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Doe v. Yesner

United States District Court, D. Alaska

September 4, 2019

JANE DOE I, JANE DOE II, JANE DOE III, JANE DOE IV, JANE DOE V, and DOES 6-20, Plaintiffs,
v.
DAVID YESNER, UNIVERSITY OF ALASKA BOARD OF REGENTS, and UNIVERSITY OF ALASKA SYSTEM, Defendants.

          ORDER

          H. Russel Holland United States District Judge

         Motions to Dismiss; Motion to Amend; Motion to Preclude Use of “Jane Doe” Pseudonyms

         Defendants University of Alaska Board of Regents and University of Alaska System move to dismiss plaintiffs' Counts IV through VIII.[1] Defendant David Yesner joins in this motion as to Count VIII.[2] This motion is opposed.[3] Yesner moves to dismiss some of plaintiffs' claims on statute of limitations grounds and to dismiss the fictitious plaintiffs.[4] The University defendants join in this motion.[5] This motion is opposed.[6] Yesner also moves to preclude the use of “Jane Doe” pseudonyms in this case.[7] This motion is opposed.[8]Plaintiffs move to amend their complaint.[9] This motion is unopposed. Oral argument was not requested on any of the pending motions and is not deemed necessary.

         Background

         Plaintiffs are former students at the University of Alaska. Yesner is a former professor at the University of Alaska.

         Jane Doe I alleges that she first met Yesner in 2010 and that he was her “Anthropology Advisor from 2011 to the end of 2016/early 2017.”[10] Jane Doe I alleges that Yesner “directed grotesque and sexually charged comments and unwanted staring” at her.[11] For example, Jane Doe I alleges that Yesner once asked her “if she ever wore heels while looking [her] up and down in a sexually explicit way, conveying to her that he was imaging what ‘she would look like in heels.'”[12] Jane Doe I alleges that one evening Yesner invited her to dinner and while at dinner “emphasized . . . that his wife was out of town and insinuated that [she] should join him at his house[.]”[13] Jane Doe I alleges that Yesner would take pictures of female students, including her, while on dig sites when they were wearing only sport bras and shorts due to the heat.[14] Jane Doe I alleges that she learned in March 2019 that Yesner's pictures of her showed that Yesner “was zeroing in on [her] breasts and buttocks. . . .”[15]

         Jane Doe II alleges that she first met Yesner in 2009 and that he became her thesis advisor in 2010.[16] Jane Doe II alleges that Yesner “made unwanted sexual advances towards [her] as well as sexually explicit and suggestive comments.”[17] For example, Jane Doe II alleges that “Yesner directly stated to [her], ‘if I were 30 years younger, I would be interested in you,' that ‘you are beautiful,' and ‘if I were not married, I would love to be with you sexually.'”[18] Jane Doe II alleges that “when [she] communicated dissatisfaction that her comprehensive exam was taking so long to grade, [d]efendant Yesner responded that ‘maybe [she] needed to give [him] a spanking so that [he] would do better.'”[19] Jane Doe II alleges that Yesner would routinely question her then-boyfriend, who was also one of Yesner's students, “about his sex life with [her], asking about intimate details.”[20] Jane Doe II alleges that “[t]he unwanted touching by” Yesner “was pervasive” and whenever he spoke to her, “he would stare at her breasts and he would find ways for his hands to make contact with her breasts and buttocks.”[21] She alleges that when Yesner would hug her, he “would put his hand on the small of her back and rub in circles just above her buttocks, lingering in the hug for several minutes” or he would “intentionally brush his hand across [her] breasts in the process of hugging her and often times leave his hand wrapped around her hip.”[22] Jane Doe II alleges that in November 2017, Yesner “perused [her] Instagram account and selected a sexually suggestive photograph of [her], showing her cleavage[, ]” which he “put on her poster that would be displayed on campus, advertising her thesis presentation.”[23] Jane Doe II alleges that Yesner kept pornography on the computer “that she shared with him” and that “pornographic pictures would be left open on [the] computer when she came into the lab and [d]efendant Yesner would be elsewhere.”[24]

