1

1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT
2
- - - - - - - - - - - - - - - - x
3 No. 3:20-CV-00092 (MPS)
JOHN DOE
4 JANUARY 23, 2020
vs.
5
UNIVERSITY OF CONNECTICUT 10:03 a.m.
6 AND BRIAN GOEPFRICH
TELEPHONIC STATUS CONFERENCE
7 - - - - - - - - - - - - - - - - x

8
450 Main Street
9 Hartford, Connecticut

10 BEFORE: THE HONORABLE MICHAEL P. SHEA, U.S.D.J.

11
APPEARANCES:
12
FOR THE PLAINTIFF:
13
ALLEN LAW, LLC
14 Post Office Box 404
Quaker Hill, Connecticut 06375
15 BY: MICHAEL THAD ALLEN, ESQUIRE

16 FOR THE DEFENDANTS:

17 OFFICE OF THE ATTORNEY GENERAL

165 Capitol Avenue, Suite 4000
18 Hartford, Connecticut 06106
BY: MARY KATHRYN LENEHAN, AAG
19
ALSO PRESENT:
20
UCONN OFFICE OF THE GENERAL COUNSEL
21 343 Mansfield Road, Unit 1177
Storrs, Connecticut 06269
22 BY: NICOLE FOURNIER GELSTON, ESQUIRE

23
COURT REPORTER: Julie L. Monette, RMR, CRR, CCP
24 (860) 212-6937

25 Proceedings recorded by mechanical stenography, transcript

produced by computer.
 2

1 THE COURT: Good morning. This is Michael Shea.

2 We're on the record in John Doe versus University of

3 Connecticut, et al. The case is 20-CV-92. Let's begin with

4 having counsel state appearances for the record.

5 MR. ALLEN: Your Honor, this is Michael Allen, counsel

6 to plaintiff, John Doe.

7 THE COURT: Okay.

8 MS. LENEHAN: Your Honor, this is Mary Lenehan from

9 the Attorney General's Office representing the University of

10 Connecticut and Brian Goepfrich in his official capacity.

11 MS. GELSTON: Your Honor, Nicole Gelston. I'm UConn's

12 general counsel.

13 THE COURT: Okay. Is anyone else on the line? All

14 right. Hearing none, can I ask the person from the -- Attorney

15 Lenehan, from the Attorney General's Office, are you on a cell

16 phone?

17 MS. LENEHAN: No. I am with Attorney Gelston in her

18 office on speaker phone.

19 THE COURT: Oh, okay. For some reason I can hear her

20 voice better than yours.

21 Okay. And, Attorney Lenehan, have you had a chance to

22 review the papers that have been filed on the docket?

23 MS. LENEHAN: Yes, I have reviewed them yesterday.

24 THE COURT: Okay. Same with me.

25 Okay. Let's talk first about issues of jurisdiction.

 3

1 So, Mr. Allen, you've named the University of Connecticut and

2 an individual defendant. You have, in your prayer for relief,

3 a demand for -- or prayer for money damages. I didn't see in

4 the complaint -- excuse me. The prayer for money damages seems

5 to be against UConn alone.

6 I didn't see in the complaint where you clearly

7 delineated -- I might have missed it -- whether you were suing

8 Mr. Goepfrich -- Goepfrich or Goepfrich?

9 MS. GELSTON: I believe it's Goepfrich, Your Honor.

10 THE COURT: Goepfrich, thank you.

11 I didn't see in the complaint where you indicated

12 whether or not -- again, I might have missed it -- whether you

13 were suing Mr. Goepfrich in his individual capacity or in his

14 official capacity. So there are a number of things to talk

15 about in that regard.

16 The Eleventh Amendment bars the Court from exercising

17 jurisdiction over suits against state agencies. It's well

18 established that UConn qualifies for that protection, that

19 UConn is a state agency for these purposes; and, therefore, the

20 Court doesn't have jurisdiction either to grant damages or to

21 grant injunctive relief against the University of Connecticut.

22 Furthermore, there is a doctrine called Ex parte Young

23 which would allow the Court to enjoin state -- a state official

24 sued in -- sued in official capacity from continuing violations

25 of federal law, which, for example, would apply to the due

 4

1 process claim here.

2 But I have a question about whether you've got the

3 right individual defendant for that. My understanding is Mr.

4 Goepfrich was the investigator. You are asking for an order

5 requiring UConn to allow your client to register for classes.

6 Is Mr. Goepfrich the correct defendant -- assuming the Court

7 agrees that that relief is appropriate on a temporary basis, is

8 Mr. Goepfrich the correct defendant from whom to seek that

9 relief?

10 MR. ALLEN: I would assume he is not, Your Honor. I

11 would believe that either the board of trustees or the

12 president of the university would be the individual who'd be

13 the correct defendant in the scenario you've just laid out.

14 THE COURT: Okay. So you have --

15 MR. ALLEN: Sorry.

16 THE COURT: Go ahead.

17 MR. ALLEN: No, I don't believe he has authority to,

18 for instance, direct the registering -- I'm not certain about

19 that, but he is -- he's not even the head of their Title IX.

20 THE COURT: Attorney Gelston, is that your

21 understanding, he would not have such authority?

22 MS. GELSTON: That is correct, Your Honor.

23 THE COURT: Okay, so that's one issue, Mr. Allen.

24 That's not necessarily fatal. I think the Court has

25 jurisdiction over the case because, at the very least, I guess

 5

1 I could construe the complaint as also naming Mr. Goepfrich in

2 his individual capacity, although it's not clear.

3 Are you suing Mr. Goepfrich in his individual

4 capacity?

5 MR. ALLEN: It was not our intent to sue him in an

6 individual capacity at this time, Your Honor. We've sued him

7 in his official capacity --

8 THE COURT: Okay.

9 MR. ALLEN: -- as responsible for the due process

10 violations and Title IX violations and also breaches of

11 contract here.

12 THE COURT: Okay, but he's not a contracting party;

13 right?

14 MR. ALLEN: No, just the representative of UConn in

15 this case.

16 THE COURT: Right. I should add that I don't -- it's

17 not clear to me you can really proceed on the contract claim

18 because Ex parte Young allows for the Court to enjoin

19 continuing violations of federal law, not state law. But let's

20 put that aside for a minute.

21 Let's -- and then I have another question for you, Mr.

22 Allen. The brief lays out in some detail the standard for a

23 preliminary injunction -- bear with me one second, please.

24 Right, and it sort of assumes that this would be what

25 the Second Circuit calls a prohibitory injunction or a

 6

1 injunction that would preserve the status quo.

2 Isn't the status quo at this point that he's been

3 suspended and has been since December 16th or thereabouts and

4 at this point he's seeking, in effect, to be -- to have the

5 suspension removed and to be reinstated as a student at UConn?

6 MR. ALLEN: I suppose that's correct, Your Honor. Up

7 until the 16th, he remained in school, and then we had to wait

8 until his appeal was decided for there to be an exhaustion of

9 the process at UConn.

10 THE COURT: Does there have to be an exhaustion --

11 MR. ALLEN: Sorry. Go ahead.

12 THE COURT: No, that is a question I had. Does there

13 have to be an exhaustion of the process at UConn?

14 MR. ALLEN: I believe that would be -- I'm not going

15 to speak for opposing counsel, but I believe that would be an

16 argument they would make. I think that there are different

17 opinions on that issue.

