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Doe v. Andrews

United States District Court, M.D. Tennessee, Nashville Division

August 3, 2017

JANE DOE, Plaintiff,
v.
JOSEPH McGREGOR ANDREWS, et al., Defendants.

          MEMORANDUM

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         Before the Court are motions for summary judgment filed by Defendant Joseph McGregor Andrews (“Andrews”) and Plaintiff Jane Doe[1] (“Doe”) in this diversity action arising out of an alleged sexual assault at a college fraternity house.[2] Andrews moves for summary judgment on the causes of action Doe has brought against him for false imprisonment, assault and battery, and intentional infliction of emotional distress. (Doc. 124.) Doe responded in opposition. (Doc. 155.) Doe moves for summary judgment on Andrews's counterclaim for defamation and intentional infliction of emotional distress, as well as his request for attorney fees. (Doc. 136.) Andrews responded (Doc. 154), and Doe replied (Doc. 166).

         The Court will GRANT Andrews's motion (Doc. 124) IN PART as to false imprisonment and DENY the motion IN PART as to assault, battery, and intentional infliction of emotional distress. The Court will GRANT Doe's motion (Doc. 136) IN PART as to defamation and attorney fees. The Court will DENY the motion IN PART as to intentional infliction of emotional distress.

         I. BACKGROUND

         During the spring of 2015, Doe was an undergraduate student at Samford University in Birmingham, Alabama. Andrews was an undergraduate student at the University of Tennessee at Chattanooga (“UTC”) and a member of The Delta Epsilon Chapter of Pi Kappa Alpha International Fraternity, Inc. (the “Chapter”).

         Doe and Andrews first met when Andrews went to Birmingham to visit his then-girlfriend, Hailey Smith, who was a student at Samford University and a dorm mate of Doe's. After Andrews's and Smith's dating relationship ended, Andrews and Doe began to communicate with each other by social media. These communications included an invitation from Andrews to Doe to attend an April 11, 2015 party at the Chapter's off-campus fraternity house (the “House”).

         On the day of the party, Doe and a friend, Kaleigh Palmisano, drove to Chattanooga. They went to Andrews's dorm room to get ready; Andrews was already at the House for the party. After getting ready, Doe contacted Andrews and asked him to pick her up for the party. Andrews went with several other people to pick Doe up. Palmisano went elsewhere to meet her boyfriend. Doe had one swig of whiskey in the car on her way to the House. According to Doe, while in the car, Andrews said she was going to get “blackout” that night and talked about “hooking up” with her, in response to which she told him she did not want to have sex with him. Doe also alleges the Chapter pledge who was designated as a sober driver for the event, and who was driving the car, agreed to look after her.

         After arriving at the House, Doe and Andrews spent a short time at the party, during which time Doe did not consume any alcohol. Doe and Andrews then went to a liquor store and a gas station to buy more alcohol. On returning to the House, Doe and Andrews stayed on the porch for a time. Doe consumed three or four swigs of whiskey while on the porch. Doe alleges Andrews encouraged her to keep drinking when she did not want to, at times holding the bottle to her mouth for her to drink. This was the last alcohol Doe consumed that night. Andrews claims Doe's total consumption was four swigs of whiskey. Doe claims her total consumption was at least five swigs of whiskey and one beer between the hours of 8:30 and 10:00 p.m.

         At some point later, Doe and Andrews left the porch and entered the House to attend the party. Doe asserts she does not remember anything that happened between when she left the porch and the next morning.

         Andrews, however, gives the following account of events at the party, and Doe does not dispute this account for purposes of Andrews's motion for summary judgment. Once at the party, Doe and Andrews separated. Doe later approached Andrews, took him by the hand, and led him into the bathroom. Doe closed and locked the bathroom door. Doe began kissing Andrews. Doe removed Andrews's pants and her own shorts and panties. Andrews sat Doe on the sink and unhooked her bra. They began to rub against each other. Andrews is not sure if penetration took place given the angle and the space between the two. After a short time Doe began crying and Andrews stopped any sexual activity. Andrews sat on the toilet seat and Doe sat on his lap. She told him she had breast cancer and she had been raped as a child. Andrews attempted to comfort Doe. He offered to take her back to his room where she could sleep in his bed and he could sleep on the couch. They got dressed, called a sober driver, and went to Andrews's dorm. There is no allegation of sexual contact other than in the House bathroom.

