Nungesser v. Columbia Univ.

244 F.Supp.3d 345

Paul NUNGESSER, Plaintiff,

v.COLUMBIA UNIVERSITY, Trustees of Columbia University, Lee C. Bollinger, Jon Kessler, Thomas Vu–Daniel, and Marianne Hirsch, Defendants.

1:15–cv–3216–GHW

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

Signed March 24, 2017

Andrew Todd Miltenberg, Philip Arwood Byler, Nesenoff & Miltenberg, L.L.P., New York, NY, for Plaintiff.

Michele S. Hirshman, Roberta Ann Kaplan, Darren Wright Johnson, Caitlin Elizabeth Grusauskas, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

In 2013, Paul Nungesser was accused of rape by fellow Columbia University ("Columbia") student Emma Sulkowicz. Sulkowicz filed a complaint with Columbia's Office of Gender–Based Misconduct and, after an investigation and hearing, a panel convened by Columbia found Nungesser "not responsible." Notwithstanding the outcome of Columbia's investigation, Sulkowicz maintained that Nungesser had raped her. Over the course of their final year at Columbia, she became well-known as an activist campaigning to raise awareness of sexual assault on college campuses, and her senior thesis project, known as the Mattress Project: Carry That Weight (the "Mattress Project"), received widespread media attention.

In this lawsuit, Nungesser alleges that Columbia violated his rights under Title IX of the Education Amendments of 1972 ("Title IX") by permitting Sulkowicz, among other things, to carry out the Mattress Project and receive academic credit for it; he also brings various related state-law claims against Columbia, Lee Bollinger (Columbia's President), Jon Kessler (Professor of Visual Arts), Thomas Vu–Daniel (Director of Printmaking and Artistic Director of the LeRoy Neiman Center for Print Studies at Columbia's School of the Arts),¹ and Marianne Hirsch (Director of Columbia's Institute for Research on Women, Gender, and Sexuality). On March 11, 2016, this Court granted Defendants' motion to dismiss the Amended and Supplemented Complaint, but gave Nungesser leave to replead certain of his claims. ECF No. 36. On April 25, 2016, Nungesser filed his Second Amended and Supplemented Complaint ("SAC"), ECF No. 43, which Defendants moved to dismiss on June 15 2016, ECF No. 53.²

The Court's task here is not to weigh in on the social debate regarding sexual assault on college campuses, to comment on best practices, or to render generalized judgments about the fairness of conduct between the parties. Indeed, it is not even the Court's role here to determine the truth. Instead, the Court's role is limited to determining whether, viewed through the lens of the relevant pleading standards, Nungesser has stated a claim for relief within the meaning of the substantive law that he invokes based upon the facts that he pleads. See Doe v. Columbia Univ. , 831 F.3d 46, 48 (2d Cir. 2016) ("[A] court at this stage of our proceeding is not engaged in an effort to determine the true facts. The issue is simply whether the facts the plaintiff alleges, if true, are plausibly sufficient to state a legal claim."). Because Nungesser has not cured the deficiencies identified in the Court's March 11, 2016 opinion, the Court concludes that he has not adequately pleaded the claims that he has chosen to pursue here. Accordingly, Defendants' motion to dismiss is GRANTED.

I. BACKGROUND³

A. The Events at Issue

Plaintiff Paul Nungesser, a German national, is a 2015 graduate of Columbia University. SAC ¶ 2. During his freshman year, Nungesser developed a close friendship with fellow student Emma Sulkowicz. SAC ¶ 13. Nungesser and Sulkowicz became "friends with benefits and had sex on three occasions," but Nungesser "did not want to pursue a romantic relationship with Sulkowicz." Id. According to the SAC, Sulkowicz was "unable to accept his rejection" and "sought revenge." SAC ¶¶ 14, 24.

In April 2013, Sulkowicz filed a complaint with Columbia's Office of Gender–Based Misconduct alleging that Nungesser had sexually assaulted her. SAC ¶ 15. Nungesser maintains that Sulkowicz's accusation was false. Id. He alleges that Sulkowicz's goal, "which she stated repeatedly during the investigation, was to have [him] expelled from Columbia, knowing that it would also force [him] to leave New York and the United States." Id. In furtherance of that goal, Sulkowicz "started spreading rumors in order to motivate others to join her campaign against" him. SAC ¶ 16. Shortly after filing her complaint with the Office of Gender–Based Misconduct, Sulkowicz "encouraged the President of ADP to notify its alumni board and several members that an alleged rapist was living at ADP." SAC ¶ 16 n.6.⁴ She also "instigated others" to file false accusations against him. SAC ¶ 15. Three other individuals (two women and one man) did so. SAC ¶ 15 n.5.

