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Doe v. Trustees of Boston College

United States District Court, D. Massachusetts

October 4, 2016

JOHN DOE, et al., Plaintiffs,


          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiffs John Doe (“Doe”), Mary Doe (“Mary”) and James Doe (“James”) (collectively, “Doe”)[1] have filed this lawsuit against Defendants Trustees of Boston College (“BC”) and various BC administrators Paul Chebator (“Chebator”), Carole Hughes (“Hughes”), Catherine-Mary Rivera (“Rivera”), Patrick J. Keating (“Keating”) and Barbara Jones (“Jones”) (collectively, “Individual Defendants”), for the disciplinary action that BC took against Doe for a sexual assault, denied by Doe, of a fellow student. Plaintiffs allege that the process that led to Doe's suspension violated BC's express and implied contract with its students, failed to provide a fair process for Doe, violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”), amounted to negligence and both negligent and intentional infliction of emotional distress. D. 1. Doe has moved to amend the complaint and add Joseph Herlihy (“Herlihy), BC's General Counsel, as a defendant. D. 51. Doe has moved for partial summary judgment on Count I (breach of contract) and Count IV (breach of the duty of fairness). D. 64. BC has moved for summary judgment on all counts. D. 67. Individual Defendants have moved for summary judgment on all counts related to them. D. 69. For the reasons stated below, the Court DENIES Doe's motion to amend its complaint, DENIES Doe's partial motion for summary judgment, ALLOWS BC's motion for summary judgment and ALLOWS Individual Defendants' motion for summary judgment.

         II. Standard of Review

         A. Motion to Amend

         Under Fed.R.Civ.P. 15(a), leave to amend will be freely given when justice so requires. Once the Court enters a scheduling order, however, “case law clearly establishes that Rule 16(b)'s ‘good cause' standard, rather than Rule 15(a)'s ‘freely give[n]' standard governs motions to amend filed after scheduling order deadlines” have expired. Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013) (quoting Flores-Silva v. McClintock-Hernández, 710 F.3d 1, 3 (1st Cir. 2013)); United States ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 194 (1st Cir. 2015). When evaluating motions under the “good cause” standard, the Court focuses predominantly on the diligence (or lack thereof) of the moving party, in addition to assessing the prejudice to the party-opponent. Flores-Silva, 710 F.3d at 3 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)); O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir. 2004) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

         B. Summary Judgment

         The Court grants summary judgment when no genuine dispute of material fact exists and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Facts are material if they carry the potential to affect the outcome of the suit under applicable law. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant must show the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). If the movant meets that burden, the non-moving party must “with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor, ” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010), instead of merely resting upon allegations or denials in the pleadings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In deciding a summary judgment motion, the Court views the record in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         Unless otherwise noted, the following undisputed material facts are drawn from the parties' statements of material facts and their responses.[2]

         A. The Alleged Sexual Assault

         In Fall 2012, Doe[3] was a senior at BC. D. 65 ¶ 2; D. 74 ¶ 2; D. 10 ¶ 13. On October 20, 2012, Doe attended a BC event on the Spirit of Boston cruise ship to cover the event for BC's school newspaper. D. 65 ¶¶ 2, 3; D. 74 ¶¶ 2, 3. Doe is 6'4” tall and, at the time, was wearing a purple shirt. D. 65 ¶ 5; D. 74 ¶ 5. Around 11:30 p.m., Doe moved across the dance floor. D. 65 ¶ 5; D. 74 ¶ 5. He was moving and dancing his way across the packed dance floor to reach some of his friends. D. 65 ¶ 5; D. 74 ¶ 5. Doe later testified that, as he was crossing the dance floor, a woman turned and screamed at him. D. 65 ¶ 6; D. 74 ¶ 6. A few minutes later, security guards escorted Doe away, and when the ship docked, Massachusetts State Police arrested Doe who was not released on bail until early the following morning. D. 65 ¶¶ 7-9; D. 74 ¶¶ 7-9; D. 71 ¶ 19. Forensic evidence specialists took several swab samples from Doe's hands, fingers and fingernails and took his clothes. D. 65 ¶ 9; D. 74 ¶ 9; D. 65-2 at 3.

