Doe v. Va. Wesleyan Coll.

David W. Lannetti Circuit Court Judge

OPINION AND ORDER

Plaintiff Jane Doe ("Doe"), Defendant/Third-Party Plaintiff Virginia Wesleyan College ("VWC"), and Third-Party Defendant Robert Roe ("Roe") appeared before the Court on October 21, 2015, for a hearing (the "Hearing") on various motions filed by the parties, proper notice having been given to all parties. The following motions were filed and noticed: (1) Doe's Motion to Amend Complaint; (2) Doe's Second Motion to Amend Complaint; (3) VWC's Motion for Partial Summary Judgment regarding the Clery Act; (4) VWC's Motion for Partial Summary Judgment regarding Charitable Immunity; (5) VWC's Second Motion in Limine regarding Insurance; (6) VWC's Third Motion in Limine regarding Underlying Events; (7) VWC's Fourth Motion in Limine regarding Collections; (8) VWC's Fifth Motion in Limine regarding Donors; (9) VWC's Sixth Motion in Limine regarding Pseudonyms; (10) VWC's Motion for Protective Order regarding the Deposition of Robert Barry; (11) Roe's Motion in Limine regarding Administrative Proceedings; and (12) VWC's Motion in Limine regarding Alcohol Consumption.

Now the Court—after considering the arguments at the Hearing, reviewing the related pre-hearing and post-hearing briefs, and consulting applicable authorities—rules as follows.

(1) Doe's Motion to Amend Complaint

Doe seeks to amend her Complaint to add counts for (a) Negligent Hiring of Jerry Mance, Jr. and (b) Negligent Hiring of Troy Katzer. Doe asserts that these claims were in her original Complaint and that the proposed Amended Complaint merely includes additional details about which she became aware through the discovery process. VWC responds that these claims are new and do not arise out of the same transaction or occurrence as that alleged in Doe's original Complaint. VWC also contends that Doe includes allegations within her proposed Amended Complaint that are harassing and/or demeaning, and VWC seeks to ensure those allegations are not included in any Amended Complaint. VWC further asserts that Doe improperly, and without basis, claims recovery of her attorney's fees. The Court DENIES IN PART and GRANTS IN PART Doe's Motion to Amend Complaint.

The Court finds that the count in Doe's proposed Amended Complaint for Negligent Hiring of Jerry Mance, Jr. is a new claim that: (i) is not sufficiently related to the transaction and occurrence alleged in Doe's original Complaint; (ii) would substantially prejudice VWC at this point in the proceedings; and (iii) does not further the ends of justice. See Va. Sup. Ct. R. 1:8. The Court therefore denies Doe leave to amend her Complaint to add this new claim.

The Court finds that the count in Doe's proposed Amended Complaint for Negligent Hiring of Troy Katzer, by contrast: (i) is related to the transaction and occurrence alleged in the original Complaint; (ii) does not prejudice VWC at this point in the proceedings; and (iii) does further the ends of justice. See id. The Court therefore grants Doe leave to amend her Complaint to add this claim.

The Court finds that the proposed Amended Complaint improperly includes allegations that are harassing and/or demeaning.

Doe's proposed Amended Complaint does not include any language regarding recovery of attorney's fees that is not included in her original Complaint. It therefore is improper to resolve Doe's alleged claim for recovery of her attorney's fees pursuant to this motion.

Doe is granted leave to submit to the Court an Amended Complaint within fourteen days that includes her Negligent Hiring of Troy Katzer claim, although Doe is specifically directed not to include any harassing or demeaning allegations in her Amended Complaint.

(2) Doe's Second Motion to Amend Complaint

Doe seeks to amend her Complaint to add counts for (i) Title IX Hostile Environment; (ii) Title IX Deliberate Indifference; and (iii) Intentional Infliction of Emotional Distress. Doe asserts that she became aware of these claims as a result of the discovery process. VWC responds that they are new claims that do not arise out of the same transaction or occurrence and that the introduction of these claims at this point in the proceedings would represent substantial prejudice to VWC. VWC also contends that the new claims are futile as pleaded.

