Doe v. Baylor University

Western District of Texas, txwd-6:2017-cv-00125

MOTION to Dismiss and Defendant's Motion to Strike Immaterial and Inflammatory Allegations by Baylor University.

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0 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION JANE DOE § Plaintiff, § § v. § Civil Action No. 6:17-CV-00125-RP § BAYLOR UNIVERSITY, § § Defendant. § DEFENDANT BAYLOR UNIVERSITY'S PARTIAL MOTION TO DISMISS AND DEFENDANT'S MOTION TO STRIKE IMMATERIAL AND INFLAMMATORY ALLEGATIONS Lisa A. Brown Texas Bar No. 03151470 Thompson & Horton LLP 3200 Southwest Freeway, Suite 2000 Houston, Texas 77584 (713) 554-6741 (telephone) (713) 583-7934 (fax) lbrown@thompsonhorton.com Holly G. McIntush Texas Bar No. 24065721 Thompson & Horton LLP 400 West 15th Street, Suite 1430 Austin, Texas 78701 (512) 615-2351 (telephone) (512) 682-8860 (fax) hmcintush@thompsonhorton.com ATTORNEYS FOR DEFENDANT BAYLOR UNIVERSITY 0 TABLE OF CONTENTS TABLE OF CONTENTS ......................................................................................................... ii TABLE OF AUTHORITIES .................................................................................................. iii OVERVIEW ..............................................................................................................................6 STANDARD OF REVIEW .......................................................................................................7 FACTUAL ALLEGATIONS ....................................................................................................7 ARGUMENT & AUTHORITIES ............................................................................................9 I. Some of Plaintiff's Title IX claims are barred by the statute of limitations. ......................9 A. Overview of Title IX ............................................................................................9 B. Plaintiff's post-assault claims expired before she filed this lawsuit. .................... 10 C. Tolling is inapplicable. ....................................................................................... 12 II. Plaintiff does not have standing to seek injunctive relief. ............................................... 16 III. Plaintiff's complaint contains immaterial, inflammatory, and prejudicial allegations that should be stricken. ................................................................................. 16 CONCLUSION AND PRAYER ............................................................................................. 18 CERTIFICATE OF SERVICE .............................................................................................. 20 ii 0 TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................. 2 Beavers v. Metro. Life Ins. Co., 556 F.3d 436 (5th Cir. 2009) ................................................................................................. 2 Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995) ................................................................................................... 2 Bd. of Sch. Comm'r of Indianapolis v. Jacobs, 420 U.S. 128 (1975) ........................................................................................................... 11 Borderlon v. Peck, 661 S.W.2d 907 (Tex. 1983).................................................................................................. 9 Cesarani v. Graham, 25 F.3d 1044 (5th Cir. 1994) ............................................................................................... 11 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) ........................................................................................................ 4, 12 Doe 1, et al. v. Baylor Univ., No. 6:16-cv-00173-RP, 2017 WL 1831996 (W.D. Tex. Mar. 7, 2017) ............................... 4, 7 Doe v. Henderson Indep. Sch. Dist., 237 F.3d 631, 2000 WL 1701752 (5th Cir. 2000) ......................................................... passim Doe v. Mercy Catholic Med. Ctr., 2017 WL 894455 (3d Cir. Mar. 7, 2017)................................................................................ 4 Doe v. Roman Catholic Archdiocese of Galveston-Hous. ex rel. Dinardo, 362 S.W.3d 803 (Tex. App.—Houston [14th] 2012, no pet.) ........................................... 9, 10 Doe v. St. Stephen's Episcopal School, 382 F. App'x 386 (5th Cir. 2010) ...................................................................................... 8, 9 Edwards v. High Desert State Prison, 2011 WL 1135910 (E.D. Cal. Mar. 25, 2011) ...................................................................... 13 Gardner v. Tulia Indep. Sch. Dist., 2003 WL 21770818 (5th Cir. July 31, 2005)........................................................................ 