Defendants' Motion to Dismiss Third Amended Complaint and Memorandum in Support 

4826-8765-5740.4 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

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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 

MILLER NASH GRAHAM & DUNN LLP 

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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' MOTION TO DISMISS 

THIRD AMENDED COMPLAINT AND 

MEMORANDUM IN SUPPORT 

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

REQUEST FOR ORAL ARGUMENT 

DOMINIC ARTIS and DAMYEAN 

DOTSON, 

Plaintiffs, 

v. 

UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN; 

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON, 

Defendants.
TABLE OF CONTENTS 

Page 

Page i - Table of Contents 

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

II. FACTUAL ALLEGATIONS FOR PURPOSES OF THIS MOTION ....................... 2 

III. ARGUMENT .................................................................................................................... 5 

A. Plaintiffs' Title IX Claims Should Be Dismissed Because the Factual 

Allegations of the Complaint Do Not Plausibly Suggest That the University Is 

Biased Against Males .................................................................................................. 7 

1. The University Did Not Selectively Enforce Its Student Conduct Code by 

Investigating Allegations of Rape .......................................................................... 8 

2. No Factual Allegations Plausibly Suggest That the University's Title IX 

Investigation or Plaintiffs' Hearing Were Flawed or Influenced By Bias 

Against Males ...................................................................................................... 10 

3. The University Did Not Selectively Enforce Its Student Conduct Code by 

Suspending Plaintiffs for Engaging in Sexual Misconduct ................................. 18 

4. The Factual Allegations Do Not Plausibly Suggest That the University 

Was Deliberately Indifferent to Plaintiffs' Rights ................................................ 19 

B. Artis and Dotson's Equal Protection Claim Should Be Dismissed Because the 

Factual Allegations of the Complaint Do Not Plausibly Suggest That the 

Conduct of the Individual Defendants Was Discriminatory ...................................... 20 

1. No Factual Allegations Plausibly Suggest That Any of the Individual 

Defendants Acted in a Discriminatory Manner or With Discriminatory 

Intent .................................................................................................................... 20 

2. The Individual Defendants Are Nevertheless Entitled to Qualified 

Immunity From Artis and Dotson's Equal Protection Claims ............................. 22 

C. Plaintiffs' Negligence Claim Should Be Dismissed Because the Parties Were 

Not in a Special Relationship and, as a Matter of Law, Defendants' Conduct 

Did Not Create a Foreseeable or Unreasonable Risk of Harm to Plaintiffs. ............. 24 

1. Plaintiffs Did Not Have a Special Relationship With Any of the 

Defendants and Therefore Have Not Alleged a Cognizable Negligence 

Claim .................................................................................................................... 25 

2. As a Matter of Law, Defendants' Alleged Conduct Did Not Create a 

Foreseeable and Unreasonable Risk of Harm to Plaintiffs .................................. 28 

D. Plaintiffs' Breach-of-Contract Claim Should Be Dismissed Because the 

University Fulfilled All Its Contractual Obligations to Plaintiffs .............................. 30 

IV. CONCLUSION .............................................................................................................. 32 
 

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) ...........................................................22 

Ashcroft v. Iqbal, 

556 US 662, 129 S Ct 1937, 173 L Ed 2d 868 (2009) .............................................5, 11, 20, 32 

Auer v. Robbins, 

529 US 452, 117 S Ct 905, 137 L Ed 2d 79 (1997) ...................................................................9 

Bell Atl. Corp. v. Twombly, 

550 US 544, 127 S Ct 1955, 167 L Ed 2d 929 (2007) ...................................................5, 11, 20 

Bradshaw v. Rawlings, 

612 F 2d 135 (3d Cir 1979)......................................................................................................27 

Chapman v. Mayfield, 

358 Or 196, 361 P3d 566 (2015) .......................................................................................28, 29 

Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 

467 US 837, 104 S Ct 2778, 81 L Ed 2d 694 (1984) .................................................................9 

Conway v. Pacific University, 

324 Or 231, 924 P2d 818 (1996) .............................................................................................25 

Coto Settlement v. Eisenberg, 

593 F3d 1031 (9th Cir 2010) .....................................................................................................2 

Dauven v. George Fox Univ., 

No. CV. 09-305-PK, 2010 WL 6089077 (D Or Dec. 3, 2010) ................................................29 

Doe v. Columbia Univ., 

831 F3d 46 (2d Cir 2016).........................................................................................................10 

Doe v. Regents of Univ. of Cal., 

No. 2:15-cv-02478-SVW-JEM, 2016 WL 5515711 ................................................................11 

Doe v. Univ. of the South, 

687 F Supp 2d 744 (ED Tenn 2009) ........................................................................8, 10, 18, 19 

Freeman v. Busch, 

349 F3d 582 (8th Cir 2003) .....................................................................................................27 
 

TABLE OF AUTHORITIES 

(continued) 

Page iii - Table of Authorities 

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Guest v. Hansen, 

No. 06-cv-0500, 2007 WL 4561104 (NDNY Dec. 18, 2007), aff'd, 603 F3d 15 

(2d Cir 2010) ............................................................................................................................27 

House v. Hicks, 

218 Or App 348, 179 P 3d 730 (2008).....................................................................................26 

Nelson v. Emerald People's Utility Dist., 

318 Or 99, 862 P2d 1293 (1993) .............................................................................................24 

North Unit Potato Co. v. Spada Dist., 

260 Or 468, 490 P2d 995 (1971) .............................................................................................32 

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

336 Or 329, 83 P3d 322 (2004) ...............................................................................................25

Orr v. Brigham Young Univ., 

960 F Supp 1522 (D Utah 1994), aff'd without published opinion, 108 F3d 

1388 (10th Cir 1997) ................................................................................................................27 

Orr v. City of Eugene, 

151 Or App 541, 950 P2d 397 (1997)......................................................................................24 

Painter v. Doe, 

No. 3:15-cv-00369-MOC-DCK, 2016 WL 4644495 (WDNC Sept. 6, 2016) .........................16 

Patterson v. Hudson Area Sch., 

551 F3d 438 (6th Cir 2009) .....................................................................................................19 

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

208 F3d 736 (9th Cir 2000) .....................................................................................................20 

Skidmore v. Swift & Co., 

323 US 134, 65 S Ct 161, 89 L Ed 124 (1944) ..........................................................................9 

Taylor v. Barkes, 

___ US ___, 135 S Ct 2042, 192 L Ed 2d 78 (2015) ...............................................................23 

Yogman v. Parrott, 

325 Or 358, 937 P2d 1019 (1997) ...........................................................................................31 

Yusuf v. Vassar Coll., 

35 F3d 709 (2d Cir 1994), and (b) ...........................................................................................10 
 

TABLE OF AUTHORITIES 

(continued) 

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Statutes 

20 USC § 1681 Title IX ...................................................................................................................6 

42 USC § 1983 .................................................................................................................................6 

ORS 30.265(6)(c) and (f) ...............................................................................................................24 

ORS 30.275 et seq..........................................................................................................................24 

ORS 124.100(g) .............................................................................................................................26 

ORS 183.482 ..................................................................................................................................24 

ORS 183.484 ..................................................................................................................................24 

ORS 659.860 ....................................................................................................................................7 

ORS 659A.875 .................................................................................................................................7 

Other Authorities 

72 Fed Reg 3432 (Jan. 25, 2007) .....................................................................................................9 

Fed R Civ P 12(b)(6)....................................................................................................................1, 5 

Local Rule 7-1..................................................................................................................................1 

Local Rule 7-2..................................................................................................................................1 

OAR 571-003-0125 .........................................................................................................................5 

OAR 571-021-0105(30)(b)(A).........................................................................................................4 

OAR 571-021-0120 ...................................................................................................................4, 19 

OAR 571-021-0130 ...................................................................................................................4, 19 

OAR 571-021-0205 .........................................................................................................................4 

OAR 571-021-0210 .........................................................................................................................4 

OAR 571-021-0230 .......................................................................................................................23 

OAR 571-021-0240(1) ...................................................................................................................18 
 

TABLE OF AUTHORITIES 

(continued) 

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OAR 571-021-0250 .........................................................................................................................4 

Restatement (Second) of Contracts § 235 cmt a (1981) ................................................................30 
 

Page 1 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

in Support 

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LR 7-1 CERTIFICATE 

Counsel for defendants, University of Oregon (the "University"), Sandy 

Weintraub, Chicora Martin, Robin Holmes, and Michael R. Gottfredson (collectively, the 

"Individual Defendants" and, together with the University, "Defendants"), conferred with 

counsel for plaintiffs about the dispute through telephone conferences, but the parties have been 

unable to resolve the dispute. 

LOCAL RULE 7-2 CERTIFICATION 

This memorandum complies with the applicable page limitation under LR 7-2(b) 

because it does not exceed 35 pages, including headings, footnotes, and quotations, but 

excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, 

and any certificates of counsel.

MOTION

In accordance with Fed R Civ P 12(b)(6), Defendants move to dismiss the third 

amended complaint because it fails to state a claim on which relief can be granted. 

MEMORANDUM

I. INTRODUCTION 

Plaintiffs' Third Amended Complaint (the "Complaint") fails to remedy the 

shortcomings of the Second Amended Complaint, which this court dismissed for failing to state 

any plausible claims. As before, plaintiffs continue to assert that Defendants are liable for 

investigating a report that plaintiffs had raped a fellow undergraduate student and for finding, 

after an administrative hearing at which each plaintiff was represented by counsel, that plaintiffs 

had violated the University's Student Conduct Code by engaging in "sexual misconduct" as 

defined in that code. 

