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Schaefer v. Fu

United States District Court, D. Massachusetts

June 21, 2018

Alicia Schaefer, Plaintiff,
v.
Yongjie Fu and Trustees of Boston University, Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This case arises out of a physical altercation between two students at Boston University (“BU” or “defendant”). Plaintiff Alicia Schaefer (“plaintiff” or “Schaefer”) alleges that defendant Yongjie, a/k/a Thomas, Fu (“Fu”) assaulted her resulting serious physical injuries and emotional harm to Ms. Schaefer.

         Pending before the Court is plaintiff's motion to remand this case to state court.

         I. Background

         In the 2012 fall semester, Thomas Fu and Alicia Schaefer became acquainted with each other after enrolling in the same lecture course at Boston University. According to Schaefer, Fu took a seat close to Schaefer but she subsequently moved her seat to avoid him. Fu was purportedly disruptive during lectures and Schaefer was told by one of her friends that Fu had attempted to force himself on the friend at a party.

         During the spring and fall semesters of 2013, Fu exhibited aggressive behavior toward Schaefer that made her uncomfortable. For example, Fu was allegedly loud and confrontational during class and he often attempted to sit close to Schaefer. He talked to her on numerous occasions and at one point told her 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 Fu's antics.

         On or about October 29, 2013, Schaefer was waiting in line at Breadwinners, a campus dining hall, when Fu stood 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. Sometime thereafter, Schaefer picked up her sandwich and attempted to walk away from Fu. When she did so, Fu body-checked her from behind, knocking her down and causing her to sustain a concussion. Schaefer was later diagnosed with post-traumatic stress disorder as a result of the incident.

         In October, 2016, plaintiff filed a complaint in the Massachusetts Superior Court for Suffolk County. That complaint was amended in January, 2017 and the following month, BU removed the case to federal court on federal question and supplemental jurisdiction grounds. Fu did not and has not consented to removal.

         Plaintiff's eight-count amended complaint includes 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 BU. In August, 2017, this Court allowed the motion of defendant Trustees of Boston University to dismiss with respect to Counts VI and VII but denied that motion with respect to Count VIII. See Schaefer v. Yongjie Fu, 272 F.Supp.3d 285 (D. Mass. 2017).

         II. Motion to remand

         Schaefer asserts that the removal was improper because defendant Fu did not consent to it. Boston University responds that plaintiff has waived her right to object to removal and that the University did not need to obtain the consent of Fu prior to removing the case.

         Unless expressly prohibited by a federal statute,

any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and ...

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