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Routh v. University of Rochester

United States District Court, W.D. New York

November 5, 2013

DYLAN ROUTH, Plaintiff,
UNIVERSITY OF ROCHESTER, SARAH HULBERT (as staff member of the University of Rochester) and SARAH HULBERT (individually), Defendants

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For Plaintiff: Jeffrey Wicks, Jeffrey Wicks, PLLC, Rochester, New York.

For University of Rochester: Harold A. Kurland, Anitra Das, Ward Greenberg Heller & Reidy LLP, Rochester, New York.

For Sarah Hulbert: Paul L. Leclair, Mary Jo S. Korona, Laurie A. Giordano, Jeremy M. Sher, Leclair Korona Giordano Cole LLP, Rochester, New York.


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CHARLES J. SIRAGUSA, United States District Judge.


In the instant action a male former student at the University of Rochester is suing the University and a female classmate over actions that resulted in him being expelled. Now before the Court are the following motions: 1) the University of Rochester's (" the University" ) motion to dismiss (Docket No. [#9]); 2) Sarah Hulbert's (" Hulbert" ) motion to dismiss [#12]; 3) Hulbert's motion to seal [#12]; 4) Hulbert's motion for sanctions [#15]; 5) Plaintiff Dylan Routh's (" Plaintiff" or " Routh" ) cross-motion to amend [#19]; 6) Hulbert's second motion for sanctions [#23]; and 7) Routh's second cross-motion to amend [#34].

The applications are granted in part and denied in part as follows: Routh's motion to amend [#19] is denied as withdrawn; Routh's motion to amend [#34] is granted as to his defamation claim against Hulbert, but is otherwise denied as futile; the University's motion to dismiss [#9] is granted in its entirety, and the University is dismissed from the action; Hulbert's motion to dismiss [#12] is denied as to the defamation claim against her, but is otherwise granted; Hulbert's motions for sanctions [#15] [#23] are denied; and Hulbert's motion to seal [#12] is denied.


At the outset the Court must determine what facts it can consider. It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited in that regard. See, e.g., Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y. Sep. 24, 2012) (" [T]he [general] rule [is] that documents outside the pleadings cannot be considered

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in a 12(b)(6) motion." ). On a 12(b)(6) motion,

the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.

Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir.2002) (citations omitted). In considering whether a document is " integral" to the complaint, " a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id., 282 F.3d at 153 (citation and footnote omitted).

In this case, the Court finds that in addition to the Complaint (Docket No. [#1]) and the proposed Amended Complaint (Docket No. [#34], Exhibit A), the Court may consider the following documents in the record: 1) Dean Levy's letter to Routh, (Docket No. [#9-6]), dated, September 22, 2011, informing him of the charges against him, since the letter is incorporated by reference into the proposed pleading, see, Docket No. [#34], Exhibit A at ¶ 25; 2) the University of Rochester's (" the University" ) Standards of Student Conduct, see, Docket No. [#9-3], since the pleading repeatedly refers to the document and quotes it, in connection with Routh's claim that the University violated its terms; 3) the University's written decision expelling Routh, consisting of Dean Levy's letter dated September 30, 2011, (Docket No. [#9-7]), Routh's appeal dated October 14, 2011 (Docket No. [#26] at pp. 33-41), Routh's reply to his appeal dated November 8, 2011 (Docket No. [#26] at pp. 54-61) and Dean Lennie's letter-decision denying the appeal, dated December 2, 2011 (Docket No. [#9-9]), since they are incorporated by reference and since Routh obviously relied on them in drafting the pleading, see, [#34], Exhibit A at ¶ ¶ 45-49, 76-80, 82; [1] and 4) Dean Lennie's email to Routh dated November 1, 2011, concerning Routh's complaint of gender discrimination (Docket No. [#9-8] at p. 2), and Paul Burgett's decision denying Routh's gender discrimination complaint (Docket No. [#9-10]), since the documents are incorporated by reference and since Routh obviously possessed them and relied on them in drafting the proposed amended pleading, see, docket no. [#34-2] at ¶ ¶ 26-30, 88, 94, 96. From these documents (" the record" ), the Court will set forth the facts of the case.

Factual History

At all relevant times Routh and Hulbert were students enrolled at the University. Hulbert was employed by the University as a Resident Assistant (" RA" ), and Hulbert's father was also an employee of the University. At all relevant times Routh and Hulbert were adults.