         Police arrested Doe because “AB, ” a BC sophomore who was on the dance floor, stated that she felt a hand go up her clothing and two fingers were inserted into her anus. D. 65 ¶ 10; D. 74 ¶ 10. When AB turned around, she stated she saw a lone white male wearing a purple shirt. D. 65 ¶ 10; D. 74 ¶ 10; D. 71 ¶ 17. AB's friend, Betsy, who was her dancing partner at the time, but who did not see the assault, stated that AB told her that a tall male with brown hair and a purple shirt stuck his fingers between her legs. D. 65 ¶ 11; D. 74 ¶ 11.

         Doe testified that another male individual, “JK, ” was crossing the dance floor at the same time as he did. D. 65 ¶ 6; D. 74 ¶ 6. Doe further testified that when AB screamed at Doe, JK said, “Sorry, dude, that was my bad.” D. 65 ¶ 6; D. 74 ¶ 6. After Doe was taken away by security guards, Doe told his friend that “JK must have done something.” D. 65 ¶ 7; D. 74 ¶ 7. After Doe was removed from the ship, JK texted Doe's friend to see if Doe was alright. D. 65 ¶ 12; D. 74 ¶ 12. The following day, JK texted another one of Doe's friends, asking why and how Doe got in trouble. D. 65 ¶ 13; D. 74 ¶ 13. JK also texted Doe the following day, asking what had happened the night before and stating he had no recollection of the boat cruise. D. 65 ¶ 14; D. 74 ¶ 14.

         In the immediate aftermath of the criminal charges, Doe hired legal counsel who in turn hired Kevin Mullen, a former Boston Police Department Sergeant Detective, as a private investigator. D. 65 ¶¶ 15-16; D. 74 ¶¶ 15-16. Given Doe's observations of JK on the dance floor and JK's apparent interest in Doe's arrest, Doe phoned JK on October 22, 2012 and Mullen listened to their conversation. D. 65 ¶ 17; D. 74 ¶ 17. In the conversation, JK reiterated that he had no recollection of the cruise and did not confirm his “Sorry, dude, that was my bad” statement to Doe, but merely responded that such a statement was “weird.” Id. A week later, Mullen interviewed JK in person. D. 65 ¶ 18; D. 74 ¶ 18. JK indicated that he now had a good memory of the evening, denied calling or texting after the cruise about Doe and failed to recall if he crossed the dance floor with Doe or made the “Sorry, dude” statement that Doe claimed that he had. Id.

         B. The Criminal Case Against Doe

         The day after the incident, on October 22, 2012, the Suffolk District Attorney's Office charged Doe in state district court with indecent assault and battery on a person age 14 or older and he was arraigned that same day. D. 65 ¶¶ 15, 19; D. 74 ¶¶ 15, 19; D. 71 ¶ 22. In discovery for the criminal case, forensic testing of Doe's hands were negative for blood traces. D. 65 ¶ 20; D. 74 ¶ 20. The results of this forensic testing, however, was not available until February 2013, some four months after the incident. D. 65 ¶ 20; D. 74 ¶ 20. The testing was negative for the presence of blood, id., but the record does not indicate DNA testing, but rather the preservation of the swaps for possible later “possible recovery of DNA.” Id.; D. 65-13 at 3. Doe's defense attorney also obtained a copy of the surveillance video recorded on the cruise and later had that video forensically enhanced and analyzed. D. 65 ¶¶ 21-22; D. 74 ¶¶ 21-22. In May 2014, the Commonwealth moved for a dismissal of the charges against Doe. D. 65 ¶ 27; D. 74 ¶ 27. The state court granted this motion and the criminal charges against Doe were dismissed. D. 65 ¶ 27; D. 74 ¶ 27.

