Judge dismisses remainder of rape victim’s lawsuit against Duke

Dec. 10, 2012 @ 06:26 PM

 A federal judge Monday dismissed the last claim remaining in a rape victim’s lawsuit against Duke University, ending the case less than a month before it was to go to trial.

U.S. District Court Judge Catherine Eagles notified lawyers that she’d accepted Duke’s arguments against the Title IX gender-discrimination claim filed by former student Katharine Rouse.

The decision effectively cancelled a trial that had been scheduled to begin Jan. 7.

Eagles didn’t immediately explain the reasons for her decision, but said she will issue a formal order and written opinion “as time permits.”

She last week had promised lawyers she’d decide the dismissal motion before they convened for a final pre-trial conference Dec. 20, even if a written explanation wasn’t ready.

The pledge came after she dismissed an assortment of common-law negligence and breach-of-contract claims embedded in the lawsuit Rouse and her lawyer, Durham attorney Bob Ekstrand, had filed against Duke.

Rouse and Ekstrand claimed she was mistreated by Duke officials following her rape at an off-campus party in early 2007.

They alleged the school failed to properly investigate the fraternity that allegedly sponsored the party, Phi Beta Sigma, and didn’t properly warn her that a subsequent decision to leave Duke by a transfer was permanent.

Duke’s lawyers countered there no evidence in the case file establishing the sort of “severe and pervasive” hostile environment at the school the law requires to justify a Title IX ruling.

They said the school helped police catch Rouse’s attacker, non-student Michael Jermaine Burch, and offered her counseling and other services. There was also no sign Phi Beta Sigma members harassed Rouse after she reported the attack.

Duke lawyer Paul Sun also questioned whether Ekstrand in filing the suit early in 2011 had acted quickly enough to avoid a three-year statute of limitations.

He argued the only issue the time limit didn’t cover was the transfer, which Duke had handled according to normal policy and routine.

Ekstrand, however, argued that Title IX in Rouse’s cases should have translated into a waiver of the school’s normal transfer policy, which bars departing undergraduates from returning to a Duke undergraduate program.

Monday’s decision gave Ekstrand his second loss in a high-profile lawsuit against Duke.

In 2010 he and Andrew Giuliani – son of former New York City Mayor Rudolph Giuliani – lost a breach-of-contract suit that contested Giuliani’s ouster from Duke’s men’s golf team.

They argued that the school had broken promises a late coach had made Giuliani while recruiting him. But U.S. District Court Judge William Osteen Jr. said nothing in them offered Giuliani “unconditional and unlimited opportunities to be on the golf team.”

Giuliani decided against appealing the case to the 4th U.S. Circuit Court of Appeals, The Richmond, Va., court would handle any appeal from Rouse.

Ekstrand’s best-known case against Duke, stemming from the 2006 Duke lacrosse incident, is pending before the 4th Circuit.

But the three judges handling it voiced skepticism on Sept. 18 about his arguments that city police violated the players’ rights in procuring search warrants after stripper Crystal Mangum claimed, falsely, that she’s been raped at a team party.

A decision from the 4th Circuit on the lacrosse case remains pending. But the same panel has decided two unrelated cases it heard on Sept. 18 before taking up the lacrosse case, on lines similar to those the judges voiced during oral argument.

Eagles is a longtime state trial judge who ascended to the federal bench in 2010, following an appointment from President Barack Obama.

Burch is serving a prison term for his attack on Rouse and a similar attack on another woman. N.C. Department of Correction records indicate he’s scheduled to be released next month.