Prior to September 16, 2011, Routh had not been accused by anyone at the University of sexual misconduct. Routh did, however, have a record of certain disciplinary infractions at the University. Specifically, Routh, who admits to having had a drug addiction prior to the events at issue here, was cited for possessing drug paraphernalia and for violating the University's alcohol policy. Routh contends, though, that the latter infraction merely involved

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him possessing a shot glass that he purchased at the University bookstore. Routh was also cited for being in the University library after closing time and for having a wireless computer router in violation of University policy. Routh was also cited for possessing chairs belonging to the University, although he maintains that the University had discarded them. Lastly, Routh was cited for possessing a knife, which he contends he needed because he had previously been robbed at gunpoint in Rochester.

Between September 2008 and September 2011, Routh and Hulbert engaged in sexual activity with each other at the University. Some of the sexual acts involved " bondage." It is undisputed that all of the sexual activity prior to September 2010, and some of it thereafter, was consensual. Routh maintains, though, that all of his and Hulbert's sexual activity was consensual. Hulbert, however, as discussed further below, disagrees.

On or about September 16, 2011, Routh informed Hulbert that he was no longer interested in having sexual activity with her. As of that date, Hulbert had never made any complaints about Routh to the University. On September 19, 2011, Hulbert filed a complaint against Routh with the University, accusing him of committing sexual acts against her without her consent, and otherwise assaulting her, during the previous year. In that regard, Hulbert submitted a five-page written statement, which is not part of the record, in which she described the alleged assaults. Routh maintains that Hulbert's statement accused him of acts involving strangulation, rape and forcible imprisonment.

On September 20, 2011, the University notified Routh that he was summarily suspended and had to leave the campus. On September 22, 2011, Morgan Levy (" Levy" ), a Dean at the University, sent Routh a letter which stated, in pertinent part:

Dear Mr. Routh,
I received a report containing allegations that you have physically, sexually and emotionally abused University of Rochester student Sarah Hulbert on repeated occasions beginning September 2010 and continuing until the present time. Specifically the report alleges that at various times you had anal and vaginal sexual intercourse with Sarah without her consent, hit her, burned her, whipped her, strangled her and detained her against her will. The full details of these allegations are included in the case file which will be made available for you to review. As a result of this report you have been charged by the University with allegedly violating the Standards of Student Conduct, Section VI, item(s):
5(a) Disorderly conduct including: fighting, threats, assault, attempted assault, harassment, or other actual or attempted conduct which threatens the health or safety of yourself or another.
11. Sexual harassment, racial harassment, or any other forms of illegal discrimination.
12. Sexual misconduct or assault, including any form of unwanted sexual contact. 'Unwanted' means against a person's wishes or without consent, including those instances in which the individual is unable to give consent because of unconsciousness, sleep, impairment, or intoxication due to alcohol or other drugs.
I am providing official notification that a hearing has been scheduled to determine whether or not you are responsible for violating these policies. The hearing will be held on Thursday, September 29th, at 9AM in Wilson Commons 510. ( This location is subject to change. If a

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change of location is necessary you will be notified prior to the hearing .)

You are invited to have a University community member as an advisor to assist you during the hearing, as long as this person is not an attorney. I sent you a list of specially trained advisors via e-mail yesterday and would encourage you to use one of the individuals on that list if you plan to have an advisor.
If you plan to have any witnesses present, I will need their names, telephone numbers, and addresses by 4:00 p.m. on Tuesday, September 27th, 2011. Prior to the time of the hearing, I highly recommend that you read the Standards of Student Conduct regarding procedures, policies, conduct regulations, and student rights. A copy of the Standards of Student Conduct can be found at the following link: http://www.rochester/edu/college/dos/conduct/
The file containing all pertinent case documentation will also be available for your review. Typically, students review this file in the Center for Student Conflict Management during normal business hours (9 AM-5PM). It is my understanding that you would prefer not to come to campus to review the file. I was able to arrange to have members of our Security office meet you at an off campus location and sit with you while you review the documents if you would prefer. You may be accompanied by your attorney or your parent(s) for the purpose of this review.
If you would like to arrange a pre-hearing conference with me, please contact the Office of the Dean of Students at 275-4085 to arrange a time. The pre-hearing conference is an opportunity for you to ask any questions or concerns that you may have about the hearing process prior to the hearing.
In the meantime, please feel free to call me at 275-4085 or e-mail me at should you have any immediate questions or concerns.
Sincerely, Morgan Levy

Docket No. [#9-6] (emphasis in original).

