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Michelle Barton Smigel, P.C., OSB No. 045530 

michelle.smigel@millernash.com 

Michael Porter, P.C., OSB No. 003560 

mike.porter@millernash.com 

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Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

BRANDON AUSTIN, 

Plaintiff, 

v. 

UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN;

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON, all in their individual 

capacities only, 

Defendants. 

Case No.: 6:15-cv-02257-MC (Lead Case) 

Case No.: 6:16-cv-00647-MC (Member Case) 

DEFENDANTS' REPLY IN SUPPORT OF 

THEIR MOTION TO DISMISS THIRD 

AMENDED COMPLAINT 

 

(Under Fed R Civ P 12(b)(6)) 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 1 of 22
 

 Defendants' Reply in Support of Their Motion to Dismiss Third Amended Complaint 

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DOMINIC ARTIS and DAMYEAN 

DOTSON, 

Plaintiff, 

v. 

UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN;

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON, 

Defendants. 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 2 of 22
TABLE OF CONTENTS 

Page 

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I. INTRODUCTION............................................................................................................ 1 

II. ARGUMENT .................................................................................................................... 2 

A. The Factual Allegations of the Complaint Do Not Plausibly Suggest 

Gender Or Sex Discrimination Against Plaintiffs ................................................. 2 

1. The Court should not adopt the "minimal inference" framework, 

but nevertheless the factual allegations of the Complaint do not 

establish a "minimal inference" of gender bias .......................................... 3 

2. The additional allegations included in plaintiffs' Third Amended 

Complaint do not create a plausible inference of gender bias ................... 7 

3. Conclusory and speculative statements in declarations are not 

entitled to an assumption of truth ............................................................... 9 

B. Plaintiffs Fail to Rebut the Individual Defendants' Entitlement to Qualified 

Immunity for Artis and Dotson's Equal Protection Claim ................................... 11 

C. Plaintiffs Did Not Have a Special Relationship With the University and 

Therefore Cannot Prevail On Their Negligence Claim. ...................................... 13 

D. Plaintiffs Again Fail to Rebut That the University Fulfilled the Terms Of 

Plaintiffs' Scholarship Agreements, Which Expressly Did Not Require the 

University to Renew Plaintiffs' Scholarships For The 2014-2015 

Academic Year ..................................................................................................... 14 

III. CONCLUSION .............................................................................................................. 16 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 3 of 22
TABLE OF AUTHORITIES 

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Cases 

Ashcroft v. al-Kidd, 

563 US 731, 131 S Ct 2074, 179 L Ed 2d 1149 (2011) ...........................................................11 

Ashcroft v. Iqbal, 

556 US 662, 129 S Ct 1937, 173 L Ed 2d 868 (2009) ...................................................2, 3, 8, 9 

Bell Atl. Corp. v. Twombly, 

550 US 544, 127 S Ct 1955, 167 L Ed 2d 929 (2007) ...........................................................2, 3 

Davidson v. Univ. of N.C., 

543 SE 2d 920 (NC Ct App 2001) .....................................................................................13, 14 

Doe v. Brandeis Univ., 

177 F Supp 3d 561 (D Mass 2016) ..........................................................................................15 

Doe v. Columbia, 

831 F3d 46 (2d Cir 2016)...............................................................................................2, 3, 4, 6 

Doe v. Cummins, 

662 Fed Appx 437 (6th Cir 2016) ..............................................................................................3

Doe v. Univ. of the South, 

687 F Supp 2d 744 (ED Tenn 2009) ..........................................................................................5 

Doe v. Wooster, 

No. 5:16-cv-979, 2017 WL 1038982 (ND Ohio March 17, 2017) ............................................3 

Emeldi v. Univ. of Or., 

673 F3d 1218 (9th Cir 2012) .............................................................................................2, 6, 7 

Kleinknecht v. Gettysburg Coll., 

989 F2d 1360 (3d Cir 1993)...............................................................................................13, 14

Kolstad v. American Dental Assn., 

527 US 526, 119 S Ct 2118, 144 L Ed 2d 494 (1999) ...............................................................4 

North Unit Potato Co. v. Spada Dist., 

260 Or 468, 490 P2d 995 (1971) .............................................................................................15 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 4 of 22
TABLE OF AUTHORITIES 

(continued) 

Page 

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Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 

336 Or 329, 83 P3d 322 (2004) ...............................................................................................13

Reese v. Jefferson Sch. Dist. No. 14J, 

208 F3d 736 (9th Cir 2000) .....................................................................................................11 

Yogman v. Parrott, 

325 Or 358, 937 P2d 1019 (1997) ...........................................................................................15 

Yusuf v. Vassar College, 

35 F3d 709 (2d Cir 1994).......................................................................................................3, 5 

Statutes 

ORS 183.482 ..................................................................................................................................13 

ORS 183.484 ..................................................................................................................................13 

