IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CIVIL ACTION NUMBER -- Plaintiff, Notice of Removal of Durham County Superior Court Case No 16 CVS 3584 DUKE UNIVERSITY, Defendant PLEASE TAKE NOTICE that Defendant Duke University pursuant to 28 1331, 1441, and 1446, respectfully submits this Notice of Removal to remove to the United States District Court for the Middle District of North Carolina an action initiated against it in the Superior Court for Durham County, North Carolina Removal of this action is based on the following 1 On 1 August 2016, Plaintiff--filed her initial complaint against Duke University in the Superior Court for Durham County, North Carolina, No 16 CVS 3584 (the "State Court Action") A true and complete copy ofthe court file from the State Court Action is attached hereto as Exhibit 1, and is incorporated herein by reference Case 1:16-cv-01038 Document 1 Filed 08/09/16 Paue 1 of6 2. This Notice of Removal is timely because it is filed within thirty days of filing and service of the Complaint upon Duke. See 28 U.S.C. § 1446(b). 3. The Complaint in the State Court Action lists two causes of action: (1) “Violations of Title IX (20 U.S.C. § 1681, et seq.)”; and (2) “Interference with Civil Rights (N.C. Gen. Stat. § 99D-1, et seq.).” Compl. ¶¶ 31-41 (Ex. 1). 4. Plaintiff’s claim for “Violations of Title IX” is expressly stated as a federal claim, arising under the laws of the United States. See id. ¶¶ 31-35. As required by Title IX, Plaintiff also alleged that Duke is an educational institution that is a recipient of federal financial assistance. Id. ¶ 3. Finally, in her Prayer for Relief, Plaintiff seeks “[a] declaration that Duke University violated Plaintiff’s federally protected rights.” Id. ¶ 43(a). 5. This Court has original subject matter jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Therefore, Duke removes this case based on the presence of a federal question, pursuant to section 1331. 6. Since Plaintiff’s claim for “Violations of Title IX” arises under federal law, Plaintiff’s claim in the State Court Action may be removed pursuant to 28 U.S.C. § 1441. 2 Case 1:16-cv-01038 Document 1 Filed 08/09/16 Page 2 of 6 7. Plaintiff also pleads a state law claim for “Interference with Civil Rights.” Compl. ¶¶ 36-41. This claim is based on the same factual allegations that underlie her federal claim. See id. 8. Because the Court has original jurisdiction over Plaintiff’s federal claim, the Court has supplemental jurisdiction over “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Federal and state law claims that “derive from a common nucleus of operative fact” form a single constitutional case for the purpose of subject matter jurisdiction. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 165 (1997) (internal quotation omitted). 9. Because Plaintiff’s two claims derive from a common nucleus of operative fact, the Court has supplemental jurisdiction over Plaintiff’s claim for “Interference with Civil Rights” that arises under North Carolina state law. See id. 10. The Middle District of North Carolina is the federal district embracing Durham County, North Carolina, where the suit was originally filed. See 28 U.S.C. § 113(b). Venue, therefore, is proper in this District pursuant to 28 U.S.C. § 1441(a). 11. Duke is the only Defendant in this action. Although the caption in the Complaint refers to “Duke University, et al.,” Plaintiff did not plead claims against 3 Case 1:16-cv-01038 Document 1 Filed 08/09/16 Page 3 of 6 any other person or entity, or cause a summons to be issued against any other defendant. See generally Ex. 1. Consent of other defendants is thus not at issue in this case. 12. Pursuant to 28 U.S.C. § 1446(d), the undersigned counsel certifies that a copy of this Notice of Removal will be served on Plaintiff and filed promptly with the Clerk of the Superior Court for Durham County. 