Upon receiving this notice, Routh informed Levy that he wanted to file " a cross-complaint" against Hulbert, " based upon her purported knowledge of the disciplinary infractions allegedly committed by [himself] that she failed to promptly report to campus authorities, as required of her by the Standards of Student Conduct." Proposed Amended Complaint [#34-2] at ¶ 26. On this point, Routh maintained that a student's failure to report another student's misconduct was itself a violation of the Standards of Student Conduct, for which Hulbert was liable. Alternatively, Routh indicated that he wanted to file " a cross-complaint" against Hulbert because she filed her complaint against him in retaliation for him ending their relationship, which was a form of harassment. However, Levy told Routh that he could not file " a cross-complaint." Levy informed Routh, though, that he could file a separate complaint against Hulbert. Routh nevertheless accused Levy of gender discrimination, for preventing him from filing a cross-complaint.

Routh also complained to the University that the " notice of what disciplinary infractions with which he was being charged" lacked the specificity required by " the University's code of student conduct." Proposed Amended Complaint [#34-2] at ¶ 31. In that regard, Routh appears to be alleging that Levy's letter dated September 22, 2011, did not conform to the University's Standards of Student Conduct. According to Routh, the University's Counsel, Richard Crummins (" Crummins" ), responded to his criticism by stating, " Let me say first that you have a valid

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point about the specificity of the charge letter. We can definitely improve how those are written." Id. at ¶ 33. The proposed amended pleading contends that " no further specification of the charges was provided to [Routh]," but it does not dispute Levy's statement, in her September 22, 2011, letter, that the entire case file, containing " all pertinent case documentation," was available for Routh's review prior to the hearing. Moreover, Routh admits that he was permitted to review the entire case file prior to the hearing, though he complains that he was not permitted to make copies of Hulbert's complaint. See, Docket No. [#26] at p. 35, appeal p. 3.

On September 29, 2011, a disciplinary hearing was conducted before three University administrators: Joellen Kuhl (" Kuhl" ), Assistant Finance and Operations Officer, Stephanie Beetle (" Beetle" ), Senior Student Advisor and Chris Apple (" Apple" ), Men's Soccer Head Coach. Proposed Amended Complaint [#34-2] at ¶ 35. Routh was permitted to have a non-attorney advisor at the hearing, who could answer his procedural questions, but who was not otherwise permitted to speak. The hearing officers considered a written statement from Hulbert, in which she indicated, in pertinent part, that Routh had sex with her against her will on several occasions, bound her and restrained her against her will, and hit, bit, whipped and burned her.[2] For example, Hulbert's statement indicated that in September, 2010, Routh continued having anal sex with her after she told him to stop by using a pre-arranged " safety phrase." Hulbert also indicated that in November, 2010, Routh " raped" her and forced a " bubble wand" into her anus. Hulbert further indicated that on another occasion, while she was sleeping, Routh attempted to have anal sex with her, and when she woke up and resisted he attempted to smother her, sat on her and hit her, leaving bruises. Hulbert indicated that on another occasion, Routh gagged her by putting underwear in her mouth and duct tape around her head, and that on another occasion he handcuffed her without her consent and left her alone and restrained for several hours.

Routh submitted his own written statement, denying Hulbert's accusations. See, Proposed Amended Complaint [#34-2] at ¶ 42 (Indicating that he submitted a written statement to the hearing officers in which he " denied committing any acts with [Hulbert] which would constitute a violation of the University's disciplinary rules and, specifically, denied having any non-consensual interactions with [her]." ). That is, Routh denied that the events about which Hulbert complained were non-consensual.

Routh and Hulbert testified at the hearing. In Hulbert's testimony,[3] she reiterated the allegations in her written statement. Routh maintains that such testimony was false. Routh also testified at the hearing, and again " denied having any non-consensual interactions with [Hulbert]." Proposed Amended Complaint [#34-2] at ¶ 42. Routh contends that Hulbert admitted at the hearing both that she had never complained about Routh to any University official prior to September, 2011, and that " as late as December, 2010, none of the activities in which she engaged with [Routh] caused her any distress." Id. at ¶ ¶ 43-44.

