Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.289 Filed 02/01/24 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MICHIGAN
`
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`GRACE CHEN and DANIELLE
`VILLARREAL, individually and on behalf
`of all others similarly situated,
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`Plaintiffs,
`
`v.
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`HILLSDALE COLLEGE,
`
`Defendant.
`
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` Case No. 1:23-cv-1129-JMB-PJG
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` District Judge: Jane M. Beckering
` Magistrate Judge: Phillip J. Green
`
`
`DEFENDANT HILLSDALE COLLEGE’S MOTION TO EXCEED WORD
`LIMIT UNDER W.D. MICH. LCIVR 7.1(c)
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`Defendant Hillsdale College, by counsel, hereby moves, pursuant to W.D.
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`Mich. LCivR 7.1(c), for an order permitting Defendant to exceed the word limit for
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`its attached Brief in Support of its Motion to Dismiss the Amended Class Action
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`Complaint under Rule 12(b)(6). The grounds for this motion are as follows:
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`1.
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`On October 25, 2023, Plaintiffs filed their Class Action Complaint,
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`alleging that the Defendant engaged in gender discrimination and retaliation in
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`violation of Title IX; that Defendant is liable in tort for negligence, intentional
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`infliction of emotional distress, and negligent infliction of emotional distress; and
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`that Defendant violated the Elliot-Larsen Civil Rights Act and the Michigan
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`Consumer Protection Act. PageID.1–43.
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`2.
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`On December 21, 2023, Defendant filed a Motion to Dismiss the Class
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`Action Complaint under Federal Rule of Civil Procedure 12(b)(6).
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`1
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MICHIGAN
`
`
`GRACE CHEN and DANIELLE
`VILLARREAL, individually and on behalf
`of all others similarly situated,
`
`Plaintiffs,
`
`v.
`
`HILLSDALE COLLEGE,
`
`Defendant.
`
`
` Case No. 1:23-cv-1129-JMB-PJG
`
` District Judge: Jane M. Beckering
` Magistrate Judge: Phillip J. Green
`
`
`DEFENDANT HILLSDALE COLLEGE’S MOTION TO EXCEED WORD
`LIMIT UNDER W.D. MICH. LCIVR 7.1(c)
`
`
`
`
`Defendant Hillsdale College, by counsel, hereby moves, pursuant to W.D.
`
`Mich. LCivR 7.1(c), for an order permitting Defendant to exceed the word limit for
`
`its attached Brief in Support of its Motion to Dismiss the Amended Class Action
`
`Complaint under Rule 12(b)(6). The grounds for this motion are as follows:
`
`1.
`
`On October 25, 2023, Plaintiffs filed their Class Action Complaint,
`
`alleging that the Defendant engaged in gender discrimination and retaliation in
`
`violation of Title IX; that Defendant is liable in tort for negligence, intentional
`
`infliction of emotional distress, and negligent infliction of emotional distress; and
`
`that Defendant violated the Elliot-Larsen Civil Rights Act and the Michigan
`
`Consumer Protection Act. PageID.1–43.
`
`2.
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`On December 21, 2023, Defendant filed a Motion to Dismiss the Class
`
`Action Complaint under Federal Rule of Civil Procedure 12(b)(6).
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`1
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.290 Filed 02/01/24 Page 2 of 8
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`3.
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`Concurrent with that motion, Defendant filed a Motion to Exceed Word
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`Limit under W.D. Mich. LCivR 7.1(c). PageID.60–64. Defendant sought to file a
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`17,962-word brief in support of its Motion to Dismiss; a brief that exceeded the
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`10,800-word limit set forth in W.D. Mich. LCivR 7.2(b)(i) by 7,162 words.
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`PageID.61.
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`4.
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`Defendant explained that it needed this enlargement “to fully address
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`the seven causes of action alleged in Plaintiffs’ Class Action Complaint, and to
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`properly assist the Court in adjudication of the same.” PageID.61.
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`5.
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`Defendant further explained that “Plaintiffs’ counsel originally
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`stipulated to a mutual word limit of 18,000 words.” PageID.61. After this Court
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`denied the Proposed Stipulated Order Extending the Word Count, PageID.57,
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`Defendant attempted to seek concurrence again
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`in this requested relief.
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`PageID.61–62.
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`6.
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`On the day before Defendant’s deadline to respond to the Complaint,
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`counsel for Plaintiffs withdrew consent to exceed the word limit and refused to
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`concur in the motion. PageID.62; PageID.191.
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`7.
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`On December 27, 2023, the Court, without expressing a view on the
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`merits of Defendant’s motion to dismiss (or Defendant’s motion to exceed word
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`limits), ordered Plaintiffs to file either an amended complaint or a response to the
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`lodged motion to dismiss. PageID.219–220.