18 THE COURT: Well, is it in any of the policies? Do

19 the policies say you can't go to court until you've finished

20 the process here?

21 MR. ALLEN: I know of no place in the policy where it

22 addresses when a student should go to court to challenge UConn,

23 Your Honor.

24 THE COURT: All right. Well, getting back to the main

25 question -- that's an interesting issue, but the main question

 7

1 really is I think -- my own sense is that the correct sort of

2 procedural posture, what you're really asking for is what the

3 Second Circuit calls a mandatory injunction.

4 The reason that matters -- which is a change in the

5 status quo. The reason that matters is a somewhat higher

6 standard applies. Basically it's a similar standard, but it

7 says to be a clear showing or a substantial likelihood of

8 success and the like. So I think that's the ward we're in

9 here.

10 But now let's dive into the merits a little bit. So

11 bear with me a second. I have some questions for defense

12 counsel. So should I address them to Attorney Lenehan or

13 Attorney Gelston or what? Who's going to take the lead?

14 MS. LENEHAN: You can address them to me, Your Honor,

15 but I may refer to Attorney Gelston.

16 THE COURT: Okay. So I am troubled -- I'll put my

17 cards on the table. I am troubled by aspects of this

18 procedure, and in particular I think the thing that troubles me

19 the most is the fact that the hearing body refused to hear from

20 four of the plaintiff's witnesses.

21 I've read the policies, and so I recognize that the

22 hearing body, under the policy, has discretion not to permit

23 certain witnesses to participate.

24 And it says, "if the information they are expected to

25 provide is not relevant to any material issue, is deemed

 8

1 unnecessarily redundant of other information already in the

2 record, and/or they were interviewed in connection with the

3 investigation and the information they are expected to provide

4 is already captured in the investigation report."

5 So before I sort of throw the ball to you, let me load

6 up the question a little bit because I don't want you to think

7 I'm just nitpicking.

8 So, obviously, I think it's fairly clear -- I can't

9 imagine there to be any dispute about this. This is a very

10 serious matter from both sides. From the plaintiff's

11 standpoint, this is about as serious a sanction as could have

12 been imposed.

13 Now, I recognize it was commuted from an expulsion to

14 a two-year suspension, but as a practical matter, other than

15 the fact that the transcript will say "suspension" rather than

16 "expulsion," there isn't a heck of a lot of difference. I know

17 he can reapply in two years, but the potential damage to his

18 career prospects is very substantial.

19 Now, I'm not saying that such justice wouldn't be

20 warranted in this scenario, because I recognize the allegations

21 are very serious too. But in light of that, and in light of

22 the fact that the critical factual issue is ultimately who to

23 believe, that is to say, credibility of either the alleged

24 victim or the plaintiff in this case, it would appear to me

25 that the four witnesses, I guess I would say especially the two
 9

1 who were accompanying them in the car, really should have been

2 heard from, frankly.

3 And the statements that Mr. Allen has put in the

4 record suggest that the information would not have been merely

5 redundant and that although two of them were -- excuse me --

6 although two of them were interviewed, two of the -- well,

7 excuse me. One of the four witnesses who the hearing officers

8 did not hear from was interviewed, namely, Mr. -- the

9 plaintiff's roommate.

10 The interview report -- it doesn't appear that the

11 interviewer asked him all the relevant questions, frankly, at

12 least from what I can glean from the report. I wasn't there

13 obviously, and it's not a transcript. They're just notes. So

14 there's information in those witness statements that bore on

15 the victim's credibility.

16 And let me add one more thing before you respond,

17 which is that my understanding -- again, I only have Mr.

18 Allen's papers. And maybe they're wrong; so you'll correct me

19 if that's true. But from the papers, the suggestion is that at

20 the hearing the victim, the alleged victim, did not bring any

21 witnesses, and yet her roommate and the friend that she was

22 with that evening were interviewed and the investigator relied

23 on their statements so that the plaintiff never had an

24 opportunity to confront those statements in any way.

25 In other words, I get that there's no real

 10

1 cross-examination here. I get that that's the way the

2 university's set up to avoid an adversarial situation, to

3 avoid, for example, the prospect of an assailant questioning a

4 victim. I'm not at the moment raising issues about that, about

5 that setup.

6 What I am raising issues about that is, given all the

7 circumstances that I've described, why not hear from the four

8 witnesses at the hearing, which was the bulk of the plaintiff's

9 defense?

10 And now I'll hand the ball to you, and you can try to

11 answer my question.

12 MS. LENEHAN: So, Your Honor, there were two incidents

13 that evening that the investigator was charged with

14 investigating and making determinations and recommendations

15 about. The first was an incident of sexual harassment and

16 possible assault that occurred in the car, and then the second

17 incident was the incident or sexual assault that occurred in

18 the dorm room.

19 And the witnesses that the plaintiff identified and

20 offered witness statements from, the plaintiff was informed by

21 the investigator that in order to accept those statements, the

22 investigator would need to speak with those witnesses to be

23 sure that those statements were, indeed, from those people to,

24 you know, ensure the validity of the statements, that they were

25 coming from the people that had signed the statements.

 11

1 THE COURT: Let me interrupt for a second. I'm glad

2 you raised it. I saw that too. And under the circumstances,

3 that may or may not have been reasonable. I can understand the

4 logic, but strictly speaking, the policy doesn't say that. The

5 policy says "may provide witness statements." It doesn't say,

6 No, they have to come from the witnesses directly.

7 So strictly speaking, he was adding a requirement that

8 wasn't in the policy. Isn't that so?

9 MS. LENEHAN: Well, I would argue with that a little

10 bit, and I need to pull this policy out. My recollection,

11 reading the policy yesterday, is -- first of all, it's a "may

12 allow the witness statements."

13 THE COURT: No. Actually, I'll read it to you.

14 MS. LENEHAN: Okay.

15 THE COURT: This is ECF 2-4 at 12 on the docket. It's

16 Part 4B of the student conduct policies.

17 It says as follows: "A fair and impartial

18 investigation will be conducted by the" -- Part B, paragraph

19 2 -- "A fair and impartial investigation will be conducted by

20 the student conduct officer. The respondent and complainant,

21 if applicable, may provide information in person and/or submit

22 a written account," comma, "provide the names of incident

23 witnesses for possible interviews with the student conduct

24 officers," comma, "provide witness statements and any

25 documentation that may be relevant to the facts of the

 12

1 incident."

2 So if you were to ignore the other verbs in that

3 sentence, it says, "The respondent and the complainant may

4 provide witness statements."

5 MS. LENEHAN: The plaintiff did provide witness

6 statements. The investigator said he wasn't going to consider

7 them until we have an investigative interviewer spoke with

8 these witnesses to verify that these statements were indeed the

9 statements that the person who allegedly had signed the

10 statements.

11 THE COURT: I agree that's what happened. I'm raising

12 a preliminary question was: Strictly speaking, that added

13 condition was not in the policy. Isn't that true?

14 MS. LENEHAN: But I think -- it is not explicitly

15 stated in the policy, but I think in order for the

16 investigation to be fair and equitable, the investigator has

17 the obligation to ensure that any evidence or material that he

18 or she is considering is authenticated. And that's what this

19 investigator did.

20 And when the investigator met with the student who had

21 submitted the witness statements, the investigator, as per the

22 practice at UConn, the investigator gave the student the

23 opportunity to either participate in an investigative interview

24 with him or submit a written statement or do both. The student

25 witnesses declined providing written statements and chose,

 13

1 instead, to participate in an investigative interview with the

2 investigator.