         Jane Doe III alleges that she first met Yesner in 2016.[25] Jane Doe III alleges that “each time she had an interaction with [d]efendant Yesner he would stare lasciviously at her breasts for the duration of the conversation[.]”[26] Jane Doe III alleges that in October 2017, she was alone in a classroom performing a necropsy on a bear when Yesner “suddenly appeared in the doorway, intensely staring at [her] and standing in silence just watching her.”[27] Jane Doe III alleges that “[w]ithin a few minutes, [d]efendant Yesner began to walk slowly towards [her] in a threatening manner, still without saying anything.”[28] Jane Doe III alleges that “[i]n an attempt to protect herself, [she] chose to jump over the bear carcass on the floor instead of going around the table so she could be out of arms reach” of Yesner.[29]Jane Doe III alleges that when she was taking a geology class in the Fall of 2017, Yesner would sit behind her and “lean in close where [she] could feel his breath down her neck” and he would “make bizarre, inappropriate comments.”[30]

         Jane Doe IV alleges that she “first met [d]efendant Yesner as an undergraduate student at field school in 2013 and during summer work before entering UAA's graduate program in 2014 and 2015.”[31] Jane Doe IV alleges that Yesner became her advisor in the fall of 2015.[32] Jane Doe IV alleges that “Yesner made sexually explicit and suggestive comments to [her] as well as unwanted staring.”[33] For example, Jane Doe IV alleges that Yesner once told her “that he cheated on his wife with another woman” and that “he wanted to have sex with a particular undergraduate professor and committee member[.]”[34] Jane Doe IV alleges that “Yesner incessantly and exaggeratedly looked [her] body up and down.”[35] Jane Doe IV alleges that once when she was in the field with Yesner, who had “his camera in tow, ” she wiped a knife blade that she was using to take core samples on “her knee/thigh area. As she wiped the knife on her knee/thigh, [d]efendant Yesner commented that [she] had wiped the knife on her ‘crotch' and said, ‘Good thing I did not get a picture of that.'”[36] Jane Doe IV alleges that “Yesner would often get [her] alone with him in disturbing situations.”[37] For example, Jane Doe IV alleges that Yesner once arranged for her to meet him at the museum when it was closed and that he once insisted that she come into his camper when they were in the field and she went to retrieve him for dinner.[38] Jane Doe IV alleges that “[a]t this same field site in 2016, ” she and Yesner were out in the woods and “[a]s [she] was rummaging in the back of her car to retrieve field gear, she looked to see if [d]efendant Yesner was behind her but instead saw [him] urinating in plain sight.”[39] Jane Doe IV alleges that “there were times when she would walk into [d]efendant Yesner's office to meet with him and find that he was waiting for her with his pants unzipped and his shirt open, almost exposing himself to [her].”[40] Jane Doe IV alleges that Yesner would force her “to sit side-by-side with him alone whenever she was working on her thesis.”[41] Jane Doe IV alleges that “Yesner would often hug [her] without her consent, lingering in the hug for several minutes to which [she] had no escape.”[42]

         Jane Doe V alleges that she “first met [d]efendant Yesner as an undergraduate student . . . in [the] Fall of 2014.”[43] Jane Doe V alleges that at a party in December 2014, “Yesner approached her aggressively and demanded that she drink a shot of liquor. [Yesner] moved close into [her] personal space as he made his demands, backing [her] into a corner which made her feel disturbed and trapped.”[44] Jane Doe V alleges that “[e]ven after [she] politely refused, [Yesner] kept forcing the alcohol on her, pressuring [her] to drink.”[45] Jane Doe V alleges that “Yesner would often stare intensely at [her] breasts for a long time when she would have interactions with him[.]”[46]