11 iii 0 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) ........................................................................................................ 4, 12 Getchey v. Cnty. of Northumberland, 120 F. App'x 895 (3d Cir. 2005) ......................................................................................... 10 Harris v. U.S. Dep't of Justice, 680 F.2d 1109 (5th Cir. 1982) ............................................................................................. 11 Jones v. ALCOA Inc., 339 F.3d 359 (5th Cir. 2003).................................................................................................. 5 King-White v. Humble Indep. Sch. Dist., 803 F.3d 754 (5th Cir. 2015) ........................................................................................ passim Longoria v. City of Bay City, 779 F.2d 1136 (5th Cir. 1986) ............................................................................................... 9 Mayzone v. Missionary Oblates of Mary Immaculate of Tex., 2014 WL 3747249 (Tex. App.—San Antonio July 30, 2014, pet. den.).................................. 8 McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) ........................................................................................... 2, 13 Rotella v. Wood, 528 U.S. 549 (2000) .............................................................................................................. 5 Samuelson v. Or. State Univ., 162 F.Supp.3d 1123 (D. Or. 2016)......................................................................................... 7 Twersky v. Yeshiva Univ., 579 F. App'x 7 (2d Cir. 2014) ........................................................................................... 6, 7 Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599 (5th Cir. 2004) ............................................................................................... 11 Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) ................................................................................................. 8 Statutes 20 U.S.C. § 1681 ......................................................................................................................... 1 TEX. CIV. PRAC. & REM. CODE § 16.003 ...................................................................................... 5 Other Authorities 5C Charles Alan Wright, et al., Federal Practice and Procedure § 1382 (3d ed. 2017). .................................................................................................................................. 12 iv 0 Federal Rules of Civil Procedure Rule 8 ................................................................................ 2, 11 Federal Rules of Civil Procedure Rule 12 ........................................................................ 2, 11, 12 v 0 TO THE JUDGE OF THE HONORABLE COURT: Defendant Baylor University moves to dismiss certain claims in Jane Doe's Complaint (Dkt. 1) and moves this Court for an order striking certain averments from the Complaint as follows: OVERVIEW Jane Doe is a former Baylor University student. She alleges that she was raped in an off- campus residence in February 2012 by Baylor football players. She asserts claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Baylor moves to dismiss Plaintiff's claims that are based on Baylor's alleged failure to assist Plaintiff after the alleged assault as these claims are plainly time-barred on the face of the Complaint. Plaintiff alleges that she was raped on February 11, 2012, and that she experienced a hostile environment until she left the university in the spring of 2013. Plaintiff's complaint, assumed to be true, shows that she knew for at least three years that nothing had been done to investigate her claim or help her. Plaintiff's claim expired in spring 2015 at the latest. Baylor also moves to dismiss Plaintiff's claim for injunctive relief as she lacks standing to pursue such a claim. Finally, Baylor moves to strike numerous inflammatory, prejudicial and/or irrelevant statements from Plaintiff's complaint. Notably, although Plaintiff alleges that her assault occurred on February 11, 2012, the complaint is dominated by allegations of alleged incidents that occurred during a four-year period after Plaintiff's alleged rape and long after she left Baylor. In particular, Plaintiff's Paragraph 51 is a veritable catalog of irrelevant and/or inflammatory allegations pulled from Internet articles and culled from other lawsuits. It consists of more than eight pages containing 100 separate averments that relate primarily to allegations that post-date Plaintiff's alleged injuries. Plaintiff also has intentionally burdened Defendant by including irrelevant averments such as the score at football games two and three years after 6 0 Plaintiff left Baylor. The Complaint violates Rule 12(f) of the Federal Rules of Civil Procedure as well as Rule 8, which requires a short and