THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN GARRETT, et al., ) Case No. 2:18-cv-00692

)

 Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P. 

) Deavers

THE OHIO STATE UNIVERSITY, )

)

Defendant. )

________________________________________ )

DEFENDANT THE OHIO STATE UNIVERSITY’S MOTION TO DISMISS

PLAINTIFFS’ CONSOLIDATED CLASS ACTION COMPLAINT

Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant The Ohio State 

University hereby moves this Court to dismiss all claims asserted against it in plaintiffs’

Consolidated Class Action Complaint (Doc. 157). The grounds for this Motion are set forth 

more fully in the accompanying Memorandum in Support.

DAVID A. YOST

ATTORNEY GENERAL OF OHIO

By: /s/ Michael H. Carpenter

Michael H. Carpenter (0015733) (Trial Attorney)

Timothy R. Bricker (0061872)

David J. Barthel (0079307)

Stephen E. Dutton (0096064)

CARPENTER LIPPS AND LELAND LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, OH 43215

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

dutton@carpenterlipps.com

Special Counsel for Defendant 

The Ohio State University

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MEMORANDUM IN SUPPORT

I. INTRODUCTION.

The 98 plaintiffs in the above-captioned action attended The Ohio State University 

(“OSU”) between the “late 1970s” and 1999—21 to 42 years ago. They are suing OSU

individually and as putative class representatives related to the conduct of Dr. Richard Strauss,

which occurred between 1978 and 1998—22 to 42 years ago. 

OSU condemns Strauss’ conduct and the university’s failure at the time to prevent the 

abuse, and expresses its regret and sincere apologies to each person who endured Strauss’ abuse, 

including the plaintiffs herein. Despite the time-barred nature of plaintiffs’ claims, OSU has 

attempted to do the right thing with all plaintiffs. OSU already has settled 162 of the survivors’ 

claims for $40.9 million. On April 17, 2020, the Court directed the non-settling plaintiffs and 

OSU to engage in “parallel mediation and litigation efforts,” and further ordered the non-settling 

plaintiffs to file amended complaints and OSU to respond. Consistent with that order, mediation 

remains ongoing with all remaining plaintiffs, including the plaintiffs in this case. But plaintiffs 

are filing complaints, or amended complaints, and pursuant to this Court’s order, Ohio State is 

filing this, its legal response. OSU hopes the remaining plaintiffs will agree to settle on the same 

basis as the 162 settled plaintiffs.

The instant motion to dismiss is not directed toward plaintiffs’ claims of injury. Rather, 

while respectful of plaintiffs and their claimed injuries, OSU maintains that plaintiffs’ proffered 

legal causes of action are legally deficient on their face and should be dismissed. 

First, without exception, every civil legal claim is subject to a statute of limitations, i.e., a 

defined time period within which a civil claim must be brought or else be barred. The Supreme 

Court of the United States has observed that statutes of limitations are “vital to the welfare of 

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society”; are “found and approved in all systems of enlightened jurisprudence”; and “promote 

repose by giving security and stability to human affairs.” Wood v. Carpenter, 101 U.S. 135, 139 

(1879). The Supreme Court has explained that a statute of limitations is “designed to promote 

justice by preventing surprises through the revival of claims that have been allowed to slumber 

until evidence has been lost, memories have faded, and witnesses have disappeared. The theory 

is that even if one has a just claim it is unjust not to put the adversary on notice to defend within 

the period of limitation and that the right to be free of stale claims in time comes to prevail over 

the right to prosecute them.” American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974). 

Based on these policies, courts across the country have consistently dismissed Title IX claims 

alleging sexual misconduct that occurred decades ago. 

The statute of limitations for plaintiffs’ Title IX claims (Claim for Relief) is two years. 

The sexual abuse alleged in plaintiffs’ Consolidated Class Action Complaint (“Consolidated 

Complaint”) occurred between two and four decades ago, between 1978 and 1998. Plaintiffs did 

not assert their claims against OSU until July 16, 2018 (Garrett initial complaint); July 17, 2018 

(John Doe 1 initial complaint); October 26, 2018 (Garrett FAC); November 27, 2019 (Chrystal

initial complaint); March 31, 2020 (John Does 85-88 initial complaint); or May 27, 2020 

(Garrett Consolidated Complaint). The two-year limitations period expired long ago, and 

plaintiffs’ Title IX claims should be dismissed.

In addition to the time-barred nature of all plaintiffs’ Title IX claims, the Title IX claims 

of lead plaintiff and putative class representative Brian Garrett should be dismissed for the 

additional reasons that he lacks standing to assert Title IX claims against OSU because he was

not an OSU student at the time of the alleged abuse and because OSU is not liable for conduct 

that occurred at Strauss’ privately owned and managed, off-campus clinic. Further, plaintiffs’ 

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request for an award of punitive damages also should be dismissed because punitive damages are 

not recoverable under Title IX. 

In filing this motion to dismiss, OSU is not ignoring or being dismissive of plaintiffs’

factual allegations and remains committed to the ongoing mediation. But statutes of limitations

and standing are critical attributes of our system of laws. Here, plaintiffs’ claims are legally 

barred.

II. PROCEDURAL HISTORY AND PLAINTIFFS’ ALLEGATIONS.

On July 16, 2018, four plaintiffs in the above-captioned Garrett action filed their initial 

class action complaint against OSU. See Garrett, Complaint (Doc. 1). On July 17, 2018, one 

additional plaintiff filed his initial class action complaint against OSU. See John Doe 1, 

Complaint (Doc. 1). On October 26, 2018, 39 plaintiffs (including John Doe 1 and 34 new 

plaintiffs) filed a First Amended Class Action Complaint (“FAC”) in the Garrett action. See 

Garrett, FAC (Doc. 33).1 The Court directed the parties to mediate on January 17, 2019. See 

id., Order (Doc. 50).