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`8.
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`On January 11, 2024, Plaintiffs filed their Amended Class Action
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`Complaint. This Amended Complaint raises six causes of action and several legal
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`2
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.291 Filed 02/01/24 Page 3 of 8
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`theories. Plaintiffs allege that the Defendant engaged in gender discrimination and
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`retaliation in violation of Title IX; that Defendant is liable in tort for negligence and
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`intentional infliction of emotional distress; and that Defendant violated the Elliot-
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`Larsen Civil Rights Act and
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`the Michigan Consumer Protection Act.
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`PageID.221–269.
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`9.
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`On February 1, 2024, Defendant filed a Motion to Dismiss the
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`Amended Class Action Complaint under Federal Rule of Civil Procedure 12(b)(6).
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`10. W.D. Mich. LCivR 7.2(b)(i) limits briefs filed in support of dispositive
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`motions (which includes “motions” “to dismiss for failure to state a claim,” see W.D.
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`Mich. LCivR 7.2(a)) to 10,800 words, inclusive of “headings, footnotes, citations,
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`and quotations.”
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`11. But W.D. Mich. LCivR 7.1(c) permits the Court to “enlarge any … word
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`count” established by the Local Rules.
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`12. Defendant’s brief in support of its Motion to Dismiss under Rule
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`12(b)(6) is 17,818 words long, including headings, footnotes, citations, and
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`quotations. There are five reasons why Defendants should be permitted 7,018
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`additional words for this important brief:
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`3
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.292 Filed 02/01/24 Page 4 of 8
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`13. First, Plaintiffs’ Amended Complaint makes very serious allegations
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`against Hillsdale College. Those comments have generated media attention,1
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`raising the salience of this dispute and further underscoring the need for a serious,
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`detailed, and thorough response to all assertions of law and fact—which span nearly
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`50 pages and more than 200 paragraphs.
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`14.
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`Second, Defendant requires an enlargement of the word count to fully
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`address the six causes of action alleged and to assist the Court in adjudication of the
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`same. Giving short shrift to any of those causes of action, merely to ensure
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`compliance with the default word limit, would be to the ultimate detriment to the
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`Court.
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`15. Third, among those six causes of action, Plaintiffs purport to raise a
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`novel, paradigm-shifting theory of the scope of Title IX and other Spending Clause
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`statutes. Plaintiffs argue that mere tax-exempt status under the Internal Revenue
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`Code is “Federal financial assistance” triggering not only Title IX obligations for all
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`tax-exempt entities but also obligations under Title VI, the Rehabilitation Act, and
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`numerous other laws. See FAC ¶ 201; PageID.263. The Fourth Circuit is currently
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`grappling with this same argument in an interlocutory appeal that has been
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`1 See, e.g., DeJanay Booth-Singleton, Federal lawsuit alleges Hillsdale College fails to investigate
`reports of sexual assault, CBS News (Oct. 26, 2023), https://www.cbsnews.com/detroit/news/lawsuit-
`alleges-hillsdale-college-fails-to-investigate-reports-of-sexual-assault/; Corky Siemaszko, Two
`students accuse Hillsdale College of retaliating against them after they reported sexual assaults, NBC
`News (Nov. 12, 2023), https://www.nbcnews.com/news/us-news/two-students-accuse-hillsdale-college-
`retaliating-reporting-sexual-ass-rcna123864.
`
`4
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.293 Filed 02/01/24 Page 5 of 8
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`extensively briefed, by the parties and many amici.2 Responding to this sweeping
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`theory demands extensive and carefully developed counterarguments, which would
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`simply not be possible under the default word limit given the other claims that
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`Defendant also needs to address.
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`16. Fourth, as just noted, Defendant also requires substantial space to
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`respond to Plaintiffs’ other arguments and claims. Although Plaintiffs have
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`removed their claims for negligent infliction of emotional distress, they have
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`expanded several of the six remaining claims, raising multiple theories for some.
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`For example, they now assert emotional distress as part of their negligence claim,
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`see FAC ¶ 143; PageID.251, attempting to expand upon that cause of action from
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`what had been alleged originally.
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`17. Fifth, Plaintiffs unfortunately have described their claims
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`in
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`exceedingly vague terms, requiring Defendant to address in its motion all possible
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`theories that Plaintiffs perhaps intend to raise. For example, Plaintiffs’ negligence
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`claim largely focuses on the alleged risk to Plaintiffs of sexual assault but then
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`includes allegations about Defendant’s responses after Plaintiffs were allegedly
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`assaulted. See FAC ¶¶ 136–44; PageID.250–252. Defendant must therefore respond
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`both to Plaintiffs’ allegations regarding Defendant’s conduct before their alleged
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`assaults and to the allegations regarding Defendant’s conduct after their alleged
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`2 See Docket, Buettner-Hartsoe v. Baltimore Lutheran High Sch. Ass’n, No. 23-1453, ECF Nos.