13. By filing this Notice of Removal, Duke does not waive any defenses that may be available to it and expressly reserves all such defenses, objections, and motions. WHEREFORE, Defendant Duke University respectfully requests that the above-styled action currently pending against Duke University in the Superior Court for Durham County, North Carolina, be removed therefrom to this Court, and that this Court assume full jurisdiction over the causes herein as provided by law. This the 9th day of August, 2016. Respectfully submitted, /s/ Dixie T. Wells Dixie T. Wells N.C. State Bar No. 26816 Christopher W. Jackson N.C. State Bar No. 42939 ELLIS & WINTERS LLP 300 N. Greene, Suite 800 4 Case 1:16-cv-01038 Document 1 Filed 08/09/16 Page 4 of 6 Greensboro, NC 27401 Tel. (336) 217-4193 Fax (336) 217-4198 dixie.wells@elliswinters.com chris.jackson@elliswinters.com Thomas H. Segars N.C. State Bar No. 29433 ELLIS & WINTERS LLP P.O. Box 33550 Raleigh, NC 27636 Tel. (919) 865-7000 Fax (919) 865-7010 tom.segars@elliswinters.com Attorneys for Defendant Duke University 5 Case 1:16-cv-01038 Document 1 Filed 08/09/16 Page 5 of 6 CERTIFICATE OF SERVICE The undersigned hereby certifies that on August 9, 2016 the foregoing Notice of Removal was served on counsel for Plaintiff by depositing a copy thereof in the United States mail, postage prepaid, first class, addressed as follows: Robert C. Ekstrand Ekstrand & Ekstrand LLP 110 Swift Avenue, Second Floor Durham, North Carolina 27705 Attorney for Plaintiff This the 9th day of August, 2016. /s/ Dixie T. Wells Dixie T. Wells N.C. State Bar No. 26816 ELLIS & WINTERS LLP 300 N. Greene, Suite 800 Greensboro, NC 27401 Tel. (336) 217-4193 Fax (336) 217-4198 dixie.wells@elliswinters.com Case 1:16-cv-01038 Document 1 Filed 08/09/16 Page 6 of 6 EXHIBIT 1 Case Document 1-1 Filed 08/09/16 Pace 1 of 18 NORTH CAROLINA GENERAL COURT OF DURHAM COUNTY SUPERIOR COURT DIVISION \Lo 363% -- Plaintfl DUKE ET AL, Dg'mdants. COMPLAINT JURY TRIAL DEMANDED Plaintiff, upon information and belief, alleges and says: 1' Plaintiff--is a citizen and resident of California. 2. Defcndant, Duke University, was formed under the laws of North Carolina. Its principal office and place of business is in Durham, North Caro- lina, and it Iegululy conducts business there. 3, Duke University is an "educational institution" that operates "educate tion program[s] . . . receiving Federal financial as those phrases are used in 20 U.S.C. 1681. 4. This Court has personal iurisdicdon over Duke University under NC. Gen. Stat. 1-75.4 because Duke University is a domestic eorporau'on; it is engaged in substandal acu'vity within this State; and Lhis is an action claiming injury arising out ofan act or omission within this State by Duke University. 5. This Court has subject matter jurisdiction over this action. Plaintiffs claims arise under Title IX of the Education Amendments of 1972, 20 use. 1681, :fflq., and the laws ofthe state ofNorth Carolina. 6, Venue is propel in Durham County under G.S. ?1~82 because De- fendant regularly conducts business there. Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Pace 2 of 18 7. The Superior Coutt is the proper division of the General Court ofjuss tice to adjudicate this action because the amount in controversy exceeds $25,000 exclusive of interest and costs. 8. Plaintiff was sub'ected to a drugsfacilitated rape by fellow students, --tuu_wtut sit the we ottoutu as thou tututt it out uuwottw hi wit-u-- 9. -reported the rape and sexual assault to proper University offi~ cials and to the Duke Police Department 10. Around the same time, other students made similar reports to Univers sity officials tat--engaged in sitnilat sexual misconduct with other, similarly isolated and incapacitated women. ll.Within weelts a student teidtted to Assistant Dean Christine that he personally witnessed and an other student employ the same #1011141 upwind! that was used in the drug facilir tated rape of Plaintiff with a female student who was visiting from another university. According to the student's report, like Plaintiff at the time of her tuoouhtet with -- the young woman was eleatiy impaired, isolated, and unfamiliar with the dorm and those who lived thete. took the young woman into his room, and soon thereafter sounds of sexual aotivity could be heard. Roughly 30 to 45 minutes later, -- appeared on the hall, and walked into _room without knocking. Soon after, the witness heard the distinct sounds of sexual activity inside the room, and all three men remained inside the mom with the young woman tot another 30 to 45 minutes. 