         Plaintiffs allege that outside counsel retained by the University released a report on March 15, 2019, which “detail[ed Yesner's] years and years of predatory behavior inflicted upon . . . female students.”[47] Plaintiffs allege that “[t]he March 15, 2019 report found [d]efendant Yesner guilty of violating several University regulations” and found that he had “engaged in sex discrimination and sexual harassment” of nine unnamed complainants (C1-C9) and sexually assaulted complainant C9.[48] Plaintiffs also allege that the report found that Yesner had “engaged in sexual exploitation through inappropriate use and possession of female student pictures” and violated University regulations “by possessing obscene material on his University computer.”[49] Plaintiffs allege that after the report was released, Yesner was banned “from the University campus and from affiliating with the University of Alaska.”[50]

         Plaintiffs commenced this action on May 15, 2019. Plaintiffs' complaint contains eight counts. In Counts I-III, plaintiffs assert Title IX[51] claims against the University defendants. In Count IV, plaintiffs assert sexual discrimination claims pursuant to AS 14.18.010 against the University defendants. In Count V, plaintiffs assert § 1983 Monell claims against the University defendants. In Count VI, plaintiffs assert assault and battery claims against all defendants. In Count VII, plaintiffs assert intentional infliction of emotional distress claims against all defendants. In Count VIII, Jane Does I and II assert common law invasion of privacy tort claims. For relief, plaintiffs seek damages, an injunction enjoining the University “from unlawful discrimination on the basis of sex, ” “a formal public statement in support of [p]laintiffs[, ]” and the “[r]emoval of Defendant David Yesner's name from diplomas and other official university documents[.]”[52]

         Pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, defendants now move to dismiss certain claims. Pursuant to Rule 17, defendants move to dismiss Jane Does 6-20. Pursuant to Rule 10(a), Yesner moves to preclude plaintiffs from proceeding under pseudonyms. And, pursuant to Rule 15(a), plaintiffs move to amend their complaint to add two additional plaintiffs.

         Rule 12(b)(6) Motions to Dismiss

         ‘To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quoting Iqbal, 556 U.S. at 678). “The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully.” Id. “‘Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 678). “[T]he complaint must provide ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'” In re Rigel Pharmaceuticals, Inc. Securities Litig., 697 F.3d 869, 875 (9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “In evaluating a Rule 12(b)(6) motion, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138, 1142-43 (9th Cir. 2012). “However, the trial court does not have to accept as true conclusory allegations in a complaint or legal claims asserted in the form of factual allegations.” In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016).

         The University defendants first move to dismiss plaintiffs' state law claims (Counts IV, VI, VII, and VIII) and plaintiffs' § 1983 claims (Count V) on Eleventh Amendment grounds.[53] “The Eleventh Amendment protects states and state instrumentalities . . . from suit in federal court.” Doe v. Regents of the Univ. of Calif., 891 F.3d 1147, 1153 (9th Cir. 2018). Both Alaska state courts and the Ninth Circuit have held that the University itself is an instrumentality of the state. See Univ. of Alaska v. Nat'l Aircraft Leasing, Ltd., 536 P.2d 121, 124 (Alaska 1975) (“the University must be regarded as uniquely an instrumentality of the state itself”); Ellingstad v. State, Dep't of Natural Resources, 979 P.2d 1000, 1007 (Alaska 1999) (“Alaska law treats the University as a state entity for purposes of sovereign immunity”); Townsend v. Univ. of Alaska, 543 F.3d 478, 481 (9th Cir. 2008) (“[i]t is undisputed that the University is an arm of the State of Alaska”). And, because “[a] claim alleged against a state officer acting in his official capacity is treated as a claim against the state itself[, ]” Morongo Band of Mission Indians v. Calif. State Bd. of Equalization, 858 F.2d 1376, 1382 n.5 (9th Cir. 1988), the Board of Regents is also protected from suit in federal court by the Eleventh Amendment.

         However, “[t]here are two ‘well-established' exceptions to the Eleventh Amendment protection from suit.” Micomonaco v. State of Wash., 45 F.3d 316, 319 (9th Cir. 1995) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985)). “Congress can abrogate the Eleventh Amendment without the consent of the states in certain instances or a state may waive its immunity by consenting to suit in federal court.” Id.

