Westenbroek et al v Kappa Kappa Gamma Fraternity et al

3:17 pm, 8/25/23
FILED
Margaret Botkins
Clerk of Court
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
JAYLYN WESTENBROEK, HANNAH
HOLTMEIER, ALLISON COG HAN,
GRACE CHOATE, MADELINE
RAMAR, and MEGAN KOSAR, on
behalf of themselves and derivatively on
behalf of KAPPA KAPPA GAMMA
FRATERNITY,
Plaintiffs,
V.
KAPPA KAPPA GAMMA
FRATERNITY, an Ohio non-profit
corporation, as a Nominal Defendant and
as a Direct Defendant, MARY PAT
ROONEY, President of the Fraternity
Council of KAPP A KAPP A GAMMA
FRATERNITY, in her official capacity,
KAPPA KAPPA GAMMA BUILDING
CO., a Wyoming non-profit corporation,
and ARTEMIS LANGFORD,
Defendants.
Case No. 23-CV-51-ABJ
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 19),
DISMISSING, WITHOUT PREJUDICE, PLANTIFFS' FIRST AMENDED
VERIFIED MEMBER DERIVATIVE COMPLAINT FOR BREACH OF
FIDUCIARY DUTIES (ECF NO. 6), AND DISMISSING AS MOOT
DEFENDANT ARTEMIS LANGFORD'S MOTION TO DISMISS (ECF NO. 22)
THIS MA TIER comes before the Court following Defendants', Kappa Kappa
Gamma Fraternity, an Ohio non-profit corporation ("KKG", "Kappa Kappa Gamma", or
"Kappa"), Mary Pat Rooney, President of the Fraternity Council of Kappa Kappa Gamma
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Fraternity ("Rooney"), and Kappa Kappa Gamma Building Co., a Wyoming non-profit
corporation ("KKG Building Co.") (collectively, "Defendants"), Motion to Dismiss, filed
on June 20, 2023. ECF No. 19. Pursuant to Fed. R. Civ. P. 12(b)(l), (2), and (6), Defendants
move to dismiss Plaintiffs', Jaylyn Westenbroek, Hannah Holtmeier, Allison Coghan,
Grace Choate, Madeline Ramar, 	and Megan Kosar (collectively, 	"Plaintiffs"), First
Amended 	Verified 	Member 	Derivative 	Complaint for 	Breach 	of Fiduciary 	Duties
("Complaint") (ECF No. 6), due to lacking subject matter jurisdiction over KKG Building
Co., lacking personal jurisdiction over Rooney, and Plaintiffs' failure to state a claim upon
which relief can be granted. ECF Nos. 19, at 2; 20.
Having reviewed the filings, the applicable law, and being otherwise fully advised,
the Court GRANTS Defendants' Motion to Dismiss (ECF No. 19) and DISMISSES,
WITHOUT PREJUDICE, Plaintiffs' Complaint (ECF No. 6).
Separately, the Court DISMISSES AS MOOT Defendant's, Artemis Langford
("Langford"), Motion to Dismiss with Prejudice ("Langford's Motion to Dismiss") (ECF
No. 22), filed on June 20, 2023.
BACKGROUND
Embittered by their chapter's admission of Artemis Langford, a trans gender woman,
six KKG sisters at the University of Wyoming sue their national sorority and its president.
Plaintiffs, framing the case as one of first impression, ask the Court to, inter alia, void their
sorority sister's admission, find that KKG's President violated her fiduciary obligations by
betraying KKG's bylaws, and prevent other transgender women from joining KKG
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nationwide. A "woman", say Plaintiffs, is not a transgender woman. Unadorned, this case
condenses to this: who decides whether Langford is a Kappa Kappa Gamma sister? Though
given the opportunity to vote this past fall, not the six Plaintiffs. Not KKG's Fraternity
Council. Not even this federal Court. The University of Wyoming chapter voted to admit
- and, more broadly, a sorority of hundreds of thousands approved - Langford. With its
inquiry beginning and ending there, the Court will not define "woman" today. The delegate
of a private, voluntary organization interpreted "woman", otherwise undefined in the non-
profit's bylaws, expansively; this Judge may not invade Kappa Kappa Gamma's freedom
of expressive association and inject the circumscribed definition Plaintiffs urge. Holding
that 	Plaintiffs 	fail 	to 	plausibly 	allege 	their 	derivative, 	breach 	of contract, 	tortious
interference, and direct claims, the Court dismisses, without prejudice, Plaintiffs' causes
of action. This Court outlines the case's posture, 1 its standard of review, and its disposition
in the pages that follow.
