United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon, United States District Judge.
In this action, plaintiff Federica Facchetti asserts claims against Bridgewater College, the college she attended for one year as a foreign exchange student; several of its employees; and a fellow student who sexually assaulted her in her on-campus dorm room after she allowed him to stay there while she slept. The case was originally filed in the Southern District of New York, and that court transferred it upon defendants’ motion.
This opinion addresses two pending motions. The first is a motion to dismiss filed collectively by Bridgewater College and the employee defendants. (Dkt. No. 72.) The second is Facchetti’s “cross-motion” for leave to file an amended complaint. (Dkt. No. 80.) The motions have been fully briefed and were argued before the court on November 16, 2015. For the reasons set forth below, the motion to dismiss will be granted, and Facchetti’s motion for leave to file an amended complaint will be granted in part and denied in part.
The facts below are based on Facchetti’s complaint and, where applicable, her proposed amended complaint, because the court accepts the well-pleaded, nonconclusory factual allegations in the complaint as true when ruling on a motion to dismiss. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Facchetti’s claims stem from a February 5, 2014 incident in which a fellow student, defendant Tyler Vest, sexually assaulted her. At the time of the assault, Facchetti, who is from Italy, was a foreign exchange student at Bridgewater. According to the complaint, the assault occurred in Facchetti’s on-campus dormitory at Bridgewater, after she had invited Vest, whom she met in the fall of 2013, to join her there.
After Vest arrived and the two talked for a while, she told him she was tired and needed to go to sleep. She apparently did so, and it is not clear whether Vest was also sleeping in her bed or just present in the room while she slept. Facchetti alleges that, at about 1:00 a.m., Vest became sexually aroused and was physically and sexually aggressive toward her. Both remained fully clothed during the assault, but Vest began fondling Facchetti’s breasts, genitals, and buttocks. She immediately instructed him to stop. Despite her instructions, he continued to act in a sexually aggressive way and, at one point, grabbed her arms and attempted to force her to touch his penis. Facchetti made attempts to get away from Vest, but he continued to engage in the aggressive behavior by forcing her to lie down on her bed while he lay on top of her in an attempt to engage in sexual intercourse. He held her down by pinning her arms to the bed, straddling on top of her. She told him she could not breathe, but he just laughed. (Compl. ¶¶ 29-32, Dkt. No. 1.)
After several minutes, he got up, but then became angry with her because she would not engage in sexual activity with him. He said that she was annoying him and that “he came to her room for nothing.” Shortly thereafter, he began rubbing her leg and touching her vaginal area, and she again instructed him to stop touching her. He finally stopped, saying “If you want me to stay here, you have to give me a blow job.” When she refused, he left. (Id. ¶¶ 33-34.)
Facchetti first reported the assault to the Bridgewater Campus Police in early May 2014, after receiving several months of counseling. (Id. ¶¶ 37-38.) Within days of her report, the Chief of Campus Police, defendant Nicholas Picerno, interviewed Vest. Vest corroborated the assault, admitting that he had touched Facchetti’s vagina, breasts, and buttocks; tried to force her to touch his penis; and forced himself on top of her. He also admitted that Facchetti had told him to stop and that he was angry with her because she would not engage in sexual activity with him. (Id. ¶ 39.) According to the complaint, Bridgewater thereafter suspended Vest for a “short period of time, ” but later allowed him to return. (Id. ¶ 48(r).)
Despite this discipline, Facchetti claims Bridgewater’s response constituted deliberate indifference and that Bridgewater tried to conceal the assault against her or “sweep it under the rug.” For support, Facchetti focuses on Bridgewater’s investigative and disciplinary processes, pointing to a number of ways in which Bridgewater did not follow its own sexual misconduct policy. (Id. ¶¶ 46-49.) Most of the acts and omissions she attributes either to Picerno or Crystal Lynn, Bridgewater’s Title IX coordinator. In general terms, Facchetti claims that Bridgewater failed to: (1) conduct a full investigation; (2) allow her to review submissions by Vest; (3) provide written notification of the determination of administrative review; and (4) distribute a written decision letter to her after the hearing, thereby making it impossible for her to appeal any decision. She also claims that she was not advised of her right to submit additional information in advance of the hearing, was not permitted to be present during the hearing, was not permitted to respond to any testimony regarding any alleged sexual or romantic history between her and Vest as set forth in the policy, and was not permitted to present witnesses. (Id.)
