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Weckhorst v. Kansas State University

United States District Court, D. Kansas

August 23, 2017

SARA WECKHORST, Plaintiff,
v.
KANSAS STATE UNIVERSITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Sara Weckhorst brought this action against Defendant Kansas State University (“KSU”) alleging Title IX, negligence, and Kansas Consumer Protection Act claims based on KSU's failure to adequately respond after Plaintiff, a KSU student, reported she was sexually assaulted by two KSU students at multiple locations in Manhattan, Kansas, including at a KSU fraternity house and KSU fraternity event. Plaintiff moved for leave to amend her Complaint to join as a Plaintiff Crystal Stroup, another KSU student who alleged she was assaulted at an off-campus apartment by one of the same assailants who allegedly assaulted Plaintiff. The Court denied Plaintiff's motion for leave to amend. This matter comes before the Court on Plaintiff's Motion for Partial Reconsideration of the Court's Order Finding the Proposed Amendment to Join Crystal Stroup Futile or, In the Alternative, For Relief From a Final Order Pursuant to Fed.R.Civ.P. 60(b) (Doc. 65). The motion is fully briefed and the Court is prepared to rule. For the reasons explained more fully below, the Court denies Plaintiff's motion.

         I. Procedural Background and Factual Allegations

         Plaintiff alleged in her original Complaint that KSU was deliberately indifferent to her report that on April 24, 2014, she was sexually assaulted at a KSU fraternity event and fraternity house and at other locations in Manhattan, Kansas, by two KSU students, J.F. and J.G.

         Specifically, Plaintiff alleged that KSU refused to investigate her report of sexual assault based on KSU's view that it need not investigate such instances at the off-campus KSU fraternity. KSU filed a motion to dismiss, in which it argued Plaintiff failed to state a plausible Title IX claim because KSU did not have substantial control over the context of the alleged assaults, and because its alleged deliberate indifference did not cause “further harassment” of Plaintiff. Plaintiff responded to the motion, and also filed a motion for leave to amend her Complaint.

         Plaintiff moved for leave to amend her Complaint to join as a Plaintiff Crystal Stroup, another KSU student. Plaintiff and Ms. Stroup alleged in their proposed First Amended Complaint (“FAC”)[1] that J.G., one of the students who allegedly assaulted Plaintiff, sexually assaulted Ms. Stroup at University Crossing, an off-campus apartment, on October 6, 2015. The proposed FAC alleged that University Crossing is a “major rental facility for K-State students” across the street from KSU that “matches students looking to live together based on shared interest, majors, etc.” and provides “shuttles to and from the center of campus.”[2] After her alleged sexual assault, Ms. Stroup learned about K-State's stance against investigating sexual assaults involving students that occur off campus. This dissuaded her from immediately reporting the assault to KSU, and thus she did not report the alleged sexual assault to KSU for many months, during which time she suffered actual and threatened direct contacts with J.G. on KSU's campus.

         Ms. Stroup eventually reported the alleged sexual assault to KSU in spring 2016 after KSU placed her on academic probation. In response to her report, KSU did not inform Ms. Stroup of KSU's sexual misconduct or Title IX policies, and did not inform her of the option to file a complaint against J.G. with the KSU Office of Institutional Equity. In July 2016, J.G. was arrested for the sexual assault of Ms. Stroup, and was criminally charged in Riley County with the sexual assault of both Ms. Stroup and Plaintiff. That same month, after learning of J.G.'s arrest, KSU engaged in a threat assessment and expelled J.G. from campus.

         The proposed FAC asserted Title IX and negligence claims on behalf of Ms. Stroup, and characterized Ms. Stroup's proposed Title IX claim as alleging “[d]eliberate [i]ndifference [p]rior to Plaintiff's [r]ape [a]s to Crystal Stroup.”[3] Plaintiff and Ms. Stroup alleged that KSU's deliberate indifference following Plaintiff's report of sexual assault “created a climate whereby such misconduct was tolerated, thus encouraging misconduct and proximately causing injury to Crystal.”[4] They alleged in support of Ms. Stroup's negligence claim that KSU breached its duty to protect her from certain dangers, including reasonably foreseeable sexual violence, and that this breach proximately caused her injuries.