Yet plaintiffs set forth no new factual allegations that support their theories of 

liability or plausibly suggest (1) that the University's Title IX investigation or plaintiffs' hearing 

was procedurally flawed, (2) that the University erred in reaching its findings, or (3) that the 
 

Page 2 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

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University or any of the Individual Defendants were biased against plaintiffs or treated them 

differently because they are males. Plaintiffs' and their attorneys' personal beliefs that 

Defendants were biased against plaintiffs and speculation as to why Defendants found that 

plaintiffs had violated the Student Conduct Code are not factual allegations and are insufficient 

to overcome Defendants' motion to dismiss. Because plaintiffs fail to state any claim that is 

plausible on its face, Defendants cannot be liable for allegedly "diminished chances" that 

plaintiffs have of playing in the National Basketball Association, and the Complaint should be 

dismissed. 

II. FACTUAL ALLEGATIONS FOR PURPOSES OF THIS MOTION 

For purposes of this motion, Defendants move against the allegations of the 

Complaint. As before, Defendants submit a number of documents that were incorporated by 

reference into the Complaint. See Coto Settlement v. Eisenberg, 593 F3d 1031, 1038 (9th Cir 

2010) (the court may consider materials incorporated into the Complaint or matters of public 

record). These documents are: (1) plaintiffs' 2013-2014 athletic scholarships, (2) the redacted 

police report published by The Oregonian, (3) Gottfredson's public statement, (4) documentation 

of plaintiffs' waivers of a panel hearing, (5) the University's decision letters finding that plaintiffs 

"engaged in sexual acts with a fellow student without obtaining explicit consent," and 

(6) plaintiffs' Tort Claims Notices to the University. Defendants also submit the following 

documents, which were incorporated into plaintiffs' new allegations: (1) a statement from the 

Lane County District Attorney's office published by The Oregonian and (2) a statement of a 

University undergraduate (the "complainant") published by the Daily Emerald. (All documents 

are attached as exhibits to the declarations of Michelle Barton Smigel ("Smigel Decl.") and Lisa 

Thornton ("Thornton Decl.").) Plaintiffs cannot in good faith dispute the contents of these 

documents, and therefore their inclusion does not create any factual dispute. 
 

Page 3 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

in Support 

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Plaintiffs are former students of the University and scholarship athletes for the 

University's men's basketball team. (Compl. ¶ 4.) Plaintiffs' scholarships did not guarantee 

plaintiffs a starting position on the basketball team, playing time, or even a spot on the team at 

all—rather, the scholarships merely provided them room and board for one academic year. 

(Plaintiffs' scholarships for the 2013-2014 academic year are attached as Exhibit A to Thornton 

Decl., ¶ 4.) 

On March 13, 2014, the complainant filed a report with the Eugene Police 

Department, accusing plaintiffs of raping her. (Compl. ¶ 31.) Around this time, the University 

also received a report accusing plaintiffs of rape. The University responded by conducting a 

Title IX investigation of the accusations. During its Title IX investigation, it suspended plaintiffs 

from school on an emergency and temporary basis, as provided under then-OAR 571-021-0230. 

(Compl. ¶ 32.) On May 2, 2014, plaintiffs were dismissed from the University's basketball team, 

though they continued to receive their scholarships through the end of the 2013-2014 academic 

year. 

On May 5, 2014, The Oregonian published the March 13 police report, which 

referenced plaintiffs by name. (Police report attached as Exhibit A to Smigel Decl., ¶ 2.) 

(Compl. ¶ 35.) The next day, The Oregonian published a statement from the Lane County 

District Attorney's office, in which the District Attorney's office explained that its decision not to 

file criminal charges against plaintiffs was based on whether the District Attorney's office 

thought that it could "prove the allegations beyond a reasonable doubt." (Police report attached 

as Exhibit A to Smigel Decl., ¶ 2.) (Compl. ¶ 36.) The Complaint alleges that following the 

public release of the police report and the District Attorney's statement, University students 

engaged in on-campus demonstrations, which were covered by the local and national news 

media. (Compl. ¶¶ 40, 42.) 

Several days later, on May 9, 2014, President Gottfredson held a press conference 

to address public concerns regarding the police report and sexual violence in the community. 
 

Page 4 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

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(Compl. ¶ 47.) His statement did not reference plaintiffs by name. (Gottfredson's statement 

attached as Exhibit B to Thornton Decl., ¶ 5.) Approximately one month later, on June 5, the 

Daily Emerald published a letter written by the complainant expressing her feelings toward the 

University's athletic department and her dissatisfaction "with the answers they have provided." 

(letter attached as Exhibit C to Smigel Decl., ¶ 4.) (Compl. ¶ 57.) 

In accordance with the University's Student Conduct Code, the University began 

the process of scheduling plaintiffs' administrative hearings. As the hearings approached, 

plaintiffs agreed for their hearing to be conducted according to the administrative conference 

procedures defined by OAR 571-021-0205, rather than a more robust panel hearing.1 In do 

agreeing, plaintiffs waived any opportunity to subpoena witnesses, cross examine the 

complainant, or appeal the decision to the University. In return, the University agreed that 

"suspension" from school would be the maximum sanction that plaintiffs faced. (Plaintiffs' 

waivers are attached as Exhibits C and D to Thornton Decl., ¶¶ 6-7.) 

Plaintiffs' hearing was conducted by Sandy Weintraub, Director of Student 

Conduct & Community Standards at the University (Compl. ¶ 69), on June 17, 2014. Plaintiffs 

were represented by counsel at their hearing. Based on the University's Title IX investigation 

report, the police report, and other evidence presented at the hearing, Weintraub determined that 

plaintiffs had violated the University's Student Conduct Code by engaging in sexual misconduct, 

specifically, penetration without "first obtain[ing] Explicit Consent." OAR 571-021-

0105(30)(b)(A). Plaintiffs were suspended from the University in accordance with University 

 

1

With advice of their attorneys, all three plaintiffs waived a panel hearing. Under OAR 571-021-

0210, if plaintiffs had elected a panel hearing (i) the chair of the hearing could have issued 

subpoenas requiring relevant witnesses to attend plaintiffs' hearing, OAR 571-021-0210(8); 

(ii) plaintiffs would have been entitled to ask relevant questions of witnesses, OAR 571-021-

0210(13); and (iii) plaintiffs could have appealed the outcome of their hearings panel, OAR 571-

021-0250, among other procedures. 
 

Page 5 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

in Support 

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regulations. OAR 571-021-0120; OAR 571-021-0130. (The University's administrative hearing 

decision final letters are attached as Exhibit D to Thornton Decl., ¶ 8.) 

The University also elected not to renew plaintiffs' scholarships for the 2014-2015 

academic year. Plaintiffs did not appeal the nonrenewal of their scholarships, which was their 

right under OAR 571-003-0125. Neither did plaintiffs appeal their suspensions from the 

University to state court, which was their right under ORS Chapter 183. Instead, plaintiffs 

informed the University of their intent to file suit. (Plaintiffs' Tort Claims Notices are attached 

as Exhibit E to Thornton Decl., ¶ 9.) (Compl. ¶ 89.) 

III. ARGUMENT 

The court must grant a motion to dismiss under Fed R Civ P 12(b)(6) unless the 

plaintiff has alleged sufficient factual allegations that "state a claim to relief that is plausible on 

its face." Ashcroft v. Iqbal, 556 US 662, 663, 129 S Ct 1937, 173 L Ed 2d 868 (2009) (internal 

quotation marks and citation omitted). When evaluating whether a plaintiff has stated a claim 

that is plausible on its face, the court is instructed to follow a two-step analysis for assessing the 

sufficiency of each claim. Iqbal, 556 US at 680-81. First, the court must distinguish between 

factual allegations and "mere conclusory statements." Iqbal, 556 US at 678-79. Second, the 

court disregards all allegations that are merely conclusory or speculative and then "consider[s] 

the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to 

relief." Iqbal, 556 US at 681. If the factual allegations of the complaint "have not nudged [the 

plaintiff's] claims across the line from conceivable to plausible, [the plaintiff's] complaint must 

be dismissed." Bell Atl. Corp. v. Twombly, 550 US 544, 570, 127 S Ct 1955, 167 L Ed 2d 929 

(2007). 
 

Page 6 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

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Plaintiffs have repleaded four claims, each of which should be dismissed for the 

following reasons, as well as the additional reasons raised in this memorandum and the reasons 

asserted in Defendants' motion to dismiss plaintiffs' Second Amended Complaint:2

 Plaintiffs' 20 USC § 1681 Title IX claim: Plaintiffs' claim should be 

dismissed because the factual allegations of the Complaint do not 

plausibly suggest: (1) that the University initiated its Title IX 

investigation for discriminatory reasons, (2) that the Title IX investigation 

or plaintiffs' hearing was procedurally flawed, (3) that the University erred 

in finding that plaintiffs had engaged in sexual misconduct, as defined by 

the Student Conduct Code, or that this purported error was due to bias 

against males, (4) that plaintiffs were suspended because they are male or 

that their sex or gender influenced the length of their suspension, or 

(5) that the University was deliberately indifferent to plaintiffs' sex- and 

gender-based rights. 

 Plaintiffs' 42 USC § 1983 equal protection claim: As with plaintiffs' 

Title IX claim, this claim should be dismissed because no factual 

allegations plausibly suggest that the Individual Defendants purposefully 

discriminated against plaintiffs based on their sex or gender. In addition, 

the Individual Defendants are entitled to qualified immunity from this 

claim because no existing case law clearly established that their alleged 

conduct was discriminatory. 