3 THE COURT: Where is that in the record that he -- I'm

4 not doubting you. I just want to know where it is in the

5 record reflected that he provided the student witnesses the

6 opportunity to submit a written statement or be interviewed or

7 both.

8 MS. LENEHAN: Well, it's -- I'm not sure that it's

9 written in his report that he provided them with those offers,

10 you know, if that's exactly written out in his report. I'm

11 looking now at his investigative interview statements of one of

12 the witnesses, and I -- at first glance, I don't see.

13 Your Honor, I don't see it in this record. I am

14 relying on statements made by Mr. Goepfrich that that is the

15 practice and that's what he did in this case.

16 THE COURT: You mean you've spoken to him. Is that

17 what you mean?

18 MS. LENEHAN: Yes. And he may, in fact, be able to

19 point out in the record -- this record was provided by

20 plaintiff's counsel.

21 THE COURT: I understand.

22 MS. LENEHAN: There may be more that the university

23 has where we can point out some documentary evidence that

24 supports what Mr. Goepfrich is saying. But what he is saying

25 is that practice and what actually occurred in this case was

 14

1 that the students were given the choice.

2 THE COURT: Okay. So keep going. The question I

3 interrupted you -- the question I asked really pertained to the

4 hearing officers, and you were beginning to answer that

5 question when I interrupted you. So keep going to your answer

6 to my original question.

7 MS. LENEHAN: So the short answer to your original

8 question is that when the hearing body was considering this

9 case, the first incident, the incident in the car, the

10 investigation -- the conclusions from the investigation was

11 that no -- that the assault or the sexual activity that

12 occurred at that time was consensual and that there was no

13 Student Code conduct violations for the incident in the car.

14 And, in fact, I believe the complainant, the student

15 complainant, admitted that the activity in the car was

16 consensual.

17 So the only issue for the hearing board was the

18 activities that occurred in the dormitory room. And,

19 therefore, the witnesses who had witnessed what occurred in the

20 car were not relevant to what occurred in the dormitory room.

21 THE COURT: Well, of course, I thought you might say

22 that. Let's think this through though. Okay? Because my

23 understanding is -- everything you said up to the last part I

24 think I agree with, in other words, that the only two witnesses

25 in the bedroom were the complainant and the plaintiff, that she
 15

1 acknowledged that what had happened in the car was, at least --

2 well, she acknowledged that his touching her in the car was

3 consensual and that the investigator so found. So I agree with

4 all that.

5 But, obviously, an issue at any hearing like this --

6 in fact, the issue at any hearing like this is the credibility

7 of the two critical players, the complainant and the

8 respondent. And so just focusing on her for a minute, her

9 credibility was very much in issue.

10 And my understanding is that she denied to the

11 investigator that she had initiated sexual contact in the car.

12 Am I right about that?

13 MS. LENEHAN: I -- I did not read that yesterday. I

14 may have missed that, but that was not my understanding, that

15 she initially denied.

16 THE COURT: Mr. Allen?

17 MR. ALLEN: Your Honor, I'm sorry.

18 THE COURT: Did she deny to the investigator that

19 she'd initiated sexual contact in the car? That's the

20 question.

21 MR. ALLEN: Yes, Your Honor. You'll find that, I

22 believe, in Exhibit B. I would also add includes her

23 allegation and an interview with her and a follow-up interview.

24 And she had denied any role in initiating anything or

25 exercising any agency at every step in these incidents.

 16

1 THE COURT: Okay. I'm going to come back to you, Mr.

2 Allen. I'm going to come back to you.

3 So, Attorney Lenehan, my recollection is similar to

4 Mr. Allen's, at least as to the point about she was asked about

5 whether she'd initiated sexual contact in the car, and she

6 denied it. I mean it would have been appropriate for the

7 investigator to ask her about that. Do you not agree?

8 MS. LENEHAN: I'm looking at Exhibit B --

9 THE COURT: Yeah.

10 MS. LENEHAN: -- that plaintiff's attorney just

11 referred to, and it says -- her statement says, "On the way to

12 drop everyone off in the dorm rooms after Blaze, I sat on the

13 accused's lap in the back seat as the car was crowded with no

14 more available space. While sitting on his lap, he reached

15 into my pants, which I allowed."

16 THE COURT: Yeah, Attorney Lenehan, I believe it's in

17 the interview notes where he asked her this and she denied it.

18 I don't have it in front of me. I did read it all. That's my

19 recollection. Of course, I'm going to go back and check after

20 the call.

21 MS. LENEHAN: And in response to your question then,

22 Your Honor, would be the best evidence of her credibility was

23 her own conflicting or contradictory statements. And any

24 evidence that the other witnesses may have had of what occurred

25 in the car isn't going to give the investigator or hearing

 17

1 officers any more information about her credibility.

2 THE COURT: Well, why not? If I'm correct that she

3 was asked by the investigator, "Did you initiate sexual contact

4 in the car?" and she said no --

5 MS. LENEHAN: If --

6 THE COURT: Wait a minute. Let me finish. Let me

7 finish.

8 -- and if the student witnesses whom the plaintiff

9 sought to present at the hearing were going to say, no, she did

10 initiate sexual contact -- I mean they're going to talk about

11 what she did. I'm not going to go into the details. She's

12 moving around on his lap. Why wouldn't that be relevant to her

13 credibility?

14 MS. LENEHAN: I'm sorry. Could you repeat the end of

15 that question?

16 THE COURT: Yeah. So if the -- I'll say the whole

17 thing again.

18 If she denied initiating sexual contact in the car

19 when asked by the investigator, and the proposed student

20 witnesses, who were not allowed to testify, said she was

21 gyrating around on his lap, one of them was apparently prepared

22 to say she was doing this rhythmic motion with her knees, "I

23 was sitting in the front passenger seat, I could feel her doing

24 this rhythmic motion with her knees," would that not tend to

25 undermine her credibility?

 18

1 MS. LENEHAN: My understanding -- and I obviously

2 have, you know, read through this quickly once yesterday -- is

3 that she admitted to certain of the behaviors that occurred in

4 the car. There were some parts of the behaviors that she did

5 not agree or the statement between the witnesses and the

6 complainant were not fully aligned, but she did admit that she

7 allowed the touching that occurred and that it was consensual

8 and --

9 THE COURT: Yes, but if she -- but you're not

10 answering my question. We're on the same page on that,

11 Attorney Lenehan. I know that. We all know that.

12 The question is: If she denied -- and it's my

13 recollection she did -- to the investigator that she initiated

14 the sexual contact, not that she accepted it or didn't, you

15 know, ultimately consented to later contact in the car, but

16 that she denied that she initiated it and the other witnesses

17 are going to say, "No, she did initiate it," wouldn't that go

18 to her credibility?

19 MS. LENEHAN: Well, you know, Your Honor, this is

20 where it gets difficult with consent. You know, when you say,

21 "Did she initiate sexual activity in the car?" if she's sitting

22 on someone's lap gyrating, is that really initiating sexual

23 activity? Or maybe she was giving her permission for the

24 activity fully clothed, but that doesn't mean she gave consent

25 for him to touch until she says, "I did give consent to that."
 19

1 THE COURT: Well, yeah, but here's the thing: I think

2 she was asked -- Mr. Allen, did you want to say something?