         The Court issued a Memorandum and Order on March 14, 2017, in which it granted in part and denied in part Defendant's motion to dismiss.[5] The Court found that Plaintiff stated a plausible Title IX claim because she presented factual allegations that KSU (1) had substantial control over the assailants and the context of several of Plaintiff's assaults at a KSU fraternity and fraternity event, and (2) was deliberately indifferent to her report of sexual assault. The Court, however, granted Defendant's motion as to Plaintiff's negligence claim, finding that Plaintiff had not alleged sufficient facts to support a plausible claim that a special relationship existed between her and KSU such that KSU had a duty to protect her against the tortious acts of the third-party students, J.F. and J.G. The Court also denied Plaintiff's motion for leave to amend to join Ms. Stroup as a Plaintiff. The Court found Ms. Stroup's proposed Title IX claim futile because she presented no factual allegations that the harassment complained of-her sexual assault by J.G. at University Crossing-occurred within a context over which KSU had substantial control. The Court also found that Ms. Stroup's negligence claim was futile for the same reasons the Court dismissed Plaintiff's negligence claim.

         II. Legal Standards

         D. Kan. Rule 7.3(b) governs motions to reconsider non-dispositive orders, while Fed.R.Civ.P. 59 and 60 govern motions to reconsider dispositive orders.[6] Whether orders on motions to amend are dispositive is an unsettled issue.[7] Motions to amend are generally considered non-dispositive because they do not dispose of a claim or defense.[8] When an “order denying a motion to amend, however, effectively removes a defense or claim from the case, it may well be a dispositive ruling.”[9]

         Here, the Court's denial of the motion to amend did not “remove a defense or claim from the case.”[10] Indeed, Plaintiff emphatically argues that Ms. Stroup was not a party to this action at the time the Court made its futility ruling.[11] Thus, her proposed claims were not in play at the time of the Court's ruling. Accordingly, because the Court's order did not dispose of an existing claim of a party, the Court construes the order as non-dispositive, and the Court proceeds to consider Plaintiff's motion under D. Kan. Rule 7.3.[12]

         Under D. Kan. Rule 7.3, grounds warranting a motion to reconsider include: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.[13] “Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.”[14] Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier.[15] A party's failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider.[16] Whether to grant a motion to reconsider is left to the Court's discretion.[17]

         III. Discussion

         Plaintiff seeks reconsideration of the Court's finding of futility as to Ms. Stroup's claims, arguing that the Court's finding was “cursory, ” “puzzling, ” and “premature.”[18] Plaintiff asserts she is not seeking reconsideration of the Court's denial of her motion for leave to amend and Ms. Stroup's joinder, but simply reconsideration of its “assessment of futility in order to allow Crystal to proceed with her own independent lawsuit.”[19] Plaintiff points to several perceived faults in the Court's ruling, which she organizes under two main arguments. First, she argues the Court's ruling will result in manifest injustice to Ms. Stroup. Second, Plaintiff argues that the Court committed clear error.

         A. Manifest Injustice

         Plaintiff makes two apparent arguments in support of her assertion that reconsideration is necessary to prevent manifest injustice. The Court addresses each argument in turn.

         First, Plaintiff contends the Court's futility ruling was premature. She asserts that neither party argued the merits of Ms. Stroup's claims before the Court ruled on futility. Plaintiff also points to the following statement KSU made in responding to Plaintiff's motion for leave to amend: “because Ms. Stroup has not entered an appearance and has yet to file any claims in the first instance, it is premature for K-State to address the merits of her claims.”[20] Thus, Plaintiff asserts that the “Court prematurely ruled on the merits of Crystal's proposed claims, before they were even filed and before she was a party, without allowing her a full and fair opportunity to present or brief the issues.”[21]