On November 27, 2019, 50 plaintiffs who are represented by the same counsel as the 

Garrett plaintiffs filed their initial class action complaint as the Chrystal matter. See Chrystal, 

Complaint (Doc. 1). On December 20, 2019, the Court consolidated the Chrystal and Garrett 

actions during the pendency of mediation. See id., Order (Doc. 19). 

In order to facilitate mediation efforts, OSU filed a motion to extend its deadline to 

respond to the Chrystal complaint during the pendency of mediation on January 29, 2020. See 

id., Motion to Extend (Doc 25). In response, and despite the ongoing mediation, counsel for 

plaintiffs in the Garrett and Chrystal actions placed on file with the Court what they labeled a 

 

1 Plaintiff John Doe 1 voluntarily dismissed his separate lawsuit on October 30, 2018. See John Doe 1, Case No. 

2:18-cv-00712, Notice of Dismissal (Doc. 24). He and his counsel are now prosecuting his claims in the Garrett

matter. 

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“Notice of Mediation Termination and Request for Scheduling” on February 24, 2020 See id. 

(Doc. 28). Plaintiffs’ notice asked the Court to “allow litigation to resume” based on the 

purported grounds that “OSU has not participated in the mediation process in good faith,” and 

“OSU will not take Plaintiffs’ claims seriously until OSU’s statute of limitations defense is 

defeated in a motion to dismiss.” Id.

Less than two weeks later, on March 6, 2020, OSU and 162 plaintiffs in the majority of 

the pending cases announced a $40.9 million settlement following months of extensive 

negotiations through the mediation process. See DiSabato, Unopposed Motion to Establish 468B 

Qualified Settlement Fund (Doc. 41) at ¶¶ 1, 3. None of the plaintiffs in the settling cases opted 

out of the settlement. Id. at ¶ 4.

On March 31, 2020, four plaintiffs who are represented by the same counsel as the 

Garrett and Chrystal plaintiffs filed their initial class action complaint as the John Does 85-88

matter. See John Does 85-88, Complaint (Doc. 1). 

On April 17, 2020, the Court ordered all non-settling plaintiffs to “proceed 

simultaneously with litigation and continued mediation.” Garrett, Order (Doc. 151), at ¶ 3. 

Specifically, the Court ordered, “[f]or administrative efficiency, each group of attorneys who 

represents multiple non-settling cases to choose one of the case numbers in which to file an 

Amended Complaint that incorporates all of the non-settling Plaintiffs whom that group of 

attorneys represents.” Id. at ¶ 3(b). 

Pursuant to the Court’s April 17, 2020 order, the plaintiffs in the Garrett, Chrystal, and 

John Does 85-88 cases filed their Consolidated Complaint in the above-captioned Garrett case 

on May 27, 2020. Garrett, Consolidated Complaint (Doc. 157). Five of the 98 plaintiffs 

asserting claims in the Consolidated Complaint are new plaintiffs who did not previously assert 

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claims against OSU.2

As alleged in the Consolidated Complaint, all plaintiffs are former OSU students and/or 

student-athletes who attended OSU between the “late 1970s” and 1999. See id. at ¶¶ 35-132. All 

plaintiffs allege that former OSU physician, Dr. Richard Strauss, sexually assaulted, abused, 

battered, molested, and/or harassed them, and/or that they experienced a sexually hostile 

environment at Larkins Hall between 1978 and 1998—when Strauss was employed at OSU. Id.

at ¶¶ 16, 20, 195, 434, 492, 621. Each plaintiff asserts only one Title IX claim against OSU. Id. 

at ¶¶ 632-667 (Claim for Relief). 

Strauss worked at OSU from 1978 to 1998, and died in 2005. Id. at ¶¶ 138, 142, 159, 

195, 401. Larkins Hall was demolished in 2005. Id. at ¶ 159. Thus, plaintiffs’ claims are based 

on acts alleged to have been committed 22 to 42 years ago, by someone who ceased being 

employed at OSU 22 years ago, and who died 15 years ago. 

III. FED. R. CIV. P. 12(b)(6) STANDARD.

A complaint is subject to dismissal under Rule 12(b)(6) if, on its face, the allegations, 

taken as true, show the plaintiff is not entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). “If the allegations . . . show that relief is barred by the applicable statute of limitation[s], 

the complaint is subject to dismissal for failure to state a claim . . . .” Jones v. Bock, 549 U.S. 

199, 215 (2007). Dismissal under Fed. R. 12(b)(6) is proper “if it is apparent from the face of 

the Complaint” that the statute of limitations has run. Hoover v. Langston Equip. Assocs., Inc., 

958 F.2d 742, 744 (6th Cir. 1992). See also Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th 

Cir. 2012) (affirming dismissal based on statute of limitations bar where “the allegations in the 

complaint affirmatively show that the claim is time-barred”); Owner Operator Indep. Drivers 

 

2 Although the Consolidated Complaint repeatedly states that claims are being asserted on behalf of 99 plaintiffs, see

Consolidated Complaint at ¶¶ 2, 10, 16, the Consolidated Complaint actually identifies 98 plaintiffs. The five new 

suing plaintiffs are: Joel Davis, John Doe 89, John Doe 90, John Doe 91, and John Doe 92.

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Ass’n, Inc. v. Comerica Bank, 540 F. Supp. 2d 925, 929 (S.D. Ohio 2008) (“[D]ismissal under 

Rule 12(b)(6) on the basis of a limitations defense may be appropriate when the plaintiff 

effectively pleads herself out of court by alleging facts that are sufficient to establish the 

defense.”); Arandell Corp. v. Am. Elec. Power Co., No. 2:09-CV-231, 2010 WL 3667004, at *4, 

*8 (S.D. Ohio Sept. 15, 2010) (Watson, J.) (dismissing based on statute of limitations) (citing 

Hoover, 958 F.2d at 744).