plain statement of Plaintiff's complaints. A complaint that is "written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint." McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996). Plaintiff moves to strike particular averments as stated in Section III of this motion. STANDARD OF REVIEW To avoid dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the plaintiff's complaint must provide sufficient factual allegations that, when assumed to be true, state a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Plaintiffs must "plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the Court must accept well-pled facts as true, neither conclusory allegations nor "legal conclusions masquerading as factual conclusions" are entitled to a presumption of truth. Beavers v. Metro. Life Ins. Co., 556 F.3d 436, 439 (5th Cir. 2009). Dismissal also is proper "if the complaint lacks an allegation regarding a required element necessary to obtain relief." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). FACTUAL ALLEGATIONS Plaintiff was a student-athlete at Baylor from the fall semester of 2011 to the spring semester of 2013. Dkt. 1, ¶ 6. Plaintiff alleges that on February 11, 2012, she attended an off- campus party, "became very intoxicated," was drugged, and was "brutally" raped by Baylor football players. Id. ¶¶ 74, 76, 78. Plaintiff alleges that she was subsequently "subjected to verbal abuse and public humiliation by Baylor football players" and that she was subject to a 7 0 sexually hostile culture and policies. Id. ¶¶ 80, 82. Plaintiff alleges that she saw her assailants around campus and in class and received harassing text messages. Id. ¶¶ 85-89, 91-92, 94, 96. Plaintiff alleges that two football players burglarized her apartment in April 2013, that she told the football coach about this burglary, and that nothing was done. Id. ¶¶ 91, 95. Plaintiff alleges that, in July 2012, her mother met with an assistant football coach and provided the names of her assailants, although she did not provide Plaintiff's name. Id. ¶ 83. Plaintiff alleges that her mother asked the assistant coach what could be done and that he never got back to her. Id. Plaintiff alleges that in the spring of 2013 she told a counselor about the assault. Id. ¶ 90. Plaintiff alleges that, in April 2013, she told her coach and another volleyball staff member about the assault and that Plaintiff's coach informed the athletic director and head football coach. Id. ¶¶ 97-99. Plaintiff alleged that none of these individuals (her coach, the football coach, or the athletic director) reported Plaintiff's alleged assault to Student Judicial Affairs. Id. ¶ 109. She also claims that she later told a chaplain and that he did not report the assault. Id. at ¶ 103. Plaintiff alleges that she had no choice but to leave Baylor, which she did in the spring semester of 2013. Id. at ¶¶ 102-103. Plaintiff alleges that Baylor officials misinformed her, concealed her options, and discouraged her. Id. at ¶¶ 111, 137. Plaintiff alleges that did not learn of Baylor's alleged misconduct until May 2016 when Baylor released the Findings of Fact based on an investigation performed by its outside law firm, Pepper Hamilton. Id. at ¶¶ 134, 138. Plaintiff also alleges that, when the Findings of Fact were released, the findings were "consistent with Plaintiff's own interactions with the football program" three years earlier. Id. at ¶ 60 (emphasis added). 8 0 ARGUMENT & AUTHORITIES I. Some of Plaintiff's Title IX claims are barred by the statute of limitations. A. Overview of Title IX Title IX prohibits gender discrimination in the education programs and activities of educational institutions that receive federal funds. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280 (1998); 20 U.S.C. § 1681(a). In "certain limited circumstances," institutions may be held liable for acts of student-to-student sexual harassment, but the institution must exercise "substantial control" over both the offender and the context in which the harassment occurs. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643, 645 (1999); Doe v. Mercy Catholic Med. Ctr., 2017 WL 894455, at *6 (3d Cir. Mar. 7, 2017) (stating that the "program" or "activity" must relate to the educational operations of the institution; "Title IX does not 'encompass every experience of life' that a student may encounter"). Further, the student must show that an "appropriate person" with authority to take corrective action received "actual knowledge" of sexual misconduct and responded with "deliberate indifference" that subjected the student to harassment that is "so severe, pervasive, and objectively offensive that it can be said to deprive the victim[ ] of access to the educational opportunities or benefits provided by the school." Id. at 644-45, 648, 650-51. A response is deliberately indifferent if it is "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648 (emphasis added). Plaintiff's complaint presents two theories of liability under Title IX. She alleges that Baylor's alleged actions before her assault led to a "sexually hostile culture" and that Baylor is therefore liable in damages for the assault itself. Dkt. 1, ¶¶ 128-29. This Court recently characterized this theory as a "heightened-risk claim." Doe 1, et al. v. Baylor Univ., No. 6:16- cv-00173-RP, 2017 WL 1831996, at *6 (W.D. Tex. Mar. 7, 2017). Plaintiff also complains 9 0 about Baylor's alleged failure to assist her after the alleged assault. Dkt. 1, ¶¶ 117-23. Baylor moves to dismiss Plaintiff's post-assault reporting and hostile environment claims. B. Plaintiff's post-assault claims expired before she filed this lawsuit. Title IX claims are subject to the two-year statute of limitations under Section 16.003(a) of the Texas Civil Practices & Remedies Code. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758-61 (5th Cir. 2015). A claim is subject to dismissal based on limitations when it is evident from the plaintiff's pleading that the action is barred and there is no basis for tolling. Jones v. ALCOA Inc., 339 F.3d 359, 366 (5th Cir. 2003). Here, Plaintiff's allegations, assumed to be true, demonstrate that her claims based on a failure to investigate and the existence of a sexually hostile environment are untimely and are not saved by any tolling doctrine. The time of accrual is a question of federal law. King-White, 803 F.3d at 762. The statute of limitations begins to run when the plaintiff becomes aware that she has suffered an injury or has sufficient information to know that she has been injured. Id. The plaintiff's awareness encompasses both awareness of the injury and awareness of the causal link between the injury and the defendant. Id. Awareness for accrual purposes does not mean "actual knowledge," but, rather, means there are circumstances that would lead a reasonable person to investigate further. Id.; see generally Rotella v. Wood, 528 U.S. 549, 555-56 (2000) (rejecting the argument that accrual in a RICO action should be tied to plaintiff's discovery of a "pattern of racketeering" rather than the plaintiff's injury; accrual was not deferred even though the "pattern of predicate acts" may be "complex, concealed, or fraudulent"). The plaintiff "need not know the full extent of his injury because it is the discovery of the injury, not all of the elements of the cause of action, that starts the limitations clock." Doe v. Henderson Indep. Sch. Dist., 237 F.3d 631, 2000 WL 1701752, at *6 (5th Cir. 2000) (citation omitted). 10 0 In King-White, the Fifth Circuit affirmed the 12(b)(6) dismissal of an untimely claim on facts very similar to Plaintiff's. The plaintiff in King-White was a student who was sexually abused by her high school teacher. See 803 F.3d at 762-63. Like Jane Doe in this case, the student in King-White alleged that her mother complained to school officials but that nothing was done. And like Jane Doe, the student in King-White alleged that she was not aware of the school district's alleged wrongdoing until after the fact. In King-White, the plaintiffs "urge[d]" the court "to adopt a 'delayed accrual' rule with respect to HISD, because the claims against HISD [we]re necessarily based on official 'policies or customs' that could not have been known at the time of [the teacher]'s abuse." Id. at 763 (emphasis added). The Fifth Circuit declined to do so, instead applying the "ordinary" accrual rule because of the plaintiffs' awareness of (i) the abuse, (ii) the abuser's connection to her school, and (iii) the fact that her own complaints to the district "had gone unheeded." Id. at 763. This information would have caused a reasonable person to investigate further. Id. In this case, Plaintiff alleges that she and/or her mother told different coaches and a chaplain about her alleged assault in 2012 and 2013 and that nothing was done. For the next three years, Plaintiff was fully aware that nothing had been done to help her. King- White is dispositive. Similarly, in Henderson, the Fifth Circuit rejected the untimely claims of several child abuse victims because they knew that they had been abused and they knew that the offender worked at their school. 2000 WL 1701752, at *5. Likewise, in Twersky v. Yeshiva University, the court held that plaintiffs' knowledge of their injuries, their abusers' identities, and their abusers' connection to the school put the plaintiffs on "at least inquiry notice." 