Unknown Party v. Arizona Board of Regents ( 2019 )

Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 1 of 35 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Unknown Party, No. CV-18-01623-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Arizona Board of Regents, et al., 13 Defendants. 14 15 The Arizona Board of Regents (“ABOR”), along with Arizona State University’s 16 (“ASU”) Senior Vice President of Educational Outreach and Student Services James Rund, 17 Chair of the University Hearing Board (“UHB”) Craig Allen, UHB members Kathleen 18 Lamp and Andrew Waldron, Senior Associate Dean of Students and Dean’s Review 19 Committee member Kendra Hunter, and Office of Student Rights and Responsibilities 20 Senior Coordinator Tara Davis (collectively, “Defendants”), move to dismiss plaintiff John 21 Doe’s first amended complaint (“FAC”). Doe filed this action after being expelled for 22 violating certain provisions of the ASU Student Code of Conduct (the “Code”), including 23 provisions related to sexual misconduct. For the following reasons, the motion will be 24 granted in part and denied in part. 25 BACKGROUND 26 The facts alleged in the FAC (Doc. 37), which the Court presumes to be true for 27 purposes of the motion to dismiss, are as follows. 28 … Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 2 of 35 1 I. The Underlying Incident 2 On March 31, 2016, Doe and a fellow ASU student, Jane Roe, went on a dinner date 3 and then engaged in consensual sexual activity in Roe’s apartment. (Id. ¶ 109.) 4 On April 2, 2016, Doe and Roe attended the same off-campus party. (Id. ¶ 110.) 5 During the party, Roe (who was under 21 years old at the time, and thus not legally allowed 6 to drink alcohol) drank several shots of low-proof vodka. (Id. ¶¶ 7, 9, 17, 111-15.) Roe 7 also danced provocatively with Doe and another male attendee, Witness 1, and kissed both 8 men in the view of other partygoers. (Id. ¶¶ 7, 118.) Eventually, Roe led both men into a 9 bedroom by the hand. (Id. ¶¶ 8, 121.) After the trio entered the bedroom, Roe kissed 10 Witness 1, prompting Doe to ask Roe if he should leave. (Id. ¶¶ 10, 122.) Roe told Doe 11 to stay and then verbally consented to sex. (Id.) Roe, Doe, and Witness 1 then undressed 12 and engaged in a “threesome” for approximately 25 minutes, during which “Roe was an 13 active participant in the sex, moving her hips appropriately, manipulating Doe’s genitals 14 to facilitate sex, and making moaning sounds indicative of pleasure.” (Id. ¶¶ 10-11, 122- 15 23.) After 25 minutes, Roe reported vaginal pain and asked the men to stop. (Id. ¶¶ 11, 16 125.) Both complied with this request. (Id.) 17 After the threesome ended, Roe continued manipulating Doe’s genitals by hand. 18 (Id. ¶ 126.) While this was occurring, Witness 1 surreptitiously began video-recording the 19 encounter on his cellphone, which revealed “consensual” sexual conduct by Roe. (Id. ¶¶ 20 12, 126-27.) When Roe realized she was being filmed, she told Witness 1 to stop and 21 became upset. (Id. ¶¶ 12, 126, 128.) After Witness 1 left, Doe asked Roe why she was 22 being “dramatic.” (Id. ¶¶ 13, 128.) This comment further angered Roe and precipitated an 23 argument between Doe and Roe in which both called the other “an asshole.” (Id.) Roe 24 then left the room, found a friend, and left the party. (Id.) 25 II. The Criminal Investigation By The Tempe Police Department 26 On April 3, 2016 (the next day), Roe contacted the Tempe Police Department to 27 report that that “she drank too much to consent to sex with Doe and Witness 1.” (Id. ¶¶ 14, 28 131.) However, during the interview process, Roe “reported that she was coherent when -2- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 3 of 35 1 entering the bedroom, understood what was occurring throughout the sexual encounter, 2 and told the males to stop when the sex began to hurt.” (Id. ¶ 133.) Roe also stated, falsely, 3 that she had never engaged in sexual conduct with Doe before the party. (Id. ¶ 131.) As 4 part of the ensuing investigation, a Tempe police detective obtained and viewed a copy of 5 the cellphone video that Witness 1 had taken. (Id.¶ 142.) After the Tempe Police 6 Department completed its “thorough[]” investigation of Roe’s allegations, the Maricopa 7 County Attorney’s Office declined the case, meaning that Doe “was never charged with 8 any crime.” (Id. ¶¶ 14, 143.) 9 III. Title IX Developments At ASU 10 The FAC alleges that, between 2001 and 2011, universities such as ASU followed 11 Title IX guidance materials promulgated by the United States Department of Education’s 12 Office of Civil Rights (“OCR”), which generally required schools to provide certain 13 “procedural guarantees” to students accused of sexual harassment and other misconduct 14 and to accord “due process to both parties involved.” (Id. ¶¶ 80-83.) However, in 2011, 15 OCR issued a “significant guidance document” commonly referred to as the “Dear 16 Colleague” letter. (Id. ¶ 84.) This letter advanced a “gendered view” of sexual violence 17 “that saw men as paradigmatic perpetrators of that violence and heterosexual women as its 18 paradigmatic targets.” (Id.) Among other things, the letter forbade universities from 19 employing a clear-and-convincing-evidence standard during sexual misconduct 20 proceedings and required them to employ a lesser preponderance-of-the-evidence standard. 21 (Id. ¶ 87.) OCR also issued a later guidance document that “strongly implied that allowing 22 an accused student to cross-examine his accuser could create a ‘hostile environment’ and 23 put a college or university in violation of Title IX.” (Id. ¶ 92.) OCR explicitly threatened 24 universities with the withdrawal of federal funding if they failed to comply with these 25 mandates. (Id. ¶¶ 89, 95.) 26 The head of OCR also advanced a “gendered view” of Title IX enforcement through 27 interviews and press releases. (Id. ¶¶ 85-86.) During one interview, the head of OCR 28 stated “she couldn’t help but to think about the women who are suffering every day.” (Id. -3- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 4 of 35 1 ¶ 85.) During another event, the head of OCR sought to “highlight men’s role in preventing 2 sexual violence.” (Id. ¶ 86.) 3 In May 2014, as part of an effort to follow-up on the issuance of the “Dear 4 Colleague” letter, OCR published a list of 55 universities that were under investigation for 5 Title IX violations. (Id. ¶ 94.) ASU was one of the universities named on this list. (Id.) 6 OCR officials visited ASU in 2012 and 2013 to “gather information” about ASU’s 7 processes for investigating sexual assault complaints. (Id. ¶ 98.) Following these visits, 8 ASU was “subjected to extraordinary pressure,” including two additional OCR complaints 9 “that were filed as [Doe’s] case was ongoing.” (Id.) 10 IV. The Initial Investigation By ASU 11 In September 2016 (about six months after the incident), Roe reported the incident 12 to ASU. (Id. ¶¶ 15, 144.) After Hunter received a report concerning the investigation, she 13 sent an email to her colleagues “indicat[ing] that action had to be taken quickly because 14 [Doe] was a male athlete—a collegiate wrestler.” (Id. ¶ 254.)1 15 On September 19, 2016, ASU initiated its investigation and interviewed Roe. (Id. 16 ¶ 144.) During this meeting, Davis told Roe that “‘as soon as I have the green light, I will 17 charge’ Doe with sexual misconduct,” even though Davis had not yet interviewed Doe or 18 collected any corroborating information. (Id. ¶ 150.) Davis also explained that she would 19 not “go get” evidence and that it was instead up to Roe “to provide us with whatever 20 documentation you think is relevant.” (Id. at 148.) 21 On September 22, 2016 (three days later), ASU notified Doe that he was being 22 investigated for violations of the Code related to alcohol, sexual misconduct, and 23 surreptitious recording. (Id. ¶ 145.) 24 1 A different section of the FAC characterizes Hunter’s email as follows: “After 25 receiving the report from ASU’s police department, [Hunter] wrote in an email to her colleagues that she ‘wanted to figure out what to do with [Doe]’ and ‘clearly we would 26 want to move swiftly’ due to his status as a student-athlete . . . .” (Doc. 37 ¶ 144.) In other words, although paragraph 254 alleges that Hunter identified Doe’s gender (“male athlete”) 27 as a reason for prompt action, paragraph 144 does not allege that Hunter specifically referred to Doe’s gender. During oral argument, Doe’s counsel clarified that although 28 Hunter’s email didn’t actually use the word “male,” it included other information that would make clear to any reasonable reader that it was referring to a male athlete. -4- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 5 of 35 1 On September 23, 2016 (the next day), Doe met with Davis. (Id. ¶ 148.) Davis 2 informed Doe that she would handle ASU’s investigation, acting as “a neutral, third party 3 investigator,” and that her job was to “collect information—anything I can get.” (Id.) This 4 was different from what Davis had told Roe three days earlier when describing her role. 5 (Id. ¶ 149.) Davis further told Doe that the Dean’s Review Committee (“the Committee”) 6 would determine whether Doe violated the Code “based on whatever (information) is 7 available to them.” (Id. ¶ 148.) Then, without prior notice, Davis asked Doe for a statement 8 about the incident. (Id.) On advice of counsel, Doe ended the meeting. (Id.) 9 Davis continued with the investigation. (Id. ¶¶ 152-57.) Among other things, she 10 asked Roe to produce the Tempe Police Department report of the incident, as well as a 11 video of the incident recorded by a Witness 1. (Id. ¶ 154.) Although Roe provided the 12 police report, it was missing “key, exculpatory sections, including [a] screenshot of the 13 video . . . and the [Sexual Assault Nurse Examination (‘SANE’)] results.” (Id.) In fact, 14 during the SANE exam, Roe had disclaimed the use of force in the incident. (Id.) Doe 15 was interviewed twice more and provided two written responses. (Id. ¶ 155.) 