Other Authorities 

OAR 571-021-0105(13) ...................................................................................................................7 

OAR 571-021-0105(30)(b) ..............................................................................................................7 

OAR 571-021-0205 .......................................................................................................................12 

OAR 571-021-0230 .......................................................................................................................12 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 5 of 22
 

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I. INTRODUCTION 

Plaintiffs' response to Defendants' motion to dismiss confirms that Defendants are 

entitled to dismissal of all of plaintiffs' remaining claims, with prejudice. Plaintiffs have failed to 

demonstrate that the allegations of the Complaint plausibly suggest any reasonable inference of 

gender bias by the University of any of the Individual Defendants, and therefore have failed to 

remedy the deficiency that led to the earlier dismissal of their Title IX and equal protection 

claims. Rather than pleading any factual allegations that could plausibly suggest that any 

pertinent University official discriminated against plaintiffs, plaintiffs have bulked up the Third 

Amended Complaint with allegations about student protestors, the news media, and one 

University professor. Indisputably, none of these people had any role in the University's Title IX 

investigation or plaintiffs' administrative hearing. Plaintiffs essentially acknowledge that their 

factual allegations again fall short of the relevant pleading standard and instead ask the Court to 

afford "great deference" to the legal conclusions and opinions espoused by four attorneys (only 

one of whom has not represented plaintiffs in this lawsuit or the underlying administrative 

hearing) in declarations attached to the Complaint. But, like the rest of the Complaint, the 

conclusory assertions of these declarations fail to plausibly suggest gender bias against plaintiffs. 

Plaintiffs have had multiple opportunities to demonstrate that they can state a claim for relief that 

is plausible on its face under Title IX and the Equal Protection Clause of the United States 

Constitution. They have not done so, and in the process shown that allowing plaintiffs to amend 

their Complaint again would be futile. 

Plaintiffs' response also makes no meaningful attempt to rebut Defendants' state 

law arguments. Plaintiffs were not in a special relationship with the University under Oregon 

negligence law, and their citation of two out-of-state cases, which the Court considered and 

rejected in its September 8, 2016, Opinion and Order, fail to support plaintiffs' argument. 

Without a special relationship, plaintiffs' negligence claim fails as a matter of law. And 

plaintiffs' breach of contract claim fails to state a claim for relief because yet again plaintiffs 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 6 of 22
 

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have not shown any contractual basis to support their assertion that the University guaranteed 

renewal of their fixed-term athletic scholarships. Plaintiffs' complaint fails to state any viable 

claims and should be dismissed with prejudice, and judgment should be entered for Defendants. 

II. ARGUMENT 

A. The Factual Allegations of the Complaint Do Not Plausibly Suggest Gender Or Sex 

Discrimination Against Plaintiffs. 

Plaintiffs' response confirms that their Title IX claim fails as a matter of law. 

Plaintiffs, relying on the Second Circuit's decision in Doe v. Columbia, 831 F3d 46 (2d Cir 2016) 

and the Ninth Circuit's decision in Emeldi v. Univ. of Or., 673 F3d 1218 (9th Cir 2012), assert 

that they have alleged a "minimal inference" of gender bias by the University. But the 

Complaint does not set forth any factual allegations plausibly suggesting gender bias against 

plaintiffs, which it must to overcome Defendants' motion to dismiss. See Ashcroft v. Iqbal, 

556 US 662, 678, 129 S Ct 1937, 173 L Ed 2d 868 (2009) ("To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is 

plausible on its face.'") (quoting Bell Atl. Corp. v. Twombly, 550 US 544, 570, 127 S Ct 1955, 

167 L Ed 2d 929 (2007); see also Pls.' Opp. at 28 ("Under the pleading standard articulated in 

Twombly and clarified in Iqbal, a plaintiff must allege enough facts to state a claim to relief that 

is plausible on its face.") (internal quotation marked omitted). 

Despite plaintiffs' additional allegations, the Complaint is still "short on facts 

plausibly alleging sex discrimination" by the University in general, Order at 11, or that plausibly 

suggest gender bias in the University's Title IX investigation or at plaintiffs' administrative 

hearing—the relevant contexts. See Order at 17 (explaining that even if plaintiffs allege "an 

atmosphere of internal and public scrutiny of the University's treatment of sexual 

misconduct * * * there remains no plausible inference that a university's aggressive response to 

allegations of sexual misconduct is evidence of gender bias"). 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 7 of 22
 

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1. The Court should not adopt the "minimal inference" framework, but nevertheless 

the factual allegations of the Complaint do not establish a "minimal inference" of 

gender bias. 

For good reason, courts have not universally adopted Doe v. Columbia's "minimal 

inference" framework for evaluating the sufficiency of a Title IX claim. See e.g., Doe v. 

