Davis v. Voorhees

1

Audrey Davis, Plaintiff, v. Rhondie Voorhees, et al., Defendants.

No. CV-21-08249-PCT-DLR

United States District Court, D. Arizona

July 12, 2022

ORDER

Douglas L. Rayes United States District Judge

Pending before the Court is Plaintiff's “Motion for Rule 41(d) Costs and Stay of Proceedings on Counterclaim” (Doc. 17) and motion to dismiss (Doc. 24).^[1] The Court denies both motions.

I. Background

Audrey Davis is a student at Embry Riddle Aeronautical University (“ERAU”). (Doc. 49 at 3.) Rhondie Voorhees is Dean of Students there. (Id. at 5) Ms. Davis filed a Title IX complaint with ERAU but was unsatisfied with the results of the investigation.

Ms Davis then met with Ms. Voorhees, the ERAU Dean of Students. (Id.) At the meeting, Ms. Voorhees alleges that she “made it clear” to Ms. Davis-and that Ms. Davis acknowledged that she understood-that Ms. Voorhees “did not oversee or supervise Title IX matters at ERAU” and directed her to “the Title IX Coordinator's supervisor, who is the Vice President and General Counsel for the University.” (Doc. 50 at 20.)

After the meeting, however, Ms. Davis circulated a petition calling for Ms. Voorhees' resignation:

Dean of Students Rhondie Voorhees was asked to leave her last position at University of Montana for a culture that she, and other staff members perpetuated regarding how the college system of justice handles rape. In the total of 80 rapes over the span of three years Dean Rhondie Voorhees oversaw, only one was convicted. I googled her name and the word ‘rape' and I was very disappointed at the articles that came up. (seen below)

I and most of my female friends at ERAU have been sexually assaulted or harassed. I reported it to the school and the investigation took over 150 days to come to a decision. There was not enough information to convict him. The following semester I was put in a class with my abuser. I'm sure you have heard the rumors or know people who have the same experience as I or who haven't reported their assault because of our school's reputation with title IX. When I had a meeting with the Dean, I told her how it was very traumatic to see that I was put in a class with my abuser and suggested that there should be an early warning system put in place for both parties, so they don't have the possibility of showing up to class and being forced to interact. She said that would take a lot of work, and never got back to me. She represents a culture of letting abusers get a free pass. (see Jon Krakauer's book Missoula; Rape and the Justice System in a college town).

(Doc. 50-3.) The petition then solicits signatures and directs readers to several hyperlinked articles, one of which she summarizes as “Dean Rhondie made Trans student drop out, after coming out. Stating they violated the student conduct after an incident that occurred 6mo prior.” (Id.) Ms. Voorhees reads the petition as implying she bore some responsibility for the investigation taking longer than Ms. Davis liked, for how things were handled after the investigation, and that she is anti-LGBTQ, implications she alleges are false. She alleges that the petition falsely states that she “was asked to leave her last position at University of Montana for the culture she, and other staff members perpetuated regarding how the college system of justice handles rape.” (Doc. 50 at 21; see Doc. 50-3.) Ms. Voorhees further disputes that she “oversaw” “80 rapes,” in part because she “was never responsible for ‘overseeing' Title IX matters” at University of Montana and because “there was (sic) not ‘80 rapes' in ‘three years' at the University of Montana” while she was there.

(Doc. 50 at 22.)

Later, an ERAU Title IX investigator told Ms. Davis that Ms. Voorhees “has nothing to do with Title XI here at ERAU or any of its processes,” yet Ms. Davis took several days to take down the petition. (Id. at 23-24.) But like the contents of Pandora's Box, what has been published to the internet is loath to return to offline obscurity, and the petition continued to circulate “on social media.” (Id. at 24.) Ms. Davis did not issue a retraction, which Ms. Voorhees alleges has caused even more damage to her reputation. Id. at 24.)

Ms. Voorhees sued Ms. Davis in state court for defamation and false light invasion of privacy, among other claims which were not refiled as counterclaims in this suit. (Doc. 17-10 at 8-9.) Ms. Davis was served on June 7, 2021, but when she did not answer the complaint by July 8, 2021, Ms. Voorhees requested entry of default. Ten days later, Ms. Davis filed a motion to continue under the Servicemembers Civil Relief Act (“SCRA”), which provides for certain protections to servicemembers on active duty. At this time, Ms. Davis was represented by counsel. After a flurry of motions and supplements, Ms. Davis submitted an affidavit from the Human Resources Assistant for the United States Army ROTC program at ERAU attesting that her active service began on July 2, 2021 and that Ms. Davis had notice of this period of service on May 28, 2021. (Doc. 24-10 at 25.)

