alleged duty owed to her. Although Doe No. 1 filed her lawsuit before her Title IX complaint was resolved, the Title DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 7 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 11 of 12 PageID 836 IX Office concluded the investigation and Turner provided Doe No. 1 the opportunity to review the investigation report. [Compl. ¶ 131.]. She declined. [Compl. ¶ 131.] She was provided a copy of the final decision letter, which found Snow did not violate TCU policy against discrimination and harassment. [Compl. ¶ 131.] Doe No. 1 does not allege facts showing she was denied the right to appeal or whether she appealed the decision. She does not allege her witnesses were not interviewed or she was not allowed to submit evidence as part of the investigation. Doe No. 1’s complaint is with the outcome of the investigation but she has alleged no facts to indicate Turner failed to properly carry out his role as TCU’s Title IX Coordinator. Additionally, Doe No. 1’s allegation that Turner “proximately caused” her injuries [Compl. ¶ 237] is nothing more than a recital of one of the necessary elements of a negligence cause of action, which is insufficient to state a plausible claim. Iqbal, 556 U.S. at 697. Doe No. 1 has failed to allege any facts supporting how Turner’s handling of her Title IX complaint proximately caused her damages. As a result of the alleged negligence, Doe No. 1 also alleges she suffered “psychological and physiological injury.” [Compl. ¶ 237.] Doe No. 1 has failed to allege any injuries, other than emotional harm, and she cannot recover under a negligence theory for mental anguish or emotional distress damages alone. Boyles v. Kerr, 855 S.W.2d 593, 601–602 (Tex. 1993). Because Doe No. 1’s allegations fail to nudge her claims across the line from conceivable to plausible, her negligence claims should be dismissed. Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013). DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 8 Case 3:20-cv-00106-M Document 36 Filed 05/20/20 Page 12 of 12 PageID 837 IV. REQUEST FOR DISMISSAL For the reasons set forth above, Defendant, Dr. Darron Turner, requests that the Court enter an order dismissing all of Plaintiff’s claims against him with prejudice and without leave to amend. Respectfully submitted, /s/ Jennifer N. Littman George C. Haratsis Texas Bar No. 08941000 gch@mcdonaldlaw.com Rory Divin Texas Bar No. 05902800 rd@mcdonaldlaw.com Jennifer Littman Texas Bar No. 00786142 jnl@mcdonaldlaw.com McDONALD SANDERS, A Professional Corporation 777 Main Street, Suite 2700 Fort Worth, Texas 76102 (817) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT DR. DARRON TURNER CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Motion to Dismiss and Brief in Support of Defendant Dr. Darron Turner is being served by electronic mail on all counsel of record receiving electronic notice from the court’s ECF notification system on May 20, 2020. /s/ Jennifer N. Littman Jennifer N. Littman I:\09300\0102\14I8422.DOCX DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 1 AND BRIEF IN SUPPORT PAGE 9