 

2

 Defendants incorporate into this motion their Motion to Dismiss Austin's Second Amended 

Complaint (Case No. 6:15-cv-02257-MC, 2/22/16, Dkt. 19), their Motion to Dismiss Artis and 

Dotson's Complaint (Case No. 6:16-cv-00647-MC, 5/02/16, Dkt. 12), and the related replies 

(Case No. 6:15-cv-02257-MC, 3/25/16, Dkt. 23; Case No. 6:16-cv-00647-MC, 7/05/16, Dkt. 23) 

applicable to plaintiffs' Title IX, equal protection, negligence, and breach-of-contract claims. 
 

Page 7 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

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 Plaintiffs' negligence claim: Plaintiffs' claim should be dismissed because 

they did not have a special relationship with any Defendant and therefore 

plaintiffs have not alleged any cognizable damages. Moreover, the 

allegations of the Complaint do not plausibly suggest that Defendants' 

alleged conduct created a foreseeable risk of harm to plaintiffs, or that any 

such risk of harm was unreasonable. 

 Plaintiffs' breach-of-contract claim: Plaintiffs' claim should be dismissed 

because the allegations of the Complaint confirm that the University 

fulfilled all its obligations under the terms of plaintiffs' scholarships, that 

plaintiffs were not entitled to a renewal of their scholarships, and that the 

University was not even required to consider renewing plaintiffs' 

scholarships after they were suspended for sexual misconduct. 

A. Plaintiffs' Title IX Claims Should Be Dismissed Because the Factual 

Allegations of the Complaint Do Not Plausibly Suggest That the University Is 

Biased Against Males. 

Plaintiffs again assert three theories of Title IX liability, all of which fail as a 

matter of law. The Complaint does not assert any factual allegations that plausibly suggest that 

the University discriminated against plaintiffs based on their sex or gender.3

 In fact, the 

Complaint alleges no new factual allegations concerning the conduct of the University or any 

University official actually involved in the Title IX investigation or plaintiffs' administrative 

conference. 

 

3

 The University also renews its argument that plaintiffs' Title IX claim was not timely filed 

under the applicable statute of limitations, which in Oregon is one year from the date of the 

alleged injury. See ORS 659A.875; ORS 659.860; see also Defendants' Motion to Dismiss 

Austin's Second Amended Complaint (Case No. 6:15-cv-02257-MC, 2/22/16, Dkt. 19, at *24-25, 

n.7), Defendants' Motion to Dismiss Artis and Dotson's Complaint (Case No. 6:16-cv-00647-

MC, 5/02/16, Dkt. 12, at *24-25, n.9). 
 

Page 8 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

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Instead, plaintiffs' new allegations address the actions of a group of student 

protesters, a professor, and the news media—none of whom participated in the disputed 

investigation or hearing or whose actions can be attributed to Defendants. Plaintiffs' additional 

allegation that the complainant "published an opinion piece in a newspaper criticizing the 

University for its handling of the situation" (Compl. ¶ 57) not only misrepresents the published 

statement, but fails to assert any factual allegations concerning the University's conduct. And 

plaintiffs' assertion that the foregoing "had the actual effect of pressuring the University to take 

punitive action against the male basketball players solely on the basis of their sex/gender" 

(Compl. ¶ 44) is merely conclusory—and is not supported by any factual allegations in the 

Complaint. 

The declarations of plaintiffs' attorney, their former attorneys, and another 

attorney who has represented other University students similarly do not establish factual 

allegations sufficient to overcome Defendants' motion to dismiss. Rather, these declarations 

merely assert (1) these attorneys' opinions of plaintiffs' administrative conference and their 

opinions that the University is biased against accused male students in general, (2) that one of the 

attorneys is not aware whether the University took action against a female student who allegedly 

physically (not sexually) assaulted her boyfriend and chased him with a knife, and (3) that these 

attorneys have not successfully defended a male University student accused of sexual 

misconduct, or know of another attorney who has. None of these assertions constitute factual 

allegations that plausibly suggest that the University acted with bias against plaintiffs. Plaintiffs' 

Title IX claim should be dismissed. 

1. The University Did Not Selectively Enforce Its Student Conduct Code by 

Investigating Allegations of Rape. 

Plaintiffs' first theory is that the University selectively enforced its Student 

Conduct Code, in violation of Title IX, by initiating an investigation of the rape allegations 

brought against plaintiffs. To prevail on their selective-enforcement claim, plaintiffs must plead 
 

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factual allegations that plausibly suggest that the University initiated its investigation because of 

plaintiffs' sex or gender. Doe v. Univ. of the South, 687 F Supp 2d 744, 756 (ED Tenn 2009). 

Specifically, since plaintiffs are male, the Complaint must set forth factual allegations (a) "that a 

female was in circumstances sufficiently similar to [plaintiffs'] and was treated more favorably 

by the University," id. (internal quotation marks and citations omitted), or (b) that the 

University's actions were improperly influenced by plaintiffs' sex or gender. 

The University, however, did not have a choice whether to initiate a Title IX 

investigation—it was obligated to do so by federal law. The University's obligation to 

investigate was triggered when it received a report accusing plaintiffs of rape. "[A] school that 

knows, or reasonably should know, about possible [sexual] harassment must promptly 

investigate to determine what occurred." Letter from Russlynn Ali, Assistant Secretary for Civil 

Rights, U.S. Department of Education, at 4 (Apr. 4, 2011) (emphasis added).4

 This obligation 

exists regardless of the sex or gender of the accused and the complainant. Particularly in light of 

the University's affirmative obligation to investigate allegations of rape, plaintiffs' theory—that 

the University should not have investigated the alleged rapes and its decision to investigate was 

made primarily because of plaintiffs' gender (rather than the fact that they were accused of 

rape)—is implausible. Moreover, plaintiffs' theory falsely presumes that efforts to respond to 

alleged sexual assault (such as by initiating a Title IX investigation) equates to bias against 

males. But this theory is implausible—and is analogous to asserting that a university's efforts to 

 

4

 This letter is a "significant guidance document" under the Office of Management and Budget's 

Final Bulletin for Agency Good Guidance Practices, 72 Fed Reg 3432 (Jan. 25, 2007), and is 

properly accorded controlling weight, or at least significant deference, in setting forth the 

circumstances under which a university is obligated to conduct a Title IX investigation. See 

Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 US 837, 104 S Ct 2778, 81 L 

Ed 2d 694 (1984) (deference to agency interpretation of statute); Auer v. Robbins, 529 US 452, 

117 S Ct 905, 137 L Ed 2d 79 (1997) (deference to agency interpretation of regulation); 

Skidmore v. Swift & Co., 323 US 134, 65 S Ct 161, 89 L Ed 124 (1944) (deference to agency 

interpretive rules). 
 

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respond to allegations of race discrimination by students of color equates to unlawful bias against 

white students. 

Further, the Complaint does not assert that the University has failed to initiate a 

Title IX investigation of any similarly situated female student. In fact, according to the 

Complaint, the University did conduct a Title IX investigation of the one female student that 

plaintiffs allege to be similarly situated to them (although, as discussed below, the allegations of 

the Complaint show that this student is not actually a relevant comparator). (Compl. ¶ 78.) 

The Complaint fails to set forth any factual allegations that the University was 

influenced by plaintiffs' sex or gender to initiate its Title IX investigation, and this claim should 

therefore be dismissed. 

2. No Factual Allegations Plausibly Suggest That the University's Title IX 

Investigation or Plaintiffs' Hearing Were Flawed or Influenced By Bias 

Against Males. 

Plaintiffs' second theory is that the University conducted its "[Title IX] 

'investigation' and subsequent hearing in a manner that was biased against [plaintiffs] based on 

sex" and was intent on reaching a "predetermined outcome * * * to appease the University's 

internal and external critics." (Compl. ¶ 122, 126.) But plaintiffs' claim fails for want of factual 

allegations plausibly suggesting that the investigation or hearing proceedings were flawed or that 

the University discriminated against plaintiffs. 

To prevail on a Title IX erroneous-outcome claim, a plaintiff must plead factual 

allegations that (a) are "sufficient to cast some articulable doubt on the accuracy of the outcome 

of the disciplinary proceeding," Yusuf v. Vassar Coll., 35 F3d 709, 715 (2d Cir 1994), and (b) 

"demonstrate that the conduct of the university in question was motivated by a sexual bias." Doe 

v. Univ. of the South, 687 F Supp 2d at 756. 

This court has rightly declined to adopt the Second Circuit's recently adopted 

minimal pleading standard, which is neither binding in this jurisdiction nor persuasive in its 
 

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reasoning. (Order at 17.) Doe v. Columbia Univ., 831 F3d 46, 56 (2d Cir 2016). Under the 

Second Circuit's rationale, a plaintiff is entitled to discovery (including the deposition of a sexual 

assault victim) simply by alleging that "there was substantial criticism of the University['s] * * * 

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

Doe v. Columbia Univ., 831 F3d at 57. This untenable pleading standard would expose almost 

every university nationwide to discovery based on the beliefs and actions of third parties not 

involved in the university's investigatory or adjudicatory processes and potentially unaffiliated 

with the university altogether. It also subverts the Iqbal pleading standard by allowing claims to 

proceed based on speculative and conclusory allegations that events external to a university's 

investigatory and adjudicatory processes influenced these processes. Other courts have 

identified this flaw in the Second Circuit's reasoning and declined to adopt similar rationale. See 

Doe v. Regents of Univ. of Cal., No. 2:15-cv-02478-SVW-JEM, 2016 WL 5515711, at *5 

("[T]he Court is constrained by the Supreme Court's holding in Iqbal and Twombly. Difficult as 

it may be to allege sufficient factual matter permitting a plausible inference of gender bias, 

conclusory legal allegations will not suffice."). And as a practical matter, it also (a) allows 

Title IX claims by male plaintiffs to proceed to discovery while the same claims asserted by 

female or transgender plaintiffs would be dismissed and (b) "put[s] universities in [the] double 

bind" of "com[ing] under public fire [and risking liability under Title IX] for not responding to 

allegations of sexual assault aggressively enough or * * * open[ing] themselves to Title IX 

claims simply by enforcing rules against alleged perpetrators." (Order at 18.) 

