Kane v. Loyola University Of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MADELINE KANE, et al.,

Plaintiffs

No. 22 CV 6476

v.

Judge Jeremy C. Daniel

LOYOLA UNIVERSITY OF CHICAGO,

Defendant

MEMORANDUM OPINION AND ORDER

The plaintiffs, current and former students enrolled at Loyola University of

Chicago (“Loyola”), allege that the university systematically mishandled,

underreported, and failed to adequately respond to their complaints of sexual

harassment in violation of 20 U.S.C. § 1681, et seq. (“Title IX”). The plaintiffs also

allege violations of the Illinois Preventing Sexual Violence in Higher Education Act

(“PSVHEA”), 110 ILCS 155/20, as well as other state law claims. Loyola removed this

action to federal court (R. 1) and now moves to dismiss the plaintiffs’ First Amended

Complaint (R. 35, hereinafter, the “FAC”) under Federal Rule of Civil Procedure

12(b)(6). (R. 38.) For the reasons that follow, the Court grants the motion in part and

denies it in part.

BACKGROUND1

Defendant Loyola is an accredited private university in Chicago, Illinois that

receives federal funding for the purposes of Title IX. (FAC ¶¶ 16, 17.) Under the Clery

Act, 20 U.S.C.A. § 1092(f), Loyola must disclose accurate and complete statistics for

reported criminal incidents that occur on campus, in off-campus properties owned or

controlled by a recognized student organization, or on public property within “the

reasonably contiguous geographic area” of the university. (Id. ¶ 27.) The Preventing

Sexual Violence in Higher Education Act (“PVSHEA”), 110 ILCS 155/1, et seq.,

similarly requires Loyola to publish an annual report detailing its policies for

addressing sexual discrimination, misconduct, and retaliation. The report must also

provide data and information regarding trainings, prevention programs, reported

incidents, and outcomes of disciplinary action. (Id. ¶¶ 32–33.)

In addition to these statutory requirements, Loyola has its own internal

policies and procedures for addressing claims of sexual misconduct, which are

detailed in a comprehensive policy manual. (Id. ¶¶ 34–37.) Among other things, these

policies require the university to use a preponderance of evidence standard to

evaluate allegations of sexual harassment and implement a range of disciplinary

sanctions to remedy sexual misconduct, including no-contact orders, suspension, and

expulsion. (Id. ¶ 36.) Loyola’s policies also provide that students have the right to an

1 The facts set forth in this section are taken from the FAC and are accepted as true for

the purposes of the motion to dismiss. Demkovich v. St. Andrew the Apostle Par., Calumet

City, 3 F.4th 968, 973 n.2 (7th Cir. 2021).

attorney during Title IX investigations and indicate that the university “aims to

complete” investigations within six months of receiving a report. (Id.)

The plaintiffs are current and former female students who enrolled at Loyola

between 2012 and 2022. (Id. ¶¶ 9–14.) While their allegations vary considerably in

timing and scope, each plaintiff alleges that she was sexually assaulted by another

male student or an individual affiliated with the university, and that Loyola was

deliberately indifferent to the alleged harassment. (See generally id.)

In some cases, the plaintiffs allege that the university failed to prevent their

sexual assaults despite knowing that their assailants had attacked other students.

(See, e.g., id. ¶¶ 138, 149, 161.) In other instances, the plaintiffs allege that they were

forced to remain in physical proximity with their attackers after reporting the

misconduct. (See id. ¶¶ 158, 185.) Some plaintiffs were not fully informed of their

rights during Title IX investigations (id. ¶¶ 53–56); others were forced to reenact or

pantomime their assaults at hearings with Loyola administrators and their

assailants present. (Id. ¶¶ 88, 157.) The plaintiffs allege that there was a common

perception among students that Title IX investigations were ineffectual, and that

peers advised them not to make Title IX reports because they would amplify their

distress and “go nowhere.” (Id. ¶ 127.) They describe their experience participating

in Title IX investigations as “traumatizing and flawed.” (Id. ¶ 66.)

A brief description of each of the plaintiffs’ individual allegations (in

chronological order) appears below:

• Plaintiff Catherine Ann Cappello alleges that she was sexually assaulted

in 2012 by one of her former classmates, who was a visiting priest from a

foreign country. (Id. ¶ 39.) When she tried to file a Title IX complaint against

her attacker, Loyola informed her that no action could be taken since her

assailant was a visiting priest and therefore not under Loyola’s direction or

control. (Id. ¶ 41.) Cappello was later forced to work in a small group with her

assailant; when she complained, she was called a “troublemaker,” and forced

to take an incomplete in the course. (Id.¶ 42.)

• Plaintiff Jane Doe C alleges that she suffered domestic violence at the hands

of another male student while she was a sophomore at Loyola in 2014. (Id.

¶ 97.) Jane Doe C told administrators about the abuse, but she was informed

that she would have to file a report with the Chicago Police Department. (Id.

¶¶ 99–100.) Fearing retaliation, Jane Doe C did not report the incident to

police, but she provided extensive evidence of the abuse she suffered to Loyola.

(Id. ¶ 101–106.) No disciplinary action was taken by the university, and Jane

Doe C was forced to attend classes with her assailant. (Id. ¶¶ 107–110.)

• Plaintiff Amma Appiagyei-Dankah alleges that she was sexually assaulted

in a Loyola dorm building in 2014. (Id. ¶¶ 81–82.) After reporting the incident,

she was moved to a different dormitory while her assailant was allowed to stay

in his original dorm. (Id. ¶ 86.) Despite a no-contact directive, Appiagyei-

Dankah repeatedly encountered her assailant on campus. (Id. ¶ 87.) During

the Title IX investigation, she was directed by Loyola officials to reenact how

she was sexually assaulted in front of her assailant and administrators. (Id.

¶¶ 88.) Although Appiagyei-Dankah’s assailant was found guilty and expelled,

she alleges that the experience prevented her from concentrating in class,

leading to academic probation and expulsion. (Id. ¶ 92.)

• Plaintiff Jane Doe N alleges that, in 2018, her dorm room was burglarized.

(Id. ¶¶ 117.) She reported the burglary to Loyola, but the university’s response

was inadequate. A month later, Jane Doe N was sexually assaulted. (Id. ¶ 126.)

Given Loyola's poor handling of the burglary and the advice that she received

from female peers that a Title IX report would go nowhere, Jane Doe N did not

file a Title IX report. (Id. ¶¶ 127–128.) Ultimately, she decided to withdraw

from campus. (Id. ¶ 129.)

• Plaintiff Marissa Sepulveda alleges that she was sexually assaulted in 2019

in a Loyola dorm building. (Id. ¶¶ 60–61.) After Sepulveda reported the

incident, her assailant was allowed to remain on campus while a Title IX

investigation was pending. (Id. ¶¶ 62–63.) Despite the university issuing a no-

contact directive, Sepulveda’s assailant made contact with her on campus on

at least two occasions. (Id. ¶¶ 69–70.) Later that year, Sepulveda’s assailant

raped another Loyola student. (Id. ¶ 64.) It was only after this second incident

that the individual was expelled. (Id.) Sepulveda alleges that she was sexually

assaulted by another Loyola student later in 2019 in a dorm building, but that

she chose not to report this second incident due to flaws she witnessed in the

first investigation. (Id. ¶¶ 65–66.)

• Plaintiff Jane Doe A alleges that she was sexually assaulted after consuming

alcohol at a dorm party during “Welcome Week” in 2019.2 (Id. ¶¶ 166–171.)

After initiating a Title IX investigation, Loyola shared a document indicating

that it had received two previous reports of sexual assault concerning the same

assailant. (Id. ¶ 173.) Jane Doe A alleges that Loyola’s systematic mishandling

of sexual assault claims caused her sexual assault. (Id. ¶ 174.)

• Plaintiff Jane Doe H alleges that she was assaulted on an unspecified date

by a Loyola student known amongst students to be a “serial predator.” (Id.

¶ 132.) She alleges that after she reported the assault to her R.A., the R.A. held

a dorm-wide meeting during which she referred to Jane as a “whiny little brat.”

(Id. ¶¶ 134–135.) Jane Doe H alleges that no Title IX investigation took place

and that she was assaulted again by the same student in October 2019. (Id.

¶¶ 136–38.)

