enrique graf counterclaim

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION John Doe, )

)C/A No. 2:14-cv-01749-PMD

Plaintiff, ))

Versus ))

College of Charleston; Enrique Graf, individually and in his official capacity as former Music Professor and University Artist in Residence at the College of Charleston; P. George Benson, individually and in his official capacity as President of the College of Charleston; and Steve Rosenberg, individually and in his official capacity as former Dean of the Department of Music at the College of Charleston,

))))))))))

)Defendants. )

DEFENDANT ENRIQUE GRAF’S ANSWER TO PLAINTIFF’S COMPLAINT AND COUNTERCLAIMS AGAINST THE

PLAINTIFF (Jury Trial Requested)

Comes now, the Defendant, Enrique Graf, individually and in his official capacity as

former Music Professor and University Artist in Residence at the College of Charleston

(hereinafter “this Defendant”), answering the allegations of the Plaintiff’s Complaint, subject to

all applicable motions, affirmative defenses, and other pleadings, as follows:

1. Each and every allegation not specifically admitted in this Answer is denied.

AS TO JURISDICTION

2. This Defendant is without knowledge or information at this time to form a belief

as to the truth of the allegations contained in Paragraph 1 of the Plaintiff’s Complaint and

therefore, those allegations are denied.

3. In response to the allegations contained in Paragraph 2 of the Plaintiff’s

Complaint, this Defendant admits the College of Charleston is designated as one of the

2:14-cv-01749-PMD Date Filed 05/08/14 Entry Number 6 of 15

2

universities and colleges of the State of South Carolina and is located in Charleston, South

Carolina.

4. This Defendant admits the allegations contained in Paragraph 3 of the Plaintiff’s

Complaint.

5. The allegations contained in Paragraphs 4, 5, 6 and 7 of the Plaintiff’s Complaint

are not directed toward this Defendant and no response is required. To the extent a response is

required, this Defendant is without knowledge or information sufficient to form a belief as to the

truth of the allegations contained in Paragraphs 4, 5, 6 and 7 of the Plaintiff’s Complaint at this

time and therefore, those allegations are denied.

6. The allegations contained in Paragraphs 8 and 9 of the Plaintiff’s Complaint state

conclusions of law to which no response is required.

AS TO FACTUAL BACKGROUND


Complaint, this Defendant reasserts and realleges the above paragraphs as if fully restated herein

verbatim.

8. In response to the allegations contained in Paragraphs 11 and 12 of the Plaintiff’s

Complaint, this Defendant admits only that the Plaintiff was previously enrolled as a student at

the College of Charleston and this Defendant was employed as a Professor of Music and

University Artist in Residence at the College of Charleston. All remaining and inconsistent

allegations contained in Paragraphs 11 and 12 of the Plaintiff’s Complaint are denied.

9. The allegations contained in Paragraph 13 of the Plaintiff’s Complaint state



3

10. The allegations contained in Paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,

25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the Plaintiff’s Complaint contain allegations of the

Plaintiff’s personal history and relationship with this Defendant. Unless otherwise admitted

herein, this Defendant denies the allegations contained in Paragraphs 14, 15, 16, 17, 18, 19, 20,

21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the Plaintiff’s Complaint.

11. The allegations contained in Paragraphs 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,

46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71,

72, 73, 74, 75, 76, 77, 78, 79 and 80 of the Plaintiff’s Complaint contain statements of alleged

“inappropriate sexual advances” as to this Defendant. Unless otherwise admitted herein, this

Defendant denies the allegations contained in Paragraphs 35, 36, 37, 38, 39, 40, 41, 42, 43, 44,

45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70,

71, 72, 73, 74, 75, 76, 77, 78, 79 and 80 of the Plaintiff’s Complaint.

12. This Defendant denies the allegations contained in Paragraphs 81, 82, 83 and 84

of the Plaintiff’s Complaint.