         C. University Disciplinary Proceedings Against Doe

         1. BC's 2012-2013 Procedures Concerning Sexual Assault Allegations

         For the 2012-2013 academic calendar, BC had three written procedures related to sexual assault accusations: (1) Section 4 of the 2012-2013 Student Guide (“Student Guide”); (2) Section 5 of the Student Guide; and (3) the Conduct Board Procedure. D. 65 ¶ 29; D. 74 ¶ 29; D. 71 ¶ 24. These procedures were administered by the Vice President for Student Affairs through the Dean of Students and the Dean's staff. D. 65 ¶ 33-34, D. 74 ¶ 33-34. Read together, these procedures provided the investigatory and adjudicatory procedures for students charged with sexual assault.

         These documents provide that students have “the right to a fair procedure which is appropriate to the circumstances” as well as “[t]he right to have access to a process through which to resolve deprivations of rights.” D. 65-17 at 3; D. 65 ¶ 31, D. 74 ¶ 31. The procedures also explain that “deviations from prescribed procedures will not necessarily invalidate a decision or proceeding unless significant prejudice to a student or the University may result.” D. 65-18 at 1; D. 71 ¶ 25.

         The policies and procedures explain the disciplinary hearing process for sexual assault accusations. First, the rules provide that an investigation includes “a review of statements obtained from either party, interviews with the complainant and the accused (if identified), interviews with appropriate witnesses, and a review of other relevant information.” D. 65-17 at 16; D. 65 ¶ 34(b); D. 74 ¶ 34(b). After the investigation is complete, BC “will take appropriate action.” D. 65-17 at 16; D. 65 ¶ 34(b); D. 74 ¶ 34(b).

         The rules also explain the pre-hearing process. These rules provide “[i]f the complainant proceeds with both a disciplinary complaint and a criminal complaint, the University conduct process will normally proceed while the criminal action is in process, ” but “the Office of the Dean of Students may elect to stay the disciplinary process if a student is summarily suspended and the criminal matter remains open.” D. 65-17 at 17; D. 65 ¶ 34(b); D. 74 ¶ 34(b). Next, the Student Guide states that allegations of sexual assault may lead to immediate suspension and must be “followed within a reasonable period of time . . . by a conduct hearing to resolve the incident.” D. 71 ¶ 26; D. 75 ¶ 26. When a student has been accused of sexual assault, he/she “will be called by the Dean of Students or designee to discuss the complaint.” D. 65-18 at 3; D. 65 ¶ 34(a); D. 74 ¶ 34(a); D. 71 ¶ 28. In addition, “[w]hen a matter is referred to a board, the accused student will be sent a copy of the conduct procedures, ” D. 65-18 at 4; D. 65 ¶ 34(e); D. 74 ¶ 34(e), and “the accused student will be sent written notification . . . indicating . . . alleged violations, ” D. 65-19 at 2; D. 65 ¶ 34(e); D. 74 ¶ 34(e), as the student has a “right to be informed of any charges of misconduct.” D. 65-17 at 3; D. 65 ¶ 34(e); D. 74 ¶ 34(e).

         The procedures also provide rules related to the disciplinary hearing. For example, members of the hearing board “must disclose any real or perceived conflicts of interest between themselves and any party . . . .” D. 65-18 at 5; D. 65 ¶ 34(f); D. 74 ¶ 34(f). In addition, both “[t]he complainant and the accused student may be accompanied by an advisor of their choosing, ” but that advisor “is not entitled to address the Board or act in any advocacy capacity at the hearing.” D. 65-18 at 6; D. 65 ¶ 34(f); D. 74 ¶ 34(f). Moreover, the hearing cannot be recorded unless advance written permission is requested from the Dean of Students. D. 65 ¶ 34(f); D. 74 ¶ 34(f). Both students “are entitled to bring witnesses to the hearing or to present other related evidence, ” but the witnesses present must “speak to the facts of the incident they have witnessed.” D. 65-18 at 7; D. 65 ¶ 34(f); D. 74 ¶ 34(f). Finally, BC applies a preponderance of the evidence standard to assess whether a violation has occurred. D. 65 ¶ 34(f); D. 74 ¶ 34(f).

