Spagna v. Park Ave. Phi Psi House, Inc.

478 F.Supp.3d 813

Teresa SPAGNA, Plaintiff,

v.PARK AVENUE PHI PSI HOUSE, INC., a non-profit corporation; Collin Gill, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Daniel W. Tift, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Jonah M. Buss, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Cody M. Casper, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Troy M. Taylor, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Alan J. Anderson, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; David Meler, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Brendan Tobin Rezich, individually and as an agent of Phi Kappa Psi Fraternity, Inc. and the Nebraska Beta Chapter of Phi Kappa Psi Fraternity; Phi Kappa Psi Fraternity, Inc., a non-profit Corporation; and Nebraska Beta Chapter of Phi Kappa Psi Fraternity, an unincorporated association, Defendants.

8:19CV481

United States District Court, D. Nebraska.

Signed August 13, 2020

Matthew A. Lathrop, Law Office of Matthew A. Lathrop, Omaha, NE, for Plaintiff.

Amy M. Locher, Douglas W. Krenzer, Locher, Pavelka Law Firm, Omaha, NE, for Defendant Daniel W. Tift.

Amy M. Locher, Douglas W. Krenzer, Locher, Pavelka Law Firm, Mary K. Navratil, Rodney C. Dahlquist, Jr., Dornan, Troia Law Firm, Omaha, NE, for Defendant Jonah M. Buss.

Amy M. Locher, Douglas W. Krenzer, Locher, Pavelka Law Firm, Karen K. Bailey, Engles, Ketcham Law Firm, Omaha, NE, for Defendant Cody M. Casper.

Amy M. Locher, Douglas W. Krenzer, Locher, Pavelka Law Firm, Andrew T. Braun, David J. Myers, Berkshire, Burmeister Law Firm, Omaha, NE, Douglas L. Phillips, Timothy A. Clausen, Klass Law Firm, Sioux City, IA, for Defendant Alan J. Anderson.

Amy M. Locher, Douglas W. Krenzer, Locher, Pavelka Law Firm, Joseph P. Naatz, Kreikemeier Law Offices, Omaha, NE, for Defendant David Meler.

MEMORANDUM AND ORDER

Laurie Smith Camp, Senior United States District Judge

This matter is before the Court on Motions to Dismiss filed by Defendants Brendan Rezich, ECF No. 107; Troy Taylor, ECF No. 109; Collin Gill, ECF No. 116; Park Avenue Phi Psi House, Inc. (Park Avenue), ECF No. 129; and Phi Kappa Psi Fraternity, Inc. (National Fraternity), ECF No. 131. For the following reasons, the motions will be granted.

BACKGROUND

The following facts are those alleged in the Amended Complaint, ECF No. 92, and are assumed true for purposes of this motion.

I. Parties

Plaintiff Teresa Spagna is a citizen of Illinois and the victim of Defendants’ alleged negligence.

The National Fraternity is an Indiana non-profit corporation with its principal place of business in Indianapolis, Indiana. The National Fraternity oversees the operations of chapters such as Defendant Nebraska Beta Chapter of Phi Kappa Psi Fraternity (Chapter). The Chapter is authorized by the National Fraternity to initiate members into both the Chapter and the National Fraternity.

Park Avenue is a Nebraska non-profit corporation. It is managed by a board of directors composed of members of the Chapter and the National Fraternity. Park Avenue operates as the property manager of the Chapter's house located on Farnam Street in Omaha, Nebraska (Chapter House).

Defendant Gill is a citizen of Minnesota and, at all relevant times, was president of the Chapter. Defendants Taylor and Rezich are citizens of Nebraska and, at all relevant times, were officers of the Chapter. The remaining individual Defendants, who have not filed motions to dismiss, Daniel Tift, Jonah Buss, Cody Casper, Alan Anderson, and David Meler, are citizens of Minnesota, Nebraska, California, Wisconsin, and Ohio, and were, at all relevant times, officers of the Chapter.