Cummins, 662 Fed Appx 437 (6th Cir 2016) (distinguishing Doe v. Columbia and applying the 

framework set forth by the Second Circuit in Yusuf v. Vassar College, 35 F3d 709 (2d Cir 

1994)); Doe v. Wooster, No. 5:16-cv-979, 2017 WL 1038982, at *4-5 (ND Ohio March 17, 

2017) (dismissing with prejudice a Title IX claim that included allegations that "there was 

substantial criticism of the College, both in the student body and in the public media, * * * of not 

taking seriously complaints of female students alleging sexual assault by male students," 

"articles in the university's newspaper highlighting the need for awareness of a 'rape culture' on 

campus," and "an article written by a Wooster professor who revealed she is unnerved 'when 

tensions flare on campus regarding issues of sexual assault and violence'" because these 

allegations do not "suggest a basis for discrimination against male students"). 

Defendants' motion to dismiss set forth some of the reasons why Doe v. 

Columbia's application of the "minimal inference" framework is untenable in this context, 

including that it circumvents the Iqbal and Twombly pleading standard and allows discovery 

based on speculative and conclusory allegations concerning the hypothetical effect of actions 

and beliefs of third parties not involved in the adjudicatory process giving rise to the plaintiff's 

claims and potentially (as with the case at bar) the hypothetical effect of actions of third parties 

unaffiliated with the university altogether. See Defs.' Motion at 10-11. Plaintiffs' response, 

however, does not address—much less refute—any of these arguments. 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 8 of 22
 

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There are at least four other reasons that this court should decline to follow the 

Second Circuit's application of the minimal inference framework.1 First, the Second Circuit's 

reasoning erroneously assumes that a university's interest in preventing sexual violence toward 

females plausibly infers bias against males. Efforts to prevent sexual violence protect the safety 

of all members of a university community—whether a university undertakes these efforts of its 

own initiative or in response to public safety concerns. Without specific factual allegations that 

a university has discriminated against males in its efforts to keep its community free of sexual 

violence, a general allegation that efforts to prevent sexual violence are discriminatory is both 

conclusory and too speculative to meet the federal pleading standard. Moreover, this logic is 

insufficient in the Title VII context: for example, an employer's efforts to prevent discrimination 

against racial and ethnic minorities do not give rise to an inference of discrimination against 

White employees. See e.g., Kolstad v. American Dental Assn., 527 US 526, 545, 119 S Ct 2118, 

144 L Ed 2d 494 (1999) ("Dissuading employers from implementing programs or policies to 

prevent discrimination in the workplace is directly contrary to the purposes underlying 

Title VII.") 

Second, for similar reasons, it is equally unreasonable to conclude that an 

institution's efforts to comply with Title IX are plausibly suggestive of the intent to discriminate 

against accused males. Compliance with Title IX is mandatory for funding recipients; general 

allegations that a university has attempted to comply with Title IX (whether of its own initiative 

or in response to an Office for Civil Rights investigation) cannot reasonably support an inference 

that the university has attempted to defy this very law. 

 

1 Doe v. Columbia is distinguishable at a fundamental level as well. There, the alleged facts before the court 

contained no independent support for the finding made by Columbia in that case ("coercion") and therefore, the 

court found the plaintiff's claim that the decision maker was influenced by bias were plausible. Id. at 23-24. Here, 

the police report relied on by the University and which is before this court contains admissions by the plaintiffs 

demonstrating the plausibility of the University's finding that plaintiffs failed to obtain explicit consent as required 

by the University's conduct code. See Declaration of Michelle Barton Smigel in Support of Defendants' Motion to 

Dismiss ¶ 2, Ex. A. 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 9 of 22
 

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Third, the broad sweep of the Second Circuit's decision would entitle male 

plaintiffs to discovery simply because the plaintiff attended a college or university that was under 

Title IX investigation from the Office for Civil Rights or that has received public criticism 

relating to its handling of Title IX investigations (whether such criticism is reasonably founded 

or not, and which as a practical matter, includes nearly every college and university in the 

country). This obviates a plaintiff's obligation to plead factual allegations specific to the 

plaintiff's claims. 

Finally, and perhaps most significantly, under the Second Circuit's decision, in 

many circumstances, male plaintiffs will prevail against a motion to dismiss, while persons of 

other sexes and/or genders will receive discovery only by pleading specific factual allegations 

that a university or relevant university officials discriminated against the plaintiff. Congress 

enacted Title IX to eliminate sex and gender discrimination in education, not to create a cause of 

action that is available to males yet elusive to people of other sexes and genders. 