IV. PLAINTIFFS’ TITLE IX CLAIMS ARE BARRED BY THE APPLICABLE TWOYEAR STATUTE OF LIMITATIONS.

Plaintiffs attempt to state claims pursuant only to Title IX. See Consolidated Complaint 

at ¶¶ 632-667. Title IX does not provide a statute of limitations. See Lillard v. Shelby Cty. Bd. 

of Educ., 76 F.3d 716, 728-729 (6th Cir. 1996) (“Neither Title VI nor Title IX provide a 

limitation period expressly pertaining to judicial proceedings, a failure occasioned, no doubt, by 

the fact that, for both statutes, private causes of action were implied by the courts”). When a 

federal statute, such as Title IX, does not provide a statute of limitations, courts “borrow[] . . . the 

state law of limitations governing an analogous cause of action.” Bd. of Regents of Univ. of State 

of N. Y. v. Tomanio, 446 U.S. 478, 483–84 (1980). Accordingly, courts apply “state personal 

injury limitation periods to Title IX” claims. Lillard, 76 F.3d at 729; accord King-White v. 

Humble Ind. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015) (collecting cases). In Ohio, the statute 

of limitations for personal injury is two (2) years. See OHIO REV. CODE § 2305.10(A). Thus, 

the statute of limitations applicable to plaintiffs’ Title IX claims is two years. See Lillard, 76 

F.3d at 729; Giffin v. Case W. Reserve Univ., No. 98-3267, 1999 WL 238669 at *1-2 (6th Cir. 

Apr. 13, 1999). 

Even though Title IX borrows Ohio’s personal injury statute of limitations, federal law 

determines when a Title IX claim accrues. King-White., 803 F.3d at 762; Stanley v. Trustees of 

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California State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006); Anderson v. Bd. of Educ. of Fayette 

Cty., 616 F.Supp.2d 662, 668 (E.D. Ky. 2009). The “standard rule” is that accrual occurs—and 

the limitations period begins to run—“when the plaintiff has a complete and present cause of 

action, that is when the plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 

388 (2007). 

The United States Supreme Court recently warned that courts should not apply the 

discovery rule to delay the accrual of a claim brought pursuant to a federal statute unless the 

statute specifically mandates it. Rotkiske v. Klemm, 140 S. Ct. 355, 360–61 (2019) (rejecting an 

“expansive approach to the discovery rule” because courts should not “enlarge[]” federal 

statutes). The Rotkiske Court explained that courts should not “read in” the discovery rule to 

federal statutes because “Congress has shown that it knows how to adopt” the discovery rule if it 

chooses to do so, as evidenced by Congress’s “enact[ment] [of] statutes that expressly include [] 

language . . . setting limitations periods to run from the date on which the violation occurs or the 

date of discovery of such violation.” Rotkiske, Id. at 361 (citing numerous statutes). As 

discussed above, Title IX is a judicially implied right of action which itself does not set forth a 

statute of limitations, let alone, expressly incorporate the discovery rule. Thus, applying the 

discovery rule to Title IX claims requires a judicial implication (application of the discovery 

rule) upon another judicial implication (a private right of action). Pursuant to Rotkiske’s 

mandate, judges should avoid this. The discovery rule, therefore, does not apply to delay the 

accrual of plaintiffs’ Title IX claims. 

Courts, including the Sixth Circuit, the Southern District of Ohio, and other district courts 

within the Sixth Circuit, have consistently held that a Title IX claim based on allegations of 

sexual assault, abuse, or harassment accrues at the time of the assault, abuse, or harassment itself. 

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See, e.g., Gilley v. Dunaway, 572 F. App’x 303, 308 (6th Cir. 2014) (Title IX claim accrued at 

time student was sexually abused by her high school coach); Giffin, 1999 WL 238669 at *1

(Title IX claim accrued at time of sexual harassment); Adams v. Ohio Univ., 300 F. Supp. 3d 

983, 991 (S.D. Ohio 2018) (Title IX claim accrued at the time of the sexual harassment); 

Bowling v. Holt Pub. Sch., No. 1:16-CV-1322, 2017 WL 4512587, at *2 (W.D. Mich. May 26, 

2017) (Title IX claim accrued on the date of the last sexual assault); Anderson, 616 F.Supp.2d at

668 (Title IX claim “accrued at the time of the alleged abusive acts” by school employees).

3

Plaintiffs collectively allege that Strauss sexually assaulted, abused, battered, molested, 

and/or harassed them, and/or that they experienced a sexually hostile environment at Larkins 

Hall between 1978 and 1998. Consolidated Complaint at ¶¶ 16, 25, 149 at the heading, 492, 621. 

Specifically, plaintiffs allege the “men named herein and the class of OSU’s male students they 

represent were:”

“a. Repeatedly rectally raped.”

“b. Drugged and sodomized.”

“c. Fellated.”

“d. Digitally penetrated with ungloved fingers into their anuses.”

“e. Fondled during required physicals.”

“f. Repeatedly subjected to Strauss grinding his erect penis into them.”

 

3 See also King-White, 803 F.3d at 762 (Title IX claim accrued when teacher abused student); Twersky v. Yeshiva 

Univ., 993 F. Supp. 2d 429, 440-441 (S.D.N.Y.), aff’d, 579 F. App’x 7 (2d Cir. 2014), cert. denied, 575 U.S. 935 

(2015) (Title IX claim accrued at time of sexual abuse); Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1216 

(10th Cir. 2014) (comparing a Title IX claim based on sexual abuse to a battery, which “is complete upon physical 

contact, even though there is no observable damage at the point of contact,” and holding plaintiff’s Title IX claim 

accrued no later than the last date the plaintiff was sexually abused by her coach); Doe v. Howe Military Sch., 227 

F.3d 981, 989 (7th Cir. 2000) (Title IX claim accrued at time of abuse); Johnson v. Gary E. Miller Canadian Cty. 