• Plaintiff Jane Doe G alleges that she was sexually assaulted in 2019 by the

same student as Jane Doe H after Jane Doe H had made multiple reports about

her assailant to the university. (Id. ¶ 149.) After a Loyola professor filed a

complaint on Jane Doe G’s behalf, she was encouraged to keep her complaint

“internal” and not speak out. (Id. ¶¶ 151–153.) During a meeting with

administrators, Jane Doe G was requested to “move her body” and “touch

herself” in a manner that reenacted the sexual assault. (Id. ¶ 157.) Loyola

officials informed her that a no-contact directive would be issued against her

assailant. (Id. ¶ 158.) However, when she discovered that her assailant was

enrolled in the same class as her, Loyola officials told Jane Doe G that it would

not force her assailant to choose a different course. (Id.) The assailant refused

2 The six “Jane Doe” plaintiffs state that they must use pseudonyms to protect their

privacy given the sensitive nature of their sexual abuse allegations. (R. 35 at 3 n.1.) Neither

party addresses whether the use of pseudonyms is appropriate. Although victims of sexual

assault often wish to keep their identities secret out of fear of embarrassment or social

stigmatization, “the use of fictitious names is disfavored, and the judge has an independent

duty to determine whether exceptional circumstances justify such a departure from the

normal method of proceeding in federal courts.” Doe v. City of Chi., 360 F.3d 667, 669–70 (7th

Cir. 2004) (citation omitted). Accordingly, as stated at the conclusion of this opinion, the

plaintiffs must submit further briefing addressing whether the plaintiffs may proceed

anonymously.

to modify his class schedule and Jane Doe G was forced to attend class with

her assailant for an entire semester. (Id. ¶ 159.)

• Plaintiff Madeline Kane was sexually assaulted at a fraternity party in

2020. (Id. ¶ 46.) After reporting the incident to Loyola, Kane alleges that the

university delayed the investigation and allowed her assailant to skip

interviews. (Id. ¶¶ 50–52.) Kane alleges that Loyola did not adequately inform

her of mental health resources and told her, contrary to Loyola’s

comprehensive policy, that she did not have the right to an attorney during her

Title IX investigation. (Id. ¶¶ 54–55.) Kane’s assailant was eventually found

“not responsible” for the sexual assault due to “insufficient evidence.” (Id.

¶¶ 53–56.) Kane claims that she was drugged at another fraternity party in

2021 but chose not to report this second incident due to the flaws she witnessed

in the previous investigation. (Id. ¶ 57.)

• Plaintiff Jane Doe E alleges that she was sexually assaulted in 2021 by a

male R.A. while enrolled in one of Loyola’s study abroad programs. (Id. ¶¶ 178-

179.) After returning to the United States the following semester, Jane Doe E

was told that her case would be handled by the university’s Office of Equity

and Compliance rather than the Title IX office since the university lacked

control over the foreign campus where Jane Doe E had studied. (Id. ¶ 183.)

Jane Doe E also learned that the R.A. who assaulted her had been assigned to

a freshman dorm on Loyola’s Chicago campus. (Id. ¶ 181.) Although the R.A.

was accused of sexually assaulting other students, Jane Doe E was discouraged

from speaking to potential victims and told that the university’s “hands were

tied” until the investigation concluded. (Id. ¶¶ 184-186.)

* * * *

In 2016, Loyola’s student newspaper, The Phoenix, published an article

corroborating the plaintiffs’ allegations. (Id. ¶ 190.) In the article, Loyola’s Title IX

Coordinator, Dean Tim Love, admitted that a report of a sexual assault been lost and

that the university was not responding to complaints of sexual assault within twelve

hours, as required by Illinois law. (Id.) Loyola students featured in the article

complained of material errors in the university’s Title IX investigatory process. (Id.)

The article described on-campus protests in response to the university’s perceived

mishandling of sexual harassment complaints and cited disciplinary decisions that

were allegedly disproportionate or inadequate. (See id.)

The plaintiffs allege, on information and belief, that Loyola “grossly

underreported the number of sexually violent incidents” that occurred in the years

during and prior to the plaintiffs’ enrollment at the university. (Id. ¶ 191.) They cite

discrepancies between the university’s reported crime statistics for 2013–2017 and

those provided by the Chicago Police Department. (Id. ¶¶ 192–198.) The plaintiffs

further note that while reporting for the purposes of the PSVHEA indicated that 129

incidents of sexual violence were reported on Loyola’s campus in 2017, the university

reported that no individuals were disciplined for sexual misconduct that year. (See

id. ¶ 196–198.)

The plaintiffs also allege that Loyola’s failure to adequately respond to

complaints of sexual harassment—as evidenced by their individual allegations, the

student newspaper report, and the apparent discrepancies in reported data—

amounts to a de facto policy of deliberate indifference to sexual misconduct that

caused a heightened risk of sexual harassment and, by extension, their injuries. (Id.

¶ 204.)

The plaintiffs filed an eight-count complaint in Illinois state court, alleging

violations of Title IX and Illinois state law, including the PSVHEA. (R. 1.) Loyola

removed this action to federal court and moved to dismiss. (Id.; R. 12.) The plaintiffs

initially moved to sever their state law claims and remand them to state court. (R.

18; R. 19.) They then proceeded to file the first amended complaint, which included

the eight counts from their original complaint and three additional counts for

negligent infliction of emotional distress (“NIED”), intentional infliction of emotional

distress (“IIED”), and breach of contract. (R. 35.) Loyola again moved to dismiss (R.

38.) The Court now addresses the merits of that motion.

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to

test the sufficiency of the complaint, not to decide the merits of the case. McReynolds

v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). In evaluating a motion to

dismiss pursuant to Rule 12(b)(6), the Court “accepts as true all of the plaintiff’s well-

pleaded allegations and draws all reasonable inferences in the light most favorable

to the plaintiff.” Moore v. Freeport Cmty. Unit Sch. Dist. No. 145, 570 F. Supp. 3d 601,

607 (N.D. Ill. 2021) (citing Calderone v. City of Chi., 979 F.3d 1156, 1161 (7th Cir.

2020)). “[W]hile a complaint does not need ‘detailed factual allegations’ to survive a

12(b)(6) motion to dismiss, it must allege sufficient facts ‘to state a claim to relief that

is plausible on its face.’” Jauquet v. Green Bay Area Cath. Educ., Inc., 996 F.3d 802,

807 (7th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At

the motion to dismiss stage, plaintiffs must set forth “adequate factual detail to lift

[their] claims from mere speculative possibility to plausibility.” Id.

ANALYSIS

I. TITLE IX (COUNT I)

The Court begins by addressing the plaintiffs’ Title IX claims. Title IX provides

that “no person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.” 20 U.S.C. §

1681. The Supreme Court has held that the statute gives rise to a private right of

action for damages based on a funding recipient’s deliberate indifference to sexual

harassment of which the recipient had actual knowledge. Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 290 (1998); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

650-52 (1999).

The plaintiffs bring two claims under Title IX. First, they allege that Loyola

“maintained a de facto policy . . . to suppress reports of sexual violence and sexual

harassment, and to support accused campus predators, resulting in a culture of

deliberate indifference toward sexual misconduct at Loyola.” (FAC ¶ 205.) Second,

they allege that the university “failed to provide Plaintiffs with fair, prompt, and

equitable proceedings in response to complaints of sexual misconduct,” or otherwise

“failed to adequately respond,” and that these failures “amounted to deliberate

indifference toward the unlawful conduct that was occurring.” (Id. ¶ 209.)3 The

parties refer to these claims as “pre-assault” and “post-assault” claims, respectively,

and the Court adopts this terminology for the remainder of this opinion.

3 The parties indicate that the plaintiffs are also asserting a claim for “erroneous outcome”

under Title IX. (FAC ¶¶ 207, 213; R. 39 at 22–23; R. 43 at 22–25.) An “erroneous outcome”

claim, however, refers to a claim that is typically brought by the alleged perpetrator of gender-

based harassment alleging that they were wrongly disciplined by the funding recipient. See

Doe v. Columbia Coll. Chi., 299 F. Supp. 3d 939, 953 (N.D. Ill. 2017), aff’d, 933 F.3d 849 (7th

Cir. 2019). Such allegations are not present here. To the extent that the plaintiffs challenge

disciplinary decisions that Loyola made regarding their alleged assailants, those claims are

properly analyzed as post-assault deliberate indifference claims. See Johnson v. Ne. Sch.

Corp., 972 F.3d 905, 911 (7th Cir. 2020).

A. Pre-Assault Claims

The Court first considers whether the plaintiffs have stated pre-assault claims

by alleging that Loyola had a de facto policy or practice of deliberate indifference to

sexual assault that caused them to suffer or be vulnerable to severe, gender-based

harassment. (Id.¶ 204.)

Loyola raises several arguments in support of its motion to dismiss. First, it

argues that recognizing a pre-assault claim is inconsistent with Seventh Circuit

caselaw and Supreme Court precedent. Second, it argues that, even if a pre-assault

cause of action exists, it is barred by the applicable statute of limitations. As for

Plaintiff Jane Doe E, Loyola argues that recognizing a pre-assault claim would

constitute an extraterritorial application of Title IX. Finally, Loyola argues that the

plaintiffs fail to state a claim. The Court addresses each argument in turn.