13. The allegations contained in Paragraphs 85, 86, 87, 88, 89, 90, 91 and 92 of the

Plaintiff’s Complaint contain allegations of prior lawsuits or complaints and allegations not

directed to this Defendant to which no response is required. To the extent a response is required,

this Defendant denies the allegations contained in Paragraphs 85, 86, 87, 88, 89, 90, 91 and 92 of

the Plaintiff’s Complaint.

14. This Defendant denies the allegations contained in Paragraphs 93, 94, 95, 96, 97

and 98 of the Plaintiff’s Complaint.


4

15. The allegations contained in Paragraph 99 of the Plaintiff’s Complaint are not

directed toward this Defendant and no response is required. To the extent a response is required,

this Defendant denies the allegations contained in Paragraph 99 of the Plaintiff’s Complaint.

16. This Defendant denies the allegations contained in Paragraph 100 (including

subparts 1., 2., 3., 4., 5., 6., 7., 8., 9., 10., 11., 12., 13., 14., 15., 16., 17., 18. and 19.) of the

Plaintiff’s Complaint.

AS TO THE FIRST CAUSE OF ACTION (Violation of Title IX, 20 USC § 1681(a), as to College Defendants)



verbatim.

18. The allegations contained in Paragraphs 102, 103 and 104 of the Plaintiff’s

Complaint are not directed toward this Defendant and no response is required. To the extent a

response is required, this Defendant admits only the Plaintiff was previously enrolled as a

student at the College of Charleston. This Defendant is without knowledge or information

sufficient at this time to form a belief as to the truth of the remaining allegations contained in

Paragraphs 102, 103 and 104 of the Plaintiff’s Complaint and therefore, denies the those

allegations.

19. This Defendant denies the allegations contained in Paragraphs 105, 106, 107, 108,

109 and 110 of the Plaintiff’s Complaint.


conclusions of law not directed to this Defendant and no response is required. To the extent is a

required, this Defendant denies the allegations contained in Paragraph 111 of the Plaintiff’s

Complaint.


5

21. This Defendant denies the allegations contained in Paragraph 112 (including

subparts 1., 2., 3., 4., 5., 6., 7., 8., 9., 10., 11., 12., 13., 14., 15., 16., 17., 18. and 19.) of the


22. The allegations contained in Paragraphs 113 and 114 of the Plaintiff’s Complaint

state conclusions of law not directed to this Defendant and no response is required. To the extent

is a required, this Defendant denies the allegations contained in Paragraphs 113 and 114 of the


AS TO THE SECOND CAUSE OF ACTION (Violation of Plaintiff’s Fourteenth Amendment Equal Protection Right to be Free From

Sexual Harassment as to All Defendants, Violation of 42 U.S.C. § 1983)



verbatim.


state conclusions of law to which no response is required.

25. This Defendant denies the allegations contained in Paragraphs 118, 119, 120 and

121 of the Plaintiff’s Complaint.

AS TO THE THIRD CAUSE OF ACTION (Intentional Infliction of Emotional Distress as to Graf)



verbatim.

27. This Defendant denies the allegations contained in Paragraph 123, 124, 125, 126,

127 and 128 of the Plaintiff’s Complaint.


6

AS TO THE FOURTH CAUSE OF ACTION (Negligence / Gross Negligence as to College Pursuant to the South Carolina Tort Claims

Act, Sections 15-78-10, et seq., CODE OF LAWS OF SOUTH CAROLINA, 1976, as amended)



verbatim.

29. The allegations contained in Paragraphs 130, 131 (including subparts 1., 2., 3., 4.,

5., 6., 7., 8., 9. and 10.), 132 and 133 of the Plaintiff’s Complaint are not directed to this

Defendant and no response is required. To the extent a response is required, this Defendant

denies the allegations contained in Paragraphs 130, 131 (including subparts 1., 2., 3., 4., 5., 6., 7.,

8., 9. and 10.), 132 and 133 of the Plaintiff’s Complaint.