Children’s Juvenile Justice Ctr., No. CIV-09-533-L, 2010 WL 152138, at *3 (W.D. Okla. Jan. 14, 2010) (plaintiff 

“impliedly concede[d]” that Title IX claim “had to have accrued” when the plaintiff was a student at the school 

because the alleged sexual abuse by the school employee only “occurred while she was a student at the school”); 

Padula v. Morris, No. 205-CV-00411-MCE-EFB, 2008 WL 1970331, at *4 (E.D. Cal. May 2, 2008) (Title IX claim 

“accrued on the last date Plaintiffs[] suffered an incident of sexual harassment”); Monger v. Purdue Univ., 953 F. 

Supp. 260, 264 (S.D. Ind. 1997) (Title IX claim “accrued when [the student] knew or had reason to know of her 

injury—October 29, 1997[,]” the date her professor allegedly “sexually harassed her by touching her against her will 

on various parts of her body and indicating that he wanted to be with her privately”); Clifford v. Regents of Univ. of 

California, No. 2:11-CV-02935-JAM, 2012 WL 1565702, at *6 (E.D. Cal. Apr. 30, 2012), aff’d, 584 F. App’x 431 

(9th Cir. 2014) (Title IX claim accrued when alleged sexual assault from hazing occurred).

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“g. Manually masturbated by Strauss, including students who were physically

incapacitated.”

“h. Repeatedly psychologically tormented by Strauss showering with them, 

gawking at them, commenting on their penis size and physical appearance and 

masturbating in their presence.”

Id. at ¶ 16; see also id. at ¶ 34 (alleging “[e]very plaintiff herein was sodomized or molested or 

penetrated or assaulted or groped or subjected to voyeurism or lewd comments by” Strauss).

Each plaintiff’s specific and detailed allegations of abuse are set forth in the chart 

attached hereto as Appendix A. Plaintiffs specifically allege survivors made “widespread and 

repeated” complaints about Strauss’ conduct and/or the sexually hostile environment at Larkins 

Hall. See, e.g., John Doe 68, id. at ¶¶ 331-334; id. at ¶¶ 20 (alleging “many complaints of Dr. 

Strauss’s misconduct and harassment”); ¶ 432 (alleging “widespread and repeated complaints of 

Dr. Strauss’s conduct”); ¶ 504 (alleging “complaints of disturbing sexual assault by Dr. Strauss 

mounted over the years”); ¶ 576 (alleging an “onslaught of complaints lodged by students about 

Strauss”); ¶ 645 (alleging “the complaints of sexual abuse at Ohio State involving Dr. Strauss 

were not left unreported at the level of athletes”); ¶ 650 (alleging “complaints and concerns 

conveyed by athletes” about Strauss).

According to the Consolidated Complaint, the abuse each plaintiff suffered was

“prolonged, repeated, disturbing, inappropriate, and criminal.” Id. at ¶ 3. Plaintiffs’ experiences 

with Strauss and/or at Larkins Hall were so “gruesome and horrifying” and “profoundly 

upsetting” that they “effectively den[ied] them access to educational opportunities at OSU”; 

“traumatized” plaintiffs; “altered” and “forever changed” the “entire trajectory” of their lives; 

and “still haunt[s] and torment[s] these men today, thirty years later.” Id. at ¶¶ 497-498, 503, 

529-530, 541, 544, 659. “Plaintiffs have suffered and continue to suffer pain of mind and body, 

mental anguish, shock, emotional distress, physical manifestations of emotional distress, 

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embarrassment, loss of self-esteem, disgrace, fright, grief, humiliation, enjoyment of life, were 

prevented and will continue to be prevented from performing daily activities and obtaining the 

full enjoyment of life, have sustained and continue to sustain loss of earning and loss of earning 

capacity, and have incurred and will continue to incur expenses for medical and psychological 

treatment, therapy, and counseling.” Id. at ¶ 665. “Many of them suffered humiliation, 

depression, dropped out of school, received failing grades or quit their sports team and 

relinquished their athletic scholarships to escape Strauss[.]” Id. at ¶ 543. “Indeed some victims 

continue to be afraid to see doctors to this day[.]” Id. at ¶ 503. 

Based on the well-established and consistent law discussed above, plaintiffs’ Title IX 

claims accrued between 1978 (at the earliest) and 1998 (at the latest), when the first and last 

encounters with Strauss by a plaintiff are alleged to have occurred. See id. at ¶¶ 16, 434, 492, 

621. Plaintiffs did not, however, file suit until July 16, 2018 (Garrett initial complaint); July 17, 

2018 (John Doe 1 initial complaint); October 26, 2018 (Garrett FAC); November 27, 2019 

(Chrystal initial complaint); March 31, 2020 (John Does 85-88 initial complaint); or May 27, 

2020 (Garrett Consolidated Complaint). Thus, plaintiffs’ Title IX claims were filed 

approximately 20 to 40 years after the applicable two-year statute of limitations had expired. 

Plaintiffs virtually admit their claims are time-barred. Specifically, plaintiffs 

acknowledge in their Consolidated Complaint that proposed House Bill 249 is a “bill which 

proposed removing the statute of limitations for Strauss victims to pursue their civil claims 

against OSU.” Consolidated Complaint at ¶ 546. Plaintiffs characterize House Bill 249 as 

legislation necessary to “give[] these victims their long-awaited day in court” and to “specifically 

lift the unfair statute of limitations[.]” Id. at ¶ 548. Plaintiffs’ support for House Bill 249 is 

admittedly because plaintiffs’ Title IX claims are not timely. As a matter of law, plaintiffs’ Title 

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IX claims are time-barred and should be dismissed with prejudice. 

V. THE DISCOVERY RULE DOES NOT APPLY TO DELAY THE ACCRUAL OF

PLAINTIFFS’ TITLE IX CLAIMS.

Plaintiffs allege “many” plaintiffs did not discover that Strauss sexually abused them 

until after OSU announced its investigation in 2018. Consolidated Complaint at ¶ 444. 