16 On December 20, 2016, Davis informed Doe that she had sent her investigative 17 report to the Committee. (Id. ¶ 158.) At this point, Doe asked to see Roe’s response to one 18 of his previous written submissions. (Id.) Davis responded by claiming that Roe’s 19 response did not “provide[] any new evidence.” (Id.) This claim was false—when Doe 20 was allowed to review Roe’s response on December 21, 2016, he learned that “it contained 21 substantial new evidence.” (Id.) “Within 24 hours,” Doe submitted another letter that 22 attempted to address Roe’s new, previously-undisclosed allegations. (Id.) 23 V. The Committee’s Expulsion Decision 24 Unbeknownst to Doe, the Committee had already convened and decided to expel 25 him by the time he prepared this supplemental letter. (Id. ¶ 159.) By failing to consider 26 Doe’s letter before rendering a decision, the Committee violated ASU’s written manual of 27 Student Disciplinary Procedures. (Id. ¶¶ 39, 159.) 28 The Committee’s expulsion letter explained that it had determined Doe committed -5- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 6 of 35 1 two of the alleged Code violations (sexual misconduct and alcohol) but not the third alleged 2 Code violation (surreptitious recording). (Id. ¶ 160.) With respect to the sexual misconduct 3 charge, the Committee (1) concluded that Roe was incapacitated at the time of the sexual 4 encounter and (2) further “concluded, without analysis, that Doe knew of Roe’s 5 incapacitation.” (Id.) The Committee did not, in contrast, find that Doe had used “force” 6 during the sexual encounter. (Id. ¶ 162.) With respect to the alcohol charge, the letter 7 failed to provide any explanation, but Hunter subsequently informed Doe that he had 8 violated the Code because (1) he “gave” alcohol to Roe, who was under 21, and also (2) he 9 “received” alcohol “with the intent” to give it to Roe. (Id. ¶¶ 160, 164.) 10 VI. The UHB Hearing 11 Although Davis had “threatened” Doe with a “permanent notation on Doe’s 12 academic record” if he appealed the Committee’s decision, Doe appealed anyway. (Id. 13 ¶ 165.) A hearing before the UHB was originally scheduled for March 10, 2017. (Id. 43- 14 44.) The notice of hearing stated that the focus would be on the two violations found by 15 the Committee—specifically, that (1) Roe was incapacitated and incapable of consenting 16 to sex and (2) Doe provided her with alcohol—and the sanctions imposed. (Id.) Although 17 the hearing was supposed to be held within 90 days of the issuance of the Committee’s 18 letter, the meeting was postponed because a member of the UHB was unable to attend on 19 March 10. (Id.) The hearing was rescheduled for May 23, 2017. (Id.) 20 Before the hearing, Doe sought (1) an extension of the time allotted, (2) a clear 21 definition of “incapacitation” under the Code, and (3) a request that Roe help obtain the 22 video of the encounter. (Id. ¶ 167.) Allen denied the latter two requests but granted 23 “several incremental extensions to the time allotted for the hearing.” (Id. ¶¶ 168-70.) Even 24 with those extensions, “the UHB’s time restraints ultimately prevented Doe from 25 examining four key witnesses”: specifically, Davis, two witnesses from the party, and 26 Doe’s “alcohol expert.” (Id. ¶ 170.) Doe’s time at the hearing was further constrained by 27 the fact that he had to read into evidence portions of the police report and was not allowed 28 to directly cross-examine Roe—instead, he had to direct his questions to Roe through -6- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 7 of 35 1 Allen. (Id.) A summary of what Doe’s alcohol expert would have said was sent to the 2 UHB after the hearing, but Allen refused to accept it. (Id. ¶ 181.) 3 The UHB issued its findings and recommendations on May 30, 2017. (Id. ¶ 182.) 4 Those findings “could not determine by even a preponderance of the evidence whether Roe 5 was incapacitated” and acknowledged that “[a]ccounts of the encounter provided by all 6 parties indicate that [Roe] was lucid and able to verbally communicate.” (Id. ¶ 183.) 7 Nevertheless, the UHB determined that Doe had used “impermissible force” in his 8 encounter with Roe. (Id. ¶ 184.) Specifically, the UHB concluded that Doe had 9 “committed ‘sexual violence’ by ‘engag[ing] [Roe] by force’ because of minor interior 10 vaginal abrasions and knee bruising reported in Roe’s SANE report and her statements 11 about pain and crying.” (Id. ¶ 184.) The UHB separately found Doe responsible for the 12 alcohol charge because he “distributed” alcohol to Roe. (Id. ¶ 186.) 13 The UHB’s “impermissible force” finding was flawed for two reasons. First, it was 14 a “new basis for liability”—the Committee didn’t charge Doe with using “impermissible 15 force” against Roe or find him responsible under such a theory, the UHB’s pre-hearing 16 notices didn’t focus on the “impermissible force” issue, and the UHB didn’t add a 17 “impermissible force” charge until after the close of evidence. (Id. ¶¶ 162, 171, 184.) 18 Second, the “impermissible force” finding was factually flawed because Roe told the 19 Tempe Police Department investigator that no force was used and Doe’s expert provided 20 uncontradicted testimony during the hearing that Roe’s injuries were only consistent with 21 consensual sex. (Id. ¶¶ 184-85.) 22 VII. Rund’s Review Of The UHB’s Decision 23 The UHB’s findings were given to Rund, ASU’s final arbiter on student misconduct 24 issues. (Id. ¶ 187.) Rund overruled the UHB’s finding of no incapacitation, adopted the 25 UHB’s finding of impermissible force, and adopted the UHB’s conclusion on the alcohol 26 charge. (Id. ¶¶ 187-91.) 27 On August 30, 2017, Rund denied Doe’s motion for reconsideration of his ruling. 28 (Id. ¶¶ 192-96.) This constituted ASU’s final administrative decision. (Id. ¶ 197.) -7- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 8 of 35 1 VIII. Doe’s Appeal To The Maricopa County Superior Court 2 On October 2, 2017, Doe appealed ASU’s decision to the Maricopa County Superior 3 Court pursuant to A.R.S. § 12-901 et seq. (Doc. 28 at 1.) 4 On October 29, 2018, the Maricopa County Superior Court issued a six-page order 5 rejecting Doe’s appeal. (Doc. 40-1.)2 Specifically, the court concluded that Rund’s 6 incapacity, force, and alcohol-related determinations were “supported by substantial 7 evidence” (id. at 5-7), that “Doe was not denied due process” (id. at 7), and that the penalty 8 of expulsion was not excessive (id. at 7-8). 9 IX. This Action 10 On May 29, 2018, Doe filed this action. (Doc. 1.) The initial complaint contained 11 two federal claims—(1) a violation of Doe’s constitutional rights to due process and equal 12 protection, asserted via 42 U.S.C. § 1983, against the ASU officials in their official and 13 individual capacities, and (2) a violation of Title IX (20 U.S.C. §§ 1681-88) against 14 ABOR—as well as various state-law claims (breach of contract, defamation, gross 15 negligence, intentional infliction of emotional distress, and false light) against some or all 16 of the Defendants. (Doc. 1 at 49, 56, 62, 65, 67, 69, 70.) Doe sought monetary damages 17 as well as injunctive and declaratory relief against ABOR. (Id. Doc. 1 at 71.) 18 In September 2018, the parties filed a joint motion to stay proceedings pending the 19 disposition of Doe’s appeal to the Maricopa County Superior Court. (Doc. 28.) The 20 request was granted, and the parties were instructed to notify the Court when the state court 21 issued its decision. (Doc. 29.) 22 As noted, the state court issued its decision on October 29, 2018. (Doc. 40-1 at 1.) 23 Afterward, Doe asked for another stay pending his appeal to the Arizona Court of 24 2 The Court may consider the Maricopa County Superior Court’s order, even though the order wasn’t attached as an exhibit to the FAC, because the order is subject to judicial 25 notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may . . . consider certain materials—documents attached to the complaint, documents incorporated 26 by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.”); Reyn’s Pasta Bella, LLC v. Visa USA, 27 Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“[Courts] may take judicial notice of court filings and other matters of public record.”) (citation omitted). 28 -8- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 9 of 35 1 Appeals. (Doc. 32 at 1.) The Court denied this request, citing concerns with excessive 2 delay and fairness to the Defendants. (Doc. 35.) 3 Doe then submitted the FAC. (Doc. 37.) The factual allegations remain largely the 4 same, but Doe (1) amended Count I (the § 1983 claim) to include ABOR as a Defendant 5 and to make clear he was suing the ASU officials only in their individual capacities, and 6 (2) removed Count IV (a state-law defamation claim). (Doc. 36-1 at 54, 76.) 7 On November 18, 2019, the Court issued a tentative ruling on Defendants’ motion 8 to dismiss. (Doc. 61.) 9 On December 18, 2019, the Court heard oral argument. 10 ANALYSIS 11 In their motion to dismiss, Defendants argue (1) the Court lacks subject matter 12 jurisdiction over this entire action under the Rooker-Feldman doctrine because granting the 13 relief sought by Doe would effectively require this Court to review and reverse the decision 14 of the Maricopa County Superior Court affirming ASU’s expulsion decision, (2) the § 1983 15 claim (Count I) must be dismissed under Rule 12(b)(6) because ABOR is immune from § 16 1983 liability, the individual Defendants are entitled to qualified immunity, and the FAC 17 doesn’t plausibly allege a due process violation, (3) the Title IX claim (Count II) must be 18 dismissed under Rule 12(b)(6) because the FAC “does not make a single factual allegation 19 regarding gender bias that is specific to the disciplinary proceedings that led to [Doe’s] 20 expulsion,” and (4) the state-law claims are subject to dismissal for a host of reasons, 21 including Eleventh Circuit immunity, failure to comply with Arizona’s notice-of-claim 22 statute, and failure to state a claim. (Doc. 40.) 23 I. Rooker-Feldman 24 The Rooker-Feldman doctrine prohibits district courts from hearing “cases brought 25 by state-court losers complaining of injuries caused by state-court judgments rendered 26 before the district court proceedings commenced and inviting district court review of those 27 judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005). 