         Back at Andrews's dorm, Andrews took a photograph of Doe lying in his bed, fully clothed. He sent the picture to his ex-girlfriend, Smith, with the statement “I f**ked [Jane Doe] and it was great.” According to Andrews, he did this because he was angry at Smith for having cheated on him before their breakup. Andrews claims he first learned of Smith's infidelity from Doe earlier that evening, before the events in the bathroom. Doe denies having talked to Andrews about Smith's alleged infidelity and claims Andrews already knew before the party that Smith had cheated on him during their relationship.

         Doe later vomited in Andrews's bed. Palmisano arrived back at Andrews's dorm room and helped Doe clean herself up. Andrews went back to the party after Palmisano's arrival. Palmisano and Doe slept in their car that night. Andrews later went to a friend's house to sleep.

         The next morning, Palmisano and Doe returned to Samford. Doe had no memory of a sexual encounter between Andrews and herself, but she discussed the events of the previous night with Palmisano and Smith, who had received Andrews's message and picture the night before. Doe then asked Andrews on the phone whether they had had sex the night before, and he said they kind of had. Doe discussed the alleged sexual assault with Palmisano, Smith, and a number of other individuals. Doe also went to two rape crisis centers and made a complaint to law enforcement at UTC.

         II. STANDARD OF REVIEW

         Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). A factual dispute is “material” only if its resolution might affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court should view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).

         To survive a motion for summary judgment, “the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff] is not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *2-3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine whether “the record contains sufficient facts and admissible evidence from which a rational jury could reasonably find in favor of [the] plaintiff”). In addition, should the non-moving party fail to provide evidence to support an essential element of its case, the movant can meet its burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         At summary judgment, the Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The Court may not weigh the evidence or make credibility determinations. Id. at 255. If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court should grant summary judgment. Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

         III. DISCUSSION

         A. Doe's Causes of Action Against Andrews

         Doe's complaint includes three counts against Andrews: false imprisonment, assault (including causes of action for assault, battery, sexual assault, aggravated sexual battery, sexual battery, rape, and aggravated rape), and intentional infliction of emotional distress. (Doc. 1.) Andrews moves for summary judgment on all three counts, but addresses only the assault and battery causes of action of the “assault” count. (Doc. 124.) Doe responded in opposition. (Docs. 155-57.)

         1. False Imprisonment

         Doe's Complaint alleges Andrews falsely imprisoned her in that “[t]hrough the use of drugs and/or alcohol, Defendant Andrews knowingly confined Plaintiff unlawfully so as to interfere substantially with her liberty.”[3] (Doc. 1 ¶ 60.) Andrews moves for summary judgment as to this cause of action. (Doc. 124-1 at .)

         Under Tennessee law, the elements of the tort of false imprisonment are: (1) the plaintiff was restrained or detained against her will by a defendant; and (2) the restraint or detention was unlawful. Newsom v. Thalhimer Bros., Inc., 901 S.W.2d 365, 367 (Tenn. Ct. App. 1995) (citing Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990)). Feeling mentally restrained is not sufficient to establish false imprisonment; the restraint must be against the plaintiff's will, such as when the plaintiff yields to force, the threat of force, or the assertion of authority. Id. (quoting and adopting conclusion of Faniel v. Chesapeake & Potomac Tel. Co., 404 A.2d 151-52 (D.C. 1979)).

         Andrews argues there is no evidence he restrained or detained Doe. Doe does not respond with any evidence of restraint or detention. Instead, she argues she never consented to be alone with Andrews. (Doc. 155 [Pl.'s Memo.] at 7.) But the tort of false imprisonment does not turn on whether a plaintiff consented to be alone with the defendant; it turns on whether a defendant restrained or detained the plaintiff against the plaintiff's will.

         Andrews also argues Doe consumed no more than four swigs of whiskey, so she could not have been too intoxicated to consent. Doe counters that she was a small young woman who had drunk at least five swigs of whiskey and a beer on an empty stomach. Further, she has testified in her declaration that she was “black out drunk” that night. (Doc. 156-2 [Doe Decl.] ¶¶ 4, 7.) There is therefore an issue of fact both as to the amount of alcohol Doe consumed and the degree of intoxication that resulted. But even assuming Doe was too intoxicated to consent, there is no evidence from which Plaintiff can satisfy the element of restraint or detention. The factual dispute as to Doe's level of intoxication is therefore immaterial to Andrews' motion for summary judgment on false imprisonment.