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Following the hearing, on September 30, 2011, the University notified Routh that it found him guilty of violating two sections of the Standards of Student Conduct, and that it was expelling him from the University. Specifically, by letter dated September 30, 2011, Levy stated:

Dear Mr. Routh,
On September 29th, 2011 an administrative hearing was held for the purpose of resolving your alleged violations of the University of Rochester Standards of Student Counduct. After careful consideration of all the information available at the hearing, the administrative hearing board has found you responsible for engaging in the following behavior(s) prohibited by the University of Rochester:
12. Sexual misconduct or assault, including any form of unwanted sexual contact. " Unwanted means against a person's wishes or without consent, including those instances in which the individual is unable to give consent because of unconsciousness, sleep, impairment, or intoxication due to alcohol or other drugs.
5(a). Disorderly conduct including: fighting, threats, assault, attempted assault, harassment, or other actual or attempted conduct which threatens the health or safety or yourself or another.
Due to the violent nature of the incidents for which this hearing was convened and your extensive prior disciplinary history you are now expelled from the University of Rochester. Expulsion is a permanent separation from the University, meaning that you may not apply for readmission to any program. This expulsion from the University of Rochester is effective as of 12AM on Friday, September 30th, 2011.
You will continue to be prohibited from entering or remaining on the grounds of the University of Rochester River Campus without the expressed [sic] permission from myself and/or Security. Please note that if you are on campus without my permission for any purpose, including moving out of the Sigma Chi house, you will be arrested by Rochester Police for trespassing. I will work with you to make arrangements to remove your belongings from the Sigma Chi house.
You have the right to appeal this decision based on the following criteria:
* The sanction was not appropriate;
* New information exists that was not available at the time of the hearing and this information is sufficient to alter the decision; or
* An error occurred during the process that is substantive enough to alter the decision.
Your request for appeal, should you decide to prepare one, must be submitted to Peter Lennie, Senior Vice President and Dean of College Faculty, within seven (7) days from the date of this letter. You may submit your letter to Dean Lennie via e-mail. His e-mail address is
Please contact my office at 585-275-4085 or via e-mail at if you have any questions.
Sincerely, Morgan Levy
Assistant Dean of Students
Director, Center for Student Conflict Management

Docket No. [#9-7] at pp. 2-3.

On October 14, 2011, Routh appealed Levy's decision to Dean Lennie. See, Docket No. [#26] at pp. 33-41. Routh's eight-page appeal letter indicates that his expulsion was in violation of the University's policies and was discriminatory toward him on the basis of gender. Routh argued that he was subjected to disciplinary action

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because he " refused to continue a sexual relationship with Sarah Hulbert, [his] accuser and a staff member of the University." Id. at p. 33. Routh maintained that because Hulbert was a Resident Advisor, she had a duty to inform him that his behavior was violating the University's policies.

Routh also contended that the charges against him failed to comply with the University's policies, because they were not sufficiently detailed, and in that regard he stated, in pertinent part:

Sarah Hulbert and I had a sexual relationship which spanned two years, and the allegations in the charge letter spanned an entire year, stating that on 'repeated occasions beginning in September 2010 and continuing until the present time' I undertook various actions. . . . In an e-mail dated September 23, 2011, your General Counsel, Richard Crummins, acknowledged that this was a 'valid point,' that more specificity would be provided in the file material I would be allowed to see before the hearing, and offered to change the hearing date so that I cold have a 'full seven days from adequate notice' of the charges. However, while I was allowed to see some documents, I was not allowed to have any copies thereof.
The result letter I received [Levy's decision] provides no further specificity. All it cites is the two policies I was found to have violated, 5(a) and 12. It does not tell me what conduct the hearing board found to have been proven by a preponderance of the evidence that violated those policies.
At the moment, I have nothing in writing from the University of Rochester stating what specific conduct I undertook that constitutes an infraction. I have made assumptions based on statements made to me by Dean Levy, the panel, and e-mails from Counsel Crummins, and I will detail those assumptions as I respond to the specific allegations. If I am incorrect, however, I request that I be given notice in writing regarding what specific conduct is at issue so that I may prepare an appropriate appeal.

Id . Routh indicated that he understood the University's finding that he had violated Principle 12, " sexual misconduct or assault," to be based on Hulbert's claim that he had muffled/gagged her during sex, and thereby prevented her from being able to express or withdraw her consent. On this point, Routh indicated that, " Dean Levy informed me that the panel concluded that the times I muffled or gagged Sarah Hulbert rendered ...

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