1. Pre-Assault Title IX Claims Under Supreme Court and

Seventh Circuit Precedent

The Seventh Circuit has not yet considered whether a pre-assault claim is a

viable cause of action under Title IX. However, both the Tenth Circuit and Ninth

Circuit have held that such a claim is a logical extension of the Supreme Court’s

reasoning in Davis and Gebser. See Karasek v. Regents of Univ. of Cal., 956 F.3d 1093,

1111–12 (9th Cir. 2020); Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1177–78

(10th Cir. 2007). Several district courts in this Circuit have analyzed pre-assault

claims at the pleading stage by referring to Supreme Court dicta, persuasive

authority, and Department of Education guidance. See Doe A v. Plainfield Cmty.

Consol. Sch. Dist. 202, No. 21 C 4460, 2023 WL 2428870, at *7 (N.D. Ill. Mar. 9, 2023);

Vander Pas v. Bd. of Regents of Univ. of Wis. Sys., No. 21 C 1148, 2022 WL 1597423,

at *5 (E.D. Wis. May 19, 2022); Reed v. S. Ill. Univ., No. 18 C 1968, 2020 WL 3077186,

at *7 (S.D. Ill. June 10, 2020).

In the absence of direction from the Seventh Circuit, the Court refers to

principles of Title IX liability articulated by the Supreme Court in addressing

whether the plaintiffs have stated a claim. See Vander Pas, 2022 WL 1597423, at *5

(analyzing pre-assault claim by reference to Supreme Court caselaw); see also Doe A,

2023 WL 2428870, at *6 n.3 (quoting Reed, 2020 WL 3077185, at *7) (“While the issue

has not been addressed in the Seventh Circuit, that alone is insufficient to lead this

Court to rule definitively that such a claim does not exist or has been rejected or not

recognized in this Circuit.”).

Loyola argues that pre-assault claims are inconsistent with Supreme Court

precedent. It points to the fact that Title IX was enacted under the Spending Clause

and does not explicitly include a private right of action. (R. 39 at 15); Gebser, 524 U.S.

at 287 (contrasting Title IX with Title VII, which expressly contains a private right

of action). Because statutes enacted under the Spending Clause are contractual in

nature—designed to prevent rather than remedy discrimination—implied causes of

action in such statutes must be narrowly construed. See Gebser, 524 U.S. at 287.

Loyola argues that recognizing a Title IX cause of action for pre-assault conduct

would contravene the Supreme Court’s requirement that funding recipients only be

held liable for intentional violations and would otherwise be “a significant expansion

of the law.” (R. 39 at 15.)

Despite these arguments, the Court finds that pre-assault claims are not

clearly inconsistent with Supreme Court caselaw. In adopting the deliberate

indifference standard in Gebser, the Supreme Court stated that “[c]omparable

considerations led to our adoption of a deliberate indifference standard for claims

under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation

of federal rights was the cause of the violation.” Gebser, 524 at 291. Because the

standard for municipal liability defines intentional discrimination to include both

indifference to the discriminatory acts of employees and discriminatory policies and

practices of the municipality itself, the reference to municipal liability in Gebser

supports a parallel interpretation of intentional discrimination under Title IX. See

Simpson, 500 F.3d at 1177–78.

Recognizing a cause of action based on a de facto policy of deliberate

indifference is also consistent with the Supreme Court’s statement that a funding

recipient may only be held liable for deliberate indifference when it “intentionally

acted in clear violation of Title IX.” Davis, 526 U.S. at 642. In the municipal liability

context, the Seventh Circuit has recognized that policy or practice claims “follow

directly from the municipality’s intentional decision to adopt the unconstitutional

policy or custom or to take particular action.” J.K.J v. Polk Cnty., 960 F.3d 367, 377–

78 (7th Cir. 2020) (emphasis added). Holding an entity or organization liable for its

policies is distinct from holding it liable based on constructive notice or respondeat

superior because the implementation of a policy—even a de facto one—is an

intentional decision. See id. (commenting that a “policy of inaction” is “the functional

equivalent of a decision by the [defendant] itself”) (citations omitted). Understood in

this way, a pre-assault Title IX claim based on a de facto policy of deliberate

indifference does not expand Title IX liability as set forth in Gebser and Davis;

instead, it is already implied by these decisions. Therefore, the Court evaluates the

viability of the plaintiffs’ pre-assault claims by referring to decisions that discuss

“deliberate indifference” in the context of municipal liability claims. Vander Pas, 2022

WL 1597423, at *5.

2. Statute of Limitations

The Court next considers whether the plaintiffs’ pre-assault claims are barred

by the statute of limitations. Although an affirmative defense that must ordinarily be

pleaded and proved by the defendant, “if it is plain from the complaint that the

defense is indeed a bar to the suit[,] dismissal is proper without further pleading.”

Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010);

see also Milchtein v. Milwaukee Cty., 42 F.4th 814, 822 (7th Cir. 2022) (“[D]ismissal

for untimeliness is proper when the plaintiff’s allegations establish that the statute

of limitations bars recovery”). Nonetheless, in the context of a motion to dismiss,

dismissal for untimeliness is the exception and not the rule. See Luna Vanegas v.

Signet Builders, Inc., 46 F.4th 636, 640 (7th Cir. 2022) (citation omitted). “Rarely will

the face of the complaint so clearly prove the opponent’s affirmative defense that

immediate dismissal, prior to the filing of an answer, will be proper.” Id.

Title IX claims borrow their statute of limitations from state law personal

injury claims. See Doe v. Howe Mil. Sch., 227 F.3d 981, 987 (7th Cir. 2000). In this

case, the plaintiffs’ Title IX claims are subject to Illinois’ two-year statute of

limitations. Id. The plaintiffs filed their first complaint in Cook County Circuit Court

on September 21, 2022; thus, any claims that accrued prior to September 21, 2020

are time-barred.4

Accrual is a question of federal law. Cada v. Baxter Healthcare Corp., 920 F.2d

446, 450 (7th Cir. 1990). As a general matter, a claim accrues “‘when a plaintiff knows

the fact and the cause of an injury.’” Amin Ijbara Equity Corp. v. Vill. of Oak Lawn,

860 F.3d 489, 493 (7th Cir. 2017) (quoting Wallace v. Kato, 549 U.S. 384, 391 (2007)).

For Title IX claims based on a policy or practice of deliberate indifference, a claim

accrues “when the plaintiff knows or has reason to know of the school’s policy of

deliberate indifference that created a heightened risk of harassment.” Vander Pas,

2022 WL 1597423, at *6; see also Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 702

(6th Cir. 2022), cert. denied., 143 S. Ct. 2659 (2023) (holding that “[i]n the Title IX

context . . . [a] claim does not accrue until the plaintiff knows or has reason to know

that the defendant institution injured them.”) (emphasis in original).

4 Notwithstanding the fact that the complaint was amended and refiled on March 15,

2023, September 21, 2020 is the relevant filing date for statute of limitations purposes since

the allegations in the first amended complaint relate back to this date. See Fed. R. Civ. P.

15(c). The parties do not address whether the claims of plaintiffs who were not parties to this

action when it was initially filed and were added when the complaint was amended are

subject to a different date. Claims by added plaintiffs relate back to the original filing date

where (1) the new plaintiff’s claim arose out of the “same conduct, transaction or occurrence”

set forth in the original complaint; (2) the new plaintiff shares an “identity of interest” with

the original plaintiff; (3) the defendants have “fair notice” of the new plaintiff’s claim; and (4)

the addition of the new plaintiff will not cause the defendants prejudice. Hawkins v. Groot

Indus., Inc., 210 F.R.D. 226, 232 (N.D. Ill. 2002). Here, the plaintiffs collectively assert that

they were injured by Loyola’s de facto policy of deliberate indifference to sexual harassment—

a theory which appeared on the face of the initial complaint—and their interests are not

clearly adverse to one another. For the purposes of addressing the instant motion, the Court

concludes that the added plaintiffs’ claims relate back at well.

With these principles in mind, the Court concludes that the plaintiffs’ pre-

assault claims are not clearly time barred. The specific dates on which the plaintiffs

became aware of Loyola’s policy or practice of deliberate indifference do not appear

on the face of the complaint, and the plaintiffs represent that they did not become

aware of Loyola’s systematic mishandling of sex assault claims until this case was

prepared. (FAC ¶ 40; R. 43 at 27); see also Fajolu v. Portfolio Recovery Assocs., LLC,

354 F. Supp. 3d 899, 903 (N.D. Ill. 2018) (holding that the plaintiff’s claim could not

be dismissed on statute of limitations grounds since it was unclear from face of

complaint when the plaintiff could fairly have been said to have discovered the

alleged violation).

