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Duke Lacrosse Lawsuits to Move Forward, Judge Rules; Discovery ahead !!
Topic Started: Mar 31 2011, 04:21 PM (12,245 Views)
abb
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Call me a cynic, but it's just too convenient that these rulings come out just days after the federal five-year statute of limitations runs out.
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Quasimodo

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(FERPA)
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In light of these provisions, and having considered the allegations set out in the Amended Complaint, the Court concludes that the facts as alleged would not support a claim for negligent misrepresentation involving pecuniary loss under the Restatement (Second) of Torts § 552 provisions because the alleged misrepresentations by Drummond and Hendricks in the letters to Plaintiffs and their counsel do not arise out of a business transaction or involve information provided for the purpose of guidance in any business or commercial dealing.

On this point,Plaintiffs contend that the “business transaction” requirement is met in this case because“Plaintiffs’ dealings with Duke were founded on a very traditional business transaction: Plaintiffs paid tuition and fees in exchange for the education and other services furnished by the University.” (Pls.’ Resp. Brief, Doc. #96, at 15).

However, even if this “payment of tuition inexchange for education and services” could be viewed in some instances as a “businesstransaction,” it does not follow that every representation made by a university employee to astudent in any context necessarily arises out of that business transaction or would support aclaim for “negligent misrepresentation.”

In the present case, the claims asserted in Count 9 are based on the alleged misrepresentations contained in the letters sent by Drummond and Hendricks to Plaintiffs regarding the release of the key card information pursuant to a subpoena, and these alleged misrepresentations simply do not relate to a commercial or business transaction and do not involve the provision of information for the guidance of others in their business dealings.Plaintiffs have pointed to no North Carolina case that would recognize the existence of a claim for negligent misrepresentation in these circumstances.


IOW, a university is not liable for lying to students about giving away their personal information?

Quote:
 

In the present case, Plaintiffs have alleged an “evil purpose” or “ulterior motive” with espect to the first element of the abuse of process claim, based on the allegations that Duke employees collaborated with District Attorney Nifong to induce issuance of the subpoena forthe key card reports in order to cover up the prior disclosure of the key card reports to DurhamInvestigators.

However, Plaintiffs have not alleged any facts to establish the malicious misuse or misapplication of the subpoena after its issuance. Cf. In re Burzynski, 989 F.2d 733, 739 (5thCir. 1993) (concluding that the plaintiff had failed to allege an illegal or improper use of processin a claim for abuse of process based on subpoenas allegedly issued for improper purposes).

Indeed, in the present case, the subpoena itself was quashed, and no use was made of the subpoena.
Therefore, even if there was an improper motivation as alleged in the Amended Complaint, there is no allegation of improper use of process sufficient to state a claim for abuse of process under North Carolina law.

Therefore, the Motions to Dismiss as to Count 10 willbe granted, and the claim asserted in Count 10 will be dismissed
Edited by Quasimodo, Apr 1 2011, 10:36 AM.
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~J~ is in Wonderland
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~J~ is in Wonderland
This is on the front blog page, I thought those of you who are reading just this thread- might get your chuckle for today.

LieStoppers


Friday, April 01, 2011
Happy April’s Fools Day to the biggest Fools we know

Happy April’s Fools Day to the biggest Fools we know.
Who hitched their wagons to a Frame...and recklessly yelled “GO!”

For all his revered credentials, big-time job and Ivy glow...
Fool One...is Richard Brodhead...the biggest Craven one could know.
Like some comic Fool , ridiculous, hiding behind his desk
Only Shakespeare might do justice to such a FAILURE of his “test”...
A comic figure popping up at podiums, foresooth...
Giving Faux Apologies while he refused to read the Truth.
A pompous little weasel who feared only FOR HIMSELF
And decided... best for HIM and Duke... to put these kids through HELL.

How fitting that this ruling should come right before the day
When Fools are celebrated...Brodhead...it’s YOUR day!

Happy April Fools Day, Nurse Levicy ...our worthy Number Two.
All those earned certificates” gonna be no use to you.
So besotted with your power and your Womyn studies faith
You became the kind of zealot, with a mission just to hate.
A disgrace to your profession, here’s a fact you can’t escape
Now we know that NURSES, and WOMEN...certainly will... “lie about a rape.”

How fitting that this ruling should come right before the day
When Fools are celebrated...Nurse Tara...it’s YOUR day!


Happy April Fool’s Day, Mikey Nifong..it’s your day.
Qualifying as ex-human...not just as ex-D.A.
Of all the Fools who fueled the Frame, one thing we know is true.
No one seemed to enjoy the suffering...half as much as you.
How you strutted, and you snorted, and proclaimed yourself, so smart.
When all the time, you knew your file was as empty as your heart.
Remember your performance...the theatrical faux “choke?”
Well, feel free again to choke yourself...when YOU go under oath.


How fitting that this ruling should come right before the day
When Fools are celebrated...Nifong..the Patron Saint!!

Happy April Fools Day..to all who made it plain
That they would rush to judgement, condemn and sign their name...
And without evidence or hesitance...but based just on racial lines
That they were just as BIASED as those red neck sheriffs back in time.