AS TO THE FIFTH CAUSE OF ACTION (Negligence / Gross Negligence as to College Negligent Hiring, Retention, and Supervision of Professor Graf Pursuant to the South Carolina Tort Claims Act, Sections 15-78-10, et

seq., CODE OF LAWS OF SOUTH CAROLINA, 1976, As amended)



verbatim.

31. The allegations contained in Paragraphs 135, 136 (including subparts 1., 2., 3., 4.,

5. and 6.), 137, 138 and 139 of the Plaintiff’s Complaint are not directed to this Defendant and

no response is required. To the extent a response is required, this Defendant denies the

allegations contained in Paragraphs 135, 136 (including subparts 1., 2., 3., 4., 5. and 6.), 137, 138

and 139 of the Plaintiff’s Complaint.


7

AS TO THE SIXTH CAUSE OF ACTION (Outrage as to College and Graf)



verbatim.

33. This Defendant denies the allegations contained in Paragraphs 141, 142, 143 and

144 of the Plaintiff’s Complaint.



35. This Defendant denies the allegations contained in Paragraph 146 of the


AS TO THE SEVENTH CAUSE OF ACTION (Outrage as to College for Failing to Take Action Despite Knowledge of Prior Complaints

Against Graf)



verbatim.

37. The allegations contained in Paragraphs 148, 149, 150, 151, 152, 153, 154, 155,

156 and 157 of the Plaintiff’s Complaint are not directed to this Defendant and no response is

required. To the extent a response is required, this Defendant denies the allegations contained in

Paragraphs 148, 149, 150, 151, 152, 153, 154, 155, 156 and 157 of the Plaintiff’s Complaint.

AS TO EIGHTH CAUSE OF ACTION (Assault & Battery as to Graf)



verbatim.


8

39. This Defendant denies the allegations contained in Paragraphs 159, 160 and 161

of the Plaintiff’s Complaint.

AS TO THE NINTH CAUSE OF ACTION (Violation of the South Carolina Campus Sexual Assault Information Act)



verbatim.


are not directed to this Defendant and no response is required. To the extent a response is

required, this Defendant denies the allegations contained in Paragraphs 163 and 164 of the


42. This Defendant denies the WHEREFORE paragraph (including subparts A., B.,

C., D. and E.), being the remaining allegations of the Plaintiff’s Complaint.

FURTHER ANSWERING AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES:

(Failure to State a Claim)

43. The allegations in the Plaintiff’s Complaint fail to state a claim upon which relief

may be granted against this Defendant. Therefore, this Complaint should be dismissed for all

applicable reasons in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure.


(Sovereign Immunity-Tort Claims Act)

44. This Defendant alleges that Plaintiff’s Complaint is barred or otherwise limited by

all applicable provisions of the South Carolina Tort Claims Act, including, but not limited to,

S.C. Code Ann. §15-78-60.


9


(Limitation of Remedies-Tort Claims Act)

45. Any recovery by Plaintiff must be limited to the remedies allowed under the

South Carolina Tort Claims Act, including, but not limited to, S.C. Code Ann. §§15-78-120(a)(1)

and 15-78-120(b).

FURTHER ANSWERING AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES: (Sole Remedy-Tort Claims Act)

46. The Plaintiff’s exclusive and sole remedy for any tort committed by an employee

of a governmental entity while acting within the scope of the employee’s official duty is the

South Carolina Tort Claims Act, and any claims asserted by Plaintiff not in compliance therewith

must be dismissed.

FURTHER ANSWERING AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES: (Eleventh Amendment Immunity)

47. Eleventh Amendment Immunity in accordance with the Constitutions of the

United States of America and the State of South Carolina bars Plaintiff’s Claims in totality

against this Defendant.


(Qualified Immunity)

48. This Defendant was at all times acting within its official and discretionary

capacity and as such, is entitled to qualified immunity.


10


(No Proximate Cause)

49. That any injuries sustained by the Plaintiff were not proximately caused by any

actions or inactions of this Defendant.