Loyola suggests that the plaintiffs became aware of Loyola’s alleged policy of

deliberate indifference in 2016, when the Phoenix article was published. (R. 39 at 25-

26.) But nothing in the first amended complaint indicates that the plaintiffs read or

became aware of the article prior to filing this suit. Indeed, many of the plaintiffs

were not enrolled at Loyola when the article was published. Without allegations that

the plaintiffs were aware of the newspaper article, Loyola’s alleged underreporting of

sexual assault cases, or their fellow plaintiffs’ allegations prior to filing this action,

the Court cannot conclude that their pre-assault claims are clearly time-barred.

Because the accrual dates of the plaintiffs’ policy and practices claims are not clear

from the face of the complaint, the Court declines to address this argument at this

time. See Luna Vanegas, 46 F.4th at 640.

3. Extraterritoriality

Next, Loyola argues that plaintiff Jane Doe E cannot state a pre-assault claim

because Title IX does not apply to sexual harassment that occurs outside of the

United States. (R. 39 at 28.) Federal statutes presumptively do not apply to

extraterritorial conduct unless “Congress has affirmatively and unmistakably

instructed that the statute will do so.” RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325,

335 (2016). “Absent clearly expressed congressional intent to the contrary, federal

laws will be construed to have only domestic application.” Id. “When a statute gives

no clear indication of an extraterritorial application, it has none.” Morrison v. Nat’l

Austl. Bank Ltd., 561 U.S. 247, 255 (2010). Courts apply “a two-step framework” in

assessing Congressional intent. RJR Nabisco, 579 U.S. at 337. First, a court must

determine “whether the statute gives a clear, affirmative indication that it applies

extraterritorially.” Id. Second, the court must “determine whether the case involves

a domestic application of the statute.” Id.

Applying the two-step framework to Jane Doe E’s allegations in this case, it is

evident that she cannot hold Loyola responsible for her extra-territorial assault under

Title IX. First, the plain language of Title IX reads: “no person in the United States

shall, on the basis of sex, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any education program or activity receiving

financial assistance.” 20 U.S.C. § 1681 (emphasis added). A majority of federal district

courts have interpreted this language as a “clear affirmative indication” against

extraterritoriality. See Zonshayn v. Sackler Sch. of Med. (N.Y.), 648 F. Supp. 3d 485,

496 (S.D.N.Y. 2023) (collecting cases). The lone exception, King v. Board of Control of

Eastern Michigan University, predated the Supreme Court’s exposition of the

extraterritoriality doctrine in Morrison and ignored the plain language of the statute

in favor of “unexpressed congressional intent.” 221 F. Supp. 2d 783, 787 (E.D. Mich.

2002), Id. at 787. The Court finds the majority view to be better reasoned in light of

Supreme Court precedent and therefore concludes that Title IX does not apply

extraterritorially.

Having determined that Title IX only applies domestically, it follows that Jane

Doe E’s pre-assault claim must be dismissed. Because the only sexual harassment

that Jane Doe E alleges for the purposes of her pre-assault claim occurred “overseas,”

her attempt to hold Loyola responsible for extra-territorial conduct under Title IX

fails. While Jane Doe E may be able to state a post-assault Title IX claim for

harassment that occurred after she returned to the United States (a possibility that

is addressed below), she cannot recover under Title IX for harassment that took place

in a foreign jurisdiction. Accordingly, Jane Doe E’s pre-assault claim is dismissed.

4. Failure to State a Claim

Finally, the Court considers Loyola’s argument that the plaintiffs fail to state

pre-assault claims under Rule 12(b)(6). To do so, the plaintiffs must allege that

(1) Loyola maintained a policy of deliberate indifference to reports of sexual

misconduct, (2) the policy created a heightened risk of sexual harassment that was

known (3) in a context subject to Loyola’s control, and (4) as a result, the plaintiffs

suffered harassment that was “so severe, pervasive, and objectively offensive that it

can be said to [have] deprive[d] the [plaintiffs] of access to the educational

opportunities or benefits provided by the school.” Karasek, 956 F.3d at 1112 (quoting

Davis, 526 U.S. at 650).

The parties do not dispute that sexual assault constitutes severe, gender-based

harassment under Title IX. See Davis, 526 U.S. at 650. Nor do they dispute that

Loyola controlled the context in which each of the remaining plaintiffs were sexually

assaulted. Instead, Loyola argues that (1) it did not have a policy of deliberate

indifference to reports of sexual misconduct, and (2) even assuming such a policy

existed, it did not have knowledge that its practices caused a heightened risk of sexual

misconduct. (R. 39 at 12–17.) The Court addresses each argument in turn.

a. Policy of Deliberate Indifference

The Court first considers whether the plaintiffs have adequately alleged a de

facto policy of deliberate indifference to reports of sexual harassment. In determining

whether the plaintiffs have plausibly alleged such a policy, the Court looks to

municipal liability decisions assessing “custom, policy, or practice” claims under

§ 1983. See Vander Pas, 2022 WL 1597423 at *5 (citing Monell v. Dep’t of Soc. Servs.

of N.Y., 436 U.S. 658 (1978)).

The Seventh Circuit has held that an official policy may be a “widespread,

though unwritten, custom or practice.” Milestone v. City of Monroe, Wis., 665 F.3d

774, 780 (7th Cir. 2011). A failure to act, where it reflects “a conscious decision not to

take action” can also support liability. Glisson v. Ind. Dep’t of Corr., 849 F.3d 372,

381 (7th Cir. 2017) (citing Connick v. Thompson, 563 U.S. 51, 61–62 (2011)). In

determining whether prior incidents are sufficient to demonstrate a policy or practice

at the pleading stage, “the court does not mechanically count the number of incidents,

but instead looks for competent evidence tending to show a general pattern of

repeated behavior.” Bradford v. City of Chi., No. 16 C 1663, 2017 WL 2080391, at *5

(N.D. Ill. May 15, 2017) (quoting Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006))

(cleaned up).

Here, the plaintiffs have alleged that Loyola had a de facto policy of

systemically mishandling student complaints of sexual violence and harassment

dating back to at least 2011. To support this allegation, they point to the 2016 Phoenix

article, the apparent discrepancies in Loyola’s reporting of sexual assault incidents,

and the university’s alleged mishandling of their own allegations.

The Court finds that the plaintiffs’ allegations are sufficient to state pre-

assault claims under Title IX. See Vander Pas, 2022 WL 1597423 at *6. The district

court’s decision in Vander Pas is instructive. There, the district court found that

allegations of four prior incidents in which the defendant university was accused of

mishandling claims of sexual harassment plausibly supported the inference that the

university had a policy or practice of deliberate indifference. See id. Here, too, the

plaintiffs’ allegations, accepted as true for the purposes of this opinion, indicate that

the university failed to adequately respond to complaints of sexual assault on at least

ten separate occasions. The Court finds that the plaintiffs have adequately alleged a

policy or practice of deliberate indifference.

b. Knowledge of a Heightened Risk of Harassment

Next, the Court considers whether the plaintiffs have plausibly alleged that

Loyola had knowledge that its de facto policy caused a heighted risk of sexual

harassment. The parties disagree about the applicable standard for knowledge in the

pre-assault context. (Compare R. 39 at 12-13 with R. 48 at 18.) Citing the Tenth

Circuit’s decision in Simpson, Loyola argues that actual knowledge of a specific risk

in a specific program or organization is required, and that the general knowledge of

campus-wide deficiencies is insufficient. (R. 39 at 12.) Because the plaintiffs’

allegations reflect “a general policy of indifference to sexual misconduct on campus,”

rather than an issue with a specific program or organization, Loyola argues that their

allegations fail. (See id.)

The Court agrees that allegations of actual knowledge of an increased risk of

sexual assault are required for a pre-assault claim to proceed. But this knowledge

does not need to be limited to a specific problem in a specific program. Instead, as in

the municipal liability context, knowledge may be inferred from a number of previous

incidents. Cf. Calderone, 979 F.3d at 1161 (commenting that, in the § 1983 context, a

plaintiff may establish liability for a policy by showing a “series of bad acts[,] creating

an inference that [] officials were aware of and condoned the misconduct of their

employees.”) (citation omitted).

As the Ninth Circuit pointed out in Karasek, Simpson, which was decided on

summary judgment, does not foreclose the possibility that allegations of general,

campus-wide policy or practice of deliberate indifference are sufficient at the pleading

stage. Karasek, 956 F.3d 1093 at 1113. The Ninth Circuit commented that while “it

may be easier to establish a causal link between a school’s policy of deliberate

indifference and the plaintiff’s harassment when the heightened risk of harassment

exists in a specific program,” a plaintiff could nonetheless “adequately allege

causation even when a school’s policy of deliberate indifference extends to sexual

misconduct occurring across campus.” Id. (emphasis added). In other words, while the

absence of specific allegations about a specific program may make the plaintiffs’ task

at summary judgment more difficult, they do not provide grounds for dismissing the

pre-assault claims at the pleading stage.

