D.R. v. Wake County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:22-CV-45-D

A.R., by and through her mother, D.R., ) □

Plaintiffs, ; .

v. ; ORDER

WAKE COUNTY BOARD OF ;

EDUCATION, )

Defendant.

_ January 27, 2022, A.R.,' by and through her mother, D.R., (collectively “plaintiffs”) filed

a complaint in this court alleging a violation of Title IX of the Education Amendments of 1972

(‘Title IX”), 20 U.S.C. §§ 1681, et seq. and a state tort claim of negligent infliction of emotional

distress against the Wake County Board of Education (“Board” or “defendant”). See Compl. [D.E.

2]. On March 14, 2022, the Board moved to dismiss for lack of subject-matter jurisdiction and for

failure to state a claim upon which relief can be granted [D.E. 14] and filed a memorandum in

support [D.E. 15]. On March 31, 2022, plaintiffs responded.in opposition [D.E. 17]. On May 14,

2022, the Board replied [D.E. 18]. As explained below, the court grants the Board’s motion in part,

dismisses plaintiffs’ Title IX claim with prejudice, declines to exercise supplemental jurisdiction over

the state law claim, and dismisses without prejudice the state law claim.

1.

A.R. is a 10 year-old female student who was enrolled at Wilburn Elementary School. See

Compl. 5, 8. On November 3, 2021, a male student, Justin Doe (“J.D.”),” allegedly assaulted A.R.

at school. See id. at 9. J.D., who allegedly has a history of targeting girls in his grade, attacked □

1 The court granted the request by D.R. and A.R. to use pseudonyms in this litigation in order

to protect their privacy. See [D.E. 10]. □

2 “Justin Doe” is a pseudonym used to protect the privacy of a minor.

A.R. after she was blamed for splashing J.D. with soapy water in the bathroom. See id. at ff 11-12.

After leaving the bathroom, J.D. began insulting and hitting A.R. See id. at ff] 13-14. When the

_ Students returned to their classroom, A.R. attempted to report J.D. to a substitute teacher, but the

teacher was busy and told A.R. to wait. Seeid.at916.

- J.D. continued to strike AR, and, eventually, A.R. struck him back. See id. at [J 17-18.

In response, J.D. began to strangle A.R., and A.R. fell to the floor. See id. at 719. When A.R.

attempted to sit back down in her seat, J.D. grabbed her, threw her into walls a furniture, and

kicked her in the buttocks when A.R. fell to the floor. See id. at J] 20-26. The substitute teacher

_ failed to intervene, but A.R.’s home room teacher arrived and escorted A.R. to the school’s guidance

counselor. See id. at J] 25-29. Although J.D. injured A.R., the school did not provide A.R. medical

treatment for over two hours while A.R. waited to meet with the guidance counselor. See id. at □

28-31. Eventually, the school contacted D.R. Id. at 32. D.R. retrieved A.R. and reported the

assault to the Raleigh Police Department. See id. at J] 32-35.

On November 4, 2021, A.R.’s pediatrician diagnosed A.R. with a concussion, muscle strain,

and a contusion on her left forehead. See id. at 137. The pediatrician referred A.R. to the UNC

‘Beacon Program for child abuse and assault. See id. at { 40.

On November 5, 2021, A.R. suffered a panic attack while taking a bath at home, and D.R.

took A.R. to the emergency room. See id. □□□ □□□ A.R. continues to suffer physical and emotional

symptoms concerning the assault and has sought treatment froma therapist. See id. at J] 47, 54-55.

A.R. also did not have access to her school for several months while recovering from the assault.

See id. at ¢54. Eventually, A.R. enrolled in another school and resumed classes. See id. at □ 52.

IL.

The Board contends that D.R. cannot bring this action on behalf of A.R.; therefore, the court

should dismiss the complaint under Rule 12(b)(1). See [D.E. 15] 5—6;[D.E. 18] 1-2. A motion to

dismiss under Rule 12(b)(1) tests subject-matter jurisdiction, which is the court’s “statutory or

constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

89 (1998) (emphasis omitted); see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448,

453 (4th Cir. 2012); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,

479-80 (4th Cir. 2005); Sasso v. Tesla, Inc., 584 F. Supp. 3d 60, 68 (E.D.N.C. 2022); Lobacz v.