         The policies also outline how the hearing should proceed. It details that “[t]he chairperson will introduce the complaint by reading the formal charges as determined by the Office of the Dean of Students.” D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). The complainant “will then have an opportunity to read his/her incident report to the board and to elaborate on it, ” after which “the accused will then have an opportunity to make a full and accountable response to the complainant.” D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). Then, “[t]he board members may question both the complainant and the accused on all matters relevant” and each party is “given an opportunity to ask questions . . . through the chairperson.” D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). Finally, both parties are “given the opportunity to make a final statement to the hearing board.” D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). Following the hearing the board meets “in private to determine whether the accused is responsible or not for the charge(s)” and renders one of the following decisions with respect to the accused: (1) responsible; (2) not responsible; (3) no finding; or (4) “responsible for a lesser inclusive charge.” D. 65-18 at 5, 7; D. 65 ¶ 34(h); D. 74 ¶ 34(h). “If the decision is ‘responsible, ' the board may recommend sanctions up to and including suspension or dismissal from the University.” D. 65-18 at 5; D. 65 ¶ 34(h); D. 74 ¶ 34(h).

         After a decision, the accused student has “the right to be informed of the outcome of any proceeding.” D. 65-17 at 3; D. 65 ¶ 34(h); D. 74 ¶ 34(h). If the accused student wants to appeal the decision, he or she may do so. D. 65 ¶ 34(i); D. 74 ¶ 34(i). A student can appeal if he or she “can demonstrate that he or she has been denied a fair hearing of the case due to procedural unfairness or can introduce evidence not previously available that would be likely to change the result of the prior hearing.” D. 65-18 at 8; D. 65-19 at 3; D. 65 ¶ 34(i); D. 74 ¶ 34(i). The appeal is due “within five business days after notification of the sanctions.” D. 65-18 at 8; D. 65 ¶ 34(i); D. 74 ¶ 34(i). “The Dean and the Vice President (or their delegated representatives) will review the case and determine if the new evidence or lack of a fair hearing requires consideration” and if so, “they will refer the appeal to the Appeals Board to be reheard in its entirety or refer it back to the original hearing board for further adjudication.” D. 65-18 at 8; D. 65 ¶ 34(i); D. 74 ¶ 34(i).

         2. BC's 2012 Disciplinary Proceeding Against Doe

         After the alleged October 20, 2012 incident, a BC police officer completed a Sexual Assault Notification Form describing AB's allegations against Doe. D. 65 ¶ 37; D. 74 ¶ 37. After receiving the notification, BC put Doe on summary suspension. D. 65 ¶ 37; D. 74 ¶ 37.

         Senior Associate Dean of Students Hughes was put in charge of Doe's university proceeding, D. 65 ¶ 39; D. 74 ¶ 39, the first sexual assault case for which she was in charge. Id. Hughes decided an administrative hearing board should handle the charges against Doe and Associate General Counsel Nora Field confirmed that an administrative hearing board would also be the investigative body. D. 65 ¶¶ 40-41; D. 74 ¶¶ 40-41. Hughes decided that the hearing board would convene within two weeks of report of the October 20, 2012 incident. D. 10 ¶ 62; D. 65 ¶ 42; D. 74 ¶ 42.

         Prior to the hearing Hughes met with Doe, his father James and his mother Mary on three occasions. On October 24, 2012, Hughes met with Doe and James, at which point Hughes told Doe that he would be able to tell his account to the hearing board. D. 65 ¶ 42; D. 74 ¶ 42. At this initial meeting, the parties dispute whether Hughes cut Doe off from explaining his version of events, but agree that during this meeting Doe told Hughes he did not commit assault and the charge against him was a case of mistaken identity. D. 65 ¶ 42; D. 74 ¶ 42; D. 71 ¶ 31. There was some discussion in this meeting, initiated by James, an attorney, about whether BC would delay its hearing until the criminal authorities completed their investigation. D. 65 ¶ 43; D. 74 ¶ 43. Later, Hughes met with Doe and Mary on October 26, 2012 and October 30, 2012. D. 65 ¶ 44; D. 71 ¶ 29; D. 74 ¶ 44. At the October 26, 2012 meeting, Hughes allowed Doe to read AB's statement and also gave Doe the notice of the charges against him, which charged him with sexual assault, and the Conduct Board Procedure documents. D. 65 ¶ 44; D. 74 ¶ 44. On October 30, 2012, Doe met with Hughes and reviewed the BC police report as well as his conduct records. D. 65 ¶ 46; D. 74 ¶ 46. In these latter two meetings, the parties dispute whether Hughes cut Doe off from explaining his version of the events to her. D. 65 ¶ 47; D. 74 ¶ 47.