Loyola also attempts to distinguish Karasek on its facts by pointing out that,

in that case, a comprehensive state audit had found that the university mishandled

approximately 76% of the Title IX complaints that it had received. (R. 39 at 14–15.)

But in Karasek, “it was not the existence of the audit that was dispositive, but rather

the audit’s individual findings.” Vander Pas, 2022 WL 1597423 at *7. While the Ninth

Circuit concluded that the audit’s findings were sufficient to support a de facto policy

of deliberate indifference, it did not hold that comparable allegations are always

necessary at the pleading stage. Here, allegations that Loyola systemically

mishandled sexual assault claims since 2011, corroborated by the 2016 news article,

the university’s reporting, and the plaintiffs’ individual allegations are sufficient to

plausibly allege pre-assault claims based on a de facto policy of deliberate

indifference.

In sum, the Court concludes that the plaintiffs (with the exception of Jane

Doe E) have stated colorable pre-assault claims by alleging that Loyola adopted a

policy of deliberate indifference that subjected students to a heightened risk of being

sexually assaulted. Loyola’s motion to dismiss the plaintiffs’ Title IX pre-assault

claims is therefore denied as to all plaintiffs other than Jane Doe E.

B. Post-Assault Claims

Having found that the plaintiffs have stated pre-assault claims against Loyola

based on a de facto policy of deliberate indifference, the Court now considers whether

the plaintiffs have stated post-assault claims based on the university’s failure to

respond to their harassment allegations. The plaintiffs allege that the university was

deliberately indifferent to their reports of sexual assault because it failed to take

disciplinary action, delayed or mishandled their investigations, failed to inform the

plaintiffs of resources, and forced them to come into further contact with their

harassers. Loyola argues in response that the plaintiffs’ individual allegations are

time barred and fail to state a claim. The Court addresses each argument below.

1. Statute of Limitations

The Court first considers whether the plaintiffs’ Title IX post-assault claims

are barred by the two-year statute of limitations. For deliberate indifference claims

based on a failure to adequately respond to allegations of sexual harassment, accrual

“is measured not by incident of the underlying sexual harassment, but from [the

plaintiff’s] interactions with the [defendant] about his complaint.” Yap v. Nw. Univ.,

119 F. Supp. 3d 841, 847 (N.D. Ill. 2015).

Unlike the plaintiffs’ pre-assault claims, the Court concludes that many of the

plaintiffs’ individual post-assault claims are clearly time-barred. Howe Mil. Sch., 227

F.3d at 987. Catherine Ann Cappello, Amma Appiagyei-Dankah, and Jane Does A, C,

G, H, J, and N all allege that they were sexually assaulted and the university

investigated their claims prior to the September 21, 2020, the outside date for Title

IX’s two-year statute of limitations. These plaintiffs do not allege that they had any

interaction with Loyola or its administrators regarding their claims on or after

September 21, 2020. Nor do they allege that they lacked knowledge of the university’s

indifferent response to their allegations. Because the plaintiffs do not allege that they

had any interactions with Loyola or its administrators regarding their complaints

following September 21, 2020, these plaintiffs’ post-assault claims are time-barred.

See Small v. Chao, 398 F.3d 894, 899 (7th Cir. 2005) (affirming dismissal of Title IX

claims where the last act performed by the funding recipient occurred more than two

years prior to the date on which the complaint was filed). Consequently, these

plaintiffs’ post-assault claims are dismissed.

2. Failure to State a Claim

The Court next considers whether the remaining three plaintiffs whose

individual post-assault claims are not clearly time barred—Madeline Kane, Marissa

Sepulveda, and Jane Doe E—plausibly state a claim.5 To establish a Title IX post-

assault claim, a plaintiff must allege: (1) that the school exercised substantial control

over both the harasser and the context in which the known harassment occurred; (2)

the plaintiff suffered harassment that is so severe, pervasive, and objectively

offensive that it can be said to deprive them of access to the educational opportunities

5 Loyola argues that Kane’s claim is untimely because her Title IX investigation concluded

in September 2020 (R. 39 at 27.) But the first amended complaint gives no indication whether

the investigation concluded within the limitations period. (See FAC ¶ 56.) Moreover, Kane

alleges that she was drugged at a fraternity party in 2021. (Id. ¶ 57.) Similarly, Loyola argues

that Sepulveda’s claim is untimely because her alleged sexual assault occurred in 2019. (R.

39 at 27.) However, Sepulveda’s allegations relate to a complaint that was filed in September

2021, well within the limitations period. (Id. ¶ 66); see also Yap 119 F. Supp. 3d at, 847

(statute of limitations is measured from the plaintiff’s last interaction with the defendant

regarding their claim). As to these plaintiffs, the Court concludes that the “safer course” is to

address Loyola’s Rule 12(b)(6) arguments. Luna Vanegas, Inc., 46 F.4th at 640.

or benefits provided by the school; (3) the school had actual knowledge of the

harassment; (4) the school acted with deliberate indifference to the harassment; and

(5) the school’s deliberate indifference caused the plaintiff to undergo harassment or

make that student vulnerable to it. Pogorzelska v. VanderCook Coll. of Music, 442 F.

Supp. 3d 1054, 1062 (N.D. Ill. 2020) (citing Davis, 526 U.S. at 644–45).

a. Plaintiff Madeline Kane

The Court first considers whether Plaintiff Madeline Kane’s allegations are

sufficient to state a post-assault claim. Kane alleges that Loyola acted unreasonably

by (1) delaying its investigation into her allegations of sexual harassment for more

than six months, (2) allowing her assailant to skip interviews, (3) informing Kane

(contrary to the university’s comprehensive policy) that she did not have a right to an

attorney during the investigation, and (4) reaching an erroneous outcome by finding

her assailant not guilty of sexual assault.

As a general matter, allegations that a university delayed or violated its own

policies in responding to complaints of sexual harassment are not necessarily

sufficient to state a claim for deliberate indifference. A delayed response constitutes

deliberate indifference only if “it prejudices the plaintiff or if the delay was a

‘deliberate attempt to sabotage the plaintiff’s complaint or its orderly resolution.’”

Karasek, 956 F.3d at 1106 (citation omitted). Kane’s allegations that Loyola delayed

in investigating her claim are not actionable to the extent that they reflect a

negligent, rather than intentional, response to harassment. See id. (affirming

dismissal of plaintiff’s individual Title IX claim, despite allegations that the

university delayed in responding to the plaintiff’s Title IX allegations for over eight

months, where the school’s policy provided that complaints must be resolved in 60

days). The first amended complaint is devoid of allegations that the delay in

processing Kane’s claim was intentional.

Nor is Kane’s allegation that Loyola erred in its disciplinary decision

necessarily actionable absent facts suggesting that the decision was “clearly

unreasonable.” Jauquet, 996 F.3d at 808. Victims of harassment do not have a right

to make particular remedial demands and “courts should refrain from second-

guessing the disciplinary decisions made by school administrators.” Id. (citation

omitted) (affirming dismissal of Title IX claim).

However, Kane’s allegations that the university allowed her assailant to skip

interviews and told her that she could not obtain an attorney during her Title IX

investigation are a different matter. Accepting these allegations as true, Loyola’s

actions are clearly unreasonable as they reflect deliberate violations of its own

policies, as opposed to mere negligence. Compare Karasek, 956 F. 3d at 1108 (finding

that defendant’s noncompliance with its own policies was “at most, negligent, lazy,

and careless”). Kane’s allegations are therefore sufficient to allege that Loyola acted

with deliberate indifference to her harassment.

Finally, Kane plausibly alleges that Loyola’s deliberately indifferent response

to the allegations caused her to undergo further harassment, because, after her Title

IX investigation, Kane alleges she was “drugged at a different fraternity party.” (FAC

¶ 57.) While Kane must present evidence at summary judgment indicating how

Loyola’s indifference caused this subsequent harassment, the Court finds that this

allegation of further harassment is sufficient at the pleading stage. Loyola’s motion

to dismiss Kane’s post-assault deliberate indifference claim is therefore denied.

b. Plaintiff Marissa Sepulveda

The Court next considers whether Plaintiff Marissa Sepulveda has stated an

actionable post-assault claim for deliberate indifference. Sepulveda alleges that she

was sexually assaulted twice in 2019 by other Loyola students in on-campus dorm

buildings. She reported the first incident to the university but chose not to report the

second incident due to Loyola’s failure to enforce a no-contact directive that was

issued against her assailant.