Happy April Fools Day..to all the 88 Buffoons
Off the ivy Reservation...Bias is ugly in ALL hues.

Happy April Fools Day, Hoaxers, and many more to come.
Some of you were too ambitious, some of you, just dumb.
Some of you were racist, we need no law to know your skew
Some of you just followed orders...like good Nazis always do.

How fitting that this ruling should come right before the day
When Fools are celebrated...Hoax Defendants...it’s your DAY!!!!

Joan Foster <<<<<<< :bd: :bd: :bd: :bd:

:rose: :flow:

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~J~ is in Wonderland
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~J~ is in Wonderland
Locomotive Breath
Apr 1 2011, 10:25 AM
A Christmas Song for Mike Nifong

DA's roasting on a hellish fire
Flames are licking at his toes
Mournful chants are sung by a choir
Of tortured souls sent down below

Everybody knows, a false charge from a lyin' ho'
Will surely send you straight to hell
Wicked fiends, with their eyes all aglow
Will make it hard to sleep too well

They know that Nifong's gotta pay
He's loaded lots of guilt and bad deeds on his way
And every laxer mom is gonna spy
To see if Michael really knows how to cry

So I'm offering this simple gaze
From now to time beyond our view
Although it's been said many times, many ways
Immolation for you.

IM-O-LA-TION for you
====
After a fashion, Merry Christmas!
and another one from Loco. hee hee


:hd: :hd:


:rose:
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Rusty Dog
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Beautiful, beautiful day.

I discovered this news very late last night, and have enjoyed reading the continued wisdom and dedication of the Hooligans.

I'm so happy for the families. God bless them all.

May the discovery begin! Soon!
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Joan Foster

~J~ is in Wonderland
Apr 1 2011, 10:38 AM
Locomotive Breath
Apr 1 2011, 10:25 AM
A Christmas Song for Mike Nifong

DA's roasting on a hellish fire
Flames are licking at his toes
Mournful chants are sung by a choir
Of tortured souls sent down below

Everybody knows, a false charge from a lyin' ho'
Will surely send you straight to hell
Wicked fiends, with their eyes all aglow
Will make it hard to sleep too well

They know that Nifong's gotta pay
He's loaded lots of guilt and bad deeds on his way
And every laxer mom is gonna spy
To see if Michael really knows how to cry

So I'm offering this simple gaze
From now to time beyond our view
Although it's been said many times, many ways
Immolation for you.

IM-O-LA-TION for you
====
After a fashion, Merry Christmas!
and another one from Loco. hee hee


:hd: :hd:


:rose:
Loco, I LOVE it! That is great!

:cher: :cher: :cher:

I'm supposed to be writing today for something else but my Muse is only interested in Duke Lacrosse.

Ahh well...can't be helped. :bunn:
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~J~ is in Wonderland
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~J~ is in Wonderland
anyone have a guess about how long it could be before discovery might start?
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Joan Foster

~J~ is in Wonderland
Apr 1 2011, 10:42 AM
anyone have a guess about how long it could be before discovery might start?
And will it begin prior to Crystal's next arrest?
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Quasimodo

CARRINGTON

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However, administrators and other advisors should be free to communicate and advise studentswithout creating potential tort liability, even if that advice turns out to be misguided or inadequate. Thus, students should not be entitled to recover on a negligence claim against anadministrator or university based on the giving of poor advice.

This is particularly true where,as here, the alleged injury resulting from the “voluntary undertaking” of the Defendants is economic injury, rather than physical injury. Therefore, the Court concludes that with respect to the present claim in Count 12 for negligence against Duke and Duke employees Wasiolek,Trask, and Brodhead for allegedly negligent advice, North Carolina would not recognize a duty of an advisor or administrator to a student that would support a claim for negligence, particularly where no physical harm results. Therefore, the Motion to Dismiss as to Count 12 will begranted, and the claims asserted in Count 12 will be dismissed


(Go ahead and tell them not to get attorneys, and do what Covington advises--talk to the police.)

I think future university administrators will take great comfort from the lengths they can go to without incurring
any possible liability.
Edited by Quasimodo, Apr 1 2011, 11:05 AM.
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Quasimodo

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Based on this authority, the Court concludes that Duke was not in a “special relationship’” with the lacrosse team members based on their status as students, because under North Carolina law, the student-university relationship “does not constitute a special relationship giving rise to a duty of care.” In addition, although Duke was potentially in a “special relationship” with lacrosse team members related to their participation in lacrosse team events,that “special relationship” would not extend outside of the lacrosse team context. Thus, any “special relationship” that may have existed in the lacrosse team context did not transform Duke into an “insurer of the safety” of team members in all other facets of student life.


Right. Let them be threatened on campus, and that's just fine, so long as it's not at a lacrosse game.

Quote:
 

In this case,the allegations asserted in Count 13 are based on Duke’s alleged failure to take reasonable steps to protect team members from “threats to their liberty, personal safety, and reputation due to false allegations of rape, harassment, and a rogue criminal investigation.” (Am. Compl. ¶ 569).

