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Doe v. Northern Kentucky University

United States District Court, E.D. Kentucky, Northern Division

May 2, 2017



          William O. Bertelsman United States District Judge.

         This matter is before the Court on the motion by defendant Northern Kentucky University (“NKU”) to recuse and stay proceedings (Docs. 202, 203), defendant Kachurek's motion for recusal and to stay (Doc. 206), plaintiff's combined response thereto (Doc. 235), and NKU's reply (Doc. 239).

         The Court has carefully reviewed this matter and finds that the parties' briefs adequately define the issues such that oral argument is unnecessary. Thus, having given this matter close study and consideration, the Court now issues the following Memorandum Opinion and Order.

         Factual and Procedural Background

         A detailed recitation of the background of this case is necessary to understand the posture of the motions before the Court.

         This case was filed on February 12, 2016. Plaintiff alleges, inter alia, that NKU violated Title IX by responding with deliberate indifference after she was sexually assaulted by a fellow student during the fall semester of 2013. (Doc. 1-1). In her complaint, plaintiff alleged claims against NKU for violation of Title IX, Title IX retaliation, and breach of fiduciary duty; and against former NKU Police Chief Les Kachurek (“Kachurek”) for Title IX retaliation. Further, NKU President Geoffrey Mearns (“Mearns”), Title IX Coordinator Kathleen Roberts (“Roberts”), and NKU Deputy Title IX Coordinator Ann James (“James”) were sued under 42 U.S.C. § 1983 for violations of plaintiff's First and Fourteenth Amendment rights. Id.

         Upon filing, as is the practice in this division, all discovery and other pretrial matters were referred to the assigned United States Magistrate Judge. (Doc. 2).

         On March 9, 2016, the Court held its routine monthly docket call on this and several other cases, after which it issued a scheduling order setting discovery and dispositive motion deadlines. (Doc. 7). Discovery then proceeded under the supervision of the Magistrate Judge.

         On July 29, 2016, defendants NKU, Mearns, Roberts, and James filed a motion for partial summary judgment on plaintiff's claim for Title IX retaliation. Defendants argued that the claim was based solely on communications from NKU's outside counsel, the admission of which is barred by Fed.R.Civ.P. 408. (Doc. 26).

         According to the Affidavit of Michael S. Jones, attached to plaintiff's Memorandum in Opposition to Defendants' Motions to Recuse and to Stay, Nicholas Gregg (“Gregg”) - the undersigned's grandson - applied for and interviewed with plaintiff's counsel's law firm in August 2016. (Doc. 235-1 ¶ 11).

         The firm, aware of this relationship, conducted research to determine if hiring Gregg would prevent the firm from appearing before the undersigned. Id. ¶ 15. The firm determined that so long as the requirements of 28 U.S.C. 455(b) were observed - viz, that Gregg did not act as a lawyer in the proceeding in question and had no interest that could be substantially affected by its outcome - his employment with the firm would not prevent its attorneys from appearing before the Court. Id.

         The undersigned was aware that Gregg was applying to the firm and was already familiar with the dictates of 28 U.S.C. § 455 because, when Gregg entered his third year of law school and began seeking employment, the undersigned looked into these issues so he could advise his grandson accordingly. The undersigned advised his grandson that there need be no need for recusal if the provisions of 28 U.S.C. § 455(b) were observed, that is, he could not be “an attorney in the case” or have an interest that could be substantially affected by the outcome of the proceeding.

         In any event, Gregg - who had taken the July 2016 Ohio bar exam but had not learned his results - began his employment with the firm as a law clerk on or about August 22, 2016, and the firm created an ethical wall so that Gregg would neither work on this case nor be exposed to information about it. Id. ¶¶ 16-17, 22-24, 29-30.

         Discovery and briefing on various motions proceeded. On September 15, 2016, defendants NKU, Mearns, Roberts, and James filed a motion for partial dismissal of plaintiff's amended complaint. (Doc. 82).[1]

         The Court held a formal oral argument on pending motions on October 18, 2016. (Doc. 106). On October 24, 2016, the Court issued a Memorandum Opinion and Order making rulings for and against both sides. (Doc. 108). The Court denied NKU's motion for a gag order, based on well-settled and binding law. Id. at 1-4.[2] The Court also granted sanctions against NKU for certain obstructive actions by counsel in a deposition, about which they had previously been cautioned by the Magistrate Judge. Id. at 4-10.

         Next, the Court granted the NKU defendants' motion for partial summary judgment, dismissing plaintiff's claim for Title IX retaliation based upon correspondence from NKU's outside counsel. Id. at 10-12.

         Approximately a week later, the Court issued another Memorandum Opinion and Order. (Doc. 115). In this Order, the Court ruled in the NKU defendants' favor in all respects. First, the Court dismissed plaintiff's claim for violation of substantive due process based upon the insufficiency of her pleadings. Id. at 1-3.

         Second, the Court held that even absent such deficiencies, the NKU individual defendants were entitled to qualified immunity from such claims. Id. at 3-5.

         Third, the Court ruled in defendant Mearns' favor on plaintiff's First Amendment claim, also dismissing it with prejudice. Id. at 6-7.

         These rulings on the constitutional claims removed any possibility that plaintiff could recover punitive damages from the NKU defendants.[3]

         Finally, the Court dismissed plaintiff's claim for breach of contract against the NKU defendants. Id. at 7-8.[4]

         These rulings came months after the undersigned's grandson began employment with plaintiff's counsel's firm, and the Court was satisfied that the provisions of § 455(b) were being observed.

         Moving forward, in a hearing held on December 7, 2016, the Court stressed the national importance of the issues raised in Title IX cases such as this, both for alleged perpetrators and their alleged victims. (Doc. 140, Transcript at 2-3). The Court further noted:

I don't like to see NKU getting all this bad publicity. Before any of your time, I was one-time president of the Chamber of Commerce, and we had a battle royal[e] to get that university established up here. Lexington fought it. U.K didn't want the competition. Louisville fought it for the same reason. We fought a battle that went on for years until we finally got this university here. And it's done well. ...

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