3 MR. ALLEN: I wanted to object because I found, at

4 least from the transcript, the question that's asked. And I

5 would like to add that Mr. Goepfrich -- and I think this was

6 indicative of the kind of biased investigation he conducted --

7 didn't ask her if she initiated sexual contact. In fact, that

8 was an allegation of my client and with support from witnesses

9 from the start.

10 The question he recorded in his transcript -- and I'm

11 just reading from it, from Exhibit B in our sealed exhibits --

12 THE COURT: What page?

13 MR. ALLEN: Information -- uh --

14 THE COURT: Do you have the little --

15 MR. ALLEN: My exhibit pack does not have the --

16 THE COURT: Go ahead. I'll find it. I'll find it.

17 MR. ALLEN: I apologize, but it's page 1 of her

18 October 23, 2019, interview. And, again, this is after the

19 date when my client was effectively thrown out by not being

20 allowed to register.

21 THE COURT: We'll get to that.

22 MR. ALLEN: Conflicting evidence -- I'm sorry.

23 I'll just read the question as transcribed by

24 Goepfrich and the answer. "Information received indicated that

25 you were rubbing your butt on the respondent's penis while

 20

1 sitting on him in the back seat of the car. Can you respond to

2 this information?"

3 Doesn't include anything in regard to order or time,

4 but that's the question.

5 Her response: "I was not. I had to sit on his lap.

6 He was the only guy I knew, so I felt comfortable sitting on

7 his lap."

8 And, you know, we allege there are multiple

9 misrepresentations and the issue of later-in-time consent --

10 THE COURT: Yeah, I got that. Mr. Allen, I got it.

11 We'll get to that. I want to keep this focused.

12 MR. ALLEN: I'm sorry. Sorry. I apologize.

13 THE COURT: So, Attorney Lenehan, given what these

14 witnesses were going to say, are you saying that their

15 testimony was not relevant to her overall credibility?

16 MS. LENEHAN: Well, two of the three witnesses that he

17 wanted to call, if you -- if they were to testify about what

18 occurred in the car, two of those witnesses were in the front

19 seat, not the back seat. So I believe the investigator

20 found that --

21 MR. ALLEN: This is not --

22 THE COURT: Wait. Stop. Stop. Stop.

23 Okay, Attorney Lenehan, you're dodging the question.

24 I told you already what the witness in the front passenger seat

25 was proposing to say. If you read the materials, you would

 21

1 know that.

2 MS. LENEHAN: He felt the chair moving.

3 THE COURT: It was more than that. He felt the knees

4 in the back of the chair, and the roommate in the back said he

5 didn't even want to look because of what was happening.

6 MS. LENEHAN: Right, but then how did they have

7 relevant testimony?

8 THE COURT: Oh, come on. I thought you were going to

9 be serious about this.

10 Okay, we're going to move on to another question.

11 That's not a serious answer, with all due respect. How do they

12 have relevant testimony when they see her grinding against him

13 in the car?

14 MS. LENEHAN: But they didn't see that, Your Honor.

15 The person in front did not see anything.

16 THE COURT: Well, the witness statement suggests

17 otherwise.

18 MS. LENEHAN: Well, that's impossible.

19 THE COURT: I don't see why that's impossible. The

20 roommate was sitting in the back seat with them. The roommate

21 was sitting in the back seat with them. Why is that

22 impossible?

23 MS. LENEHAN: The roommate who looked away. The

24 person in front did not say that he saw anything that occurred

25 in the back seat. He said he felt the knees on the back of his
 22

1 chair.

2 THE COURT: Okay.

3 MS. LENEHAN: And the plaintiff was not found in

4 violation of any conduct codes for anything that happened in

5 the car.

6 THE COURT: Yeah, I think you're missing the point.

7 MS. LENEHAN: No, I understand you're saying that the

8 credibility of the witness --

9 THE COURT: Yeah, yeah, I am.

10 MS. LENEHAN: I understand your point, but I

11 respectfully disagree that their testimony --

12 THE COURT: The other thing is she also denied that

13 she invited him to come back into the car and to go to the

14 dorm. These witnesses would testify to the contrary.

15 MS. LENEHAN: Your Honor, even if that were so -- and

16 I -- again, I would need to look at the statements in more

17 detail to see if that were true -- this -- all this information

18 was before the hearing officers. They had all these statements

19 in the investigative report. So --

20 THE COURT: Well, the hearing officers -- the hearing

21 officer didn't even bother interviewing the guy in the front

22 passenger seat. He didn't think he had relevant information.

23 MS. LENEHAN: The investigator.

24 THE COURT: I'm sorry. I misspoke. You're right, the

25 investigator, yeah.
 23

1 MS. LENEHAN: Right. But how could he have relevant

2 information if he didn't see what happened?

3 THE COURT: Well, we're now talking about whether she

4 invited him to come back with her, which she denied. Again,

5 this is all about her credibility.

6 MS. LENEHAN: Didn't they let him off before they got

7 back to the dorm?

8 THE COURT: I wish you read the statements a little

9 more carefully, frankly, if you're going to kind of debate it

10 with me --

11 MS. LENEHAN: I'm sorry.

12 THE COURT: -- because you've got the facts wrong.

13 Okay? We're talking about the gentleman who was in the front

14 passenger seat, who did not get out of the car, who stayed in

15 the car all the way to the West dormitory, who was not invited

16 to go into the dorm and, therefore, would also be able to

17 testify about whether, in fact, the complainant was actually

18 inviting everybody in for pizza and to watch Netflix. Okay?

19 So if you're going to debate the statements with me,

20 at least get them right.

21 MS. LENEHAN: I'll go back, Your Honor. My

22 understanding was that KW was dropped off prior to them

23 getting --

24 THE COURT: Wrong. You're wrong.

25 MS. LENEHAN: Who was dropped off?

 24

1 THE COURT: That was the roommate.

2 MR. ALLEN: FW, Your Honor.

3 MS. LENEHAN: Which roommate?

4 THE COURT: His roommate.

5 MS. LENEHAN: I thought -- okay. I'm not going to

6 debate it anymore.

7 THE COURT: Yeah, please don't. Please don't.

8 Because it's important to -- when you -- I recognize you've

9 only had a day, but so have I. I mean and at least don't argue

10 stuff that's just not supported by the record.

11 So I guess the other point I wanted to raise with you

12 was given the fact that these witnesses had things to say that

13 would bear on the complainant's credibility, what do you have

14 to say about the fact that the hearing officers relied on, in

15 part -- presumably they relied on everything in the

16 investigator's report, which would have included two statements

17 by the complainant's roommate and the complainant's friend, who

18 were not at the hearing.

19 And so the plaintiff in this case was never afforded

20 an opportunity to confront what they had to say. I recognize

21 it wouldn't have been true cross-examination anyway, but at

22 least to suggest questions to the hearing officer to ask to

23 those two women. Why is that -- why is that in compliance with

24 due process?

25 MS. LENEHAN: With due process as it has been defined

 25

1 in student discipline cases at university campuses, it is in

2 compliance with the requirements of due process.

3 THE COURT: What authority do you have for that

4 proposition?

5 MS. LENEHAN: Well, I don't have cases I can cite to

6 exactly right now, Your Honor, but I believe the standard is

7 that cross-examination is not required. And I know you're

8 trying to draw a line between cross-examination and the

9 complainant's -- or the respondent offering questions to the

10 hearing body.