Founded in 1870, Kappa Kappa Gamma is a non-profit organization based in
Dublin, Ohio. ECFNos. 6, ,r,r21, 25, 28; 6-1, at 49, 55-56. 2 Today, KKG spans 140 college
1 Recounting the pertinent facts, infra, the Court wades through a well-researched, yet
meandering, complaint; for example, despite a seventy-two-page complaint excluding
attachments, Plaintiffs devote four-and-a-half pages to their actual claims. Only the facts relevant
to the four claims Plaintiffs bring against Defendants are outlined today. Those facts are accepted
as true for the purpose of resolving the motion at bar. ECF No. 6; see also ECF Nos. 20, 24, 26.
The Court also looks to documents attached as exhibits to Plaintiffs' Complaint. See Fed. R. Civ.
P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading
for all purposes."); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991) ("A written document
that is attached to the complaint as an exhibit is considered part of the complaint and may be
considered in a Rule 12(b)(6) dismissal.") (internal citations omitted).
2 KKG filed its Articles ofIncorporation with the Ohio Secretary of State in 1930. ECF No. 6-1,
at 56.
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campuses and boasts 210,000 living alumnae. ECF No. 6, 1 26. Of note are policies from
KKG's national headquarters and the University of Wyoming's KKG chapter; bear with
me as I summarize both. Broadly, KKG's "purposes", inter alia, are:
A. To unite women, through membership, in a close bond of friendship,
seeking to instill in them a spirit of mutual love and helpfulness, to the
end that each member and the Fratemity-at-large[31 may attain social,
moral, and intellectual excellence;
B. To establish chapters at various colleges and universities, provide for the
proper organization, installation, and operation, with each chapter having
the right and responsibility to select members of its choice in accordance
with Fraternity standards and procedures[.]
ECF No. 6-1, at 52 (emphasis added). KKG has Bylaws ("bylaws"), Standing Rules, 4 and
Fraternity Policies. ECF Nos. 6, 1 53; 6-1, at 2-30, 109-38, 140-61. While the KKG
bylaws state that "[a] new member shall be a woman", no bylaw defines "woman". ECF
No. 6-1, at 6.5
In 2018, KKG published a Guide for Supporting our LGBTQIA+ Members ("2018
Guide").6 ECF Nos. 6, 15; 6-1, at 32--43. The 2018 Guide states:
Kappa Kappa Gamma is a single-gender organization comprised of women
and individuals who identify as women whose governing documents do not
discriminate in membership selection except by requiring good scholarship
and ethical character.
3 KKG considers itself a "fraternity" in its governing documents. E.g., ECF No. 6-1, at 5.
However, emulating Plaintiffs and our national discourse, the Court refers to KKG as a
"sorority".
4 The Standing Rules state that "[a]ctive members shall be responsible for selecting new
members of their chapter." ECF No. 6-1, at 111.
5 When a new member, following acceptance of a local chapter's invitation, accepts admission to
KKG and annually thereafter, she pledges to "uphold the [KKG] Bylaws, Standing Rules and
Policies as well as [her] chapter Bylaws and Standing Rules." ECF No. 6-1, at 163.
6 The parties dispute when KKG began to allow transgender women to qualify for membership.
While Defendants allege that Kappa has allowed transgender women admission since 2015,
Plaintiffs respond that "there is no evidence of this fact." See ECF Nos. 20, at 3; 24, at 3. The
parties agree that KKG published its Guide in 2018. See ECF Nos. 6, ,r 5; 20, at 4.
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Each Kappa chapter has the final choice of its own members. . . . [T]he
chapter is well within its right to 	offer [a] 	potential member [who is
transgender] a bid.