         The University defendants concede that the state has waived sovereign immunity in state court for claims alleging violations of AS 14.18.010 and for state-law tort claims. See AS 09.50.250; AS 14.18.100. But, they argue that the state has not waived sovereign immunity as to such claims being brought in federal court. The University defendants also argue that there is no federal statute that abrogates the state's immunity in federal court for such claims. Thus, the University defendants argue that plaintiffs' claims against them in Counts IV, VI, VII, and VIII should be dismissed.

         Plaintiffs first argue that these claims should not be dismissed because the court has supplemental jurisdiction of these claims pursuant to 28 U.S.C. § 1367. This argument fails. “Eleventh Amendment immunity extends to state law claims over which a federal court could exercise supplemental jurisdiction.” S.B. by and through Kristina B. v. Calif. Dep't of Educ., 327 F.Supp.3d 1218, 1235 (E.D. Cal. 2018) (citing Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541 (2002)).

         Plaintiffs next argue that their state law discrimination claims under AS 14.18.010 are not barred by the Eleventh Amendment. Plaintiffs argue that because the University defendants' sovereign immunity has been abrogated as to Title IX claims, they should be able to bring their AS 14.18.010 claims in federal court because this state statute is “extremely similar” in purpose to Title IX.[54] Plaintiffs provide no authority to support this novel theory. Although “Congress has properly abrogated state sovereign immunity for Title IX claims[, ]” Stanley v. Trustees of Calif. State Univ., 433 F.3d 1129, 1133 (9th Cir. 2006), plaintiffs have cited to no language in Title IX that suggests that Congress intended to abrogate state sovereign immunity for similar state law claims.

         Plaintiffs also argue that their state law discrimination and tort claims against the University defendants should not be dismissed because this court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3). Section 1343(a)(3) provides:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States[.]

         Section 1343(a)(3) does not give the court jurisdiction over claims involving rights protected by state statutes or state common law. Rather, it gives the court jurisdiction over claims involving rights protected by the U.S. Constitution or federal law. See Jaa v. City of Dublin, Case No. 14-cv-03260-JCS, 2014 WL 12775830, at *4 (N.D. Cal. Aug. 29, 2014) (“Section 1343 provides a separate basis for federal jurisdiction for certain claims arising from violations of federally-protected civil and constitutional rights”).

         Plaintiffs next argue that because the University defendants consented to suit in federal court for tort claims in another case, they can be sued in federal court for tort claims in this case. The case cited by plaintiffs is McBeath v. University of Alaska, Case No. 3:08-cv-0008-TMB. Assuming that the University defendants waived their sovereign immunity defense as to McBeath's state-law claim, that does not mean that the University defendants have waived their sovereign immunity in this case. Plaintiffs cite to no authority, nor is the court aware of any, that stands for the proposition that waiver or consent in one case means waiver or consent in all cases.

         Finally, plaintiffs argue that their tort and state law discrimination claims should not be dismissed because it would be more efficient to litigate all of their claims in one forum. But, judicial efficiency cannot trump “the fundamental principle of sovereign immunity [which] limits the grant of judicial authority in Art. III.” Green v. Mansour, 474 U.S. 64, 68 (1985) (citation omitted).

         Plaintiffs' state law discrimination and tort claims are barred by the Eleventh Amendment. Plaintiffs' claims against the University defendants in Counts IV, VI, VII, and VIII are dismissed without prejudice. Plaintiffs are not given leave to amend as to these claims because “amendment would be futile.” Ebner v. Fresh, Inc., 838 F.3d 958, 968 (9th Cir. 2016).

         As for plaintiffs' § 1983 Monell claims against the University defendants in Count V, “‘[s]tates or governmental entities that are considered “arms of the State” for Eleventh Amendment purposes' are not ‘persons' under § 1983.” Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 70 (1989)). Thus, the University defendants argue that plaintiffs' § 1983 claims should be dismissed.

         Plaintiffs first argue that their § 1983 claims for damages should not be dismissed because Yesner is a “person” for purposes of § 1983 and the University defendants are vicariously liable for his actions. This argument fails because “[i]t is well-settled that ‘§ 1983 suits do not allow for the imposition of vicarious liability[.]'” Kaur v. City of Lodi, 263 F.Supp.3d 947, 984 (E.D. Cal. 2017) (quoting Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011)).