The Court should again "decline to extend the Second Circuit's reasoning" to the 

facts alleged in the Complaint. Order at 17. To overcome Defendants' motion to dismiss, 

plaintiffs must plead factual allegations that plausibly suggest that Defendants acted with gender 

bias against plaintiffs. Doe v. Univ. of the South, 687 F Supp 2d 744, 756 (ED Tenn 2009) ("a 

plaintiff must demonstrate that the conduct of the university in question was motivated by a 

sexual bias. * * * To support a claim of selective enforcement, [Plaintiffs] must demonstrate that 

a female was in circumstances sufficiently similar to [John Doe's] and was treated more 

favorably by the University") (internal quotation marks and citations omitted); Yusuf v. Vassar 

Coll., 35 F3d 709, 715 (2d Cir 1994) ("allegations of a procedurally or otherwise flawed 

proceeding that has led to an adverse and erroneous outcome combined with a conclusory 

allegation of gender discrimination is not sufficient to survive a motion to dismiss"). 

Moreover, the Complaint fails to plausibly connect the purported "atmosphere of 

scrutiny," Compl. ¶ 119, to gender bias in general or with respect to the University's Title IX 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 10 of 22
 

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investigation and plaintiffs' administrative hearing, thus distinguishing plaintiffs' allegations 

from those asserted in Doe v. Columbia. There, the plaintiff alleged that Columbia University's 

"Title IX investigator[] was motivated by pro-female sex bias, attributable in part to a desire to 

refute criticisms of herself and of the University." Doe v. Columbia, 831 F3d at 53 (emphasis 

added); Pls.' Opp. at 30. Although such speculative and conclusory allegations of bias should 

not be sufficient to state a viable Title IX claim, plaintiffs here have not similarly alleged that 

any official involved in the University's investigation (the University's Title IX investigator) or 

plaintiffs' administrative hearing (Weintraub, the hearings officer) was subject to public scrutiny. 

In addition, the plaintiff in Doe v. Columbia alleged that in response to criticism of the university 

for "not taking seriously complaints of female students alleging sexual assault by male students," 

the President "called a University-wide open meeting with the Dean to discuss the issue." Doe v. 

Columbia, 831 F3d at 57. And while a university should not be subjected to an inference of 

discriminatory bias in subsequent legal proceedings because it chooses to discuss concerns raised 

by its student body or the public, here again plaintiffs have not pleaded analogous allegations. 

Instead, plaintiffs have pleaded only the President Gottfredson made a public statement opposing 

sexual misconduct in response to The Oregonian releasing the April 28, 2014, police report. 

Compl. ¶ 35. Accordingly, even under the "minimal inference" framework, plaintiffs have not 

set forth any plausible connection between their "atmosphere" allegations and gender bias at the 

University—much less gender bias by a University official pertinent to the case at bar. 

Similarly, plaintiffs' citation of Emeldi is unavailing of their opposition to 

Defendants' motion. Not only was Emeldi a Title IX retaliation case, which is not at issue here, 

but the allegations in Emeldi that persuaded the Ninth Circuit to reverse the District Court's grant 

of summary judgment included specific examples of alleged retaliatory conduct and genderbased discrimination by the University actor allegedly at issue. For example, Emeldi alleged that 

(a) shortly after she met with university administrators and raised concerns of gender 

discrimination by her doctoral advisor, he resigned as chair of her dissertation committee, 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 11 of 22
 

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673 F3d at 1222, (b) "she was not on the agenda, or no substantial or meaningful work of hers 

was discussed" when her dissertation chair met with his doctoral advisees and discussed their 

research, 673 F3d at 1221, and (c) male students were provided with "more office space and 

better technology for collecting data than similar female students." 673 F3d at 1227. Here, 

plaintiffs do not assert even one specific factual allegation that plausibly suggests that they were 

discriminated against due to their gender by any of the University officials involved in the 

University's investigation or in plaintiffs' administrative hearing. Plaintiffs, therefore, have not 

rectified their deficient pleadings and again have "failed to show how the University's 

enforcement of its student conduct code * * * equates to sex discrimination." Order at 18. 

2. The additional allegations included in plaintiffs' Third Amended Complaint do 

not create a plausible inference of gender bias. 

Plaintiffs response argues that their "Complaint is replete with facts that provide 

at least a minimal inference" that the University's alleged conduct was "motivated by the 

sex/gender of the [plaintiffs]."2 Pls.' Opp. at 35. Specifically, the Complaint reasserts that the 

District Attorney's decision not to prosecute plaintiffs and President Gottfredson's statement that 

he is a father and reference to the complainant as a survivor (which plaintiffs characterize as 

"loaded statements and code words") are evidence of gender bias against plaintiffs.3 Pls.' Opp. 

at 35. But this Court has already explained that "[t]he state's failure to indict Plaintiffs with a 

crime has no bearing on the Defendants' decision to investigate a Student Conduct Code 

 

2

 Plaintiffs' response fails, however, to explain why the District Attorney's multiple references to the complainant as 

a "victim" and plaintiffs as "assailants" are not also "loaded statements and code words." See Def. Motion at 15; 

Compl. ¶ 37. 