         The first day of the hearing took place on November 8, 2012 with a hearing board of Chairperson Rivera, two other administrators, law professor Norah Wylie (“Wylie”) and an undergraduate student. D. 65 ¶¶ 51-52; D. 74 ¶¶ 51-52. AB, her parents, her lawyer-advisor, Doe, his parents, his lawyer-advisor, and Herlihy attended the hearing. D. 65 ¶ 54; D. 74 ¶ 54. The hearing proceeded without recording. D. 65 ¶ 55; D. 74 ¶ 55. On the first day of the hearing, the hearing board heard (1) testimony from the complainant, AB; (2) testimony from Doe; and (3) testimony from three of Doe's friends who had been on the Spirit of Boston on October 20th. D. 65 ¶ 55; D. 74 ¶ 55. AB testified about the alleged assault, Doe denied having committed the assault and produced the Spirit of Boston's surveillance recording of the dance floor on the night in question to the hearing board. D. 65 ¶ 55; D. 74 ¶ 55. The hearing board also heard testimony from Doe about what JK had said to him on the dance floor and JK's texts in the aftermath of Doe's arrest and their telephone conversation. Id. Each of Doe's three friends testified that “they didn't see [Doe] bend down or do anything unusual.” D. 65 ¶ 55; D. 74 ¶ 55. The board adjourned so that it could hear additional testimony from Betsy and JK. D. 65 ¶ 56; D. 74 ¶ 56.

         The next day, November 9, 2012, Hughes met with JK and JK's father, explaining that JK was required to attend the second day of the disciplinary hearing but was not being charged with any violations. D. 65 ¶ 58; D. 74 ¶ 58. Hughes also informed Betsy that she would also need to appear at the disciplinary hearing. D. 65 ¶ 57; D. 74 ¶ 57.

         The hearing resumed a week later, on November 16, 2012. D. 65 ¶ 60; D. 74 ¶ 60. Betsy testified that she did not see the assault take place and that Doe stood out on the packed dance floor. D. 65 ¶ 61; D. 74 ¶ 61. At the hearing, JK denied assaulting AB, being intoxicated and telling Doe “Sorry, dude, my bad.” D. 65 ¶ 62; D. 74 ¶ 62. Kevin Mullen, Doe's private investigator, was not allowed to testify on either hearing date. D. 65 ¶ 65; D. 74 ¶ 65. As to Mullen's proposed testimony, Doe informed the board that Mullen would testify about the October 22nd phone call between Doe and JK and Mullen's subsequent interview of JK. Id. After at least consultation with Herlihy by Rivera, the hearing board declined to allow Mullen, who had not be a witness to the alleged incident, to testify. Id. During this second day of the hearing, Doe also requested that the board wait to consider allegedly exculpatory forensic evidence, namely the results of the forensic testing that had not yet been received from the criminal authorities. D. 65 ¶ 63; D. 74 ¶ 63. Doe argued that given the nature of AB's allegations, namely that he had allegedly inserted two fingers in her anus, negative test results would exonerate him. Id.

         After the second day of testimony ended, the board began to deliberate, but did not reach a decision that day. D. 65 ¶ 67; D. 74 ¶ 67. Rivera, the chairperson, told Hughes that the board was struggling with the need to see the other evidence. D. 65 ¶¶ 51, 67; D. 74 ¶¶ 51, 67. Rivera also told Hughes that the board was struggling with its decision and was contemplating a “no finding” result. D. 65 ¶ 68; D. 74 ¶ 68. Hughes relayed to Rivera that Dean of Students Chebator discouraged “no finding” results. D. 65 ¶ 68; D. 74 ¶ 68.