         Plaintiffs next argue that their § 1983 claims should not be dismissed because they are not only seeking damages, but also equitable relief. “[C]ourts have . . . allowed suit under 42 U.S.C. § 1983 when the action was for equitable relief rather than damages.” Wolfe v. O'Neill, 336 F.Supp. 1255, 1259 (D. Alaska 1972).

         The University defendants do not dispute that “[a] state official in his or her official capacity, when sued for injunctive relief, [is] a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.'” Will, 491 U.S. at 58 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167, n.14 (1985)). But, they point out that this exception to Eleventh Amendment immunity is limited to “prospective injunctive relief to prevent a continuing violation of federal law.” Green, 474 U.S. at 68. The Supreme Court has “refused to extend” this exception “to claims for retrospective relief.” Id. “Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.” Id.

         Here, plaintiffs seek to enjoin the University defendants “from unlawful discrimination on the basis of sex[.]”[55] “An award of prospective injunctive relief requires the plaintiff to demonstrate a reasonable likelihood of future injury.” Bank of Lake Tahoe v. Bank of America, 318 F.3d 914, 918 (9th Cir. 2003). “‘[P]laintiffs must demonstrate that a credible threat exists that they will again be subject to the specific injury for which they seek injunctive . . . relief.'” Id. (quoting Sample v. Johnson, 771 F.2d 1335, 1340 (9th Cir. 1985)). An “amorphous request for future blanket protection does not meet the ‘credible threat' requirement.” Id. (quoting Sample, 771 F.2d at 1340).

         Plaintiffs have not demonstrated a reasonable likelihood of future injury as they are former students and they allege that “[t]he University has banned Professor Yesner from the University campus and from affiliating with the University of Alaska.”[56] All plaintiffs have done here is make an amorphous request for injunctive relief. Plaintiffs have inadequately pled a claim for injunctive relief against the Board of Regents.

         Plaintiffs' § 1983 claims for damages and equitable relief against the University of Alaska System are dismissed with prejudice. Plaintiffs' § 1983 claims for damages against the Board of Regents are also dismissed with prejudice. Plaintiffs' § 1983 claims for equitable relief against the Board of Regents are dismissed without prejudice. Although its strikes the court that it is unlikely that plaintiffs will be able to pled plausible claims for prospective injunction relief against the Board of Regents, it may be possible that at least some of the plaintiffs could plausibly plead such claims. Therefore, plaintiffs are given leave to amend as to their § 1983 claims for equitable relief against the Board of Regents.

         Next, Yesner moves to dismiss all but one of the tort claims asserted against him by Jane Does I, II, IV, and V in Counts VI, VII, and VIII. In Alaska, a two-year statute of limitations applies to tort claims. AS 09.10.070. Plaintiffs filed their complaint on May 15, 2019. Thus, in order for plaintiffs' tort claims to be timely, Yesner argues that they must be based on conduct that occurred on or after May 14, 2017. But, he contends that the only conduct alleged by Jane Does I, II, IV, and V to have occurred after May 14, 2017 is the placement of a sexually suggestive picture on Jane Doe II's thesis poster. All of the other wrongful conduct alleged by Jane Does I, II, IV, and V is alleged to have occurred before May 14, 2017 or at unspecified times, thereby making these claims, according to Yesner, untimely.

         As an initial matter, plaintiffs argue Yesner is equitably estopped from asserting a statute of limitations defense. “‘[A] party who fraudulently conceals from a plaintiff the existence of a cause of action may be estopped to plead the statute of limitation if the plaintiff's delay in bringing suit was occasioned by reliance on the false or fraudulent representation.'” Palmer v. Borg-Warner Corp., 838 P.2d 1243, 1247 (Alaska 1992) (quoting Sharrow v. Archer, 658 P.2d 1331, 1333 (Alaska 1983)).

Equitable estoppel generally requires that “the party seeking to assert it show that the other party made some misrepresentation, or false statement, or acted fraudulently and that he reasonably relied on such acts or representations of the other party, and due to such reliance did not institute suit timely.”