(Compliance with Statutes, Codes, and Regulations)

50. This Defendant alleges that Plaintiff’s claims are barred, in whole or in part,

because this Defendant complied with the applicable statutes codes, and regulations.


(Failure to Mitigate)

51. That the Plaintiff has failed to take reasonable actions to adequately mitigate his

damages, if any, by not undertaking proper preventative or curative measures.


(Election of Remedies)

52. The Plaintiff has pleaded alternative tort-based and statutory Causes of Action.

The Plaintiff is not entitled to a “double recovery” and must forthwith make an election of

remedies.


(Punitive Damages Unconstitutional / Limitation)

53. That any award or assessment of punitive damages would violate this Defendant’s

constitutional rights under the Fifth, Sixth and Fourteenth Amendments of the United States

Constitution and comparable provisions of the South Carolina Constitution. In addition, if

punitive damages are awarded, they must be limited as set forth at S.C. Code Section 15-32-530.


11


(Unclean Hands)

54. To the extent that Plaintiff was negligent, grossly negligent, willful, wanton and

reckless, resulting in any damages to Plaintiff, the existence of which expressly denied, Plaintiff

comes to this Court with unclean hands and such inequitable conduct on part of Plaintiff

constitutes a bar and complete defense to any claim for relief by Plaintiff.


(Statute of Limitations)

55. Plaintiff’s claims are barred by the applicable Statute of Limitations.


(No Constitutional Violation)

56. That alleged actions/inactions claimed by the Plaintiff did not rise to the level of

constitutional violations and the Plaintiff did not suffer any infringement of constitutional and/or

federal rights, state rights, privileges or immunities.


(Official Capacity)

57. This Defendant acting as a state official in his official capacity is not subject to

suit under 42 U.S.C. § 1983 as a matter of law.

FURTHER ANSWERING AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT ALLEGES: (Reservation and Non-Waiver)

58. This Defendant reserves any additional and affirmative defenses as may be

revealed or become available to it during the course of their investigation and/or discovery in the

case and is consistent with the Federal Rules of Civil Procedure.


12

FURTHER ANSWERING AND AS A COUNTERCLAIM, THIS DEFENDANT ALLEGES:

(Defamation)

59. Defendant is a citizen and resident of Charleston County, South Carolina.

60. Upon information and belief, Plaintiff is a citizen and resident of Charleston

County, South Carolina.

61. Plaintiff sought out the Defendant to serve as a piano teacher for the Plaintiff

because of the Defendant's excellent abilities and Defendant's work history as a concert pianist

and piano instructor.

62. Neither Plaintiff nor his mother is indigent or impoverished. Upon information

and belief, his mother has chartered two corporations in the State of Hawaii. Upon information

and belief she owns and operates a successful restaurant and a cultural arts program.

63. The Plaintiff and his piano teacher discussed the possibility of the Plaintiff

attending the College of Charleston and studying piano under the Defendant's tutelage. The

decision was made that the Plaintiff would attend the College of Charleston and study piano

under the tutelage of the Defendant.

64. For over four years, the Defendant's tutelage of the Plaintiff was unremarkable.

The Plaintiff never complained to the Defendant, and to the best of the Defendant's knowledge,

the Plaintiff never complained about the Defendant to anyone else.

65. Upon information and belief, at some point while enrolled at the College of

Charleston, the Plaintiff was arrested on account of his involvement with marijuana. At some

point thereafter, Defendant is informed and believes that Plaintiff began using synthetic

marijuana a/k/a "spice" a/k/a "k2", and that Plaintiff's drug usage spiraled out of control in the

Summer of 2012 when he began to evidence irrational thoughts and behavior.


13

66. This behavior became evident during a trip to Italy and attendance at an Italian

music festival during the Summer of 2012. The behavior was witnessed by the Defendant, other

faculty members of the music festival, and the Defendant's other students.

67. The Plaintiff was romantically involved with another student contemporaneously

taught by the Defendant, and she has provided an affidavit which describes the Plaintiff's

behavior during this trip to Italy and afterward. This redacted affidavit is attached as Exhibit

One to this Answer and Counterclaim and incorporated herein.