         The board resumed its deliberations the following Monday, November 19, 2012. D. 65 ¶¶ 67, 69; D. 74 ¶¶ 67, 69. On November 21, 2012, the board concluded that Doe was “responsible” for indecent assault and battery on AB. D. 65 ¶ 69; D. 74 ¶ 69; D. 65-44 at 2; D. 65-49 at 3. The board's ruling was based upon the following findings of fact:

(1) The board “does not doubt that an unwanted touching in a sexual nature occurred to AB on the boat cruise;”
(2) “[G]iven that this happened in a matter of seconds (the time it took Betsy to look away) and given that AB's reaction was not one sudden pain, it seems less likely than not that the perpetrator achieve penetration;”
(3) “AB and Betsy testified that they did not see anyone else behind AB other than John;”
(4) “Betsy was the only witness in the hearing to indicate that she did not drink that evening, and does not drink in general. So her statement of the scene and not identifying anyone else behind AB was especially noteworthy. So too was the fact that she did not notice JK, who was dressed in a manner that would attract attention and who was very active and noticeable on the dance floor according to a number of witnesses;”
(5) “John was certain that JK was the perpetrator, however, no one other than John places JK at the scene of the incident. John himself said he did not see JK or anyone else touch AB on the buttocks;”
(6) “John based on his certainty of JK's actions on a supposed statement of guilt made by JK to John. A statement JK denied ever saying. The statement itself was vague and did not specify the touching of AB in any way;”
(7) “John's witnesses could not place anyone else with John during the time frame indicated, nor did they see AB on the dance floor.”

D. 65-49 at 4. As a result, BC suspended Doe until January 6, 2014, barred him from BC housing continuing until graduation and loss of senior week privileges at any point. D. 65 ¶ 72; D. 74 ¶

         3. Doe's Appeal from the 2012 Disciplinary Proceeding

         Doe appealed on two grounds: denial of due process and the board's refusal to await submission of his forensic evidence. D. 65 ¶ 74; D. 74 ¶ 74. The appeal request was directed to Chebator and Interim Vice President for Student Affairs Keating. D. 65 ¶ 75; D. 74 ¶ 75. Chebator drafted a response and reviewed the response with Keating. D. 65 ¶ 78; D. 74 ¶ 78. Chebator also sent the draft to Rivera and BC General Counsel Herlihy for comments, which both supplied. D. 65 ¶ 79; D. 74 ¶ 79. By letter, dated December 7, 2012, Chebator and Keating denied Doe's request for an appeal. D. 65 ¶ 80; D. 74 ¶ 80.

         D. The 2014 Post-Suspension Review of Doe's 2012 Proceeding and Appeal

         Doe returned to BC's campus in January 2014 and graduated in May 2014. D. 65 ¶ 81; D. 74 ¶ 81. At graduation, James approached the BC President, Father William Leahy (“Leahy”), about the 2012 disciplinary proceeding. D. 65 ¶ 82; D. 74 ¶ 82. In September 2014, James and Mary, both BC alumni, wrote letters to Leahy and James stated that the family did not want to file a lawsuit against BC and the individuals involved in the proceeding. D. 65 ¶¶ 2, 83-84; D. 74 ¶¶ 2, 83-84. Leahy told James that Vice President for Student Affairs Jones should review the case. D. 65 ¶ 86; D. 74 ¶ 86. Thereafter, Jones responded to James that she would conduct a review of the 2012 proceeding. D. 65 ¶ 88; D. 74 ¶ 88. Jones viewed her role as assessing whether the procedures were followed and whether there was new evidence. D. 65 ¶¶ 89-90; D. 74 ¶¶ 89-90. After the review, Jones sent James and Mary two letters. The first letter stated that the practices of the hearing board were “consistent with the best practices of higher education, ” D. 65 ¶ 100, D. 74 ¶ 100, while the second letter explained that the proffered forensic evidence did not justify reconsideration of Doe's discipline. D. 65 ¶ 102; D. 71 ¶ 259; D. 74 ¶ 102.

         IV. Procedural History

         Doe instituted this action on March 11, 2015. D. 1. On March 11, 2016, Doe moved to amend the complaint by adding a new defendant, Herlihy. D. 51. Doe subsequently moved for partial summary judgment on Counts I and IV of the complaint. D. 64. BC and the Individual Defendants have also moved for summary judgment. D. 67; D. 69. The Court heard the parties on the pending summary judgment motions and took these matters under advisement. D. 84.

