IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS I STATE OF MISSOURI SEP 2 5 2017 JOHN DOE, JOAN M. GILMEH Cause No.: 16SL-CC043 92 mum Plaintiff, Div. 2 WASHINGTON UNIVERSITY and JANE DOE, Defendants, ORDER AND JUDGMENT Presently before the Court are Motions to Dismiss ?led by Defendants Washington University (?the University?) and Jane Doe (collectively ?Defendants?) directed at Plaintiff Lee Doe?s (?Plaintiff?) First Amended Petition. The Petition contains Nine Counts: I. Breach Of Contract (against the University) 11. Promissory Estoppel (against the University) 111. Negligence (against the University) IV. Breach Of Fiduciary Duty (against the University) V. Defamation (against Doe) VI. Defamation (against Doe) VII. Tortious Interference with Contract (against Doe) Tortious Interference with Contract (against Doe) IX. Speci?c Performance (against the University). On a motion tO dismiss, this Court must accept as true the facts properly pleaded, giving the averments a liberal construction, and making those reasonable inferences fairly deductible from the facts stated. Nickel] v. Shanahan, 439 223, 227 (MO. 2014). I. University?s Motion to Dismiss Plaintiff does not address the University?s Motion to Dismiss Counts II (promissory estoppel) and IX (speci?c performance) and, thus, those counts are dismissed. Plaintiff? Count 1 (breach of contract) fails as no Missouri court has found the existence of a contractual relationship between a student and a university. See Lucero v. Curators of University of Missouri, 400 1, 4?5 (Mo.App. W.D. 2013). Furthermore, the Court ?nds a complete lack of any allegations by Plaintiff of an offer and acceptance as required to establish the existence of a contract. Volker Court, LLC v. Santa Fe Apartments, LLC, 130 607, 611 (Mo.App. W.D. 2004). Plaintiff?s Count 111 (negligence) is based on Title IX, which Plaintiff alleges establishes a duty on the part of the University. However, no Missouri court has recognized such a duty. The Court also believes that any alleged failure of the University?s obligations to comply with Title administrative requirements did not create a duty of care that would support a common law negligence claim. See Peck v. WestAurora School Dist. 1 29, 2006 WL 2579678, *6 (ND. Ill. Aug. 30, 2006). Similarly, no Missouri courts have recognized a ?duciary relationship between a university and its students as alleged in Plaintiffs Count IV. Furthermore, Plaintiff?s Petition attempts to establish a ?duciary duty by alleging he placed his trust in the University. But a ?duciary duty cannot be established by a unilateral placement of trust. Arnold v. Erkmann, 934 621, 630 (Mo.App. ED. 1996). II. Doe?s Motion to Dismiss Since the Court has already found there was no contract between Plaintiff and the University, his Count VII claim of tortious interference with that contract by Doe fails. Plaintiffs Count claim of tortious interference by Doc with his contractual expectancy with the Kentucky law ?rm fails in part because Plaintiff?s allegations establish the initial alleged interference by Doe took place prior to Doe?s knowledge of the existence of that expectancy. Doe could not interfere with an expectancy contract of which she had no knowledge. Furthermore, Plaintiff?s allegations that Doe?s inaction in allowing her report to stand and not withdrawing it after she became aware of the expectancy does not save this claim. Doe had the right to ?le and allow her report to stand, which defeats this claim. Chandler v. Allen, 108 756, 760 (Mo. Ct. App. 2003). The Court also ?nds Doe?s ?inaction? did not constitute intentional interference with Plaintiff?s expectancy, Ozark Employment Specialists, Inc. v. Beeman, 80 882, 894 (Mo.App. (tortious interference requires in part that a defendant ?actively and af?rmatively? took steps to induce the breach), and that Plaintiff failed to allege that Doe?s intent by her conduct was to interfere with his expectancy. Fleming v. Mercantile Bank and Trust Ca, 766 666, 669 (Mo.App. W.D. 1989) (defendant must intend its conduct to cause the interference).' Plaintiff?s Counts (alleged defamatory statements to friends and her family) and VI (alleged defamatory statements to the University) both allege defamation without (except for one instance) setting out the allegations haec verba or, in the exact words as required. Nazeri v. M0. Valley Call, 860 S.W. 2d 303, 313 (Mo. banc 1993). This requirement applies to electronic communication. Ial.2 Thus, Plaintiff?s defamation claims based on statements that Plaintiff has not set out haec verba are dismissed. However, Plaintiff did set out the exact words used for his defamation claim in Count V, which is based on an alleged text message Doe sent to her friend LB. Thus, Plaintiffs defamation claim based on that allegation survives Doe?s Motion to Dismiss.3 1 Plaintiff also asserts that Doe asked for a heightened sanction on Plaintiff on appeal of the University decision but does not allege that his business expectancy was affected by this request. 2 Plaintiff asserts in his Response to Doe?s Motion that the requirement the defamatory words be set out haec verba does not apply to speech. But Plaintiff fails to explain why a text message, which is indisputably an electronic communication, should be treated as speech. 3 Plaintiff sets out another text haec verba: ?Whole family on alert?. That text involves no apparent defamation. Defendant Washington University?s Motion to Dismiss Counts I-IV and IX is GRANTED. Defendant Jane Doe?s Motion to Dismiss is GRANTED as to Counts VI and GRANTED in part and DENIED in part as to Count as detailed above. The dismissals of Counts I-IV, VII-IX are with prejudice. DATE: SO ORDERED: Wotan PA. mam Honorable Maura McShane cc: Attorneys of Record