United States, No. 5 :19-CV-453, 2022 WL 821160, at *1 (E.D.N.C. Mar. 17, 2022) (unpublished).

A federal court “must determine that it has subject-matter jurisdiction over the case before it can pass

on the merits of that case.” Constantine, 411 F.3d at 479-80. In considering a motion to dismiss for

lack of subject-matter jurisdiction, the court may consider evidence outside the pleadings without

converting the motion into one for summary judgment. See, e.g., White Tail Park, Inc. v. Stroube,

413 F.3d 451, 479 (4th Cir. 2005); Richmond, Fredericksburg & Potomac R.R. v. United States, 945

F.2d 765, 768 (4th Cir. 1991). “[T]he party invoking federal jurisdiction bears the burden of

establishing its existence.” Steel Co., 523 US. at 104; see Evans v. B.F. Perkins Co., 166 F.3d 642,

647 (4th Cir. 1999). However, “when a defendant asserts that the complaint fails to allege sufficient

facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule

12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and any additional

- materials].” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

The Board argues that under Federal Rule of Civil Procedure 17, a court evaluates the law

of the state in which the individual is domiciled or in which the district court is located in order to

‘determine capacity and standing to sue. See Fed, R. Civ. P. 17(0)(). In North Carolina, in any

proceeding in which a plaintiff is a minor, “[the minor] must appear by general or testamentary

guardian . . . or if there is no such known guardian, then such persons may appear by guardian ad

“item.” N.C. R. Civ. P. 17(b)(1). The United States Coutt of Appeals for the Fourth Circuit

recognized the “special concern” for the “important and valuable rights” at stake under Rule 17(b)(1)

and stated that “even the parent or other natural guardian of the infant cannot step forward as self

appointed guardian [a]d litem [as a matter of course under Rule 17(b)(1)], nor will the courts [in

.

North Carolina] make such appointment in a perfunctory manner.” Genesco, Inc. v. Cone Mills

Corp., 604 F.2d 281, 286 (4th Cir. 1979); see J.W. v. Johnston Cnty. Bd. of Educ., No. 5:11-CV-707,

2012 WL 4425439, at *6 (E.D.N.C. Sept. 24, 2012) (unpublished). Given these cases, the Board

argues that D.R. cannot bring this action on behalf of AR.

Plaintiffs respond that D.R. can bring this action on behalf of AR. under Rule 17(c)(1)(a).

See [D.E. 17] 5—7; Fed. R. Civ. P. 17(c)(1)(a). Under Local Civil Rule 17.1(a), representation of a

minor in a civil action “shall be in accordance with Fed. R. Civ. P. 17(c).” Federal Rule 17(c)(1)

provides that certain specified representatives may sue on behalf of a minor, or if the minor “does

not have a duly appointed representative, [the minor] may sue by a next friend or by a guardian ad

litem.” Fed. R. Civ. P. 17(c)(2). D.R., as a parent, “qualifies asa general guardian who may act on

behalf of a minor without needing a formal court appointment under Federal Rule 17(c).” Epic

Games, Inc. v. CB. No. 5:19-CV-250, 2019 WL 8334611, at *1 (E.D.N.C. Sept. 27, 2019)

(unpublished) (quotations omitted). ,

The parties’ arguments reflect a disagreement among federal district courts sitting in North

Carolina about Genesco. The Board reads Genesco to suggest that federal courts sitting in North .

Carolina must apply North Carolina law under Federal Rule 17(b) when determining whether a

mother can bring suit for her minor child and cites some district court opinions that arguably support

that position. See LW., 2012 WL 4425439 at *6 (citations omitted); Verbal v. Krueger, No. 1:09-

CV-990, 2010 WL 276644, at *3 n.4 (M.D.N.C. Jan. 15, 2010) (unpublished); Cooperv. Brunswick

Cnty. Sheriff's Dep’t, No. 7:10-CV-00014, 2011 WL 738610, at *3-4 (E.D.N.C. Feb. 7, 2011)

(unpublished), report and recommendation adopted, No. 7:10-CV-14, 2011 WL 736670 (E.D.N.C.

