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Kesterson v. Kent State University

United States District Court, N.D. Ohio, Eastern Division

May 8, 2018




         This matter is before the Court on the appeal by plaintiff Lauren Kesterson (“Kesterson”) of the magistrate judge's February 12, 2018 memorandum opinion and order (Doc. No. 123 [“MJ MOO”]) resolving the parties' discovery dispute relating to the production of documents associated with prior student complaints of sexual harassment, discrimination, or assault on the campus of defendant Kent State University (“Kent State”). (Doc. No. 127 (Objections [“Obj.”]).) Kent State filed a response to Kesterson's appeal. (Doc. No. 131 [“Obj. Res.”].) Kesterson has also moved for leave to file a second amended complaint (“SAC”). (Doc. No. 124 [“Mot. Amend”].) Defendants-Kent State, Karen Linder (“Linder”), and Eric Oakley (“Oakley”) (collectively “defendants”)-oppose Kesterson's request to amend. (Doc. No. 125 [“Mot. Amend Opp'n”].)

         I. Background

         At the time of the filing of the first amended complaint (“FAC”), Kesterson was a student at Kent State and a former member of Kent State's softball team. Kesterson claimed that defendants violated her constitutional and statutory rights by their mishandling of a report she made to Linder, her softball coach and then-Kent State employee, regarding an alleged sexual assault perpetrated against her by another student-athlete, Linder's son. Claim 1 of the FAC raises a sexual discrimination and retaliation claim against Kent State under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”). Claim 2 raises an equal protection claim against Linder and Oakley. Plaintiff raises two more claims against the individual defendants: Claim 3 sets forth a First Amendment prior restraint claim, and Claim 4 alleges First Amendment retaliation. (Doc. No. 20 (FAC).)

         The factual predicate for these claims was set forth in detail in the Court's March 15, 2017 memorandum opinion resolving Kent State's motion to strike and the motions to dismiss filed by Linder and Oakley, and familiarity with this ruling is presumed. (See Doc. No. 34 [“MO”].) Briefly, it is sufficient to note that the facts that give rise to this lawsuit begin with a 2012 encounter between Kesterson and Linder's son, Tucker. At the time of the incident, Kesterson and Tucker were both student athletes at Kent State. Kesterson claims that Tucker raped her while the two were spending time together in Tucker's dorm room. (FAC ¶¶ 27-34.) Kesterson did not initially report the incident, but, during an exit interview at the end of the 2014 softball season, Kesterson reported the rape to Linder. (Id. ¶¶ 56-71.)

         Linder failed to follow Kent State's official policy requiring all student complaints of sexual assault and harassment to be promptly reported to the university's Title IX Office. Instead, the FAC alleges that Linder engaged in a campaign designed to harass Kesterson and punish her for raising the complaint against Linder's son. Kesterson eventually reported the rape, and Linder's alleged misconduct, to a representative from Kent State's Title IX Office, Erin Barton, in 2015. (Id. ¶¶ 78-80, 90, 113-26.) Shortly thereafter, Linder resigned her position as Kent State's softball coach. (Id. ¶ 127.) She was replaced by Oakley, who, according to Kesterson, continued Linder's approach of harassing Kesterson. (See, e.g., id. ¶¶ 156-60.) Believing that she was being punished and tormented for filing a Title IX complaint, Kesterson eventually quit the softball team and forfeited her athletic scholarship. (Id. at ¶¶ 169, 171, 175-76.)

         Kesterson filed the present lawsuit on February 9, 2016 against Kent State and Linder. Kent State subsequently moved for partial judgment on the pleadings because the complaint improperly pleaded an equal protection claim against it. (Doc. No. 14.) Linder also moved, pursuant to Fed.R.Civ.P. 12(b)(6), for dismissal of all claims raised against her. (Doc. No. 15.) In response, Kesterson moved for leave to file the FAC to remove the equal protection claim against Kent State and to add a new defendant, Oakley, to the pleadings. Kent State responded with a motion to strike several paragraphs of the proposed FAC. (Doc. No. 24.)

         On March 15, 2017, the Court denied Kent State's motion to strike and Linder's motion to dismiss, and granted, in part, Kesterson's motion to amend and Oakley's motion to dismiss. (MO at 518[1].) The Court determined that the case would proceed on Kesterson's “Title IX claim against Kent State, her equal protection and First Amendment prior restraint claims against Oakley in his official capacity, her First Amendment prior restraint claim against Oakley in his individual capacity, and her equal protection and First Amendment claims against Linder in her individual capacity.” (Id.)