579 F. App'x 7, at *10 (2d Cir. 2014). The court rejected the plaintiffs' argument that their claim did not accrue 11 0 until a university official admitted in a media interview years later that school officials previously knew of the risk of sexual abuse. Id. Plaintiff alleges that she did not realize that she had been wronged until she read the May 2016 Findings of Fact following the Pepper Hamilton investigation. Dkt. at ¶¶ 134, 138. Plaintiff's attempt to apply an actual knowledge standard is unavailing under King-White. Her assertion also is undercut by her admission that, when the Findings of Fact were released in 2016, the findings were "consistent with Plaintiff's own interactions with the football program" while she was at Baylor. Id. at ¶ 60 (emphasis added); see also id. at ¶ 82. Plaintiff's allegations show that she was on "at least inquiry notice" of an allegedly hostile culture for women. Plaintiff's complaint shows that she was aware of the assault, was aware of the athletes' connection to Baylor, was aware of the lack of action by Baylor after her mother made a report, and was aware of the allegedly continuing hostile treatment that she received from athletes after her mother's report while she was still at Baylor. These factual allegations are more than sufficient to establish inquiry notice under King-White. As a matter of law, any claims based on Baylor's alleged indifference to Plaintiff's alleged reports in 2012 and 2013 expired, at the very latest, in the spring of 2015. See, e.g., Samuelson v. Or. State Univ., 162 F.Supp.3d 1123, 1134-35 (D. Or. 2016) (plaintiff's claim based on university's deliberate indifference accrued when university was indifferent to her specific report); see also Doe 1, et al. v. Baylor Univ., 2017 WL 1831996, at *11 (W.D. Tex., March 7, 2017) (dismissing post-reporting claims of plaintiffs who left the university years before bringing suit). C. Tolling is inapplicable. Plaintiff's pleading also shows that there is no basis for tolling. Texas's discovery rule tolls the statute of limitations "if 'the nature of the injury incurred is inherently undiscoverable 12 0 and the evidence of injury is objectively verifiable.'" King-White, 803 F.3d at 764. As with the federal accrual rule, "'[d]iscovery' does not mean 'actual knowledge of the particulars of a cause of action,' but whether the plaintiff has 'knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights.' Hence, the tolling period may expire and the statute of limitations may begin to run before a plaintiff subjectively learns the 'details of the evidence by which to establish [her] cause of action.'" Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 402–03 (5th Cir. 1998) (internal citations omitted). As previously shown, Plaintiff's pleadings, assumed to be true, show that she was aware that she had been assaulted and that she and her mother reported it to athletic department staff. Reporting a sexual assault "foreclose[s]" the contention that the injury was inherently undiscoverable. See Doe v. St. Stephen's Episcopal Sch., 382 F. App'x 386, 389 (5th Cir. 2010); see, e.g., Henderson, 2000 WL 1701752, at *6-7 (plaintiff "knew that Ward was employed by HISD and the Church as that was the context in which they came in contact with Ward. This should have been sufficient knowledge by the plaintiffs that there was nothing left for them to 'discover' for tolling purposes"); Mayzone v. Missionary Oblates of Mary Immaculate of Tex., 2014 WL 3747249, at *4 (Tex. App.—San Antonio July 30, 2014, pet. den.) (rejecting discovery rule despite allegation that the molesting priest "had a history of sexually abusing children and that [church officials] were aware of this history but nevertheless authorized him to work at the church"; plaintiff's knowledge of the sexual abuse was the relevant knowledge for accrual purposes). The doctrines of fraudulent concealment and equitable estoppel also do not apply. Fraudulent concealment applies when a defendant is under a duty to disclose information but fraudulently conceals the existence of a cause of action from the injured party. See Borderlon v. 13 0 Peck, 661 S.W.2d 907, 908 (Tex. 1983). The plaintiff must show that the defendant had actual knowledge that a wrong occurred, a duty to disclose the wrong, and a fixed purpose to conceal. Id. Similarly, equitable estoppel requires "a false representation or concealment of material facts [and] the party to whom the statement was made must have been without knowledge or means of knowledge of the real facts." Id. With both doctrines, the estoppel effect ends when the party learns of facts that would cause a reasonably prudent person to make an inquiry that, if pursued, would lead to discovery of the concealed claim. King-White, 803 F.3d at 764. For example, in Longoria v. City of Bay City, 779 F.2d 1136, 1139 (5th Cir. 1986), the Fifth Circuit held that the plaintiffs, whose home had flooded, were on notice to investigate the possibility of fraud when their house first flooded and not when they learned from the media that the city had concealed that the land was flood-prone. "The argument that the statutory period is tolled until the plaintiff learns that the defendant's