Here, plaintiffs offer no factual allegations that plausibly show that the Title IX 

investigation or hearing proceedings were flawed5

 or that any University official involved in the 

 

5

 In fact, at plaintiffs' hearing, Weintraub was presented with evidence from the police report 

that, among other things, (a) plaintiffs attested that the complainant started crying during sex, (b) 

one of the plaintiffs "regretted the situation, and could understand why she felt like she was taken 

advantage of," (c) one of the plaintiffs admitted that he did something wrong, and (d) one of the 

plaintiffs "said what he did was very inappropriate, and * * * mentioned he would not want 

anyone to do that to his mom or sister." (Smigel Decl., Exhibit A.) (Order at 4-5.) 
 

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investigation or hearing was biased against males. Instead, plaintiffs conclude that there was an 

"atmosphere of scrutiny" on campus, which "demand[ed]" that plaintiffs "be punished * * * on 

the basis of their sex/gender." (Compl. ¶ 119.) Plaintiffs also claim that opinions contained in 

the declarations of several attorneys—including plaintiffs' current attorney and former 

attorneys—establish that the University's hearing procedures were flawed and are biased against 

males. In addition, plaintiffs continue to assert that two words spoken by President Gottfredson 

in his May 9, 2014, public statement, and the University's decision to proceed with plaintiffs' 

hearing (and ultimately find that plaintiffs violated the Student Conduct Code) despite the Lane 

County District Attorney's decision not to prosecute, suggest sex or gender bias. And finally, 

plaintiffs replead allegations based on "all evidence presently available"—which were pleaded 

"on information and belief" in the Second Amended Complaint—in an attempt to show that the 

University treats males differently from females. These allegations, however, individually and 

collectively, do not create a plausible inference that the proceedings of the Title IX investigation 

or plaintiffs' hearing were flawed or that the University is biased against males—both of which 

are necessary to survive Defendants' motion to dismiss. 

a. No Factual Allegations Connect the Alleged "Atmosphere of 

Scrutiny" With the Conduct of Any University Official Involved in 

the Investigation or Plaintiffs' Hearing. 

This court previously held that pleading "an atmosphere of scrutiny" does not, 

without more, create a "plausible inference that a university's * * * response to allegations of 

sexual misconduct is evidence of gender discrimination." (Order at 17.) Yet this—and nothing 

more—is exactly what plaintiffs assert. The Complaint alleges that "the actions of the University 

and the Individual Defendants were all taken in response to internal and external complaints and 

protests that the University was not taking strong enough actions against males in cases 

involving alleged sexual misconduct." (Compl. ¶ 111.) The alleged internal complaints consist 

of a professor's "repeatedly [speaking] out against the University's handling of the situation" and 

her academic research (Compl. ¶¶ 105-06) and a statement by the complainant that was 
 

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published in the Daily Emerald. (Compl. ¶ 57.) The alleged "external complaints and protests" 

consist of student protests on campus and media coverage of these protests and the rape 

allegations against plaintiffs. (Compl. ¶¶ 101-04.) 

But allegations (1) that a professor who was not part of the Title IX investigation 

or plaintiffs' hearing believed that the University improperly handled the Title IX investigation, 

(2) that some of the more than 20,000 students that attend the University believed "that the 

University had declined to punish the male students accused of rape, solely on the basis of their 

sex/gender,"6 and (3) that the local and national news media covered this story are not allegations 

about the conduct of the University or any University official who actually participated in the 

Title IX investigation or plaintiffs' hearing. Neither is the allegation that plaintiffs' accuser 

"critiz[ed] the University for its handling of the situation," which in any event is a 

mischaracterization of the published statement.7

 And plaintiffs' allegation that the "atmosphere" 

influenced the University's decision-making is speculative and conclusory and "fail[s] to show 

how the University's enforcement of its student conduct code * * * equates to sex 

discrimination." (Order at 18.) Plaintiffs do not plead any factual allegations that support their 

assertion that student protests, media coverage, and the personal beliefs of a professor actually

influenced the University's decision-making, much less influenced it based on plaintiffs' sex or 

gender. 

 

6

 In this allegation, plaintiffs appear to speculate as to the beliefs of a group of students based on 

signs that some students were holding, the majority of which do not reflect gender-based 

concepts. 

7

 The statement of plaintiffs' accuser expresses that she "cannot fathom how [the University's] 

basketball coach recruited someone who was in the middle of a suspension for another sexual 

assault," but does not mention anything about the University's handling of the Title IX 

investigation, nor does it (1) make any reference to plaintiffs' (or her own) sex or gender or 

(2) express any sex- or gender-related sentiment whatsoever. 
 

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b. The Declarations of Michaels and Veralrud Do Not Set Forth New 

Factual Allegations of Bias Against Males. 

The declarations of plaintiffs' attorneys Michaels and Veralrud also fail to create a 

plausible inference that the University is biased against males. Michaels's declaration provides 

no basis for finding the University liable under Title IX or any law. His declaration, in fact, 

merely asks the court to take his word that two depositions he is aware of from a previous case 

involving the University "are extremely relevant and helpful to establishing Plaintiffs’ claims 

under both Due Process and Title IX." (Compl. ¶ 82.) This is not a factual allegation and does 

not meet the pleading standard. 

And Veralrud's declaration does little more than express his opinion that "there 

would be significant pressure on the University administration" to find that plaintiffs violated the 

Student Conduct Code and repeat plaintiffs' allegations that they did not receive due process 

because (1) the University redacted the names of witnesses from the Title IX investigation report 

that Veralrud reviewed, (2) in Veralrud's opinion, information in the investigation report was 

inconsistent with the complainant's allegations, and (3) Veralrud was "concerned" that the 

University would not "exercise its subpoena power in conjunction with the panel hearing" that 

plaintiffs declined. (Compl. ¶ 77.) Veralrud's declaration does not add new factual allegations 

concerning the investigation or plaintiffs' hearing, and does not suggest that the University is 

biased against males. And in any event, by Veralrud's own admission, his memory of the report 

may not be "complete or totally accurate." Moreover, contrary to plaintiffs' claim that the 

investigation was procedurally flawed, what Veralrud does purportedly remember suggests that 

the University's investigation was thorough and unbiased because it included statements from 

witnesses that plaintiffs assert were essential to their case. Like Michaels's declaration, 

Veralrud's does not add substantively to plaintiffs' claims. 
 

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c. Gottfredson's Public Statement Does Not Suggest Bias Against 

Males. 

Plaintiffs again take issue with Gottfredson's May 2014 public statement, 

claiming that his words "were grounded in sexism and/or gender bias" because the phrase "as a 

father" and the term "survivor" are, apparently, "loaded word[s] invoking sex/gender." (Compl. 

¶ 109-10). Plaintiffs further opine that these statements "directly influenced the actions of all 

other individuals who acted on behalf of the University in taking action against Plaintiffs." 

(Compl. ¶ 110.) 

As Defendants have previously argued, Gottfredson's words do not plausibly 

suggest sex or gender bias against plaintiffs. Gottfredson is a father; identifying as such in no 

way suggests that he acts with bias against male students. Similarly, using the term "survivor" to 

describe a student who claims to have been a rape victim does not implicate the sex or gender of 

the accused, much less suggest sex or gender bias. Furthermore, using this term one time in a 

public statement does not plausibly suggest that Gottfredson or the University had predetermined 

the outcome of plaintiffs' hearing. According to the Complaint, even the Lane County District 

Attorney's office—which, as the Complaint mentions several times, declined to prosecute 

plaintiffs—identified the complainant as a "victim" and plaintiffs as "assailants" multiple times in 

a public statement on its investigation of the case. (Compl. ¶ 37.) And in any event, plaintiffs' 

assertion that Gottfredson's words influenced the outcome of the Title IX investigation and 

plaintiffs' hearing is speculation that is not supported by any factual allegations and is 

insufficient to state a Title IX claim without factual allegations suggesting gender or sex bias. 

d. The District Attorney's Decision Not to Prosecute Does Not 

Suggest That the University Was Motivated by Bias or Even That 

Plaintiffs Did Not Violate the Student Conduct Code. 

Plaintiffs also reallege that the Lane County District Attorney's decision not to 

prosecute them suggests that the University's actions were motivated by gender bias. As this 

court explained, however, "[t]he state's failure to indict Plaintiffs with a crime has no bearing on 
 

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the Defendants' decision to investigate a Student Conduct Code violation * * *. There is no 

logical nexus that connects the failure to criminally prosecute with gender bias on the part of 

Defendants." (Order at 13). The District Attorney's decision is therefore not a factual allegation 

that suggests error or bias on behalf of the University. 

e. Plaintiffs' Speculations Based on "All Evidence Presently 

Available" Are Not Factual Allegations and Do Not Suggest Bias 

Against Males, in Any Event. 