ECF No. 6-1, at 32, 35 (emphasis added). While KKG's bylaws do not reflect the "and
individuals who identify as women" addition, accompanying documents, including KKG's
Position Statements 1 in 2021 and FAQs 8 in 2022, both published ahead of KKG's 2022
biennial convention, do. Id. at 105 (same language supra), 183 (same); cf id. at 2-30, 58-
86.9 An Illinois resident and volunteer, Rooney heads KKG's eight-member Fraternity
Council, consisting of directors and by extension staff tasked with supervising chapters
nationwide. ECF Nos. 6, ,r,r 22, 71; 26, at 3. 10 Plaintiffs equate KKG's Fraternity Council
to a corporation's board of directors. E.g., ECF No. 6, ,r 4.
7 The Position Statements also note that "[eJach chapter of Kappa Kappa Gamma has the final
choice of its own members." ECF No. 6-1, at 183.
8 The FAQs state:
We also look to NPC [National Panhellenic Conference ("NPC")] policy as an NPC
member organization. The NPC Recruitment Eligibility (2020) policy states: 'For the
purpose of participation in Panhellenic recruitment, woman is defined as an individual who
consistently lives and self-identifies as a woman. Each women's-only NPC member
organization determines its own membership selection policies and procedures.'
Why are we including gender-neutral pronouns in the revised documents?
This change is coming from a Convention resolution that formed Kappa's Diversity, Equity
and Inclusion Committee. Kappa Kappa Gamma was founded 150 years ago on the
principles of integrity, respect and regard for others. Kappa has reflected on the path
forward, and we are beginning with actions that speak to our belief that all members are
valued. This is one of those action steps. We want to be as inclusive of all members as we
can be.
ECF No. 6-1, at 105 (emphasis in original and added).
9 See also ECF No. 6-1, at 59 ("lnclusivity. Since diversity, equity and inclusion have been a
focus and the subject of a previous resolution at [the] Convention, a concerted effort has been
made to make sure the language of the documents is inclusive.").
10 See also Kappa Kappa Gamma Fraternity Council, available at:
https://www.kappakappagamma.org/why-kappa/our-leadership-team/fratemity-council/
(accessed Aug. 25, 2023).
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Founded in 1927, the KKG, or Gamma Omicron, chapter at the University of
Wyoming ("the UW chapter") has forty-four members and an on-campus house today.
ECF Nos. 6, ,r 78; 6-1, at 200. Plaintiffs 11 are six - some current and some graduated -
chapter members and undergraduates at the University. ECF Nos. 6, ,r,r 1, 15-20; 20, at 1.
Because KKG headquarters has a "live-in rule", all UW chapter members must reside
within the on-campus house in Laramie, Wyoming, signing a contract with KKG Building
Co. 12 to do so. ECF No. 6-1, at 148, 165-76. Like KKG's governing documents, neither
the UW chapter's Bylaws, 13 nor its Standing Rules, define "woman". Id. at 185-98, 200-
09.
During 	fall 	2022 	recruitment, 	the 	UW 	chapter voted 	to 	admit 	Langford, 	a
transgender14 woman. ECF No. 6, ,r 116. Per KKG protocol, Langford was subsequently
approved by KKG headquarters prior to her initiation to the chapter. Id., ,r,r 68, 139, 141;
11 In accordance with Tenth Circuit guidance, the Court twice denied Plaintiffs' request to
proceed anonymously in this matter. ECF Nos. 3, 5. On April 20, 2023, complying with the
Court's instruction, Plaintiffs filed an amended complaint featuring their true names. ECF No. 6.
12 Though not seeking damages from KKG Building Co., Plaintiffs allege that KKG Building
Co. is a Fed. R. Civ. P. 19(a)(l)(B) required party to this action because five Plaintiffs signed
housing contracts with KKG Building Co. for the 2022-23 academic year. ECF No. 6, ,r,r 23, 84.
13 The UW chapter Bylaws state that membership "shall be in accordance with the provisions of
the Fraternity [i.e., KKG] Bylaws." ECF No. 6-1, at 200.
14 "Transgender" is a broad, umbrella term that is often used for individuals whose brain sex,
gender identity, or gender expression either does not or is perceived not to match the physical
sex they were assigned at birth. See Stevie V. Tran & Elizabeth M. Glazer, Transgenderless, 35
HARV. J.L. & GENDER 399, 399 n.l (2012).
