Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 1 of 8 PageID 789 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. ANDREW SCHOOLMASTER’S MOTION TO DISMISS PLAINTIFF JANE DOE NO. 2’S COMPLAINT 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. ANDREW SCHOOLMASTER Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 2 of 8 PageID 790 TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND....................................................................... 1 II. ARGUMENT AND AUTHORITIES .............................................................................. 1 A. Plaintiff has not pleaded plausible substantive claims against Schoolmaster. ................................................................................................... 1 1. Doe No. 2’s assault claim should be dismissed. .............................................. 2 III. REQUEST FOR DISMISSAL ..................................................................................... 4 DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE i Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 3 of 8 PageID 791 INDEX OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ................................................................ 1, 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ..................................................... 2 Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) ..................................................... 3 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted).................. 2 Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010) ............................ 2 Statutes Texas Penal Code Ann. § 22.01(a)(1-3) (West 2019) ..................................................... 3 DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 4 of 8 PageID 792 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Dr. Andrew Schoolmaster (“Schoolmaster”) respectfully files this motion to dismiss (“Motion”) the claim of Jane Doe No. 2 (“Doe No. 2”) against Schoolmaster in Plaintiffs’ First Amended Complaint [Doc. 19], and brief in support. I. INTRODUCTION AND BACKGROUND Doe No. 2 1 is a former TCU student who graduated from TCU with Honors in May of 2018. Two weeks before her graduation, Doe No. 2 made a verbal report to TCU’s Title IX Office that a week earlier, Schoolmaster touched her bare knee while she sat in the Political Science Department office conversing with an administrative assistant. Doe No. 2 then delivered a formal written complaint to TCU’s Title IX Office post-dated until after graduation. [Compl., ¶¶ 142, 143]. The Title IX Office investigated the complaint. There were no independent witnesses. Doe No. 2 and Schoolmaster offered differing versions of the encounter, but Schoolmaster acknowledged when he bent over and apologized for interrupting their conversation, he accidentally touched Doe No. 2’s knee. Schoolmaster was sanctioned for not complying with TCU policy. Doe No. 2 was unhappy with the outcome, and now, two years later, she has sued Schoolmaster for assault. Schoolmaster asks the Court to dismiss Doe No. 2’s claim. II. ARGUMENT AND AUTHORITIES A. Plaintiff has not pleaded plausible substantive claims against Schoolmaster. 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. 1 Doe No. 2, along with Jane Doe No. 3, has joined this lawsuit that was initially filed by Jane Doe No. 1. DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 5 of 8 PageID 793 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 must be dismissed.” (Twombly, 550 U.S. at 570.) Schoolmaster moves the Court to dismiss Doe No. 2’s assault claim for failure to state a claim. 1. Doe No. 2’s assault claim should be dismissed. Doe No. 2’s claim fails because she has failed to allege sufficient facts to state a plausible claim of assault. The elements of a civil assault mirror those of a criminal assault. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). Under the Penal Code, an assault occurs if a person: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 6 of 8 PageID 794 the contact as offensive or provocative. Texas Penal Code Ann. § 22.01(a)(1-3) (West 2019); Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). Doe No. 2 alleges assault under Texas Penal Code Ann. § 22.01(a)(1) and (3). Assuming only for purposes of this Motion that Doe No. 2’s characterization of the encounter is accurate, Doe No. 2’s conclusory allegation that Schoolmaster “acted intentionally and knowingly in making unwanted contact with [her] resulting in bodily injury . . .” is insufficient to state a claim under Texas Penal Code Ann. § 22.01(a)(1). Doe No. 2 has failed to allege any facts indicating she suffered a bodily injury as a result of Schoolmaster touching her knee. She makes no allegation of any physical injury, or sustained bruising, scratches or any other manifestation of physical injury. Accordingly, any claim brought under Texas Penal Code § 22.01(a)(1) must fail. Similarly, Doe No. 2 has failed to sufficiently plead facts to support claim under Texas Penal Code § 22.01(a)(3). Doe No. 2’s statement that Schoolmaster knew or reasonably should have believed that Jane Doe No. 2 would regard him touching her knee as offensive and/or provocative [Compl. ¶ 260.] is conclusory with no factual support. Although the Complaint makes a vague reference implying Doe No. 2 had informed Schoolmaster his conduct was unwelcome, [Compl. ¶ 260.] the allegations in the Amended Complaint establish otherwise. According to Doe No. 2, approximately one week before the alleged “assault,” she was introduced to Schoolmaster and they briefly shook hands. [Compl. ¶ 136.] The next week, when he interrupted a conversation between Doe No. 2 and a TCU employee, he bent down to apologize for interrupting their conversation and, according to Doe No. 2, caressed her knee. [Compl. ¶ 138.] She did not inform Schoolmaster the physical touch was offensive or provocative. Rather, she DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 7 of 8 PageID 795 said, “Dean, it is perfectly okay to interrupt our conversation.” [Compl. ¶ 139.] Schoolmaster disputes Doe No. 2’s characterization of the encounter and her description of Schoolmaster’s admission in the investigative report. 2 He has consistently stated it was unplanned, i.e. accidental. Schoolmaster thought he was being courteous and respectful by apologizing for the interruption. [Compl. ¶ 154.] Jane Doe No. 2 does not allege Schoolmaster made a sexually suggestive statement or inappropriate comment to Doe No. 2 to communicate to Doe No. 2 that Doe No. 2 would realize Schoolmaster meant the touch to be provocative. Doe No. 2 does not allege it was a sexually suggestive touch or that Schoolmaster was expressing sexual interest in her. No reasonable recipient of such an inadvertent touching would find it to be offensive or provocative. Also, not having alleged or described any prior interaction between them putting Schoolmaster on notice that such an incidental touching would be regarded by her as offensive, it is speculation that Schoolmaster should have known Doe No. 2 would find his conduct offensive or provocative. Jane Doe No. 2’s conclusory allegation that Schoolmaster knew or reasonably should have believed that Doe No. 2 would regard the physical contact as offensive or provocative, without facts showing why or on what basis Schoolmaster would form such a belief, is insufficient to maintain a claim of intentional assault. III. REQUEST FOR DISMISSAL For the reasons set forth above, Defendant, Dr. Andrew Schoolmaster, requests that the Court enter an order dismissing Plaintiff’s case against him. 2 According to the investigative report, Schoolmaster admitted to tapping Doe No. 2’s knee and was trying to be respectful and courteous. He never said that he caressed or patted Doe No. 2’s knee. DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 33 Filed 05/20/20 Page 8 of 8 PageID 796 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. ANDREW SCHOOLMASTER CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Motion to Dismiss and Brief in Support of Defendant Dr. Andrew Schoolmaster 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\14J9057.DOCX DEFENDANT DR. ANDREW SCHOOLMASTER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 5