Kappa Sigma's Motion to Dismiss

8/18/2019 Kappa Sigma's Motion to Dismiss

1/19

UNI

TED ST

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Case 1:15-cv-01191-PLM-PJG ECF No. 35-1 filed 03/03/16 Page 1 of 19 PageID.350


2/19

Matthew

J.

Lund

P48632

Pepper

Hamilton,

LLP

Attorneys

for MSU Defendants

4000 Town

‘enter,

Suite

1800

Southfield, Michigan

48075

248

359-7370

lundrn@pepperlaw.

corn

Michael E.

Baughrnan

Pepper

Hamilton,

LLP

Attorneys

fo r MSU

Defendants

3000

Two

Logan Square

Eighteenth

and

Arch Streets

Philadelphia. Pennsylvania

19103-2799

215 981-4897

baughmanpepperlaw.

corn

DEFENDANT KAPPA SIGMA FRATERNITY’S

BRIEF

IN

SUPPORT

OF

ITS

MOTION

TO

DISMISS



3/19

TABLE

OF

CONTENTS

CONCISE STATEMENT

OF ISSU PRESENTED

ii

CONTROLLING

AUTHORITY

iii

INDEX OF

AUTHORITIES

iv

INTRODUCTION

STATEMENT

OF

FACTS

A

Factual

Background

as alleged

in

the

irst

Amended

Complaint

I

B

actual

Allegations

regarding

Kappa

Sigma

2

C

Plaintiff

r s

s

negligence

claim

against

Kappa

Sigma

4

STANDARD

OF

REVIEW

4

LEGAL

ARGUMENT

5

A Plaintiff

Gross s

Negligence Claim

against

Kappa

Sigma

ails

for

Lack

of

Duty

5

B

No Special

Relationship

Existed

between

Plaintiff

Gross

and

Kappa Sigma

9

CONCLUSION

12

CERTIFICATE

OF

SERVICE

CERTIFICATE

OF

COMPLIANCE

WITH

TYPE-VOLUME

LIMITATION

TYPEFACE

REQUIREMENTS

AND

TYPE

STYL

REQUIREMENTSError

Bookmark

not

define



4/19

O

N I

SE S

T T

EM

ENT

O

F

I

SSU

E PRE

SEN

TE

D

Whe

ther

P

laint

iff Sh

ayn

a

Gro

ss’s ne

glig

ence claim

agai

nst Defe

nda

nt

app

a S

igm

a

ra

terni

ty

sho

uld

be

dism

isse

d

p

ursu

an t to

FE Civ

.

2

b 6

fo r

fa

ilu re

to

state

a

cla im

u

pon wh

ich

reli

ef

ca

n be gra

nted b

ecau

se

K

appa Sigma

owed no legal

duty

to

her

to

oversee

the

d

aily op

erat

ions

of

i ts loca

l ch

ap ter

,

D

el ta

P

si, o

r

to

o

therw

ise pro

tect

he

r

fr

om

the all

eged

crim

inal ac

ts

o

f Joh

n Doe

.



5/19

C

ON

TRO

LLI

NG

AU

THO

RIT

Y

Be

ll

A

tlan

tic Co

rp.

v.

7

w

omb

ly, 550

U

.S. 5

44, 12

7

S

.Ct.

1

955

,

1

67 LE

d.2d 929

200

7 .

A

shc

roft

v

lq

bal, 56

6

U.S

.

66

2, 12

9S.

Ct.

1937

, 7

LEd

.2d 86

8 20

09 .

C

olan

gelo

Ta

.. Ka

ppa Epsi

lon Fr

ater

nity,

2

05 M

ich. A

pp. 129

;

5

17

N

.W.2

d 28

9 19

94

.

G

rav

es W

arn

er Bros

.,

253

Mi

ch. A

pp.

486

;

65

6

N

.W

.2d

19

5 2

002

.

Ma

cDo

na ld

v

Z

In

c., 464

Mic

h.

32

2; 628

N.

W.2

d

33

2001

.



6/19

INDEX

OF

AUTHORITIES

s

es

Ashcroft

v Jqbal,

566

U.S.

662,

129 S. Ct .

1937,

173

LEd.2d

868 2009

6,

11, 12,

14

Bell

Atlantic

‘orp. v.

