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Fordan v. San Francisco State University

United States District Court, N.D. California

November 9, 2017

METTE J. FORDAN, ET AL., Plaintiffs,
v.
SAN FRANCISCO STATE UNIVERSITY, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE: DKT. NO. 13

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiffs Mette J. Fordan (“Ms. Fordan”) and her husband Barry L. Fordan (“Mr. Fordan”) bring this suit under 42 U.S.C. § 1983 against Defendants San Francisco State University (“SFSU”), Leslie E. Wong, Ph.D., (“Dr. Wong”), and Douglass W. Bailey, Ph.D., (“Dr. Bailey”). Plaintiffs allege that Defendants violated their civil rights by leading Ms. Fordan to believe a master's program at SFSU would take two to three years to complete when, in fact, Ms. Fordan was unable to finish during the four years she was enrolled at SFSU due to the actions of Defendants. Defendants now bring a Motion to Dismiss (“Motion”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure seeking dismissal of all of Plaintiffs' claims on the grounds that: (1) Plaintiffs' claims are barred under the doctrine of claim preclusion; (2) Plaintiffs' claims are untimely; and (3) Plaintiffs have failed to plead any viable claim under 42 U.S.C. § 1983. The Court held a hearing on the Motion on Friday, November 3 at 9:30 a.m. For the reasons explained below, the Motion is GRANTED.[1]

         II. BACKGROUND

         A. Complaint

         1. Factual Allegations

         Plaintiffs allege that they are married and that Ms. Fordan was enrolled at SFSU between August 23, 2010 and May 31, 2014. Complaint ¶ 13. With respect to Dr. Bailey, Plaintiffs contend that Dr. Bailey is a professor in the Department of Anthropology at SFSU and served as Chair of the Department of Anthropology from August of 2008 until May of 2011. Id. ¶¶ 11, 178. Plaintiffs further allege that Dr. Bailey was Ms. Fordan's graduate thesis advisor. Id. ¶ 11. With respect to Dr. Wong, Plaintiffs allege that Dr. Wong is the current President and Chief Executive of SFSU. Id. ¶ 10.

         Plaintiffs allege that Ms. Fordan, after working in business for several years, “greatly desired to continue pursuing a life-long dream of a career in Anthropology/Archaeology.” Id. ¶ 21. According to Plaintiffs, Ms. Fordan met with Professor Ian Hodder, Ph.D., who advised her to obtain a master's degree before applying for admission to a doctoral program and suggested that she contact Dr. Bailey at SFSU. Id. ¶ 22. After engaging in email correspondence and meeting with Dr. Bailey in person, Ms. Fordan was accepted to pursue a master's degree in the Department of Anthropology at SFSU. Id. ¶¶ 23-27. She was a full-time graduate student in that program between August 23, 2010 and May 31, 2014. Id. ¶ 27, 13. Plaintiffs allege that Dr. Bailey served as Ms. Fordan's graduate thesis advisor while enrolled at SFSU. Id. ¶ 11.

         Plaintiffs allege that Ms. Fordan obtained an Unsubsidized Stafford Graduate Student Loan (“Loan”) with a “financing protocol of two (2) to three (3) years, maximum.” Id. ¶ 128. According to Plaintiffs, the United States Department of Education is the underwriter of the Loan, and Great Lakes Higher Education and Affiliates Corporation is a loan servicing company. Id. ¶ 2. Plaintiffs contend that the United States Department of Education as well as Great Lakes Higher Education and Affiliates Corporation “requested and utilized” Mr. Fordan's financial information in calculating Ms. Fordan's repayment plan of the Loan, which “elevated” Ms. Fordan's monthly repayment amount. Id. ¶ 14. Plaintiffs allege that Ms. Fordan intended to complete the master's program at SFSU within the two to three year duration of the Loan and that SFSU's 2010 Graduate Student Handbook “calls for a two (2) year Masters Program.” Id. ¶128. Plaintiffs allege that the United States Department of Education “expected” Ms. Fordan to graduate by May of 2013. Id. at ¶ 110.