As discussed above, the discovery rule does not apply pursuant to the United States

Supreme Court’s holding in Rotkiske. Even where plaintiffs have attempted to apply the 

discovery rule to Title IX claims, courts have consistently rejected it. The Supreme Court “ha[s] 

been at pains to explain that” the limitations period begins to run upon “discovery of the injury, 

not discovery of the other elements of a claim.” Rotella v. Wood, 528 U.S. 549, 555 (2000); see 

also Anderson, 616 F. Supp. 2d at 668 (stating in a Title IX action, that “[i]n applying a 

discovery accrual rule ... discovery of the injury, not discovery of the other elements of the 

claim, is what starts the clock. Otherwise stated, a plaintiff’s action accrues when he discovers 

that he has been injured, not when he determines that the injury was unlawful”) (quoting Rotella, 

528 U.S. at 555 and Amini v. Oberlin College, 259 F.3d 493, 500 (6th Cir. 2001)); Twersky v. 

Yeshiva Univ., 993 F. Supp. 2d 429, 440 (S.D.N.Y.), aff’d, 579 F. App’x 7 (2d Cir. 2014)

(“‘[D]iscovery of the injury, not discovery of the other elements of a claim, is what starts the 

clock,’” and this is true “regardless of how complex or difficult to discover the elements of the 

cause of action may be”) (quoting Rotella, 528 U.S. at 555-556).

Moreover, under the discovery rule, the limitations period begins when a person “has 

reason to know of his injury”—even if he does not have actual or complete knowledge of his 

injury until later. Anderson, 616 F. Supp. 2d at 668 (quoting Roberson, 399 F.3d at 794). “A 

plaintiff has reason to know of his injury when he should have discovered it through the exercise 

of reasonable diligence.” Anderson, 616 F. Supp. 2d at 668 (quoting Roberson, 399 F.3d at 794); 

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Bowling, 2017 WL 4512587, at *1 (citing Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001)). 

Importantly, accrual “is an objective inquiry[.]” Helm v. Eells, 642 F. App’x 558, 561 

(6th Cir. 2016). That is, courts do not ask whether the particular plaintiff in fact knew about his 

injury, but rather, whether the “event” at issue—here, the complained of conduct by Strauss—

“should have alerted the typical lay person to protect his or her rights.” Id. “Any fact that should 

excite his suspicion is the same as actual knowledge of his entire claim. Indeed, ‘the means of 

knowledge are the same thing in effect as knowledge itself.’” Dayco Corp. v. Goodyear Tire & 

Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975) (quoting Wood, 101 U.S. at 143). “[T]he plaintiff 

bears the burden of ‘plead[ing] circumstances which would indicate why the [cause of action] 

was not discovered earlier[.]’” Owner Operator Indep. Drivers Ass’n, 540 F. Supp. 2d at 929

(quoting Auslender v. Energy Mgmt. Corp., 832 F.2d 354, 356 (6th Cir. 1987)).

Here, as previously discussed, plaintiffs’ allegations regarding proposed House Bill 249 

is an admission that their Title IX claims are barred by the two-year statute of limitations. 

Moreover, because plaintiffs allege the abuse they experienced share “stark similarities” and that 

their claims are “based on the same legal theories and arise from the same factual pattern,” id. at 

¶¶ 469, 623, under the required objective standard applicable to the discovery rule, all plaintiffs 

should have been alerted to protect their rights. Helm, 642 F. App’x at 561. 

Further, plaintiffs’ assertion that they did not recognize Strauss’ conduct constituted 

sexual abuse, assault, or harassment is implausible given the specificity of each plaintiff’s

allegations regarding the abuse and harm each suffered, as set forth above and in Appendix A. 

See Doe v. Pasadena Hosp. Assn., Ltd., 2020 WL 1529313, *5 (C.D. Cal. Mar. 31, 2020) (“[T]he 

Court need not blindly accept Plaintiff’s allegation that she only became aware of” sexual abuse 

by her gynecologist when a newspaper published a report about the physician’s misconduct 

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“because the factual allegations directly contradict such an assertion.”). Related to this, as 

discussed previously, plaintiffs specifically allege they complained about Strauss’ conduct and/or 

the sexually hostile environment at Larkins Hall or acknowledge the “widespread and repeated” 

complaints by students. See, e.g., John Doe 68, id. at ¶¶ 331-334; id. at ¶¶ 20 (alleging “many 

complaints of Dr. Strauss’s misconduct and harassment”); ¶ 432 (alleging “widespread and 

repeated complaints of Dr. Strauss’s conduct”); ¶ 504 (alleging “complaints of disturbing sexual 

assault by Dr. Strauss mounted over the years”); ¶ 576 (alleging an “onslaught of complaints 

lodged by students about Strauss”); ¶ 645 (alleging “the complaints of sexual abuse at Ohio State 

involving Dr. Strauss were not left unreported at the level of athletes”); ¶ 650 (alleging 

“complaints and concerns conveyed by athletes” about Strauss).

At the very least, the alleged conduct would have caused each plaintiff to be suspicious

of a possible injury at the time the sexual assault, abuse, or harassment occurred, thereby 

triggering the accrual of his Title IX claims. Helm, 642 F. App’x at 561; Dayco Corp., 523 F.2d 

at 394. In addition to the detailed and specific allegations of abuse set forth in Appendix A, 

plaintiffs admit that “many of Dr. Strauss’s victims, including Plaintiffs in this case, felt that his 

exams were medically inappropriate and deeply uncomfortable[.]” Consolidated Complaint at ¶ 

444. Plaintiffs also allege that Strauss’ conduct was unlike prior experiences survivors had with 

other doctors. See, e.g., Consolidated Complaint at ¶ 173 (“These were the longest exams he had 

ever experienced, and always included a ‘hernia check.’”). 

This Court can reasonably infer that most plaintiffs’ suspicion of a possible injury would 

have only increased in the intervening years, when they presumably obtained medical treatment 

that did not involve a physician engaging in the type of conduct toward them that Strauss did. 