Facchetti further alleges that Lynn and Bridgewater failed to make her aware of her Title IX rights, including the possibility of changes in housing or academic and extracurricular activities, and her right to report a crime to campus or local law enforcement. (Id. ¶ 48(c).) She complains that, despite Vest’s admission that he sexually assaulted her, Bridgewater itself “failed to properly report the sexual assault” to the town police and other appropriate government agencies and entities. And she claims that she was discouraged from making any report to the town police by the campus police and Picerno. (Id. ¶ 48(e).) She also alleges that the hearing officers were not properly trained and that the hearing panel included two students, which she deems “outrageous.” (Id. ¶ 48(q).) Finally, she complains that the discipline imposed on Vest was insufficient, and that allowing Vest to later return to Bridgewater “placed its students in imminent danger and inhibited their ability to obtain the benefits of the education to which they are entitled under Title IX.” (Id. ¶ 45(r).)
Facchetti also relies heavily on her allegation that Bridgewater’s public records show that there were five sexual assaults in on-campus dorms in 2013. She does not offer any additional detail about those assaults or Bridgewater’s response to them. But she submits that Bridgewater’s deliberate indifference to those attacks made her more vulnerable to the attack here. Based on this, she seeks to hold Bridgewater liable for the attack on her. (Id. ¶¶ 25-26, 47, 74.)
Facchetti was supposed to be at Bridgewater for only one year. (Id. ¶ 19.) That year ended shortly after she made her report and-consistent with her plans-she apparently did not return thereafter. She claims that she suffered physical injuries (bruising and shortness of breath) during the assault, and that she continues to experience severe emotional harm as a result of the incident. Facchetti’s original complaint contains the following counts and claims:
. Count I-a claim against Bridgewater and four individual defendants (Picerno, Lynn, and two others) under Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681(a),  which prohibits certain educational institutions from discriminating in specific ways “on the basis of sex”;
. Count II-an assault claim against Vest;
. Count III-an intentional infliction of emotional distress claim against Vest;
. Count IV-a negligent infliction of emotional distress claim against Vest; and
. Count V-a premises liability claim against Bridgewater.
(See generally Compl)
In her proposed amended complaint, Facchetti seeks to: (1) add claims of intentional infliction of emotional distress against Picerno and Lynn; (2) include additional detail concerning her injuries; and (3) amend her Title IX claim so that it is asserted only against Bridgewater. (Pl.’s Mot. for Leave to Amend 3, Dkt. No. 81; Proposed First Am. Compl., Dkt. No. 81-1.)
The pending motion to dismiss seeks dismissal on behalf of Bridgewater and its employee defendants, pursuant to Federal Rule of Civil Procedure 12(b)(6). As noted, Facchetti agrees to the dismissal of the Title IX claims against the individual defendants (and her proposed amended complaint does not contain those claims), so that relief will be granted by agreement of the parties. Bridgewater also argues that the Title IX claim and premises liability claim against it are both subject to dismissal because they fail to state a claim.
As to Facchetti’s motion for leave to file an amended complaint, defendants oppose her attempt to add claims of intentional infliction of emotional distress against Lynn and Picerno. (Defs.’ Mem. in Opp’n to Pl.’s Mot. for Leave to Amend 1, Dkt. No. 83.) Despite arguing that the motion for leave should be denied, Bridgewater does not specifically oppose the other proposed changes to the complaint. As described by Facchetti, those changes: remove references to the individual defendants who are no longer named in the Title IX count; include “a revised, updated list of injuries sustained by plaintiff”; make ...