         Plaintiffs allege that while Ms. Fordan was writing her thesis for the master's program, Dr. Bailey “create[d] a 'Star Chamber' process” by “continually 'moving the goal posts'” and “appearing less concerned with meeting the May graduation date than in providing methods or undertaking action NOT to meet a May graduation.” Id. ¶ 105. Plaintiffs allege that Ms. Fordan submitted her “Final Thesis Draft” on April 4, 2013. Id. ¶ 120. Plaintiffs allege Dr. Bailey emailed Ms. Fordan on April 9, 2013, informing her that her Master's Thesis Committee had concluded that her draft did not meet the requirements for a master's thesis at SFSU. Id. ¶ 121. Plaintiffs allege that Ms. Fordan's third academic year in the master's program at SFSU concluded on May 31, 2013 and that the Loan “maxed out at three (3) years.” Id. ¶ 128. Plaintiffs allege that Dr. Bailey “required Ms. Fordan] to attend at least one (1) more Semester to complete the two (2) year [master's] program in Anthropology.” Id. ¶ 128. Plaintiffs allege that Ms. Fordan submitted the “Final Draft” of her Master's thesis via email on October 1, 2013. Id. ¶ 135. Plaintiffs allege that Dr. Bailey rejected the Final Draft via email on October 6, 2013. Id. ¶ 136.

         According to Plaintiffs, Dr. Bailey rejected the “Final Draft” of Ms. Fordan's master's thesis “WITHOUT the full [Master's Thesis] Committee, which included [Dr. Marianna Ferreira, Ph.D., Professor of Anthropology at SFSU (“Dr. Ferreira”)] ever meeting.” Id. ¶ 137. Plaintiffs allege that on November 12, 2013 Ms. Fordan emailed Dr. Bailey, informing him that “this is now a legal matter.” Id. ¶ 140. Plaintiffs contend that Dr. Ferreira called Ms. Fordan and told her Dr. Bailey had stated to Dr. Ferreira that Ms. Fordan had a total of seven years to complete her Master's thesis. Id. ¶ 142.

         Plaintiffs allege that Dr. Peter Biella, Ph.D., Professor, Department of Anthropology at SFSU (“Dr. Biella”), took over from Dr. Bailey the position of Chair of the Department of Anthropology as of August of 2011 and held that position through “at least” May of 2014. Id. ¶ 178. Plaintiffs allege that Dr. Bailey and Dr. Biella “were extremely close professionally and in close communication.” Id. Plaintiffs allege that on January 4, 2017, Ms. Fordan read a review of Dr. Biella on the website “RateMyProfessor.com” and “learned of [Dr.] Biella's seven (7)-year Masters Program for [Dr.] Biella's Graduate Student.” Id. ¶ 161. Plaintiffs allege that “[t]he mere fact that two (2) Graduate Students in the [Masters] Program . . . were each placed on a seven (7) year Masters Program . . . supports the collaboration and culpability in violations of Law . . . in dealing with selected Graduate Students in the Department of Anthropology.” Id. ¶ 180.

         2. Claims

         Plaintiffs assert three claims in their Complaint: 1) “Violation of Civil Rights by Deprivation of Rights: Deceit, Deceit by Collaboration; Deceit by Concealment;” 2) “Violation of Civil Rights by Deprivation of Rights: Interference and Alteration of the Financial Commerce Between Plaintiff, the United States Department of Education, Defendant SFSU, and Defendant SFSU's Office of Financial Aid;” and 3) “Violation of Civil Rights by Deprivation of Rights: Denial of Equal Protection of Rights.” Plaintiffs asserted all claims in this action against all Defendants in this action. Plaintiffs seek compensatory and punitive damages as well as prejudgment interest and contend that all Defendants are jointly and severally liable.

         a. Violation of Civil Rights by Deprivation of Rights: Deceit, Deceit by Collaboration; Deceit by Concealment

