Doe v. Syracuse Univ.

468 F.Supp.3d 489

John DOE #1, John Doe #3, and John Doe #5, Plaintiffs,

v.SYRACUSE UNIVERSITY, Kent Syverud, individually and as Chancellor of Syracuse University, Robert Hradsky, individually and as Syracuse University Dean of Students and Associate Vice President of the Student Experience, and Teresa Abi-Nader Dahlberg, individually and as the Dean of the College of Engineering and Computer Science, Defendants.

5:18-cv-00496 (BKS/ML)

United States District Court, N.D. New York.

Signed June 19, 2020

For Plaintiffs: Karen G. Felter, Kevin E. Hulslander, David M. Katz, Smith, Sovik, Kendrick & Sugnet, P.C., 250 South Clinton Street, Suite 600, Syracuse, NY 13202.

For Defendants: John G. Powers, Hancock Estabrook, LLP, AXA Tower I, Suite 1500, 100 Madison Street, Syracuse, NY 13202, David W. DeBruin, Ishan K. Bhabha, Jenner & Block LLP, 1099 New York Avenue, N.W., Suite 900, Washington DC 20001-4412.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

Three John Doe plaintiffs ("Plaintiffs") bring this diversity action against Defendants Syracuse University (the "University"), Kent Syverud, Robert Hradsky, and Teresa Abi-Nader Dahlberg, alleging: (1) two breach of contract claims (First and Third Claims), (2) violations of the implied duty of good faith and fair dealing (Second Claim), and (3) defamation claims (Fourth Claim). (Dkt. No. 60). Presently before the Court is Defendants’ motion to dismiss Plaintiffs’ Third Amended Complaint.¹ (Dkt. No. 44). The parties have filed responsive papers, (Dkt Nos. 89, 93), and supplemental briefings regarding a related decision in New York state court. (Dkt. Nos. 97, 98, 113–15). The Court heard oral argument on the motion on June 11, 2020. For the reasons set forth below, Defendants’ motion is granted in part and denied in part.²

II. FACTS³

A. The Parties

Plaintiffs "are suspended students who were prospective and current members of the Syracuse University chapter of Theta Tau, a professional engineering fraternity." (Dkt. No. 60, ¶ 2). The Amended Complaint was brought by nine suspended students proceeding under pseudonyms. (Dkt. No. 26). Six of these plaintiffs have since been dismissed from this action by stipulation of the parties. (Dkt. Nos. 100, 104). Thus, three Plaintiffs remain—John Does #1, 3, and 5. Plaintiffs are domiciled in Massachusetts, New Jersey, and New Hampshire, respectively. (Dkt. No. 60, ¶¶ 8, 10, 12).

Defendants are: (1) Syracuse University, "a private university located in Syracuse, New York"; (2) Kent Syverud, the University's Chancellor; (3) Robert Hradsky, the University's Dean of Students and Associate Vice President of the Student Experience; and (4) Theresa Abi-Nader Dahlberg, the University's Dean of the College of Engineering and Computer Science. (Id. ¶¶ 17–20). The University is chartered in New York, and Defendants Syverud, Hradsky, and Abi-Nader Dahlberg are all domiciled in New York. (Id. ¶¶ 22(j)–(m)).

B. The Roast

"Theta Tau is the oldest and largest co-educational fraternity devoted to engineers in the country." (Id. ¶ 24). The University's chapter of Theta Tau (the "Chapter") "had forty-eight members" (the "Members") and "a sixteen-member new recruit cohort" (the "Prospective Members") at the time relevant to this action. (Id. ¶ 25). The Chapter includes twenty-eight diverse members, including foreign nationals, African Americans, Asian Americans, Indian Americans, and Central Americans. (Id. ¶ 25). The Chapter has a tradition where Prospective Members "roast" Members, which "afford[s] new recruits the opportunity to satirize existing fraternity members" by "writ[ing] and/or act[ing] in skits which poke[ ] fun at existing members of the fraternity based on their notable reputations, personalities, and/or infamous conduct." (Id. ¶¶ 26–27). This roast is "traditionally referred to as ‘Pledge Porno.’ " (Id. ¶ 27). "The stories were traditionally both sexual and non-sexual but many typically focused on members’ dating success or lack thereof and their existing relationships." (Id. ).

On March 30, 2018, "[n]ewly inducted pledges of Theta Tau[ ] performed the roast/skits in the basement of the Chapter house for members only." (Id. ¶¶ 26, 28). There were approximately 25–30 Members and 16 Prospective Members present. (Id. ¶ 28). "One member of the Chapter recorded the proceedings for members who could not attend the roast." (Id. ). This recording was then "posted in a private Facebook group, which was only accessible to Chapter members." (Id. ).