         At the outset, the Court notes that Plaintiff's motion to amend was fully briefed, and thus she had a full opportunity to brief issues, including futility, relevant to a motion to amend brought pursuant to Fed.R.Civ.P. 15(a)(2).[22] In fact, both parties addressed futility in briefing Plaintiff's motion for leave to amend.[23] Plaintiff maintains that KSU focused only on the futility of the proposed amendments related Plaintiff's claims, rather than the futility of Ms. Stroup's proposed claims. But contrary to Plaintiff's assertion, KSU made arguments as to whether Ms. Stroup's alleged sexual assault occurred within a context over which KSU had substantial control.[24] KSU also made arguments as to the futility of Ms. Stroup's proposed negligence claims.[25] Furthermore, although Plaintiff maintains that Ms. Stroup was not a party at the time of the Court's futility determination, she emphasized in briefing her motion for leave to amend that counsel had effectively entered their appearances on behalf of Ms. Stroup in filing the proposed FAC.[26] For these reasons, the Court finds that Ms. Stroup, who was represented by counsel in this case, had a full opportunity to address the futility of her proposed claims in briefing her motion for leave to amend.

         Additionally, the Court finds that its ruling on futility was not premature because futility of amendment is properly before a court on a Rule 15(a)(2) motion for leave to amend. Indeed, it is well settled that in ruling on a motion for leave to amend, courts are instructed to “freely give leave when justice so requires, ” and to deny leave to amend only when an apparent reason, “such as . . . futility of amendment, ” exists.[27] Thus, “a court properly may deny a motion for leave to amend as futile when the proposed amended complaint would be subject to dismissal for any reason.”[28] These principles make clear that the proper forum for analyzing futility of amendment is at the motion for leave to amend stage, rather than after the Court has granted leave to amend and the time for analyzing futility has passed. Where, as here, a motion for leave to amend is properly before the Court pursuant to Fed.R.Civ.P. 15(a)(2), the Court finds that analysis of futility is not premature. To the contrary, the Court is instructed to analyze futility and other factors in exercising its discretion to grant or deny leave to amend.[29]

         Here, at the time of the Court's futility determination, Ms. Stroup had “filed a proposed complaint expressing her intent to vindicate her rights, ”[30] she was represented by counsel who had effectively entered their appearance and briefed the motion for leave to amend, and the parties had briefed the issue of futility. Additionally, the Court had an obligation to screen Ms. Stroup's proposed claims for futility in ruling on the Rule 15(a)(2) motion for leave to amend. Accordingly, the Court finds that futility of amendment was an issue properly before the Court, and therefore it was not manifestly unjust for the Court to address this issue.

         Second, Plaintiff argues the Court's ruling will cause manifest injustice because the ruling “has potentially grave consequences for Crystal.”[31] Plaintiff acknowledges that preclusion likely would not apply in a future case Ms. Stroup might bring, but she seeks reconsideration so Ms. Stroup “may vindicate her civil rights without impediment.”[32] To the extent Ms. Stroup was not a party in this case, the Court agrees that preclusion would not apply.[33] But the Court is not in a position to rule on the preclusive effect of its ruling in a hypothetical future case. In making its futility determination, the Court was not ruling on claims Ms. Stroup might bring in any subsequent litigation. Rather, the Court simply found that Ms. Stroup's proposed claims, as plead, were futile. Plaintiff has not made a showing that the Court's futility determination in this case will have a preclusive effect or otherwise prevent Ms. Stroup from vindicating her civil rights. Accordingly, the Court finds that reconsideration is not necessary to prevent manifest injustice.