68. Upon information and belief, during this period of heavy drug use, the Plaintiff

irrationally came to view the Defendant as somehow responsible for difficulties that had arisen

between the Plaintiff and his romantic interest, as well as for the disapproval of the Plaintiff's

behavior which had arisen among the Plaintiff's peers.

69. Upon information and belief, the Plaintiff, maliciously, irrationally, and without

any legitimate basis in fact, began - in the Fall of 2012 - to defame the Defendant by telling a

third party repeatedly that the Defendant had subjected the Plaintiff to unwelcome sexual

advances and sexual misconduct throughout his tenure at the College of Charleston. This third

party was prompted to report these false reports to officials of the College of Charleston in

December of 2012.

70. The Plaintiff has willfully, wantonly, maliciously, and intentionally defamed the

Defendant, per se, by maliciously publishing false statements to third parties which indicated

that the plaintiff was unfit in his business or profession.

71. The acts and omissions of the Plaintiff were willful, wanton, reckless, malicious,

and occurred in bad faith, and have proximately caused damages, both actual and exemplary to

the Defendant.


14

72. The within lawsuit is nothing more than an attempt by the Plaintiff to get money

from the Defendants for conduct that never occurred, and for injuries which do not exist.

FURTHER ANSWERING AND AS A COUNTERCLAIM, THIS DEFENDANT ALLEGES:

(Tortious Interference with Contract and/or Prospective Contractual Relations)

73. The Defendant incorporates all the foregoing paragraphs of this Answer and

Counterclaim.

74. At the time of the afore-referenced wrongful acts of the Plaintiff, the Defendant

was a party to a contract of employment with the Defendant College of Charleston.

75. The Plaintiff had knowledge of the afore-referenced contract; by his conduct

intentionally procured its breach without justification; and thereby proximately caused actual and

punitive damages to the Defendant.

76. At the time of the afore-referenced wrongful acts of the Plaintiff, the Defendant

had potential contractual relations with the Defendant College of Charleston as well as other

entities. The Plaintiff intentionally interfered with the Defendant's potential contractual relations

for an improper purpose or by improper methods thereby proximately causing actual and

punitive damages to the Defendant.

JURY TRIAL DEMAND

77. Defendant demands a jury trial of all claims which may be tried to a jury.

WHEREFORE, having fully answered the Plaintiff’s Complaint, and having asserted

these affirmative defenses and counterclaims, the Defendant, Enrique Graf, individually and in

his official capacity as former Music Professor and University Artist in Residence at the College

of Charleston, prays that:

A) the Plaintiff’s Complaint be dismissed with prejudice and that the Defendant be awarded the costs and reasonable fees associated with this matter;


15

B) the Defendant's counterclaims be set down for a trial by jury;

C) Judgment for actual and punitive damages be entered against the Plaintiff and in favor of the Defendant on the Defendant's counterclaims;

D) This Court grant such other and further relief as may be deemed just and proper.

HOOD LAW FIRM, LLC 172 Meeting Street Post Office Box 1508 Charleston, SC 29402 Phone: (843) 577-4435 Facsimile: (843) 722-1630 Email: [email protected] s/ Elloree A. Ganes Robert H. Hood (1939) Elloree A. Ganes (9022) Brian E. Johnson (10098) Attorneys for the Defendant Enrique Graf, individually and in his official capacity as former Music Professor and University Artist in Residence at the College of Charleston

May 8, 2014 Charleston, South Carolina

GIBBS & HOLMES s/ Allan R. Holmes Allan R. Holmes (Fed. Bar #1925) Cheryl H. Ledbetter (Fed. Bar #11446) Suite 110, 171 Church Street Charleston, South Carolina 29401 Email: [email protected] Attorneys for the Defendant Enrique Graf on Counterclaim

May 8, 2014 Charleston, South Carolina


enrique graf counterclaim

Documents