Friday, April 01, 2011

Beaty Decision (Carrington Lawsuit, Unindicted Players): Updated

In general, perhaps the most surprising element of this filing came not from Judge Beaty but from Duke spokesperson Michael Schoenfeld, who commented that a ruling in which Pres. Brodhead, Tara Levicy, Dean Sue Wasiolek, and Duke Health would remain as defendants, and thus be subject to depositions and discovery, and in which Duke professors were condemned for having committed possibly liable acts, (and, for the record, in which a federal judge affirmed Duke's argument that its handbook and bulletin aren't legally binding on Duke, a finding that I doubt very much Duke shares with too many prospective parents) worked out "as we had hoped."

As I noted yesterday, the university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta, who would have been a disaster for the university in any deposition.

Charles J. Cooper, representing the 39 unindicted Duke lacrosse players in their lawsuit against Duke University and others, issued the following statement: “We are heartened by the judge’s carefully considered decision permitting the lacrosse players’ primary claims to move forward. We will immediately begin taking discovery and preparing the case for trial.”

Beaty key passages below:

count 23—conspiracy & obstruction of justice—upheld against Duke, Duke Health, Levicy, Wilson, Gottlieb, Himan

Beaty dismisses the general Duke/Durham line of argument: “Defendants contend that Plaintiffs have not alleged facts to establish that Defendants’ alleged conduct actually obstructed, impeded, or hindered any aspect of the claim, but the Court concludes that Plaintiffs have alleged significant misconduct in the creation of false and misleading evidence and destruction or alteration of potential evidence, and further analysis of these issues would require consideration of factual issues more appropriately considered at summary judgment to determine if sufficient evidence is presented in support of the claim. Therefore, the Court concludes that Plaintiffs have stated a state tort claim for obstruction of justice at this stage.”

Beaty dismisses the claims against individual supervisors, on grounds that the guilty supervisor, if any, would be Duke & Duke Health, and the city of Durham.

count 21— U.S.C. § 1983 claim regarding the NTO requirement for DNA & blood samples, against various Duke & Durham employees—upheld against Gottlieb, Himan, and former SANE-nurse-in-training Tara Levicy

Beaty concludes that the “Plaintiffs have raised substantial questions regarding the constitutionality of the searches and seizures effected pursuant to the NTO in this case, both as to the procedure that was followed and the scope of the NTO that was entered.”

Beaty notes that both U.S. and North Carolina law are inconsistent on exactly what 4th amendment protections apply in a circumstance such as this, but in any event, the claim can go forward, since “Defendants raise extensive factual contentions to dispute these allegations and to demonstrate that probable cause existed even if the allegedly false statements are removed and the material omissions are included. This analysis by Defendants includes extensive parsing of pieces of the Amended Complaint, and attempts by the various Defendants to blame one another. “ Such matters, he notes, can’t be decided at a motion to dismiss.

He also rejects the city’s claim that such an issue never could rise to the level of a constitutional violation: “the Court concludes that there is no question that these rights were clearly established, and no reasonable official could have believed that it was permissible to deliberately or recklessly create false or misleading evidence to present to a magistrate to effect a citizen’s seizure.”

count 19—negligent supervision—upheld against Duke (but not individual Duke defendants)

And on this count, the Group of 88 and other extremist professors’ behavior could cost Duke: “In Count 19, Plaintiffs bring claims against Duke . . . for Negligent Supervision of Duke professors and employees. As the basis for this claim, Plaintiffs contend that employees of Duke committed tortious acts of fraud, intentional and negligent infliction of emotional distress, harassment, nuisance, intrusion upon seclusion, defamation, and other torts against Plaintiffs, and that Duke . . . knew of the ongoing tortious conduct and “took no action to stop, prevent, or sanction them, but rather condoned, approved, and ratified the incidents of tortious conduct.’”

count 18—intrusion upon seclusion, against Duke and various administrators, dismissed