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ECF No. 6-1, at 120. Following Langford's admission, Plaintiffs accuse Langford15 of
salacious impropriety at the chapter house and elsewhere. 16
Plaintiffs' four claims include: (1) a derivative 17 cause of action, pursuant to Ohio
Rev. Code Ann.§ 1702.12(I)(l)(c), 18 against Rooney (ECF No. 6, ,r,r 159-67) ("Count I");
(2) breach of contract against KKG and KKG Building Co. (id., ,r,r 168-72) ("Count II");
(3) tortious interference with a contract against KKG (id., ,r,r 173-75) ("Count III"); and
(4) a direct19 cause of action against KKG and Rooney (id., ,r,r 176-79) ("Count IV").
Plaintiffs request three declaratory judgments from this Court, ordering: ( 1) that Langford
is ineligible for KKG membership and voiding, ab initio, her admission; (2) Defendants'
violation of their obligations to KKG by admitting Langford; and (3) Defendants' violation
of Plaintiffs' housing contracts. Id. at 70. Plaintiffs also seek preliminary and permanent
15 Like KKG Building Co., Plaintiffs do not seek damages or relief from Langford, but label her
a Fed. R. Civ. P. 19(a)(l)(B) required party. ECF No. 6, ,I I n.2.
16 Given Plaintiffs' dual dearth of claims against Langford and their inability to connect their
allegations concerning Langford's behavior to their four causes of action against the remaining
Defendants, the Court sees no reason to recount Plaintiffs' peripheral allegations against
Langford.
17 A derivative cause of action against an Ohioan non-profit corporation "seeks to vindicate the
duty owed by the board of the corporation to the corporation as a whole and not a duty that is
owed to a particular member or shareholder." Wood v. Cashelmara Condo. Unit Owners Ass 'n,
Inc., No. 110696, 2022 WL 1422807, at *4--5 (8th Dist. May 5, 2022).
18 Ohio law provides members of non-profit corporations with a derivative cause of action on
behalf of the corporation; § 1702.12, inter alia, states:
(I)(l) No lack of, or limitation upon, the authority of a corporation shall be asserted in
any action except as follows:
(c) By a member as such or by or on behalf of the members against the
corporation, a director, an officer, or a member as such.
Ohio Rev. Code Ann.§ 1702.12(1)(l)(c); see also ECF No. 6, ,I 46.
19 "A shareholder brings a derivative action on behalf of the corporation for injuries sustained by
or wrongs done to the corporation, and a shareholder brings a direct action where the shareholder
is injured in a way that is separate and distinct from the injury to the corporation." HER, Inc. v.
Parenteau, 147 Ohio App. 3d 285,291 (10th Dist. 2002).
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injunctive relief preventing Defendants from "seeking or encouraging" transgender women
to join KKG, damages, and attorneys' fees and costs. Id. 20
STANDARD OF REVIEW
Defendants challenge Plaintiffs' Complaint on three bases-and three Federal Rules
of Civil Procedure. I begin with a dose of procedural background; federal courts are courts
of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375,377
(1994). Accordingly, federal courts are presumed to lack jurisdiction "unless and until a
plaintiff pleads sufficient facts to establish it." See Celli v. Shoell, 40 F.3d 324, 327 (10th
Cir. 1994) (internal citation omitted). If jurisdiction is challenged, the party asserting
jurisdiction must demonstrate its existence by a preponderance of the evidence. See id.
First, when considering a Fed. R. Civ. P. 12(b)(l) challenge to subject matter jurisdiction
and the movant challenges the allegations set forth in the complaint, the Court must accept
those allegations as true. See Holt v. United States, 46 F .3d 1000, 1002-03 (I 0th Cir. 1995),
abrogated on other grounds by Cent. Green Co. v. United States, 531 U.S. 425, 437 (2001 ).