11 THE COURT: What case law do you have that says, in

12 context of an expulsion or two-year suspension, that

13 cross-examination is not required? Mr. Allen has cited a Sixth

14 Circuit case that says it is.

15 It doesn't appear -- I haven't been able to find, in

16 the short time available, a Second Circuit case that actually

17 speaks to the issue. Are you aware of one?

18 MS. LENEHAN: No.

19 THE COURT: Okay. So, Mr. Allen has a Sixth Circuit

20 case. What's that?

21 MS. LENEHAN: I'm not aware of any Second Circuit case

22 that says it's required.

23 THE COURT: So that just makes it an open question.

24 But putting aside whether -- because what happened -- what

25 happened here, even with the complainant, wasn't

 26

1 cross-examination, let's be clear. So in other words, I'm not

2 sure I need to reach the question whether cross-examination is

3 constitutionally required under these circumstances. Maybe it

4 is.

5 But assuming that the substitute procedure that was

6 used, which is ask the hearing offer to ask the complainant

7 questions, would satisfy due process, he wasn't even permitted

8 to do that with regard to the other witnesses, the two women,

9 her roommate and her friend who was there that evening. So

10 those statements were being relied on, and he never even had a

11 chance to question them.

12 Why is that compliant with due process? We're not

13 talking about cross-examination. We're just talking about a

14 chance to question in this indirect fashion.

15 Why is that fair, or why is that in compliance with

16 due process? given the -- given the degree of sanction involved

17 here? I'm not saying that in every case, you know, they have

18 to allow full-blown trial-type procedures. I know that's not

19 the law.

20 But given the severity of the sanction here, how is it

21 in compliance with due process that he's not allowed to

22 question or have somebody question at least statements that

23 were being relied on by witnesses who -- excuse me -- by the

24 hearing officers by witnesses who weren't even present?

25 MS. LENEHAN: He was provided with the investigative

 27

1 report, along with all the witness statements prior to the

2 hearing. Between the time of the investigative report and the

3 hearing, he has the opportunity to present to the hearing body

4 any questions or contradictions or errors he felt were in the

5 investigative report and its investigation.

6 THE COURT: But how could he do that with respect to

7 those witnesses if they weren't there?

8 MS. LENEHAN: Well, he could have raised it to the

9 hearing body, and they could have said, "You've raised

10 significant concerns, and we want to hear from these

11 witnesses." Apparently whatever he raised did not raise enough

12 red flags for them that they felt that they needed to hear from

13 those witnesses.

14 THE COURT: Were you at the hearing?

15 MS. LENEHAN: No.

16 MR. ALLEN: I was at the hearing.

17 THE COURT: I know that.

18 Attorney Gelston, were you at the hearing?

19 MS. GELSTON: No, I was not.

20 THE COURT: Mr. Allen, since you were the only one

21 there who was at the hearing, to what extent was the issue with

22 regard to these two women witnesses -- I'm referring in

23 particular to the complainant's roommate and the friend who was

24 with her that evening -- did you raise any issue about -- not

25 you, because I know you couldn't talk, but did your client
 28

1 raise any issue about this?

2 MR. ALLEN: We raised -- so he was allowed to submit a

3 statement, as Attorney Lenehan says, and we raised the issue of

4 credibility with regard to the complainant. For instance, the

5 friend who was with her that evening, not the roommate who she

6 talked to the next day, but the friend claimed that she came

7 down the hall to ask permission to have a sexual encounter with

8 my client, the respondent.

9 THE COURT: Right.

10 MR. ALLEN: Well, we asked questions about that in the

11 hearing. We wanted the panel to ask if she had any reason to

12 believe her friend would not be truthful about that statement.

13 That question was even disallowed with regard to the

14 complainant because it was said that, you know, she can't

15 project into the mind of another person, which for all intents

16 and purposes may be true, but that wasn't really the question

17 we wanted asked of her.

18 But we were not allowed at all to -- you know, the

19 idea that these hearing officers were going to find any

20 credibility whatsoever in the issues he was raising and somehow

21 extend the investigation I find a rich topic in and of itself.

22 There was no interest in, you know -- none of her witnesses

23 were excluded at any point in the process.

24 In the hearing itself, it said in the policy that no

25 one is required to come, but no inference was drawn from the

 29

1 fact that none of her friends came to support her either. I

2 mean that didn't seem to me particularly fair.

3 Only my client's witnesses were excluded when they had

4 credible evidence regarding her own credibility.

5 THE COURT: Were there other questions that you

6 propounded -- or not you -- but your client propounded to the

7 hearing officers that they chose not to ask the complainant?

8 MR. ALLEN: I'd have to go back to my notes. There

9 was a time when the questions were being posed and the hearing

10 officer objected that they were statements being proposed as

11 questions. So he didn't allow him to ask questions in that

12 manner. I think that was with regard to the complainant as

13 well.

14 There was a question with regard to a prior allegation

15 as defined under their policy, which came out in the hearing,

16 only because of this questioning process, that she had

17 submitted some sort of statement, which we still don't have,

18 from the April time frame, and questions about where that was,

19 how come we don't have it were disallowed.

20 THE COURT: So I did want to -- while we're on that --

21 MR. ALLEN: Just some examples.

22 THE COURT: While we're on that topic, I did want to

23 ask about that. Are you sure that she made a written statement

24 in April?

25 MR. ALLEN: She said, so -- sorry. She said so in the

 30

1 hearing, Your Honor. That was why we raised it.

2 THE COURT: Okay.

3 MR. ALLEN: And my understanding from -- sorry. Go

4 ahead.

5 THE COURT: No, I guess my next question is: You

6 don't have any reason to believe that the investigator or the

7 hearing officers saw or relied on any such written statement,

8 do you?

9 MR. ALLEN: I believe that they did not. But the --

10 THE COURT: So then the relevance of that, if that

11 statement exists, the relevance of it is effectively

12 impeachment; is that right? In other words --

13 MR. ALLEN: Correct, Your Honor.

14 THE COURT: In other words, nobody relied on it. But

15 your point is, we'd like to get it so we can see if it was

16 consistent with what she said earlier -- with what she said

17 later. Is that it?

18 MR. ALLEN: Correct. And the only other statements we

19 have from her roommate the next morning differ significantly

20 from statements she made in September, you know, months later.

21 So we have, I think, a reasonable belief that that statement

22 would also differ from the September statement and would be, as

23 you say, impeachment material.

24 THE COURT: Okay. All right. I have a couple more

25 questions.
 31

1 So why -- I guess I'll direct this to Attorney

2 Lenehan. Mr. Allen contends -- and he submitted some documents

3 that tend to show this -- that on October 15th the plaintiff's

4 account was blocked. It said for administrative reasons. That

5 also was the same day that the investigator interviewed him.

6 At least from the timeline that Mr. Allen's presented, it

7 doesn't appear that the investigator had ever met with him

8 before that date.

9 Why was the account blocked?

10 MS. LENEHAN: My understanding, Your Honor, is that

11 the account was blocked, um, by the Bursar's Office; so likely

12 it had to do with payment activity on the accounts. It had

13 nothing to do -- it was not initiated or there was no

14 involvement by the Student Conduct Office in the blocking of

15 the account. If there's a payment issue, the account will get

16 blocked, and a student can't access transcripts or register

17 until the account is cleared.

