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Fine v. Tumpkin

United States District Court, D. Colorado

July 18, 2018

PAMELA FINE, Plaintiff,
v.
JOSEPH M. TUMPKIN, MIKE MACINTYRE, RICK GEORGE, PHILIP DISTEFANO, and BRUCE BENSON, Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

          William J. Martinez United States District Judge

         Plaintiff Pamela Fine brings this action to recover damages resulting from Defendant Joseph Tumpkin's physical and verbal abuse, which occurred during Tumpkin's tenure as an Assistant Coach for the University of Colorado (“University”) men's football team, and from the University's handling of Plaintiff's report of the abuse. Plaintiff seeks to hold accountable Tumpkin as well as four individuals affiliated with the football team or University, namely Head Coach Mike MacIntyre, Athletic Director Rick George, Chancellor Philip DiStefano, and President Bruce Benson (jointly, “Moving Defendants”), for failing to properly address or report Plaintiff's allegations of Tumpkin's wrongdoing.

         This matter is before the Court on two motions to dismiss. Defendants DiStefano and Benson (the “University Defendants”) and Defendants MacIntyre and George (the “Athletic Defendants”) filed separate motions to dismiss Plaintiff's negligence claims against them. (ECF No. 16; ECF No. 17.) Though University Defendants and Athletic Defendants filed separate motions, they make substantially similar arguments: (1) the Court lacks subject matter jurisdiction under the Colorado Governmental Immunity Act (“CGIA”) because Moving Defendants are state employees immune from suit; (2) Plaintiff fails to state a negligence claim because she has not stated a legal duty; (3) Plaintiff has not alleged cognizable damages so her tort claim fails; (4) Plaintiff's conspiracy claim fails because Plaintiff has no underlying tort claim against Moving Defendants; and (5) portions of the Complaint should be stricken as impertinent and immaterial under Federal Rule of Civil Procedure 12(f). For the reasons discussed below, the Court agrees that Plaintiff has not stated and cannot state a legal duty and thus her negligence and civil conspiracy claims against Moving Defendants fail. Because the Court's ruling under Rule 12(b)(6) is dispositive, the Court need not reach Moving Defendants' arguments on immunity under the CGIA, damages, or striking portions of the Complaint under Rule 12(f).

         I. BACKGROUND

         The following allegations are taken from the Complaint. (ECF No. 1.) The Court assumes these allegations to be true for purposes of this motion.

         Plaintiff and non-moving Defendant Tumpkin had a relationship from December 2013 to November 2016 during which Tumpkin repeatedly engaged in abusive and violent behavior toward Plaintiff. (ECF No. 1 ¶ 2.) The University hired Tumpkin as an Assistant Coach for the men's football team in February 2015. (Id. ¶ 5.) In February 2015, while Tumpkin resided in temporary accommodations provided by the University in Broomfield, Colorado, he began “physically, psychologically[, ] and verbally abusing Plaintiff and a “pattern of abuse followed thereafter, through November 20, 2016.” (Id.) Plaintiff alleges that during this period, Tumpkin choked her “approximately one hundred times.” (Id. ¶¶ 37, 64.) Plaintiff ended her turbulent relationship with Tumpkin in November 2016. (Id. ¶ 64.) In December 2016, Plaintiff was diagnosed with post-traumatic stress disorder as a result of Tumpkin's abuse. (Id. ¶ 67.)

         In December 2016, Plaintiff reported Tumpkin's abuse to his employer. Specifically, on December 7, 2016, Plaintiff e-mailed Head Coach MacIntyre and asked that he contact her about a “very confidential concern” about Tumpkin. (Id. ¶ 69.) On December 9, 2016, MacIntyre called Plaintiff. (Id. ¶ 71.) During that call, Plaintiff relayed to MacIntyre the history of Tumpkin's abusive behavior and his propensity to abuse alcohol and drive while intoxicated. (Id.) Plaintiff also told MacIntyre that Tumpkin was “dangerous to women and to drivers and pedestrians on the road” and expressed concern that Tumpkin would kill himself, her, or someone else. (Id. ¶ 72.) Plaintiff claims that she “expected MacIntyre's help to protect her and others from Tumpkin, ” and that MacIntyre was required “both by contract and University policy, to act in a manner to assure that he and his staff comply with University policies and the law.” (Id. ¶¶ 75, 77.) In response, MacIntyre allegedly told Plaintiff that he believed her and “promised that he would exercise his authority to address the issue immediately.” (Id. ¶ 76.)