See Doe v. Univ. of S. Cal., 2019 WL 4228371, at *3 (C.D. Cal. Apr. 18, 2019) (“Plaintiff’s 

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argument that she could not have discovered Dr. Tyndall’s examination constituted sexual 

misconduct until 2018 is implausible, since Plaintiff undoubtedly had further gynecological 

examinations by other medical professionals after Dr. Tyndall over the 27 years since and would 

have had a basis to conclude that Dr. Tyndall’s conduct fell outside of medically acceptable 

standards.”). In fact, plaintiffs specifically allege that some survivors received physical exams or 

information post-Strauss that confirmed their suspicions of possible injury or abuse:

¶¶ 167-169. “Dr. Strauss gave the athlete a physical again the next year. It lasted 

about 20 minutes, 15 minutes of which involved Dr. Strauss closely inspecting his 

genitalia. The athlete remembers being concerned at the time, but alarms were 

raised the next year when another doctor gave the athlete a physical. It lasted only 

five minutes. The athlete recalls thinking at the time, ‘No hernia test, didn’t get 

naked. Is that it?’ ‘Then I was like, “Holy moly,” the athlete said. ‘I was always 

afraid. [Strauss] was the leading doctor on steroid use in the world, and I was 

always like, he could always say that medically there’s some reason that he needs 

to spend 15 minutes on my penis,’ the athlete said. ‘He could have said that, and 

he’s dead now, but that’s what always scared me. But now I’m like, that’s crazy. 

Especially when that other doctor came in in five minutes and checked me out.”

¶¶ 196-197. “In 1978—Dr. Strauss’s first year at Ohio State—Dr. Strauss fondled 

a former wrestling team captain during an exam. The wrestler left the exam and 

went to the Ohio State student health center where he complained about Dr. 

Strauss’s fondling to another doctor. The doctor told the wrestler that the exam 

he described was ‘not normal.’”

Additionally, some plaintiffs are medical professionals themselves. See, e.g., Brian Garrett, id. 

at ¶ 372 (alleging Mr. Garrett holds bachelor’s and master’s degrees in nursing); Dr. Mark 

Chrystal, id. at ¶ 44.

Courts have consistently rejected efforts by plaintiffs to delay the accrual of their Title IX 

claims based on the discovery rule. See, e.g., Gilley, 572 F. App’x at 308 (“Even if this Court 

accepted as true that [plaintiff] was completely unaware both that she was being sexually abused 

and that the Board knew of that sexual abuse,” plaintiff was “aware of facts that should have 

aroused her suspicion of the claims against the defendants at the time of her injuries” and did not 

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“exercise[] reasonable care and diligence to discover whether she had a viable legal claim” in 

waiting almost seven years after she turned 18 years old to sue); Anderson, 616 F.Supp.2d at 671 

(“Plaintiffs were sufficiently aware of facts that should have aroused their suspicion of the claims 

against Defendants at the time of their injuries . . . There is no indication that Plaintiffs exercised 

any diligence, ordinary or otherwise, to uncover the source of their injuries prior to the expiration 

of the statute of limitations for their claims, and the Board is entitled to be free of such stale 

claims”) (citing United States v. Kubrick, 444 U.S. 111, 117 (1979)).

4

Courts also have refused to find a delayed accrual of Title IX claims where, as here, 

plaintiffs were aware of: the acts complained of, the abuser’s identity, and that the abuser was an 

employee of the school. See, e.g., Anderson, 616 F. Supp. 2d at 668, 671 (Title IX claims

“accrued at the time of the alleged abusive acts” because plaintiffs “were no doubt aware of the 

underlying injuries of which they complain, the abuse at the hands of employees of the Board,” 

and these “facts should have aroused their suspicion of the claims against Defendants at the time 

of their injuries”); King-White, 803 F.3d at 762 (Title IX claim accrued at time of abuse where 

student “was sadly quite aware of the abuse she suffered, and she was also aware that her abuser 

was her teacher”); Twersky, 579 F. App’x at 9-10 (Title IX claim accrued at time of abuse 

because plaintiffs’ “unquestionabl[e] aware[ness] of (1) their injuries, (2) their abusers’ 

identities, and (3) their abusers’ prior and continued employment at [the high school] . . . was 

 

4 See also Twersky, 993 F. Supp. 2d at 443-439 (Title IX claim accrued at the time high school students were 

abused, not two decades later when a newspaper article reported school administrator’s admission that he and other 

administrators had been aware of the risk of sexual abuse when it was occurring); King-White, 803 F.3d at 762 (Title 

IX claim accrued when plaintiff was abused by teacher, not when plaintiff learned nearly two years later during the 

teacher’s criminal case that school officials allegedly had ratified and acted with deliberate indifference to the 

abuse); Varnell, 2013 WL 12146483, at *6-*7 & n.4, report and recommendation adopted, No. 12-CV-905 

JCH/GBW, 2013 WL 12149185 (D.N.M. June 24, 2013), aff’d, 756 F.3d 1208 (10th Cir. 2014) (Title IX claim 

accrued no later than the last date the plaintiff was sexually abused by her coach, not when the plaintiff “recently” 

learned of the superintendent’s alleged concealment of the abuse, where plaintiff “was repulsed by the sexual 

conduct when it was occurring” and the school district could not now be liable because its “failure to prevent the 

abuse could only occur while the abuse was ongoing”).