The roast began by a Prospective Member narrating in Spanish. (Id. ¶ 29). "[O]ne of the first scenes," entitled "The Trilogies of Tri Kappa (KKK)," presented "a satirical fraternity headed by a racist who was trying to integrate members of his ‘once great’ fraternity to ‘his newly formed white empire.’ " (Id. ¶ 30). The narrator described KKK as the "main enemy" of Theta Tau. (Id. ). This scene "satirized an existing fraternity brother who was a Donald Trump supporter." (Id. ). In the scene, "he was portrayed as a red neck, ‘back woods’ figure, who forced his pledges to undergo an ‘anointing’ by taking an oath to ‘always have hate in [his] heart’ for ‘niggers,’ ‘spics,’ and the ‘fuckin’ kikes.’ " (Id. ). The Prospective Member who pretended to take the racist oath was Jewish. (Id. ¶ 31). After he swore this oath, he called two Prospective Members "portraying Jewish members of Tri Kappa" " ‘fuckin’ kikes,’ and told them to ‘get in the fuckin’ shower.’ " (Id. ¶ 31). An audience member is heard stating that went "too far."⁴ The Prospective Member who performed the role of the racist was not a bigot. (Id. ). Plaintiffs allege that "[i]t was evident to everyone in attendance who knew the individuals involved that the ‘KKK skit’ was exaggerated satire showing the ignorance and absurdity of actual racists." (Id . ¶ 32).

In another skit, "an existing fraternity brother, who was known to talk incessantly about his girlfriend, was portrayed as ‘brain dead’ and ‘retarded’ as a result of ‘being chronically whipped’ by his controlling girlfriend." (Id. ¶ 34). "The story depicted the member unable to communicate about anything other than how much he loved his girlfriend and even unaware that he was being ‘light rape[d]’ as he sat in a wheelchair."⁵ (Id. ). There were "at least seven" other skits that "included offensive language and extensive references to and portrayal of sexual acts." (Id. ¶ 35). "A few of the skits included references to imaginary homosexual acts and feelings by or between brothers who were known to be close." (Id. ). According to Plaintiffs, "[t]he performances were raunchy, offensive and full of rank stupidity." (Id. ¶ 36).

C. The University's Response

On or before April 18, 2018, "a then unknown but since identified third party viewed the recordings of the roast on a computer or laptop and made a secondary unauthorized recording using a cell phone video application." (Id. ¶ 38). The individual "then sent the cell phone recordings to the University and The Daily Orange ." (Id. ). On April 18, 2018, "recordings of the Roast were disseminated to the University and others." (Id. ¶ 39). The roast "was captured in nine recorded clips, which were all given to University officials." (Id. ). Only "two of the nine clips were released to the public by The Daily Orange ," the first on April 18 and the second on April 21, 2018. (Id. ). These clips became "the subject of local and national attention." (Id. ). There were "campus-wide protests, demonstrations, and outrage." (Id. ¶ 43).

On April 18, 2018, Chancellor Syverud sent a message to the campus community, stating that "[e]arlier today, the University learned of extremely troubling and disturbing conduct at one of our professional fraternity chapters, Theta Tau." (Dkt. No. 60-1, at 2; Dkt. No. 60, ¶ 41). He stated the videos "include[d] words and behaviors that are extremely racist, anti-semitic, homophobic, sexist, and hostile to people with disabilities." (Dkt. No. 60-1, at 2). He noted that the Chapter had been "immediately suspended" and the Department of Public Safety had "launched a formal investigation to identify individuals involved and to take additional legal and disciplinary action." (Id. ). On April 20, Dean Abi-Nader Dahlberg wrote a message to the University community stating that "[a] series of videos was uncovered that showed some members of the Theta Tau professional engineering fraternity using racist, anti-Semitic, homophobic, sexist, and ableist language."⁶ (Dkt. No. 60-1, at 12).

"Detective Michael Toia and other University detectives conducted interviews of all Plaintiffs and dozens of other members." (Dkt. No. 60, ¶ 45). "Interviewed members consistently explained that the Roast was a skit, a roast, that the participants consented to performing or viewing the Roast, and that the students had no intent to harass or offend anyone." (Id. ). Between April 19 and 23, 2018, "University officials suggested or stated that the video clips depicted harmful, offensive, and even violent or criminal conduct as well as the seriously held views of the participants," "[n]otwithstanding Defendants’ full knowledge" that the Members and Prospective Members claimed that the skits were satirical. (Id. ¶¶ 45–46). Specifically, Chancellor Syverud gave a public address where he stated that the videos were "racist, anti-Semitic, homophobic, sexist, and ableist." (Dkt. No. 60-1, at 4; Dkt. No. 60, ¶ 47(a)). After the second video clip was released, Chancellor Syverud sent a message to the campus community stating that "an additional video" had been released by the Daily Orange, and this video "depicts sexual assault, physical violence and grotesque hostility toward and mockery of people with physical, intellectual, and other disabilities." (Dkt. No. 60-1, at 18). He further stated that "this additional video is part of the evidence Syracuse University received on Wednesday and immediately referred for potential...