United States District Court, N.D. Alabama, Western Division
MICHAEL W. RONDINI, et al., Plaintiffs,
TERRY J. BUNN, et al., Defendants.
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE
case is before the court on (1) Defendant Terry J. Bunn,
Jr.'s Motion to Dismiss (Doc. # 9), (2) Defendant Adam
Jones's Motion to Dismiss (Doc. # 16), (3) Defendant
Bunn's Motion to Strike (Doc. # 34), (4) Defendants Ron
Abernathy and Joshua Hastings's Amended Motion to Dismiss
(Doc. # 38), and (5) Defendants University of Alabama at
Tuscaloosa (hereinafter the “University”) and
Stuart Bell's Motion to Dismiss (Doc. # 45). The Motions
are fully briefed (see Docs. # 26, 28, 31, 33, 38-1,
42, 44-1, 46-47, 52-53), and the court held oral argument on
the motions on November 16, 2017. For the reasons explained
below, the court concludes that: (1) Defendant Bunn's
Motion to Dismiss is due to be granted in part and denied in
part; (2) Defendant Jones's Motion to Dismiss is due to
be granted; (3) Defendant Bunn's Motion to Strike is due
to be granted in part and denied in part; (4) Defendants
Abernathy and Hastings's Motion to Dismiss is due to be
granted; and (5) Defendants Bell and the University's
Motion to Dismiss is due to be granted in part and denied in
The Amended Complaint's Allegations
Michael and Cynthia Rondini have sued Defendants and asserted
claims related to the alleged sexual assault of their
daughter, Megan Rondini, the investigation into that assault,
the University's response to requests for assistance, and
Megan's tragic suicide. The court begins its review of
the allegations by outlining the assertions regarding the
sheriff's department's investigations into
Megan's rape complaint. The court then discusses the
assertions about the interactions between the Rondinis and
The July 1, 2015 Alleged Sexual Assault and Sheriff's
to the Amended Complaint,  20-year-old Megan Rondini met Defendant
Bunn, a 34-year-old man, at a Tuscaloosa pub on July 1, 2015.
(Doc. # 7 at ¶¶ 30-33). She “was intoxicated
or [ ] under the influence of a drug administered to her
surreptitiously” when she left the pub. (Id.
at ¶ 33). Defendant Bunn drove Megan to his residence in
Cottondale, Alabama and “insisted that Megan have sex
with him.” (Id. at ¶ 34). When Megan
refused, Bunn reportedly “removed her clothing and
forced her to engage in oral sex.” (Id. at
¶ 35). Then, Plaintiffs allege that Bunn raped Megan and
left her in a locked bedroom. (Id. at ¶¶
35-36). Megan escaped from the bedroom by leaping through a
second-story window. (Id. at ¶ 37). Plaintiffs
assert that, while searching for her keys, Megan accidentally
discharged a firearm and took $3 from Bunn's wallet.
(Id. at ¶¶ 38-39).
friends took her to DCH Hospital in Tuscaloosa, where she
reported to medical personnel and the Tuscaloosa
Sheriff's Department that she had been raped.
(Id. at ¶ 40). Megan underwent a rape
examination, and a rape kit was sent to law enforcement.
(Id.). Megan then traveled from DCH Hospital to the
Sheriff's Department for a second interview.
(Id.). Michael Rondini spoke with Defendant Adam
Jones, an investigator for the Tuscaloosa Sheriff's
Department, before that interview. (Id. at
¶¶ 16, 43). Michael “expressed reservations
about the interviews” due to Bunn's prominent
stature in Tuscaloosa. (Id. at ¶ 43). Defendant
Jones assured him that the officers handling the case were
properly trained, and he dissuaded Michael from obtaining an
attorney for Megan. (Id.).
question several aspects of the interview by Defendant Jones.
(Id. at ¶¶ 44-47). First, Plaintiffs
object to Jones's failure to take notes. (Id. at
¶ 44). Second, Plaintiffs state that Jones avoided
asking Megan questions that would have elicited incriminating
testimony against Bunn. (Id.). Third, Plaintiffs
allege that Jones focused on “trivial questions
suggesting his bias against Megan, ” rather than
“the actual sexual encounter.” (Id. at
¶ 45). Fourth, Plaintiffs charge that Defendant Jones
displayed bias against Megan “by focusing on the three
dollars Megan took from Defendant Bunn's pocket and the
accidental discharge of the weapon” rather than the
sexual assault and by questioning Megan on her failure to
immediately call the police. (Id. at ¶ 46).