         Plaintiffs' first claim purports to be asserted under 42 U.S.C. § 1983 based on violations of California law, namely California Civil Code sections 1427-28[2], 1430-31[3], 1571-75[4], 1709-10[5], 2306[6], and 2313.[7] Id. ¶ 194. In support of their first claim, Plaintiffs allege that Dr. Bailey “made a false representation of a matter of fact” and that Dr. Bailey “intended to deceive” Plaintiffs when he “placed” Ms. Fordan in a seven-year master's program “when, in fact, no such seven (7) year Program existed, as the Masters Programs offered by Defendent SFSU and financed through Defendant SFSU's Office of Financial Aid and underwritten by the United States Department of Education were all two (2) to three (3) year programs.” Id. ¶¶ 164-165; see also Id. ¶ 172. Plaintiffs allege that Dr. Bailey “used 'comments' as a pretext, rationale, and ruse for [his] refusal to approve and sign [Ms. Fordan's] Masters Thesis Drafts and extend [Ms. Fordan's] Masters Program to seven (7) years.” Id. ¶ 184. Plaintiffs allege that Dr. Bailey was aware of Ms. Fordan's desire to pursue a career in anthropology and archaeology, that Ms. Fordan expressed her concern for “expediency in completing the Masters Program” at SFSU “in anticipation of moving on to the Doctorate Degree at another University, ” and that she wanted to conserve a portion of the Loan funds for such a purpose. Id. ¶ 177. Plaintiffs allege that Dr. Bailey gave Ms. Fordan “cause to believe the [Masters] program would be two (2) to three (3) years” in duration as well as “false hope” that she could graduate from the master's program by April 2013 and later by October 2013, even though Dr. Bailey intended to extend Ms. Fordan's master's program from a period of two to three years to seven years. Id. ¶¶ 182, 183, 188. Plaintiffs further allege that Dr. Bailey's “deceit was planned, in collaboration with [Dr. Biella]” in violation of California Civil Code sections: 1427, 1428, 1430, 1431, 1571-75, 1709-10, 2306, and 2313. Id. ¶ 194. Based on these alleged violations of California state law, Plaintiffs assert this claim under 42 U.S.C. § 1983.

         b. Violation of Civil Rights by Deprivation of Rights: Interference and Alteration of the Financial Commerce Between Plaintiff, the United States, Department of Education, Defendant SFSU, and Defendant SFSU's Office of Financial Aid

         This claim, like the first claim, is asserted under 42 U.S.C. § 1983. It is based on an alleged violation of Article I, Section 8, Clause 3 of the United States Constitution (“Commerce Clause”). In support of their second claim, Plaintiffs allege that Dr. Bailey “interfered with and obstructed the Regulation of Interstate Commerce” between the United States Department of Education, Plaintiff, and SFSU's Office of Financial Aid by altering the terms of the Loan from a period of two to three years to seven years. Id. ¶ 196. Plaintiffs allege that Dr. Bailey's “statements and actions extended, without just cause, [Ms. Fordan's Masters] Program by two (2) additional semesters, ” which caused Ms. Fordan “to utilize a greater loan amount than would have been, otherwise, necessary and/or required” and “increased interest accruement costs” associated with the Loan. Id. ¶ 200. Plaintiffs allege that Dr. Bailey's actions “created for [Ms. Fordan] a jeopardy by a higher repayment schedule rate” that put Plaintiffs at risk for default. Id. ¶ 201. Plaintiffs further allege that Dr. Bailey “placed Plaintiffs at future financial risk” by “interference and alteration” of the terms of the Loan from a period of two to three years to seven years. Id. ¶ 202.

         c. Violation of Civil Rights by Deprivation of Rights: Denial of Equal Protection of Rights

         Plaintiffs also assert their third claim under 42 U.S.C. § 1983 based on an alleged violation of the Fifth and Fourteenth Amendments of the United States Constitution as well as other statutes. Id. ¶ 210. In support of their third claim, Plaintiffs allege that Dr. Bailey's actions described above, namely, Dr. Bailey's placement of Ms. Fordan in a seven year master's program as opposed to a two to three year master's program, denied Ms. Fordan “Equal Protection of the Law as pertaining to all other United States Department of Education Unsubsidized Stafford Graduate Student Loan recipients in the Anthropology Department.” Id. ¶ 204. Plaintiffs allege that Dr. Bailey and SFSU created a “'separate and unequal' pathway to the Master's Degree as compared to all other Masters candidates” at SFSU and at other academic institutions. Id. ¶ 206. Plaintiffs further allege that Defendants violated the following provisions of and regulations concerning the Higher Education Act: 20 U.S.C. §§ 1018, 1019(a), 1019(b), 1075, 1077, 1078-8, 1080, 1080(a), 1082, 1083(a), and 1091(a); 34 C.F.R. 601.10(a)(1)(i), 601.10(c). Id. ¶ 210.

