everclear2 College PartyingUpdate (January 10, 2017): I criticized plaintiff in the case described below for including a claim for intentional infliction of emotional distress (“IIED”) as “going too far” but, as shown on pages 20-23 of the linked Order from U.S. District Judge Patrick J. Schiltz (D. Minn.), the claim survived Defendant Carleton College’s motion to dismiss (barely).

Judge Schiltz assumed for purposes of deciding the motion that Carleton College “coerced” the Plaintiff to confront her alleged rapist “one on one,” and Judge Schiltz held that such conduct, if proved, could be found “extreme and outrageous,” “intentional or reckless,” and found to have caused the Plaintiff “severe emotional distress.”

I get that. I will go farther. I will agree with that. So I agree that plaintiff’s IIED claim should have survived a motion to dismiss. On the other hand, I find it unfathomable that Carleton College would “force” or “coerce” a student to one-on-one meeting with her accused rapist. The definition of “coerce” is “to persuade an unwilling person to do something by using force or threats.” In my view, “force” or “coerce” cannot be synonyms for “encourage,” “urge,” or “persuade,” — all of which might have been unreasonable approaches (if this is what happened) but not “atrocious” IIED, imho.

On the other hand, the result of our recent national election is unfathomable to me. But it happened.

Original post (May 16, 2016) (under the headline: Shank v. Carleton College: Drafting a Complaint, Threading a Needle, Striking a Balance): I recently high-lighted a multi-million dollar contract case where the Plaintiff’s complaint was a mere six pages. In many posts, over the years, I have noted excessively long complaints, which are annoying to courts and ineffective as advocacy (here is an example; here is another).

The is no magic answer. There is no “optimal” complaint length. Different cases call for different strategies. Does Elizabeth Shank help or hurt her case against Carleton College for its response to her alleged rapes with a recently filed 49-page complaint? Is the complaint drafted as a public document for the general public or for the court? (The case has been assigned to U.S. District Court Judge Patrick J. Schiltz (D. Minn.) who is not a fan of sprawling complaints.)

As for the merits of Ms. Shank’s lawsuit, time will tell. As a Carleton grad and Carleton dad, I suppose I won’t be on the jury. Admitting my bias, I think that Plaintiff does herself no favors by adding a count for intentional infliction of emotional distress against the school (see p. 43). Suggesting that the college intentionally caused her “physical injury and severe mental and emotional distress” seems to me to go too far.

Whether it is Carleton or any other college, such allegations are unfortunately predictable and colleges are stuck between risks of lawsuits by alleged perpetrators and alleged victims (here is a complaint against Macalester College by an accused perpetrator).

 

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