Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 1 of 9 PageID 621 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 LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 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 LEIGH HOLLAND Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 2 of 9 PageID 622 TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND....................................................................... 1 II. ARGUMENT AND AUTHORITIES .............................................................................. 1 A. Jane Doe No. 2 has not pleaded plausible substantive claims against Holland. ............................................................................................................ 1 1. Doe No. 2’s negligence claim should be dismissed ......................................... 2 III. REQUEST FOR DISMISSAL ..................................................................................... 5 DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE i Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 3 of 9 PageID 623 INDEX OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009) ............................................................ 1, 2, 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ..................................................... 2 Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth 1999, no pet.) ............................................................................................................... 4 Boyles v. Kerr, 855 S.W.2d 593, 601–602 (Tex. 1993) ................................................... 5 Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ....................... 3 Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 693 (Tex. App.—Amarillo 1998, pet. denied) .................................................................................................................. 4 Hux v. S. Methodist Univ., 819 F.3d 776, 781–83 (5th Cir. 2016) ................................... 4 Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) ...................................................... 3 Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013)...................... 5 Pagayon v. Exxon Mobile Corp., 536 S.W.3d 499 (Tex. 2017) ....................................... 3 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (citation omitted).................. 2 Thapar v. Zekulka, 994 S.W.2d 635, 637 (Tex. 1999) ..................................................... 2 Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) ............................................................... 2 DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE ii Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 4 of 9 PageID 624 TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Leigh Holland (“Holland”) respectfully files this motion to dismiss (“Motion”) all of the claims of Plaintiff Jane Doe No. 2 (“Doe No. 2”) against Holland 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 the Title IX Office that a week earlier, Dr. Andrew Schoolmaster (“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 which was post-dated until after graduation. [Compl. ¶¶ 142, 143]. The Title IX Office investigated the complaint and sanctioned Schoolmaster for not complying with TCU policy. Doe No. 2 was unhappy with the outcome and now, two years later, she has sued TCU and others, including Holland. Doe No. 2 contends Holland was negligent in fulfilling her duties in TCU’s Title IX Office. Holland asks the Court to dismiss Doe No. 2’s claim. II. ARGUMENT AND AUTHORITIES A. Jane Doe No. 2 has not pleaded plausible substantive claims against Holland. 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 LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 1 Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 5 of 9 PageID 625 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.) Holland moves the Court to dismiss Doe No. 2’s claims against her for failure to state a claim. 1. Doe No. 2’s negligence claim should be dismissed. Doe No. 2’s negligence claim fails as a matter of law. To state a negligence claim, Doe No. 2 must allege facts showing (1) Holland owed her a legal duty, (2) Holland breached that duty, and (3) damages 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. DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 2 Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 6 of 9 PageID 626 Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). Doe No. 2 has not alleged a single fact that would indicate Holland was acting outside the scope of her employment with TCU during her involvement with Doe No. 2’s Title IX complaint. To the contrary, her complaints about Holland pertain to the manner in which she answered Doe No. 2’s call to the Title IX Office and the manner in which she sent an email related to the investigation to Doe No. 2. [Compl., ¶¶ 151-152]. In fact, Doe No. 2 acknowledges that at all relevant times, TCU’s agents – which includes Holland - 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 Holland individually, Doe No. 2 must plead sufficient facts to establish Holland owed her a legal duty independent of any duty owed by TCU. Doe No. 2’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 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. Doe No. 2 alleges Holland (1) answered Doe No. 2’s call on speaker phone and (2) sent her an email with a letter from the Title IX Office over TCI’s open network. Those DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 3 Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 7 of 9 PageID 627 are Doe No. 2’s only factual allegations against Holland. Doe No. 2 makes the conclusion, with no factual support that Holland had no prior experiences as a Title IX investigator and was “learning on-the-job.” Doe No. 2 does not allege Holland was the investigator assigned to her complaint or make any complaints about the investigation itself. 2 Viewing Doe No. 2’s factual allegations in a light most favorable to her, the burden of guarding against injury to Doe No. 2 and the consequences of placing that burden on Holland far outweigh any potential risk or likelihood of injury to Doe No. 2. In deciding whether a legal duty exists, in addition to applying the risk-utility test, courts also consider whether there was a special relationship between the parties. Doe No. 2 asserts Holland owed her a legal duty because [she] had a special relationship with [Doe No. 2] as a designated point-person for discrimination complaints. [Compl. ¶ 237.] But the relationship between a university administrator and an 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 based on a special relationship. Assuming for purposes of this Motion that Holland owed Doe No. 2 an independent legal duty, she has failed to plead sufficient facts demonstrating Holland breached a duty. Doe No. 2’s conclusory statement that “the act and omissions detailed herein constitute breaches of said duties” is insufficient. Additionally, Doe No. 2’s allegation that Holland “proximately caused” her injuries [Compl. ¶ 237] is nothing more than a recital of one of 2 An independent, outside investigator conducted the investigation on behalf of TCU. DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 4 Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 8 of 9 PageID 628 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. 2 has failed to allege any facts supporting how Holland’s answering a call on speaker phone and sending an email and letter over TCU’s open network breached a duty or proximately caused her damages. As a result of the alleged negligence, Doe No. 2 also alleges she suffered “psychological and physiological injury.” [Compl. ¶ 237.] Doe No. 2 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. 2’s allegations fail to nudge her claims across the line from conceivable to plausible, her negligence claim against Holland should be dismissed. Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013). III. REQUEST FOR DISMISSAL For the reasons set forth above, Defendant, Leigh Holland, requests that the Court enter an order dismissing all of Plaintiff’s claims against her with prejudice and without leave to amend. DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 5 Case 3:20-cv-00106-M Document 28 Filed 05/20/20 Page 9 of 9 PageID 629 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 LEIGH HOLLAND CERTIFICATE OF SERVICE The undersigned counsel certifies that the above and foregoing Motion to Dismiss and Brief in Support of Defendant Leigh Holland 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\14K0088.DOCX DEFENDANT LEIGH HOLLAND’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT PAGE 6