3

 Plaintiffs also mischaracterize the findings of their administrative hearing. Plaintiffs' response describes the "type 

of conduct the Plaintiffs allegedly engaged in" as "sex with only implicit consent." Pls.' Opp. at 36. The University, 

however, did not find that plaintiffs had implicit consent to engage in the conduct for which they were suspended. 

Rather, plaintiffs were suspended because they were found by a preponderance of the evidence to have "engaged in 

sexual acts with a fellow student without obtaining explicit consent. See Declaration of Lisa Thornton in Support of 

Defendants' Motion to Dismiss ¶ 8, Ex. E at 2, 4, 7 (administrative hearing decision letter). This was a violation of 

the University's Student Conduct Code, which required "explicit consent" to engage in sexual activity. OAR 571-

021-0105(30)(b) (defining sexual misconduct as penetration without "first obtain[ing] Explicit Consent"); OAR 571-

021-0105(13) (defining explicit consent). 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 12 of 22
 

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violation." Order at 13. The addition to the Complaint of a public statement issued by the 

District Attorney's office does not, therefore, plausibly establish any "logical nexus that connects 

the failure to criminally prosecute with gender bias on the part of Defendants." Id.

This Court has also already ruled that the allegations concerning President 

Gottfredson—which have not changed in substance from plaintiffs' previous complaint—"have 

not established that [President Gottfredson's statements] were grounded in sexism or gender bias 

or that they had any substantive bearing on the review process." Order at 15. Plaintiffs have not 

remedied their deficient pleadings by supplementing them with a conclusory assertion—

unsupported by any factual allegations—that "Dr. Gottfredson had significant influence, and 

likely even determinative influence, over the University's decision and actions." Compl. ¶ 110. 

Plaintiffs' response also does not refute that none of the "atmosphere" allegations 

added to the Complaint plausibly suggest gender bias by any University official involved in the 

University's investigation or plaintiffs' administrative hearing. Instead, plaintiffs' response just 

recounts their allegations concerning a group of student protestors, "negative media coverage," 

and one University professor—who indisputably had no role in the investigation or plaintiffs' 

hearing. Pls.' Opp. at 35. Like plaintiffs' allegations concerning President Gottfredson, because 

none of these allegations relate to any of the individuals responsible for conducting the 

University's investigation or plaintiffs' administrative hearing, they do not plausibly suggest 

gender bias against plaintiffs or cure plaintiffs' deficient pleadings. 

And the new allegation concerning Martin's conduct at a different University 

proceeding also fails to support plaintiffs' claim. Compl. ¶ 90; Pls.' Opp. at 37. Plaintiffs' allege 

no factual allegations concerning this other proceeding except to explain that it involved an offcampus sexual assault. Plaintiffs' conclusory description of the proceeding as "demonstra[ing] 

patent bias on the part of Ms. Martin and the University" is not entitled to the assumption of 

truth, Iqbal, 556 US at 681, and therefore as a matter of law, cannot help overcome Defendants' 

motion. Moreover, the allegation raised against Martin with respect to plaintiffs is that Martin 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 13 of 22
 

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issued an emergency temporary suspension after the University received a report that plaintiffs 

had raped a University student. Compl. ¶¶ 32-33, 54-55. Plaintiffs fail to make any connection 

between their new allegation concerning Martin's conduct at a proceeding for another student 

and their emergency suspensions. This new allegation is unavailing for this additional reason. 

3. Conclusory and speculative statements in declarations are not entitled to an 

assumption of truth. 

Finally, plaintiffs' response argues, without citation of any authority, that the 

assertions made by four attorney declarants should be afforded "great deference at the motion-todismiss stage." Pls.' Opp. at 36. But at the motion to dismiss stage, only factual allegations are 

taken as true and evaluated "to determine if they plausibly suggest an entitlement to relief."4

 

Iqbal, 556 US at 681. Conclusory and speculative allegations—whether alleged in a complaint 

or asserted by a declarant—"are not entitled to the assumption of truth." Iqbal, 556 US at 679. 

Assertions by plaintiffs' former attorneys regarding the sufficiency of the evidence in the record 

and whether the University's conduct was discriminatory are legal conclusions not entitled to the 

assumption of truth. Similarly, assertions by another attorney regarding the credibility of 

evidence that she has presented in other University hearings and whether the University is bias 

against males are also legal conclusions. And an assertion by Artis and Dotson's current attorney 

that plaintiffs could uncover evidence "extremely relevant and helpful to establishing Plaintiffs' 

claims" in discovery is not only speculative, it has no bearing on whether the allegations set forth 

in the Complaint entitle plaintiffs to discovery. The assertions of Greg Velarud's, Lissa Casey's, 

and Brian Michael's declarations are accordingly insufficient to overcome Defendants' motion to 

dismiss. 

Plaintiffs' response homes in on the assertions of Laura Fine Moro's declaration. 

