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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.

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CIVIL ACTION NO. 3:20-cv-00106-M

DEFENDANT DR. DARRON TURNER’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
DR. DARRON TURNER

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TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND....................................................................... 1
II. ARGUMENT AND AUTHORITIES .............................................................................. 1
A. Doe No. 2 has not pleaded plausible substantive claims against Turner. ......... 1
1.

Doe No. 2’s negligence claim should be dismissed ......................................... 2

III. REQUEST FOR DISMISSAL ..................................................................................... 6

DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT

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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) ................................................. 1, 2
Boyd v. Tex. Christian Univ., Inc., 8 S.W.3d 758, 760 (Tex. App.—Fort Worth
1999, no pet.) ............................................................................................................... 5
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) ................................... 5
Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) ...................................................... 2
Lutz v. Chesapeake Appalachia, LLC., 717 F.3d 459, 464 (6th Cir. 2013)...................... 6
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 DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT

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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. 2, (“Doe No. 2”) against Turner 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, 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 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 Turner. Doe No. 2 contends Turner was negligent in his
handling of her Title IX complaint. Turner asks the Court to dismiss Doe No. 2’s claim.
II. ARGUMENT AND AUTHORITIES
A.

Doe No. 2 has not pleaded plausible substantive claims 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

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. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT

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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.) Turner moves the Court to dismiss
Doe No. 2’s case against him 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) Turner owed her a legal duty, (2) Turner
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.
Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). Doe No. 2 has not alleged a single fact that
would indicate Turner was acting outside the scope of his employment with TCU in

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handling Doe No. 2’s Title IX Complaint. To the contrary, Doe No. 2’s allegations all
pertain to the manner in which Turner, as TCU’s Title IX Coordinator, fulfilled his
obligations in that role. In fact, Doe No. 2 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. 2 must plead sufficient facts to
establish Turner 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.
According to Doe No. 2, Turner began his initial inquiry on Monday, May 14, 2018,
the date of Doe No. 2’s statement. [Compl. ¶ 143-144.] Doe No. 2 has acknowledged
she did not want any action taken until after graduation, which took place the previous
weekend. [Compl. ¶ 143.] As part of his initial inquiry, Turner contacted TCU staff about
her character. [Compl. ¶ 144.] Doe No. 2’s complaint was investigated, and she was able

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to review the investigative report on July 19, 2018, approximately two months from the
date of her complaint. [Compl. ¶ 153.] Two weeks later, Turner emailed Doe No. 2 a
letter, over TCU’s open network, advising that it had been determined Schoolmaster
“inappropriately touched [her] leg,” which was a violation of TCU policy.

As a

consequence, Schoolmaster was required to attend a one-hour, in-person Title IX training
session in addition to online training prior to the next semester. [Compl. ¶ 155.] Unhappy
with the outcome, Doe No. 2 appealed, and her appeal was denied. 2 [Compl. ¶ 156.]
Viewing all of her factual allegations most favorably to Doe No. 2, the burden of guarding
against injury to Doe No. 2 and the consequences of placing that burden on Turner far
outweigh any potential risk or likelihood of injury to Doe No. 2. Individuals such as Turner
act to remedy complaints of discrimination and harassment on college campuses every
day. Some complaints can be resolved quickly; others take longer. In this case, the
investigation took place over the summer, which is sometimes more difficult. Sometimes
there are many witnesses; sometimes there are none.

Almost always, parties and

witnesses offer conflicting information and one party is unhappy with the outcome.
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 Turner owed her a legal duty because [he] had a special relationship with
her 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,

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Doe No. 2 does not allege Turner decided her appeal.

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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 Turner owed Doe No. 2 an independent
legal duty, she has failed to plead sufficient facts demonstrating Turner breached a duty.
Doe No. 2’s conclusory statement that “the act and omissions detailed herein constitute
breaches of said duties” is insufficient. To the contrary, Doe No. 2’s allegations establish
Turner, as TCU’s Title IX Coordinator, initiated a Title IX investigation and despite
contradicting accounts of the encounter between Doe No. 2 and Schoolmaster,
Schoolmaster was found to have violated TCU’s policy and sanctions were imposed. Doe
No. 2’s disappointment in the sanctions does not establish a breach of any duty.
Additionally, Doe No. 2’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. 2 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. 2 also alleges she suffered
“psychological and physiological injury.” [Compl. ¶ 237.] Doe No. 2 has failed to allege
any injuries, other than emotional harm, but 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).

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Because Doe No. 2’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).
III. REQUEST FOR DISMISSAL
For the reasons set forth above, Defendant, Dr. Darron Turner, requests that the
Court enter an order dismissing all of Doe No. 2’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

DEFENDANT DR. DARRON TURNER’S MOTION TO DISMISS CLAIMS OF JANE DOE NO. 2 AND BRIEF IN SUPPORT

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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\14K0069.DOCX

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