conduct may have been wrongful finds no support in the relevant case law." Id. Here, Plaintiff was aware of her injury, the on-going hostile environment, the non- response of school officials, and the alleged failure to discipline the harassing football players who continued to attend school with her. As in Henderson, Plaintiff knew the football players' connection to her school "as that was the context in which [she] came into contact" with them. 2000 WL 1701752, at *6-7. Plaintiff's knowledge is sufficient to preclude tolling. Id. Plaintiff does not allege that she was deceived by Baylor into believing that she had not been assaulted. Dkt. No. 1, ¶¶ 137-44. Tolling is not available when the victims actually know about the abuse and were not "deceived into thinking they had not been abused." St. Stephen's Episcopal Sch., 382 F. App'x at 390. This is true even if the defendant concealed or failed to disclose information. See Doe v. Roman Catholic Archdiocese of Galveston-Houston, 362 S.W.3d 803, 14 0 814 (Tex. App.—Houston [14th Dist.], 2012, no pet.) (church's failure to disclose did not toll statute of limitations; a plaintiff cannot argue fraudulent concealment when she "was not deceived into thinking that she was not being abused"); Henderson, 2000 WL 1701752, at *5 (although the plaintiffs "were ignorant of the defendants' concealment, they were painfully aware of the abuse by [the offender]"); Roman Catholic Archdiocese of Galveston-Hous, 362 S.W.3d at 814 (church's failure to disclose did not toll statute of limitations; a plaintiff cannot argue fraudulent concealment when she "was not deceived into thinking that she was not being abused"); Getchey v. Cnty. of Northumberland, 120 F. App'x 895, 899 (3d Cir. 2005) (although supervisor discouraged plaintiff from complaining, he did not mislead plaintiff "with respect to the availability of a cause of action because [the supervisor] never denied that the injuries occurred"). Nor can Plaintiff rely on equitable estoppel, as she has not alleged any representations by Baylor that induced her not to file suit. See Henderson, 2000 WL 1701752, at *7. Rather, she alleges that she or her parents asked questions that were not answered. See, e.g., Dkt. 1 at ¶ 83 (stating that Plaintiff's mother asked "what, if anything, Baylor could do about the assault," but she "never heard" back). These allegations are no different than the allegations in King-White: "Here, nothing in Plaintiffs' complaint suggests that HISD or School Officials actively concealed the existence of any causes of action—rather, Plaintiffs' allegations focus on the School Officials' failure to act in the face of knowledge of abuse." 803 F.3d at 764. Moreover, as in King-White, any estoppel effect would have expired when Plaintiff left Baylor. Id. at 764-765 ("Additionally, for the same reasons that we have already concluded Plaintiffs' claims accrued by the spring of 2011 [when the student graduated], Plaintiffs had 15 0 sufficient knowledge of the relevant facts by that time to end any 'estoppel effect' that would otherwise apply."). In sum, Plaintiff's post-reporting claims accrued in 2013, at the latest, and expired in 2015. Further, there is no basis for tolling given Plaintiff's admissions. Plaintiff's claims are untimely under the reasoning in King-White and Henderson and should be dismissed. II. Plaintiff does not have standing to seek injunctive relief. Because Plaintiff is no longer a student at Baylor, she has no recognized interest in the future operation of the university, and her claim for injunctive relief is moot. See Dkt. 1, ¶ 145; Gardner v. Tulia Indep. Sch. Dist., 2003 WL 21770818, at *1 (5th Cir. July 31, 2005) (citing Bd. of Sch. Comm'r of Indianapolis v. Jacobs, 420 U.S. 128 (1975)); Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 607 (5th Cir. 2004). Because she lacks standing, this claim should be dismissed pursuant to Rule 12(b)(1). III. Plaintiff's complaint contains immaterial, inflammatory, and prejudicial allegations that should be stricken. Plaintiff's allegations relating to her alleged assault are buried within a 40-page complaint overwhelmed by immaterial allegations about unrelated incidents and events that post- date Plaintiff's own claim of assault, often by years. The extraneous allegations are irrelevant to Plaintiff's claims and serve no purpose other than to inflame the jury, prejudice Baylor, and burden Baylor by requiring it to admit or deny and ultimately litigate allegations that have no bearing on this lawsuit. As such, they must be stricken from the complaint. Baylor urges the Court to enter an order striking the inflammatory, irrelevant, and prejudicial material from the Complaint under Rule 8 and Rule 12(f). Rule 8 requires plaintiffs to file a "simple, concise and direct" complaint that contains a "short and plain statement of the claim." FED. R. CIV. P. 8. When a plaintiff submits an unnecessarily long complaint, a court 16 0 may order the plaintiff to comply with Rule 8. See Cesarani v. Graham, 25 F.3d 1044 (5th Cir. 1994); Harris v. U.S. Dep't of Justice, 680 F.2d 1109, 1111 (5th Cir. 1982). Similarly, Rule 12(f) permits the court to strike "immaterial" and "impertinent" material from a complaint. FED. R. CIV. P. 12(f). Allegations are "immaterial" when they have "no essential or important relationship to the claim for relief." 