These allegations are outside of any University-related lacrosse team function
and do not relate to any participation in University-sponsored lacrosse team events. As such, the allegations are outside the scope of any “special relationship” that may have existed between team members and Duke based on their status as lacrosse team members. Therefore, the Court concludes that the claims alleged in Count 13 are outside of any “special relationship” that may have existed
and Duke did not have a “special relationship” with lacrosse team members as students generally that imposed upon Duke a duty to protect them from “threats to their liberty, personal safety,and reputation due to false allegations of rape, harassment, and a rogue criminal investigation.”

Edited by Quasimodo, Apr 1 2011, 11:15 AM.
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Quasimodo

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...expect a presumption of innocence throughout the disciplinary process unless found responsiblethrough a fair and impartial hearing, and will be treated with respect throughout the process.’”(Am. Compl. ¶ 593). However, this provision does not set out any sufficiently definite termsor obligations to be enforceable, nor does it represent a mutual agreement between Duke and the students or any intent by Duke to be bound thereby.

Moreover, even if this provision couldbe viewed as creating a binding obligation to follow given procedures during the disciplinary process, that obligation would not apply in the present case because Plaintiffs do not allege thatthe Plaintiff Players in this case were ever subject to the student disciplinary process. Thus,Plaintiffs do not set out any provision of the Bulletin or any other policy that could be viewed as creating any mutual agreement between Duke and the students or any intent by Duke to bebound, or any provision that would impose any specific obligation on Duke.

Thus, Plaintiffs have failed to allege the existence of any such specific, enforceable promise supported by mutual assent and an intent to be bound. Therefore, with respect to Plaintiffs’ contention that the student Bulletin and other student policies created an express or implied contract, the Court concludes that the facts as alleged in the Amended Complaint do not sufficiently allege theexistence of a valid contract that would support the claim in Count 15 for breach of contract.


What happens if a student tells the school that he is not bound by what is in the student handbook?
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Quasimodo

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With respect to the claim alleged in Count 18, Plaintiffs assert this claim against PresidentBrodhead, Vice President Trask, Provost Lange, Vice President Burness, and Vice President Moneta. However, Plaintiffs do not allege any factual basis to assert a plausible claim that any of these named Defendants physically invaded Plaintiffs’ residences or directly engaged in any conduct that would constitute an intrusion upon seclusion under state law.

Instead, Plaintiffs base this claim on the protests that occurred at Plaintiffs’ residences and on campus, the media coverage, and the harassment by other students and faculty members on and off campus.However, Plaintiffs do not state a plausible claim that any of the named Defendants themselves participated in the protests or other alleged conduct, ]or otherwise physically invaded upon Plaintiffs’ privacy or seclusion.

Plaintiffs generally contend that other students and faculty members engaged in this conduct, but there is not a sufficient basis to hold the named Defendants responsible for an intrusion upon seclusion allegedly perpetrated by other students,faculty members, or members of the media.


Henry II didn't personally go to the cathedral and kill Becket, a mob boss doesn't carry out a hit himself; and Hitler and Himmler didn't personally run Auschwitz, either; so I guess they had no responsibility?
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Baldo
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I believe Levicy, Arico, Manly, Dzau, et al will have to be deposed over what happened at DUMC. Did they obstruct Justice?

This could get very interesting.
Edited by Baldo, Apr 1 2011, 11:36 AM.
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Quasimodo



CARRINGTON:

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Finally, Plaintiffs contend that various Duke faculty members, who are not named as defendants in this case, intruded upon Plaintiffs’ seclusion, and that the faculty members were operating in the scope of their employment, so that Duke is therefore responsible for their tortious conduct. However, it is unclear which specific faculty members Plaintiffs contend intruded upon their seclusion. To the extent that Plaintiffs contend that faculty members engaged in public protests, such participation in a public protest would not constitute intrusionupon seclusion under state law,

nor is there a sufficient basis alleged that would support the contention that faculty members engaging in off-campus protests were operating in the scope of their employment with Duke. To the extent that the claim is based on alleged confrontations between faculty members and team members during class or on campus, none of those allegations would constitute intrusion upon seclusion under state law.


Go ahead and harass your students in class...the university has no liability ...
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Quasimodo

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Thus, no reasonable expectation of privacy exists in public comings and goings or other similar information that can be visually observed from a public place, nor is there a reasonable expectation of privacy in information submitted to a third party, even if the “third party” is a telephone company’s automated system.


In the present case, Plaintiffs allege a Fourth Amendment violation based on the disclosure of their “key card” reports. However, based on the facts alleged in the Amended Complaint, those reports document only the team members’ public comings and goings and other similar, public uses of their Duke Key Card. Therefore, the team members would not have a reasonable expectation of privacy in their key card reports, since the reports simply contain information that would have been publicly viewable


I find this reasoning "tortuous"...

The same might apply to records of my purchases with a credit card--since all purchases were publicly made
and could be observed.

Still, aren't those my private records? Have I thereby given consent to their publication? If the credit
card company discloses such records, isn't that an invasion of my privacy even though the purchases
were made in public?
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