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sufficient to put them on at least inquiry notice as to the school’s awareness of and indifference 

to the abusive conduct by its teachers”); A.W. v. Humble Indep. Sch. Dist., 25 F. Supp. 3d 973, 

991 (S.D. Tex. 2014), aff’d sub nom. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754 (5th 

Cir. 2015) (“Since by her eighteenth birthday A.W. knew that she had been injured by Feenstra 

and that Feenstra was employed by HISD, the discovery rule is not applicable because for 

limitations purposes, there was nothing left for A.W. to discover”); Wilmink v. Kanawha Cty. Bd. 

of Educ., 214 F. App’x 294, 296 (4th Cir. 2007) (plaintiff was required to bring her Title IX 

claim within “two years after she turned eighteen” where it was “beyond dispute that plaintiff 

knew she had been injured in 1984” and “knew the identity of the entity who owed the plaintiff a 

duty to act with due care, and who may have engaged in conduct that breached that duty”—“her 

principal and her school board”—“by the time she reached majority”).

Courts have likewise refused to apply the discovery rule to similar claims involving 

sexual abuse. See, e.g., Doe v. Pasadena Hosp. Ass’n, Ltd., 2020 WL 1529313, at *5 (finding 

plaintiff had “reason to suspect . . . wrongdoing, causation, and harm” at the time abusive 

gynecological examinations occurred”); Doe v. USC, 2019 WL 4228371, at *4 (“The fact that 

Plaintiff only learned [in 2018] that she was not the only female patient abused by Dr. Tyndall 

[during a gynecological exam] does not affect Plaintiff’s knowledge of the abuse she received 

back in 1991”); Doe v. Kipp DC Supporting Corp., 373 F. Supp. 3d 1, at *8 (D.D.C. 2019)

(holding that the discovery rule did not delay accrual of a claim where a survivor of sexual abuse 

“recall[ed] that abuse but d[id] not appreciate its wrongfulness” at the time).

Virtually all of the above cases in which courts have considered (and rejected) the 

discovery rule as a basis to delay the accrual of Title IX claims pre-date the Supreme Court’s 

decision in Rotkiske which, as discussed above, holds that the discovery rule does not apply to 

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federal statutes (like Title IX) that do not expressly incorporate the discovery rule. Rotkiske, 140 

S. Ct. at 360–61. Even applying the discovery rule to plaintiffs’ Title IX claims, however, the 

same result is required as in the numerous cases cited above. Taken as true, the allegations in 

plaintiffs’ Consolidated Complaint demonstrate their claims accrued between 1978 (at the 

earliest) and 1998 (at the latest), when the first and last encounters with Strauss by a plaintiff are 

alleged to have occurred. See id. at ¶¶ 16, 434, 492, 621. Thus, the two-year statute of 

limitations for the last plaintiff to bring his Title IX claims expired in 2000, at the latest. 

Plaintiffs did not file suit until July 16, 2018 (Garrett initial complaint); July 17, 2018 (John Doe 

1 initial complaint); October 26, 2018 (Garrett FAC); November 27, 2019 (Chrystal initial 

complaint); March 31, 2020 (John Does 85-88 initial complaint); or May 27, 2020 (Garrett

Consolidated Complaint). Plaintiffs’ Title IX claims (Claim for Relief) were filed approximately 

two to four decades after the applicable statute of limitations had expired and should be 

dismissed. 

VI. LEAD PLAINTIFF AND PUTATIVE CLASS REPRESENTATIVE BRIAN 

GARRETT LACKS STANDING AND FAILS TO STATE A TITLE IX CLAM 

AGAINST OSU.

As discussed above, and as plaintiffs themselves have virtually admitted, the Title IX 

claims of all plaintiffs are barred as a matter of law by the expiration of the statute of limitations. 

In addition to the statute of limitations, the Title IX claim of lead plaintiff and putative class 

representative Brian Garrett fails for two additional independent reasons: (1) Mr. Garrett lacks 

standing to assert a Title IX claim against OSU because he was neither an OSU student nor OSU 

employee at the time of the alleged abuse; and (2) Mr. Garrett fails to state a Title IX claim 

against OSU because OSU is not liable for the alleged abuse which occurred at Dr. Strauss’ 

privately owned and managed, off-campus clinic. 

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Plaintiffs allege Strauss abused Mr. Garrett in “the fall of 1996” at Strauss’ “off-campus” 

health clinic (“Men’s Clinic of America”) “two miles from campus.” Consolidated Complaint at 

¶¶ 354, 377, 468 n.52. At the time of the alleged abuse in the fall of 1996, Mr. Garrett had 

already graduated from OSU in the spring of 1996 with a degree in nursing and was not an OSU

student. See id. at ¶ 375; see also Garrett, Pls’ Opp. to Motion to Dismiss (Doc. 47) at 18 

(stating Mr. Garett was “in between his undergraduate and graduate school programs” at the time 

of the abuse). Plaintiffs also allege Strauss set up the off-campus clinic after OSU terminated his 

employment as an OSU physician; that Strauss’ clinic “was not under OSU’s supervision”; and 

that the clinic was ran by “only one doctor—Richard Strauss.” Consolidated Complaint at ¶¶ 

350-351, 355-356, 367; see also Garrett, FAC (Doc. 33) at ¶ 25 (alleging “Dr. Strauss ran the 

clinic through a corporation he formed in 1996, Richard H. Strauss, M.D., Inc.”). 

In regard to standing, 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). 

“Though cast in broad terms, § 1681 nevertheless addresses itself only to sex 

discrimination against the participants in and the beneficiaries of federally assisted education 

programs. Section 1681 must therefore be read to protect from sex discrimination only those 

persons for whom the federally assisted education programs are established[.]” Romeo Cmty. 

Sch. v. U.S. Dep't of Health, Ed., & Welfare, 438 F. Supp. 1021, 1031 (E.D. Mich. 1977), aff’d, 

600 F.2d 581 (6th Cir. 1979). Accordingly, only students or employees of the institution they are 

suing have standing to sue under Title IX. See Davis v. Monroe Cty. Bd. Of Educ., 526 U.S. 629, 

650–51 (1999) (students); Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979) (students); N. 

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Haven Bd. of Ed. v. Bell, 456 U.S. 512, 530 (1982) (school employees). 