The Court finds that these counts are new claims that: (i) are not sufficiently related to the transaction and occurrence alleged in the original Complaint; (ii) would prejudice VWC at this point in the proceedings; (iii) are futile as pleaded; and (iv) do not further the ends of justice. See Va. Sup. Ct. R. 1:8. The Court therefore DENIES Doe leave to amend her Complaint to add these new claims.

(3) VWC's Motion for Partial Summary Judgment regarding the Clery Act

VWC seeks partial summary judgment to dismiss any claims to the extent they are based on VWC's alleged failure to comply with the Clery Act and to preclude Doe from introducing or otherwise referencing VWC's or any other institution's compliance or noncompliance with the Clery Act. Doe responds that she has no intention of introducing any evidence that VWC or any other institution complied or failed to comply with the Clery Act, but argues that the prohibition against evidence related to compliance with the Clery Act does not affect the admissibility of the data contained within the Clery Act reports. At the Hearing, VWC effectively amended its motion to include preclusion of admission of the data contained within the Clery Act reports.

The express language of the Clery Act precludes admission of evidence regarding compliance or noncompliance with the act. 20 U.S.C. § 1092(f)(14)(B). The Court, however, is not aware of any case law precluding admission of data within Clery Act reports, and courts in fact have considered such data in the past. See, e.g., Lees v. Carthage College, 714 F.3d 516, 520, 526 (7th Cir. 2013); James v. Duquesne Univ., 936 F. Supp. 2d 618, 626 (W.D. Pa. 2013). The Court therefore GRANTS IN PART and DENIES IN PART VWC's Motion for Partial Summary Judgment regarding the Clery Act.

To the extent that Doe's claims—including but not limited to its fraud claim—are based on VWC's inaccurate reporting of data in its Clery Act reports, such claims essentially are claims that VWC did not comply with the Clery Act and therefore are dismissed with prejudice. Doe is not precluded, however, from introducing data within Clery Act reports for purposes other than demonstrating compliance or noncompliance with the act, subject to the Virginia Rules of Evidence.

(4) VWC's Motion for Partial Summary Judgment regarding Charitable Immunity

VWC seeks partial summary judgment by asserting that VWC is entitled to charitable immunity because: (i) VWC's Articles of Incorporation have a charitable or eleemosynary purpose; (ii) VWC operates consistent with that purpose; and (iii) Doe was a beneficiary of VWC at the time of the alleged assault. Doe responds that VWC's Articles of Incorporation do not have a charitable or eleemosynary purpose and, even if they did, VWC does not operate consistent with that purpose. Doe asserts that the issue of whether Doe was a beneficiary is premature, as that analysis is only necessary after it is established that the Articles of Incorporation have a charitable or eleemosynary purpose and that VWC operates consistent with that purpose. VWC and Doe agreed at the Hearing that argument and presentation of evidence regarding whether VWC operates consistent with the expressed charitable or eleemosynary purpose and whether Doe was a beneficiary would be postponed until the scheduled October 22, 2015, Plea in Bar hearing.

The Court finds that, based on its express language, the VWC Articles of Incorporation have a charitable or eleemosynary purpose. The Court therefore GRANTS IN PART VWC's Motion for Partial Summary Judgment regarding Charitable Immunity, to the extent VWC sought a declaration that VWC's Articles of Incorporation state a charitable or eleemosynary purpose. The Court reserves resolution of the remaining issues for the pending Plea in Bar.

(5) VWC's Second Motion in Limine regarding Insurance

VWC seeks to preclude admission of evidence at the Plea in Bar hearing regarding whether VWC carried insurance, claiming that the issue is irrelevant as to whether VWC operates consistent with the charitable or eleemosynary purpose stated in its Articles of Incorporation. Doe responds that the issue of insurance coverage is relevant and that other courts have specifically considered this issue when deciding whether a charitable organization operated consistent with the charitable or eleemosynary purpose stated in its Articles of Incorporation.

The Court holds that the issue of whether VWC had insurance can be considered as one of many factors in the Court's analysis of VWC's operation. The Court therefore DENIES VWC's Second Motion in Limine regarding Insurance.

(6) VWC's Third Motion in Limine regarding Underlying Events

At the Hearing, VWC withdrew its Third Motion in Limine regarding Underlying Events.

