United States District Court, D. Colorado
ORDER GRANTING PARTIAL MOTION TO DISMISS
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
This
lawsuit arises out of an investigation by the University of
Colorado at Boulder (the “University”) into
alleged sexual misconduct by Plaintiff John Doe
(“Doe”) and Doe's ultimate expulsion from the
University as a result of the investigation. (ECF No. 11.)
Doe brings claims against University Chancellor Phillip
DiStefano (“DiStefano”) and the Board of Regents
for the University (“Board of Regents”)
(together, “Defendants”) for breach of contract,
breach of the implied covenant of good faith and fair
dealing, estoppel, and violation of due process provisions of
the United States constitution under 42 U.S.C. § 1983,
and seeks a declaratory judgment for alleged violations of
the due process provisions of the United States and Colorado
Constitutions. (ECF No. 11 ¶¶ 96-149.)
Defendants
filed a partial motion to dismiss (the “Motion”)
Doe's common law contractual claims and his Colorado
constitutional claim. (ECF No. 14.) In response, Doe withdrew
his claims under the Colorado Constitution. (ECF No. 20 at
2.) For the reasons discussed below, the Court dismisses some
of Doe's common law contractual claims with prejudice,
and some without prejudice.
I.
LEGAL STANDARD
Under
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim in a complaint for “failure to state a
claim upon which relief can be granted.” The 12(b)(6)
standard requires the Court to “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). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘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 Twombly,
550 U.S. at 556).
II.
BACKGROUND
The
Court assumes the following to be true for purposes of
Defendants' Motion.
A.
Investigation & Expulsion
As of
April 2016, Plaintiff was a student at the University and a
member of the Phi Kappa Psi fraternity. (ECF No. 11
¶¶ 1, 60.) In early April 2016, a female
undergraduate student (“Complainant”) attended a
party at the Phi Kappa Psi house and thereafter reported to
officers of the Boulder Police Department (“BPD”)
that she had possibly been drugged and had sex that she did
not remember with someone, whom she later identified as Doe.
(Id. ¶¶ 63-69.)[1] On April 11, 2016, the BPD
reported allegations of possible drugging and sexual assault
of Complainant to the University's Office of
Institutional Equity and Compliance (“OIEC”).
(Id. ¶ 70.)[2]
In late
September 2016, OIEC obtained a redacted copy of the BPD
report. (Id. ¶ 73.) On September 30, 2016, OIEC
issued a Notice of Investigation to Doe alleging sexual
misconduct with Complainant in violation of Section G2 of
OIEC's rules. (Id. ¶ 75.) OIEC investigated
the allegations by speaking with 23 witnesses and reviewing
documentation in the form of text messages, a video,
materials and information from the investigation by the BPD
and Boulder County District Attorney, and an examination by a
Sex Assault Nurse Examiner. (Id. ¶ 79.) On
January 24, 2017, OIEC produced a final report that concluded
that it was “more likely than not” that Doe
engaged in nonconsensual sexual intercourse with Complainant.
(Id. ¶¶ 84, 85.h.) As a result of these
findings, the University expelled Doe in February 2017.
(Id. ¶ 1.)
B.
The University's Policies
Consistent
with its Title IX obligations, the University has adopted
policies and procedures for investigating and adjudicating
alleged sexual misconduct. (Id. ¶ 52; ECF Nos.
11-1 (Process and Procedures 2015-2016, effective July 1,
2015) & 11-2 (Process and Procedures 2016-2017, effective
July 1, 2016).) These documents set forth prohibited conduct,
the investigatory process, and disciplinary actions for
engaging in prohibited conduct. (ECF No. 11 ¶¶
53-59.)
The
cover page of Process and Procedures 2015-2016
(“2015-2016 Policy”) states that it is an
“interim document and any material changes shall be
published on or before January 1, 2016.” (ECF No. 11-1
at 1.) The cover page of Process and Procedures 2016-2017
(“2016-2017 Policy”) states that the document is
“intended to provide general information to members of
the university community” and “is not intended
to, nor does it, create a contract between the OIEC or [the
University] and community members.” (ECF No. 11-2 at
1.)
The
Amended Complaint does not state which of the two policies
applies, or whether any “material changes” to the
2015-2016 Policy were published before January 1, 2016.
Doe's response to the Motion states that OIEC employed
the procedures listed in the 2016-2017 Policy in its
investigation of Doe, although Doe contends that OIEC should
have used the 2015-2016 Policy. (ECF No. 20 at 5.) Throughout
the Amended Complaint, Doe jointly ...