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(212) 373-3056

(212) 492-0086 [email protected]

June 24, 2015

BY ECF The Honorable Gregory H. Woods United States District Judge United States District Court Southern District of New York Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street, Room 2260 New York, NY 10007

Re: Nungesser v. , et al., No. 1:15-cv-3216-GHW (S.D.N.Y.)

Dear Judge Woods:

The undersigned counsel represent the plaintiff, Paul Nungesser (“Plaintiff” or “Plaintiff Nungesser”), and defendants Columbia University (the “University”), Trustees of Columbia University, President Lee C. Bollinger, and Professor Jon Kessler (collectively, the “Defendants”) in the above-captioned matter. Pursuant to this Court’s May 13, 2015 and June 8, 2015 Orders and Rule 2.B of Your Honor’s Individual Rules of Practice in Civil Cases (the “Individual Rules”), we submit this letter jointly in advance of the upcoming initial pretrial conference scheduled for July 1, 2015.

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The Honorable Gregory H. Woods 2

I. Nature of the Case

As Your Honor might expect, counsel for the parties see the case somewhat differently. However, the parties agree that the University’s determination that Plaintiff Nungesser was not responsible with respect to his fellow Columbia undergraduate student Emma Sulkowicz’s allegations of sexual misconduct is not appropriate for re-litigation in this case.

Plaintiff’s Statement:

Plaintiff Nungesser brings this action under Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq.(“Title IX”), and state law alleging intentional discrimination on the basis of his male sex by condoning a hostile educational environment due to knowingly permitting and apparently approving of Columbia student Emma Sulkowicz’s and Defendant Columbia Professor Kessler’s engaging in prolonged sexual harassment of Plaintiff Nungesser, with the consequence that Plaintiff Nungesser had been effectively denied equal access to Defendant Columbia’s resources and opportunities. Emma Sulkowicz had accused Plaintiff Nungesser of sexual misconduct and Plaintiff Nungesser vigorously disputed them, but after an accuser-friendly university investigation and hearing, Plaintiff Nungesser was found not responsible. Defendant Columbia University thereafter took no steps against the breaches of confidentiality committed by Emma Sulkowicz that resulted in publication of articles and press conferences at Defendant Columbia branding Plaintiff Nungesser as a rapist. Defendant Columbia University also took no steps against Emma Sulkowicz’s walking around the Columbia campus with a mattress claiming that Plaintiff Nungesser is a rapist. Columbia Professor Jon Kessler and Emma Sulkowicz jointly designed her senior thesis “Carry That Weight” mattress project for which Emma Sulkowicz received Columbia University course credit and the public endorsement of Defendant Columbia Professor Kessler as showing how Defendant Columbia felt about the issue. “Carry That Weight” was further publicly promoted on a Columbia-owned Website, IRW&G Blog/Institute for Research on Women and Gender. At the graduation ceremony, Emma Sulkowicz was permitted by Defendant Columbia to carry, with help, the mattress up on the dais to receive her diploma.

Defendants’ Statement:

Plaintiff’s claims arise out of a series of events that unfolded subsequent to a University disciplinary proceeding concerning an allegedly non-consensual sexual encounter between Plaintiff and a female fellow student (Emma Sulkowicz), a third party who is not named as a defendant in this lawsuit. Specifically, after Plaintiff was found not responsible by the University following an investigation, hearing, and appeal concerning the alleged encounter, Ms. Sulkowicz proceeded to discuss the alleged sexual assault publicly, including by criticizing the University and President Bollinger through a project in which she walked around campus carrying a mattress. Plaintiff, who has graduated from the University since bringing this action (as has

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Ms. Sulkowicz), claims that Ms. Sulkowicz’s statements and art project (which received a significant degree of attention in the media and elsewhere) constitute unlawful harassment of Plaintiff for which these Defendants are allegedly liable.

As a result of the conduct described above, Plaintiff has asserted ten causes of action, including a claim against the University under Title IX of the Education Amendments of 1972, a breach of contract claim, and other state law claims. While Defendants do not contest that Ms. Sulkowicz did in fact become a prominent figure in the context of sexual assault on college campuses, Defendants deny that they are responsible or liable for her conduct, as alleged in the Amended Complaint.

II. The Basis of Subject Matter Jurisdiction and Venue

Plaintiff Nungesser’s Amended Complaint alleges that this Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1332 (diversity of citizenship). Plaintiff Nungesser’s Amended Complaint also alleges that venue is proper pursuant to 28 U.S.C. § 1391 because all Defendants reside in this judicial district and a substantial part of the events or omissions giving rise to the claims occurred in this judicial district. Defendants do not dispute either subject matter jurisdiction or that venue is proper.

III. Motions that Either Party Seeks to File

A. Motions to be Filed

Plaintiff’s Statement:

As discussed below, the Columbia Defendants intend to file a motion to dismiss the Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Nungesser will oppose any such motion to dismiss as without merit. Plaintiff Nungesser’s Amended Complaint alleges conduct by Defendant Columbia that did, as a matter of law, rise to the level of hostile educational environment (a recognized discrimination theory) effectively excluding Plaintiff from participation in, denying him the benefits of, or subjecting him to discrimination under any educational program of the University; and (b) Plaintiff Nungesser offers non-conclusory allegations that the alleged conduct constituted discrimination on the basis of or was motivated in any way by the fact he is a male. Plaintiff further makes non-conclusory allegations that the University violated its own internal policies or procedures, and thus Plaintiff’s breach of contract claim stands. Finally, Plaintiff Nungesser pleads facts necessary to support his other related state statutory and common law claims.