`20-1, 21-1, 22-1, 24-1, 27-1, 28-1, 41, 42-1, 44, 46.
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`5
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.294 Filed 02/01/24 Page 6 of 8
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`assaults, since it is not clear whether Plaintiffs are raising negligence claims for
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`before, after, or both.
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`18. Plaintiffs’ claims for intentional infliction of emotional distress are
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`even more confusing. Those simply state that unspecified conduct by Defendant
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`caused Plaintiffs severe emotional distress. See FAC ¶¶ 155–160; PageID.255–56.
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`Without knowing what conduct, what distress, and what cause Plaintiffs are
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`referring to, Defendant must address every possible theory.
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`19.
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`Similarly, Plaintiffs’ claims for violation of the Elliott-Larsen Civil
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`Rights Act are also nebulous. Plaintiffs do not state what, precisely, the claimed
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`violation is. See FAC ¶¶ 164–177; PageID.256–259. Defendant must therefore,
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`again, respond to all possible theories.
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`20. Consistent with W.D. Mich. LCivR 5.7(f), the brief in support of
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`Defendant’s Motion to Dismiss and its Exhibits are attached to this motion.
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`21. Concurrence in the relief requested was sought. Defendant’s counsel
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`called Plaintiffs’ counsel on January 25, 2024, and left a detailed voicemail asking
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`for a return call to discuss Defendant’s request to obtain concurrence in Defendant’s
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`motion to exceed the word limit. Receiving no return call, Defendant’s counsel
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`emailed Plaintiffs’ counsel on January 30, 2024, requesting concurrence to exceed
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`the word limit for Defendant’s brief in support of its Motion to Dismiss the First
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`Amended Class Action Complaint by 7,200 words. On January 31, Plaintiffs’
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`counsel responded that Plaintiffs would agree to an extension of no more than 2,700
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`words and would oppose Defendant’s motion requesting an additional 7,200 words.
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`6
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.295 Filed 02/01/24 Page 7 of 8
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`22.
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`If this motion is granted, Defendant would expect that Plaintiffs
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`receive a comparable increase in the world limit applicable to their opposition brief.
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`Indeed, Defendant had been prepared to consent as a matter of course to such a
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`request from Plaintiffs, just as Plaintiffs had agreed to extra words for Defendant’s
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`motion to dismiss the original complaint—before Plaintiffs withdrew that consent at
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`the eleventh hour.
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`23.
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`If the Court denies this request, in whole or in part, Defendant
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`respectfully requests 7 days to file a shorter brief—one that meets the word count
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`specified in W.D. Mich. LCivR 7.2(b)(i) or satisfies an enlarged word count that the
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`Court sees fit to specify. See, e.g., Black v. Gordon, No. 1:20-CV-1143, 2021 WL
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`5334372, at *2 (W.D. Mich. Feb. 25, 2021) (providing additional time to file
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`shortened brief).
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`Defendant Hillsdale College therefore respectfully requests that the Court
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`enter an Order permitting it to exceed the word limit for its Brief in Support of its
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`Motion to Dismiss the Amended Class Action Complaint under Rule 12(b)(6) and
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`accept the same for filing. If the Court denies this request, in whole or in part,
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`Defendant respectfully requests 7 days to file a shorter brief in compliance with the
`word count specified by the Court.
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`7
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`Case 1:23-cv-01129-JMB-PJG ECF No. 24, PageID.296 Filed 02/01/24 Page 8 of 8
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`Dated: February 1, 2024
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`
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`
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`Respectfully submitted,
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`
`Sarah L. Nirenberg
`Carey A. DeWitt
`BUTZEL LONG, P.C.
`201 West Big Beaver Road, Suite 1200
`Troy, MI 48084
`(248) 258-2919
`(248) 228-1439 (fax)
`nirenberg@butzel.com
`
`
`
`
`
`
`
`
`s/ Ryan J. Walsh
`Ryan J. Walsh
`EIMER STAHL LLP
`10 East Doty Street, Suite 621
`Madison, WI 53703
`(608) 620-8346
`(312) 692-1718 (fax)
`rwalsh@eimerstahl.com
`
`Allyson N. Ho (application for
`admission forthcoming)
`GIBSON, DUNN & CRUTCHER LLP
`2001 Ross Avenue, Suite 2100
`Dallas, TX 75201
`(214) 698 3233
`(214) 571-2971 (fax)
`aho@gibsondunn.com
`
`
`Counsel for Defendant
`
`
`8
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`
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