In response to Sulkowicz's complaint, the Office of Gender–Based Misconduct conducted a seven-month investigation, including "countless interviews, hearings, written statements, meetings and several dozens of e-mails as part of the fact finding process." SAC ¶ 11. On November 1, 2013, a Columbia Hearing Panel found Nungesser "not responsible" for the allegation of sexual assault and dismissed the charge against him. SAC ¶¶ 11–12. Sulkowicz unsuccessfully appealed the Panel's finding. SAC ¶ 17. Nungesser was also "fully exonerated" by Columbia from the accusations made by the other three students. SAC ¶ 15 n.5.

As alleged in the SAC, Sulkowicz "claimed that her allegations were swept under the rug." SAC ¶ 19. The Hearing Panel's conclusion that Nungesser was "not responsible" and the denial of Sulkowicz's appeal "only strengthened Sulkowicz's resolve to have [Nungesser] removed from campus," and she "sought other means" to do so. SAC ¶¶ 17, 24. Nungesser similarly alleges that "Sulkowicz had failed to get [him] expelled from Columbia with her false allegations," and that "[b]ecause [he] successfully participated in the investigation against him and proved his innocence as well as the baselessness of her allegations, Sulkowicz became furious." SAC ¶ 41. Nungesser describes the events that followed as "an unprecedented harassment campaign." SAC ¶ 18.

Soon after Sulkowicz's appeal was denied, she contacted a reporter from The New York Post and identified Nungesser by providing his name, dorm address, and e-mail. SAC ¶ 25. On December 4, 2013, a reporter and photographer from The Post "ambushed" him at the entrance to his dorm and confronted him with Sulkowicz's accusations. Id. The same day, Nungesser's parents sent an email to Columbia President Bollinger, Provost Coatsworth, and Title IX Coordinator Melinda Rooker, reading:

Dear President Bollinger, dear Provost Coatsworth, dear Melissa Rooker, with utter bewilderment we have just learned that our son was ambushed outside his residence by two reporters from the New York Post who were informed about the accusations against our son. (...) This retaliatory action represents a blatant violation of the Confidentiality Agreement according to Columbia policy. (...) We feel that Columbia shares a significant responsibility for the escalation which now takes place: There was clear evidence from early on during the investigation that the complainant was defaming our son. Her repeated violations of the Confidentiality Agreement remained without consequences. Given the fact that our son—though innocent—has endured almost seven months of severe so called "interim measures," it is now high time that sanctions against those responsible for this public defamation be imposed. (...). Let us also know what actions are taken by Columbia to restore the good name of our son, especially, but not only, if an article should appear in the New York Post .

SAC ¶ 25 n.19. Nungesser alleges that Columbia "failed to initiate an investigation" or to take any action in response to this email. SAC ¶ 26.

Shortly thereafter, an article appeared in The Post entitled "Columbia drops ball on jock ‘rapist’ probe: students." SAC ¶ 25 n.17. The article "suggest [ed] that all three students that are part of the campaign initiated by Sulkowicz [had] spoken with" the reporter, but it did not contain Nungesser's name. Id. Sulkowicz also provided information to a student reporter, who subsequently published a two-part article on Columbia's student news blog, BWOG. SAC ¶ 28. While the article used pseudonyms, it "contained a plethora of details, making [Nungesser] easily identifiable to a large part of the Columbia community." Id. Nungesser was "urged" by Columbia administrators not to comment when the BWOG reporter requested a comment from him before publishing the article. SAC ¶ 29.

In early April 2014, Sulkowicz appeared publicly at a press conference with Senator Kristen Gillibrand on the Columbia campus. SAC ¶ 30. According to the SAC, "Sulkowicz presented herself as a survivor of sexual violence, thus making [Nungesser] clearly identifiable to her friends as the alleged perpetrator." Id. In May 2014, Sulkowicz published an op-ed in Time Magazine entitled "My Rapist is Still on Campus." SAC ¶ 33. The op-ed did not identify Nungesser by name. See id. n.29.

In May 2014, while Nungesser was spending a semester studying abroad in Prague, his name was made public in connection with Sulkowicz's allegations for the first time. On May 14, 2014, Sulkowicz filed a police report "in order to have [Nungesser's] full name printed in the press." SAC ¶ 34. Nungesser alleges that she "leaked the report immediately to George Joseph, Title IX activist at Columbia," who contacted Nungesser via email the following day about it. SAC ¶ 34 & n.32. On May 16, 2014, Columbia's student newspaper, the Columbia Spectator, and its student news blog, BWOG, published articles identifying Nungesser by his full name. SAC ¶ 34. Also in May 2014, a "rapist list" that identified Nungesser as a "serial rapist" appeared on campus in flyers and on graffiti. SAC ¶ 32. According to the SAC,...