Twombly,

550 U.S.

544,

127

S,Ct.

1955,

167

L.Ed.2d

929

2007

6

Buczkowcki v

McKay,

441

Mich 96;

490 N.W.2d

330 1992)

15

Case

v

Consumers

Power

Co.,

463 Mich.

;

615

N.W.2d

17,

20 2006)

8

ol

nge

lo v Tau Kappa Epsilon

Fraternity,

205

Mich. App. 129;

517 N.W.2d

289

1994)

8,

10

C’onlev

Gibsoii,

355

U.S.

41,78 S.Ct.

99,2 L.Ed.2d

80 1957)

6

Graves

v Warner Bros.,

253

Mich. App.

486,

498; 656 N.W.2d

195,

203

2002

8, 12

Hunlev

v

DupontAuto,

341

F.3d 491.

496

6th

Cir. 2003

8

Kubczakv.

Chemical

Bank

Trust

Co.,

456 Mich

653;

575

N.W.2d

745

1998

13

Lakeland Reg?

Health

Svs.

v

Wa/greens

Health

Initiatives,

Inc.,

604

F. Supp.

2d

983,

986 W.D. Mich

2009)

8

MacDonald

v P

The.,

464 Mich

322;

628

NW2d

33

2001)

15

Shaheen

v Yonts,

394 Fed.

Appx.

224 6th

Cir. 2010

9

R

ules

FED.

R.

BANKR.

P.

8015 a) 5)

18

FED.

R.

BANKR. P.

8015 a) 6)

18

FED.

R.

BANKR. P.

8015 a) 7)

18

FED.

R. BANKR.

P. 015 a) 7) A) iii)

18

FED.

R. CIV.

P.

12 B) 6)

1,

6,

15

iv



7/19

INT

ROD

UC

TIO

N

De

fend

an t

Kap

pa

Si

gma F

rater

nity

bring

s thi s

mo

tion

u

nde r

FE R

CIV

P

12

B 6

to

d

ismi

ss

the o

nly clai

m

tha

t has

been

ass

erted a

gain

st

it

in

thi

s

matt

er

P

lain

tiff Shayna

G

ross

’s

ne

glig

ence claim

.

Se

e

F

irs t

m

end

ed

Co

mpla

int

D

oc. No

.

2

5,

C

ount

IV

,

17

9-

183

. Th

e

claim

f

ails

beca

use

Pl

aint

iff

G

ros

s

ha

s

no

t s

tated

a

c

laim

a

gains

t

Ka

ppa Sig

ma

for

whic

h

r

elief

may be

gran

ted.

In

dee

d, the c

laim as

ass

erte

d

in the

F

irst A

men

ded

Com

pla

int

fa

ils fo r

a

ll

th

e s

ame r

easo

ns

th

at

the

cl

aim

fai l

ed

be

fore Plai

ntiff

s

a

men

ded

the

ir

c

omp

lain t

.

Q

uite s

imp

ly, Ka

ppa Sigm

a

o

wed

no lega

l

du

ty t

o

ov

erse

e the

da

ily oper

ation

s

of

its

l

ocal

ch

apte

rs

o

r

to

oth

erw

ise

pr

otec

t Plain

tiff

Gr

oss

fr

om

ha r

m

cau

sed

to

he

r

by the a

llege

d

c

rim

inal

ac

ts of

Jo

hn Doe

.

T

he fa

ctua

l alle

gatio

ns

th

at P

laint

iffs

have

add

ed

to their

Fi

rst

m

end

ed

Co

mpl

aint

ha

v e don

e abs

olute

ly no th

ing

to c

hang

e

th

at.

ST

TE

ME

NT OF

F C

TS

A. Fac

tual Bac

kgro

und

a

s

a

lleg

ed

i

n t

he

F

irst m

ende

d C

omp

laint

The

f

ollo

wing

is

a

s

umm

ary of

t

he

fa

cts

as

all

eged i

n the

Firs

t

men

ded

Com

plai

nt.

By

re

peat

ing

the

fac

ts

a

s th

ey

ha

ve

be

en

all

eged

, Kap

pa S

igm

a is

ne i

ther

ad

mitt

ing .

no

r

co

nced

ing

to,

any

par

ticul

ar

al

lega

tion .