The Court finds that Sepulveda’s allegations are sufficient to state a “post-

assault” claim for deliberate indifference. Allegations that a school imposed a “no

contact” order after receiving a report of sexual assault and subsequently allowed the

assailant to violate that no-contact order are sufficient to allege that the funding

recipient’s response to harassment was clearly unreasonable. See Pogorzelska, 1054

F. Supp. 3d at 1064 (collecting cases). Being forced to encounter one’s assailant can

constitute further sexual harassment, thus satisfying the fifth element of the

deliberate indifference standard. See id.; Wills v. Brown Univ., 184 F.3d 20, 37 (1st

Cir. 1999) (“[T]he continuing presence of the harasser may so alter the terms and

conditions of education that the victim of harassment may be able to establish a claim

for sex discrimination.”). Accordingly, Loyola’s motion to dismiss Sepulveda’s post-

assault claim is denied.

c. Jane Doe E

Lastly, the Court addresses Jane Doe E’s post-assault claim. Jane Doe E

alleges that, following her return to Loyola after her study abroad program, she

learned that the R.A. who sexually assaulted her had been assigned to a freshman

dorm, which caused her “great concern.” (FAC ¶ 181.)

Jane Doe E’s allegations do not state a claim for post-assault deliberate

indifference under Title IX. In particular, she fails to allege that Loyola’s actions

caused or made her vulnerable to additional harassment. Jane Doe E does not allege

that she lived in the dorm where her alleged assailant was assigned as an R.A., nor

does she allege that she ever saw her assailant on campus while the investigation

was pending. Generalized knowledge that a victim’s assailant remained on campus

is insufficient to state a claim under Title IX. See Kollaritsch v. Mich. State Univ. Bd.

of Trs., 944 F.3d 613, 625 (6th Cir. 2019) (holding that plaintiff’s allegations that she

“could have encountered” her harasser on campus at any time due to his “mere

presence . . . on campus” was insufficient to state a claim for deliberate indifference);

accord Yoona Ha v. Nw. Univ., No. 14 C 895, 2014 WL 5893292, at *2 (N.D. Ill. Nov.

13, 2014) (holding that plaintiff’s “claims that knowledge of [her assailants’] presence

on the campus caused her considerable grief” were “not actionable under Title IX.”).

Because Jane Doe E fails to allege that Loyola’s actions subjected her to further

harassment or made her vulnerable to it, her post-assault deliberate indifference

claim is dismissed.

* * * *

In sum, Loyola’s motion to dismiss the plaintiffs’ pre-assault Title IX claims is

granted as to Jane Doe E and denied as to all other plaintiffs. Loyola’s motion to

dismiss the plaintiffs’ post-assault claims is granted as to all other plaintiffs other

than Madeline Kane and Marissa Sepulveda and denied as to those two plaintiffs.

Since all of Jane Doe E’s federal claims have been dismissed, the Court declines to

exercise supplemental jurisdiction over her remaining state law claims. See, e.g.,

Leister v. Dovetail, Inc., 546 F.3d 875, 882 (7th Cir. 2008) (“When [a] federal claim in

a case drops out before trial, the presumption is that the district judge will relinquish

jurisdiction over any supplemental claim to the state courts.”).

II. COMMON LAW CLAIMS

Having determined that certain of the plaintiffs’ Title IX claims may proceed,

the Court now addresses Loyola’s motion to dismiss the plaintiffs’ remaining state

law claims for violating the PSVHEA (Count II), negligence (Count III), negligent

supervision, hiring or retention (Count IV), gross negligence (Count V), NIED (Count

VI), IIED (Count VII), breach of contract (Count VIII), breach of fiduciary duty (Count

IX), premises liability (Count X), and common law fraud (Count XI). The Court may

exercise supplemental jurisdiction over these claims because they are “so related” to

the plaintiffs’ Title IX claims “that they form part of the same case or controversy.”

U.S.C. § 1367(a).6

6 In their motion to sever and remand, the plaintiffs ask the Court to not exercise

supplemental jurisdiction over the plaintiffs’ state law claims. Except for their PSVHEA

claims (addressed infra), however, the plaintiffs do not identify any circumstances that justify

declining to exercise supplemental jurisdiction over their state law claims. The plaintiffs’

Title IX claims and their state law claims seek damages for their sexual assault and Loyola’s

allegedly indifferent response, and thus arise from a “common nucleus of operative fact.”

A. PSVHEA (Count II)

First, the Court considers the plaintiffs’ PSVHEA claims. Acknowledging that

the text of the PSVHEA does not include a private right of action, the plaintiffs ask

this Court to infer one. “District courts may decline to exercise supplemental

jurisdiction over a claim . . . if the claim raises a novel or complex issue of State

law.” 28 U.S.C. § 1367(c)(1). Whether the PSVHEA implies a private right of action

is an issue of first impression in Illinois, and the only other federal court to have

considered this issue declined to exercise supplemental jurisdiction over PSVHEA

claims brought by private parties. See, e.g., O’Shea v. Augustana Coll., 593 F. Supp.

3d 838, 853 (C.D. Ill. 2022) (declining to exercise supplemental jurisdiction over

PSVHEA claim). This Court takes the same approach. Because whether the PVSHEA

implies a private right of action is a novel issue that is more appropriately addressed

by Illinois courts, the Court declines to exercise supplemental jurisdiction over the

plaintiffs’ PSVHEA claim. This claim is dismissed without prejudice, and the

plaintiffs’ motion to remand this claim is therefore denied as moot.

B. Negligence (Counts III, IV, and V)

The Court next considers the plaintiffs’ claims for negligence (Count III),

negligent failure to train, supervise, or retain (Count IV), and gross negligence

(Count V). While ordinary negligence and negligent supervision claims turn on

differing theories of liability, they require proof of the same elements. See Sojka v.

Bovis Lend Lease, Inc., 686 F.3d 394, 399 (7th Cir. 2012) (“One claim supported by

Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 607 (7th Cir. 2008).

Consequently, the Court denies the plaintiffs’ motion to sever and remand these claims.

multiple theories does not somehow become multiple claims.”). Additionally, “Illinois

does not recognize gross negligence as an independent ground for recovery.” Burke v.

Nationstar Mortg., LLC, No. 21 C 1549, 2022 WL 888811, at *12 (N.D. Ill. Mar. 25,

2022) (quoting Merit Ins. Co. v. Colao, 603 F.2d 654, 659 (7th Cir. 1979)). The Court

therefore analyzes these causes of action together.

In Illinois, a plaintiff asserting a common law negligence claim “must establish

(1) the existence of a duty owed by the defendant to the plaintiff, (2) a breach of that

duty, and (3) an injury proximately caused by that breach.” Choate v. Ind. Harbor

Belt R.R. Co., 980 N.E.2d 58, 64 (Ill. 2012). To allege the existence of a duty, a plaintiff

must point to “a relationship between the defendant and the plaintiff such that the

law imposes on the defendant an obligation of reasonable conduct for the benefit of

the plaintiff.” Id. Whether a duty exists is a question of law. Bruns v. City of

Centralia, 21 N.E.3d 684, 688−89 (Ill. 2014).

The plaintiffs’ negligence claims fail on the first element. The first amended

complaint does not point to any legally cognizable duty between the university and

its students that would obligate Loyola to protect them from sexual assaults

perpetrated by fellow students. There is no affirmative duty to protect another from

criminal attack by a third party absent a special relationship. See Iseberg v. Gross,

879 N.E.2d 278, 284 (Ill. 2007). In the context of higher education, “[c]ourts

consistently find that the university-student relationship is not the type of ‘special

relationship such that the university has a duty to protect students from the harmful

acts of third parties.” Doe v. Columbia Coll., 299 F.Supp.3d 939, 962 (N.D. Ill. 2017)

(collecting cases); accord Totten v. Benedictine Univ., No. 20 C 6107, 2021 WL

3290926, at *11 (N.D. Ill. Aug. 2, 2021); see also Bogenberger v. Pi Kappa Alpha Corp.,

Inc., 104 N.E.3d 1110, 1123 (Ill. 2018) (commenting that “appellate court[s] ha[ve]

rejected attempts to hold universities liable for harm perpetrated by one student upon

another”). This is true even in circumstances where the university exercises control

over the context in which the act took place. Totten, 2021 WL 3290926 at *12.

Here, the plaintiffs allege that they were sexually assaulted at different times,

by different individuals, at different locations on and around Loyola’s campus. There

are insufficient facts pleaded in the complaint to conclude that the sexual assaults

were reasonably foreseeable such that Loyola had a duty to prevent them.

