HARRISBURG – A sexual assault and Title IX lawsuit naming Gettysburg College and the Phi Sigma Kappa fraternity has been dismissed as to several of its name-defendants, per a federal court order.
Plaintiff Kelsi Kennedy had initially sued the college on Oct. 19, 2018, in the U.S. District Court for the Eastern District of Pennsylvania, with accusations that she was sexually assaulted at an October 2016 fraternity party held at Phi Sigma Kappa.
Kennedy claimed she was sober at the party, but started to get hazy after she accepted a drink from a bartender. She said she was given a drink that had been laced with a drug, and was then later brought upstairs in the residence where the party was taking place and sexually assaulted by multiple other guests.
Kennedy said she later went to the emergency room, where she underwent a rape kit administration that revealed that she was assaulted by three men. She reported the incident to the school’s security department, which she claimed did nothing about it.
Kennedy then sued the school, the fraternity, the Phi Sigma Kappa Druid Alumni Association, Edward Carroll, one of the alleged assailants and two unnamed men, for violations of Title IX against the college and sexual assault/sexual abuse/battery against Carroll and the two John Does.
Gettysburg College replied with a motion to dismiss, saying that there’s nothing about the incident that relates to the Eastern District and identified the location of the alleged incident as actually in the U.S. District Court for the Middle District of Pennsylvania’s jurisdiction.
As a result, the case was later transferred to the Middle District court in March 2019.
An amended version of the complaint later specifically named certain defendants, who then each filed motions to dismiss themselves from the litigation.
They alleged the statute of limitations had run on Kennedy’s claims and there could be no relation back under the Federal Rules of Civil Procedure, and even if her claims did relate back to her original complaint, she had not stated claims for which relief may be granted.
On April 23, U.S. District Court Judge John E. Jones III granted motions to dismiss from defendants Mike Phillips, Christopher Palladino, Christopher Rubino, Ryan Goodall, Thomas McBride, Christopher Kohn, and Max D’Ambrosio.
Jones stated the name-defendants did not receive notice of the complaint prior to their being included in its amended version from last September.
“We see no allegation in any of plaintiff’s complaints that the Gettysburg Police Department informed defendants of the instant suit. Indeed, we see no allegations that the suit itself had even been initiated when the defendants were interviewed by police. Instead, any notice provided by the police to defendants would have been mere ‘notice of the event that gave rise to the cause of action.’ Such notice is not sufficient to permit relation back,” Jones said.
“Because plaintiff makes no other allegations that defendants had notice of the suit itself before Jan. 17, 2019, we cannot relate back those claims instituted against defendants.”
Jones added the plaintiff’s complaint further failed to state a claim.
“While plaintiff was unlikely to discover the tampered nature of her drink, she does not allege that defendants were aware of the ‘roofie’ before she ingested it. Instead, she argues that defendants were negligent in failing to monitor the ‘juice bucket.’ But such allegations are insufficient here,” Jones said.
“Defendants must have been aware of the tampered nature of plaintiff’s drink and failed to warn her of it. Because we see no such allegation, plaintiff fails to state a claim for which relief may be granted.”
Jones concluded Kennedy would not be given license to continue to amend her complaint.
“As previously discussed, it has been approximately three and a half years since plaintiff’s alleged assault occurred and an additional year and a half since the filing of her initial complaint. We can fairly presume that this was ample time for plaintiff to investigate her claims and amend her complaint to cure any deficiencies present,” Jones said.
“Indeed, it is only logical that this is the case because plaintiff has amended her complaint twice since the initiation of this suit. We decline to allow plaintiff to amend ad infinitum, given her repeated and persistent inability over the aforesaid lengthy period to adduce facts sufficient to save these claims from dismissal. That further attempts to salvage these claims would be futile appears beyond peradventure. Moreover, there is a point in time when we must recognize that to needlessly prolong the claims would work a manifest injustice upon defendants. Accordingly, the claims shall be dismissed.”
Gettysburg College and Phi Sigma Kappa Druid Alumni Association were further ordered to file letters on the docket no later than 10 days from the date of the order that would inform the Court of their intentions regarding their respective cross-claims against those same name-defendants.
U.S. District Court for the Middle District of Pennsylvania case 1:19-cv-00703
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com