28 The doctrine “exhibit[s] the limited circumstances in which [the U.S. Supreme Court’s] -9- Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 10 of 35 1 appellate jurisdiction over state-court judgments . . . precludes a United States district court 2 from exercising subject-matter jurisdiction in an action it would otherwise be empowered 3 to adjudicate.” Id. at 291. Rooker-Feldman is not triggered simply because there is a 4 pending, parallel state court action, even if the state court has already entered judgment in 5 that action. Id. at 292. Indeed, although a parallel state court proceeding may result in 6 other forms of preclusion, Rooker-Feldman is only triggered when a district court is called 7 upon “to overturn an injurious state-court judgment.” Id. at 291-92. Properly understood, 8 then, Rooker-Feldman is itself a “fairly narrow preclusion doctrine,” separate and distinct 9 from claim and issue preclusion, that prohibits a district court from reviewing a state court’s 10 decision. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010). 11 In Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003), the Ninth Circuit provided 12 comprehensive guidance concerning Rooker-Feldman and its limited applicability. Noel 13 arose from a failed agreement to train a racehorse. Id. at 1151. The demise of the 14 relationship resulted in four different state court lawsuits. Id. at 1152-53. Eventually, the 15 would-be trainer, Noel, filed suit in federal court, alleging a variety of federal and state- 16 law claims, including a “fiduciary duty claim . . . which [was] essentially the same issue of 17 fiduciary duty [that] was being litigated” in one of the state court actions. Id. at 1154. The 18 district court dismissed that claim pursuant to Rooker-Feldman but the Ninth Circuit 19 reversed. After thoroughly recounting the history of the Rooker-Feldman doctrine, the 20 court announced the following “general formulation [that] describes the distinctive role of 21 the Rooker–Feldman doctrine in our federal system”: 22 If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that 23 decision, Rooker–Feldman bars subject matter jurisdiction in federal district 24 court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker–Feldman does 25 not bar jurisdiction. If there is simultaneously pending federal and state court 26 litigation between the two parties dealing with the same or related issues, the federal district court in some circumstances may abstain or stay proceedings; 27 or if there has been state court litigation that has already gone to judgment, 28 the federal suit may be claim-precluded under [28 U.S.C.] § 1738. But in neither of these circumstances does Rooker–Feldman bar jurisdiction. - 10 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 11 of 35 1 Id. at 1164. And in a subsequent case, the Ninth Circuit summarized the test even more 2 succinctly, explaining that if a plaintiff in a federal case “sues . . . an adverse party[], not a 3 state court,” and “does not directly challenge a state court’s factual or legal conclusion,” 4 then the federal lawsuit is “not a forbidden appeal under Rooker-Feldman.” Manufactured 5 Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1030 (9th Cir. 2005).3 6 Application of Rooker-Feldman to the instant case is thus straightforward—the 7 doctrine does not apply. As an initial matter, this action was filed before the Maricopa 8 County Superior Court even rendered its decision. Exxon Mobil, 544 U.S. at 291 (“In both 9 cases [in which Rooker-Feldman applied], the losing party in state court filed suit in federal 10 court after the state proceedings ended . . .”) (emphasis added). More important, under 11 Noel, this is not the sort of case that triggers Rooker-Feldman. Doe isn’t suing the 12 Maricopa County Superior Court, isn’t asking this Court to directly overturn any aspect of 13 that court’s October 29, 2018 decision, and is fundamentally complaining of injuries 14 caused by adverse parties (ABOR and certain ASU officials), not by the Maricopa County 15 Superior Court’s decision to side with those parties in his state administrative appeal. If 16 and when the state-court action becomes final, it may have some sort of preclusive effect 17 here. Exxon Mobil, 544 U.S. at 293.4 Until that point, though, Doe may maintain 18 “overlapping, and even identical claims” in state and federal court. Noel, 341 F.3d at 1165. 19 Defendants’ arguments to the contrary are unavailing. For example, they cite Maple 20 3 See also GASH Associates v. Village of Rosemont, 995 F.2d 726, 728 (7th Cir. 1993) (“The Rooker–Feldman doctrine asks: is the federal plaintiff seeking to set aside a state 21 judgment, or does he present some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party? If the former, 22 then the district court lacks jurisdiction; if the latter, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.”). The Ninth 23 Circuit has cited this passage with approval. Noel, 341 F.3d at 1164. 24 4 See also Manufactured Home Cmtys., 420 F.3d at 1030 (“The relationship between [the pending federal claims] and the California state courts’ legal and factual conclusions 25 is best addressed under preclusion law.”); Noel, 341 F.3d at 1163-64 (“If the federal plaintiff and the adverse party are simultaneously litigating the same or a similar dispute 26 in state court, the federal suit may proceed under the long-standing rule permitting parallel state and federal litigation. Or if the federal plaintiff and the adverse party have already 27 litigated the state court suit to judgment, the federal plaintiff may be precluded from relitigating that dispute under the interjurisdictional preclusion rule of 28 U.S.C. § 1738. 28 In neither situation does Rooker–Feldman bar subject matter jurisdiction in federal district court . . . .”) (internal citations omitted). - 11 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 12 of 35 1 Lanes v. Messer, 186 F.3d 823 (7th Cir. 1999). There, a defamation suit was deemed barred 2 by Rooker-Feldman because it sought damages equal to the value of a lost liquor license, 3 allegedly the result of the defamatory statement. Id. at 825. The loss of the license was an 4 administrative action a state court had already upheld. Id. Because the state court had 5 already finalized the loss of the license, the Seventh Circuit concluded that, should the 6 federal plaintiff win, that outcome would effectively undo the state court decision. Id. 7 The problem with Maples Lanes’ reasoning is that the focus of Rooker-Feldman is 8 not what the relief is, but what the relief is from. Noel, 341 F.3d at 1164. See also Exxon 9 Mobil, 544 U.S. at 292. Maple Lanes thus appears to be inconsistent with Ninth Circuit 10 law, because it did not turn on whether the federal plaintiff was asserting a legal wrong 11 resulting from a state court’s erroneous decision. Carmona, 603 F.3d at 1050 (citing Noel, 12 341 F.3d at 1164). Other courts have similarly declined to follow Maple Lanes. See, e.g., 13 In re Philadelphia Entertainment & Dev. Partners, 879 F.3d 492, 502-503 (3rd Cir. 2018) 14 (“Maple Lanes does not comport with the Rooker-Feldman doctrine as it is now 15 understood.”). 16 Accordingly, Defendants’ motion, so far as it turns on Rule 12(b)(1), is denied. 17 II. 42 U.S.C. § 1983 18 Count I of the FAC arises under 42 U.S.C. § 1983. That statute allows plaintiffs to 19 assert claims against state officials, as individuals, for violations of federal rights 20 committed under the color of state law. 21 A. Preliminary Matters 22 As a threshold matter, it should be noted that all of the Defendants (including 23 ABOR) are named as defendants in Count I of the FAC. (Doc. 37 at 52.) In their motion 24 to dismiss, Defendants argue that ABOR, as an arm of the state, is immune from liability 25 under § 1983 (Doc. 40 at 5), and Doe concedes the merit of this argument in his response 26 (Doc. 47 at 19). Accordingly, ABOR will be dismissed from Count I. See, e.g., Will v. 27 Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) (“For the reasons that follow, we 28 reaffirm . . . that a State is not a person within the meaning of § 1983.”); Hale v. State of - 12 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 13 of 35 1 Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (“[A] state is not ‘person’ within the meaning 2 of § 1983.”). 3 It is also important to clarify which underlying statutes and constitutional provisions 4 provide the foundation for Doe’s § 1983 claim. The FAC alleges that Defendants are 5 subject to liability under § 1983 because they violated (1) Doe’s rights under Title IX, (2) 6 Doe’s rights to due process, equal protection, a public education, and to be free from sexual 7 discrimination under the Arizona Constitution, and (3) Doe’s rights to due process and 8 equal protection under the United States Constitution. (Doc. 37 at 52 & ¶¶ 198-201.) In 9 their motion to dismiss, Defendants argue that § 1983 can’t be used as a vehicle for 10 asserting violations of Title IX (Doc. 40 at 6-7), and Doe doesn’t address this argument in 11 his response. The Court construes this silence to be acquiescence, see LR Civ. 7.2(i), and 12 further notes that, in Count II, Doe has asserted a stand-alone Title IX claim. Accordingly, 13 Doe cannot premise his § 1983 claim on alleged violations of Title IX. 14 Additionally, Doe cannot seek damages under § 1983 based on an alleged violation 15 of the Arizona Constitution. Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 16 1997) (rejecting § 1983 claim premised on alleged violation of Idaho law because “Section 17 1983 . . . only creates a cause of action for violations of the federal ‘Constitution and laws.’ 18 ‘To the extent that the violation of a state law amounts to the deprivation of a state-created 19 interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 20 offers no redress.’”) (citation omitted). Thus, although Doe may (as discussed in Section 21 II.B below) attempt to show that Arizona law creates certain property or liberty interests 22 that, in turn, trigger a right to due process under the United States Constitution, he cannot 23 premise his § 1983 claim solely on alleged violations of the Arizona Constitution. 