In an effort to create the impression that the University's investigation and 

plaintiffs' hearing were procedurally flawed, plaintiffs recast three allegations of their Second 

Amended Complaint—which had been pleaded "on information and belief"—as allegations 

based on "all evidence presently available to the undersigned, in the absence of further 

discovery." (Compl. ¶ 115-17.) This new introductory phrase, however, does nothing to affect 

the substance of these pleadings, which this court has ruled does not plausibly suggest sex or 

gender bias in the University's investigation or its adjudication of plaintiffs. (Order at 15-16.) 

Specifically, plaintiffs again allege that "the University has never taken action 

against a female student (including the accuser in this case) for engaging in the type of conduct 

that Plaintiffs allegedly engaged in."8 (Compl. ¶ 115.) But plaintiffs have not pleaded that any 

female student has ever been accused of engaging in this type of conduct. And furthermore, as 

this court explained, "[i]t is a simple fact that the majority of accusers of sexual assault are 

female and the majority of the accused are male," which "does not mean that [the University's 

enforcement of Title IX] is selectively" biased against males. (Order at 15.) 

Plaintiffs also reallege that "the University has never taken action against a female 

student for making a false allegation" (Compl. ¶ 116), which this court explained neither is 

 

8

 Notably, "the accuser in this case" was not accused of sexual misconduct. See also Painter v. 

Doe, No. 3:15-cv-00369-MOC-DCK, 2016 WL 4644495 (WDNC Sept. 6, 2016) ("plaintiff must 

be able to allege that the University Defendants treated persons accused of misconduct 

differently based on gender, not that they treated the accuser differently during this process"). 
 

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evidence of sex or gender bias nor has any bearing on plaintiffs' case. "The punishment for 

making a false accusation should necessarily be less severe than the punishment for engaging in 

sexual misconduct itself." (Order at 16.) 

Finally, plaintiffs revise their allegation that "accused males invariably are 

presumed guilty" by now alleging that "males invariably lose when charged with sexual 

misconduct * * * [because] the University invariably 'believes' the female's version of events, no 

matter how implausible * * * and 'rejects' the male's version of events, no matter how credible." 

(Compl. ¶ 117.) Plaintiffs attempt to support this speculative and conclusory allegation with the 

declaration of Austin's former attorney, Laura Fine Moro. In her declaration, Fine Moro states 

that "in [her] experience and in the experience of [her] peers as reported to [her], the female 

accuser is always believed and the male accused is never believed." (Compl. ¶ 79.) Fine Moro's 

statement, however, merely reflects (1) the opinion of one attorney who has represented 

students—including one of the plaintiffs—in University hearings and (2) a statement of hearsay 

concerning the purported experiences of other attorneys. It does not constitute factual allegations 

of bias. Lissa Casey's declaration, likewise, is simply her "professional opinion [that] bias exists 

at the University of Oregon to find female students' accusations of sexual misconduct credible." 

(Compl. ¶ 81.) Critically, plaintiffs fail to allege any facts that plausibly indicate bias by the 

decision-maker at plaintiffs' hearing: Weintraub. A "University" can neither "believe" nor 

express "bias"; only individuals can. And plaintiffs have failed to allege any facts to demonstrate 

that any of the Individual Defendants were motivated by unlawful bias. Plaintiffs' hyperbolic 

and conclusory assertions are not accompanied by any actual factual allegations relevant to the 

credibility determinations in this case and therefore do not create a plausible inference of bias. 

Taken together, the allegations of the Complaint do not create a plausible 

inference (1) that the Title IX investigation or plaintiffs' hearing was procedurally flawed or 

predetermined or (2) that any University official involved in, or with influence over, the 

investigation or plaintiffs' hearing acted with sex or gender bias—both of which are necessary to 
 

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overcome Defendants' motion to dismiss. Accordingly, plaintiffs' erroneous-outcome claim 

should be dismissed. 

3. The University Did Not Selectively Enforce Its Student Conduct Code by 

Suspending Plaintiffs for Engaging in Sexual Misconduct. 

Plaintiffs' second selective-enforcement theory is that the University selectively 

enforced the sanctioning provisions of its Student Conduct Code, alleging that "the severity" of 

plaintiffs' sanction was "affected by the fact that [plaintiffs] are male, and the accuser is female." 

(Compl. ¶ 97.) To prevail on this claim, plaintiffs must plead factual allegations that plausibly 

suggest that the University imposed a sanction based on plaintiffs' sex or gender. Doe v. Univ. of 

the South, 687 F Supp 2d at 756. 

Plaintiffs' claim is purely conclusory and not supported by any factual allegations. 

As previously discussed, the Complaint does not present any allegations concerning similarly 

situated female students. The female student whom plaintiffs allege to be similarly situated to 

them is not a relevant comparator. According to the Complaint, that student "had a loud verbal 

fight with her boyfriend," then "refused to let him leave her apartment by exerting physical 

force," and ultimately "grabbed a large kitchen knife and ran after him * * * [while holding] the 

knife above her head in an aggressive manner." (Compl. ¶ 78.) These actions do not resemble 

the allegations against plaintiffs and therefore provide no basis for inferring that plaintiffs' 

sanction was influenced by their sex or gender. And no factual allegations suggest that the 

University sanctions males who have engaged in sexual misconduct more severely than females 

who have engaged in similar conduct. 

Moreover, plaintiffs' suspensions were consistent with the University's thengoverning regulations—which again demonstrates the implausibility of plaintiffs' assertion that 

their suspensions were motivated by bias. Under the then-governing regulations, "[a] University 

Official * * * that determines that an Accused Student violated the Student Conduct Code may 

impose sanctions authorized by this Code unless otherwise expressly limited." OAR 571-021-
 

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0240(1). Violations of the Student Conduct Code that "affect[] the health, safety and well-being 

of the community are deemed the most severe and may result, upon the first violation, in * * * 

suspension, or expulsion." OAR 571-021-0130 (emphasis added). Sexual misconduct is a 

violation that affects the health, safety, and well-being of the community because it "threatens 

the welfare of the University community as a whole." OAR 571-021-0120(3), (3)(h). Consistent 

with these regulations, plaintiffs were suspended after a finding that they had engaged in sexual 

misconduct, as defined by the Student Conduct Code. 

Because the Complaint fails to plausibly suggest that the sanction that plaintiffs 

received was influenced by their sex or gender, plaintiffs' selective-enforcement claim should be 

dismissed. 

4. The Factual Allegations Do Not Plausibly Suggest That the University 

Was Deliberately Indifferent to Plaintiffs' Rights. 

Plaintiffs' final Title IX claim asserts that the University "demonstrated a 

deliberate and systematic indifference to the rights of Plaintiffs, due to their sex." (Compl. 

¶ 127.) This claim requires plaintiffs to plead factual allegations that plausibly suggest "'that an 

official of the institution who had authority to institute corrective measures had actual notice of, 

and was deliberately indifferent to, the misconduct.'" Doe v. Univ. of the South, 687 F Supp 2d 

at 756 (quoting Mallory v. Ohio Univ., 76 F App'x 634, 638 (6th Cir 2003). Further, the 

official's conduct must be "clearly unreasonable in light of the known circumstances." Patterson 

v. Hudson Area Sch., 551 F3d 438, 446 (6th Cir 2009) (internal quotation marks and citations 

omitted). 

Plaintiffs' claim repeats, with insignificant revisions, the allegations of their 

Second Amended Complaint, which this court found had "failed to show how the University 

exhibited deliberate indifference to Plaintiffs' rights based upon their gender or sex." (Order at 

19.) As before, plaintiffs' claim rests solely on their allegation that "[t]he University's action, and 

inactions, were unreasonable in light of * * * the District Attorney's office declining to 
 

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prosecute." (Compl. ¶ 128.) But as this court explained, "the elements of sexual misconduct, as 

defined by the Student Conduct Code, are quite different than the elements that a state prosecutor 

would have to prove" and "the standard of proof required for a University investigation and 

suspension based on its code of conduct is entirely different from the DA's standard to prosecute 

a criminal case." (Order at 13, 18.) Plaintiffs' allegations therefore fail, as a matter of law, to 

plausibly suggest that the University was deliberately indifferent to their rights, and plaintiffs' 

claim should be dismissed. 

B. Artis and Dotson's Equal Protection Claim Should Be Dismissed Because the 

Factual Allegations of the Complaint Do Not Plausibly Suggest That the 

Conduct of the Individual Defendants Was Discriminatory. 

Artis and Dotson repeat, verbatim, their previously dismissed allegations that the 

Individual Defendants violated plaintiffs' rights under the Equal Protection Clause of the United 

States Constitution. To overcome Defendants' motion to dismiss, plaintiffs must present factual 

allegations that create a plausible inference that "the defendants acted in a discriminatory manner 

and that the discrimination was intentional." Reese v. Jefferson Sch. Dist. No. 14J, 208 F3d 736, 

740 (9th Cir 2000) (citing Fed. Deposit Ins. Corp. v. Henderson, 940 F2d 465, 471 (9th Cir 

1991)). Plaintiffs' allegations again "fall short of satisfying the relevant pleading standards set 

forth by Twombly and Iqbal." (Order at 19.) 

1. No Factual Allegations Plausibly Suggest That Any of the Individual 

Defendants Acted in a Discriminatory Manner or With Discriminatory 

Intent. 