18 THE COURT: Okay. So when it says "administrative

19 reasons," it's referring to nonpayment?

20 MS. LENEHAN: Well, according to Mr. Goepfrich, who

21 looked into it after -- recently.

22 THE COURT: Um-hmm.

23 MS. LENEHAN: It listed the hold as a bursar's hold.

24 It doesn't say more without going to the Bursar's Office.

25 THE COURT: But he would testify -- you're telling me

 32

1 he would testify he had nothing to do with it.

2 MS. LENEHAN: Had nothing to do with it. The Student

3 Conduct Office did not initiate any activity that would put a

4 hold on the student's ability to get a transcript or register

5 for classes.

6 THE COURT: Okay. Thank you.

7 Mr. Allen, do you have anything to say to that?

8 MR. ALLEN: I have no evidence that there was an issue

9 with the bursar, Your Honor. We only have evidence that he was

10 blocked on that same day, as we've shown the Court.

11 THE COURT: Okay.

12 MR. ALLEN: I don't know of any reason why he would be

13 in trouble with the bursar, but I can find out.

14 MS. LENEHAN: I'm sure we can obtain records from the

15 bursar.

16 THE COURT: Yeah, that's fine. That's fine.

17 Let's see. I just want to see if I have any other

18 questions.

19 Okay. So I'll be candid with you. This is a

20 difficult case. I wasn't thrilled to get it, but here I am. I

21 seem to be -- I have adrewed two UConn TROs in the space of six

22 days, so lucky me. So but that's all right.

23 So it's difficult because the allegations are very

24 serious and so is the sanction. And I think that I do have

25 concerns, serious concerns, about the -- whether the procedure,

 33

1 especially used at the hearing, satisfies due process under

2 these circumstances, for reasons we've discussed.

3 And so I am going to grant the TRO, although I'll tell

4 you, it's a close call. And the -- there's a couple of

5 important points to make about that.

6 I'm going to -- first of all, we'll issue a written

7 order. Secondly, we're not going to issue a TRO or any written

8 order unless and until Mr. Allen files a revised complaint

9 naming proper parties.

10 Mr. Allen, are you prepared to do that?

11 MR. ALLEN: Of course, Your Honor.

12 THE COURT: You're going to have to do that fast,

13 yeah.

14 So that's the first thing. But assuming that's done,

15 then we will issue the TRO.

16 It's important to understand the meaning of that, I

17 think. The meaning of that is that he'll be allowed to

18 register for classes, but we're going to have a hearing

19 promptly.

20 And even if he ultimately -- "he" being the

21 plaintiff -- ultimately prevails at the hearing, all the

22 Court's going to do -- it's likely at least that all the Court

23 will do -- I recognize there's a Title IX claim too, which we

24 really haven't talked about. But it's likely that all the

25 Court would do is order another hearing, another disciplinary

 34

1 proceeding, which could come out the same way.

2 So it's important, Mr. Allen, maybe you've already

3 discussed this with your client, but I do want to emphasize,

4 even if everything goes his way -- and that's not what's

5 happening today -- even if everything goes his way here, it may

6 be that the best he gets is another hearing which comes out the

7 same way, which means he will have done whatever work in this

8 semester for naught.

9 The other thing is that given how close this is, given

10 that I take no pleasure, despite what others, what Attorney

11 Gelston or Attorney Lenehan might think, I take no pleasure in

12 interfering with UConn's disciplinary proceedings. I'm very

13 reluctant to do that, believe it or not. For those reasons,

14 we're going to have to have a hearing quickly.

15 And I'm looking at -- unfortunately, I have another

16 hearing with Attorney Gelston and Mr. Urban the 28th and the

17 29th. And I have a factual hearing also the following week.

18 But the week of the 10th of February I could do this.

19 In particular, I could do it on the -- I could do it as early

20 as the 11th. I could reserve the 11th and the 12th for this

21 hearing. It shouldn't take more than two days. In fact, I'm

22 not going to let it take more than two days.

23 Ideally, we do a preliminary injunction hearing in a

24 day. The plaintiff goes in the morning; the defendant goes in

25 the afternoon. And I make a ruling or else, you know, I issue

 35

1 a written opinion after. But I'll reserve two days for this.

2 Is there any glaring problem that counsel has with the

3 11th and the 12th of February?

4 MR. ALLEN: Not on our part, Your Honor, speaking for

5 plaintiff.

6 MS. GELSTON: Not on our part, Your Honor. We,

7 obviously, need to check with Mr. Goepfrich, who is, obviously,

8 our primary witness. Barring anything crazy, we would make

9 sure he's available.

10 THE COURT: Okay.

11 MS. GELSTON: Your Honor?

12 THE COURT: Go ahead, Attorney Lenehan.

13 MS. GELSTON: I do have one clarifying question about

14 your order. When you indicated that the plaintiff would be

15 allowed to register for classes, I am trying to track down the

16 bursar to find out why the hold was placed.

17 THE COURT: Right.

18 MS. GELSTON: If the hold was placed for a reason

19 unrelated to the student conduct proceeding, for example, if he

20 failed to pay, you know, some of his bills, I assume the order

21 only applies to -- if it was your order -- only applies if the

22 hold was placed as a result of the student conduct proceeding?

23 THE COURT: Correct. He's got to pay the tuition, and

24 I'm not going to weigh in on any unrelated matters. That's

25 what's before me, so Attorney Lenehan's correct.

 36

1 MR. ALLEN: That's not relief my client is asking for.

2 I'll say that as well.

3 THE COURT: And we'll be sure to -- thank you for

4 pointing that out, Attorney Lenehan. We'll be sure to include

5 language about that in the order as well.

6 We need to talk about a bond.

7 So will UConn incur any monetary harm between now and

8 February 11th if the TRO is issued?

9 MS. GELSTON: I don't believe so, Your Honor. This is

10 Attorney Gelston again. I don't believe so.

11 THE COURT: Okay. So I'll set the bond at zero, and

12 we'll revisit it should the Court issue a preliminary

13 injunction or we'll revisit it at the hearing if I'm going to

14 take time to decide it or whatever. But for now I'll set the

15 bond at zero.

16 MS. GELSTON: Your Honor, this is Attorney Gelston

17 again.

18 THE COURT: Yes.

19 MS. GELSTON: I just don't know if the student resides

20 on campus and whether or not he has a residence hall. If he

21 was removed from housing, we have to get those details worked

22 out. I just don't know enough about it. Attorney Allen may

23 know.

24 THE COURT: Attorney Allen, what's the story with

25 that? I assume he's not on campus right now.

 37

1 MR. ALLEN: He's in Maryland with his mother, Your

2 Honor, but he can be back if he can start school. It's my

3 understanding school started.

4 THE COURT: Yeah. School started on Tuesday; right,

5 Attorney Gelston?

6 MS. GELSTON: It did, Your Honor. I would just need

7 to make sure -- I don't know if he had a residence hall. I'm

8 sure we could find a place to put him. I'm not sure if

9 somebody else is placed in his room. I need to figure out

10 those details.

11 THE COURT: I'll ask that you and Attorney Allen

12 confer about that.

13 MS. GELSTON: Sure.

14 MR. ALLEN: Yes.

15 THE COURT: I appreciate that.

16 MR. ALLEN: We will, Your Honor.

17 THE COURT: The other thing I wanted to raise, as

18 Attorney Gelston knows from the other case, Judge Martinez is

19 willing to -- Magistrate Judge Martinez, who's actually on

20 recall status here, meaning she's sort of doing this for free,

21 I checked with her. She'd be willing to meet with the parties

22 to try to mediate this case.