         V. Doe's Motion to Amend Is Denied

         Doe moved to amend the complaint to add Herlihy as an individual defendant to the tort-based counts in this case, Counts VIII through XIII. D. 51.

         Once a scheduling order is in place and the litigation has progressed beyond the deadline set for amending the pleadings, motions to amend a complaint are assessed under a heightened “good cause” standard. Steir, 383 F.3d at 11-12. “Regardless of the context, the longer a plaintiff delays, the more likely a motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend” especially when motions require a re-opening of discovery or significant postponement to the litigation and trial. Id. at 12 (citing Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d 49, 52-53 (1st Cir. 1998)).

         On June 22, 2015, the Court set a schedule for this litigation. D. 15. That schedule required that any amended pleadings were due by September 22, 2015, that fact discovery closed on February 12, 2016 and that summary judgment motions were due by March 15, 2016. D. 15. The only changes to that schedule were extensions related to discovery and summary judgment. D. 21; D. 37; D. 48. There was no change in the deadline for amending the pleadings and Doe filed his motion to amend the complaint after this deadline. D. 15; D. 51.

         Doe fails to show good cause for their delay in moving to amend the complaint to include Herlihy as an individual defendant. First, Doe does not provide an adequate explanation for the failure to add Herlihy earlier in this litigation. Doe first argues that they were “not in possession of any information that would have properly supported a claim against Joseph Herlihy” in March 2015 and only became aware of his involvement in January 2016 when Doe received attorney-client privileged documents and Doe took Herlihy's deposition. D. 53 at 4. Doe further contends that this information showed that Herlihy was “the principal figure” in the proceedings at the core of this case. D. 53 at 4-5, 8. The record reveals, however, that Doe filed their original complaint on March 11, 2015 and included allegations against Herlihy at that time. D. 1. For example, in their initial pleading, Doe alleged that (1) Herlihy directed Hughes to interrogate Doe outside of the presence of his lawyer, D. 1 ¶ 122; (2) Herlihy reviewed the appeals letter written by Chebator, D. 1 ¶ 85; (3) Herlihy had spoken with Doe's attorney, D. 1 ¶¶ 66-67; (4) Herlihy assisted JK in obtaining legal representation for the second day of the 2012 disciplinary proceeding, D. 1 ¶ 125; and (5) Herlihy had actual notice of University misconduct related to Doe's disciplinary proceeding, D. 1 ¶ 185. Despite asserting these allegations, Doe did not name Herlihy as a defendant initially. See Berwind Prop. Grp. Inc. v. Envtl. Mgmt. Grp., Inc., 233 F.R.D. 62, 67 (D. Mass. 2005) (rejecting “good cause” argument because the identities and involvement of the proposed defendants were known to the plaintiffs at the time of filing the complaint); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (denying amendment to add new defendant because “the information supporting the proposed amendment to the complaint was available . . . even before she filed suit”).

         Even if the particular details of Herlihy's role were unknown until discovery, Doe became aware of his involvement in large part through the depositions of Chebator, Jones, Rivera, Hughes and Keating. For example, to support their allegations that Herlihy was involved in the pre-hearing and hearing procedures, scheduling issues, obtaining evidence, involving himself in the 2012 disciplinary appeal and participating in the 2014 review, Doe cites these administrators' depositions. D. 53 at 15. Doe also cites Keating's deposition as key evidence to explain the allegations against Herlihy as to the 2014 post-suspension review. D. 53 at 21-22. Despite these depositions taking place in November of 2015, D. 53-3; D. 53-4; D. 53-16; D. 53-20, Doe did not move to amend to include Herlihy as a defendant until March 11, 2016. D. 51. This was well after these depositions and at a time where the parties were on the heels of summary judgment briefing and the close of discovery. See, e.g., Berwind, 233 F.R.D. at 67 (rejecting Plaintiffs' argument that they did not know of a particular individual's role until her deposition and ultimately denying Plaintiffs' motion to amend because plaintiffs previously had cited documentation of individual's role in a motion to compel). Thus, Doe has provided no explanation rising to “good cause” for the delayed motion to amend the complaint.