While the state court litigation continued, Ms. Davis filed this suit against Ms. Voorhees and other defendants in federal court on November 11, 2021, alleging, as to Ms. Davis, violations of Title IX, retaliation, and violations of the SCRA. (Doc. 1.) Seven days later, Ms. Voorhees voluntarily dismissed the state court complaint (Doc. 24-6) and in early December, she filed an answer in this case, as well as counterclaims of defamation and false light invasion of privacy. (Doc. 9.)

II. Motion for Rule 41(d) Costs and Stay of Proceedings

Federal Rule of Civil Procedure 41(d) provides:

If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the defendant, the court:

(1) may order the plaintiff to pay all or part of the costs of the previous action; and

(2) may stay the proceedings until plaintiff has complied.

“In analyzing purported violations of Rule 41, the [nonmovant] bears the burden to show a ‘persuasive explanation' for its course of the litigation, while the [movant] must show only that it ‘incurred needless expenditures' as a result of [the nonmovant's] conduct.” Senah, Inc v. Xi 'an Forstar S&T Co, Ltd, No. 13-CV-04254-BLF, 2014 WL 3058292, at *1 (N.D. Cal. July 3, 2014) (citing Esquivel v. Arau, 913 F.Supp. 1382, 1386 (C.D. Cal. 1996)) (internal citations omitted). The rule is “intended to serve as a deterrent to forum shopping and vexatious litigation.” Esquivel, 913 F.Supp. at 1386 (quoting Simeone v. First Bank Nat'l Ass'n, 971 F.2d 103, 108 (8th Cir. 1992)). “It conveys broad discretion on federal courts to order stays and payment of costs, but neither costs nor a stay is mandatory.” Cisneros v. Moreno, No. 1:19-CV-1676 JLT PC, 2020 WL 7122074, at *2 (E.D. Cal. Dec. 4, 2020) (internal quotations and citation omitted).

Ms. Voorhees argues that she counterclaimed here “purely in the interest of judicial economy to specifically avoid litigating the same issues of fact and law twice.” (Doc. 24 at 7.) Indeed, Ms. Davis filed this lawsuit only after Ms. Voorhees had filed her defamation claim in state court. And once Ms. Davis did so, Ms. Voorhees filed a notice of dismissal in state court-although the state court clerk had already entered default and Ms. Davis had not yet answered the complaint-and then answered Ms. Davis in federal court, adding her defamation claim as a counterclaim. In fact, Ms. Voorhees' dismissal and re-filing in federal court erased the default and gave Ms. Davis a chance to challenge the defamation claim on the merits, rather than the parties continuing to rack up attorney fees litigating a contentious default.

Ms. Davis disputes Ms. Voorhees' explanation, arguing that the counterclaim not only lacks merit but also that Ms. Voohees in bad faith sought default judgment against Ms. Davis. The Court is not persuaded. According to supplemental filings to the motion to continue, Ms. Davis' active service began nearly a month after she was served with the state court complaint, time during which she could have availed herself of SCRA protections under 50 U.S.C. § 3932 before Ms. Voorhees sought entry default. And in ordering the dismissal, the state court denied Ms. Davis' request to sanction Ms. Voorhees. Standing removed from the state court action and graced with only a handful of the filings there, this Court sees that the parties sparred over entry of default but does not at this time see that either party did so in bad faith.

For her burden, Ms. Davis alleges she incurred needless expenditures in litigating the entry of default. Even if true, she would have continued to litigate the default but for Ms. Voorhees' voluntary dismissal, and now the parties can litigate the merits of Ms. Voorhees claims in federal court. Besides, it appears that litigating the default occurred in good faith: Ms. Davis was served nearly a month before she alleges her active duty began. (Docs. 30-3, 30-10.) She could have filed a motion to stay the proceedings, as authorized under 50 U.S.C. § 3932, but she did not. In such a procedural posture, the Court might expect Ms. Davis to have to make expenditures to expunge an entry of default. The Court in its discretion declines to award costs and stay proceedings under Rule 41(d).

III. Motion to Dismiss

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The task when ruling on a motion to dismiss “is to evaluate whether the claims alleged [plausibly] can be asserted as a matter of law.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Ashcroft v....