I

n fact

, Ka

ppa

S

igm a

asse

rts that

ma

ny

of th

e

a

lleg

ation

s

in th

e Fir

st m

ende

d Com

pla i

nt

are

untru

e.

N

ever

thele

ss

re

cog

nizin

g the

stan

dard u

nde

r whi

ch

the

Cou

rt

wi

ll

cons

ider

th

e p

rese

nt m

otion

,

Ka

ppa S

igm

a w

ill

resta

te

the rele

van

t

fact

s

as the

y have

bee

n

plead

ed b

y

P

lain t

iffs.

Ms

.

Gro

ss wa

s at

all rel

evan

t tim e

s

a stud

ent at

M

ichig

an

Stat

e

Un

ivers

ity .

Ka

ppa

Sigm

a i

s

an

in te

rnat

iona

l

frate

rnity

th at o

pera

tes a

lo

cal

c

hapte

r

at M

ich

igan St

ate

Un

ivers

ity

“

MS U

” . D

oe. No

. 25,

6 .

K

app

a

Sig

ma’s

loca

l

cha

pter

at MS

U is

D

efe

ndan

t

D

elta

Psi.

Id.,

7 For

all

tim

es re

leva

nt to the F

irs t

A

me

nded

C

om p

lain

t, Joh

n

Do

e

wa

s

a me

mbe

r

o

f



8/19

Delta

Psi. hi.,

137 . According

to the

First

Amended

Complaint,

Ms. Gross

was

acquainted

and friendly with

Mr. Doe

prior to the

alleged

incident.

Id.,

138 .

The

alleged

incident

with regard

to

Plaintiff Gross

occurred

in

February, 2013.

Id.,

140 . According

to the First

Amended

Complaint, Mr.

Doe

asked Ms.

Gross

via

text

message

if

she wanted

to

hang

ou t

with

him at the

Delta Psi

fraternity

house.

Id.

Plaintiff

Gross

agreed

to

meet Mr.

Doe

and th at

evening

she an d

another friend

went

the

fraternity

house,

where

Plaintiff

Gross

consumed

alcoholic

drinks

that

were given

to

her

by

Mr.

Doe. ld.

141 .

The

next

day,

Mr.

Doe

informed

Plaintiff

Gross

that they

had engaged

in sexual

intercourse; however,

Plaintiff

Gross had “ li tt le

to

no

recollection

of

engaging in

sexual

intercourse with

Mr. Doe.” Id.,

142 .

On

February 12,

2014,

approximately one

year

after

the

alleged

incident,

Plaintiff

Gross reported

the

sexual

assault to

the

MSU Office

of Inclusion.

According

to the

First

Amended

Complaint,

the

report was

made

after

Mr. Doe had

already

been accused

of sexually

assaulting

Plaintiff Emily

Kollaritsch

and

another unnamed

student.

Id.,

144 .

B.

Factual Allegations

regarding

Kappa Sigma

In

the

First Amended

Complaint,

Plaintiffs

have

added a

number of

allegations

regarding

the

structure and governance

of Kappa

Sigma

that were no t

included

in

the original

complaint.

Plaintiffs

allege that

Kappa

Sigma

is

governed according

to

its

constitution

and

by-laws.

Id.,

110 .

Plaintiffs

further allege

that Kappa

Sigma

is

“a

hierarchical

organization”

and

is

governed

by

its

Supreme

Executive

Committee,

which

is empowered

to

make

rules and

regulations

for the

fraternity.

Id.,

111-113 .

According

to

the First

Amended

Complaint,

the Supreme Execu tive

Committee

has the

authority

to impose

2



9/19

sanctions against

local chapters

as it deems appropriate

up

to, and including,

expulsion of a

local chapter

f rom the Kappa Sigma Fraternity. hi.

115 .

The First

Amended

Complaint

also contends that

Kappa

Sigma

Fraternity is

divided

into Districts,

and tha t

for

each

District,

the

Supreme Executive

Committee appoints

a

District

Grand

Master,

who

is

responsible for

visiting

each

local chapter

within

his

district.

Id.,

¶J

116-117 . The District

Grand

Master

is also required

to

submit

a

report

to

the Supreme

Executive

Committee regarding

the conditions

of a

local

chapter,

a nd the

Supreme Executive

Committee

is

entitled

to give

the

District

Grand

Master authority

to

remove

some

or all of the

local

chapter’s

officers.

id.