See Pls.' Opp. at 36-37 ("Even if this Court finds the evidence to be too speculative, * * * the 

 

4

 While it is not dispositive for defendants' motion to dismiss, the University estimates that all four attorneys 

combined have handled ten or fewer sexual misconduct cases with the University. 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 14 of 22
 

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declaration by Ms. Fine Moro standing alone provides an actual basis to allow the Plaintiffs to 

proceed.") (emphasis added). To the extent that Fine Moro (Austin's attorney through his 

administrative hearing) makes legal conclusions (including assertions regarding the sufficiency 

of the evidence at plaintiffs' hearing, the credibility of evidence that she has presented at other 

University hearings, her opinion whether the University discriminates against males, and her 

analysis of the investigative and adjudicative standards applied by the University), her 

declaration does not set forth factual allegations, which are necessary to state a claim for relief 

that is plausible on its face. And the only nonconclusory pertinent factual allegations set forth in 

Fine Moro's declaration concern a female University student who, according to the declaration, 

physically assaulted her boyfriend and chased him with a knife.5

 Plaintiffs' response does not 

explain how this allegation is relevant to the charge brought against plaintiffs or how it plausibly 

suggests that the University was biased against them. 

The Third Amended Complaint fails to add any factual allegations that plausibly 

indicate even a "minimal inference" of bias by the decision-maker at plaintiffs' hearing 

(Weintraub), the other individually-named defendants, or the University. Accordingly, the 

additional allegations asserted in the Complaint are unavailing of plausible gender bias against 

plaintiffs. Because plaintiffs cannot prevail on their Title IX claims without showing that they 

were discriminated against due to their gender, the Court should dismiss plaintiffs' Title IX 

claims with prejudice. 

 

5

 Nor does Moro's declaration allege any pertinent facts related to this female student because it does not assert that 

Moro actually has knowledge that the University did not pursue any conduct charges. All that Moro's declaration 

establishes is that she, a non-University employee, lacks such knowledge ("[N]o further action was taken by the UO 

that I am aware of." Moro Declaration paragraph 8.c.). Moro's "unawareness" of what conduct charges the 

University may have pursued on this matter is not a factual allegation. Moreover, the University was not and is not 

at liberty to disclose to Moro what it pursued against the female student because such information is protected by the 

Family Educational Rights and Privacy Act. 

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B. Plaintiffs Fail to Rebut the Individual Defendants' Entitlement to Qualified 

Immunity for Artis and Dotson's Equal Protection Claim. 

Artis and Dotson's equal protection claim fails as a matter of law because, as 

discussed in Section A, plaintiffs have failed to plausibly allege that they were subject to 

discriminatory treatment. See Reese v. Jefferson Sch. Dist. No. 14J, 208 F3d 736, 740 (9th Cir 

2000) (To prevail in their equal protection claim, plaintiffs must demonstrate that the defendants 

acted in a discriminatory manner and that the discrimination was intentional.") (internal 

quotation marks omitted). Moreover, Defendants' motion set forth specific reasons that Artis and 

Dotson failed to state a plausible equal protection claim against any of the Individual 

Defendants. Yet plaintiffs' response does not refute—or even address—any of these arguments. 

Further, plaintiffs misconstrue Defendants' qualified immunity arguments and fail to show that 

the alleged conduct of any of the Individual Defendants constituted a constitutional violation—

much less a clearly established constitutional violation. In fact, the only argument made in 

plaintiffs' response is that the alleged "history and patterns" of student conduct hearings at the 

University show bias against males. On its face, this is not an allegation concerning plaintiffs' 

administrative hearing or the conduct of any of the Individual Defendants. This argument 

therefore fails to plausibly suggest an equal protection violation by any of the Individual 

Defendants. 

The Individual Defendants are entitled to qualified immunity unless plaintiffs can 

show that existing case law clearly established that the alleged conduct of the Individual 

Defendants violated the Constitution such that "every reasonable official would have understood 

that" the conduct amounted to a constitutional violation. Ashcroft v. al-Kidd, 563 US 731, 735, 

131 S Ct 2074, 179 L Ed 2d 1149 (2011) (internal quotation marks omitted). Accordingly, the 

Individual Defendants are entitled to qualified immunity and dismissal of Artis and Dotson's 

equal protection claim because, at the time of their alleged conduct (and even now), it was not 

clearly established that the following actions constituted gender discrimination: 

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 Holmes' alleged refusal to grant plaintiffs an appeal of their administrative 

hearing, which plaintiffs' affirmatively waived and was not a right afforded 

under the regulations then-governing University administrative conferences, 

OAR 571-021-0205; 

 Martin's emergency temporary suspension of plaintiffs; in accordance with the 

University's then-governing regulations, OAR 571-021-0230, after they were 

accused of raping a University student; Gottfredson's public comments of 

May 9, 2014, which the Court has already ruled were not plausibly "grounded 

in sexism or gender bias," Order at 15; and 

 Weintraub's alleged refusal to provide certain procedures during plaintiffs' 

administrative hearing, which plaintiffs' affirmatively waived and were not 

provided under the regulations then-governing University administrative 

conferences, OAR 571-021-0205. 