As an initial matter, the equal protection claims against Holmes and Martin 

should be dismissed because plaintiffs have not alleged that Holmes or Martin acted in a 

discriminatory manner or with discriminatory intent. Plaintiffs allege that Holmes "was charged 

with the responsibility of hearing an appeal" but "refused to respond to Plaintiffs' request for an 

appeal * * * in violation of their right to * * * due process." (Compl. ¶ 70-71.) Plaintiffs do not, 

however, plead that Holmes "refused to respond to Plaintiffs' request" because of plaintiffs' sex 
 

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or gender. Nor would such an allegation be plausible in light of the undisputed fact that 

plaintiffs affirmatively waived any right to an appeal. The allegations against Martin likewise do 

not assert discriminatory conduct or intent. Plaintiffs allege that Martin "suspended Plaintiffs on 

an 'emergency' basis," but do not assert that Martin's conduct was influenced by plaintiffs' sex or 

gender. (Compl. ¶ 32-33, 54-55.) Though plaintiffs have pleaded the conclusory allegation that 

Martin "demonstrate[d] patent bias" against another male University student, they have not 

pleaded that she acted in a discriminatory manner in this case. (Compl. ¶ 90.) The equal 

protection claims against Holmes and Martin lack an essential element of the claim and should 

accordingly be dismissed. And even if the Complaint is read as alleging that Holmes and Martin 

acted with discriminatory conduct or intent, no factual allegations support this conclusory 

assertion—the claim therefore does not satisfy the pleading standard. 

The equal protection claim against Gottfredson should also be dismissed because 

plaintiffs have not pleaded factual allegations that Gottfredson acted in a discriminatory manner 

or with the requisite intent. Plaintiffs allege that Gottfredson used two "loaded word[s] invoking 

sex/gender" in his May 2014 public statement and that his statement "had significant influence, 

and likely even determinative influence, over the University's decisions and actions." (Compl. 

¶ 109-10.) For the reasons set forth in the previous section, Gottfredson's May 2014 statement 

does not suggest that he is biased against males. And the allegation that Gottfredson's statement 

influenced the investigation and plaintiffs' hearing is purely speculative and, in any event, is not 

evidence of discrimination because his underlying statement cannot be reasonably interpreted as 

biased against males. Furthermore, whether or not Gottfredson's statement affected the decisions 

and actions of other University officials cannot be the basis for establishing that Gottfredson 

violated the Equal Protection Clause. The claim against Gottfredson should therefore be 

dismissed. 

Finally, the Complaint also lacks factual allegations that plausibly suggest that 

Weintraub, who presided over plaintiffs' hearing, discriminated against plaintiffs. The 
 

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Complaint alleges that Weintraub (a) "refused to provide due process to Plaintiffs" at their 

hearing, (b) concluded that plaintiffs had violated the Student Conduct Code when, according to 

plaintiffs, they "are innocent," and (c) suspended plaintiffs for four to ten years because "they are 

male, and the accuser is a female." (Compl. ¶ 69, 97.) These allegations do not, however, state a 

claim under the Equal Protection Clause because they depend on speculative and conclusory 

assertions of bias. Plaintiffs allege that they did not receive due process, but do not allege—nor 

could they—that Weintraub deviated from the hearing procedures that plaintiffs and the 

University agreed to follow. Plaintiffs allege that Weintraub erroneously concluded that they 

had engaged in sexual misconduct because he found the complainant to be credible despite the 

weight of the evidence, but do not plead any factual allegations that plausibly suggest that 

Weintraub failed to consider all the evidence in the record or that Weintraub's decision was 

influenced by plaintiffs' sex or gender. Last, plaintiffs allege that the length of their suspension 

was discriminatory, but do not plead any factual allegations suggesting that the length of their 

suspension was not authorized by the then-governing regulations or that Weintraub has issued 

lighter sanctions to similarly situated female students. Because the allegations addressing 

Weintraub's conduct fail to plausibly suggest that he acted in a discriminatory manner or with 

discriminatory intent, the equal protection claim against Weintraub should be dismissed. 

2. The Individual Defendants Are Nevertheless Entitled to Qualified 

Immunity From Artis and Dotson's Equal Protection Claims. 

All the Individual Defendants are entitled to qualified immunity from plaintiffs' 

equal protection claims. A public official is entitled to qualified immunity unless the official has 

violated a statutory or constitutional right that was "'clearly established' at the time of the 

[official's alleged] conduct." Ashcroft v. al-Kidd, 563 US 731, 735, 131 S Ct 2074, 179 L Ed 2d 

1149 (2011) (quoting Harlow v. Fitzgerald, 457 US 800, 818, 102 S Ct 2727, 73 L Ed 2d 396 

(1982)). A right is clearly established only when "the contours of [that] right are sufficiently 

clear that every reasonable official would have understood that what he is doing violates that 
 

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right." al-Kidd, 563 US at 741 (internal punctuation and citation omitted). "When properly 

applied, qualified immunity protects all but the plainly incompetent or those who knowingly 

violate the law." Taylor v. Barkes, ___ US ___, 135 S Ct 2042, 2044, 192 L Ed 2d 78 (2015) 

(internal punctuation and citations omitted). 

The allegations of the Complaint do not plausibly suggest that the Individual 

Defendants are "plainly incompetent." Nor do the allegations plausibly suggest that the 

Individual Defendants "knowingly violate[d] the law." And at the time of the Individual 

Defendants' alleged actions, no case law in this jurisdiction (or elsewhere) clearly established 

that their actions were discriminatory. 

Plaintiffs' equal protection claim fails at both prongs of the qualified immunity 

analysis. As explained in the preceding section, the factual allegations of the Complaint do not 

plausibly suggest that the Individual Defendants discriminated against plaintiffs based on their 

sex or gender. And as of June 2014, no case law in this jurisdiction had clearly established that 

any of the following actions constituted sex- or gender-based discrimination: 

 "[R]efusing to respond to" a request for an administrative appeal by 

students who had contractually waived their right to an administrative 

appeal; 

 Suspending university students accused of rape on an emergency basis and 

in accordance with the emergency action provisions of the university's 

student code of conduct, see OAR 571-021-0230 (Emergency Action); 

 Describing oneself as a "father" and the alleged victim of a rape as a 

"survivor," or announcing that student athletes who have been removed 

from the university's basketball team will no longer play for the team; or 

 "[R]efus[ing] to provide" procedures during an administrative hearing that 

were waived by the complaining party or determining that the 
 

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preponderance of the evidence in an administrative record shows that a 

group of university students violated the university's student conduct code. 

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

discriminatory, the Individual Defendants could not have reasonably understood that their 

actions violated the Equal Protection Clause (which their actions did not). The Individual 

Defendants are therefore immune from plaintiffs' equal protection claim in accordance with the 

doctrine of qualified immunity, and plaintiffs' claims should be dismissed. 

C. Plaintiffs' Negligence Claim Should Be Dismissed Because the Parties Were 

Not in a Special Relationship and, as a Matter of Law, Defendants' Conduct 

Did Not Create a Foreseeable or Unreasonable Risk of Harm to Plaintiffs.9

Plaintiffs next claim that Defendants negligently conducted the Title IX 

investigation10 and plaintiffs' hearing. Plaintiffs allege that Defendants failed to conduct the 

 

9

 Defendants also reassert that they are entitled to immunity from plaintiffs' negligence claim 

under ORS 30.265(6)(c) and (f) based on plaintiffs' allegations that (i) the decisions to initiate a 

Title IX investigation and impose sanction on plaintiffs were discretionary and (ii) Defendants 

acted under the apparent authority of law. See Defendants' Motion to Dismiss Austin's Second 

Amended Complaint (Case No. 6:15-cv-02257-MC, 2/22/16, Dkt. 19, at *32-36), Defendants' 

Motion to Dismiss Artis and Dotson's Complaint (Case No. 6:16-cv-00647-MC, 5/02/16, 

Dkt. 12, at *37-40). ORS 30.265(6)(c) provides immunity to public entities and public 

employees for "[a]ny claim based upon the performance of or the failure to exercise or perform a 

discretionary function or duty." And ORS 30.265(6)(f) provides immunity from claims "arising 

out of an act done or omitted under the apparent authority of law." 

 Additionally, Defendants reassert that plaintiffs are precluded from challenging the outcome 

of their administrative hearing by the doctrine of issue preclusion and because plaintiffs did not 

appeal their suspensions in accordance with ORS 183.482 or ORS 183.484. Nelson v. Emerald 

People's Utility Dist., 318 Or 99, 103, 862 P2d 1293 (1993); see also Defendants' Motion to 

Dismiss Austin's Second Amended Complaint (Case No. 6:15-cv-02257-MC, 2/22/16, Dkt. 19, 

at *32-36), Defendants' Motion to Dismiss Artis and Dotson's Complaint (Case No. 6:16-cv00647-MC, 5/02/16, Dkt. 12, at *37-40). 

10 Plaintiffs did not comply with the Oregon Tort Claims Act (the "OTCA") with regard to their 

negligent-investigation claim, and so this claim should be dismissed on this additional basis. 

ORS 30.275 et seq. The OTCA requires that plaintiffs provide public entities with "actual 

notice" of the time, place, and circumstances giving rise to their claim. Id. Plaintiffs' Tort 

Claims Notices of October 8 and 9, 2014, did not address the time, place, and circumstances 

giving rise to their negligent-investigation claim, and therefore did not provide "actual notice" of 
 

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investigation and hearing "in a competent manner and in accordance with societal standards and 

norms" (Compl. ¶ 146) and found "that Plaintiffs committed a sexual assault * * * solely to 

appease protestors and internal, local, and national critics of the University." (Compl. ¶ 150.) 