Second, Plaintiffs bear the burden of establishing personal jurisdiction. See Far W Cap.,
Inc. v. Towne, 46 F.3d 1071, 1075 (10th Cir. 1995). If, however, the Court resolves the
pending motion on the basis of their Complaint, Plaintiffs need only make a prima-facie
showing of personal jurisdiction. See OM/ Holdings, Inc. v. Royal Ins. Co. of Canada, 149
F.3d 1086, 1091 (10th Cir. 1998). Plaintiffs can make such a showing by alleging, "via
20 Defendants, excluding Langford, filed their Motion to Dismiss, coupled with a Memorandum
in Support, on June 20, 2023. ECF Nos. 19, 20. Plaintiffs responded in their Response in
Opposition on July 5, 2023, to which Defendants replied on July 12, 2023. ECF Nos. 24, 26.
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affidavit or other written materials, facts that if true would support jurisdiction over the
defendant." See AST Sports Sci., Inc. v. CLF Distrib., Ltd., 514 F.3d 1054, 1057 (10th Cir.
2008). Like a Fed. R. Civ. P. 12(b)(l) challenge, the Court accepts as true all well-pleaded
facts in the Complaint and resolves all factual disputes in Plaintiffs' favor. See Dudnikov
v. Chalk& Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008).
Third, when considering a Fed. R. Civ. P. 12(b)( 6) motion to dismiss, district courts
follow a two-pronged approach. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, "a
court considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth." Id.
Iqbal clarified that "the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions", and "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice."
Id. at 678. Second, "[w ]hen there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief." Id. at 679. The Court stated that "[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face."' Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Plausibility lies somewhere
between possibility 	and probability; 	a complaint must establish more than 	a mere
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possibility that Defendants acted unlawfully, but the complaint does not need to establish
that Defendants probably acted unlawfully. See id.
ANALYSIS
The Court dismisses KKG Building Co. and Plaintiffs' four claims without
prejudice. First, Plaintiffs fail to plead this Court's subject matter jurisdiction over KKG
Building Co. Second, Plaintiffs demonstrate this Court's personal jurisdiction over
Rooney. Third, while Plaintiffs demonstrate futility under Ohio law, their derivative
claim against Rooney fails to escape KKG's First-Amendment-protected freedom of
expressive association to include transgender members. Fourth, Plaintiffs fail to allege
any breach of contract. Fifth, Plaintiffs fail to allege any tortious interference of contract.
Sixth, Plaintiffs fail to allege a direct claim against Rooney under Ohio law. Below, the
Court proceeds from the courthouse door to the courtroom, addressing challenges to
jurisdiction and on the merits, seriatim.
A. The Court's Subject Matter Jurisdiction over Plaintiffs' Breach of Contract Claim
against, inter alia, KKG Building Co. (i.e., Count II).
Plaintiffs fail to allege this Court's subject matter jurisdiction over KKG Building
Co. Defendants move to dismiss Count II, alleging breach of contract against, inter alia,
KKG Building Co., for lack of subject matter jurisdiction. See ECF Nos. 20, at 7-8; 26, at
4-5. Plaintiffs appear to concede, parroting language from their Complaint that they do
not seek damages from KKG Building Co. but consider it a required party.21
21 Compare ECF No. 6, ,I 23 ("Plaintiffs do not seek damages directly from Kappa Housing
Corp., but Plaintiffs do allege that [KKG] has interfered with their contractual relationship with
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Preliminarily, the Court admits its confusion disentangling Plaintiffs' Count II,
which Plaintiffs seem to recognize. 22 Count II in Plaintiffs' Complaint appears to sue
KKG Building Co.; yet, in their response, Plaintiffs clarify that they sue KKG for two
breach of contract claims. This section addresses KKG Building Co.' s status vis-a-vis
Count II.
