Dillow v. Va. Polytechnic Inst. & State Univ.

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ROBERT DILLOW, Plaintiff, v. VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY, et al., Defendants.

No. 7:22cv00280

United States District Court, W.D. Virginia, Roanoke Division

March 2, 2023

MEMORANDUM OPINION

THOMAS T. CULLEN, UNITED STATES DISTRICT JUDGE

While a student at Virginia Polytechnic and State University (“Virginia Tech”), Plaintiff Robert Dillow met another student, Jane Doe, on social media. He and Doe both agreed that they were not looking for a serious relationship but rather just to socialize with new people. So, in January 2020, Doe met Dillow and one of his friends for dinner and drinks to celebrate the friend's birthday. Later that evening, Dillow, Doe, and Dillow's friend returned to Dillow's apartment. Although Doe had driven to the bar she did not feel comfortable driving to Dillow's apartment after drinking, nor did she want to leave her car where she had parked it, so Dillow arranged for another friend to drive Doe's car to Dillow's apartment.

Once they arrived at his apartment, Dillow, Doe, and Dillow's friend played video games and attempted to make brownies. Dillow admits that Doe was in his bedroom as some point, but he has no recollection of engaging in sexual activity. After approximately 90 minutes, Doe fell asleep in Dillow's living room. When she awoke, she called her roommate (who is also her ex-boyfriend) for a ride home. As far as Dillow knew, when Doe left, everything was fine.

The next day, while texting with Doe, Dillow made a comment about finding a condom wrapper on his bedroom floor. He wrote Doe “I found a condom wrapper on the floor so we either f*cked or we decided to blow it up like a balloon ....” Although Dillow asserts that, until that time, there had been no issue between himself and Doe, he claims his joke caused her to believe that he had sexually assaulted her. Dillow vehemently denies that any such assault took place.

Convinced that Dillow had had sex with her against her will, Doe went to the police the same day and formally accused him of rape. A sexual assault PERK^[1]exam was performed on Doe, and investigators interviewed both Dillow and his friend. Approximately a week later, prosecutors declined to bring charges against Dillow because of a lack of evidence.

Doe also contacted the Virginia Tech Title IX office and reiterated her allegations against Dillow. A Title IX investigation was commenced and, approximately 2.5 months later, Dillow was found responsible for the offense of “Sexual Violence-Rape” by a panel of Virginia Tech employees. As a result, he was suspended for two years. Dillow appealed that judgment under the university's Title IX protocol, but he was unsuccessful.

In addition to asserting his innocence of the allegations levied against him, Dillow brought suit in this court against Virginia Tech and several administrators related to the Title IX investigation and trial.^[2] This matter is now before the court on three motions to dismiss:

(1) for improper service (ECF No. 24); (2) for lack of jurisdiction (ECF No. 30); and (3) for failure to state a claim (ECF No. 33).^[3] For the reasons discussed below, the motions to dismiss will be granted and Dillow's claims must be dismissed.

I. Statement of Facts and Procedural Background

The facts are taken from Dillow's Amended Complaint and, at this stage, are presumed to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In January of 2020, both Dillow and Jane Doe were students at Virginia Tech. Dillow is male; Doe is female. In early January 2020, Doe broke up with her boyfriend, but the two of them maintained a close relationship. According to Dillow, Doe and her boyfriend shared an apartment and worked at the same location. (Am. Compl. ¶ 18 [ECF No. 26].)

A few weeks after her break-up, Dillow met Doe on the smartphone app “Tinder.” Although Tinder is considered a dating app, Doe told Dillow that “she was not interested in pursuing a romantic relationship and that she was ‘just looking to go out with people.'” (Id. ¶ 20.) Dillow felt the same way; he told Doe that he thought they would have fun together but that he “just got out of something serious that ended horribly” and was content to just hang out. (Id.) Doe agreed to meet Dillow and his friend (“Friend”) on January 27, 2020, to celebrate Friend's birthday. (Id. ¶ 19.)

At around 7:15 p.m. on January 27, Doe met Dillow and Friend at a restaurant in downtown Blacksburg. Dillow and Friend took a bus to the restaurant; Doe drove herself and parked downtown. At the restaurant, Doe and Dillow each had a mixed drink and a meal.

After dinner, the three of them went to a bar where, over the next two hours, Dow and Dillow had one mixed drink each and shared another cocktail. (Id. ¶¶ 21-22.)