¶J

117-118 .

The

First

Amended

Complaint

also

contains

a number of allegations

regarding the

obligation of members

of

the

local

chapters of

Kappa

Sigma

to

abide by the

fraternity’s

Code

of Conduct. Id.,

120-125 .

Plaintiffs

allege

that pursuant

to

the

Code

of Conduct,

and the

Standards of

Conduct

contained

therein,

members of

the

local

chapters

are

forbidden

from

providing

alcohol

to anybody that

is

under

the

legal

drinking

age. Id.,

¶

122 . Under t he

Standards

of

Conduct, membe rs

of

local chapters

are also encouraged

to

engage

in

educational

programs related

to alcohol

and other

drug

consumption

Id.,

¶

125 .

With

regard

to

the

local chapters,

the

First

Amended

Complaint contends

that

each

local

chapter is entitled

to

acquire

property in its

name, which

is

held

in

Trust

for

the

use and

operation of

the local

chapter,

and for

the

use

of

the

Kappa

Sigma Fraternity.

Id.,

¶

126 .

Each

local chapter

is

self.governed

and entitled

to

make

its

own

by-laws,

orders,

and

regulations which

must

be consistent with

Kappa

Sigma’s constitution

and

by-laws.

Id.,

¶

128 .



10/19

C.

Plaintiff

Gross’s

negligence claim

against

Kappa

Sigma

Plaintiff Gross claims

Kappa

Sigma negligently

supervised

its

local

chapter,

Defendant

Delta

Psi,

and that it

failed

to

protect

he r

from

Delta

Psi’s

member,

John

Doe.

The

c la im , which

is

stated

in Count

IV of

the

First Amended

Complaint,

generally alleges that

Kappa S igma

had a

duty

to

protect

Plaintiff

Gross

as an

“invitee,”

and th at

Plaintiff

Gross

“temporarily

entrusted”

herself

to

Kappa

Sigma.

Jd.,

¶

180 . Plaintiffs

also allege that

Kappa

Sigma

knew or

reasonably should

have

known

of

Mr. Doe’s “dangerous

and exploitive

propensities”

itt.,

¶

181 ,

and

that Kappa

Sigma

breached its

duty of

care to

Plaintiff

Gross by

“allowing”

John

Doe

to

come

into contact

with

Plaintiff

Gross, by

failing

to

supervise

John

Doe,

and by

failing

to warn

Plaintiff

Gross

that

John

Doe posed

a

risk of

sexually assaulting

her.

Jd.,f

182 .

STANDARD

OF

REVIEW

The pleading

standard

necessary

to

survive

a

Rule

2 b 6

motion

is set

forth

in Bell

Atlantic

Corp.

v.

Twombly,

550

U.S. 544,

127 S .C t. 1955,

167 L.Ed.2d

929

2007 .

In

Twombly, the

Supreme

Court repudiated

the “no

set of

facts”

standard

from

Conley

Gibson,

355

U.S.

41 ,

78

S.Ct.

99,

2

L.Ed.2d

80 1957 , holding

that

the

appropriate

standard

is

as

follows:

While

a

complaint

attacked

by Rule

l2 b 6

motion

to

dismiss

does

not

need

detailed factual allegations

a

plaintiffs

obligation to provide the

‘grounds’

of

his

‘entitle[mentj

to relief requires

more than

lables

and

conclusions,

and

a

formulaic

recitation of the elements

of

a cause

of action

will

not

do.

Twomblv,

550 U.S .

at 555 internal

citations

and quotations

omitted .

Stated

otherwise,

to

survive

a

motion

to

dismiss,

a

complaint

must conta in

sufficient

factual

matter , accepted

as

true,

to

“state

a

claim

to relief

that

is

plausible

on

its

face.”

AshcrojE

Iqbal,

566 U.S. 662. 678,

129

S.

C t. 19 37,

173

L.Ed.2d

868

2009 quoting

4


C 1 15 01191 PLM PJG ECF N 35 1 fil d 03/03/16 P 11 f 19 P ID 360


11/19

Twornblv,

550

U.S., at 570 127

S.Ct.

1955 .

