United States District Court, D. North Dakota
Breanna Berndsen, Kristen Elizabeth Joyce Campbell, Charly Dahlquist, Taylor Flaherty, Ryleigh Houston, Anna Kilponen, Rebekah Kolstad, Sarah LeCavalier, Alyssa MacMillan, Annelise Rice, and Abigail Stanley, Plaintiffs,
North Dakota University System, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO
L. Hovland, Chief Judge
the Court is the Defendant's “Motion to
Dismiss” filed on August 24, 2018. See Doc.
No. 10. The Defendant seeks to dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On
September 24, 2018, the Plaintiffs filed a response in
opposition. See Doc. No. 14. On October 15, 2018,
the Defendant filed a reply brief. See Doc. No. 15.
For the reasons set forth below, the Court grants the
Defendant's motion to dismiss.
Spring of 2017, the University of North Dakota
(“UND”) discontinued the women's ice hockey
program, following the team's 2016-2017 season. On June
12, 2018, the Plaintiffs-former members of the hockey team
who competed during the 2016-2017 season-sued the North
Dakota University System for declaratory and injunctive
relief, alleging UND engaged in sex discrimination in
violation of Title IX. The complaint provides, in relevant
UND fails to provide its female students with proportionately
equal opportunities to participate in intercollegiate
athletics as compared with its male students, due to, among
other things, its elimination of its women's ice hockey
program, its improper calculations of bona fide opportunities
for female participation in intercollegiate athletics, and
its over-reporting of the number of female athletes on teams.
See Doc. No. 1, pp. 21-22. According to the
complaint, the Defendant (North Dakota University System) is
a state public entity that owns and operates UND, and it
receives federal financial assistance.
STANDARD OF REVIEW
Defendant moves to dismiss the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires a
pleading to contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of
Civil Procedure mandates the dismissal of a claim if there
has been a failure to state a claim upon which relief can be
granted. “To survive a motion to dismiss [under
12(b)(6)], a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint
is facially plausible where its factual content “allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
plaintiff must plead facts that show more than a mere
speculation or possibility that the defendant acted
unlawfully. Id.; Twombly, 550 U.S. at 555.
While the court accepts the complaint's factual
allegations as true, it is not required to accept the
plaintiff's legal conclusions or a “formulaic
recitation of the elements of a cause of action.”
Iqbal, 556 U.S. at 678. A complaint does not
“suffice if it tenders ‘naked assertion[s]'
devoid of ‘further factual enhancement.'”
Id. The court's assessment of whether the
complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679.
Twombly the Supreme Court dismissed the complaint
because it lacked sufficient factual allegations to support
Our decision in Twombly illustrates the two-pronged
approach. There, we considered the sufficiency of a complaint
alleging that incumbent telecommunications providers had
entered an agreement not to compete and to forestall
competitive entry, in violation of the Sherman Act, 15 U.S.C.
§ 1. Recognizing that § 1 enjoins only
anticompetitive conduct “effected by a contract,
combination, or conspiracy, ” Copperweld Corp. v.
Independence Tube Corp., 467 U.S. 752, 775 (1984), the
plaintiffs in Twombly flatly pleaded that the
defendants “ha[d] entered into a contract, combination
or conspiracy to prevent competitive entry . . . and ha[d]
agreed not to compete with one another.” 550 U.S. at
551 (internal quotation marks omitted). The complaint also
alleged that the defendants' “parallel course of
conduct . . . to prevent competition” and inflate
prices was indicative of the unlawful agreement alleged.
Ibid. (internal quotation marks omitted).
The Court held the plaintiffs' complaint deficient under
Rule 8. In doing so it first noted that the plaintiffs'
assertion of an unlawful agreement was a “‘legal
conclusion'” and, as such, was not entitled to the
assumption of truth. Id. at 555. Had the Court
simply credited the allegation of a conspiracy, the
plaintiffs would have stated a claim for relief and been
entitled to proceed perforce. The Court next addressed the
“nub” of the plaintiffs' complaint-the
well-pleaded, nonconclusory factual allegation of parallel
behavior-to determine whether it gave rise to a
“plausible suggestion of conspiracy.”
Id. at 565-566. Acknowledging that parallel conduct
was consistent with an unlawful agreement, the Court
nevertheless concluded that it did not plausibly suggest an
illicit accord because it was not only compatible with, but
indeed was more likely explained by, lawful, unchoreographed
free-market behavior. Id. at 567. Because the
well-pleaded fact of parallel conduct, accepted as true, did
not plausibly suggest an unlawful agreement, the Court held
the plaintiffs' complaint must be dismissed. Id.
Iqbal, 556 U.S. at 679-680.
motion to dismiss, the Defendant argues the Plaintiffs have
failed to allege a violation of Title IX. Title IX provides,
“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(a). Pursuant to the
statute, the Department of Health, Education, and Welfare
(“HEW”)-which has since split into two
departments, the Department of Education, and the Department
of Health and Human Services (“HHS”)-promulgated
regulations implementing the statute. Those regulations
provide, in part:
(a) General. No. person shall, on the basis of sex,
be excluded from participation in, be denied the benefits of,
be treated differently from another person or otherwise be
discriminated against in any interscholastic,
intercollegiate, club or intramural athletics offered by a
recipient, and ...