24 With respect to Doe’s claims under the United States Constitution, although the 25 FAC asserts violation of both the Due Process and Equal Protection Clauses of the 26 Fourteenth Amendment (Doc. 37 ¶ 199-200), Doe focuses solely on due process-based 27 theories in his response to the motion to dismiss (Doc. 47 at 11-14). Thus, the Court 28 concludes that Doe has abandoned any equal protection claim. - 13 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 14 of 35 1 Finally, as for Doe’s due process claim, the rule in the Ninth Circuit is that a plaintiff 2 asserting such a claim “must, as a threshold matter, identify a liberty or property interest 3 protected by the Constitution.” United States v. Guillen-Cervantes, 748 F.3d 870, 872 (9th 4 Cir. 2014) (emphasis added). Here, Defendants addressed both potential theories in their 5 motion to dismiss, arguing that neither provides a valid basis for liability (Doc. 40 at 6-8), 6 and Doe responded by focusing solely on the viability of a property-based theory (Doc. 47 7 at 13-14). Accordingly, Defendants argued in their reply that Doe had abandoned any 8 liberty-based claim. (Doc. 53 at 4 n.9.) Nevertheless, during oral argument, Doe asserted 9 that he had preserved his liberty-based claim, albeit not very precisely, because some of 10 the cases cited in his response include a discussion of liberty-based interests. 11 The Court agrees with Defendants that Doe forfeited any liberty-based claim by 12 failing to properly raise it in his response. Thus, the Court construes Doe’s § 1983 claim 13 as premised solely on the theory that Defendants violated the United States Constitution 14 by depriving him of a protected property interest without due process. Nevertheless, in an 15 abundance of caution, this order also explains, in Part II.B.3 below, why Doe’s liberty- 16 based claim would fail even if it weren’t forfeited. 17 B. Merits 18 1. Qualified Immunity Standard 19 Defendants’ primary argument for dismissing Doe’s § 1983 claim is that qualified 20 immunity protects them from liability. (Doc. 40 at 7-9.) 21 “Qualified immunity shields federal and state officials from money damages unless 22 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 23 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 24 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A government official’s conduct violates 25 “clearly established” law when “‘the contours of a right are sufficiently clear’ that every 26 ‘reasonable official would have understood that what he is doing violates that right.’” Id. 27 at 741 (citation omitted). Although there need not be a “case directly on point,” “existing 28 precedent must have placed the statutory or constitutional question beyond debate.” Id. In - 14 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 15 of 35 1 other words, the case law must “have been earlier developed in such a concrete and 2 factually defined context to make it obvious to all reasonable government actors, in the 3 defendant’s place, that what he is doing violates federal law.” Shafer v. Cty. of Santa 4 Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). See also Kisela v. Hughes, 138 S. Ct. 1148, 5 1152 (2018) (“This Court has repeatedly told courts—and the Ninth Circuit in particular— 6 not to define clearly established law at a high level of generality.”) (quotation omitted). 7 “Once the defense of qualified immunity is raised by the defendant, the plaintiff 8 bears the burden of showing that the rights allegedly violated were ‘clearly established.’” 9 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). See also Romero v. Kitsap Cty., 10 931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of proof that the right 11 allegedly violated was clearly established at the time of the alleged misconduct.”) (citation 12 omitted). Although it “is often beneficial” to begin the qualified-immunity analysis by 13 addressing whether a statutory or constitutional right has been violated, district courts are 14 vested with discretion to determine “which of the two prongs of the qualified immunity 15 analysis should be addressed first in light of the circumstances in the particular case at 16 hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Indeed, the Supreme Court has 17 recognized that starting with the second prong may be particularly appropriate when 18 addressing the first prong would require a district court to construe “uncertain” or 19 “ambiguous” state law. Id. at 238. 20 Given these principles, the Court will begin its analysis by addressing the second 21 prong of the qualified-immunity test—whether Doe has met his burden of showing that the 22 case law in existence at the time of the challenged conduct (i.e., September 2016 through 23 August 2017) was “developed in such a concrete and factually defined context to make it 24 obvious to all reasonable government actors, in [Defendants’] place,” that they were 25 violating Doe’s due process rights under the United States Constitution. Shafer, 868 F.3d 26 at 1117. 27 2. Property Interest 28 As noted, a plaintiff asserting a procedural due process claim “must, as a threshold - 15 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 16 of 35 1 matter, identify a . . . property interest protected by the Constitution.” Guillen-Cervantes, 2 748 F.3d at 872. However, “[t]he Constitution itself creates no property interests; rather, 3 such interests are created . . . [by] state law.” Id. (internal quotation marks omitted). See 4 also Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (“The Due Process 5 Clause does not create substantive rights in property; the property rights are defined by 6 reference to state law.”). Thus, to prevail on his claim, Doe must show he possessed a 7 property right under Arizona law to attend and continue his education at ASU. See also 8 Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1072 (9th Cir. 2013) (looking to state 9 law to determine if the plaintiff had “a property interest in his public education” that could 10 provide the foundation for a due process-based § 1983 claim and concluding that the 11 plaintiff possessed such a right under article 11, section 2 of the Nevada Constitution); 12 Plummer v. Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017) (university student who 13 was expelled for sexual misconduct could assert a due process-based § 1983 claim 14 concerning his disciplinary proceeding because Texas law specifically recognizes a liberty 15 interest in higher education).5 16 In his response, Doe asserted that the Arizona Supreme Court’s decision in Shofstall 17 v. Hollins, 515 P.2d 590 (Ariz. 1973), establishes a fundamental right to an education in 18 Arizona. (Doc. 47 at 13-14.) This argument is unavailing. Although Shofstall recognized 19 that “education [is] a fundamental right of pupils between the ages of six and twenty-one 20 years” and stated that “[t]he [Arizona] constitution, by its provisions, assures to every child 21 a basic education,” id. at 592, the Arizona Supreme Court clarified, in a decision issued 22 only one year later, that “the basic education of which we spoke [in Shofstall] only extended 23 to a uniform, free common school system.” Carpio v. Tucson High School Dist. No. 1, 524 24 5 In Austin v. University of Oregon, 925 F.3d 1133 (9th Cir. 2019), the Ninth Circuit 25 dismissed a due process-based § 1983 claim brought by three male student-athletes who had been suspended after the university determined, via a disciplinary proceeding, that they 26 had engaged in sexual misconduct. The court did not, however, reach the issue whether the students had a protected property right under Oregon law to a university education— 27 instead, it dismissed the § 1983 claim on other grounds. Id. at 1139 (“We assume, without deciding, that the student athletes have property and liberty interests in their education, 28 scholarships, and reputation as alleged in the complaint. Nonetheless, they received ‘the hallmarks of procedural due process’: notice and a meaningful opportunity to be heard.”). - 16 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 17 of 35 1 P.2d 948, 951 (Ariz. 1974). “Common school,” in turn, “meant those grades between 2 kindergarten and high school.” Id. at 949. See also id. (“[C]ommon schools were 3 specifically recognized as those from the first to the eighth grades and high schools as those 4 grades from nine through twelve.”). Thus, Shofstall, with its guarantee of a basic 5 education, only guaranteed a right to education through the eighth grade. In light of Carpio, 6 Shofstall does not clearly establish a right under Arizona law to attend ASU—it actually 7 cuts in the opposite direction. 8 Nor does art. XI, § 6 of the Arizona Constitution clearly establish that Doe had a 9 right to attend ASU. That provision mandates that state educational institutions shall be 10 coeducational—nowhere does it guarantee a right to attend one of the state’s universities. 11 Further, Doe does not cite, nor has the Court found, a ruling from an Arizona court that art. 12 XI, § 6 guarantees a right to a university education. If such a right exists, the Arizona 13 courts have yet to find it. 14 During oral argument, Doe suggested that Goss v. Lopez, 419 U.S. 565 (1975), 15 creates a clearly established right upon which he can rely. But in Goss, an Ohio state statute 16 required free education for students between 5 and 21 and compelled those students’ 17 attendance. Id. at 573. Given those state-law entitlements, the Supreme Court concluded 18 Ohio was required to provide constitutionally sufficient safeguards in school disciplinary 19 proceedings: “[O]n the basis of state law, [the students] plainly had legitimate claims of 20 entitlement to a public education.” Id. (citing Ohio Rev. Code Ann. §§ 3313.48 & 3313.64 21 (1972 and Supp. 1973)) (emphasis added). In other words, the constitutional right to due 22 process attached in Goss only because the state was “constrained to recognize a student’s 23 legitimate entitlement to public education as a property interest.” Id. Thus, Goss does not 24 support Doe’s position—it says nothing at all about whether Arizona law creates a state- 25 law entitlement to a college education. 26 Doe’s reliance on Oyama v. Univ. of Hawaii, 813 F.3d 850 (9th Cir. 2015) is 27 similarly misplaced. There, the plaintiff’s theory was that a Hawaii state university’s 28 “denial of his teaching application without a hearing violated his Due Process rights under - 17 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 18 of 35 1 the Fourteenth Amendment.” Id. at 874. The Ninth Circuit began by expressing skepticism 2 as to whether the plaintiff had a protected property interest under state law that might 3 provide the foundation for such a claim. Id. (analyzing the text of the school’s handbook 4 before concluding that “[t]his premise is questionable”). Next, after assuming for the sake 5 of argument that the plaintiff did have a protected property interest, the court rejected his 6 claim because he had received a constitutionally sufficient level of process. Id. (“But even 7 if we accept Oyama’s argument that the University’s decision deprived him of a 8 constitutionally protected interest, the University provided him with adequate process.”). 