Ramapo College, New Jersey – Courtesy Photo

On April 1, 2019, the U.S. Court of Appeals for the Third Circuit, in a “not precedential” decision written by Judge Julio Fuentes, affirmed in part and reversed in part a decision of the New Jersey District Court which denied a motion to dismiss a civil complaint alleging sexual assault and rape. Jane Jones v. Pi Kappa Alpha International Fraternity, Inc., et al., No. 17-3272. The principal basis for the reversal by the Third Circuit was its conclusion that Ramapo College of New Jersey and various of its officials, sued in their official capacities, were entitled to sovereign immunity. In so holding, the court placed significant reliance upon its earlier decision in Maliandi v. Montclair State University, 845 F.3d 77 (3d Cir. 2016).

As to plaintiff's claim for damages against the school officials in their individual capacities, the Third Circuit agreed that under certain conditions, the individuals were entitled to qualified immunity. However, with respect to so much of the claim that individual defendants were liable under the doctrine of “deliberate indifference,” the court noted that the individual defendants-appellants had not raised the insufficiency of this claim in statement of issues on appeal or in their opening brief. The court then held that if an appellant failed to raise an issue in the initial brief, the issue was deemed waived and did not need to be addressed on appeal.

Thus, the order of the District Court was affirmed, except for those counts in the complaint against Ramapo and its officials acting in their official capacities. The latter were entitled to sovereign immunity. But as to one of the counts which was against the officials in their individual capacities and which alleged “deliberate indifference,” the court reversed the district court, but solely because the defendants in that count (appellants) had failed to address the claim of deliberate indifference.

There is an important lesson to be learned from this case. Even where a party (in this case certain officials acting in their individual capacities) believes that a claim embodied in a particular count of the complaint was adequately met by the defense offered as to a different count, it nonetheless is necessary to respond to the former as well or risk what happened here, i.e., the liability that may attach when failing to address a claim in the complaint and thus suffering the waiver of the right to do so.