23 Now, in the other case I more or less ordered it

24 because I thought the circumstances were right to do that. I

25 don't know if that will bear fruit or not, but I ordered it.
 38

1 Here I'm not going to order it because I just don't

2 know if -- if it makes sense to order it. In other words, to

3 be clearer, if one side or the other or both take the view that

4 there's no way in heck we're going to mediate this case now,

5 we're going to fight this to the death or whatever, fine.

6 That's fine.

7 And I'm not going to make you kind of waste time by

8 going through the motions and pretending to be willing to

9 settle or anything like that. I don't mind. I'd love it if

10 you settled because it would take it off my plate.

11 So here's what I'll do: I'll ask that you confer on

12 that subject, that, Mr. Allen, you confer with Attorney Lenehan

13 and Attorney Gelston on that subject. If both sides are

14 interested, you should file a statement to that effect on the

15 docket as soon as possible, preferably by close of business

16 tomorrow, and I will -- she will be available.

17 She's leaving on a trip in mid February; so she will

18 not be available at that point. And there are other

19 magistrate -- there are regular magistrate judges here too,

20 regular meaning active magistrate judges too. They're busy

21 with other things. She just happens to have some time and was

22 interested in helping me out, which I greatly appreciate. And

23 I called on her again, and she said she'd be willing to meet

24 with you and would have the time before she leaves.

25 But I will not force it on either party. And I will

 39

1 draw no negative inference. I don't even need to know who

2 decided I don't want to mediate. I don't care.

3 I want to give you that opportunity. She's a very

4 experienced mediator. She's very adept. She's sensitive to

5 the kinds of issues that are involved in this case. And so I

6 think she'd be a very good person to meet with. But I'm not

7 going to require it.

8 What I will ask you to do, only if both sides want to

9 mediate, is to file a statement so indicating on the docket

10 tomorrow. You can just say, "Judge, we'd like to take you up

11 on your invitation." It can be something very informal. Just

12 file a quick statement on the docket by close of business

13 tomorrow.

14 If you don't file anything, I'll assume that one or

15 both doesn't want to, and as I said, that's perfectly fine with

16 me. So that's it.

17 So, Mr. Allen, you're going to need to get that new

18 complaint on file pronto because we're --

19 MR. ALLEN: Yes, Your Honor.

20 THE COURT: -- we're not going to issue any TRO until

21 you do. And as I said, it needs to name the right parties.

22 MR. ALLEN: And, Your Honor, as guidance there, would

23 the president of the university be the right number there?

24 THE COURT: I mean, Attorney Gelston, I would assume

25 so, but you're the expert. Who should --

 40

1 MS. GELSTON: In terms of the registering for classes,

2 it would be the university's registrar. That's who would place

3 the hold, the Registrar's Office.

4 THE COURT: And how about in terms of making sure he

5 has a place to stay if he comes for the next couple weeks?

6 MS. GELSTON: It's really the vice president of

7 Student Affairs.

8 THE COURT: Okay. Is that the woman who sent the

9 letter on January 15th commuting it to a suspension?

10 MS. GELSTON: She is the associate vice president of

11 Student Affairs. She was the appellate officer in this case.

12 She reports to the vice president of Student Affairs.

13 THE COURT: Who's the vice president of Student

14 Affairs?

15 MS. GELSTON: Michael Gilbert.

16 THE COURT: Okay. And who's --

17 MS. GELSTON: Yeah, that whole unit, student conduct,

18 ultimately reports to Michael Gilbert.

19 THE COURT: And who's the registrar?

20 MS. GELSTON: The registrar is -- let me make sure I

21 get his name right. I'm looking it up, Your Honor.

22 THE COURT: Okay.

23 MS. GELSTON: Your Honor, I don't recall his name.

24 THE COURT: If you would please just e-mail it to Mr.

25 Allen.
 41

1 MS. GELSTON: I absolutely will.

2 THE COURT: I appreciate that. And so between the

3 registrar and Mr. Gilbert, they would have authority to ensure

4 that he was allowed to register for classes, had a place to

5 live, and was considered a full-time student?

6 MS. GELSTON: Yes, Your Honor.

7 THE COURT: Okay. All right. Thank you. I

8 appreciate that, Attorney Gelston.

9 Let's see if I had anything else for you. Oh, we need

10 to talk about briefs and things and filings and things --

11 MR. ALLEN: Yup.

12 THE COURT: -- and witness lists and all that good

13 stuff.

14 So, first of all, Attorney Lenehan, if you want to

15 file a brief in response to what the plaintiff has filed, you

16 can do that. And I would ask that you do that by, let's say,

17 how about the 31st. Well, I'll give you a little more time.

18 How about February 4th. That will give me a full week to look

19 at it. Okay?

20 MS. LENEHAN: Okay.

21 THE COURT: I don't need a reply, Mr. Allen, because

22 you guys are going to do more writing for me.

23 And you can include factual materials if you want in

24 that, Attorney Lenehan, but as you see in a minute, it's not

25 going to be necessary for you to do that because there's going

 42

1 to be plenty of other opportunities to put the facts before me.

2 So your brief will be due, if you wish to file one --

3 you're not required to file a brief, because you're going to be

4 required to file other things, which I'll explain in a minute.

5 But if you want to file a brief that responds to his brief,

6 let's have that by February 4th, 2020.

7 Now, let's have the parties confer and discuss witness

8 lists and exhibits for the hearing. And I think the witness

9 lists and exhibits should be filed with the Court by February

10 5th. It should be -- might as well be a joint filing. And the

11 goal would be for you to get a sense of each other's witnesses,

12 get a sense of the exhibits, and indicate in the joint filing

13 whether there are going to be objections to any of the

14 witnesses or exhibits.

15 Obviously, that's not going to be all. If a question

16 is asked in a leading fashion or something like that, a form

17 objection, obviously, that's reserved to the time of the

18 hearing. I don't mean that. I mean things like, oh, this

19 witness is irrelevant or this document's irrelevant or it's

20 treble hearsay, that kind of thing.

21 Put those objections in this joint filing for February

22 5th, which means you're going to have to confer a good deal

23 before that to make sure this joint filing's effective. So the

24 joint filing is going to be something like a joint trial

25 memorandum, but it don't doesn't have to have everything in it

 43

1 I would normally require in a joint trial memorandum.

2 Each side lists their witnesses. Indicate -- since I

3 assume you'll be using lots of pseudonyms, indicate who the

4 witness is, so the complainant's roommate, the respondent's

5 roommate or the plaintiff's roommate or the plaintiff's -- one

6 of the plaintiff's friends from Central or just so I know who

7 we're dealing with.

8 If you want to, you can use the same nomenclature

9 that's in the papers that Mr. Allen filed, but I caution you,

10 if you're going to do that, triple check it for God sake,

11 because if someone's called S3 or S4 and they're actually S2,

12 I'm going to be really confused. So it's not my preference

13 that you do it that way, but if you want to do it that way, you

14 can as long as it's absolutely accurate.

15 With regard to -- let's see, that takes care of

16 witness lists and exhibits. I want the exhibits in chambers by

17 close of business on February 7th. So each side should send me

18 their exhibits, get their exhibits to chambers by the end of

19 the day by five o'clock on February 7th. Okay?