Beaty argues that the administrators themselves committed no specific wrongful acts under this count. But he adds in a tempting line: “Although the Amended Complaint alleges conduct by faculty members that is certainly questionable, those allegations do not state a claim against Duke or any of the named Defendants for intrusion upon seclusion.” [emphasis added]

Doubtless the Group of 88 is breathing a sigh of relief upon reading this line.

count 15/16—breach of contract—dismissed

This was by far the most disappointing element of any aspect of the Beaty rulings. Relying on precedents involving very different—and much, much narrower—types of issues (the Love and Giuliani suits against Duke), Beaty held, “courts in this district have repeatedly concluded that a university’s academic bulletins and policies cannot be the basis of a breach of contract claim unless the bulletin or policy provision is a specific, enforceable promise that is incorporated into the terms of a contract between the university and the student.”

Beaty continues that despite the wording of the bulletin, there is no “indication of any intent by Duke to be bound to any particular obligation or course of conduct based on this general policy language.”

In effect, under this ruling, student bulletins and faculty handbooks in the 4th Circuit are worth nothing more than scraps of paper, and the university has no legal obligation to hold itself to their provisions. (It would be difficult to imagine a more transparent, major breach of the bulletin than what was alleged in this case.) Other circuits, I should note, do not have such a standard.

count 11—fraud—based on Brodhead and Trask assuring the players that anything told to them would remain confidential, when they knew otherwise; and Dean Sue Wasiolek, for urging the players not to tell their parents or retain counsel; upheld

Beaty suggests that this is normally an almost impossible bar to meet when dealing with a university’s relationship with students. But the facts of this case manage to surpass the bar. Why? “While an administrator is not ordinarily in a fiduciary or confidential relationship with the students, an administrator who is a lawyer [Dean Sue], who discusses pending criminal charges with her students, who affirmatively cuts them off from other advice by telling them not to seek legal advice and not to tell their parents, and who then directs them to the institution’s attorney in an effort to protect the institution at the students’ expense, could plausibly be liable for constructive fraud under state law.”

He continues, “Similarly with respect to Vice President Trask, although a fiduciary relationship would not ordinarily exist between the players and Trask, Plaintiffs allege that Trask created a confidential relationship by assuring the co-captains that they could confide in him even against the advice of their attorneys, based on the existence of what Trask allegedly called a “student-administrator privilege,” which Plaintiffs contend Trask subsequently breached for Duke’s benefit. Likewise as to President Brodhead, although no fiduciary relationship ordinarily would exist, Plaintiffs allege that Brodhead explicitly assured the co-captains of confidentiality and urged them to trust him and to issue an apology, but that Brodhead did so only for Duke’s benefit and at the expense of the co-captains.”

Count 1/2/6/7—emotional distress—dismissed, for same reasons noted in Evans case below.

Counts 4/5—Medical negligence—dismissed, on grounds that Tara Levicy owed not the plaintiffs but only false accuser Mangum quality care. This appears to be a correct reading of North Carolina law, but is a frightening finding.

Count 3—Neligent supervision—partly upheld: “The Court will not dismiss the claim asserted in Count 3 for negligent supervision with respect to Duke and Duke Health, to the extent that other underlying claims are proceeding in this case as to Levicy.” Beaty notes, however, that the law doesn’t allow such a claim against Levicy’s individual supervisors.

Count 8—fraud—related to Duke’s giving the DPD access to the lacrosse players’ key card info in March 2006, without a warrant, and in apparent violation of FERPA; and then lied about it when Nifong subsequently requested a court order for the information, which Judge Titus denied—upheld

“To the extent that this claim is based on a fraudulent omission, Plaintiffs have identified the general content of the information that was withheld and the reason for its materiality, and the identity of those who failed to make such disclosures. Plaintiffs have also alleged the relationship and events giving rise to the duty to speak, based on the actions of Drummond and Hendricks in undertaking to send the letters.”