Jane Does A, G, and H each allege that they were assaulted by students who

had been previously reported for sexual assault. (FAC ¶¶ 132, 139 166–171.) These

allegations raise the possibility that Loyola may be liable based on its “unique

knowledge” that the assailants posed a threat. Doe-2, 593 F.3d at 514–515. Even as

to these plaintiffs, however, the Court is not convinced that the first amended

complaint plausibly alleges a common law duty to protect. The cases in which Illinois

courts have held that a school has a duty to protect students from their peers involved

plaintiffs who were minors and were especially vulnerable or placed into close contact

with their assailant by the school. See, e.g., Ortega–Piron ex rel. Doe v. Chi. Bd. of

Educ., 820 N.E.2d 418, 423 (Ill. 2004) (recognizing a claim for a school board’s failure

to prevent a known sexually aggressive student from assaulting a known mentally

disabled student). The plaintiffs cite no authority that recognizes a comparable duty

to protect college-aged students on a large university campus from criminal acts

committed by their peers.

Regardless, even if Jane Does A, G, and H’s allegations were sufficient to state

a claim for negligence, their claims would be barred by the two-year statute of

limitations since they were sexually assaulted in 2019, nearly three years before the

initial complaint was filed. See, e.g., Hollander v. Brown, 457 F.3d 688, 695 (7th Cir.

2006) (affirming dismissal of negligence claims under Illinois’ two-year statute of

limitations).

Bereft of common law authority, the plaintiffs allege that Title IX, the Clery

Act, and the PSVHEA give rise to a duty to protect. But as the Supreme Court

explained in Gebser, the scope of Title IX’s private right of action should be construed

narrowly to preclude liability based on respondeat superior and constructive notice.

Gebser, 524 U.S. at 287. Finding that Title IX implies a duty to protect students from

the criminal acts of third parties would eviscerate this limitation. Cf. Davis, 526 U.S.

at 648 (“We stress that our conclusion here . . . does not mean that recipients can

avoid liability only by purging their schools of actionable peer harassment. . . .”); see

also Ross v. Univ. of Tulsa, No. 14 C 484, 2015 WL 4064754, at *3 (N.D. Okla. July 2,

2015) (holding that Title IX’s “general nondiscrimination mandate . . . does not

establish any statutory standard that may substitute for the general common law

standard.”). Likewise, the Clery Act specifically states that it may not be construed

to “(i) create a cause of action . . . for any civil liability; or (ii) establish any standard

of care.” 20 U.S.C. § 1092(f)(14)(A). And, as stated above, the Court declines to wade

into the PSVHEA’s uncharted waters to imply a private right of action.

In sum, because the plaintiffs fail to plausibly allege the existence of a duty

that would give rise to liability, and because their claims are otherwise time-barred,

their negligence claims are dismissed.

C. NIED (Count VI)

The Court next considers the plaintiffs’ claims for negligent infliction of

emotional distress (“NIED”). To state a claim for NIED under Illinois law, a plaintiff

“must allege the traditional elements of negligence: duty, breach, causation, and

damages.” Doe v. Loyola Univ. of Chi., No. 18 C 7335, 2019 WL 3801819, at *3 (N.D.

Ill. Aug. 13, 2019) (citing Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 58 (Ill.

2016)). “Direct victims,” i.e. those who suffer harm as a direct consequence of the

defendant’s negligence must also satisfy the “impact rule” by showing that the

emotional distress was accompanied by a contemporaneous physical injury to or

impact. Schweihs, 77 N.E.3d at 59.

As stated above, the plaintiffs have largely failed to allege that Loyola owed an

actionable common law duty to the plaintiffs, hence they have failed to allege “the

traditional elements of negligence.” Loyola, 2019 WL 3801819, at *3. To the extent

that the plaintiffs seek to hold Loyola liable for post-assault conduct, they do not

allege any contemporaneous physical impact. Finally, even if certain of the plaintiffs

had adequately alleged a duty, their claims would be barred by the statute of

limitations. Doe v. Hastert, 133 N.E.3d 1249, 1255 (Ill. App. Ct. 2019) (NIED claims

are subject to a two-year statute of limitations). The plaintiffs’ NIED claims are

therefore dismissed.

D. IIED (Count VII)

Next, the Court addresses the plaintiffs’ claims for intentional infliction of

emotional distress (“IIED”). IIED requires the plaintiffs to allege that (1) Loyola

engaged in extreme and outrageous conduct; (2) Loyola either intended to inflict

severe emotional distress or knew that there was a high probability that its conduct

would do so; and (3) Loyola’s conduct caused severe emotional distress. S.J. v.

Perspectives Charter Sch., 685 F. Supp. 2d 847, 859 (N.D. Ill. 2010) (citing Tuite v.

Corbitt, 830 N.E.2d 779, 789 (Ill. App. Ct. 2005) (rev’d on other grounds). “Illinois has

a high standard for extreme and outrageous conduct.” Totten, 2021 WL 3290926, at

*11 (citation omitted). The alleged conduct must be “so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id.

The first amended complaint alleges several instances of rude, offensive, or

uncooperative conduct by Loyola. For example, Catherine Ann Cappello alleges that

Loyola professors referred to her as a “troublemaker” after she complained about

being forced to work in the same small group as her assailant (FAC ¶ 42), and Jane

Doe H alleges that an R.A. called her a “whiny little brat” after she informed the R.A.

of her sexual assault. (Id. ¶ 135.) Other plaintiffs allege the school failed to

adequately support them during their Title IX investigations, failed to prevent them

from encountering their attackers on campus, or failed to inform them of available

resources. (See generally id.)

As an initial matter, many of the plaintiffs’ IIED claims are subject to a two-

year statute of limitations and are therefore time barred. See, e.g., Kiebala v. Boris,

No. 16 C 7478, 2017 WL 1161177, at *2 (N.D. Ill. Mar. 29, 2017). Even if the Court

were to ignore this deficiency, the alleged actions do not constitute intentional,

outrageous conduct that would plausibly give rise to liability for IIED. Courts in this

district have rejected IIED claims based on allegations that funding recipients failed

to investigate or respond to complaints of sexual harassment. Totten, 2021 WL

3290926, at *12; Columbia Coll., 299 F. Supp. 3d at 964. Allegations that a victim of

sexual harassment was “inconvenienced, ignored, and treated worse than her

aggressors” are also insufficient to state a claim. Totten, 2021 WL 3290926, at *12.

In their response, the plaintiffs fail to cite any cases in which analogous IIED

claims were allowed to proceed. (See generally R. 43.) Even if Loyola’s actions could

be construed as extreme or outrageous, however, the plaintiffs fail to allege facts

suggesting that Loyola intended or knew that there was a high likelihood that its

actions would cause severe emotional distress. Instead, they claim that Loyola

“should have reasonably concluded” that its conduct would inflict emotional distress.

(See FAC ¶¶ 256, 258.) At best, these allegations suggest that the university was

inattentive and acted irresponsibly in responding to the plaintiffs’ concerns. Such

allegations are insufficient to plausibly allege an intentional tort. The plaintiffs’ IIED

claims are therefore dismissed.

E. Breach of Contract (Count VIII)

The Court next turns to the plaintiffs’ breach of contract claim. To establish a

breach of contract in Illinois, a plaintiff must prove: (1) the existence of a valid and

enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the

defendant; and (4) damages. Gociman v. Loyola Univ. of Chi., 41 F.4th 873, 883 (7th

Cir. 2022).

The plaintiffs do not allege that they executed an express contract with Loyola.

Nonetheless, “[i]n the educational context, courts recognize that a contractual

relationship exists between a college or university and its students,” the terms of

which may be implied from “the school’s catalogs, bulletins, circulars, regulations,

and other publications, and customs.” Id. (citations omitted). To state a claim,

however, “a student must point to an identifiable contractual promise that the

defendant failed to honor.” Id. (quoting Ross v. Creighton Univ., 957 F.2d 410, 417

(7th Cir. 1992)). The complaint “must be specific about the source of the implied

contract, the exact promises the university made to the student, and the promises the

student made in return.” Charleston v. Bd. of Trs. of the Univ. of Ill. at Chi., 741 F.3d

769, 773 (7th Cir. 2013) (citation omitted). For breach of contract claims based on

“adverse academic decisions,” students must allege that the “decision was made

arbitrarily, capriciously, or in bad faith.” Raethz v. Aurora Univ., 805 N.E.2d 696, 699

(Ill. App. Ct. 2004).