Feb. 23, 2011) (unpublished). Other district courts reason that “Rule 17(b) looks to state law to

determine who has the capacity to sue on their own behalf, while Rule 17(c) creates a federal

procedural rule to determine who may serve as a representative for a person lacking such capacity.”

Kline 7 Cleveland Cnty., No. 119-CV-00197, 2020 WL 1692348, at *5 (W.D.N.C. Apr. 7, 2020)

(unpublished) (emphasis omitted); see Epic Games, 2019 WL 8334611 at *1; Seibels, Bruce & Co.

v. Nicke, 168 F.R.D. 542, 543 (M.D.N.C. 1996) (“[Rule 17(c)] provisions permit, but do not compel,

a court to appoint a guardian ad litem for an unrepresented minor.”’). Several federal circuits have

reached the same, or similar, conclusion concerning Rule 17(c). See Graham v. Teller Cty. 632 F.

App’x 461, 465 (10th Cir. 2015); Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 135-36 Gd Cir.

2002) (holding that a district court “need not look to the state law” when exercising its authority

under Rule 17(c)); Thomas v. Humfield, 916 F.2d 1032, 1035 (Sth Cir. 1990); see also Lisa V.

Martin, No Right to Counsel, No Access Without: The Poor Child’s Unconstitutional Catch-22, 71

FLA. L. REV. 831, 838-39 (2019) (noting that Rule 17(c) “authorizes general guardians, committees,

and conservators to‘sue and defend on behalf of children . . . participation of a qualifying adult on

behalf ofa child in legal proceedings cures the child’s incapacity and permits the case to proceed [in

federal court]”). .

The parties’ disagreement concerns how Genesco applies. In Genesco, a parent of a minor

filed an action in the United States District Court for the Northern District of West Virginia on behalf

of her child without any formal procedure naming the parent as a representative. Genesco, 604 F.2d

at 285-86. In Genesco, the Fourth Circuit addressed whether North Carolina law would consider

the statute of limitations to run when the minor’s parent filed suit in the Northern District of □□□□

Virginia. Id. at 287. The Fourth Circuit analyzed North Carolina procedural law and concluded that

“the North Carolina statute of limitations runs against an infant when he has a legal guardian who

is charged with the duty of bringing suit on his behalf.” Id. at 286. Nonetheless, the Fourth Circuit

concluded that the North Carolina statute of limitation did not begin to run against the minor when

the mother filed suit because the mother was not charged under North Carolina law to file suit. Id.

Moreover, in Genesco the Fourth Circuit observed that Federal Rule of Civil Procedure 17(c)

contains “no special appointment process” to chose a representative for a minor. See id. at 285. In

Genesco, the Fourth Circuit examined what North Carolina procedural law requires to trigger a

statute of limitations, but Genesco does not require a court to use North Carolina procedural law

under federal Rule 17(b) to override the provisions of federal Rule 17(c).

The court examines Rule 17(b) to determine whether A.R. has capacity to sue under North

Carolina law and then to Rule 17(c) to determine whether D.R. may bring this suit on behalf of her

daughter. Under North Carolina law, A.R. lacks capacity to sue. See Fed. R. Civ. P. 17(b)(3); N.C.

R. Civ. P. 17(b)(1). D.R., as A.R.’s mother, however, may bring suit on A.R.’s behalf in federal

court under Rule 17(c). See Fed, R. Civ. P. 17(c)(1)(a); Kline,/2020 WL 1692348 at *5; Epic

Games, 2019 WL 8334611 at *1; Seibels, 168 F.RD. at 543. Thus, D.R. can bring suit in this case, □

and the court denies the Board’s motion to dismiss under Rule 12(b)(1).

Ill. □

The Board moves to dismiss the complaint under Rule 12(b)(6). See [D.E. 15] 6-10;[DE.