A claim

has

“facial

plausibility”

when

the

plaintiff

“pleads factual

content that allows

the court

to draw

the

reasonable

inference

that the

defendant

is liable

for

the misconduct

alleged.” Ashcrofi

566 U.S. at

678. Accordingly

“[tjhreadbarc

recitals

of

the elements of

a

cause of

action,

supported by m ere

conclusory

statements,

do not

suffice.”

Id. citation

omitted .

Determining

whether

a

complaint s ta tes

a plausible claim

for relief

is

“a context-

specific

task

that

requires

the reviewing

court to draw

on

its

judicial

experience

and

common

sense.” Id. However,

where

the

well pleaded facts

do

no t

permit

the

court

to infer

more than

the “mere

possibility

of

misconduct,”

the

complaint

has not shown,

that the pleader

is entitled

to relief

Id. at

679.

LEGAL ARGUMENT

A.

Plaintiff

Grosses

Negligence

Claim

against Kappa

Sigma

Fails

for

Lack of Duty

Plaintiff

Gross’s negligence claim ag ain st K appa S igma

is

primarily

based on her

erroneous

assertion

that

Kappa Sigma

owed her some

type of vague

and undefined

duty of

care

to supervise

its local chapter, Defendant

Delta

Psi, and

to

control the

actions

of

John

Doe.

Plaintiff

Gross

also seems

to assert

th at Kappa S igma

was

negligent

in failing

to warn

her that Mr. Doe posed

a

risk

to

her, that

it failed

to

investigate

accusations

th at had

been

made against

Mr.

Doe, and/or by allowing

Mr.

Doe

to

hold

himself

ou t

as

being

a

trustworthy

member of Kappa

Sigma’s

local

chapter, Delta

Psi.

None of these allegations

allow the

First

Amended

Complaint

to

survive

Kappa Sigma’s

motion

to

dismiss.

Regardless

of how Plaintiff Gross

attempts

to

frame

her negligence

claim

against

Kappa

Sigma,

she

must

establish

the

following

elements:

1 that

the defendant owned her

a

duty;

2

that the defendant breached t ha t duty; 3 tha t the defendant’s breach caused her


Case 1:15 cv 01191 PLM PJG ECF No 35 1 filed 03/03/16 Page 12 of 19 PageID 361


12/19

injury;

and 4

that

she

suffered

damages.

ee Hunlev v

Dupont

.4uto,

341 F.3d

491, 496

6th

Cir.

2003 and Case v

Consumers Power

Ceo

463 Mich.

1; 615

N.W.2d

17,

20 2006 .

Duty

is

an

essential

element of any

negligence

action,

and when

a

duty

doe s not

exist, there

is no

liability

against

the defendant.

See Graves

v Warner

Bros.,

253

Mich. App . 486,

498;

656

N.W.2d

195,

203 2002 .

Under

Michigan

law,

a

national

fraternity

owes “no

duty

to

supervise

the

local

chapter’s actions

for

protection of third

parties.”

Co/angelo

v

Tate Kappa

Epsilon

Fraternity,

205

Mich.

App.

129, 136;

517 N.W.2d

289

1994 .’

In

Co/angelo,

the

plaintiffs

brought

a

wrongiiil

death

action against

a

national

fraternity

after their decedent

was

struck

and killed

by a

vehicle

while

walking

home from a party

at the

local chapter. Id.

at 130.

The

driver

of

the

vehicle,

who had

also attended

the party,

was

intoxicated

at the time

the accident.

Id.

The plaintiff s

alleged

that the national

fraternity

had

been negligent

in

supervising

the

local

chapter. Id.

at

131.

In in affirming

the trial

court’s order

granting

summary

disposition

to the nat iona l

fraternity,

Michigan

Court

of

Appeals

looked

to

several factors

to

determine

that

the

national

fraternity

was under no

duty

to supervise

the

day-to-day

activities

of the

local chapter.

Id.

at

136. Specifically,

the court

explained that

the

“ability

of

the

national

fraternity

to

foresee

that

a

person of

insufficient

age to drink

legally

would

consume

alcoholic

beverages

at

a

party

hosted

by

the local chapter,

become intoxicated,

and then

drive

away

from the

party

and

Federal

courts apply

ichigan

law to tort claims that

arise

in

Michigan.

