Student Athlete’s Claim Survives Saint Louis University’s Motion to Dismiss

May 22, 2009

A federal judge from the District of Missouri has granted in part Saint Louis University’s motion to dismiss a lawsuit brought by one of its student athletes, who was allegedly raped at an SLU fraternity party.
While the court sided with the school on two of its arguments, it denied a third argument, which sought to dismiss the case of Jane Roe and her parents because they brought the suit under a fictitious name without first petitioning the court for permission to do so.
Joan Roe was a student at SLU from August 2006 to December 2006, attending the school on an athletic scholarship for field hockey.
Of relevance in the instant opinion, Joan was raped at a SLU fraternity party on October 27, 2006. She told a teammate about the incident, and the teammate indirectly relayed this information to the NCAA Compliance Officer for SLU. The Compliance Officer and the Head and Assistant Coaches of the field hockey team subsequently met with Joan, and Joan verified the sexual assault.
The plaintiffs allege SLU’s officials responded to the report of the sexual assault in numerous inappropriate ways. Among other things, the plaintiffs allege SLU officials:
• suspended Joan from the field hockey team;
• referred Joan to a general counselor, rather than a rape crisis specialist;
• failed to share information regarding the assault with Joan’s professors or academic-department advisor;
• failed to encourage Joan to reveal the identity of her assailant, or to tell the authorities or her parents of the assault; and
• failed to make any special accommodations to ensure Joan would not endure further contact with the assailant.
By early November, Joan was struggling academically at SLU. On November 6, 2006, the Roes met with the Associate Dean of Athletics and the Compliance Officer to discuss their daughter’s situation. During this meeting the Roes were allegedly not informed about the sexual assault, nor were they told of Joan’s suspension from the field hockey team. They were, instead, allegedly encouraged to punish their daughter for her failing grades. The Roes took this advice and punished Joan by cancelling a planned vacation over the Thanksgiving holiday.
On November 15, 2006, Joan was terminated entirely from the field hockey team. John Roe said he requested that the dismissal be characterized as a medical withdrawal, but the request was allegedly denied.
While home on Christmas break, Joan told her parents of the sexual assault. John Roe then made several calls to Father Biondi, the President of SLU, in an attempt to figure out what was going on with his daughter, and to see if there was a way to salvage her academic record. His calls were allegedly never returned. With assistance from the Jesuit Conference, John Roe was granted a conference with Father Biondi on February 5, 2007. While Joan eventually was granted a medical withdrawal from SLU, which meant that her first semester at college yielded no academic credits. She … “has been in counseling continuously since the fall of 2006, for the assault and her :treatment at the hands of the University,”
The plaintiffs filed their complaint on September 25, 2008, asserting the following causes of action against SLU and the Doe Defendants 1-50: Negligence, and Title IX–Disparate Treatment, based on Defendants’ actions with regard to Joan’s back injury (Counts I and III); and Title IX–Deliberate Indifference, based on Defendants’ actions with respect to the sexual assault (Count II). All Plaintiffs assert the following causes of action against Defendants: Intentional Misrepresentation/False Promise, and Negligent Misrepresentation, based on Defendants’ representations with respect to Joan’s enrollment at SLU and participation in the athletic department programming (Counts IV and V); Intentional Infliction of Emotional Distress, based on Defendants’ outrageous response to Joan’s reporting of a sexual assault (Count VI); and Breach of Contract, based on Defendants’ violation of various agreements Plaintiffs signed with the University (Count VII).
SLU moved to dismiss the suit on November 20, 2008, arguing that the plaintiffs’ claim must be dismissed for lack of jurisdiction, because they filed the lawsuit using fictitious names without first petitioning this Court for permission to do so. The university also asserted that the plaintiffs’ claim for intentional infliction of emotional distress must be dismissed for failure to state a claim upon which relief can be granted. Finally, it argued that the claims against the 50 unidentified defendants must be dismissed because the court lacks jurisdiction over unnamed defendants, and because the plaintiffs failed to state claims against them based on Title IX or breach of contract.
Addressing the defendant’s initial argument, the court wrote that “when sexual assault rises to the level of rape, at least one court has indicated that anonymity is warranted. In Doe v. Blue Cross & Blue Shield, the Seventh Circuit noted, ‘fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties….’ 112 F. 3d at 872. See also Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir. 2004) (in denying the right to proceed anonymously, court emphasized the fact that the plaintiff was, ‘not a minor, a rape or torture victim, a closeted homosexual, or … a likely target of retaliation by people who would learn her identity only from a judicial opinion or other court filing.’)
“In the instant case the allegations of the complaint include the fact that Joan is a rape victim, and that her status as such would become publically known if she were required to file suit using her true name. ‘It is understandable that plaintiff does not wish to be publicly identified as [a rape victim], which is a personal matter of the utmost intimacy.’ W.G.A., 184 F.R.D. at 617. Upon consideration, the Court concludes the interest in preserving the plaintiffs’ privacy through the use of pseudonyms outweighs the public interest in ascertaining their true identities, and so Plaintiffs will be allowed to proceed under pseudonyms in the instant case. See Doe H.M. v. St. Louis County, 2008 U.S. Dist. LEXIS 2691, 2008 WL 151629.”
The court did, however, agree, with the defendant that the claim for intentional infliction of emotional distress should be dismissed for failure to state a claim upon which relief can be granted.
“The Court finds the plaintiffs fail to state a claim for intentional infliction of emotional distress, for two reasons. First, it is undisputed that the plaintiffs make no claim they suffered extreme emotional distress resulting in bodily harm; instead, in their response the plaintiffs maintain only that they need not plead bodily harm as part of their claim. (‘[T]here is no need for the plaintiffs to formally plead bodily harm and therefore no reason to dismiss based on failure to allege any bodily injury.’). The plaintiffs’ complaint does not allege that the defendant’s conduct was intended ‘solely’ to cause emotional distress to Plaintiffs. See Bakhtiari, 2008 U.S. Dist. LEXIS 60173, 2008 WL 3200820; Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. 1997); Conway, 254 S.W.3d at 166. This portion of Defendant’s Motion to Dismiss will therefore be granted.”
The court also agreed with the defendant’s third argument that the plaintiff’s allegation was “insufficiently specific to permit the identities of the Doe Defendants to be ascertained after reasonable discovery. Williams v. Crawford, 2008 U.S. Dist. LEXIS 56338, 2008 WL 2967641 (E.D. Mo. Jul. 25, 2008).”
Joan Roe et al. v. St. Louis University et al.; D. Mo.; Case No. 4:08CV 1474 JCH, 2009 U.S. Dist. LEXIS 27716; 4/2/09
Attorneys of Record: (for plaintiff) Dawn M. Guillory, Jennifer C. Best, LEAD ATTORNEYS, PRO HAC VICE, KELLY LAW FIRM, P.C., Richmond, TX; Heidi O. Vicknair, Lannie Todd Kelly, LEAD ATTORNEYS, PRO HAC VICE, KELLY LAW FIRM, P.C., Houston, TX. (for defendants) Neal F. Perryman, LEAD ATTORNEY, Jami L. Boyles, LEWIS RICE, St. Louis, MO.


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