         The Court finds no evidence Andrews restrained or detained Doe. Taken in the light most favorable to Doe, the evidence shows Doe was in a bathroom with Andrews with the door locked from the inside, and Andrews engaged in sexual contact to which Doe had previously said she would not consent and to which Doe was at that time too drunk to give legally effective consent. The Court sees multiple things wrong in this scenario, but restraint and detention are simply not among them. There is no evidence Andrews caused Doe to enter the bathroom, let alone forced her to do so. There is no evidence he closed or locked the door. There is no evidence he stopped her from unlocking or opening the door once they were there. There is no evidence he otherwise stopped Doe from leaving the bathroom or restrained her by force or by threat while they were there. In short, sexual contact without consent is not the same thing as restraint or detention against one's will.

         Doe also argues she was so intoxicated she could not leave. (Id. at 8.) While Doe has testified she was “black out drunk, ” in the sense that she cannot remember what happened, there is no evidence from which the Court can reasonably infer Doe was too intoxicated to be able to leave the bathroom if she had wished to do so. Doe has presented evidence that she vomited and passed out after returning to Andrews's dorm room. (Doc. 156-1 [Palmisano Dep.] at 27.) Even so, there is no evidence from which the Court can infer Doe was unconscious or unable to walk on her own while she was still at the House. The evidence instead indicates that, despite the level of intoxication the Court must infer for purposes of Andrews's motion for summary judgment, Doe was conscious and walking around the House on her own.

         Doe has pointed to no authority that would allow the Court to substitute sexual contact without legal consent for the element of restraint or detention for purposes of false imprisonment. Doe's arguments, like the allegations in her Complaint, are more closely aligned with the Tennessee statute defining the crime of false imprisonment than with Tennessee common law defining the civil tort of false imprisonment. The only false-imprisonment case Doe cites in her response, for example, is a criminal case that lends no support to the idea that sexual contact without consent constitutes false imprisonment. See State v. White, 362 S.W.3d 559, 579 (Tenn. 2012). It may at times be appropriate to look to the interpretation of an element of a crime when interpreting a similar element of a corresponding tort. See Hughes v. Metro. Gov't of Nashville & Davidson Cty., 340 S.W.3d 352, 370 (Tenn. 2011) (relying in part on interpretation of criminal assault statute to determine the intent necessary to sustain a civil claim for the tort of assault) (citing 6 Am. Jur. 2d Assault & Battery § 85 (2008)). Doe has provided no authority, however, for the proposition that the Court should make a wholesale substitution of the criminal false-imprisonment statute for the civil tort of false imprisonment. The Court therefore applies Tennessee's civil tort law here. See, e.g., Doe v. Mama Taori's Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *7 (Tenn. Ct. App. Apr. 5, 2001) (holding that defense of minor's consent to sexual contact was available in civil action even though not relevant in related criminal prosecution for statutory rape because “criminal and civil proceedings have different purposes” and “civil actions for damages should be left to proceed under ordinary tort law principles”).

         The Court concludes there is no genuine dispute of a material fact as to whether Doe was detained or restrained against her will. Andrews is therefore entitled to summary judgment on Doe's cause of action for false imprisonment.

         2. Assault and Battery

         In Count D of her Complaint, Doe brings claims against Andrews for assault, battery, sexual assault, aggravated sexual battery, sexual battery, rape, and aggravated rape, citing Tennessee's criminal statutes defining these crimes. (Doc. 1 ¶ 66 (citing Tenn. Code Ann. §§ 39-13-101, 39-13-502-505).) Andrews moves for summary judgment as to assault and battery. (Doc. 124-1 at 11-12.)

         Assault was defined at common law as “any act tending to do corporal injury to another, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against that person.” Thompson v. Williamson Cty., Tenn., 965 F.Supp. 1026, 1037 (M.D. Tenn. 1997), aff'd219 F.3d 555 (6th Cir. 2000) (quoting Vafaie v. Owens, No. 92C-1642, 1996 WL 502133, at *3 (Tenn. Ct. App. Sept. 6, 1996). In Tennessee, the tort of assault has two elements: “(1) An intentional attempt or the unmistakable appearance of an intentional attempt to do harm to, or to frighten, another person; and (2) The present ability or the unmistakable appearance of the present ability to do that ...


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