Ultimately, according to Plaintiffs, Defendant Jones
concluded his investigation by finding that Bunn did not rape
Megan. (Id. at ¶ 47).
spoke with Defendant Bunn and Jason Barksdale at Bunn's
residence on the morning of July 2, 2015. (Id. at
¶ 48). The officers did not record their interview with
Bunn. (Id.). Bunn denied Megan's presence at his
residence during the prior evening. (Id.). After
“officers heard him shut a window outside their
presence” and confronted him, Bunn demanded an
attorney. (Id. at ¶ 49). The officers
videotaped the Bunn residence while interviewing Bunn, during
which they discussed Bunn's charge that Megan had stolen
credit cards from him. (Id. at ¶ 50).
Defendant Jones returned to the Sheriff's Department, he
read Megan her Miranda rights. (Id. at
¶ 51). Defendant Jones and Defendant Joshua Hastings, a
sheriff's deputy for the Tuscaloosa Sheriff's
Department, “informed Megan that they intended to
pursue felony charges against Megan for Breaking &
Entering and Theft of Property.” (Id. at
¶¶ 16, 52). According to Plaintiffs, Jones and
Hastings “used the threat of felony charges to bully
Megan into dropping her claim against Defendant Bunn.”
(Id. at ¶ 53). The Sheriff's Department did
not send the rape kit or a urine sample to a laboratory for
testing. (Id. at ¶ 54). Defendant Hastings
interviewed Defendant Bunn on July 6, 2015. (Id. at
¶ 56). Plaintiffs allege that Hastings failed to
interrogate Bunn about the details of the charges Megan made
against him. (Id.). Moreover, according to
Plaintiffs, Hastings “conveyed that the police were
united with Defendant Bunn against Megan.”
(Id. at ¶ 57). “When Defendant Bunn's
lawyer told [Deputy] Hastings ‘I know there's any
number of ways this could go. We just want this to be over,
' [Deputy] Hastings said: ‘[We're] just kind of
waiting to see how far she's gonna push this.'”
an August 2015 phone call with Michael Rondini, a district
attorney informed Michael of her decision to not bring the
rape charge before a grand jury. (Id. at ¶ 62).
The district attorney allegedly told Michael that the
incident “was consensual, in part because Megan did not
use the word ‘rape' in her statement, and instead
called it a ‘sexual assault.'”
The Rondinis' Interactions with the University, the WGRC,
and University Personnel
2, 2015, Michael contacted the University's Women and
Gender Resource Center (“WGRC”) and asked for a
victim advocate to support Megan at the hospital.
(Id. at ¶ 41). An advocate from the WGRC
arrived at the hospital “hours later” and
accompanied Megan to the Sheriff's Department.
(Id. at ¶ 42). That advocate “admitted to
Megan that she was aware that Megan's rapist was
Defendant Bunn, and that she knew of his prominence in the
community.” (Id.). The advocate left the
Sheriff's Department while the interview between Megan
and Defendant Jones was ongoing. (Id.).
emailed the University's Title IX Coordinator, Beth
Howard, on July 2, 2015, but received no response.
(Id. at ¶ 58). He alleges that despite his
attempt to contact her again, neither Michael nor Megan
received a response from the University's Title IX
office. (Id.). Nevertheless, Howard communicated
with Kip Hart in the Tuscaloosa Sheriff's Department
regarding the case. (Id. at ¶ 59). Hart
informed Howard on July 9, 2015 of unspecified
“issues” in the Rondini case. (Id.).
2015, Megan, a Texas resident, returned to Austin, Texas and
saw a psychotherapist, who diagnosed her with anxiety,
depression, and post-traumatic stress disorder
(“PTSD”). (Id. at ¶ 60). In August
2015, a social worker prescribed Megan an emotional support
animal due to the after-effects of the assault. (Id.
at ¶ 61). Megan returned to the University in August
2015 for the fall semester. (Id. at ¶ 63).
Nevertheless, Plaintiffs assert that the University never
investigated Megan's complaint about Bunn's sexual
assault, despite being required to do so by its own sexual
misconduct policy. (Id. at ¶ 64).
August 2015, Megan met with Kathy Echols, a WGRC counselor.