9 Although the court did go on to observe, in passing, that “[d]iscplinary dismissals, by 10 contrast, may require more formal procedures,” id. at 875, this observation does not 11 suggest, let alone clearly establish, that Arizona law creates an affirmative right to a college 12 education. 13 In a nutshell, it seems unlikely that a constitutional right to a university education 14 exists under Arizona law. And even if such a right does exist, it is not clearly established. 15 Thus, Defendants are entitled to qualified immunity with respect to Doe’s § 1983 claim. 16 3. Liberty Interest 17 Finally, even if Doe hadn’t forfeited his liberty-based theory by failing to raise it in 18 his response brief, it would fail on the merits. The liberty interests identified in the 19 amended complaint pertain to Doe’s “professional and personal reputation,” his interest in 20 “avoiding social stigma,” and his interest in “occupational liberty.” (Doc. 37 ¶¶ 206-07.) 21 However, “injury to reputation standing alone does not violate the Due Process Clause of 22 the Fourteenth Amendment; one’s interest in reputation standing alone is neither liberty 23 nor property guaranteed against state deprivation without due process of law.” Wenger v. 24 Monroe, 282 F.3d 1068, 1074 (9th Cir. 2002) (citation and internal quotation marks 25 omitted). Instead, social stigma must be accompanied by, among other things, “the 26 alteration of some right or status recognized by state law.” Id. See also Krainski v. Bd. of 27 Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 971 (9th Cir. 2010) (dismissing § 1983 28 claim against university officials, which was premised on the theory that the officials - 18 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 19 of 35 1 “damaged [the plaintiff’s] reputation by charging her with violations of the Student 2 Conduct Code; finding her ‘Responsible’ of those charges; and ‘tarnishing [her] 3 educational transcript and record,’” because “[s]uch allegations amount to mere 4 reputational injury . . . and, without more, do not rise to the level of a deprivation of a 5 constitutionally protected liberty or property interest.”). But as discussed above, Doe does 6 not have a clearly established right, under Arizona law, to attend ASU. Moreover, although 7 the Ninth Circuit has indicated that the stigma-plus test may apply in the university 8 discipline context, Krainski, 616 F.3d at 971, it has not clarified what sort of harm would 9 trigger constitutional protections. Cf. Doe v. Purdue Univ., 928 F.3d 652, 665-66 (7th Cir. 10 2019) (university officials entitled to qualified immunity because it was the first application 11 of the stigma-plus test in the university context). Thus, Defendants are also entitled to 12 qualified immunity as to any § 1983 claim premised on a liberty theory. 13 III. Title IX 14 A. Legal Standard 15 To survive a motion to dismiss under Rule 12(b)(6), “a party must allege ‘sufficient 16 factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” In 17 re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads 19 factual content that allows the court to draw the reasonable inference that the defendant is 20 liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). “[A]ll well- 21 pleaded allegations of material fact in the complaint are accepted as true and are construed 22 in the light most favorable to the non-moving party.” Id. at 1144-45 (citation omitted). 23 However, the court need not accept legal conclusions couched as factual allegations. Iqbal, 24 556 U.S. at 679-80. The court also may dismiss due to “a lack of a cognizable legal theory.” 25 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 26 B. Merits 27 In Count II of the FAC, Doe alleges that ABOR, through the actions of the 28 individual ASU Defendants, violated 20 U.S.C. §§ 1681-88, otherwise known as Title IX. - 19 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 20 of 35 1 The crux of this claim is that “[a]n erroneous outcome occurred in this case because [Doe] 2 was wrongfully found to have committed the alleged offenses . . . and such decisions were 3 motivated by gender bias because [Doe] was a male athlete.” (Doc. 37 ¶ 253.) 4 Title IX prohibits discrimination on the basis of sex at all educational institutions 5 receiving federal financial assistance. 20 U.S.C. § 1681(a). That prohibition extends to all 6 operations of such an institution. Id. § 1687. “Title IX is enforceable through a private 7 right of action for monetary damages as well as injunctive relief.” Yusuf v. Vassar College, 8 35 F.3d 709, 714 (2d Cir. 1994) (citation omitted). Among other things, “Title IX bars the 9 imposition of university discipline where gender is a motivating factor in the decision to 10 discipline.” Id. at 715. See also Austin, 925 F.3d at 1138-39 (citing Yusuf as authority for 11 this type of Title IX claim). “Plaintiffs who claim that an erroneous outcome was reached 12 must allege particular facts sufficient to cast some articulable doubt on the accuracy of the 13 outcome.” Yusuf, 35 F.3d at 715. They must also “articulate a basis to discern that the 14 administration of the disciplinary proceedings were flawed due to the” plaintiff’s gender. 15 Austin, 925 F.3d at 1138. “Just saying so is not enough.” Id.6 16 Here, Defendants don’t challenge the sufficiency of the FAC’s allegations 17 concerning the inaccuracy of Doe’s disciplinary proceeding. (Doc. 53 at 7 n.14.) Instead, 18 they argue the FAC is deficient under Rule 12(b)(6) solely because it fails to “allege a 19 particularized causal connection between the allegedly flawed outcome . . . and gender 20 bias.” (Id. at 7.) 21 Although this issue presents a close call, the Court concludes the FAC contains just 22 enough case-specific, non-conclusory allegations of gender bias (which, at this stage of the 23 proceedings, the Court must assume to be true) to survive a motion to dismiss. Twombly, 24 550 U.S. at 570 (motion to dismiss under Rule 12(b)(6) must be denied where the plaintiff 25 has included enough facts to “nudge [his] claims across the line from conceivable to 26 6 Cf. Schwake v. Ariz. Bd. of Regents, 2018 WL 1536388, *6 (D. Ariz. 2018), appeal pending (dismissing Title IX claim brought by male ASU graduate student, who alleged 27 that “ASU[] employees ‘displayed a pro-female, anti-male bias’” when imposing discipline against him for engaging in sexual misconduct, because the plaintiff’s “allegations are 28 conclusory and thus, insufficient to raise a plausible inference that gender bias motivated or impacted . . . ASU’s actions”). - 20 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 21 of 35 1 plausible”). See also Purdue Univ., 928 F.3d at 670 (“Taken together, John’s allegations 2 raise a plausible inference that he was denied an educational benefit on the basis of his sex. 3 To be sure, John may face problems of proof, and the factfinder might not buy the 4 inferences that he’s selling. But his claim should have made it past the pleading stage, so 5 we reverse the magistrate judge’s premature dismissal of it.”). 6 As an initial matter, the FAC—like many of the complaints in other recent Title IX 7 cases brought by male university students who contend they were subjected to gender- 8 biased disciplinary proceedings—contains an extensive discussion of the “Dear Colleague” 9 letter that was issued by OCR in 2011. Most courts have concluded this letter does not, 10 standing alone, create a plausible basis for alleging that a university disciplinary process 11 was infected with gender bias. For example, in Purdue University, the Seventh Circuit 12 stated that although “[o]ther circuits have treated the Dear Colleague letter as relevant in 13 evaluating the plausibility of a Title IX claim . . . the letter, standing alone, is obviously 14 not enough to get [a Title IX plaintiff] over the plausibility line.” 928 F.3d at 668-69. 15 Similarly, in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), the Sixth Circuit concluded that 16 “all of this external pressure alone is not enough to state a claim that the university acted 17 with bias in this particular case. Rather, it provides a backdrop that,” if combined with 18 other evidence, may “give[] rise to a plausible claim.” Id. at 586. The Court agrees with 19 these decisions and concludes that the letter does not, on its own, get Doe over the 20 plausibility line. 21 Nevertheless, the FAC contains other allegations that provide additional support for 22 Doe’s claim. First, the FAC alleges that, following the issuance of the letter, OCR 23 specifically identified ASU as one of the universities whose Title IX processes were under 24 investigation and sent investigators to the ASU campus to “gather information” about those 25 processes. (Doc. 37 ¶¶ 94, 98.) Although such school-specific allegations aren’t alone 26 sufficient in the Ninth Circuit to render a Title IX claim plausible, see Austin, 925 F.3d at 27 1138 (affirming rejection of male student-athletes’ Title IX claim, even though the 28 challenged disciplinary proceeding took place in the context of contemporaneous campus - 21 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 22 of 35 1 protests), courts have suggested they may render a Title IX claim more plausible than a 2 claim premised solely on the “Dear Colleague” letter. Doe v. Cummins, 662 Fed. App’x 3 437, 453 (6th Cir. 2016) (“Nor do appellants allege that UC [University of Cincinnati] . . . 4 was being investigated by the federal government for potential Title IX violations. Instead, 5 appellants allege more generally that the Department of Education’s ‘Dear Colleague 6 Letter’ induced UC to discriminate against males in sexual-assault investigations in order 7 to preserve federal funding. This conclusory allegation, without more, is insufficient to 8 create a plausible claim of gender bias under Title IX.”).7 9 Second, paragraph 254 of the FAC alleges that an ASU representative referred to 10 Doe’s male gender when explaining why prompt action was needed: “When this case first 11 came to the attention of ASU, [Hunter] indicated that action had to be taken quickly 12 because [Doe] was a male athlete—a collegiate wrestler.” (But see footnote 1 supra.) 