Id. (quoting Groseth v. Ness, 421 P.2d 624, 632 n.23 (Alaska 1966)).

         Plaintiffs argue that the University defendants had knowledge of Yesner's conduct since the 1980s but concealed this information from plaintiffs. Plaintiffs argue that they had no way of knowing about Yesner's conduct until December 2017, when the University defendants began to seriously investigate the sexual harassment claims against Yesner. Plaintiffs then suggest that it was not really until March 2019, when the University defendants released the investigative report, that they knew about their claims against Yesner.

         The problem with this argument is that plaintiffs are contending that the University defendants were concealing information. But, it is not the University defendants who are attempting to assert a statute of limitations defense. Rather, it is Yesner who is asserting such a defense. Plaintiffs have not alleged that Yesner was concealing information. Thus, plaintiffs' equitable estoppel argument fails.

         Plaintiffs also argue that Jane Does I, II, IV, and V's tort claims against Yesner should not be considered time barred because the University's own policies provide that “‘there is no time limit on reporting sexual and gender-based discrimination, including sexual harassment or sexual assault. . . .'”[57] Plaintiffs argue that the court should take this into account and allow these plaintiffs' claims to go forward.

         However, the University's policy is not binding on this court. The court must apply the two-year statute of limitations provided by statute in determining whether Jane Does I, II, IV, and V's tort claims against Yesner are timely.

         As for Jane Doe I's tort claims against Yesner, plaintiffs argue that these claims are not timed barred because of the discovery rule. “Under the discovery rule, the statute of limitations will not begin to run until a reasonable person has enough information to be on notice for a potential cause of action or to inquire into the extent of the injury.” Flint Hills Resources Alaska, LLC v. Williams Alaska Petroleum, Inc., 377 P.3d 959, 972 (Alaska 2016). “Under the discovery rule, the date on which the statute of limitations begins to run is a question of fact. But it is a legal question whether undisputed facts establish that a plaintiff is on inquiry notice.” Egner v. Talbot's, Inc., 214 P.3d 272, 277 (Alaska 2009).

         Plaintiffs argue that the earliest Jane Doe I knew or should have known of the facts that gave rise to her tort claims is December 2017, which was when, according to plaintiffs, she was first interviewed by a Title IX investigator. This argument, however, makes no sense given that Jane Doe I has alleged that “[i]n 2016, [she] reported to defendant University of Alaska that Defendant Yesner had sexually harassed her and then retaliated against her.”[58]This allegation, if taken as true as the court must on a motion to dismiss, indicates that Jane Doe I was aware of the facts that gave rise to her tort claims against Yesner by at least 2016. Because plaintiffs' complaint was not filed until May 15, 2019, Jane Doe I's tort claims against Yesner are untimely, except to the extent that her tort claims are based on the sexually suggestive photographs Yesner allegedly took of her. Jane Doe I has alleged that she did not learn about the nature of these photographs until March 2019. Thus, the statute of limitations for tort claims based on the photographs did not begin to run until then, thereby making her tort claims based on the photographs timely.

         Plaintiffs attempt to save Jane Doe's untimely tort claims by arguing that the continuing violations doctrine applies. “The continuing violations doctrine allows plaintiffs to establish an ongoing tort through incidents that occurred before the statute of limitations period and that continued into the limitations period.” Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25-26 (Alaska 2002). “To benefit from the continuing violation theory, a plaintiff must first demonstrate that some discriminatory act occurred within the limitations period.” Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska 2001). “The plaintiff must then show that the timely filed claim-based upon this act within the limitation period-is closely related to the otherwise time-barred claims.” Id. “To determine whether the claims are sufficiently related, federal circuit courts have often looked at three primary characteristics of the violations: subject matter, temporal proximity, and permanence.” Id. “Many courts have designated the permanence factor as the most important.” Id. “The ‘permanent' violation triggers a reasonable person's awareness of the alleged discrimination and the need to assert her rights.” Id. “On a subjective basis, if a plaintiff's actions show that she knew her rights had been violated by a certain point in time, the limitations period starts running from that date.” Id. “‘The continuing violation doctrine does not exist to give a second chance to [a plaintiff] who allowed a legitimate . . . claim to lapse.'” Id. (quoting Roberts v. Gadsden Mem'l Hosp., 835 F.2d 793, 800 (11th Cir. 1988)).

