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Doe v. University of Kansas

United States District Court, D. Kansas

September 13, 2017

JANE DOE 7, Plaintiff,
v.
UNIVERSITY OF KANSAS, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN J. THOMAS MARTEN, JUDGE.

         Plaintiff Jane Doe 7 (“Doe”) filed this action in state court against defendant University of Kansas (“KU”) for violating Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and the Kansas Consumer Protection Act, Kan. Stat. Ann. § 50-623, et seq. (“KCPA”). Doe alleges a hostile and discriminatory educational environment and retaliation. KU removed Doe's lawsuit to this court, and filed the instant Motion to Dismiss (Dkt. 36). KU argues that the doctrine of res judicata bars Doe's claims and that she failed to state a KCPA claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons provided below, the court denies KU's motion.

         I. Background

         On March 11, 2016, a group of plaintiffs filed a class action lawsuit against KU pursuant to the KCPA, James Tackett, et al. v. University of Kansas, Case No. 2016-CV-103 (the “KCPA lawsuit”). The plaintiffs claimed that Daisy Tackett and Sarah McClure (publicly acknowledged to be Jane Doe 7) were sexually assaulted in Jayhawker Towers while students at KU. The plaintiffs alleged that KU repeatedly represented to them and other students and their family members that KU's residence halls were safe, but these representations were false.

         Before joining the KCPA lawsuit, Doe filed this lawsuit in Douglas County, Kansas on April 18, 2016. KU removed Doe's case to federal court on June 24, 2016. Four days later, Doe joined the KCPA lawsuit as a plaintiff.

         On March 17, 2017, the Douglas County District Court, Judge Kay Huff, granted KU's motion to dismiss the KCPA lawsuit. Judge Huff held that the parent-plaintiffs did not have statutory standing because they had not signed the contracts with KU, thereby failing to meet the statutory definition of consumers under the KCPA. On the other hand, the state court found that the student-plaintiffs were parties to the consumer transaction, but lacked standing to seek declaratory or injunctive relief because-as former students-they did not allege that they were in danger of suffering a present or future injury.

         On June 16, 2017, KU moved to dismiss Doe's instant claims based on res judicata, or alternatively, Doe's KCPA claim under Fed.R.Civ.P. 12(b)(6).

         II. Res Judicata

         When a court makes a judgment, the preclusive effect of that judgment is defined by both claim preclusion and issue preclusion, collectively known as “res judicata.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Claim preclusion precludes parties to a lawsuit from relitigating issues that were or could have been raised in prior actions. Haynes v. Kansas, 261 F. App'x 87, 89 (10th Cir. 2008).[1] The purpose of res judicata is to protect parties and the court from multiple lawsuits, minimize inconsistent decisions, and conserve judicial resources. Id. Claim preclusion is an affirmative defense, which KU bears the burden to plead and prove. Pelt v. Utah, 539 F.3d 1271, 1283 (10th Cir. 2008).

         “In determining whether res judicata applies, a federal court gives the state court judgment the same effect that it would be given by the state where the judgment was handed down.” Cubie v. Bryan Career Coll., Inc., 244 F.Supp.2d 1191, 1199-200 (D. Kan. 2003). Both the Tenth Circuit and Kansas require satisfaction of three elements for dismissal to be proper: “(1) a final judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.” Pelt, 539 F.3d at 1281 (quoting MACTEC Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005); Cubie, 244 F.Supp.2d at 1199. Within these elements, “Kansas considers whether the parties were fully heard, whether the decision was supported by a reasoned opinion and whether the decision was subject to or reviewed on appeal.” Cubie, 244 F.Supp.2d at 1199-200.

         It is undisputed that Doe's lawsuit contains the same parties as the KCPA lawsuit. It is also undisputed that Judge Huff's decision was a final judgment.[2] However, the parties disagree whether Judge Huff's dismissal of the KCPA lawsuit for lack of standing was a decision on the merits.

         A. Standing

         “[P]arties in a judicial action must have standing as part of the Kansas case-or-controversy requirement imposed by the judicial power clause of Article 3, § 1 of the Kansas Constitution.” Sierra Club v. Moser, 298 Kan. 22, 29, 310 P.3d 360, 367 (2013) (citing State ex rel. Morrison v. Sebelius, 285 Kan. 875, 895-96, 179 P.3d 366, 382-83 (2008)). Consequently, “standing is a component of subject matter jurisdiction . . . .” Id. (citing Cochran v. Kan. Dep't of Agric., 291 Kan. 898, 903, 249 P.3d 434, 440 (2011)). A plaintiff must also have statutory standing under the applicable statute governing the cause of action. See, e.g., Sierra Club, 298 Kan. at 29, 310 P.3d at 367 (“The parties agree that a multilevel analysis-(1) statutory standing and (2) common-law or traditional standing-applies . . . [t]o establish statutory standing under the first prong, Sierra Club must satisfy the standing requirements of both the KAQA and the Kansas Judicial Review Act (KJRA)[.]”).

         As recognized by Judge Huff, to have statutory standing to sue under the KCPA, Doe must be a consumer. See also Hayes v. Find Track Locate, Inc., 60 F.Supp.3d 1144, 1151 (D. Kan. 2014) (a consumer is a party to the contract). Doe cleared this hurdle, but Judge Huff's analysis did not end there. Judge Huff went on to find that Doe could not show a continuing injury or imminent threat of future harm and therefore, she lacked standing for prospective relief. She further held that Doe lacked standing because ...


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