12. Dean Pesetslu advised the reporting student that the Office of Student Conduct would open a file based on his tepom close it immediately, and that the Office of Student Conduct would notify him if it received any other report 13.Although -tcpottcd asexual assault committed by the same pcos ple employing the same medal ilpemna'r' within weeks of that student's report, Case 1.16scvs01038 Document Flled 08/09/16 Pane 3 of 18 neither Duke Police nm OSC contacted that student or disclosed his report to Ariana. 14. surularly, University officials received another report that-- --cngaged in sexual misconduct, pursuant to a similar modus ope ezandi, with another young woman under similar circumstances that were characterized by Duke's investigating officer as a "gang rape." Like the other report, the details of that report were not disclosed tn Plaintiff. 15.Tu the allegadons of sexual misconduct the University rc-- tained Celia lrvine. 16. Ms, Irvine is a with no experience in conducting criminal investigations, and was never licensed to conduct invesu'gatjons in North Car-- olina. 17. Ms. Irvine published an report of her "investigation" that concealed the evidence of drug-facilitated sexual assaults committed by the same stu-- dents who assaulted Plaintiff according to the same mam cpmd'; concealed the evidence that Plaintiff was subjected to a dmgvinduced sexual assault; and characterized Plaintist drug-induced conduct as consent. 18. Upon infomation and belief, the purpose otMs. Irvine's report was to fabricate a basis for the Univetsity to not suspend, expel, or remove -from the University; and not to undertake any other course of conduct that the University was required to pursue in ordcr to remedy the hostile cdue cational environment created by Leachman. 19.Af[e( _lied to police about the existence of a video recording of a portion of the sexual assault, the police obtained a copy otthe video from --phone>> 20._then admitted that he secretly videotaped a portion of the sexual assault ofPlainLiff. ZliThc Duke Police investigator advised University officials that the cone duct--admitted was a felony under North Carolina law. Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Pace 4 of 18 22. Duke University routinely evpels and suspends students for less egree gious violations of its sexual misconduct policy 23. On july 12, 2013, the University placed--on probadon for his violation ofthe University's sexual misconduct policy, That sanction was con>> fidcnnal, and not reportahle outside ofthe University. 24.That sanction was the only response to Plaintiffs and Ollie er students' reports and evidence of_ sexual mlsconducL 25.Plaintiff then complained to Duke University's office of Institutional Equity (01E), asserting that Title IX required the University do much more than placing one of her nssailants on probation, and that, if additional measures were not taken by OIE, the University would he in violation of Title IX. 26.0n September 30, 2013, om issued a decision on behalf of Duke University concluding that among other things; (1) placing on pro batinn was sufficient to remedy the hostile edueadonal environment that Plaintiff suffered as a result uf_sexual misconduct; (2) that the University's response to the sexual assault of Plaintiff and --seetet recording of it were sufficient to meet its obligations under Title and (3) that the University would do nothing more to address the reports and evie deuce ofthc sexual misconduct of-- 27.At the time the em rendered its decision ratifying the University's re sponse to the reports and evidence tit--sexual misconduct involv ing Plaintiff and other female students at Duke,-- zs. Throughout the events deserihed herein, the individuals involved in de terniining the University's response to the reports and evidence of-- scxual misconduet were all subordinates of Case 1.16rcvr01038 Document Filed 08/09/16 Pane 5 of 18 29.Tlie foregoing conduct of the University officials, employees, and agents was done in the course of and in furthexancc of their employment or agency with Duke University. As such, the foregoing conduct is imputed to Duke University pursuant to the docu'ine of "Waders! superior. 