Plaintiffs further assert that "the harm suffered by Plaintiffs" was a foreseeable consequence of 

Defendants' conduct (id.) and seek economic damages based on their alleged loss of future 

income.11

1. Plaintiffs Did Not Have a Special Relationship With Any of the 

Defendants and Therefore Have Not Alleged a Cognizable Negligence 

Claim. 

In Oregon, negligence claims for loss of future income without bodily injury 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) (A plaintiff "seek[ing] damages for purely 

economic losses * * * is required to allege some source of a duty outside the common law of 

negligence.") (internal quotation marks and citation omitted). A special relationship does not 

exist unless, at a minimum: 

"(1) One party relinquishes control over matters, usually financial, and entrusts 

them to the other party; (2) [t]he party with control is authorized to exercise 

independent judgment; (3) in order to further the other party's interests; and 

(4) [t]he relationship either is, or resembles, other relationships in which the law 

imposes a duty on parties to conduct themselves reasonably, so as to protect the 

other parties to the relationship." Bell v. PERB, 239 Or App 239, 249-50, 

247 P3d 319 (2010) (internal quotation marks and citations omitted). 

In addition, the court examines the nature of the parties' relationship with respect to the context 

giving rise to the dispute between them. See Conway v. Pacific University, 324 Or 231, 244, 924 

 

their claim. (Thornton Decl., Exhibit E.) (Compl. ¶ 89.) Because "actual notice" of the claim is 

a substantive condition precedent to recovery in tort, plaintiffs' negligent-investigation claim 

should be dismissed. See Orr v. City of Eugene, 151 Or App 541, 543, 950 P2d 397 (1997). 

11 Plaintiffs also claim to have suffered "property damage," but seek damages based purely on 

lost future income and from "suffer[ing] personal and professional harm," neither of which is 

recognized as property damage under Oregon law. (Compl. ¶ 152.) 
 

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P2d 818 (1996) ("Conway and the university each were pursuing their own interests at the time

that the dean made the misrepresentations [that gave rise to plaintiff's negligence claim]. 

Consequently, the parties were not in a special relationship that gave rise to a duty of care on the 

university's part to avoid making negligent misrepresentations to Conway.") (emphasis added) 

(footnote omitted). 

Plaintiffs assert that they had a special relationship with all Defendants (the 

University and the Individual Defendants) based on plaintiffs' status as scholarship athletes. 

Plaintiffs assert that because they were scholarship athletes, Defendants "exercised independent 

judgment on [plaintiffs'] behalf * * * to advance the individual interest[s] of [plaintiffs], by 

recruiting [them] and then managing virtually every aspect of their time."12 (Compl. ¶ 147.) 

Plaintiffs also assert that the University "exercised independent control over Plaintiffs * * * 

[through] Plaintiffs' scholarship[s], and the conditions imposed by the University on its athletes, 

including * * * the University's scheduling of and control over athletes' time and suspending 

athletes * * * for disciplinary reasons." (Compl. ¶ 149.) In addition, plaintiffs allege that they 

"were particularly vulnerable and [were] dependent upon the University and the individual 

Defendants." (Compl. ¶ 148 (internal punctuation and citation omitted).)13

These assertions, however, do not establish a special relationship between the 

parties—whether based on plaintiffs' status as student-athletes or simply as University students. 

 

12 Other allegations in the Complaint, however, demonstrate the implausibility of these 

allegations. For example, Defendants were not "managing" plaintiffs' time when plaintiffs 

decided to attend the March 8 party, nor did Defendants "control" plaintiffs' travels or actions 

that night. 

13 Plaintiffs do not allege facts to plausibly support that they are "particularly vulnerable" 

persons, as that term is defined by Oregon law. See House v. Hicks, 218 Or App 348, 365, 179 P 

3d 730 (2008) (holding that the plaintiff was not "particularly vulnerable" because he was neither 

disabled nor physically ill); see also ORS 124.100(g) (defining vulnerable person as "(A) An 

elderly person; (B) A financially incapable person; (C) An incapacitated person; or (D) A person 

with a disability who is susceptible to force, threat, duress, coercion, pursuant, or physical or 

emotional injury because of the persons physical or mental impairment"). 
 

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"[N]o precedent in Oregon or the Ninth Circuit recognize[s] a special relationship between 

college students or student athletes and the universities they attend." (Order at 22.) See also

Freeman v. Busch, 349 F3d 582, 587 (8th Cir 2003) (collecting cases and explaining that "since 

the late 1970s, the general rule is that no special relationship exists between a college and its own 

students because a college is not an insurer of the safety of its students") (original emphasis 

omitted; additional emphasis added); Guest v. Hansen, No. 06-cv-0500 (GLS/DRH), 2007 WL 

4561104, at *3-7 (NDNY Dec. 18, 2007), aff'd, 603 F3d 15 (2d Cir 2010) (finding that status as 

a student did not create a special relationship with the university); Orr v. Brigham Young Univ., 

960 F Supp 1522, 1526-28 (D Utah 1994) (finding no special relationship between a university 

and its student), aff'd without published opinion, 108 F3d 1388 (10th Cir 1997); Bradshaw v. 

Rawlings, 612 F 2d 135, 138-40 (3d Cir 1979) (because colleges do not assume "a role [of] loco 

parentis," no special "custodial duty" exists between a college and its students). Additionally, 

here, plaintiffs have not pleaded that they relinquished control over financial (or similar) matters 

to any of the Defendants; thus, plaintiffs' assertion of a special relationship fails at the first 

element. Nor does plaintiffs' relationship with the University resemble any special relationship 

previously recognized by our courts, thus also failing at to plausible establish a special 

relationship at the final element.14

But more importantly, whether plaintiffs could have established a special 

relationship between the parties when plaintiffs were participating in activities required of them 

as student athletes (which they could not), it had no bearing on the parties' relationship in the 

 

14 Plaintiffs' assertion of a special relationship with the Individual Defendants is even more 

precarious, essentially asking the court to recognize a special relationship between all 

scholarship athletes and every administrator at the universities they attend. Plaintiffs have not 

pleaded facts that support this proposition. Nor do the allegations of the Complaint plausibly 

suggest that plaintiffs authorized Holmes, Martin, Gottfredson, or Weintraub to exercise 

independent judgment in order to further plaintiffs' interests. For this reason, plaintiffs do not 

have a special relationship with the Individual Defendants, and plaintiffs' negligence claims 

against the Individual Defendants should be dismissed. 
 

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context of the Title IX investigation and plaintiffs' hearing. In this context—the relevant 

context—the parties' relationship "can be characterized as little more than an arm's-length 

relationship intent on securing divergent rather than joint interests." (Order at 23.) Specifically, 

plaintiffs' interest was proving that they had not violated the Student Conduct Code, whereas 

Defendants were tasked with adjudicating the allegations against plaintiffs. Additionally, the 

conduct procedures of the Student Conduct Code apply to all University students and are 

unrelated to plaintiffs' status as student athletes. Because plaintiffs cannot plausibly allege that 

they "relinquishe[d] control" to Defendants when they were each represented by counsel, or that 

Defendants had an obligation to act in furtherance of plaintiffs' interests during the investigation 

and hearing, plaintiffs cannot establish a special relationship with Defendants. Plaintiffs' 

negligence claims should therefore be dismissed. 

2. As a Matter of Law, Defendants' Alleged Conduct Did Not Create a 

Foreseeable and Unreasonable Risk of Harm to Plaintiffs. 

Plaintiffs' negligence claim also fails for the separate and additional reason that, 

as a matter of law, Defendants' alleged conduct did not create a foreseeable risk of harm to 

plaintiffs. To prove negligence when, as here, there is no special relationship between the 

parties, a plaintiff must establish five elements: 

"(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is 

to an interest of a kind that the law protects against negligent invasion, (3) that 

defendant's conduct was unreasonable in light of the risk, (4) that the conduct was 

a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons 

and plaintiff's injury was within the general type of potential incidents and 

injuries that made defendant's conduct negligent." Solberg v. Johnson, 306 Or 

484, 490-91, 760 P2d 867 (1988) (citing Fazzolari v. Portland School Dist. 

No. 1J, 303 Or 1, 734 P2d 1326 (1987)).15

 

15 Accordingly, plaintiffs allegations that the Title IX investigation and their hearing were not 

conducted "in a competent manner and in accordance with societal standards and norms" does 

not apply to any element of Oregon negligence law. 
 

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For a risk to be foreseeable, it must be "'one which could have been anticipated 

because there was a reasonable likelihood that it could happen.'" Chapman v. Mayfield, 358 Or 

196, 206, 361 P3d 566 (2015) (quoting Stewart v. Jefferson Plywood Co., 255 Or 603, 609, 

469 P2d 783 (1970)). "[T]he question is whether a reasonable person considering the potential 

harms that might result from his or her conduct would 'have reasonably expected the injury to 

occur.'" Id.

To establish liability, however, it is not enough for a defendant's conduct to create 

a foreseeable risk of harm. Instead, the defendant's conduct must "'unreasonably create[] a 

foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.'" Dauven v. 

George Fox Univ., No. CV. 09-305-PK, 2010 WL 6089077, at *22 (D Or Dec. 3, 2010) (quoting 

Fazzolari, 303 Or at 17). 

Plaintiffs fail to plead facts sufficient to show that the alleged conduct of any of 

the Defendants created a foreseeable risk that plaintiffs' administrative hearing would be 

negligently conducted. Moreover, the Complaint does not plausibly suggest that any risk of 

harm to plaintiffs was unreasonable given the circumstances. 