At some point, the group decided to return to Dillow's apartment. Doe was concerned about leaving her car downtown and did not feel comfortable leaving her car overnight, so Dillow arranged for another friend (“Driver”) to pick them up. At about 10:30 p.m., Driver and her boyfriend picked up the group-Driver drove Doe and Dillow, while Driver's boyfriend and Friend took Doe's car back to Dillow's apartment. Everyone arrived at Dillow's apartment around 11:00 p.m. (Id. ¶¶ 23-25.) The group played video games and attempted to make brownies.

At some point, Doe went into Dillow's bedroom and wrote a message on Dillow's whiteboard. Dillow does not recall whether the two of them had sex. Doe ultimately fell asleep on the couch in Dillow's living room around 12:30 a.m. She awoke approximately 30 minutes later and called her ex-boyfriend to pick her up. When she left Dillow's apartment, she kissed him goodbye. (Id. ¶¶ 25-26.)

The next day, Dillow and Doe “texted back and forth in an amicable fashion.” At some point, Dillow texted Doe: “I found a condom wrapper on the floor so we either f*cked or we decided to blow it up like a balloon Lmao.” Dillow contends that this was not an admission that he and Doe had sex; it was only a joke. Doe, however, “came to believe that a sexual assault had occurred.” Doe went to the Blacksburg police that day-January 28-and accused Dillow of sexual assault. (Id. ¶¶ 27-28.)

As part of the initial investigation into her claims, Doe had a sexual assault PERK exam performed. And over the next several days, Blacksburg police took statements from Doe, Dillow, and Friend. Ultimately, the Montgomery County Commonwealth's Attorney “declined to bring charges against [Dillow] due to lack of evidence.” (Id. ¶ 28.)

On February 3, 2020, before the local prosecutor declined to file charges, Doe contacted Virginia Tech's Title IX office and reiterated her allegation that Dillow had sexually assaulted her. On February 11, Defendant Shara Penermon, a Title IX investigator at Virginia Tech, informed Dillow that he was the subject of a Title IX investigation and that he was to have no contact with Doe. (Id. ¶ 30.)

In her role as a Title IX investigator, Penermon was responsible for investigating Doe's complaint and creating an investigation report. Penermon's report contained statements from Doe, her ex-boyfriend, Dillow, Friend, and Driver. The report also contained screenshots of the text messages exchanged between Doe and Dillow, as well as text conversations between Doe and her ex-boyfriend. Although the report contained a copy of the police report, the results of the PERK exam were not included. Penermon submitted her report on March 23, 2020. A hearing was apparently scheduled on Doe's allegations for April 22, 2020.^[4] (Id. ¶¶ 31- 32.)

On April 21, Defendant Shanai Sloan sent Dillow several additional documents that Doe had prepared for the Title IX hearing. Dillow describes the documents as providing “an extremely inflammatory and biased account of the alleged incident that is unmistakably slanted towards Jane Doe's point of view.” Importantly, Doe's new evidence “contain[ed] material assertions that were absent from” Doe's statements during the Title IX investigation. Dillow does not allege that he requested a continuance of the hearing to review and respond to Doe's new evidence, though he asserts that he “did not have time to meaningfully respond to any of the assertions contained” in the new documents.^[5](Id. ¶ 33-34.)

At the Title IX hearing the next day, Defendants Steve Schuh (Virginia Tech's Assistant Director of Student Conduct) and Defendant Rachael Tully (Virginia Tech's Student Conduct Coordinator) were “responsible for reviewing all the information that was provided for the hearing and determining whether [Dillow] committed a violation of Virginia Tech policy.” On April 24, Schuh and Tully informed Dillow “that he was found responsible for the offense of Sexual Violence-Rape.” As a result, Dillow was suspended from Virginia Tech for two years. (Id. ¶¶ 35-36.)

On May 3, 2020, Dillow appealed the decision to Defendant Frances B. Keene, Vice President for Student Affairs at Virginia Tech. On June 16, he was notified that the original decision had been upheld. (Id. ¶ 40.)

Dillow filed suit in this court on June 2, 2022. Defendants Shani Sloan and Rachael Tully appeared specially to move to dismiss the complaint for improper service. (ECF No. 24.) Shortly thereafter, on September 21, Dillow filed an amended complaint. (ECF No. 26.) The remaining defendants-Virginia Tech, Penermon, Schuh, Kathryn Polidoro, Anthony Scott, Keene, and Sloan^[6] filed motions to dismiss for lack of jurisdiction (ECF No. 30) and for failure to state a claim (ECF No. 33). The court heard oral argument on the motions on November 16, 2022. After reviewing the relevant pleadings, the arguments of the parties, and the applicable law, this matter is ripe for disposition.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(...