30,As a result er the foregoing conduct, Plaintiff has compmsable harms, including but not limited to economic losses, lost earning capacity, emotional harm, reputau'onal harm, and other damages to be proven at trial. 1. VIOLATIONS OF TITLE IX (20 31. All other allegations in tlus complaint are incorporath by reference as though fully set out here. 32.Thc tape that Plaintiff suffered constituted sexual hare assment that was so severe and pervasive that it deprived Plaintiff of educa- u'onal opportunities or benefits. a. Officials and employed authorized to respond on behalf of De-- fendant received actual notice that: b. Plaintiff was subjected to a drugrfaciljtated rape by c. Lint-admitted to secretly video tecetding a portion of die sexual assault of Plaintiff; d. that within weeks of the sexual assault of Plaintiff, a visiting student had been subjected to a drugrfacilitatcd tape by c. that the conducted the tape of the visiting student according to the same main apemndx' as shat employed in the rape of Plaintiff; and f. Lhal there was at least one report what one Duke Police officer semen is gang involving -- Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Paae 6 of 18 33.Defendant?s response to the foregoing reports of sexual harassment was clearly unreasonable, evinced the institution?s deliberate indifference to severe and pervasive sexual harassment suffered by Plaintiff, and otherwise violated Title IX. 34.As a result of Defendant?s deliberate indifference and clearly unreason- able response to the severe and pervasive sexual harassment Plaintiff suffered, Plaintiff was excluded from participation in, denied the benefits of, and was subjected to discrimination in Defendant?s educational programs and activi? ties. For example, a. Plaintiff was unable to participate meaningfully in Defendant?s educational and extracurricular prOgrams and activities; b. Plaintiff suffered a marked decline in her ability to learn and achieve academically; c. Plaintiff ultimately could not participate in Defendants? educa? tional programs and activities at all, and was forced to transfer to an? other educational institution in order to avoid the hostile educational environment at Duke University. 35.As a direct and foreseeable result of the foregoing conduct, Plaintiff suffered and continues to suffer compensable harms, including but not limited to economic losses, lost earnings, lost earning capacity, lost tuition and ex- penses, emotional harm, reputational harm, and other damages to be proven at trial. II. INTERFERENCE WITH CIVIL RIGHTS (N.C. Gen. Stat. 32? reg.) 36.All other allegations in this Complaint are incorporated by reference as though fully set out here. 37.As alleged above, two or more persons, motivated by gender, con? spired to interfere with Plaintiff?s exercise or enjoyment of a right secured by the Constitution and laws of the United States or North Carolina, or of a right Mfg,? Case Document 1-1 Filed 08/09/16 Pane 7 of 18 secured by a law of the United States or North Carolina that enforces, inter? prets, or impacts on a constitutional right. 38. One or more of those persons engaged in the foregoing conspiracy used force, repeated harassment, and physical harm to commit an act in fur- therance of the object of the conspiracy. 39. At least one of the foregoing acts in furtherance of the conspiracy con? stituted an attempt to interfere with Plaintist exercise or enjoyment of a right secured by a law of the United States. 40.As a direct and foreseeable result, Plaintiff suffered and continues to suffer compensable harms, including but not limited to economic losses, lost earnings, lost earning capacity, lost tuition and expenses, emotional harm, rep~ utational harm, and other damages to be proven at trial. 