To proceed under this Court's diversity jurisdiction, 28 U.S.C. § 1332, as
Plaintiffs do, "all[] plaintiffls] need[] to do is allege an amount in excess of $75,000 and
[they] will get [their] way, unless[] defendant[s] [are] able to prove 'to a legal certainty'
that the plaintiffs claim cannot recover the alleged amount." McP hail v. Deere & Co.,
529 F.3d 947,953 (10th Cir. 2008) (quoting St. Paul Mercury lndem. Co. v. Red Cab
Co., 303 U.S. 283,289 (1938)) (internal citation omitted); ECF No. 6, ,r 13. In Young,
U.S. District Judge James 0. Browning opined:
The statutory amount-in-controversy requirement, which presently stands at
$75,000.00, must be satisfied as between a single plaintiff and a single
defendant for a federal district court to have original jurisdiction over the
dispute; a plaintiff cannot aggregate independent claims against multiple
defendants to satisfy the amount-in-controversy requirement, nor can
multiple plaintiffs aggregate their claims against a single defendant to
exceed the threshold. If multiple defendants are jointly liable, or jointly and
severally liable, on some of the claims, however, the amounts of those
claims may be aggregated to satisfy the amount-in-controversy requirement
as to all defendants jointly liable for the claims. Similarly, multiple
this Defendant. As such, Plaintiffs believe the Kappa Housing Corporation is a required party to
this litigation.") (citing Fed. R. Civ. P. 19(a)(l)(B)), with ECF No. 24, at 17-18 (near-verbatim
language).
22 ECF No. 24, at 14 ("Plaintiffs admit that there may be some ambiguities in the Complaint, but
only because there are actually two different contracts. There is the contract between Kappa and
its members under Ohio corporate law. And there is the contract with the Kappa Kappa Gamma
Housing Corporation ... Through Defendant Kappa's actions, they have created a breach of
contract as to both the sorority experience and paid housing experience that these young women
were prnmised. ") (emphasis added);
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plaintiffs may aggregate the amounts of their claims against a single
defendant if the claims are not separate and distinct.
Young v. Hartford Cas. Jns. Co., 503 F. Supp. 3d 1125, 1172-73 (D.N.M. 2020) (internal
quotations and citations omitted) (emphasis added). Here, Plaintiffs' Complaint and
response cement that they, explicitly, do not levy claims against or seek damages from
KKG Building Co. Plaintiffs also do not seek injunctive or declaratory relief from KKG
Building Co. See ECF No. 6, at 70 ("Plaintiffs pray for ... [a] declaratory judgment that
the Defendants have violated the housing contract[.]") (presumably referring to KKG
and/or Rooney); Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 897 (10th Cir.
2006) ("The Tenth Circuit has followed what has commonly been referred to as the
'either viewpoint rule' which considers either the value to the plaintiff or the cost to
defendant of injunctive and declaratory relief as the measure of the amount in
controversy for purposes of meeting the jurisdictional minimum.") (internal quotation
omitted). Plaintiffs also do not allege that KKG Building Co. is jointly liable with its co-
defendants. Nor is this a case where unquantifiable variables prevent the Court from
declaring to a legal certainty that no jury would award Plaintiff more than $75,000;
Plaintiffs, in their words, do not seek damages from KKG Building Co. and, when
prompted by Defendants to their amount-in-controversy flaw, fail to respond.
Accordingly, because Plaintiffs do not seek damages against KKG Building Co. and fail
to plead an amount in controversy as to that Defendant, the Court dismisses KKG
Building Co. from Count II for lacking subject matter jurisdiction.
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But wait, say Plaintiffs, K.KG Building Co. is a Fed. R. Civ. P. 19(a)(l)(B)
required party. "When applying Rule 19, a district court must first determine whether the
absent party is necessary to the lawsuit[.]" See Davis v. United States, 192 F.3d 951, 957
(10th Cir. 1999) (citing Fed. R. Civ. P. 19(a)). Necessity weighs three factors, including:
"(I) whether complete relief would be available to the parties already in the suit, (2)
whether the absent party has an interest related to the suit which as a practical matter
would be impaired, and (3) whether a party already in the suit would be subjected to a
substantial risk of multiple or inconsistent obligations." Rishell v. Jane Phillips Episcopal
Mem. Med. Ctr., 94 F.3d 1407, 1411 (10th Cir. 1996) (footnote omitted). 23 "If a
necessary person cannot be joined, the court proceeds to the second step, determining
'whether in equity and good conscience the action should proceed among the parties
before it, or should be dismissed, because the absent person ... is indispensable' to the
litigation at hand." Davis ex rel. Davis v. United States, 343 F.3d 1282, 1289 (10th Cir.
2003) (quoting Fed. R. Civ. P. 19(b)) (internal brackets omitted).