Lake/and

Reg’l

Health Sys. 1’ Waigreens

Health

Initiatives,

Inc.,

604

F. Supp.

2d 983,

986

W.D. Mich

2009 . In

applying state

law,

federal

courts

“anticipate

how the relevant

highest

cour t would

rule

in the case”

and a re “bound

by

controlling

decisions

of

that

court.”

Id.

at

988.

Where

the

state’s highest

court has

not

ruled

on

the

issue,

federal courts

will

look

to the decisions

of the

state’s

intermediate

appellate courts and will accord those decisions precedential value.

Id. at

988-989.

6


Case 1:15-cv-01191-PLM-PJG ECF No 35-1 filed 03/03/16 Page 13 of 19 PageID 362


13/19

injure

the plaintiffs

decedent is

questionable ’

Id. at

133. Further,

the

ur t

noted th t

the

connection between

the

injury

nd

the national

fraternity’s

conduct was

too

attenuated

to

find

that

a

duty

existed.

Id.

at 134. Given

the l ong

chain

of

events,

which

included

intervening

bad

conduct

by the

local

ch pter

in

its

failure

to prevent

minors

from drinking,

the

defend nt

driver who illegally

operated

a

vehicle

while

under

the influence,

and the

circumstances

of

the

accident

itself, the

court

found

that

the national

fr ternity

was “the

least blameworthy

party.”

Id.

Finally, the

court

weighed

the burdens

and consequences

of imposing such

a

duty, finding

that

“the

purpose

of

organizations

like

the national

fr ternity

would

fundamentally

change” if

they were

forced

to

supervise

the d ily

activities

of

every

local chapter.

Id.

at 135.

Michigan’s ppell te

courts

are

not

lone

in holding

that a national

fr ternity

owes

no

duty

to oversee

the day-to-day

operations of

its

local chapters.

Se e

e.g.,

Shaheen

i’.

Yonts,

394

Fed. Appx.

224

6th Cir.

2010

and

cases

cited

therein .

In Shaheen

the

plaintiffs

decedent

was killed

by

an

intoxic ted

driver,

a member

of the

national fraternity’s

local

chapter, who

had

just left

a

p rty

at

the local

chapter’s fr ternity

house.

Id.

at 225. The

plaintiff

brought

a

negligence

action against

the

national

fraternity, lleging

that it failed

to

adequately

supervise

the

local

chapter.

Id.

The

Sixth Circuit,

however,

dis greed

and

pplying

Kentucky law, affirmed

the

district

court’s

order gr nting

summ ry

judgment

to

all

defendants,

including

the

national

fraternity.

Id.

at 230 holding

that “[w] ithout

a

physical

presence

at the

local

chapter,

the

imposition of

a duty [on

the national

fraternity]

to

supervise

and

or

control

is

illogical

and

untenable.” .

Like

the

pl intiffs

in

the

above-discussed

cases, Plaintiff

Gross

in the

case

at bar

seeks

to

impose

some

type of

vague

and

undefined

legal

duty on

a

national

fraternity

to

control

its

local chapters

and to protect

third part ies

from

any criminal

ctivity

occurring

on,

or

arising

7




14/19

ou t

of the local

chapter’s property.

In

the

First

Amended

Complaint

Plaintiff Gross

erroneously

claims

tha t Kappa Sigma had a

legal

duty

to “adequately

supervise”

John

Doe,

to

warn

Plaintiff

that

Mr.

Doe

posed

a

risk of’

sexual

assault, to enforce

its Code of

Conduct

more strictly,

and

to

prevent

members

of

the

local chapter

from providing alcoholic

drinks

to

individuals under

the drinking age.

Doe.

No . 25 ,

¶

182 .

However,

as

the

Co angelo Court

held,

a national fraternity

like

Kappa

S igma owes

no duty

to Ms. Gross

to

supervise

its local

chapter’s day to day

operations

or

to

control

the conduct

of

its local chapter’s members.

Any

connection

between

the injury

the Plaintiff

Gross suffered

and Kappa

Sigma’s conduct is

far

too attenuated

to find that

a

duty

exis ts. The

harm

to Plaintiff Gross

was

allegedly caused

by

the

illegal

actions

of

John

Doe. Kappa Sigma

did

not participate in

any

of the decisions,

and

did

not contribute

to any of

the

circumstances

that

led

to Plaintiff

Gross

being

assaulted

at the

local chapter.