Beaty dismisses the claim of fraud against Durham, suggesting that the guilty party, if any, was Duke; and that the plaintiffs will have to prove who at Duke knew of the March 2006 decision to provide the keycard information to the DPD. The university seems extremely vulnerable here; it has yet to offer any remotely convincing explanation for its behavior.

9 comments:

The Hounds of TASSers'ville said...

"Courts in this district have repeatedly concluded that a university’s academic bulletins and policies cannot be the basis of a breach of contract claim unless the bulletin or policy provision is a specific, enforceable promise that is incorporated into the terms of a contract between the university and the student.”

Perhaps Beaty ought to look beyond his district. In particular he should examine Barnes vs. Zaccari et. al, and the ruling against Valdosta State regarding illegal punitive actions by universities.

From the SPLC:

"That finding adds to a growing body of law that makes clear promises made by schools in handbooks, school charters, 'Student Rights and Responsibility' documents and other university statements can provide students with legal protections that extend beyond those provided by more traditional law. While most cases have so far involved promises made to students about the fairness of campus disciplinary systems, the Student Press Law Center has long argued that schools should also be held legally accountable for violating their own student media policies and other provisions promising to protect student speech."

Unfortunately, Beaty did not seem to get that memo.

The SPLC also had some other notable things to say on the case about the rulings relevance to private schools (like Duke), and the limitations of using qualifying immunity. We think it is definitely worth bearing in mind given the Duke case context.

We join in not only Professor Johnson's disappointment in this part of the ruling, but we are also fearful for other students in the future if other judges like Beaty continue to ignore this crucial relationship between students and universities.

Posted by Hound No. 2
The Hounds of TASSers'ville

Walt said...

"As I noted yesterday, the university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta, who would have been a disaster for the university in any deposition."

Moneta is not exempt from deposition. Rule 30 of the Federal Rules of Civil Procedure allow depositions of any person, not just parties.

Walt-in-Durham

Anonymous said...

In fact, Moneta could be more of a problem for the university if deposed now, as he no longer has personal liability at risk.

Anonymous said...

From the ruling: "Having undertaken this comprehensive review of the claims asserted in this case, the
Court is compelled to note that while § 1983 cases are often complex and involve multiple
Defendants, Plaintiffs in this case have exceeded all reasonable bounds with respect to the length
of their Complaint and the breadth of claims and assertions contained therein."

Amen.

What remains against the non-hospital parts of Duke is basically Count 11, which will be a tricky and potentially groundbreaking test case on school administrators' fiduciary duties.

The rest was overreach.

Anonymous said...

"Plaintiffs in this case have exceeded all reasonable bounds with respect to the length of their Complaint and the breadth of claims and assertions contained therein."

Too bad. Reading motions is part of a judge's job description. These suits had 47 plaintiffs and lots of defendants--they were extraordinary because the actions described in them were extraordinary.

It may be simply that the judge is trying to excuse himself for taking a year with no action on the motions.

Scott said...

KC, thanks for your continuing great coverage of the issues. I'd love to see a blog post about what are the key discovery points you'll be interested in learning about.

Thanks.

Anonymous said...

To the 6:36 Anonymous:

"What remains against the non-hospital parts of Duke is basically Count 11, which will be a tricky and potentially groundbreaking test case on school administrators' fiduciary duties.

The rest was overreach."

Well, that's true if you want to gloss over CONSPIRACY, OBSTRUCTION OF JUSTICE, NEGLIGENT SUPERVISION and a second count of NEGLIGENT SUPERVISION. Sure, glossing over things like Justice and Facts are inherent with Duke, but, by God, that's a lot to gloss over.

Anonymous said...

"As I noted yesterday, the university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta, who would have been a disaster for the university in any deposition."

What is the basis for your conclusion that Moneta cannot be deposed because he is no longer a defendant?

Anonymous said...

Is Beaty a Communist?