18]2—6. A motion to dismiss under Rule 12(b)(6) tests the complaint’s legal and factual sufficiency.

See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S.

30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6)

motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550U.S.at

570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and

reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759

F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708

F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155

(2015). A court need not accept as true a complaint’s legal conclusions, “unwarranted inferences,

unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal,

556 U.S. at 678-79. Rather, a plaintiff s factual allegations must “nudge[ ] [her] claims,” Twombly,

6 .

550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at

678-79.

When evaluating a motion to dismiss, a court considers the pleadings and any materials

“attached or incorporated into the complaint.” E.J. du Pont de Nemours & Co: v. Kolon Indus.., Inc.,

637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822

F.3d 159, 166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court may

also consider a document submitted by a moving party if it is “integral to the complaint and there is

no dispute about the document’s authenticity.” Goines, 822 F.3d at 166. Additionally, a court may

take judicial notice of public records without converting the motion to dismiss into a motion for

summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem’] Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

In order to state a claim under Title IX for conduct stemming from student-on-student

harassment, a plaintiff must demonstrate that: (1) she was a student at an educational institution

receiving federal funds; (2) she ma subjected to discrimination or harassment based on her sex; (3)

the discrimination or harassment was sufficiently severe or pervasive to create a hostile environment

_ in an educational program or activity; and (4) tere is some basis for imputing liability to the

educational institution. See Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

652 (1999); Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en banc); McClean v.

Duke Univ., 376 F. Supp. 3d 585, 598 (M.D.N.C. 2019); Doe v. Salisbury Univ., 107 F. Supp. 3d

481, 764 (D. Md. 2015). At this stage, the parties disagree about whether (1) plaintiffs plausibly

allege that A.R. was subjected to discrimination or harassment based on her sex and (2) whether

there is some basis for imputing liability to the Board.

The Board argues that plaintiffs have failed to allege facts “supporting an inference that

[J.D.’s] alleged harassment was based on [A.R.’s] sex.” [D.E. 15] 6. Plaintiffs disagree and cite

J.D.’s alleged targeting of other girls before assaulting A.R. and note that J.D. allegedly called A.R.

gender-based insults (such as “bitch”) during the alleged assault. See Compl. ff 11, 24; [D.E. 17]

8-11.

In Webster v. Chesterfield Count School Board, 38 F.4th 404 (4th Cir. 2022), a teacher was

subjected to consistent unwanted touching on her chest and crotch area by a student, named “S.M.”

S.M: was: diagnosed with Down’s Syndrome and Attention Deficit Hyperactivity Disorder

(“ADHD”). Id. at 407-08. The Fourth Circuit held that “conduct is because of sex” when “the

behavior, considering the underlying circumstances and the setting in which it occurred” functions

to subject members of one sex to “disadvantageous terms or conditions . . . to which members of the

other sex are not exposed.” Id. at 413 (cleaned up). The Fourth Circuit concluded that S.M.’s

contact with the teacher “fell within the range of behaviors which . . . were unsurprising for a child

of his age with Down’s Syndrome and ADHD,” and that this contact was not based-on the teacher’s

sex Id. .

Plaintiffs have not plausibly alleged that A.R. was subject to conditions to which her male

peers were not exposed based upon the circumstances of the alleged assault. Id. In opposition,

plaintiffs assert that the fact another student was in the bathroom at the time of the soap splashing

demonstrates that the attack was about A.R.’s sex. See [D.E. 17] 9. This argument, however,

contradicts plaintiffs’ assertion that J.D. began the attack “believing A.R. was responsible for

splashing soap on him.” Compl. 12. By definition, an attack based on a soap splash is not an

attack based on sex.