5C Charles Alan Wright, et al., Federal Practice and Procedure § 1382 (3d ed. 2017). Plaintiff has asserted sexual harassment claims under Title IX. A Title IX claim requires proof that the institution knew of sexual misconduct prior to the plaintiff's injury. See Davis, 526 U.S. at 648. The institution must be "aware that it was administering the program in violation" of the statute. Gebser, 524 U.S. at 287. Although liability turns on the institution's prior knowledge and policies, Plaintiff's complaint repeatedly describes incidents that allegedly occurred in the years subsequent to Plaintiff's withdrawal from Baylor. Plaintiff also includes an excessive amount of irrelevant averments, such as the scores from football games that occurred years after Plaintiff left Baylor. The averments are immaterial under the substantive law. Additionally, most of the averments relate to third-party students, and responding to many of the assertions would require Baylor to disclose information that is confidential under the Family Education Rights & Privacy Act, 20 U.S.C. § 1232g. Although Plaintiff's complaint contains numerous extraneous statements, the focus of this motion is Plaintiff's Paragraph 51 which consists of more than eight pages of 102 separate, single-spaced bullet points. Although Plaintiff has not numbered the statements, Defendant has assigned numbers to the averments for ease of reference. Plaintiff's own alleged assault is listed at bullet point 18. Defendant moves to strike bullet points 29, 32, 38, 39, 40, 42, 43, 44, 46, 47, 17 0 49, 50, 52, 53, 54, 56, 57, 58, 60, 62, 63, 64, 66, 67, 68, 69, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 88, 89, 90, 91, 93, 96, 100, and 102. When preparing complaints, Plaintiffs "must not include any preambles, introductions, argument, speeches, explanations, stories, griping, vouching, evidence, attempts to negate possible defenses, summaries, and the like." Edwards v. High Desert State Prison, 2011 WL 1135910, at *2 (E.D. Cal. Mar. 25, 2011) (citing McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996)). Instead, "[t]he court (and defendant) should be able to read and understand plaintiff's pleading within minutes." Id. A complaint that is "written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint." McHenry, 84 F.3d at 1180. Here, Plaintiff's Complaint in this case reads like an extended press release. As such, it "fails to perform the essential functions of a complaint." McHenry, 84 F.3d at 1180. Plaintiff is attempting to use inflammatory allegations and speculation about sexual assaults of other women, unrelated in time or place to her own alleged sexual assault, to bolster her claims and unfairly prejudice Baylor. The extraneous and inflammatory material should be stricken, and Defendant should not be required to respond to the averments. CONCLUSION AND PRAYER For the foregoing reasons, Defendant Baylor University prays that the Court will grant this motion and dismiss Plaintiff's post-assault reporting claims and her claim for injunctive relief. Defendant further prays that the Court will strike the above-referenced averments of Plaintiff's complaint. Defendant also prays that the Court grant such other relief, at law or in equity, to which it may show itself entitled. 18 0 Respectfully submitted, THOMPSON & HORTON LLP By: /s/ Lisa A. Brown Lisa A. Brown Texas Bar No. 03151470 Phoenix Tower, Suite 2000 3200 Southwest Freeway Houston, Texas 77027-7554 lbrown@thompsonhorton.com (713) 554-6741 (telephone) Holly G. McIntush Texas Bar No. 24065721 400 W. 15th St., Suite 1430 Austin, Texas 78701 (512) 615-2350 (telephone) (512) 682-8860 (fax) hmcintush@thompsonhorton.com COUNSEL FOR DEFENDANT BAYLOR UNIVERSITY 19 0 CERTIFICATE OF CONFERENCE I hereby certify that I contacted counsel for Plaintiff via email on June 26, 2017, regarding Defendant's motion to strike. As of the date of the filing of this motion, I have not received a response on whether Plaintiff opposes this motion. /s/ Lisa A. Brown Lisa A. Brown CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was served upon opposing counsel on June 27, 2017, via the Court's ECF/CMF electronic filing and service system as follows: Mr. Muhammad S. Aziz ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & AZIZ 800 Commerce Street Houston, Texas 77002 maziz@abrahamwatkins.com /s/ Lisa A. Brown 908555 094030.000011 20