13 Although Defendants try to downplay this allegation by arguing that “Paragraph 254 does 14 not mention disciplinary action” (Doc. 53 at 8), this argument overlooks that Hunter is 15 alleged to have “overs[een] the investigation into Doe’s alleged violations of [the Code]” 16 and also “was a member of the Dean’s Review Committee that issued the disciplinary 17 decisions and sanctions on appeal and before the UHB and [Rund].” (Doc. 37 ¶ 33.) 18 Doe also contends paragraph 195 of the FAC identifies another instance where an 19 ASU official made statements that reflect gender bias—this time, implicit bias. (Doc. 47 20 at 10.) Paragraph 195 alleges that Rund based his finding that Roe was “incapacitated” 21 during the sexual encounter in part on the nature of the encounter (a “threesome”), which 22 Rund characterized as “outrageous behavior” that could not be the product of a rational, 23 informed decision by an adult. (Doc. 37 ¶ 195.) This characterization, according to the 24 FAC, reflects implicit gender bias and antiquated “sexual mores” because Rund “did not 25 characterize the men’s decision to engage in three-way sex as ‘outrageous.’” (Id.) 26 Although this may not be Doe’s strongest argument—as Defendants pointed out during 27 7 During oral argument, Defendants sought to minimize the relevance of the ASU- specific investigations by arguing they took place years before the challenged conduct in 28 this case. But paragraph 98 of the FAC specifically alleges that some of the OCR complaints “were filed as [Doe’s] case was ongoing.” - 22 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 23 of 35 1 oral argument, Rund had no reason to opine on the reasonableness of the male participants’ 2 behavior (the narrow issue before him was whether Roe was incapacitated), so the 3 statement shouldn’t necessarily be viewed as reflecting disparate views of acceptable male 4 and female sexual behavior—the Court concludes that, at the pleading stage and when 5 viewed in the light most favorable to Doe, it provides a modest degree of additional support 6 for his Title IX claim. 7 Third, and most important, the FAC alleges an array of irregularities during the 8 disciplinary proceedings, including (1) the lead investigator promised Roe she would 9 attempt to bring charges against Doe at the very outset of the investigation, before even 10 interviewing Doe or obtaining corroborating information (id. ¶ 150), (2) the lead 11 investigator made conflicting statements to Doe and Roe about the investigator’s role (id. 12 ¶ 255), (3) the lead investigator falsely told Doe that one of Roe’s written submissions did 13 not contain any new evidence (id. ¶ 158), (4) the Committee violated its own procedural 14 rules by issuing the expulsion letter without considering Doe’s response to the new 15 evidence discussed in Roe’s final written submission (id. ¶¶ 39, 159), (5) ASU 16 representatives failed during various stages of the proceedings to take steps to obtain key 17 evidence—among other things, they could have required Roe to obtain the cellphone video 18 footage from the Tempe Police Department and simply chose not to do so (id. ¶¶ 154, 157), 19 (6) the UHB refused to consider Doe’s proffer of the testimony his alcohol expert would 20 have provided (id. ¶ 181), and (7) the UHB sustained the sexual misconduct finding under 21 an “impermissible force” theory, but this theory wasn’t properly disclosed to Doe before 22 the hearing and conflicted with Roe’s statements to the police and with the uncontradicted 23 testimony of Doe’s expert (id. ¶¶ 162, 171, 184-85). 24 These alleged procedural irregularities provide the most significant basis for 25 distinguishing this case from Austin. There, the Ninth Circuit affirmed the dismissal of a 26 Title IX claim brought by three male student-athletes who had been determined, during a 27 school-run disciplinary proceeding, to have engaged in sexual misconduct during an off- 28 campus party. 925 F.3d at 1137-39. It is notable that the only two pieces of evidence the - 23 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 24 of 35 1 plaintiffs proffered in support of their claim that the disciplinary proceeding was infected 2 by gender bias were (1) the existence of contemporaneous campus protests and other 3 outside pressure concerning the adequacy of school’s response to incidents of sexual 4 assault, and (2) an allegation that the school hadn’t imposed sexual misconduct-related 5 discipline against any female students (an allegation the Ninth Circuit deemed inadequate 6 because “the complaint does not claim that any female University students have been 7 accused of comparable misconduct, and thus fails to allege that similarly situated students 8 . . . are disciplined unequally”). Id. In contrast, the students didn’t appear to argue their 9 disciplinary proceeding was procedurally irregular in any way, and indeed the Ninth Circuit 10 affirmatively concluded, in a different portion of the opinion, that the procedures employed 11 by the school during that proceeding were sound and complied with due process. Id. at 12 1139 (“Notice is not an issue here and nothing in the allegations supports a claim that the 13 student athletes did not receive a meaningful hearing with the right to be heard.”). Thus, 14 the Court does not view Austin as foreclosing Doe’s Title IX claim here—he is offering 15 meaningfully different factual allegations. 16 Finally, although these alleged procedural errors also may not, standing alone, serve 17 as plausible evidence of gender bias in a Title IX case,8 it would be improper to consider 18 them in a vacuum here. Instead, they must be considered in combination with all of the 19 other allegations of gender bias contained in the FAC—specifically, the “Dear Colleague” 20 letter, OCR’s conduct specifically targeted toward ASU following the issuance of the letter, 21 and the alleged comments by Hunter and Rund. The Court concludes that, taken together, 22 those allegations are sufficient to survive a motion to dismiss.9 23 8 See, e.g., Yusuf, 35 F.3d at 715 (“However, allegations of a procedurally or 24 otherwise flawed proceeding that has led to an adverse and erroneous outcome combined with a conclusory allegation of gender discrimination is not sufficient to survive a motion 25 to dismiss.”). 9 See also Purdue Univ., 928 F.3d at 667-70 (reversing dismissal of Title IX claim 26 because allegations concerning the “Dear Colleague” letter, coupled with allegations of irregularities during the disciplinary proceeding, “[t]aken together . . . raise a plausible 27 inference that [plaintiff] was denied an educational benefit on the basis of his sex”); Baum, 903 F.3d at 585-88 (reversing dismissal of Title IX claim because allegations of flawed 28 procedures during disciplinary proceedings, a “specific allegation of adjudicator bias,” and allegations of “external pressure facing the university” were, in combination, enough to - 24 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 25 of 35 1 IV. State-Law Claims 2 Doe also asserts claims for breach of contract (Count III), gross negligence (Count 3 IV), intentional infliction of emotional distress (“IIED”) (Count V), and false light invasion 4 of privacy (Count VI). (Doc. 37 at 69, 74, 76, 78.) The Court has jurisdiction over these 5 claims, which all arise under state law, pursuant to the supplemental jurisdiction granted 6 by 28 U.S.C. § 1367. When exercising supplemental jurisdiction, a federal court “applies 7 state law in the same manner it would if sitting in diversity.” Media Rights Techs. V. 8 Microsoft Corp., 922 F.3d 1014, 1026 (9th Cir. 2019). 9 A. Count III 10 In his response to the motion to dismiss, Doe agreed to dismiss his state law claims, 11 including Count III, against ABOR. (Doc. 47 at 1). Because ABOR is the only defendant 12 named in Count III of the FAC, that claim is now without a defendant. (Doc. 37 at 69.) 13 Accordingly, Count III is dismissed. 14 B. Count IV 15 In Count IV of the FAC, Doe alleges that Defendants’ handling of his disciplinary 16 proceedings was grossly negligent. Among other things, he alleges that Defendants failed 17 to satisfy “their responsibilities under the Code and Procedures,” that Defendants 18 “misapplied their own disciplinary standards,” and that these and other “egregious actions 19 and inactions created an unreasonable risk to Doe’s fundamental rights, including his right 20 to an education under the Arizona Constitution . . . .” (Doc. 37 ¶¶ 299, 305, 307.) 21 Defendants argue the economic loss rule (“ELR”) bars this claim because it arises 22 from Doe’s contractual relationship with ABOR. (Doc. 40 at 15.) In response, Doe argues 23 this claim stems not from any contractual violation, but from the damage to his 24 “constitutionally protected property right in a public education” and “emotional and 25 reputational harms.” (Doc. 47 at 15.) 26 Count IV will be not be dismissed at this juncture. The Arizona Supreme Court has 27 described the ELR as “a common law rule limiting a contracting party to contractual 28 “make[] Doe’s claim plausible”). - 25 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 26 of 35 1 remedies for the recovery of economic losses unaccompanied by physical injury to persons 2 or other property.” Flagstaff Affordable Hous. Ltd. P’ship v. Design All., Inc., 223 P.3d 3 664, 667 (Ariz. 2010). However, the ELR “may vary in its application depending on 4 context-specific policy considerations.” Id. at 669. Also, the ELR applies only “where 5 there has been no injury besides that to the subject property” covered by the contract. Cook 6 v. Orkin Exterminating Co., Inc., 258 P.3d 149, 153 (Ariz. Ct. App. 2011). 7 Defendants’ limited briefing concerning the ELR (which cites only two Arizona 8 cases, Flagstaff Affordable Housing and Cook) fails to establish that Arizona courts would 9 apply the ELR to bar Doe’s gross negligence claim. First, this lawsuit does not involve a 10 product liability claim, a construction defect claim, or a breach of fiduciary duty claim 11 arising out of a pest inspection contract (which were the scenarios addressed in Flagstaff 12 Affordable Housing and Cook), so it may raise different “context-specific policy 13 considerations” than were present in those cases. 