         B. Clear Error

         1. Futility Standard

         Plaintiff argues that the Court committed clear error in analyzing whether Ms. Stroup's proposed claims were “futile, ” rather than analyzing whether her proposed claims were “clearly futile.”[34] Plaintiff points to one case in this District to support her argument that “clearly futile” is the proper standard in evaluating a proposed claim on a motion for leave to amend.[35] Several cases in this District have indeed employed the “clearly futile” standard in evaluating proposed amendments.[36] These cases rely on a treatise regarding leave to amend for use of the “clearly futile” standard, and they do not suggest that the “clearly futile” standard is materially different than the typical “futility” standard.[37] The seminal Supreme Court case interpreting Rule 15(a)(2) standards for leave to amend, Foman v. Davis, refers to “futility of amendment, ” rather than “clear futility.”[38] Additionally, a large number (if not a large majority) of the cases in this District and the Tenth Circuit employ the traditional “futility” standard, rather than the “clearly futile” standard.[39]

         The Court certainly agrees that futility should be clear before denying leave to amend, as Fed.R.Civ.P. 15(a)(2) counsels courts to “freely give leave when justice so requires.” But the Court finds that it did not commit clear error by following the many cases in this District and in the Tenth Circuit in determining whether Ms. Stroup's proposed amendments were “futile, ” as opposed to “clearly futile.” Assuming arguendo that “clearly futile” is the proper standard and that there is a difference of degree between the “futile” and “clearly futile” standards, the Court finds that this standard was met because Ms. Stroup's proposed Title IX and negligence claims, as plead, clearly would not survive a motion to dismiss for the reasons explained in the Court's Memorandum and Order.[40] The Court therefore finds that it did not commit clear error in applying the standard of “futility” set forth in its Memorandum and Order.

         2. Title IX Futility Analysis

         Plaintiff also argues the Court committed clear error in conducting its futility analysis of Ms. Stroup's proposed Title IX claim. Plaintiff notes that the Court based its analysis of Ms. Stroup's Title IX claim on the same legal framework it used to analyze Plaintiff's claim. Plaintiff, however, argues that while she alleged a claim of post-assault deliberate indifference, Ms. Stroup proposed a claim of pre-assault deliberate indifference. Thus, Plaintiff contends that “Crystal's claims raise a different theory of Title IX liability and require a different legal analysis.”[41] The Court recognizes that Ms. Stroup's proposed claim differed from Plaintiff's with respect to when KSU was allegedly deliberately different. But Plaintiff has not shown how the claims are legally distinct as to the material question of whether KSU had substantial control over the harassment complained of.[42] As the Supreme Court has explained, Title IX's “plain language confines the scope of prohibited conduct based on the recipient's degree of control over the harasser and the environment in which the harassment occurs.”[43] Whether she alleged a pre-assault or post-assault claim of deliberate indifference under Title IX, Ms. Stroup's claim would be plausible only if the alleged harassment she suffered occurred within a “program or activity” of KSU or within a context over which KSU had “substantial control.”[44] Accordingly, the Court finds that it did not commit clear error in determining whether Plaintiff alleged she suffered discrimination or harassment within a context over which KSU exercised substantial control.

         Plaintiff argues that even if she was required to satisfy the “substantial control” element, she presented plausible allegations that KSU maintained substantial control over the harasser and the context of the harassment in three ways.[45] First, she contends that a strong nexus exists between KSU and the context of Ms. Stroup's alleged assault, as well as the “subsequent hostile environment” Ms. Stroup faced on campus following her assault. Second, Plaintiff argues KSU had control over the context of the “known harassment, ” that is, the alleged sexual assaults of Plaintiff. Finally, she claims KSU had control based on an “official policy” theory of liability, as recognized by the Tenth Circuit in Simpson v. University of Colorado Boulder.[46]

