United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case arises out of a physical altercation between two
students enrolled at Boston University (“BU” or
“defendant”). Plaintiff Alicia Schaefer
(“plaintiff” or “Schaefer”) alleges
that individual defendant Yongjie, a/k/a Thomas, Fu
(“Fu”) stalked and eventually assaulted her and
that as a result, she suffered serious physical injuries and
emotional harm. Schaefer alleges that BU is blameworthy.
before the Court is BU's motion to dismiss Counts VI, VII
and VIII of Schaefer's amended complaint for failure to
state a claim upon which relief can be granted. For the
reasons that follow, the motion will be allowed, in part, and
denied, in part.
2012 fall semester, Thomas Fu and Alicia Schaefer became
acquainted after enrolling in the same lecture course at
Boston University. In that class, Fu sat close to Schaefer,
who subsequently moved her seat to avoid him. Fu was
purportedly often disruptive during lectures and Schaefer was
told by one of her friends that Fu had attempted to force
himself on her at a party.
the spring 2013 semester through the fall 2013 semester, Fu
exhibited behavior that made Schaefer feel uncomfortable. He
was allegedly aggressive, loud and confrontational during
class, and he often attempted to sit close to Schaefer. Fu
allegedly attempted, on numerous occasions, to talk with
Schaefer and, at one point, told Schaefer that she should be
a Bose headphones model. Schaefer spoke to two of her
professors regarding Fu's classroom behavior and at least
one of the professors indicated that she was familiar with
about October 29, 2013, Schaefer was waiting in line at a
campus dining hall when Fu stood in line behind her. Fu
attempted to place his order first but when Schaefer told him
that it was not his turn, he allegedly began swearing at her.
Schaefer picked up her sandwich and attempted to walk away
but Fu body-checked her from behind, causing physical
injuries to Schaefer, including a concussion. Schaefer was
later diagnosed with post-traumatic stress disorder resulting
from the incident.
October, 2016, plaintiff filed a complaint in the
Massachusetts Superior Court for Suffolk County. She amended
that complaint in January, 2017 and shortly thereafter, BU
removed the case to federal court on federal question and
supplemental jurisdiction grounds. Plaintiff's
eight-count amended complaint contains four counts against Fu
and four counts against BU. Plaintiff alleges intentional or
reckless infliction of emotional distress (Count I),
negligent infliction of emotional distress (Count II),
battery (Count III) and assault (Count IV) against Fu. She
alleges a violation of Section 504 of the Rehabilitation Act,
29 U.S.C. §794 (Count V), a violation of Title IX, 20
U.S.C. §1681 (Count VI), a violation of M.G.L. c.214,
§1(C) (Count VII) and negligence (Count VIII) against
following week, BU filed a motion to dismiss Counts VI, VII
and VIII of plaintiff's amended complaint for failure to
state a claim upon which relief can be granted. That motion
is the subject of this memorandum.
Motion to Dismiss
survive a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for
relief that is actionable as a matter of law and
“plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible if, after accepting as true all
non-conclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A court
may not disregard properly pled factual allegations even if
actual proof of those facts is improbable. Id.
Rather, the relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the
court to draw. Id. at 13.
rendering that determination, a court may not look beyond the
facts alleged in the complaint, documents incorporated by
reference therein and facts susceptible to judicial notice.
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.