         Because Jane Doe I has alleged that she knew she was being sexually harassed by at least 2016, the continuing violation doctrine cannot save her untimely claims. The statute of limitations as to these claims began running when she knew that her rights had been violated, which she has alleged was in 2016.

         Jane Doe I's torts claim against Yesner are barred by the statute of limitations except to the extent that they are based on allegations related to the sexually suggestive photographs. Jane Doe I's tort claims against Yesner, except for those based on the sexually suggestive photographs, are dismissed without prejudice. Jane Doe I is given leave to amend these claims as it is possible (but unlikely) that she could amend these claims to make them timely.

         As for Jane Doe II's tort claims, plaintiffs argue that they are not time barred because they are based, in part, on allegations that would constitute felony sexual assault, which has no statute of limitations. AS 09.10.065(a)(2) provides that “[a] person may bring an action at any time for conduct that would have, at the time the conduct occurred, violated provisions of . . . felony sexual assault[.]” “An offender commits the crime of sexual assault in the second degree, ” which is a felony, “if . . . the offender engages in sexual contact with another person without consent of that person[.]” AS 11.41.420(a)(1). “Sexual contact” is defined as “the defendant's . . . knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast[.]” AS 11.81.900(b)(60)(A)(i). Jane Doe II alleges that whenever Yesner spoke to her, “he would stare at her breasts and he would find ways for his hands to make contact with her breasts and buttocks.”[59] She alleges that when Yesner would hug her, he “would put his hand on the small of her back and rub in circles just above her buttocks, lingering in the hug for several minutes” or he would “intentionally brush his hand across [her] breasts in the process of hugging her and often times leave his hand wrapped around her hip.”[60] This unwanted touching meets the definition of sexual contact.

         However, the statute requires that the “sexual contact” be “without consent.” “‘[W]ithout consent' means that a person . . . with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone[.]” AS 11.41.470(8)(A). “[T]he phrase ‘without consent' refers to a particular type of unwanted sexual activity: unwanted sexual activity that is coerced by force or the threat of force.” Inga v. State, 440 P.3d 345, 349 (Alaska Ct. App. 2019). Jane Doe II has not alleged that the unwanted sexual contact by Yesner was “coerced by force or the threat of force.” Id.

         Plaintiffs then argue that the continuing violations doctrine makes all of Jane Doe II's tort claims timely. This argument fails. Jane Doe II has alleged that “[s]ometime in September 2013, [she] . . . believed she [made] a formal sexual harassment complaint about the conduct of Defendant Yesner to the Provost's office of the University.”[61] Because Jane Doe II has alleged that she knew by at least 2013 that she was being sexually harassed by Yesner, the continuing violation doctrine has no application to her claims.

         Jane Doe II's tort claims against Yesner are barred by the statute of limitations except to the extent they are based on allegations related to her thesis poster. Jane Doe II's tort claims against Yesner, except for those based on her thesis poster, are dismissed without prejudice. Jane Doe II is given leave to amend these claims as it is possible (but unlikely) that she could amend these claims to make them timely.

         As for Jane Does IV and V, plaintiffs argue that their tort claims against Yesner are not time barred because they did not realize that what Yesner was doing was sexual harassment until December 2017, which is when they allegedly reported Yesner's conduct to the University Chancellor and a Title IX investigation was begun. But, these plaintiffs' allegations belie their contention that they were not aware that Yesner's conduct could be considered sexual harassment prior to December 2017. Jane Doe IV alleges that she “reported her experiences with [d]efendant Yesner to her University of Alaska Graduate Committee Member. . . .”[62] This allegation indicates that Jane Doe IV was aware of the facts that gave rise to her tort claims against Yesner prior to December 2017. Although there are no allegations in the complaint about Jane Doe V reporting Yesner's conduct to anyone, Jane ...


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