14 Second, Count IV doesn’t appear to be based solely on Defendants’ alleged breach 15 of the contract between Doe and ABOR—the FAC also alleges that it arises in part from 16 Defendants’ constitutional (not contractual) obligation to provide a college education. 17 (Doc. 37 ¶ 307.) Although, as discussed in Part II above, the Court is skeptical that the 18 Arizona Constitution creates such a right, Defendants have not moved for dismissal of 19 Count IV on this basis. 20 Third, Doe contends Count IV isn’t limited to a request for economic damages 21 because he also seeks to recover for “emotional and reputational harms.” (Doc. 47 at 15.) 22 Although Defendants question the accuracy of this claim, arguing that “unlike his IIED 23 and false light claims, [Doe] does not allege in his gross negligence claim [any categories 24 of] damages that take it outside the reach of the [ELR]” (Doc. 53 at 9), this argument 25 overlooks that the first paragraph in the FAC pertaining to Count IV (Doc. 37 ¶ 298) 26 incorporates by reference all of the preceding paragraphs in the FAC and some of those 27 paragraphs (see, e.g., id. ¶ 276) refer to emotional and reputational harms. 28 Accordingly, Count IV will not be dismissed at this stage. - 26 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 27 of 35 1 C. Count V 2 In Count V of the FAC, Doe alleges that “Defendants knew or should have known” 3 that their actions in Doe’s disciplinary proceedings would cause emotional harm and that 4 their “objective was to either cause [Doe] emotional distress, or they were aware of and 5 recklessly disregarded the likelihood that their actions would result in emotional distress.” 6 (Doc. 37 ¶¶ 315, 318.) 7 Defendants seek dismissal of the IIED claim on three grounds: (1) Doe did not 8 properly serve notice of his IIED claim; (2) Doe’s notice of claim was untimely; and (3) 9 Doe has not sufficiently alleged his IIED claim. (Doc. 40 at 13-16.) Because the first 10 argument is dispositive, the Court need not reach the other two. 11 Under Arizona law, claims against public employees, such as the individual 12 Defendants here, must strictly comply with A.R.S. § 12-821.01, Arizona’s notice of claim 13 statute. Yahweh v. City of Phoenix, 400 P.3d 445, 447 (Ariz. Ct. App. 2017). To comply 14 with that statute, a claimant must include “facts sufficient to permit the public entity, public 15 school, or public employee to understand the basis on which liability is claimed.” A.R.S. 16 § 12-821.01(A). That requirement allows “the public entity to investigate and assess 17 liability.” Haab v. Cty. of Maricopa, 191 P.3d 1025, 1028 (Ariz. Ct. App. 2008). Absent 18 “a statement of the facts that establish the basis for liability,” a claim against a public entity 19 is barred by § 12-821.01. 20 Here, Doe’s notice provided “notices of claims for breach of contract, breach of the 21 covenant of good faith and fair dealing, due process violations under the United States 22 Constitution and Arizona Constitution, Title IX violations (20 U.S.C. §§ 1681-1688), 23 defamation, and false light.” (Doc. 40-2 at 3.) Conspicuously absent from this list is the 24 tort of IIED. Although Arizona courts have not directly ruled on whether a notice of claim 25 must identify each theory of liability, Mutschler v. City of Phoenix, 129 P.3d 71, 74 n.4 26 (Ariz. Ct. App. 2006), there is some indication that a failure to include a theory in a notice 27 bars its invocation at a subsequent trial. Brunso v. City of Prescott, 2012 WL 6716457, *4 28 (Ariz. Ct. App. 2012) (affirming the dismissal of claims not included in notice). - 27 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 28 of 35 1 Moreover, regardless of whether Doe’s notice needed to specifically identify IIED 2 as a theory of liability, the notice failed to allege “facts sufficient to permit the public entity 3 . . . to understand the basis on which liability is claimed.” A.R.S. § 12-821.01(A). To be 4 liable for IIED under Arizona law, the challenged conduct must be extreme or outrageous, 5 the defendant must intend to inflict emotional distress (or act with reckless disregard to the 6 possibility), and severe emotional distress must occur as a result. The last element, severe 7 emotional distress, requires “a showing of severity.” Pankratz v. Willis, 744 P.2d 1182, 8 1190 (Ariz. Ct. App. 1987). “Severe emotional distress” requires some sort of 9 manifestation of the distress, not mere discomfort. Midas Muffler Shop v. Ellison, 650 P.2d 10 496, 501 (Ariz. Ct. App. 1982) (gathering cases that linked emotional distress to physical 11 manifestations such as heart attacks, hospitalizations, and “extreme shock and hysteria”). 12 It appears the Arizona Supreme Court has never found severe emotional distress in the 13 absence of physical harm. Pierre-Canel v. American Airlines, 375 F. Supp. 3d 1044, 1056 14 (D. Ariz. 2019). Although the Arizona Court of Appeals has suggested that a plaintiff need 15 not suffer a “disabling response,” there must be some specified harm resulting from the 16 alleged emotional distress. Pankratz, 744 P.2d at 1191 (holding that anger and depression 17 due to disappearance of child, coupled with headaches and hemorrhoids, constituted severe 18 emotional distress). 19 In his notice, Doe did not claim he suffered severe emotional distress as a result of 20 ASU’s disciplinary process. To be sure, the challenged conduct in this case would be 21 stressful. But the notice did not allege that Doe suffered from distress so severe there was 22 some physical manifestation of it. Without such an allegation, the notice did not “permit 23 the public entity to evaluate liability” on the IIED claim. Backus v. State, 203 P.3d 499, 24 502 (Ariz. 2009). Accordingly, Count V is dismissed. 25 D. Count VI 26 In Count VI, Doe asserts a claim for false light invasion of privacy. Doe alleges 27 that “false impressions created about [Doe] . . . would be highly offensive to any reasonable 28 person” and the Defendants recklessly made those statements “to the UHB staff and Board - 28 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 29 of 35 1 members, University staff, and Roe, and upon information and belief, were thereby 2 disseminated to Roe’s friends and unknown other persons.” (Doc. 37 ¶¶ 323, 325.) As 3 they did with Count V, Defendants argue the notice of claim was untimely as to the false 4 light claim. Additionally, Defendants contend the FAC fails to allege a public disclosure 5 of the statements about Doe, a key element of a false light claim. 6 1. Timeliness 7 Defendants first argue that Doe did not provide a timely notice of claim as to his 8 false light claim. Relying on § 12-821.01(A)’s requirement that a notice of claim be 9 submitted no later than 180 days after a claim accrues, Defendants point out that Rund 10 rendered his first decision on June 27, 2017. (Doc. 40 at 14-15.) One hundred and eighty 11 days after that date is December 24, 2017. (Id.) Doe did not provide a notice of claim until 12 February 23, 2018, beyond the 180-day deadline. (Id.) Accordingly, Defendants argue, 13 Doe’s false light claim is time-barred. (Id.) 14 A claim for false light invasion of privacy accrues on the date an allegedly 15 outrageous falsehood is published. Bryant v. City of Goodyear, 2013 WL 1897129, *8 (D. 16 Ariz. 2013). See also Watkins v. Arpaio, 367 P.3d 72, 77 (Ariz. Ct. App. 2016). “Each 17 communication of a defamatory statement, even though identical in content, constitutes a 18 separate publication, giving rise to a separate cause of action.” State v. Superior Court In 19 & For Maricopa Cty., 921 P.2d 697, 702 (Ariz. Ct. App. 1996). Thus, each publication 20 would start the clock on the 180-day window to submit a notice of claim—one cannot wait 21 until the end of a series of torts to submit a notice of claim containing every instance of 22 publication if some of those instances occurred outside the 180-day time bar. Watkins, 367 23 P.3d at 75-77 (explaining the “continuous harm” doctrine and rejecting its application to 24 false light claims). 25 Doe contends that ASU officials at virtually every stage of the disciplinary process 26 published defamatory statements, yet he argues that he “would not have knowledge of facts 27 underlying all elements . . . of his false light claim[] until after ASU officially concluded 28 that he committed sexual violence.” (Doc. 47 at 18.) But Section 12-821.01 does not - 29 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 30 of 35 1 require that a plaintiff know all facts about a claim—a plaintiff need only “possess a 2 minimum requisite of knowledge sufficient to identify that a wrong occurred and caused 3 injury.” Thompson v. Pima Cty., 243 P.3d 1024, 1028 (Ariz. Ct. App. 2010). See also 4 Viniegra v. Town of Parker Mun. Prop. Corp., 383 P.3d 665, 670 (Ariz. Ct. App. 2016). 5 Whether any of the Defendants published a defamatory statement is something that Doe 6 would know almost immediately because he was a recipient of the publications. (Doc. 37 7 ¶ 182.) Thus, there was no need to wait for Rund’s final decision. Doe “knew or 8 reasonably should have known” at each publication that defamatory statements were being 9 made. Watkins, 367 P.3d at 76. 10 Doe’s argument that his claim did not accrue until Rund’s final decision is similar 11 to the plaintiff’s argument in Watkins. There, the plaintiff argued that each day of an 12 unlawful investigation into his activities constituted a “continuing wrong” and that the 13 statute of limitations only began to run when the investigation ended. Id. at 75. The 14 Arizona Court of Appeals deemed that argument inconsistent with § 12-821.01. Id. at 76. 15 Instead, the plaintiff was bound by § 12-821.01’s time bar, and any actionable claim had 16 to be pursued within the relevant statute of limitations. Id. 17 The same is true here. Doe maintained his innocence throughout the disciplinary 18 proceedings and thus should have perceived each publication of a decision-maker’s 19 findings to be defamatory. The proceedings may have resulted in multiple instances of 20 false publications, but each publication was an independent cause of action—Doe could 21 not raise all of them in the same notice of claim to avoid the statute of limitations. Cf. 22 Haab, 191 P.3d at 1028-1030 (plaintiff was required to submit amended notices of claim 23 to include claims arising after the initial notice of claims was served). 