Here, the first amended complaint does not allege the terms of an implied

contract or the facts surrounding Loyola’s breach with requisite specificity. While the

complaint quotes broadly from Loyola’s policy handbook, it does not specifically

indicate which promises were not honored. (See generally FAC ¶ 36.) The portions of

policy handbook that are quoted in the first amended complaint are phrased in

permissive, rather than mandatory, terms. For example, the policy provides that

Loyola “may implement a no-contact directive” in response to a request; that

complainants “may be accompanied by one advisor of their choice; and that “the

University aims to complete all investigations into students’ report (sic) of sexual

misconduct within six months of receipt of the initial complaint.” (Id. (emphases

added).) These statements are insufficient to state a claim for breach of an implied

contract. Charleston, 741 F.3d at 773; Svigos v. Petry Television, Inc., No. 95 C 5899,

1996 WL 388416, at *3 (N.D. Ill. July 9, 1996) (rejecting breach of implied contract

claim based on “permissive language” in the company’s harassment policy and

holding that statements in the policy like “such behavior may result in disciplinary

action” were not a binding obligation to impose discipline).

To the extent that the plaintiffs challenge Loyola’s discretionary decision-

making under the policy, the first amended complaint fares no better. The plaintiffs

have not pleaded facts indicating that Loyola acted arbitrarily, capriciously, or in bad

faith. Raethz, 805 N.E.2d at 699.

As a fallback, the plaintiffs point to allegations that the plaintiffs violated Title

IX and the Clery Act as evidence that Loyola breached a contract with the plaintiffs.

(FAC ¶ 265.) But a plaintiff cannot use a breach of contract claim to enforce statutory

provisions that lack a private right of action. Ochoa v. State Farm Life Ins. Co., 910

F.3d 992, 995 (7th Cir. 2018) (citing Vill. of McCook v. Ill. Bell Tel. Co., 780 N.E.2d

335, 341 (Ill. App. Ct. 2002)). The plaintiffs’ breach of contract claims are therefore

dismissed.

F. Breach of Fiduciary Duty (Count IX)

Next, the Court address the plaintiffs’ breach of fiduciary duty claims. “To

establish a breach of fiduciary duty in Illinois, a plaintiff . . . must show: (1) that a

fiduciary duty exists; (2) that the duty was breached; and (3) injury proximately

caused by the breach.” Breedlove v. Museum of Sci. & Indus., No. 16 C 5861, 2017 WL

56641, at *1 (N.D. Ill. Jan. 5, 2017) (citation omitted).

There appears to be no Illinois authority recognizing a fiduciary duty between

college-aged students and the educational institutions they attend, much less one

that would obligate institutions to protect students from the criminal acts of third

parties. (R. 39 at 38 (citing Phillips v. DePaul Univ., No. 12 CH 3523, 2012 WL

4000001 (Ill. Cir. Ct. Sep. 11, 2012) (“There is no Illinois authority finding that a

fiduciary relationship exists between a student and an educational institution.”)).)

The plaintiffs do not cite any cases under Illinois law recognizing the existence of a

fiduciary duty in an analogous context, nor do they attempt to distinguish the

authority cited by Loyola. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th

Cir.2010) (“Failure to respond to an argument [in a motion to dismiss] . . . results in

waiver.”). Because the plaintiffs have failed to plausibly allege that a fiduciary duty

exists, their claim is dismissed.

G. Premises Liability (Count X)

The Court next considers the plaintiffs’ premises liability claims. Under Illinois

law, property owners owe their invitees a duty to maintain the premises in a

reasonably safe condition. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th

Cir. 2017); Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7th Cir. 2016). To state

a claim for premises liability, a plaintiff must allege: (1) the existence of a condition

that presents an unreasonable risk of harm to persons on the premises; (2) that the

defendants knew, or should have known, that the condition posed an unreasonable

risk of harm; (3) that the defendants should have anticipated that individuals on the

premises would fail to discover or recognize the danger or otherwise fail to protect

themselves against it; (4) a negligent act or omission on the part of the defendant;

(5) an injury suffered by the plaintiff; and (6) that the condition of the property was

a proximate cause of the injury to the plaintiff.

These claims fail too. First, many plaintiffs allege that they were assaulted off

campus without also alleging that their sexual assaults can fairly be attributed to a

condition of Loyola’s property. There is “no liability on the part of a college for non-

curricular activities taking place on property not owned by the college.” Leonardi v.

Bradley Univ., 625 N.E.2d 431, 436 (Ill. App. Ct. 1993).

The plaintiffs who lived in and were sexually assaulted in on-campus housing

also fail to state a claim for premises liability. First, each plaintiff who alleges that

they were sexually assaulted in Loyola dorms indicates that their assault occurred

prior to September 21, 2020, rendering their claims time barred. See, e.g., Mular v.

Ingram, 33 N.E.3d 771, 777 (Ill. App. Ct. 2015) (holding that premises liability claims

are subject to a two-year statute of limitations under Illinois law).

Even if these plaintiffs’ claims were not time barred, however, they would still

fail. A landowner generally has no duty to protect others from criminal activities by

third persons on its property. Rowe v. State Bank of Lombard, 531 N.E. 2d 1358, 1364

(Ill. 1988). The plaintiffs argue that “a landlord may be held liable for the criminal

acts of third parties when it voluntarily undertakes to provide security measures, but

performs the undertaking negligently, if the negligence is the proximate cause of

injury to the Plaintiff.” (R. 43 (citing Rowe, 531 N.E. 2d at 1365).) But the plaintiffs

have not alleged that Loyola provided security measures, did so negligently, or that

its negligence proximately caused the plaintiffs’ assaults. Cases in which courts have

allowed similar premises liability claims to go forward have involved much more

specific allegations as to the security measures employed and the steps that the

defendant failed to take. In Doe v. Allegheny College, for example, the district court

denied the defendant college’s motion to dismiss premises liability claims for sexual

assault that occurred in a college dorm because the plaintiff had alleged that the

defendant had failed to properly maintain access card systems, hire security, or

install video cameras at its dormitories. No. 20 C 212, 2021 WL 4479709, at *2 (W.D.

Pa. Sept. 30, 2021). No comparable allegations are present here.

Because the plaintiffs’ allegations are untimely and insufficient to state a

claim, their premises liability claims are dismissed.

H. Fraud (Count XI)

Finally, the Court briefly addresses the plaintiffs’ claims for common law

fraud. To state a claim for fraud under Illinois law, the plaintiffs must allege: (1) a

false statement of a material fact; (2) made with knowledge of its falsity; (3) intending

to induce the plaintiff to act; (4) that plaintiffs relied on the statement; and (5) the

damage from such reliance. Kinman v. Kroger Co., 604 F. Supp. 3d 720, 727–28 (N.D.

Ill. 2022) (citing Connick v. Suzuki Motor Co., Ltd., 675 N.E. 2d 584 (Ill. 1996)).

Allegations of fraud are subject to the heightened pleading standards of Federal Rule

of Civil Procedure 9(b), which requires a plaintiff to “describ[e] the ‘who, what, when,

where, and how’ of the fraud.” Cornielsen v. Infinium Cap. Mgmt., LLC, 916 F.3d 589,

598 (7th Cir. 2019) (citation omitted).

The plaintiffs allege that Loyola published false statistics regarding the

prevalence of sexual assault and made false representations about the safety of its

facilities. The plaintiffs do not identify the content of any false statements with

particularity, nor who made them. These threadbare allegations are not sufficient to

state a claim, much less satisfy Rule 9(b)’s heightened pleading standard. Even if the

plaintiffs are correct that the statistics contained in Loyola’s Clery Act and PSVHEA

reporting are false, this does not make it plausible that the university knew that the

statements were false when it published them, or that the university intended to

induce reliance. Accordingly, the plaintiffs’ common law fraud claims are dismissed.

CONCLUSION

For the reasons stated in this order, defendant Loyola University of Chicago’s

motion to dismiss [38] is granted in part and denied in part. Jane Doe E’s Title IX

claims are dismissed for failure to state a claim, and the Court declines to exercise

supplemental jurisdiction over her state law claims. The remaining plaintiffs’ pre-

assault Title IX claims, as well as Madeline Kane’s and Marissa Sepulveda’s post-

assault Title IX claims, will be allowed to proceed. All other claims are dismissed

without prejudice. The plaintiffs’ motions to remand and sever [18]; [19] are denied

as moot. The plaintiffs will have 28 days to file an amended complaint if they can do

so consistent with this opinion and the Federal Rules of Civil Procedure. Finally,

within 28 days, the plaintiffs must file a memorandum of law of no longer than ten

pages addressing leave to proceed using pseudonyms. See Doe v. City of Chi., 360 F.3d

667, 669-70 (7th Cir. 2004). The defendant will have one week to respond to the

plaintiffs’ memorandum. No reply will be allowed. Status hearing set for April 30,

2024, at 9:30 a.m.

Date: March 18, 2024 é

JEREMY C. DANIEL

United States District Judge

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