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Berndsen v. North Dakota University System

United States District Court, D. North Dakota

June 19, 2019

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,
v.
North Dakota University System, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          Daniel L. Hovland, Chief Judge

         Before 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.

         I. BACKGROUND

         In the 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 part:

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.

         II. STANDARD OF REVIEW

         The 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.

         The 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.

         In Twombly the Supreme Court dismissed the complaint because it lacked sufficient factual allegations to support the claims:

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. at 570.

Iqbal, 556 U.S. at 679-680.

         III. LEGAL DISCUSSION

         In its 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 ...

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