20 Now, so in terms of additional legal writing and

21 analysis, my preference here is to do proposed findings of fact

22 and conclusions of law following the hearing. I think the

23 benefit of this is that we don't -- none of us knows exactly

24 what's going to happen in the hearing. We have some idea, but

25 we don't know exactly what's going to happen. Things --

 44

1 witnesses don't come; people change their mind at the last

2 minute.

3 So doing prehearing briefs, proposed findings I don't

4 find to be helpful, because they change, and then you have to

5 revise them. And that's more money and time for everybody.

6 Furthermore, you can order transcripts of the hearing

7 from the court reporter. You can order them expedited, and

8 then you can actually cite to the transcript, which the Court

9 finds helpful, and you can actually cite to an actual exhibit

10 that was admitted in evidence.

11 So we'll talk more about that at the hearing, but I'm

12 not going to -- and when I say we'll talk more about that,

13 we'll set dates for the proposed findings of fact and

14 conclusions of law at the hearing.

15 I'm perfectly willing, just in case anybody thinks I'm

16 going to delay this, to set very accelerated dates. I'm also

17 sensitive that you have other work to do too; so I'm not going

18 to force accelerated dates on you. But let's discuss the dates

19 for submission of the proposed findings at the hearing. And

20 we'll get that done, and then, you know, I'll get you a

21 decision as soon as I can. I mean I have two of these

22 decisions to get you in addition to everything else I'm doing.

23 But so are there any questions about that plan?

24 MS. LENEHAN: No, Your Honor.

25 THE COURT: Okay. Mr. Allen?

 45

1 MR. ALLEN: Not at this time, Your Honor, from

2 plaintiff's side.

3 THE COURT: Okay. Fine.

4 So that will be the plan. We'll put that on the

5 docket. And I think that's all I had to go over with you. Did

6 counsel want to add anything?

7 MS. LENEHAN: Your Honor, as to -- this is Mary

8 Lenehan. As to the contract claims where we feel we have an

9 Eleventh Amendment defense --

10 THE COURT: Right.

11 MS. LENEHAN: -- even if the parties -- the parties

12 who are named are changed --

13 THE COURT: Right.

14 MS. LENEHAN: -- how do you want -- do you want a

15 motion to dismiss on those claims? How do you want me to

16 handle those claims prior to the --

17 THE COURT: Good question. Good question.

18 I think that the likelihood of success finding for

19 today is going to be, strictly speaking, on the due process

20 claim only. But I -- so let me think about that for a minute.

21 What would make sense?

22 I think it would -- since -- I take it -- do you wish

23 to do a brief? Do you plan to do a brief for February 4th?

24 MS. LENEHAN: I would like to.

25 THE COURT: Yeah, yeah.

 46

1 MS. LENEHAN: The due process issue.

2 THE COURT: Yeah, I guess the question is should you

3 just brief the -- that issue? I mean I guess let me -- you

4 know, we're moving kind of fast here. Mr. Allen needs to get a

5 new complaint on file to deal with the parties issue. The

6 ideal thing for him to do would be to take another look at

7 whether he can press the contract claim here at all, frankly.

8 MR. ALLEN: Your Honor, I suppose -- I mean we could

9 go into the claims commission and file there and have a

10 parallel proceeding and try to get a Right to Sue letter as

11 soon as we could and then rejoin it to this --

12 THE COURT: Well, that's up to you. I'm not going to

13 tell you what to do.

14 But the real issue is -- I think Attorney Lenehan

15 raised a good point. What's this hearing going to focus on?

16 and, you know, should she move to dismiss that claim to make

17 clear the hearing's not going to focus on that?

18 So what if we did this to save Attorney Lenehan some

19 work: So you file your new complaint today. Just make sure

20 the parties are fixed. I would expect to issue the TRO today

21 or at the latest tomorrow.

22 MR. ALLEN: Yup.

23 THE COURT: And then I would say that why don't you

24 take a look at the law and inform Attorney Lenehan by, why

25 don't we say, Tuesday at noon, 2/28 at noon, whether you wish

 47

1 to amend your complaint to deal with anything that's been

2 raised on this call. And if so, you're going to need to get

3 that amended complaint in fast, like the next day.

4 MR. ALLEN: Yeah.

5 THE COURT: So that's how, I think, we should proceed.

6 And then, Attorney Lenehan, if you want to include in

7 your brief on the 4th a part of it that's -- and file with that

8 brief a motion to dismiss -- let's assume he leaves the

9 contract claim in and you want to file in your brief on the 4th

10 a memorandum that not only addresses the due process claims but

11 shows why the breach of contract claim needs to exist and file

12 with it a motion to dismiss, that's fine. That would make

13 sense.

14 I would think -- well, I don't want to predict what's

15 going to happen. So let's handle it that way. That way

16 there's some possibility this case gets simplified a little

17 bit. And so we'll have, just to be clear, by 2/28 at noon,

18 Attorney Allen -- sorry, 1/28 at noon, I misspoke.

19 MR. ALLEN: Yeah, I was going to ask you about, thank

20 you, Your Honor.

21 THE COURT: 1/28 at noon you're going to inform -- so

22 that's actually next as to, so in one, two, three business

23 days, you're going to inform Attorney Lenehan whether you

24 intend to amend the complaint, and, if so, you should tell her

25 how you're going to amend the complaint.

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1 And then if you do intend to amend the complaint, you

2 need to file the amended complaint by 1/29 at noon.

3 MR. ALLEN: Yup.

4 THE COURT: Okay? And then, Attorney Lenehan, I'll

5 leave your briefing schedule in place, and you can file on the

6 4th whether you want to do it in the body of the main brief or

7 you want to file a separate motion to dismiss, that's fine too.

8 If you would prefer, Attorney Lenehan, just to, say,

9 just to save work, to just put a paragraph in your main brief

10 that says, "Judge, here's why the breach of contract claim

11 moves out; we'll move to dismiss that claim in due course," I

12 don't mind.

13 I'm not forcing you to file the motion to dismiss

14 early. I'm just saying if you want to, you can. Is that

15 clear?

16 MS. LENEHAN: That's clear.

17 One -- is the plaintiff's attorney going to file an

18 amended complaint with the new party's name today?

19 THE COURT: Today, yes.

20 MR. ALLEN: Yes.

21 MS. LENEHAN: So then it would be another --

22 THE COURT: Correct.

23 MS. LENEHAN: What we're talking about is a second

24 amended complaint.

25 THE COURT: Correct, you've understood that correctly.

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1 MS. LENEHAN: Okay.

2 THE COURT: All right. Anything else we should

3 discuss today?

4 All right, hearing none.

5 MR. ALLEN: Nothing from plaintiff's side.

6 THE COURT: Very well. Thank you both for calling in.

7 (Proceedings concluded at 11:15 a.m.)

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3 C E R T I F I C A T E

7 I, Julie L. Monette, RMR, CRR, CRC, Official

8 Court Reporter for the United States District Court for the

9 District of Connecticut, do hereby certify that the foregoing

10 pages are a true and accurate transcription of my shorthand

11 notes taken in the aforementioned matter to the best of my

12 skill and ability.

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15 /S/ JULIE L. MONETTE

__________________________________
16 Julie L. Monette, RMR, CRR, CRC
Official Court Reporter
17 450 Main Street
Hartford, Connecticut 06103
18 (860) 212-6937

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