“There are no cases that have been decided to date that extend Title IX protections to 

campus visitors.” Hannah Brenner, A Title IX Conundrum: Are Campus Visitors Protected from 

Sexual Assault?, 104 Iowa L. Rev. 93, 135 (2018) (collecting cases). Non-students and nonemployees lack Title IX standing because they have not been “excluded from participation in,” 

“denied the benefits of,” or “subjected to discrimination under any education program or 

activity.” 20 U.S.C. § 1681(a).5See Arocho v. Ohio Univ., No. 2:19-CV-4766, 2020 WL 

3469223, at *4 (S.D. Ohio June 25, 2020) (Watson, J.) (granting motion to dismiss Title IX 

claims brought by high school student who was assaulted by university employee while 

participating in university’s “career day”). Mr. Garrett was not an OSU student at the time of the 

abuse in the fall of 1996, and therefore lacks standing to sue OSU under Title IX. 

Additionally, Mr. Garrett fails to state a Title IX claim against OSU because Title IX 

liability is limited to “circumstances wherein the [school] exercises substantial control over both 

the harasser and the context in which the known harassment occurs.” Pahssen v. Merrill Cmt. 

Sch. Distr., 668 F.3d 356, 366 (6th Cir. 2012) (quoting Davis v. Monroe County Board of 

 

5 See, e.g., Phillips v. Anderson Cty. Bd. of Educ., 259 F. App’x 842, 843 n.1 (6th Cir. 2008) (parents of students 

lacked standing to assert Title IX claims); Doe v. Univ. of Kentucky, 357 F. Supp. 3d 620, 633–34 (E.D. Ky. 2019) 

(plaintiff who lived in a dorm on campus, paid various fees and costs associated with living on campus, and used the 

university’s libraries and computer labs lacked standing to assert Title IX claims against the university because she 

not a university student or enrolled in a university education program or activity); Arora v. Daniels, No. 3:17-CV134, 2018 WL 1597705, at *8 (W.D.N.C. Apr. 2, 2018) (“potential student” who was harassed “[b]efore she sought 

admission” at the college lacked Title IX standing); Doe v. Brown Univ., 270 F. Supp. 3d 556, 561-563 (D.R.I. 

2017) (student enrolled at Providence College who was assaulted at Brown University could not bring Title IX claim 

against Brown University because she was not a student at Brown), aff’d, 896 F.3d 127 (1st Cir. 2018); K. T. v. 

Culver-Stockton Coll., No. 4:16-CV-165 CAS, 2016 WL 4243965, at *4-6 (E.D. Mo. Aug. 11, 2016) (high school 

student who visited college as a potential soccer recruit and was assaulted could not bring a Title IX claim against 

the college because she was not within the scope of persons Congress intended Title IX to protect), aff’d, 865 F.3d 

1054 (8th Cir. 2017); Yan Yan v. Pennsylvania State Univ., No. 4:14-CV-01373, 2015 WL 3953205, at *13 (M.D. 

Pa. June 29, 2015) (former student lacked standing to assert Title IX discrimination and retaliation claims for 

conduct that occurred when she was no longer a student), aff’d, 623 F. App’x 581 (3d Cir. 2015); Glaser v. Upright 

Citizens Brigade LLC, No. 18-CV-971 (JPO), 2020 WL 1529309, at *4-5 (S.D.N.Y. Mar. 31, 2020) (same); 

Colombo v. Bd. of Educ. for the Clifton Sch. Dist., Nos. 11-CV-785, 12-CV-7132, 2016 WL 6471013, at *7 (D.N.J. 

Oct. 31, 2016) (no Title IX standing for parent who was sexually harassed by principal during meetings at her 

child’s school).

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Education, 526 U.S. 629, 645 (1999)). Applying similar law, the Eighth Circuit in Lam v. 

Curators of the Univ. of Missouri at Kansas City Dental Sch., 122 F.3d 654 (8th Cir. 1997) held 

a dental school was not liable under Title IX for its instructor’s sexual assault of a dental student 

at the instructor’s “off-campus,” “independent,” “private dental practice that was not affiliated 

with the school” because the “private dental practice did not constitute a program or activity of 

the University” under Title IX. Id. at 655-656. 

VII. PLAINTIFFS CANNOT RECOVER PUNITIVE DAMAGES.

Plaintiffs seek an award of punitive damages against Ohio State. See Consolidated 

Complaint at ¶ 666 & Prayer for Relief at (d). Punitive damages are not recoverable under Title 

IX as a matter of law. See Hart v. Paint Valley Local Sch. Dist., No. C2-01-004, 2002 WL 

31951264, at *16 (S.D. Ohio Nov. 15, 2002) (citing Barnes v. Gorman, 536 U.S. 181, 188-189

(2002)); Mercer v. Duke Univ., 50 F. App’x 643, 644 (4th Cir. 2002) (“punitive damages are not 

available for private actions brought to enforce Title IX”). Therefore, plaintiffs’ request for 

punitive damages also should be dismissed with prejudice.

VIII. CONCLUSION.

For the reasons stated above, unless otherwise settled through the ongoing mediation, 

plaintiffs’ Consolidated Class Action Complaint (Doc. 157) should be dismissed with prejudice. 

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Respectfully submitted, 

DAVID A. YOST

ATTORNEY GENERAL OF OHIO

By: /s/ Michael H. Carpenter

Michael H. Carpenter (0015733) (Trial Attorney)

Timothy R. Bricker (0061872)

David J. Barthel (0079307)

Stephen E. Dutton (0096064)

CARPENTER LIPPS AND LELAND LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, OH 43215

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

dutton@carpenterlipps.com

Special Counsel for Defendant 

The Ohio State University

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was filed electronically on July 7, 2020. Notice was 

sent by operation of the Court’s electronic filing system to all other counsel who have entered an 

appearance and any parties who have entered an appearance through counsel. The parties may 

access this filing through the Court’s ECF system. 

/s/ Michael H. Carpenter

Trial Attorney for 

Defendant The Ohio State University

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