Plaintiffs' principal factual allegations concern the process they were afforded at 

their hearing. Specifically, plaintiffs assert that Defendants were negligent for allegedly not 

providing plaintiffs with due process. But plaintiffs, with the advice of counsel, voluntarily 

agreed to the procedures of their hearing. (Compl. ¶ 66; Thornton Decl., Exhibits C, D.) And 

they have not pleaded that Defendants withheld any of these procedures. Because plaintiffs 

voluntarily agreed to the procedures they received, they cannot now assert that these procedures 

created a foreseeable and unreasonable risk of harm, and plaintiffs' negligence claim should be 

dismissed. 

The allegations of the Complaint do not plausibly suggest that plaintiffs had a 

special relationship with any of the Defendants—especially for purposes of the Title IX 

investigation and plaintiffs' hearing. Further, as a matter of law, Defendants' conduct did not 
 

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create a foreseeable risk of harm to plaintiffs. Nor was it unreasonable for Defendants to 

conduct plaintiffs' hearing in accordance with the procedures to which the parties had agreed. 

For these reasons, plaintiffs' negligence claims should be dismissed.16

D. Plaintiffs' Breach-of-Contract Claim Should Be Dismissed Because the 

University Fulfilled All Its Contractual Obligations to Plaintiffs. 

Plaintiffs' final claim is that the University breached its contractual obligations by 

not renewing plaintiffs' scholarships for the 2014-2015 school year. Plaintiffs allege that they 

"had the objectively reasonable expectation, based upon the express terms of the contractual 

relationship governing the athletic scholarship, that the University would renew their 

scholarship[s]." (Compl. ¶ 159.) Specifically, plaintiffs claim that the University was required 

to consider renewing their scholarships as long as they remained in good standing with the 

University, maintained normal progress toward graduation, and complied with the NCAA's 

eligibility requirements. (Compl. ¶ 156.) Plaintiffs also assert that the express terms of their 

scholarships did not "state much less suggest that the University could decline to renew 

Plaintiffs' scholarship[s]" after they were suspended for sexual misconduct and further that it is 

customary for universities to renew "the scholarships of athletes recruited to play at [the] 

university." (Compl. ¶ 157-58.) 

Plaintiffs' breach-of-contract claim fails as a matter of law because "the 

University fulfilled its obligations" to plaintiffs. (Order at 27.) See Restatement (Second) of 

 

16 Additionally, although not necessary to resolve at this stage of litigation, plaintiffs have 

repeatedly asserted that they "will suffer * * * personal harm in the future, including loss of 

income" because they purportedly "no longer play at a Division I school." (Compl. ¶ 88.) But 

two of the plaintiffs currently play basketball at Division I schools—thus undermining the basis 

of plaintiffs' purported damages. See http://www.utepathletics.com/sports/mbaskbl/mtt/dominic_artis_977894.html (Dominic Artis); http://www.uhcougars.com/sports/mbaskbl/mtt/damyean_dotson_971425.html (Damyean Dotson). Moreover, only 1.1% of the 

NCAA’s "draft eligible" men's basketball players make it to the NBA. See

http://www.ncaa.org/about/resources/research/estimated-probability-competing-professionalathletics. 
 

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Contracts § 235 cmt a (1981) (a contractual duty "is discharged when it is fully performed"). 

Plaintiffs each received a scholarship, which by its own terms expired at the end of the 2013-

2014 school year. (Thornton Decl., Exhibit A.) Plaintiffs have not pleaded that the University 

terminated their scholarships or failed to provide them with any benefit due during the 2013-

2014 school year. In fact, there is no "dispute that Plaintiffs received the full durational benefits 

of their scholarship[s]." (Order at 27.) 

Further, the allegations of the Complaint demonstrate that plaintiffs had no 

guarantee that their scholarships would be renewed for the 2014-2015 school year. The express 

terms of plaintiffs' scholarships provided that the scholarship assistance would "be considered

for renewal." (Thornton Decl., Exhibit A (emphasis added).) This provision is not ambiguous, 

and it does not guarantee that plaintiffs' scholarships would be renewed for the 2014-2015 school 

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

provision is clear, the analysis ends."). The University therefore had no obligation to renew 

plaintiffs' scholarships. 

Moreover, plaintiffs' new allegation that their scholarships did not "state much 

less suggest that the University could decline to renew Plaintiffs' scholarship[s] in the 

circumstances presented" is not accurate. Plaintiffs' scholarships specifically contemplated that 

the University would not even be required to consider renewing the scholarships if plaintiffs 

were not "student[s] in good standing" or failed to meet other eligibility requirements. (Thornton 

Decl., Exhibit A.) In addition, their scholarship assistance could have been terminated 

immediately for "fail[ing] to adhere to University of Oregon * * * rules." Id. In June 2014, 

plaintiffs were suspended for engaging in sexual misconduct—a serious violation of University 

rules. (Compl. ¶ 69.) As a result, they were not eligible to return to the University for at least 

four years. At that point, based on the written terms of plaintiffs' scholarships, not only could the 
 

Page 32 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

in Support 

4826-8765-5740.4 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

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University have immediately terminated their 2013-2014 scholarships, but the University had no 

obligation to consider renewing plaintiffs' scholarships for the 2014-2015 school year.17

The Complaint fails to allege "an actual breach" of contract, that the University 

made a "promise regarding renewal," or that there was a "contractual basis for their alleged 

expectation of renewal." (Order at 28.) Plaintiffs' breach of contract claim should therefore be 

dismissed. 

IV. CONCLUSION 

The Complaint fails to state any "claim to relief that is plausible on its face." 

Iqbal, 556 US at 663 (internal quotation marks and citation omitted). Plaintiffs' Title IX and 

equal protection claims are again devoid of any factual allegations that plausibly suggest that the 

University, or any University official involved in the Title IX investigation or plaintiffs' hearing, 

discriminated against plaintiffs. Instead, plaintiffs' claims rely exclusively on conclusory 

allegations that they were suspended because of their sex or gender and speculation that they 

were suspended to appease critics of the University. Plaintiffs' negligence claim again fails to 

plausibly suggest that the parties had a special relationship, which precludes recovery of the 

purely economic damages that plaintiffs have asserted. And in any event, the allegations do not 

plausibly suggest that plaintiffs' claimed injury was foreseeable as a matter of law or that 

Defendants' alleged conduct was unreasonable, especially in light of plaintiffs' voluntary 

agreement to participate in an administrative conference. Finally, plaintiffs' breach-of-contract 

 

17 Because plaintiffs' scholarships unambiguously stated that they would be considered for 

renewal only if plaintiffs were in good standing with the University, plaintiffs' contrary 

allegations based on industry custom are immaterial. See North Unit Potato Co. v. Spada Dist., 

260 Or 468, 475, 490 P2d 995 (1971) ("evidence of a custom inconsistent with the terms of a 

written agreement is not admissible to contradict the terms of an unambiguous contract and * * * 

evidence of custom is also inadmissible to add to the terms of such a contract"). It is also, as a 

practical matter, absurd for plaintiffs to claim that they were entitled to scholarships for the 

2014-2015 school year when they were suspended from the University, and therefore did not 

attend the University, for the 2014-2015 school year. 
 

Page 33 - Defendants' Motion to Dismiss Third Amended Complaint and Memorandum 

in Support 

4826-8765-5740.4 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

claim also again fails to state a claim because the Complaint does not allege an actual breach, 

whether material or de minimis, of the agreements contained in plaintiffs' scholarships. 

The Complaint does not remedy the shortcomings of plaintiffs' Second Amended 

Complaint and demonstrates that further amendment would be futile. Defendants respectfully 

ask the court to dismiss each of plaintiffs' remaining claims with prejudice. 

DATED this 2nd day of December, 2016. 

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 

Telephone: 503.224.5858 

Fax: 503.224.0155 

 Attorneys for Defendants
 

Page 1 - Certificate of Service 

4826-8765-5740.4 

MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204

CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing defendants' motion to dismiss third 

amended complaint and memorandum in support on: 

Ms. Marianne Dugan 

259 East Fifth Avenue, Suite 200-D 

Eugene, Oregon 97401 

Telephone: 541.338.7072 

E-mail: mdugan@mdugan.com 

Attorney for Plaintiff Brandon Austin 

Mr. Alan C. Milstein 

Sherman Silverstein Kohl Rose & Podolsky 

308 Harper Drive, Suite 200 

Moorestown, New Jersey 08057 

Telephone: 856.662.0700 

E-mail: amilstein@shermansilverstein.com 

Attorney for Plaintiff Brandon Austin

Mr. Brian Michaels 

259 East Fifth Avenue, Suite 300-D 

Eugene, Oregon 97401 

Telephone: 541.687.0578 

E-mail: brian@brianmichaelslaw.com 

Attorney for Plaintiffs Dominic Artis and 

Damyean Dotson 

Mr. Alex Spiro 

Brafman & Associates 

767 Third Avenue 

New York, New York 10017 

Telephone: 212.750.7800 

E-mail: aspiro@braflaw.com 

Attorney for Plaintiffs Dominic Artis and 

Damyean Dotson

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission. 

 E-mail. (Courtesy copy.) 

 Facsimile communication device.

 First-class mail, postage prepaid.

 Hand-delivery.

 Overnight courier, delivery prepaid.

DATED this 2nd day of December, 2016. 

s/Michelle Barton Smigel 

Michelle Barton Smigel, OSB No. 045530 

Of Attorneys for Defendants