         While not the primary focus, the “good cause” analysis also examines possible prejudice to defendants. O'Connell, 357 F.3d at 155 (citing Johnson, 975 F.2d at 609). Here, adding Herlihy as a defendant at this late stage may prejudice BC and the Individual Defendants. Doe contends that there would be no need to re-open discovery and that Herlihy already had his deposition taken. D. 53 at 9. Nonetheless, Herlihy's deposition was taken before he was formally named as a defendant in this matter and it is possible that additional information would need to be exchanged or discussed to prepare a proper defense for Herlihy or to alter the strategic defense of other administrators. See Euro-Pro Operating LLC v. Dyson Inc., No. 14-cv-13720-ADB, 2016 WL 593486, at *5 (D. Mass. Feb. 12, 2016) (denying motion to amend because “allowing an amendment . . . would require the reopening of fact discovery and the taking of additional depositions in support of a legal theory that Plaintiff did not attempt to advance until far too late in the life of this case”). In addition, as BC and the Individual Defendants contend, adding Herlihy as a defendant could affect the currently pending motions for summary judgment as well as expert disclosures. D. 54 at 10. For these reasons, Doe's motion to amend the complaint and add Herlihy as a defendant is denied.

         VI. Summary Judgment Discussion

         A. Count I: Breach of Contract Claims for 2012 Disciplinary Hearing

         Count I alleges that BC breached the terms of its contractual relationship with Doe. D. 1 ¶¶ 94-147. The parties do not dispute that the contractual relationship between BC and Doe arises from the Student Guide and the Conduct Board Procedure, D. 65-17; D. 65-18, D. 65-19; D. 68 at 6-21; D. 65 ¶ 29; D. 74 ¶ 29, even as they disagree about what the express and implicit terms of that contract require. Doe alleges specific breaches of that contract, namely that BC failed to: (1) perform a threshold evaluation of the sexual assault charge; (2) conduct an adequate investigation; (3) set an appropriate hearing date; (4) provide fair and meaningful notice of the charges against Doe; (5) permit Doe the right to effective counsel at the hearing; (6) allow Doe to have his investigator as a witness; (7) provide an unbiased disciplinary process to Doe; (8) provide a trained and competent hearing board; (9) presume Doe to be innocent and improperly shifting the burden of proof to Doe; (10) provide sufficient evidence to support the hearing board's finding; (11) honor an obligation to make a record of the hearing; and (12) provide a meaningful appellate process (Count I). D. 1 ¶¶ 94-147. Doe also alleges that BC failed to provide a procedurally and substantively fair process that, cumulatively, amounted to a breach of its express contract with Doe and breach of the implied covenant of good faith and fair dealing (Counts I and IV). D. 1 ¶¶ 94- 147, 157-60. Upon a developed factual record after discovery, both Doe and BC seek resolution of these contract-based claims, Counts I and IV, on summary judgment. D. 64; D. 67.

         To establish breach of contract, a plaintiff must demonstrate a valid and binding contract existed, the defendant breached that contract and the plaintiff suffered damages as a result.[4]General Cas. Co. v. Five Star Bldg. Corp., No. 11-cv-30254-DJC, 2013 WL 5297095, at *8 (D. Mass. Sept. 19, 2013) (citing Michelson v. Digital Fin. Servs., 167 F.3d 715, 720 (1st Cir. 1999)). Student-college relationships are contractual in nature and the terms of that contractual relationship can be derived from student policy manuals as they are here. Doe v. Brandeis Univ., No. 15-cv-11557, 2016 WL 1274533, at *25 (D. Mass. Mar. 31, 2016) (citing Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998)). Under Massachusetts law, courts apply a “reasonable expectation” standard when interpreting contracts between students and their universities. Bleiler v. Coll. of Holy Cross, No. 11-cv-11541-DJC, 2013 WL 4714340, at *15 (D. Mass. Aug. 26, 2013) (citing Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000)). The reasonable ...

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