41 . Plaintiff is therefore entitled to an award of compensatory and punitive damages pursuant to N.C. Gen. Stat. at reg. JURY TRIAL DEMAND 42. Plaintiff respectfully demands a trial on all issues so triable in this action. PRAYER FOR RELIEF 43. Therefore, Plaintiff respectfully prays that the Court enter a Judgment that includes: a. A declaration that Duke University violated Plaintiff?s federally protected rights; - b. An award of compensatory damages; c. An award of punitive damages as allowed by law; d. Prejudgment and post?judgment interest on the award of dam- ages; Case Document 1-1 Filed 08/09/16 Paue 8 of 18 e. An award to Plaintiff of the costs of this action, including attor? neys? fees allowed by law; and f. All other and further relief that the Court deems just and prop? er. Respectfully submitted on this the day of August, 2016. Robert C. Ekstrand N.C. Bar No. 26673 Ekstrand Ekstrand LLP 110 Swift Avenue, Second Floor Durham, North Carolina 27705 Tel: (919) 416?4590 Fax: (919) 416?4591 Counsel for Plaintiff Case Document 1-1 Filed 08/09/16 Paue 9 of 18 NORTH CAROLINA GENERA COURT OF DURHAM COUNTY SUPERIOR COURT DIVISION Plainxgz v. DUKE UNIVERSITY, ET AL, CERTIFICATE OF SERVICE I certify that, on 1 August 2016, foregoing Complaint was on all patties as this action by defivuing it :0 (he office ofthe registered agent and/ox counsel of record for Defendant via US Mail. Robs: C. Eksttand I Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Pane 10 of 18 lLfiD NORTH CAROLINA :5 JUL 23 pH COURT OF JUSTICE DURHAM COUNTY SUPERIOR COURT DIVISION -- siUle'sll euquY/AL ii 0 U. Plaintiff 16-CV5--03584 DUKE UNIVERSITY Defendant AFFIDAVIT OF SERVICE OF THE SUMNIONS AND APPLICATION AND ORDER EXTENDING TIME TO FILE COMPLIANT UPON DUKE UNIVERSITY Louis: Clark pusomlly appeared laelnre me and, being duly swam, stated as follows: 1' I am aver 18 years old, am under no disability, and I am nrlaerwise competent in make this affidavit, whirl: is laased on my own pusoml knawledge 2. I am employed by er Eksuand LLP, Lhe law firm represeniing the Plainde in the abovercapdoned aeu'nn. 3. On Thursday, July 14, 2016, a package containing a copy of die Applicaan and Order Extending Time to File Complainr and civil Summons (0 be served with Order Exiending Time to File Complainr issued {0 Duke University was deposiied wirli a dcsignated delivery service auilinrized under 6.5. lA-l, Rul: 4, fox delivery delivery requesred, addressed (a Duke Universiqu xcgismred agenr as follows: Duke universiey e/o Pamela chud 310 Blackwell sireer, 4m Flnor Durham, NC 27701 4. I received notic: iliai, on Monday, July 18,2016, rlie package conraining a enpy of ilae Applicau'nn and Order Extending Tim: File Complainr and Civil Summons [0 I): served with Order Time in File Complaini issued to Duke University ms in fact as evidenced by [he attached delivery annexed in this Affid of Semre as Exhibit 1. and swam in before me in the Sim ofNonJ-l Carolina in die County of Erin" on rliis 111: 24) day ofjuly, 2016 ill-muPew/g Noury Public {1 46.: My commission cxpixcs: g5 finish 3 Rm)" 0:5 16,24. '00? con" Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Pane 11 of 18 EXHIBIT 1 WV-01038 Document 1-1 Filed Fatix July 18,2016 Dear Customer: The following is the proof-of-delivery for tracking number 776743987767. Delivery Information: Status: Delivered Delivered to: Receptionist/Front Desk Signed for by: M.HOOVER Delivery location: 31 BLACKWELL ST STE 400 Durham, NC 27701 Service typo: FedEx ZDay Delivery date: Jul 18, 2016 11 :24 Special Deliver Weekday Direct Signature Required ?gmgwinnQty, 4 a 4. vatqu "it! 13Shipping Information: Trackhg number: 776743987767 Ship dais: Jul 14.2016 Recipient Shipper. Duke University Robert Ekstrand do Pamela J. Bernard 310 Blackwell Street, 4th Floor Durham, NC 27701 US Thank you for choosing FedEx. EKSTRAND EKSTRAND, LLP 110 Swift Avenue, 2nd Floor Durham, NC 27705 US Case Document 1-1 Filed 08/09/16 Paoe 13 of 18 . ILED NORTH CAROLINA 1' . RAL COURT OF JUSTICE DURHAM COUNTY 28 mi RIOR COURT DIVISION -- 1111", Plaintiff DUKE UNIVERSITY Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY [hit 2 true and copy of the foregoing Affidavit of Service by Desigmxed Delivery Service of Application and