United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Alyssa Leader (“Leader”) has filed this lawsuit
against Defendants Harvard University Board of Overseers and
the President and Fellows of Harvard College (collectively,
“Harvard”) alleging violations of Title IX, 20
U.S.C. § 1681, and state law claims of negligence and
premises liability. D. 27. Harvard now seeks to dismiss
Leader's complaint under Fed.R.Civ.P. 12(b)(6), D. 33,
and strike certain allegations in the operative complaint, D.
35. For the reasons stated below, the Court DENIES in part
and ALLOWS in part the motion to dismiss and DENIES the
motion to strike.
Standard of Review
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must
“contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In considering the sufficiency of the
facts, the court “must take the allegations in the
complaint as true and must make all reasonable inferences in
favor of the plaintiff[ ].” Watterson v. Page,
987 F.2d 1, 3 (1st Cir. 1993). “If that factual content,
so taken, ‘allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged, ' the claim has facial plausibility.”
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556
U.S. at 678). At its core, “[t]he make-or-break
standard . . . is that the combined allegations, taken as
true, must state a plausible, not a merely conceivable, case
for relief.” Sepúlveda-Villarini v.
Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir.
Rule 12(f), a party may move to strike ‘from any
pleading any . . . redundant, immaterial, impertinent, or
scandalous matter.'” Dennison v. LaPointe,
No. 06-40100-FDS, 2006 WL 3827516, at *1 (D. Mass. Dec. 21,
2006) (quoting Fed.R.Civ.P. 12(f)). Although “[m]otions
to strike under Rule 12(f) are generally disfavored, ”
U.S. S.E.C. v. Nothern, 400 F.Supp.2d 362, 364 (D.
Mass. 2005), a pleading that violates the principles of Rule
8 may be struck “within the sound discretion of the
court, ” Newman v. Commonwealth of Mass., 115
F.R.D. 341, 343 (D. Mass. 1987) (citation omitted). In
assessing whether a motion to strike should be granted, the
Court must bear in mind that such motions are rarely granted
absent a showing of prejudice to the moving party. See
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 182
F.R.D. 386, 398 (D.R.I. 1998) (explaining that “[m]ere
redundancy is insufficient to support a motion to
strike” but that “the movant must demonstrate
that prejudice would result if the offending material
remained in the pleadings”).
all factual allegations in the amended complaint as true, as
required at this stage, this Court considers the following
allegations. Between March 2013 and March 2014, Leader, a
student at Harvard, maintained a sexual and dating
relationship with John Doe 1, who was also a student at
Harvard. D. 27 ¶ 63. During their year-long
relationship, Leader was subjected to sexual assault and
harassment at the hands of John Doe 1. Id. ¶
65. She first reported the alleged assault and harassment to
the Office of Sexual Assault Prevention & Response
(“OSAPR”) in the spring of 2013. Id.
¶ 76. At nearly all times relevant to this litigation,
Leader and John Doe 1 were residents of Cabot House, a
dormitory at Harvard. Id. ¶ 68. The only
exception to this was during the summer of 2013, at which
time John Doe 1 lived at 6 Soldier's Field Park, a
different residential building owned and operated by Harvard.
Id. Both students worked at the Cabot House
café, where Leader was a barista and John Doe 1 was a
the year the two students were dating, John Doe 1 would often
become incensed when Leader declined his sexual advances.
Id. ¶ 69. John Doe 1 would slam doors and
strike furniture upon Leader's declinations. Id.
Leader often acquiesced to John Doe 1's desires in order
to prevent these outbursts. Id. Additionally, Leader
and John Doe 1 engaged in frequent arguments during which
John Doe 1 would raise his voice and suggest that they would
fight less if Leader would more frequently consent to sexual
March 2014, the couple broke up. Id. ¶ 71.
Several months later, in September 2014, John Doe 1 began
dating another female student at Harvard. Id. ¶
72. Leader approached John Doe 1 during this time and
requested that he not treat his new girlfriend the same way
he had treated her. Id. ¶ 72. Leader also
informed John Doe 1 during this conversation that the
behavior he exhibited during their relationship might have
violated Harvard policy. Id. This discussion angered
John Doe 1 and he began to harass Leader regularly.