Plaintiff Nungesser also intends to cross-move to supplement the Complaint with post-filing events that further support his Amended Complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. First, from May 11, 2015 to May 15, 2015, Defendant Columbia had on display Emma Sulkowicz’s pornographic prints at the Columbia University Visual Arts Program in the Leroy Neimann Gallery in the

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Dodge Building on Defendant Columbia’s campus. The pornographic prints were printed over as well as next to two New York Times articles previously published about Emma Sulkowicz’s false allegations against Plaintiff Nungesser. Due to the articles identifying Paul by his full name, to any reasonable viewer of the prints, these prints portrayed Paul engaged in sexual assault and in explicit pornographic images. Second, on May 20, 2015, at the graduation ceremony, Emma Sulkowicz was given a special university privilege contrary to the rules by Defendant Columbia to carry the mattress to her and Plaintiff Nungesser’s graduation in another instance of Defendant Columbia perpetrated gender based discriminatory harassment of Plaintiff Nungesser. Defendant Columbia also awarded Emma Sulkowicz Magna Cum Laude honors, which is not based on grade point average; with Emma’s time and indeed her academic work at Columbia has largely been defined by her part in the gender based anti-male discriminatory harassment campaign against Plaintiff Nungesser, these honors constitute yet another instant of Defendant Columbia directly rewarding, encouraging and celebrating Emma Sulkowicz’s role in the gender based discriminatory harassment. Third, Defendant Columbia actively enabling of Emma to build a public persona surrounding her false allegations, which has led to the posting of videos and other proposed performances depicting Plaintiff Nungesser as a rapist.

Plaintiff Nungesser believes that the motion to supplement can proceed in response to the motion to dismiss.

Defendants’ Statement:

Defendants intend to file a motion to dismiss the Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In that motion, Defendants will show that Plaintiff has failed to plead a Title IX claim because (a) the alleged conduct of which he complains did not, as a matter of law, rise to the level of excluding Plaintiff from participation in, denying him the benefits of, or subjecting him to discrimination under any educational program of the University; and (b) Plaintiff has made no non-conclusory allegation that the alleged conduct constituted discrimination on the basis of or was motivated in any way by the fact that he is a man. Similarly, because Plaintiff offers no non-conclusory allegations that the University actually violated any of its own internal policies or procedures, Plaintiff’s breach of contract claim fails as a matter of law. For similar reasons, Plaintiff fails to plead facts necessary to support his other related state statutory and common law claims.

Defendants understand that, rather than amending the complaint now, Plaintiff would prefer to wait until after Defendants file their motion to dismiss, at which point Plaintiff will move to supplement the Amended Complaint to add allegations based on post-filing events which occurred after the filing of his latest complaint and are already known to Plaintiff, as indicated above.

Unlike amendments made to cure pleading defects, which might appropriately be made in opposition to a motion to dismiss, Plaintiff’s proposed

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The Honorable Gregory H. Woods 5 supplemental allegations are already known to him at this time. As a result, Defendants believe that Plaintiff should amend his Amended Complaint now before any motion to dismiss is filed and litigated.1 It would not be efficient for Defendants to expend the time and resources necessary to prepare a motion to dismiss the current complaint (which the parties expect will no longer be operative), and then have to prepare yet another motion to dismiss in connection with a subsequent amended complaint. In Defendants’ view, it obviously would make much more sense for Plaintiff to amend now and for there to be only one motion to dismiss, not two.

Defendants are not aware whether Plaintiff intends to join any other parties referenced in the Amended Complaint but not currently named as defendants.

B. Pending Motions

There are no pending motions at this time.

C. Other Applications at Status Conference

No other applications are expected to be made at the status conference.

IV. Brief Description of Completed or Contemplated Discovery

No discovery has yet to be taken, as this case was just commenced two months ago. Plaintiff Nungesser contemplates taking discovery appropriate for a discrimination case after resolution of Defendants’ motion to dismiss, requesting documents and admissions related to the events alleged in the Amended Complaint and taking depositions of the named individual Defendants and possibly selected individuals at the University responsible for Title IX compliance.

V. Calculation of Damages Claimed

Plaintiff Nungesser’s Amended Complaint makes general allegations as to “damages in an amount to be determined at trial, including, without limitation, damages to physical well-being, emotional and psychological damages, damages to reputation, past and future economic losses, loss of educational and athletic opportunities, and loss of future career prospects.” The nature of these damages are not subject to a precise calculation.

1 Subject to seeing a copy of the proposed second amended or supplemental complaint, Defendants do not anticipate that they would oppose Plaintiff’s motion to amend or supplement, as described by Plaintiff.

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VI. Statement Describing Settlement Discussions/Conference

The parties have not yet engaged in any settlement discussions, but are prepared to explore possible resolutions.

VII. Other Information

On May 20, 2015, Plaintiff Nungesser graduated in good standing from the University. The Defendants believe that his graduation mooted Plaintiff Nungesser’s claims to the extent that he is seeking injunctive relief. Plaintiff Nungesser believes that his graduation does not change the need for finding the Defendants in violation of Title IX and state law so that universities recognize a duty to protect exonerated male students from discriminatory harassment and that relief is provided that remedies to the extent possible the effects of the discriminatory harassment.

* * *

The parties look forward to discussing these issues at the upcoming initial pretrial conference.

Respectfully submitted,

NESENOFF & MILTENBERG LLP

By: /s/ Philip A. Byler, Esq.

Counsel for Plaintiff Paul Nungesser

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

By: /s/ Roberta A. Kaplan, Esq.

Counsel for Defendants Columbia University, Trustees of Columbia University, Lee C. Bollinger, and Jon Kessler