While the

First Amended

Complaint

alleges that

Kappa Sigma

“knew

or

reasonably

should have

known”

of

Mr.

Doe’s “dangerous

and exploitive

propensities,”

it

offers

nothing

more

than bare

assertions

to

support

that

claim.

Th e

First

Amended Complaint

fails

to

provide

any

information

to

support

t he noti on

that anyone

at

Kappa

Sigma

could have

possibly known that

Mr. Doe might

sexually

assault

Ms.

Gross. Certainly,

the allegations

that

Kappa Sigma

had,

through

its

Supreme Executive

Committee

and/or

its

District

Grand

Master , the

authority

to

discipline

i ts local chapters

Doc.

25,

110-118

does

nothing

to

“state a

claim

to

relief that is plausible

on

its

face”

See

AshcroJi,

566 U.S.

at

678.

The

allegations

do not suggest

that anyone

at Kappa S igma

actually

had a ny

relevant

information

regarding any of the

events

leading

up to John

Doe’s alleged

sexual assault

of Plaintiff

Gross.

Instead,

the

facts

as stated

in

the

First

Amended Complaint,

suggest,

at

the very

most,

the

Case 1:15 cv 01191 PLM PJG ECF No. 35 1 filed 03/03/16 Page 14 of 19 PageID.363



15/19

“mere

possibility

of

misconduct:”

accordingly,

the

First

Amended

Complaint

has not

shown

that Plaintiff

Gross

is

entitled

to

relief

Id.

at

679.

B. No Special Relationship

Existed

between

Plaintiff

Cross

and Kappa Sigma

It is well

settled

that

there

is

no

duty

to protect another

person from the criminal

acts

of

a thi rd par ty

in the absence of

a

special

relationship.

Graves

235

Mich

App

at

493.

Perhaps

recognizing this,

Plaintiff Gross alleges,

without

alleging

any fa cts

to

support

the

conclusion,

that

she

enjoyed

a “special relat ionship” with

Kappa Sigma.

However,

these

types of

“[t]hreadbare

recitals of

the

elements

of

a cause of

action,”

which

are supported

only

by conclusory

statements,

are

exactly

the types of

allegations that

fail to state

a

claim

upon

which

relief

may

be granted.

See Ashcrofi 566

U.S.

at

678.

In particular,

Plaintiff Gross contends

that

sh e was Kappa

Sigma’s “invitee” when

she

attended

the

party

at

the Delta Psi

fraternity

house

on

the

night

John

Doe allegedly assaulted

her.

Doe. No. 25 ,

¶

180).

However,

the Fir st Amended

Complaint

does

no t

allege

that

Kappa

Sigma was

the owner

of

the premises

at

issue.

In fact, Plaintiff Gross

alleges

just the

opposite

stating

that

“[e]ach

local

chapter is entitled

to

acquire

property”

and that

local

chapters

hold

property

“in Trust

for

the

use

and operation of

[that]

local

chapter . .

Id.,

¶

126). Plaintiff

Gross

also

contends

that

“[e]ach

local

chapter

is self-governed”

and that

each

local

chapter

makes

its

own

by-laws orders

and regulations,

as long

as

they

are

consistent

with Kappa

Sigma’s

constitution and by-laws.

Id.,

¶

128). Simply

put, because

Kappa

Sigma

did

not

own, possess, or control

the Delta

Psi

fraternity

house,

it cannot

possibly owe Plaintiff

Gross

any duty

under

a

theory

of premises

liability.

See

Kubczak

C7ieinical

Bank

Trust

to 456 Mich 653,

664; 575

N.W.2d

745,

749

1998) holding

that

where

the defendant

did

9

g g



16/19

not

exercise

the requisite

dominion

and control

over

the

subject property that defendant

cannot

be considered a “possessor” for purposes

of

premises

liability.

There

are also no facts supporting

Plaintiff

Grosses untenable

assertion that

she

enjoyed

a

special relationship with Kappa S igma because she “temporarily entrusted”

her care

to

Kappa S igma and or because Kappa Sigma “voluntar ily accepted the entrusted

care of

[her]”

id.

¶

180 .