Because no case law clearly established that any of these actions were 

discriminatory, and plaintiffs' response fails demonstrate how any of the Individual Defendants 

could plausibly have known that their alleged conduct violated the Constitution (because it did 

not), the Individual Defendants are entitled to qualified immunity from Artis and Dotson's equal 

protection claim. The Court should therefore dismiss this claim with prejudice. 

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C. Plaintiffs Did Not Have a Special Relationship With the University and Therefore 

Cannot Prevail On Their Negligence Claim.6

Defendants moved to dismiss plaintiffs' negligence claim on the grounds that, in 

Oregon, negligence claims for purely economic damages are not cognizable unless the parties 

have a special relationship, Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 

341, 83 P3d 322 (2004), and because Defendants' alleged conduct did not create a foreseeable 

risk of harm to plaintiffs. See Def. Motion at 25, 28. Plaintiffs cite Davidson v. Univ. of N.C., 

543 SE 2d 920 (NC Ct App 2001), and Kleinknecht v. Gettysburg Coll., 989 F2d 1360 (3d Cir 

1993), and argue that they did have a special relationship with the University because the 

University allegedly "exercised independent judgment on [plaintiffs'] behalf to advance the 

individual interests of [plaintiffs], by recruiting [them] and then managing virtually every aspect 

of their time at Oregon." Pls.' Opp. at 39, 41. Plaintiffs also argue that it was foreseeable that 

suspending plaintiffs would "stigmatize them and cause the harm claimed." Pls.' Opp. at 42. 

This Court has explained that "[w]hether Plaintiffs' negligence claim should be 

dismissed at this stage of litigation hinges on whether * * * a [special] relationship existed 

between Plaintiffs and the University." Order at 22. The Court went on to explain that "no 

precedent in Oregon or in the Ninth Circuit recognizes a special relationship between college 

students or student athletes and the universities they attend." Id. And courts in other 

jurisdictions that have found a special relationship between a student athlete and a university 

"have done so when the incident giving rise to the negligence claim occurred during a supervised 

school practice or other event and arose out of an injury related thereto." Order at 22-23. The 

 

6

 Defendants, mindful that the Court previously rejected Defendants' preclusion argument with respect to plaintiffs' 

federal claims (though did not address this argument with respect to plaintiffs' state law claims) and Defendants' 

discretionary immunity arguments, reasserted these defenses to plaintiffs' negligence claim. Plaintiffs do not 

substantively respond to these defenses and erroneously assert that the finding of plaintiffs' hearing is not subject to 

issue preclusion because another attorney alleges that her client (not plaintiffs) was "threatened with additional 

student conduct allegations" when she "attempted to investigate [the] accusations" against that client. Pls.' Opp. 

at 39, 42. Accordingly, plaintiffs' response does not refute that Defendants are entitled to discretionary immunity or 

that plaintiffs cannot relitigate the outcome of their administrative hearing based on the issue preclusion doctrine and 

because plaintiffs did not appeal their suspensions in accordance with ORS 183.482 or ORS 183.484. 

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Court cites Davidson and Kleinknecht—the two cases on which plaintiffs now rely—as examples 

of courts that have found a "special relationship between student athletes and universities in the 

contexts of sports related injuries." Order at 22 (emphasis added). In Davidson, a student 

athlete "suffered permanent brain damage and serious bodily injury as a result of [a] fall" during 

a cheerleading practice. Davidson, 142 SE 2d at 546. Similarly, the student athlete in 

Kleinknecht "died of cardiac arrest * * * during a practice session of [his] intercollegiate team." 

Kleinknecht, 989 F2d at 1362. 

In contrast to the student athletes in Davidson and Kleinknecht, plaintiffs have not 

alleged an injury sustained during a basketball game, practice, or any team-related activity or 

event. Their alleged injuries arose from the University "rendering [an] academic code of conduct 

decision[]." Order at 23. In this context, the relationship between the parties is the same as it is 

between any student and the University and "can be characterized as little more than an arm's 

length relationship intent on securing divergent rather than joint interests"—not a special 

relationship. Id. The Court has already considered and rejected the arguments presented in 

plaintiffs' response—including the two cases that plaintiffs assert demonstrate the existence of a 

special relationship. Accordingly, the Court should again rule that no special relationship existed 

between the parties for the purpose of plaintiffs' administrative hearing, and dismiss plaintiffs' 

negligence claims with prejudice. 

D. Plaintiffs Again Fail to Rebut That the University Fulfilled the Terms Of Plaintiffs' 

Scholarship Agreements, Which Expressly Did Not Require the University to Renew 

Plaintiffs' Scholarships For The 2014-2015 Academic Year. 