(Id. at ¶ 67). Echols interviewed Megan and
allegedly “prodd[ed]” her to reveal the complete
details of the sexual assault. (Id.). At the end of
the interview, Echols told Megan that she knew Bunn's
family personally and could not counsel Megan.
(Id.). Megan felt betrayed by Echols's recusal
because Echols had interviewed her despite knowing that Bunn
was the accused rapist. (Id. at ¶ 68). Megan
agreed to meet with a second WGRC counselor, Cara Blakes, but
Blakes refused to counsel her until she obtained a
prescription for anxiety medication. (Id. at ¶
69). Megan signed a release on August 31, 2015, that allowed
WGRC to speak with the Title IX office about the assault as
her advocate. (Id. at ¶ 71). Howard
communicated with Megan for the first time on September 14,
2015. (Id. at ¶ 74). “By that time, Megan
was extremely fearful of Defendant Bunn's presence on
campus and at class-related activities[, ] and she was
distrustful of [the University] and its employees and
agents.” (Id.). According to Plaintiffs, the
University's student health center failed to help Megan
obtain an emergency counseling appointment in August and
September 2015. (Id. at ¶ 72). She saw a doctor
at the University's health center on September 25, 2015,
and was diagnosed with anxiety, depression, and PTSD by that
doctor. (Id. at ¶ 73).
point during the fall semester of 2015, Megan reported to
Howard that she believed Defendant Bunn would be hosting an
event for a required Honors course she was enrolled in.
(Id. at ¶ 66). Her belief was based on her
understanding that a “big game hunter” would be
hosting the event, and Bunn matched such a description.
(Id.). Plaintiffs allege that Howard assisted Megan
in dropping the Honors course, but should have
“inquir[ed] into the barbeque with course instructors
and/or prohibit[ed] Defendant Bunn from hosting the
event.” (Id.). Plaintiffs further contend that
no University personnel or office informed Megan of her
rights under Title II of the Americans with Disabilities Act
(“ADA”) or Title IX of the Education Amendments
of 1972. (Id. at ¶ 75). Megan withdrew from the
University in October 2015 and returned to Texas.
(Id. at ¶ 77).
to the Amended Complaint, Howard informed Megan that the
University's Title IX office would help her by expediting
transcripts, facilitating her transfer, preparing “a
formal outline of Megan's academic and scholarship
status, ” refunding certain fees, assisting with
subletting an apartment, and approving her withdrawal from
the fall semester classes. (Id. at ¶ 79). But,
Plaintiffs allege that for over seven weeks the Title IX
office failed to contact Megan's professors or facilitate
a letter of good standing requested by the Rondinis.
(Id. at ¶¶ 80-81). Michael emailed
Defendant Stuart Bell, the University's president, for
assistance in obtaining the letter of good standing and
informed Bell that his daughter was withdrawing “for
Title IX reasons, ” but Bell delegated the issue to a
subordinate. (Id. at ¶¶ 82-83). That
subordinate contacted a provost with the request, and the
provost forwarded the request back to the Title IX office.
(Id. at ¶ 84). According to Plaintiffs, the
Rondinis received a response from Howard after Cynthia
Rondini called and threatened to retain an attorney.
(Id. at ¶ 86).
February 24, 2016, Megan filled out a health history form to
receive counseling at Southern Methodist University.
(Id. at ¶ 88). She reported suicidal thoughts
on the form. (Id.). She recounted her history of
anxiety, depression, and PTSD following the July 2015
incident. (Id.). She reported the rape, police
bullying, and her change of universities as major losses,
changes, or crises in her life. (Id.). On the
morning of February 26, 2016, Megan committed suicide.
(Id. at 90). Her autopsy report recounted that she
suffered from anxiety, depression, and PTSD following the
2015 sexual assault. (Id.).
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
well-pleaded facts, accepted as true, do not state a claim
that is plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 570.
Motion to Strike
Bunn asks the court to strike: (1) Plaintiffs' allegation
in paragraph 90 of the Amended Complaint reporting a
statement from Megan's autopsy report about her anxiety,
depression, and PTSD; (2) Plaintiffs' allegation in
paragraph 91 of the Amended Complaint that Bunn was arrested
on the day Megan committed suicide; and (3) examination notes
attached to an opposition brief. (Doc. # 34). Plaintiffs
agree that the allegations in paragraph 91 are due to be
struck as irrelevant. (Doc. # 42-1 at 4). Accordingly,
without objection, paragraph 91 of the Amended Complaint is
due to be stricken from the Amended Complaint.
regard to the allegation in paragraph 90 of the Amended
Complaint, Federal Rule of Civil Procedure Rule 12(f) states
that a court “may strike from a pleading . . . any
redundant, immaterial, or scandalous matter.”