II. Factual History

In 2016, Creighton University (Creighton) investigated reports of hazing and underage drinking within the Chapter. Following the investigation, Creighton determined that the Chapter violated provisions of Creighton's Student Conduct Policy, its Greek Event Guidelines, and state law. Creighton placed the Chapter on social probation as a result of these findings. The terms of the Chapter's probation required that the Chapter follow state and local law, as well as Creighton event guidelines, and educate its members about Creighton's drug and alcohol policies. The Chapter was also prohibited from the use of alcohol and drugs at its events, including rush¹ and initiation activities. The National Fraternity was informed of the results of Creighton's investigation and agreed to ensure the Chapter's compliance with the terms of its probation.

The National Fraternity did not take action to intervene in the Chapter's operations; the Chapter informed the National Fraternity that its rush and initiation activities, beginning in January 2017, would continue to include hazing and drug and alcohol use; and the National Fraternity encouraged these behaviors.

Christopher Wheeler participated in the 2017 rush and accepted a bid to join the Chapter. Wheeler then participated in the Chapter's initiation activities which began on January 30, 2017. Most initiation activities took place at the Chapter House. Throughout the initiation activities, new members—referred to as pledges—were required to surrender their cell phones and were instructed to keep all activities secret. New members, including those who were underage, were forced to consume alcohol to the point of vomiting and loss of consciousness. Sober drivers were used to bring the new members home. The activities also included physical violence, withholding of food and water, and a "slave auction." The National Fraternity encouraged these activities, and the individual Defendants conducted them.

On Friday, February 3, 2017, members of the Chapter tested the pledges on their knowledge of local and national Phi Kappa Psi trivia. The members told the pledges they would not be initiated to the Chapter if they failed. Wheeler failed the test. The pledges who failed the first test took the test again on February 10, 2017. When the test was over, members told pledges they must go to the Chapter House for more initiation events which included drinking.

At the Chapter House, members of the Chapter, including the individual Defendants, provided the pledges with alcohol and permitted them to bring their own. Throughout the night, the Chapter members and pledges consumed alcohol at the Chapter house and at a local bar, despite some of the pledges being underaged. Wheeler joined the individual Defendants in Gill's room where Gill provided Wheeler with more alcohol. A member of the Chapter then produced a water bong and Defendants required Wheeler to smoke marijuana in Gill's room.

Shortly before 1:00 a.m., Chapter members brought Wheeler to Creighton's campus and left him alone. People who knew Wheeler encountered him and noticed that he was confused, out of character, and belligerent. Wheeler wandered into Gallagher Hall around 1:00 a.m.

Spagna was a resident of Gallagher Hall. She left her door unlocked that night because she was ill, and her friends were going to check on her when they returned to campus. Wheeler entered Spagna's unlocked room and stood in place for several minutes despite Spagna asking him to leave. When Wheeler turned to leave, Spagna noticed that Wheeler had dropped his keys. Spagna grabbed Wheeler's keys and approached him to return them. As Spagna neared Wheeler, he turned and cut her across the neck with a pocketknife.

III. Procedural History

Spagna brought this action on October 31, 2019. Compl., ECF No. 1. The Court granted motions to dismiss filed by Defendants Buss and the National Fraternity on February 12, 2020. Mem. & Order, ECF No. 78. Spagna filed an Amended Complaint on April 3, 2020. Am. Compl., ECF No. 92. Defendants Rezich and Taylor filed Motions to Dismiss on April 17, 2020. Defendant Gill filed a Motion to Dismiss on May 1, 2020. Defendants Park Avenue and the National Fraternity filed Motions to Dismiss on June 2, 2020.²

STANDARD OF REVIEW

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am. , 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Barton v. Taber , 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Zink v. Lombardi , 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ), cert. denied , 576 U.S. 1083, 135 S. Ct. 2941, 192 L.Ed.2d 976 (2015). The complaint's factual allegations must be "sufficient to ‘raise a right to relief above the speculative level.’ " McDonough v. Anoka Cnty. , 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). The Court must accept factual allegations as true, but it is not required to accept any "legal conclusion couched as a factual allegation." Brown v. Green Tree Servicing LLC , 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). Thus, "[a]...