Plaintiffs' breach of contract claim again fails as a matter of law. Plaintiffs' 

continue to insist that the express terms of their scholarship agreements guaranteed renewal. 

Pls.' Opp. at 43 (reasserting that plaintiffs "had the objectively reasonable expectation, based 

upon the express terms of the contractual relationship * * * that the University would renew their 

scholarship[s]"). But as this Court previously found, the express terms of plaintiffs' scholarships 

did not guarantee renewal—rather, "the renewal terms in the contract described that it would be 

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considered for renewal" under certain conditions. Order at 28. Plaintiffs have not set forth (nor 

could they) any additional allegations that plausibly alter the meaning of the renewal provision of 

plaintiffs' scholarship agreements. Plaintiffs, therefore, have effectively conceded that the 

University did not breach the express terms of these agreements by not renewing plaintiffs' 

scholarships for the 2014-2015 academic year. 

Nevertheless, plaintiffs argue that the University breached its contractual 

obligations because (1) the University offered scholarships to plaintiffs to "[e]ntice Plaintiffs to 

attend Oregon," Compl. ¶ 14, and (2) the "industry custom and 'usage of trade' makes it implicit 

in the contractual relationship * * * that * * * universities [will] renew the scholarships of 

athletes recruited to play at the university." Compl. ¶ 34. This Court has already described 

plaintiffs' allegation that the University induced them with scholarship offers as a "skeletal 

pleading [that] fall[s] well short of stating a claim for which relief can be granted." Order at 28. 

And plaintiffs' additional allegation regarding industry custom is similarly unavailing. The plain 

meaning of an unambiguous contractual term (such as the renewability provision of plaintiffs' 

scholarship agreements) governs the interpretation of that provision regardless of the alleged 

industry custom. See North Unit Potato Co. v. Spada Dist., 260 Or 468, 475, 490 P2d 995 

(1971); Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997) ("If the [disputed] provision 

is clear, the analysis ends."). 

Plaintiffs' quick comparison of the nonrenewal of their scholarship agreements to 

the termination of an at-will employment relationship also does not plausibly establish a breach 

of contract. Among the reasons that this comparison is fraught and unavailing of plaintiffs' 

claim, plaintiffs received fix-term scholarships that expired at the end of the 2013-2014 academic 

year. And plaintiffs' citation of Doe v. Brandeis Univ., 177 F Supp 3d 561 (D Mass 2016), also 

fails to remedy their deficient pleadings. Not only is Doe v. Brandeis Univ. inapplicable on the 

facts because it did not concern the nonrenewal of a scholarship, its legal analysis does not bear 

on plaintiffs' claims because according to the district court, "[t]he nature of the university-student 

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 20 of 22
 

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relationship under Massachusetts law appears to be somewhat unique and not necessarily tied to 

the ordinary principles of contract law." 177 F Supp 3d at 612. 

Because "plaintiffs have asserted no contractual basis for their alleged expectation 

of renewal," their breach of contract claim fails as a matter of law and should be dismissed with 

prejudice. 

III. CONCLUSION 

The court should grant Defendants' motion to dismiss in full. The additional 

allegations of plaintiffs' Third Amended Complaint do not cure the deficiencies that led to the 

dismissal of their previous complaint. Plaintiffs still have failed to plead any factual allegations 

that plausibly suggest gender bias against plaintiffs by the Individual Defendants or the 

University. Plaintiffs therefore cannot prevail on their Title IX or equal protection claims. 

Plaintiffs also have not pleaded any additional facts showing that they had a special relationship 

with the University and thus cannot assert a negligence claim. And plaintiffs again fail to 

identify any contractual basis for stating a breach of contract claim based on the nonrenewal of 

their athletic scholarships. Accordingly, the Complaint should be dismissed with prejudice and 

judgment entered in favor of Defendants. 

DATED this _____ day of April, 2017. 

MILLER NASH GRAHAM & DUNN LLP 

/s/ Michelle Barton Smigel 

Michelle Barton Smigel, P.C. 

OSB No. 045530 

michelle.smigel@millernash.com 

Michael Porter, P.C. 

OSB No. 003560 

mike.porter@millernash.com 

Phone: 503.224.5858 

Fax: 503.224.0155

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 21 of 22
 

Page 1 - Certificate of Service 

4842-5380-7430.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

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CERTIFICATE OF SERVICE 

I hereby certify that on April ___, 2017, I electronically filed the foregoing 

Defendants' Reply in Support of Motion to Dismiss Third Amended Complaint with the Clerk of 

the Court using the CM/ECF system and that by doing so I served the foregoing on all parties of 

record in the subject case via CM/ECF system transmission. 

DATED this ____ day of April, 2017. 

/s/ Michelle Barton Smigel 

Michelle Barton Smigel, OSB No. 045530 

Of Attorneys for Defendants

Case 6:15-cv-02257-MC Document 54 Filed 04/10/17 Page 22 of 22