         Plaintiff urges that a strong nexus exists between the alleged assault at University Crossing and KSU. Plaintiff points to allegations in Ms. Stroup's proposed claim in support of this supposed nexus, including that University Crossing houses hundreds of KSU students, that University Crossing is located directly across from the KSU campus, and that it provides shuttles to and from campus. But while these allegations may suggest some proximity of University Crossing to KSU, they do not demonstrate that KSU had any control over the off-campus apartment complex, let alone “substantial control.” Plaintiff cites Ross v. University of Tulsa, in which the Tenth Circuit rejected the defendant university's argument that it lacked substantial control over the context of the plaintiff's sexual assault, which occurred in a private apartment on campus.[47] The court found that a reasonable fact-finder could conclude the university had substantial control over the context of the assault because the university exerted disciplinary control over students for misconduct that occurs in private apartments on campus, and because the university could have prevented the plaintiff's on-campus assault by barring the assailant from campus based on a previous on-campus assault.[48] Plaintiff argues the “substantial control” analysis in Ross applies equally here because KSU could have removed J.G. from campus following Plaintiff's alleged sexual assault, thereby preventing Ms. Stroup's alleged assault. But unlike the sexual assault at the on-campus apartment at issue in Ross, here Ms. Stroup's alleged sexual assault occurred at an off-campus apartment complex. Ms. Stroup did not allege KSU had disciplinary authority over conduct that occurs at University Crossing. Furthermore, she did not allege any facts indicating that J.G. would have been prohibited from living at or visiting the off-campus apartment complex if he had been expelled from KSU. Without any allegations that KSU had substantial control over University Crossing, which was the context of Ms. Stroup's alleged sexual assault, Ms. Stroup's proposed Title IX claim is not plausible.

         Plaintiff also argues that KSU had control of the “subsequent hostile environment context which Crystal faced on K-State's campus, as she was forced to continue sharing it with the rapist” and “regularly encountered him on campus.”[49] But this was not the harassment Ms. Stroup alleged was the result of KSU's deliberate indifference. Rather, Ms. Stroup alleged that “as a direct and proximate result of K-State's actions, inactions, and deliberate indifference, Crystal was sexually assaulted by J.G.”[50] Importantly, Ms. Stroup couched her proposed claim as one of “[d]eliberate [i]ndifference [p]rior to Plaintiff's [r]ape.”[51] Thus, the harassment complained of, which was subject to the “substantial control” requirement, was Ms. Stroup's alleged sexual assault at University Crossing. Plaintiff's arguments regarding post-assault harassment and deliberate indifference do not provide a basis for reconsideration.

         Plaintiff's argument that Ms. Stroup satisfied the “substantial control” element based on allegations that KSU had substantial control over the context of Plaintiff's own sexual assault is similarly unavailing. As explained above, Title IX's “plain language confines the scope of prohibited conduct based on the recipient's degree of control over the harasser and the environment in which the harassment occurs.”[52] Although Ms. Stroup plausibly alleged KSU had substantial control over the prior assault of Plaintiff, she did not allege that KSU had control over the context of her own assault at University Crossing. In the absence of any allegations that KSU had control over the context of Ms. Stroup's sexual assault, Ms. Stroup cannot maintain a Title IX claim against KSU. Holding otherwise would, contrary to the plain language of Title IX, subject funding recipients to liability for harassment that occurs outside of “education program[s] or activit[ies] receiving Federal assistance.”[53]

         Finally, Plaintiff argues KSU exercised substantial control over the context of Ms. Stroup's alleged sexual assault based on “an official policy of refusing to investigate any sexual violence at its fraternities or elsewhere off-campus.”[54] This theory arises from Simpson v. University of Colorado Boulder, [55] a case that this Court previously discussed in its Memorandum and Order.[56] In Simpson, the Tenth Circuit found the plaintiffs had presented sufficient evidence that the university exercised “control over the harasser and the environment in which the harassment occur[ed], ” because the sexual assaults at issue, which occurred at a private apartment off campus, were the result of an official policy by the university's football program to encourage female students to show recruits “a good time.”[57] Ms. Stroup's proposed claims do not rest on an “official policy” theory similar to that recognized in Simpson. Unlike in Simpson, here KSU did not have an official policy that affirmatively encouraged students to engage in conduct off campus that could lead to sexual harassment or assault.[58] Also unlike Simpson, neither J.G. nor Ms. Stroup were allegedly acting at the direction of KSU, and the gathering that precipitated the alleged assault was not facilitated by a KSU program. Accordingly, the Court finds that Ms. Stroup did not state a plausible claim of Title IX liability premised on an “official policy” in her proposed FAC.

         For the reasons explained above, the Court finds that it did not commit clear error in finding Ms. ...


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