24 As noted, Doe’s notice is dated February 23, 2018. (Doc. 40-2.) One hundred and 25 eighty days before that date is August 27, 2017. The only event raised in the notice (as 26 well as the FAC) that falls within the 180-day window is the distribution of Rund’s final 27 decision on August 30, 2017. Because the allegedly defamatory statements of the other 28 Defendants were published before August 27, 2017, they fall outside § 12-821.01’s time - 30 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 31 of 35 1 bar, and thus the notice as to those Defendants is untimely. Accordingly, Count VI is 2 dismissed as to all Defendants except Rund. 3 2. Merits 4 Defendants also argue that Doe’s false light claim is inadequately pleaded. In their 5 view, Doe has failed to identify a “public dissemination,” an essential element of a false 6 light claim. (Doc. 40 at 16-17; Doc. 53 at 10.) Doe counters that “when Defendants 7 publicized the ‘force’ finding to Roe[,] it was substantially certain to become a matter of 8 public knowledge because there was nothing in place to prevent Roe from publicizing or 9 freely talking to others about Doe’s penalty.” (Doc. 47 at 16.) 10 Under Arizona law, a false light invasion of privacy claim has two elements: (1) a 11 “defendant, with knowledge of falsity or reckless disregard for the truth, gave publicity to 12 information placing the plaintiff in a false light; and (2) the false light in which the plaintiff 13 was placed would be highly offensive to a reasonable person in the plaintiff’s position.” 14 Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 449-50 (Ariz. Ct. App. 2015). 15 Here, the parties focus on the “publicity” requirement of the first element. 16 In the false light context, “publicity” differs from the mere “publishing” of a 17 defamatory statement. Hart v. Seven Resorts, Inc., 947 P.3d 846, 854 (Ariz. Ct. App. 18 1997). Publicity requires that “the matter is made public, by communicating it to the public 19 at large, or to so many persons that a matter must be regarded substantially certain to 20 become one of public knowledge.” Id. (quoting Restatement (Second) of Torts § 652D 21 cmt. a. (1977)) (emphasis omitted). Publicity requires more than communication to a 22 single person or a small group of persons. Id. Rather, some sort of “wide-spread 23 dissemination” is required. Advanced Cardiac Specialists, Chartered v. Tri-City 24 Cardiology Consultants, P.C., 214 P.3d 1024, 1029 n.7 (Ariz. Ct. App. 2009). 25 As an initial matter, Doe has not alleged that Rund was responsible for any 26 publication. The FAC alleges that the UHB findings were released to Roe, Doe, Doe’s 27 counsel, and a variety of ASU officials and their assistants. (Doc. 37 ¶ 182.) The next few 28 pages, detailing Rund’s decision, do not mention that his decision was disseminated to the - 31 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 32 of 35 1 same list of people, let alone to the public at large. (Id. at 49-52). Count VI of the FAC 2 also does not specify the publication at issue. (Id. at 78-79.) The only mention of Rund’s 3 final decision being publicized is in a footnote in Doe’s response to the motion to dismiss, 4 which contends that Rund’s final decision was “disseminated to Roe and several ASU 5 employees.” (Doc. 47 at 16 n.4.) The FAC itself, in other words, fails to allege any release 6 of information by Rund. That alone may warrant dismissal. 7 Even if the Court gives Doe the benefit of doubt and assumes that the dissemination 8 of Rund’s decision was alleged in the FAC, Doe has still failed to allege the publicity 9 required to state a false light claim. As noted, publicity requires that the defamatory 10 statement be disclosed to the public at large, or to so many people that it is almost certain 11 to become public. Although Arizona courts have not provided much guidance concerning 12 this requirement, the case law from other jurisdictions that apply the same rule makes clear 13 that publication to a handful of people, as here, is not enough. For example, false 14 statements about a pastor’s sexual orientation made to his congregation and to his church 15 did not constitute publicity. Bilbrey v. Myers, 91 So.3d 887, 889, 892 (Fla. Ct. App. 2012). 16 Nor did a “handful of letters” mailed to a “handful of employees” at a government agency. 17 Armstrong v. Thompson, 80 A.3d 177, 188-89 (D.C. Ct. App. 2013). Even statements 18 made to a plaintiff’s neighbors, as well as two reports filed with the police, did not 19 constitute publicity. Curry v. Whitaker, 943 N.E.2d 354, 350-60 (Ind. Ct. App. 2011). 20 Instead, something more is needed, such as making the statements at a public hearing that 21 is televised to the wider community. See, e.g., Holmes v. Town of East Lyme, 866 F. Supp. 22 2d 108, 131-32 (D. Conn. 2012). 23 In a college setting, even dissemination of private information to twenty college 24 students is not enough to satisfy the publicity requirement for a false light claim. In Leach 25 v. Dist. Bd. of Trustees of Palm Beach, 244 F. Supp. 3d. 1334, 1336 (S.D. Fla. 2017), a 26 former college student sued his former college for, among other things, false light. The 27 plaintiff alleged that he had a disability that made it difficult to read, yet his professor 28 constantly forced him to read in front of the class, ultimately revealing the disability to “20 - 32 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 33 of 35 1 or more students.” Id. at 1336, 39-40. Beyond that, there were no allegations that the 2 disability was disclosed to the general public. Id. at 1340. Although “[t]here is no precise 3 number that constitutes a large number of persons,” the court determined that a class of 20 4 was not enough. Id. at 1339-40. Even if “college students regularly engage in social 5 media,” which encourages the spread of information, the complaint was devoid of any 6 allegation that students had or were likely to spread private information about the plaintiff 7 through social media. Id. at 1340. Thus, the plaintiff had failed to raise an actionable false 8 light claim. Id. 9 The same is true here. Assuming the same individuals who received the UHB’s 10 recommendation also received Rund’s final decision, that group includes those who were 11 involved in the disciplinary proceedings, ASU’s counsel, ASU’s Title IX coordinator, 12 secretaries for some of the officials, Roe, and Doe. (Doc. 37 ¶ 182.) This was not a 13 statement made to the public at large, but rather to a small group of officials involved in 14 the university’s disciplinary process. That does not rise to the level of public 15 dissemination. Cf. S.B. v. Saint James Sch., 959 So.2d 72, 91-92 (Ala. 2006) (holding that 16 a dean’s disclosure of private information to those involved in the investigatory process 17 did not constitute publicity for purposes of a false light claim.) 18 The only potential link to public dissemination is Doe’s allegation “upon 19 information and belief” that Roe, after receiving Rund’s findings, further disseminated 20 those findings to her friends and other unknown persons. That does not save Doe’s claim. 21 As noted, absent allegations that a false statement has actually spread to the public at large, 22 the publicity element of false light has not been met. Leach, 244 F. Supp. 3d at 1340. More 23 fundamentally, there is no argument that Roe should have been deprived of the results of 24 her complaint against Doe. “What she chose to do with that information is irrelevant to 25 whether [Doe] stated a claim” against Rund. Shepherd v. Costco Wholesale Corp., 441 26 P.3d 989, 995-96 (Ariz. Ct. App. 2019). 27 At bottom, Doe has not alleged that Rund released the results of Doe’s disciplinary 28 proceedings to the public at large. Thus, Count VI is dismissed as to Rund. - 33 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 34 of 35 1 V. Count VII 2 Count VII of the FAC does not allege an independent cause of action. (Doc. 37 at 3 79.) Rather, it sets out the relief Doe seeks. (Id.) It functions not as an independent claim, 4 then, but as an ancillary component of Doe’s other claims (such as his Title IX claim). 5 There is, therefore, no need to analyze Count VII independent of Doe’s other claims. 6 VI. Leave To Amend 7 In the final sentence of his response to the motion to dismiss, Doe “requests leave 8 to re-plead any count this Court deems insufficient.” (Doc. 47 at 19.) Defendants do not 9 address this request in their reply. 10 “Rule 15 advises the court that leave [to amend] shall be freely given when justice 11 so requires.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) 12 (quotation omitted). “This policy is to be applied with extreme liberality.” Id. (quotation 13 omitted). Thus, leave to amend should be granted unless the proposed amendment “(1) 14 prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in 15 litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 16 951 (9th Cir. 2006). 17 Here, the Court has determined that Counts I, III, V, and VI should be dismissed. 18 As for Count I (the § 1983 claim), it would be futile to grant leave to amend because no 19 new factual allegations could save this claim—it is marred by a legal infirmity. As for 20 Count III (breach of contract), Doe has apparently abandoned this claim, so leave is not 21 appropriate. As for Count V (IIED), as well as Count VI (false light) as it pertains to all 22 Defendants except Rund, amendment would be futile because the dismissal arises from 23 Doe’s failure to comply with Arizona’s notice-of-claim statute, not from his failure to 24 allege sufficient facts. 25 Finally, with respect to Count VI as it pertains to Rund, the Court stated in its 26 tentative order that it was inclined to grant leave to amend because it might be possible for 27 Doe to allege additional publicity-related facts. (Doc. 61 at 33-34.) However, during oral 28 argument, Doe’s counsel stated that, based on the current record, Doe would be unable to - 34 - Case 2:18-cv-01623-DWL Document 66 Filed 12/27/19 Page 35 of 35 1 offer such an amendment and thus agreed that Count VI could be dismissed in its entirety 2 without leave to amend. 3 Accordingly, IT IS ORDERED that: 4 (1) Defendants’ motion to dismiss (Doc. 40) is granted in part and denied in 5 part; and 6 (2) Counts I, III, V, and VI are dismissed without leave to amend. 7 Dated this 26th day of December, 2019. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 35 -