(7) VWC's Fourth Motion in Limine regarding Collections

VWC seeks to preclude admission of evidence at the Plea in Bar hearing regarding VWC's collections practices, claiming that the issue is irrelevant as to whether VWC operates consistent with the charitable purpose stated in its Articles of Incorporation. Doe responds that the issue of collections practices is relevant and that other courts specifically have considered this issue when deciding whether a charitable organization operated consistent with the charitable or eleemosynary purpose in its Articles of Incorporation.

The Court holds that the issue of VWC's collections practices can be considered as one of many factors in the Court's analysis of VWC's operation. The Court therefore DENIES VWC's Fourth Motion in Limine regarding Collections.

(8) VWC's Fifth Motion in Limine regarding Donors

At the Hearing, VWC withdrew its Fifth Motion in Limine regarding Donors.

(9) VWC's Sixth Motion in Limine regarding Pseudonyms

At the Hearing, VWC withdrew its Sixth Motion in Limine regarding Pseudonyms.

(10) VWC's Motion for Protective Order regarding the Deposition of Robert Barry

VWC seeks a protective order to preclude the introduction of deposition testimony of Robert Barry, counsel for VWC, claiming that any such testimony would be protected by the attorney-client privilege. Doe responds that VWC's corporate deponent, who already has been deposed, waived any attorney-client privilege between VWC and Barry when the corporate deponent testified without objection that Barry was present while settlement negotiations between Roe and VWC occurred. Doe also contends that the issue, in any case, is premature, as Doe has not noticed the deposition of Mr. Barry.

The Court holds that the issue is not ripe for resolution by the Court, as Mr. Barry's deposition has not been noticed. The Court therefore DENIES VWC's Motion for Protective Order regarding the Deposition of Robert Barry.

(11) Roe's Motion in Limine regarding Administrative Proceedings

At the Hearing, Roe opted not to argue its Motion in Limine regarding Administrative Proceedings and reserved the right to notice it again for a hearing at some future date.

(12) Roe's Motion in Limine regarding Alcohol Consumption and Related Discipline

Roe seeks to preclude the introduction of evidence at trial related to his alleged alcohol consumption and related school discipline. Doe responds that evidence of Roe's historical alcohol consumption and related school discipline are relevant to the issue of Roe's alleged alcohol consumption on the night of the alleged assault. Roe clarified at the Hearing that he is not moving to preclude evidence of Roe's alcohol consumption on the night of the alleged assault on Doe.

The Court finds that, even if such evidence of Roe's historical alcohol consumption and related school discipline were relevant, the probative value of such evidence is substantially outweighed by the danger of undue prejudice. Evidence related to Roe's historical alcohol consumption and related school discipline therefore is precluded from admission at trial. The Court therefore GRANTS IN PART and DENIES IN PART Roe's Motion in Limine regarding Alcohol Consumption.

For the reasons stated herein, the Court: GRANTS IN PART and DENIES IN PART Doe's Motion to Amend Complaint; DENIES Doe's Second Motion to Amend Complaint; GRANTS IN PART and DENIES IN PART VWC's Motion for Partial Summary Judgment regarding the Clery Act; GRANTS IN PART VWC's Motion for Partial Summary Judgment regarding Charitable Immunity; DENIES VWC's Second Motion in Limine regarding Insurance; DENIES VWC's Fourth Motion in Limine regarding Collections; DENIES VWC's Motion for Protective Order regarding the Deposition of Robert Barry; and GRANTS IN PART and DENIES IN PART VWC's Motion in Limine regarding Alcohol Consumption. Doe is granted leave to submit an Amended Complaint within fourteen days that includes her Negligent Hiring of Troy Katzer claim, but Doe is specifically directed not to include any harassing or demeaning allegations within the new claim. Doe is further directed to completely remove any other language in the Amended Complaint consistent with the Court's prior Letter Opinions and pursuant to any orders of the Court.

Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail (or e-mail) copies of this Order to all counsel of record.

IT IS SO ORDERED this 9^th day of November, 2015.

/s/_________

David W. Lannetti

Circuit Court Judge