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Rondini v. Bunn

United States District Court, N.D. Alabama, Western Division

January 8, 2018

MICHAEL W. RONDINI, et al., Plaintiffs,
v.
TERRY J. BUNN, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE

         This 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 part.

         I. The Amended Complaint's Allegations

         Plaintiffs 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.[1] The court then discusses the assertions about the interactions between the Rondinis and University personnel.

         A. The July 1, 2015 Alleged Sexual Assault and Sheriff's Department Investigation

         According to the Amended Complaint, [2] 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).

         Megan's 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.).

         Plaintiffs 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).

         Officers 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).

         After 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.'” (Id.).

         During 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.'” (Id.).

         B. The Rondinis' Interactions with the University, the WGRC, and University Personnel

         On July 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.).

         Michael 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.).

         In July 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).

         In 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).

         At some 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).

         According 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).

         On 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.).

         II. Standard of Review

         The 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. 2007).

         To 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.

         In 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.

         III. Motion to Strike

         Defendant 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.

         With 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.[3]

         With 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 be denied.

         IV. Analysis

         All 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 claim-by-claim basis.

         A. Plaintiffs' Wrongful-Death Claims (Counts I through IV)

         Plaintiff 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).

         1. Plaintiffs Cannot Maintain a Wrongful-Death Action in Their Individual Capacities

         Plaintiffs 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.

         2. The Personal Representative Cannot Recover Compensatory Damages

         A 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).

         3. Some Defendants are Due to be Excluded from the Wrongful-Death Claim

         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 ...


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