         After Plaintiff's report, MacIntyre contacted Tumpkin about the allegations and allegedly provided him with contact information for an attorney, who Tumpkin later engaged as counsel. (Id. ¶¶ 86, 88.) Plaintiff claims that by informing Tumpkin about Plaintiffs report, MacIntyre “greatly increased the danger presented to Plaintiff.” (Id. ¶ 87.)

         Plaintiff alleges that the only people who were informed about her report on Tumpkin were a “small group of people, which only included people they felt confident would place the football team's interests over their legal and ethical duties and obligations.” (Id. ¶ 84.) On December 10, 2016, MacIntyre informed Plaintiff that he had contacted Athletic Director George (his direct supervisor) and the two had set up a meeting to discuss Plaintiffs concerns. (Id. ¶ 81.) George did not inform the University's Title IX Coordinator. (Id. ¶ 92.) By December 11, George informed Chancellor DiStefano of the allegations. (Id.) By December 14, DiStefano decided not to report the issues raised by Plaintiff to the University's Title IX Coordinator. (Id. ¶ 93.) During the week of December 16, DiStefano informed President Benson about the issues raised by Plaintiff. (Id. ¶ 98.) Benson did not contact the Title IX Coordinator. (Id.) On December 28, DiStefano informed University Counsel Patrick O'Rourke about the situation. (Id. ¶ 99.) O'Rourke did not inform the Title IX Coordinator. (Id.)

         During the same period, the University football team was preparing to play in the Alamo Bowl. On December 16, 2016, MacIntyre held a press conference to announce that Tumpkin had been promoted to Defensive Coordinator for the Alamo Bowl. (Id. ¶ 96.) On December 28-the day of the Alamo Bowl and DiStefano's conversation with O'Rourke about Plaintiff's claims-DiStefano and O'Rourke discussed that MacIntyre and George were considering permanently promoting Tumpkin and extending his contract. (Id. ¶ 99.)

         In December 2016, Plaintiff also sought to redress Tumpkin's actions through the criminal justice system. Plaintiff reported Tumpkin's abuse to the Broomfield Police Department and sought a civil protection order. (Id. ¶ 100.) Plaintiff obtained a temporary protection order on December 20, 2016 and a permanent order on January 25, 2017. (Id. ¶¶ 101, 104.) On January 31, 2017, the Broomfield Police Department charged Tumpkin with felony and misdemeanor charges. (Id. ¶ 107.)

         When the press contacted the University on January 6, 2017 about the temporary protection order, the University placed Tumpkin on administrative leave. (Id. ¶ 103.) On January 26, 2017, the day after the permanent protection order was issued, University officials requested that Tumpkin resign. (Id. ¶ 105.) Tumpkin tendered his resignation the following day. (Id.)

         The University subsequently engaged outside counsel at Cozen O'Connor and WilmerHale to investigate “its failure and the failures of its personnel in this matter.” (Id. ¶ 108.) The law firms issued two separate reports, one on the institutional response to the allegations of domestic violence (Cozen O'Connor) and the other on proposed disciplinary measures (WilmerHale). The Cozen O'Connor report concluded that MacIntyre, George, and DiStefano failed to report allegations of domestic violence to the University's Office of Institutional Equity and Compliance (“OIEC”) in violation of University Policy. MacIntyre, George, and DiStefano received letters of reprimand. (Id. ¶ 112.) MacIntyre and George made $100, 000 contributions to programs supporting victims of domestic or dating violence. (Id.) DiStefano agreed to take ten days of paid leave and the University donated DiStefano's salary for that period to programs supporting victims of domestic or dating violence. (Id.)

         On September 6, 2017, Plaintiff filed a lawsuit against Tumpkin and Moving Defendants. Plaintiff is pursuing a general negligence claim against Moving Defendants. Plaintiff alleges that she suffered “physical and psychological injuries, trauma and other damages” as a result of Moving Defendants' failure to take appropriate action to supervise subordinates and report information to the University. (Id. ¶¶ 9, 134-44, 148-55, 158-62, 165-68.)

         II. LEGAL STANDARD

         In reviewing a Motion to Dismiss under Rule 12(b)(6), the Court will “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Thus the Court “must accept all allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (“Twombly”)).

         “[T]o withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570). This means that “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief. ‘Factual allegations must be enough to raise a right to relief above the speculative level.'” Id. (quoting Twombly, 550 U.S. at 545 & 556). The plaintiff “does not need detailed factual allegations” but must plead more than merely “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.

         III. ANALYSIS

         The Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) because Plaintiff is a citizen of Michigan and all Defendants are citizens of Colorado, and the amount in controversy exceeds $75, 000 exclusive of interests and costs. As a federal court sitting in diversity jurisdiction, the Court applies the law of the state where ...


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