         The parties have engaged in a vigorous, and at times contentious, discovery practice, requiring intervention by the Court and the magistrate judge on several occasions. (See 7-10-17 Minutes; Doc. No. 57 (referral to magistrate judge); 8-02-17 Minutes; Doc. No. 62 (referral to magistrate judge); Doc. No. 63 (notice of discovery dispute).) On December 8, 2017, the Court referred to the magistrate judge a discovery dispute relating to a request for documents propounded upon Kent State by Kesterson. (Doc. No. 88.) By her request, Kesterson sought the production of documents relating to any and all reports of sexual harassment, discrimination, or assault made over a 17-year period beginning January 1, 2001 at all of Kent State's campuses. (MJ MOO at 920 n.1.) After an initial phone conference with the magistrate judge, Kesterson narrowed her request to all reports made within a 5-year period at Kent State's main campus. (Id.)

         In supplemental briefing, Kesterson represented that she needed the reports, as part of her Title IX claim, to show that Kent State's “approach to dealing with such complaints made [Kesterson] more vulnerable to experience both the underlying harassment and retaliation for reporting it.” (Doc. No. 102 at 829-30, footnote omitted.) As support, she claimed that her Title IX claim against Kent State encompassed the notion that Kent State had adopted an informal policy that favored perpetrators of sexual harassment. (Id., footnote omitted.)

         In a memorandum opinion and order dated February 12, 2018, the magistrate judge ruled, under Fed.R.Civ.P. 26(b), that Kesterson was not entitled to the documents from prior student reports of sexual harassment and assault. In support of her decision, the magistrate judge relied, in part, on Doe v. Univ. of Tenn., 186 F.Supp.3d 788 (M.D. Tenn. 2016), a case cited by Kesterson. The magistrate judge noted that in Doe the court separated Title IX claims against universities into two categories: “before” and “after” claims. While “before” claims involved a university's prior practices or prior adoption of a policy that fostered a sexually hostile environment and made students more vulnerable to sexual assault, “after” claims were limited to the university's conduct occurring after the plaintiff-student was assaulted and in response to that report. The magistrate judge found that the allegations in Kesterson's FAC only supported an “after” claim because they focused on Kent State's response to Kesterson's reporting of her sexual assault. In so ruling, the magistrate judge noted that Kesterson was unable to point to any allegations in the FAC that would support the theory that Kent State had previously adopted an informal policy that had any bearing on Kesterson's subsequent report. (MJ MOO at 925.) Kesterson now appeals this ruling, and seeks leave to further amend her complaint. (See SAC appended at Doc. No. 124-1; see also Doc. No. 124-2 (redline comparison of the FAC and proposed SAC).)

         II. Kesterson's Appeal of the Magistrate Judge's Discovery Ruling

         A. Standard of Review

         The Court's review of an appeal from a magistrate judge's pre-judgment order on a non-dispositive motion is governed by Local Rule 72.3(a), which provides that the Court “shall consider the appeal and shall set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law.” See also Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). “The ‘clearly erroneous' standard applies only to factual findings made by the Magistrate Judge, while her legal conclusions will be reviewed under the more lenient ‘contrary to law' standard.” Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992) (citations omitted).

         “In reviewing a magistrate judge's decision to determine whether it is ‘contrary to law, ' a district court is to apply the same standard the Sixth Circuit employs to review a district court's ruling on an evidentiary question, which is an ‘abuse of discretion' standard. An ‘abuse of discretion' occurs when a court ‘improperly applies the law or uses an erroneous legal standard.'” Phillips v. Philip Morris Cos., Inc., No. 5:10CV1741, 2013 WL 3291516, at *2 (N.D. Ohio June 28, 2013) (some internal quotation marks omitted) (quoting JGR, Inc. v. Thomasville Furniture Indus., Inc., No. 1:96-CV-01780, 2006 WL 45679, at *1 (N.D. Ohio Feb. 24, 2006) ((quoting United States v. Taplin, 954 F.2d 1256, 1258 (6th Cir. 1992))).

         “A finding is clearly erroneous ‘when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed … [T]he test is whether there is evidence in the record to support the lower court's finding, and whether its construction of the evidence is a reasonable one.'” Id. at *2 (some internal quotation marks omitted) (quoting JGR, Inc., 2006 WL 456479, at *1) ((quoting Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985))). This standard does not empower a reviewing court to reverse the magistrate judge's finding ...

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