United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
Pearson and Kirsten Kirkpatrick were chiropractic students at
Logan University who allege that they were sexually harassed
by a fellow student. Plaintiffs claim they reported the
alleged harasser's behavior to Logan, but Logan responded
inadequately to their complaints. They bring claims against
Logan for gender discrimination under 20 U.S.C. § 1681
(Title IX), as well as state law claims for negligence,
premises liability, and violations of the Missouri
Merchandising Practices Act (MMPA), Mo. Rev. Stat. §
407.010, et seq.
moves to dismiss Kirkpatrick's Title IX claim and all
state law claims under Federal Rule of Civil Procedure
12(b)(6). Logan also seeks to strike paragraphs 11 through 32
of the first amended complaint.
purpose of a motion to dismiss under Federal Rule of Civil
Procedure 16(b)(6) is to test the legal sufficiency of the
complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and
construes them in favor of the plaintiff. Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989). To survive
dismissal, a complaint must contain “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); accord Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009). The issue in
considering such a motion is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to
present evidence in support of the claim. Neitzke,
490 U.S. at 327.
Federal Rule of Civil Procedure 12(f), the Court may strike
from a pleading “any redundant, immaterial,
impertinent, or scandalous matter.” The court enjoys
“liberal discretion” in deciding whether to
strike matters from a pleading, although motions to strike
are infrequently granted. Stanbury Law Firm v. Internal
Revenue Service, 221 F.3d 1059, 1063 (8th Cir. 2000).
IX states that “[n]o person in the United States shall,
on the basis of sex, . . . be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). As a
recipient of federal funds, Logan is subject to liability for
violations of Title IX, but only for damages arising from its
own misconduct. Wolfe v. Fayetteville, Arkansas Sch.
Dist., 648 F.3d 860, 864 (8th Cir. 2011); Ostrander
v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003).
“Educational institutions may be liable for deliberate
indifference to known acts of harassment by one student
against another.” Roe v. St. Louis University,
746 F.3d 874, 882 (8th Cir. 2014). “To be actionable an
institution's deliberate indifference must either have
caused the harassment or made students vulnerable to
it.” Id. “A plaintiff must show that the
institution had substantial control over both the harasser
and the context in which the known harassment occurs.”
Id. (internal quotation marks and citation omitted).
To avoid liability, Logan “must merely respond to known
peer harassment in a manner that is not clearly
unreasonable.” Id. (internal quotation marks
and citation omitted). An alleged failure to comply with
Title IX regulations does not amount to deliberate
indifference or provide a plaintiff with a private right of
action. Id. at 883-84. Harassment can constitute
discrimination if it is “so severe, pervasive, and
objectively offensive that it can be said to deprive the
victims of access to the educational opportunities or
benefits provided by the school” and if the school has
“actual knowledge” of the harassment.
Davis, 526 U.S. at 650; Wolfe, 648 F.3d at
reviewed Kirkpatrick's allegations under the relevant
standards, I conclude that her Title IX claim survives
dismissal at this time. While Kirkpatrick may not ultimately
be able to prove that the alleged harasser's actions
amount to actionable harassment, or that Logan was
deliberately indifferent to the harassment, she is entitled
to present evidence in support of her claims. The motion to
dismiss Kirkpatrick's Title IX claim will be denied.
state law claims for negligence and premises liability
survive dismissal at this time as well. Again, whether
plaintiffs will ultimately prevail on their claims is not
before me at this time. The motion to dismiss will be denied
as to these claims.
same cannot be said of plaintiffs' MMPA claim, however.
Even if, as plaintiffs argue, they are not required to plead
this claim with particularity under Fed.R.Civ.P. 9(b) because
they are not “necessarily” claiming that
Logan's advertising practices are “fraudulent,
” they have still failed to state a claim under Rule
12(b)(6) because they have not identified any advertisement
that actually violates the MMPA. Plaintiffs cannot exempt
themselves from basic pleading requirements by alleging that
Logan's alleged violations of the MMPA are
“literally too numerous to comprehensively catalog . .
. .” [Doc. 13 at 528]. Plaintiffs' conclusory
allegation that Logan violated the MMPA fails to state a
claim under Rule 12(b)(6). Accordingly, Count IV of
plaintiffs' first amended complaint will be dismissed.
as the allegations contained in paragraphs 11 through 32 of
plaintiffs' first amended complaint do not form the basis
of any claims made by plaintiffs, they will be stricken as
immaterial. Plaintiffs argue that these allegations of other
types of discrimination at Logan may be relevant background
evidence in their case. Even if true, they are not
appropriately pleaded in the complaint, which should contain
only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P.
IT IS HEREBY ORDERED that motion to strike amended complaint
 is granted, and paragraphs 11 through 32 are stricken
from the first amended complaint.
FURTHER ORDERED that the motion to dismiss  is granted in
part and denied in part as set out above, and Count IV of