         d. Liability of SFSU and Dr. Wong

         To the extent that Plaintiffs assert the three claims described above, they seek to hold SFSU and Dr. Wong liable based on Dr. Bailey's actions. Id. ¶ 229. Plaintiffs do not allege any independent conduct on the part of SFSU and Dr. Wong as a basis for liability. With respect to SFSU, Plaintiffs allege that “SFSU is lawfully responsible, as an educational institution and a business, to ensure that its employees comply with the Laws of the State of California and the United States.” Id. ¶ 229. Additionally, Plaintiffs allege that SFSU is liable under a respondeat superior theory of liability for Dr. Bailey's alleged conduct. Id. Plaintiffs seek to impose liability on Dr. Wong on the basis that he is “responsible for oversight” to ensure that all SFSU employees comply with state and federal law. Id. ¶ 230. Plaintiffs further allege that Dr. Wong is liable under a theory of respondeat superior liability for Dr. Bailey's alleged conduct in violation of California Civil Code sections 2330[8], 2332-33[9], 2338-39[10], and 2343.[11] Id.

         3. State Court Proceedings

         a. Judicial Notice

         Defendants' claim preclusion argument (discussed below) is based on a prior state court action (“Case 544221”) in the California Superior Court, County of San Francisco (“Superior Court”). First, Defendants ask the Court to take judicial notice of five public records in Case 544221. Therefore, the Court takes judicial notice of a number of documents, as set forth below:

1. The judgment entered in favor of Defendants in Case 544221. No. CGC-15-544221 (S.F. Super. Ct., filed June 28, 2016); see also Defs.' Req. for Judicial Notice (“RJN”), Ex. 1.
2. The order granting Defendants' motion for judgment on the pleadings without leave to amend in Case 544221. No. CGC-15-544221 (S.F. Super. Ct., filed Apr. 26, 2016); see also RJN, Ex. 2.
3. Ms. Fordan's first amended complaint in Case 544221. No. CGC-15-544221 (S.F. Super. Ct., filed Dec. 11, 2015); see also RJN, Ex. 3.
4. The order sustaining Defendants' demurrer in Case 544221. No CGC-15-544221 (S.F. Super. Ct., filed Oct. 30, 2015); see also RJN, Ex. 4.
5. Ms. Fordan's original complaint in Case 544221. No. CGC-15-544221 (S.F. Super. Ct., filed Feb. 19, 2015); see also RJN, Ex. 5.

         Federal Rule of Evidence 201(b)(2) states that courts may take judicial notice of facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2). Pursuant to Rule 201(b)(2), courts may properly take notice of public records, including documents filed in the public record in state judicial proceedings. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”). Courts do not, however, take judicial notice of the truth of facts asserted in those records, which may be subject to reasonable dispute. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Accordingly, the Court grants Defendants' request for judicial notice in its entirety but does not take judicial notice of the specific facts contained therein.

         The Court is also permitted to take judicial notice of court filings sua sponte. See Fed. R. Evid. 201(c)(1); Reyn's Pasta Bella, 442 F.3d at 746 n.6. The Register of Actions (“State Court Docket Sheet”) as well as additional documents filed in Case 544221 are relevant to the present matter and fall within the ambit of Rule 201(c)(1). Those documents are as follows:

1. State Court Docket Sheet for Case 544221.
2. Declaration of Carolyn O. Tsai in lieu of reply in Case 544221. No. CGC-15-544221 (S.F. Super. Ct, filed Apr. 19, 2016).
3. Defendants' motion for judgment on the pleadings in Case 544221. No. CGC-15-544221 (S.F. Super. Ct, filed Mar. 28, 2016).
4. Defendants' memorandum in support of motion for judgment on the pleadings in Case 544221. No CGC-15-544221 (S.F. Super. Ct, filed Mar. 28, 2016).
5. Order denying Ms. Fordan's motion to strike Defendants' answer in Case 544221. No. CGC-15-544221 (S.F. ...

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