Id. ¶¶ 72-73. For example, John Doe 1
would make huffing and puffing sounds that simulated sex when
he passed Leader, id. ¶ 73; he would show up
when she was working her shift at the Cabot House café
and make sexually crude comments, id. ¶ 74; and
he would purposely make loud comments in the dining hall when
Leader was nearby suggesting that Title IX policies cause
even the most trivial actions to be classified as rape,
id. ¶ 75.
again reported John Doe 1's behavior to OSAPR in
September 2014. Id. ¶ 76. On November 6, 2014,
Leader also reported the harassment to her resident dean.
Id. ¶ 78. Leader told the resident dean that
she felt unsafe and requested that John Doe 1 be transferred
to a different dormitory. Id. The resident dean
referred Leader to Emily Miller, Harvard's Title IX
coordinator. Id. On November 7, 2014, Leader met
with Miller and again expressed the anxiety she felt
regarding her safety. Id. ¶ 79. She also
reiterated her request that John Doe 1 be removed from Cabot
House and placed in alternate housing. Id. Miller
did nothing in response. Id. On December 15, 2014,
Leader once again met with Miller and informed her that John
Doe 1's harassment had escalated. Id. ¶ 80.
Again, nothing was done. Id.
February 3, 2015, Leader reported John Doe 1's harassment
to the Office for Gender-Based Dispute Resolution
(“ODR”), which is responsible for investigating
and resolving any complaints made under Harvard's
university-wide sexual and gender-based harassment policy.
Id. ¶¶ 81-82. ODR officials met with
Leader three separate times in March and April of 2015 to
investigate her allegations. Id. ¶ 84. During
these meetings, Leader informed ODR officials that she was
not sleeping at Cabot House out of fear for her safety.
Id. She also noted that she was missing meals and
dropping work shifts. Id. Throughout this process,
Harvard officials did not propose safety measures Leader
could take. Id. ¶ 85. When Leader requested
that Miller issue a no-contact order between Leader and John
Doe 1, Miller conveyed that a no-contact order was
unnecessary since ODR had already commenced a formal
investigation and, as a result, “retaliation
rules” were in effect, which covered the same conduct
as a no-contact order. Id. ¶ 90. Harvard
neither informed Leader when it gave notice to John Doe 1 of
her complaint against him, nor alerted her when it provided
the evidence in support of her complaint to him. Id.
¶¶ 88-89. After John Doe 1 was informed about the
investigation, he and his friends would often stare at Leader
while she was doing schoolwork, sit on opposite sides of the
Cabot House café so Leader would be forced to walk by
them as she entered and exited work, and sit on the deck near
her entryway into Cabot House. Id. ¶ 91.
Despite Leader informing several Harvard officials of the
ongoing harassment, nothing was done to help her during this
time. Id. ¶ 92.
did not provide Leader with an overview of her legal rights
or options during the investigation. Id. ¶ 94.
Through her own research, Leader learned that she could
pursue a restraining order against John Doe 1. Id.
On April 27, 2015, Leader sought and obtained a restraining
order against John Doe 1 in Massachusetts state court.
Id. ¶ 96. Harvard removed John Doe 1 from Cabot
House and transferred him to a different dormitory once the
restraining order issued. Id. After obtaining the
restraining order, Leader also learned that the
“retaliation rules” that were in effect as a
result of the ODR investigation were not the same as a
no-contact order. Id. ¶ 99. Indeed, when a
no-contact order is in place, any violation of the order is
referred to Harvard's Administrative Board (“Ad
Board”), Harvard's sanctioning body for
disciplinary claims, rather than ODR. Id. Having had
a no-contact order in place would have allowed the Ad Board
to respond more expediently to John Doe 1's continued
presence at her workplace and outside her dormitory
throughout the investigative process, thus significantly
alleviating her constant fear and anxiety. Id.
and John Doe 1 graduated from Harvard in May 2015.
Id. ¶ 100. On July 17, 2015, ODR released its
finding that John Doe 1 was “[n]ot [r]esponsible”
for all claims of rape, assault, abuse, harassment, and
retaliation. Id. ¶ 104. Leader appealed the
decision but was unsuccessful. Id. ODR transmitted
the results of its investigation to the Ad Board.
Id. Both Leader and John Doe 1 were given the
opportunity to provide a statement to accompany ODR's
investigatory results for the Ad Board's review.
Id. On August 18, 2015, the Ad Board voted to
“[s]cratch” Leader's complaint, concluding
“nothing wrong had happened and there were no grounds