Fed.R.Civ.P. 12(f). However, a motion to strike is a
“drastic remedy to be resorted to only when required
for the purposes of justice ___” Augustus v. Bd. of
Pub. Instruction of Escambia Cty. Fla., 306 F.2d 862,
868 (5th Cir.1962) (quoting Brown & Williamson
Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th
Cir. 1953)). This standard has been interpreted to mean that
a motion to strike should be denied unless the challenged
allegations in the complaint “have no possible
relationship to the controversy, may confuse the issues, or
otherwise prejudice a party.” Royal Ins. Co. of Am.
v. M/Y Anastasia, 1997 WL 608722, at *3 (N.D. Fla. Jan.
30, 1997) (citing Reyher v. Trans World Airlines,
Inc., 881 F.Supp. 574, 576 (M.D. Fla. 1995)). The
allegations from the autopsy report are relevant to
Plaintiffs' assertion that Megan suffered from anxiety,
depression, and PTSD, which, in turn, is relevant to
Plaintiffs' wrongful-death and Title II claims.
Regardless of whether the autopsy report is ultimately
admissible, it is related to the controversy and its
inclusion in the Amended Complaint causes no confusion or
prejudice to Defendant Bunn. Therefore, Defendant Bunn's
request to strike the sentence in paragraph 90 describing the
autopsy report is due to be denied.
regard to the examination notes, in almost all circumstances,
a court cannot consider evidence that is not attached to the
complaint in deciding whether to dismiss a claim. See SFM
Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334,
1337 (11th Cir. 2010) (explaining that an extrinsic document
can be considered in deciding a motion to dismiss if it is
central to a plaintiff's claim and its authenticity is
not challenged). Plaintiffs do not claim that the examination
notes are central to the viability of their Amended
Complaint. So, because Plaintiffs' attached examination
notes cannot be (and have not been) considered by the court
in analyzing Defendant Bunn's Motion to Dismiss, the
court finds that Defendant Bunn will not be prejudiced by
leaving the submitted exhibit in the record. Therefore,
Bunn's request to strike the examination notes is due to
Defendants in this suit seek dismissal of the claims brought
against them. In light of the overlapping nature of the
motions to dismiss, the court will address the motions on a
Plaintiffs' Wrongful-Death Claims (Counts I through
Michael Rondini, as personal representative of the Estate of
Megan Rondini (hereinafter the “Personal
Representative”), has brought a wrongful-death claim in
diversity against Defendants under Alabama Code §
6-5-410. (Doc. # 7 at ¶¶ 92-98). Plaintiffs charge
that Defendants negligently, recklessly, wantonly, or
wrongfully acted or failed to act in response to the reported
sexual assault, and that Megan developed extreme depression,
anxiety, and PTSD due to their wrongful conduct.
(Id. at ¶¶ 94-95). Plaintiffs also allege
that the mental conditions resulting from the sexual assault
and insufficient response directly led to Megan's
suicide. (Id. at ¶ 95).
Plaintiffs Cannot Maintain a Wrongful-Death Action in Their
Michael and Cynthia Rondini, in their individual capacities,
also seek compensatory and punitive damages for
Defendants' conduct that led to Megan's suicide.
(Doc. # 7 at ¶¶ 96-97). Their wrongful-death claim
cannot go forward, though, because Alabama law only permits
an estate's personal representative to bring a
wrongful-death suit if the deceased is an adult. Ala. Code.
§ 6-5-410(a). A father or mother may bring a
wrongful-death suit for a minor child, Ala. Code. §
6-5-391(a), but Megan was an adult when she died.
The Personal Representative Cannot Recover Compensatory
personal representative pursuing a state-law wrongful-death
claim cannot recover compensatory damages because damages
recoverable for such a claim are solely punitive, not
compensatory. Ex parte Cincinnati Ins. Co., 689
So.2d 47, 50 (Ala. 1997).
Some Defendants are Due to be Excluded from the
Personal Representative has conceded that he does not intend
to maintain a wrongful-death claim against Defendants Stuart
Bell and the University. (Doc. # 52 at 6 n. 1). Accordingly,
any such claim against Defendants ...