Next, plaintiffs argue that, because J.D. was older and larger than the other students □□□

because he targeted A.R. and other girls, these facts plausibly suggest sex-based animus. [D.E. 17]

9. A.R., however, did not assert that J.D. exclusively targeted girls or that J.D. was small compared

to the boys and only had physical advantages over the girls, only that J.D. had a general size

3 Although Webster concerns a Title VII claim, the requirement in Title VII and Title [X that the

harassment be based on sex is the same. See Title VII of the Civil Rights Act of 1964 (‘Title VII’), 42

U.S.C. §§ 2000(e), et seq.; Title IX, 20 U.S.C. §§ 1681, et seq.

advantage over everyone. Moreover, J.D. calling AR. a “bitch” during the incident does not

transform this incident into a sex-based attack. ‘See Davis, 526 U.S. at 652: HB v. Monroe

Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL 4477552, at *17 (S.D.N.Y. Sept. 27, 2012)

_ (unpublished) (noting that “bitch” has become an “all-purpose insult” among students and thus by

itself does not suggest sex-based animus). Finally, plaintiffs’ conclusory assertion that “the bullying

A.R. experienced constitutes sexual harassment” and the conclusory statement that J.R.’s actions

were “sex based” do not plausibly support an inference of sexual harassment. Compl. "1 61, 71, 77,

78; see Iqbal, 556 U.S. at 678. Even viewing the complaint in the light most favorable to plaintiffs, —

plaintiffs have failed to plausibly allege that A.R. was subject to sex-based discrimination or

harassment. Thus, plaintiffs’ Title IX claim fails.’

Plaintiffs did not request leave to amend their Title IX claim and did not amend the Title IX

claim in response to the Board’s motion to dismiss. Thus, the court dismisses with prejudice the

Title IX claim because plaintiffs apparently have alleged all the facts that they have concerning the

Title IX claim.

IV.

. Because the court dismisses the Title IX claim, the court next considers whether to exercise

supplemental jurisdiction over the remaining state-law claim. A court may decline to exercise

supplemental jurisdiction over a state-law claim when (1) “the claim raises a novel or complex issue

of State law;” (2) “the claim substantially predominates over” the federal claim or claims; (3) the

court has “dismissed all claims over which it has original jurisdiction;” or (4) other “exceptional

eieumsaicets present “compelling reasons for declining jurisdiction.” 28 U.S.C. §§

1367(c)(1)-(4). Additionally, the court may decline to exercise supplemental jurisdiction when

“values of economy, convenience, fairness, and comity” make the court's retaining jurisdiction over

4 Because the court concludes that plaintiffs have failed to plausibly allege sex-based harassment,

the court does not reach the Board’s argument regarding imputing liability. See Doe v. Fairfax Cnty.

Sch. Bd., 1 F.4th 257, 263 (4th Cir. 2021).

the claims inappropriate. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351(1988); Hinson v.

Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir.2001); Shanaghan v. Cahill, 58 F.3d 106, 109

(4th Cir.1995). .

Eliminating all federal claims before trial generally suffices to decline supplemental

jurisdiction over pendent state-law claims. “[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered under the pendent jurisdiction

doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to

exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon, 484 US. at 350 n.7 ;

see Shanaghan, 58 F.3d at 110 (“Recent case law has emphasized that trial courts enjoy wide latitude

in determining whether or not to retain jurisdiction over state claims when all federal claims have

been extinguished.”); see also Walsh v. Mitchell, 427 Fed. App’x 282, 283 (4th Cir. 2011) (per

curiam) (unpublished); Root v. Cnty. of Fairfax, 371 Fed. App’x 432, 435 (4th Cir. 2010) (per

curiam) (unpublished). Moreover, the questions of governmental immunity and standing doctrine

under North Carolina law concerning plaintiffs’ remaining claim are better addressed by the North

Carolina courts. Therefore, the court declines to exercise supplemental jurisdiction over the □

remaining state-law claim.

V.

In sum, the court GRANTS IN PART defendant’s motion to dismiss [D.E. 14] and

DISMISSES WITH PREJUDICE plaintiffs’ Title IX claim. The court DECLINES to exercise

supplemental jurisdiction over plaintiffs’ remaining state-law claim and DISMISSES WITHOUT

PREJUDICE the state-law claim to allow plaintiffs the opportunity to refile their state-law claim in

the Superior Court of North Carolina if desired.

SO ORDERED. This +s day of November, 2022.

. United States District Judge

10 a