Order Extending Time to File Complaint and Summons issued to Dukc Univctsity upon each party to this aclion by sanding a mpy thereof via United States Mall (0 the offic: of ch: attorney of record or regisxercd agent of party as detailed below: Counsel Registexed Agent for Defendant Duke University Duke Univexsity c/o Pamela J. Ben-Ind 310 Blackde Succg 4m Floor Durham, NC 27701 Dated: july 25, 2015 Robert EKSTRAN EKSTRAND LLP 110 Swift Avenue, Second Floor Durham, North Cunlin: 27705 N. (919) 415-4590 Fax (919) 416-4591 Cnunscl for Plaintiff Case 1:167cv701038 Document 171 Filed 08/09/16 Pace 14 of 18 LAW OFFICES EKSTRAND EKSTRAND no 5" lf-T AVENUE Fl 00R DURHAM, NORTH CAROLINA 27705 "54590 FAX m9>> STATE OF NORTH DURHAM Co In The General Court OI Justice "my Superior Court DIvtston um onunr HEB -- I2 3 APPLICATION AND ORDER 2 0 EXTENDING TIME TO c,s_c_ FILE COMPLAINT GS Rule: DUKE UNIVERSITY it, APFUCATIDM. The requests permission to file a complaint in this action within twenty (20) days of any order granting this Application, as provided in Rule 3 of the Rules 0! CIVII Procedure The nature and purpose ol the anion are: ruin. no Putin-a or TM naintiII seeks all reliei available to her in connection with her educational cone-act with Duke Universin and Duke University's response to actual notice receited by omcials authorized to respond on behalf or Deleudant. or reports that: tl Plaintitt was subjected to a drugracilitated rape by two other students; (2 one ot Plaintist assailants admitted to secretly video recording a portion or it; (3) within weeks or the sexual assault oi Plainlifl,z student was subjected to a drug~faci|ilalad rape by the same students who assaulted l'lainlifl; (4) the sexual assault of the visiling student was committed according to the same modus operandi employed in the sexual assault oi the Plaintifi; and (5) at least one more sexual assault that a Duke Police otiicer described as "a gang rape" that was committed by the students who assaulted Plaintirt and during the same period. out. sign-lure A In The Conn slates that the nature and purpose 0' [his action are as set lonh above, Theretore, it is ORDERED that permission is granted to the applicant to file a complaint in this action up to and including the date shown beiow foil-us (Dem must be 20 days oI onto olordar; Datootomer cam NOTE: under Rule a o! the Rules oI civil upon 0/ ml: Order. a summons shrill be Issued and mo 5umnlon5 and a ol this Order must be served/n accordance with Illa amulet 4 A complaint mus! be modut [Ills action within the period provided shown and that mmolar'nt mus! be served rn Accordance with the provisions oI Rule 4 or by registered man it tho plarnrm so elects. ila l's not filed within the abavs period. this action shall abate. HE =Zl cl Zl THF '1an noocvdm. Roi. 7m Ollie: Calms Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Pane 16 of 18 5 '3 I STATE OF NORTH CAHULINA DURHAM County In The Geneial Caurt OfJuslice [1 District 3 Superior Conn Division CIVIL SUMMONS TO BE SERVED WITH ORDER EXTENDING DUKE UNIVERSITY TIME TO FILE COMPLAINT GVS ILL Rule! T0: T0: DUKE UNIVERSITY A Actlon Has Been Commenced Agalnst Youl Yuu are notified to appear and answer the complaint at the plaintm as folluws: 1. Serve a oopy oi your written answer to the complaint upon the pLaintm or the plainliII's attorney within thirty (30) days anei you have been served with the complainl as authorized in Ihe attached order. You may serve your answer by delivenng a copy to the plaintifl or the plaintirrs attorney or by mailing a copy no one of them at his/her last known SGGVESS. 2. File the original OI [he written answer with me Clerk of Superior Court of the counly named above. If you fail to answer the complaint. the plaintiff will apply lo the Conn Ior Ihe relieV demanded in the complaint Tm Hzezols Robert Eksinnd L2 Ti EKSTRAND EKSTRAND LLP no Swin Avenue, Second Floor Dm'ham,Nonh Carolina 27705 music El II ciao-rum mo use: aim: Baum Case 1:16-cv-01038 Document 1-1 Filed 08/09/16 Pane 17 of 18 (Ova) 3 94 DURHAM COUNTY CLERK OF SUPERIOR 1 emu. 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