Again,

the

allegations

are nothing

m ore than the

barest

of assertions

unfounded

legal

conclusions presented under th e g uise

of an

asserted

fact. bsolutely

nothing in the

First mended

omplaint

even

remotely supports the conclusion

that

Plaintiff

Gross

entrusted

herself

to

the

national

fraternity, Kappa Sigm a, or

that

Kappa

Sigma

somehow voluntarily accepted that entrus tment. Rather,

Plaintiff

Gross contends that she was

the

one

who was “friendly” with John

Doe,

and that she agreed

to

meet him

at

the

Delta Psi

fraternity house

to

“hang

out.” Id.,

¶

140 .

It is not

“facial

plausibility” for

Plaintiff to

contend that

she

agreed

to meet Mr. Doe

and or agreed

to

take

alcoholic

d rin ks from h im

because

s he had

entrusted

her safety to the national fraternity,

Kappa

Sigma. Ashcrof l,

566

U.S. at

678.

The

allegations that Kappa S igma shou ld h av e fo re see n th at

members

of

its l oc al

chapter might

give

alcohol

to

individuals under the

legal drinking

age and or engage

in

criminal assaults

also

do

not

support

Plaintiffs

c la im tha t

she

enjoyed

a special

relationship

with Kappa

Sigma.

The F ir st

mended

Complaint contends that Kappa Sigma

should have

known about a

variety

of

“widely

publicized

and

available

information studies,

and reports”

regarding the r isks

associated with underage drinking

at

fraternities

on campuses across the

country.

Doe. No. 2 5,

¶

135 .

Plaintiffs

also

allege that

through its

Code

of

Conduct and

Standards of Conduc t, Kappa Sigma

forbids

members of

the local

chapters

from providing

10



17/19

a

lcoh

ol

to an

ybod

y

that

is

und

er

th

e

le

gal

dri

nkin

g age

,

and

that

Kap

pa

Sig

ma

fu

rthe

r

en

cour

ages mem

bers

of i

ts

loc

al ch

apte

rs to

eng

aged

in

ed

uc at

iona

l

p

rogr

am s

re

lated

to

alc

ohol

and d

rug

c

onsu

mpti

on Id. ,

122

, 12

5 .

Non

e of

the

se

alleg

atio

ns how

eve

r

supp

ort

Plai

ntiff

G

ross

’s leg

al

con

clusi

on

th

at

s

he

e

njoy

ed a

spe

cial

rel

ation

ship w

ith

Ka p

pa

Si

gma

an

d/or

th

at Kapp

a Si

gma

oth

erw i

se

o

wed

he

r a

du

ty of

care

.

“[

TJhe me

re fac t

th

at a

n eve

nt ma

y

be

fo

rese

eab l

e doe

s no

t imp

ose

a

duty

up

on

the

def

enda

nt

to tak e

s

ome

kin

d

of

acti

on

acc

ordi

ngly

” uc

zkow

ki v

M

cK

ay,

441

M

ich 96

,

101;

490

N W

2d 330

,

333

19

92 .

In

part

icula

r,

the Mich

igan

Su p

reme Cou

rt

has

no te

d

th

at

“c

rim i

na l

ac ti

vity,

”

su

ch

as M

r.

D

oe’

s

al

leg e

d

s

exua

l assa

ult on P

lain

tiff G

ros

s,

is

‘in

varia

bly

for

esee

able e

very

whe

re,”

prec

isely b

ecau

se

it is “ir

rat io

na l

and

u

npre

dicta

ble

” M

acD

ona

ld

v

PK7

Z

Inc.

,

46

4

Mi

ch 32

2, 33

5; 6

28 NW

d

33

200

1 .

Und

erag

e

dri

nkin

g

on

co

llege

ca

mpu

ses

is

sure

ly

just a

fores

eeab

le.

How

eve

r,

f

ores

eeab

ility alon

e doe

s

no

t

crea t

e a

duty

even

in the

o

wner of t

he

prop

erty o

n whi

ch

the

c

rim i

nal

activ

ity

oc

curs

.

I

d.

Co n

sequ

ently

for

esee

abili

ty

alon

e cann

ot

po

ssibl

y

cr

eate a leg

al d

uty

in K

app

a Sigm

a, wh

ich

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co

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pecia

l

r

elati

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ip with

Pl

aint

iff

Gro

ss.

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18/19

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Kappa Sigma's Motion to Dismiss

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Transcript of Kappa Sigma's Motion to Dismiss