23 Identical in effect to Rishell's three-factor test, Fed. R. Civ. P. 19(a) states:
(l) Required Party. A person who is subject to service of process and whose joinder will
not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the
interest; or
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(l).
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Plaintiffs bear the burden of demonstrating KKG Building Co. 's necessity, yet,
beyond bare allusion to Fed. R. Civ. P. 19(a)(l)(B), make no effort to do so. See Davis,
192 F .3d at 951; ECF Nos. 6, ,r 23; 24, at 17. Nor is it apparent to the Court whether joinder,
in Plaintiffs' view, is warranted under Fed. R. Civ. P. 19(a){l)(B)(i) or (ii). See Fed. R.
Civ. P. 19(a)(l)(B); see also ECF No. 25, at 2, 4-8 (arguing for Langford's joinder under
Fed. R. Civ. P. 19(a)). Considering, sua sponte, KK.G Building Co.'s necessity under
Rishe/l's factors, none weigh in favor ofKKG Building Co. 's joinder.
First, Plaintiffs fail to establish that complete relief cannot be granted among KKG
and Rooney. 24 Though difficult to decipher, 25 Plaintiffs clarify that, under Count II, KKG's
"actions" breached "two" contracts, including Plaintiffs' membership contracts with KKG
in Ohio and their housing contracts with KKG Building Co. in Wyoming. ECF No. 24, at
14. As to Count III, Plaintiffs seemingly allege that KKG tortiously interfered with
Plaintiffs' housing contracts-and, like Count II, not any improper action by KKG Building
Co. ECF No. 6, ilil 23 ("Plaintiffs do allege that Kappa Kappa Gamma Fraternity has
interfered with their contractual relationship with [KKG Building Co.]."), 175. Because
24 See Begay v. Pub. Serv. Co. ofNM, 710 F. Supp. 2d 1161, 1183 (D.N.M. 2010) ("'Complete
relief refers to relief as between the persons already parties to the action and not as between a
present party and the absent party whose joinder is sought."') (quoting Champagne v. City of
Kan. City, Kan., 157 F.R.D. 66, 67 (D. Kan. 1994)).
25 See also ECF Nos. 24, at 14 ("Plaintiffs admit that there may be some ambiguities in the
Complaint, but only because there are actually two different contracts."), 20, at 17 n.8 ("To the
extent Plaintiffs purport to allege a breach of contract claim against Kappa or Rooney, the Court
should dismiss it because Plaintiffs do not allege that either is a party to the [KKG Building Co.]
[c]ontracts.").
14
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both contractual claims attack KKG's actions, not KKG Building Co., 26 complete relief
can be granted among KKG and/or Rooney.
Second, KKG Building Co. 	does not have an interest in this suit at risk of
impairment. 	The Court's review of the housing contracts, 	in fact, 	belies Plaintiffs'
contention that KKG Building Co. contracted with Plaintiffs to "provide housing in
accordance with the Bylaws, Standing Rules, and Policies of Kappa Kappa Gamma." ECF
Nos. 6, ,r 170; 24, at 14. The only applicable section of the housing contracts states:
5. Other Services. The chapter [i.e., the UW chapter] shall provide the
student such services as are customarily furnished by the chapter to residents
of the chapter house, subject to this contract, the Kappa Kappa Gamma
Fraternity Bylaws, Standing Rules and Policies; and rules and regulations of
the chapter, including, without limitation, the House Rules attached hereto
as Exhibit, subject to any changes may be made by the chapter, House Board
or the Fraternity at any time.
ECF No. 6-1, at 166-67 (identifiers omitted) (emphasis added). Notified of the lacking
contractual language supporting their claim, Plaintiffs, once again, fail to respond. See ECF
Nos. 20, at 19; 24. Thus, a key allegation to keep KKG Building Co. in this lawsuit - that
KKG Building Co. is contractually obligated to provide housing per headquarters policy -
withers under the Court's glancing scrutiny; if anything, the UW chapter must abide by
such policies, not KKG Building Co. ECF No. 6, ,r 170. Furthermore, it is KKG's policies
that underpin the sorority's alleged breach and tortious interference; under Plaintiffs' view,
26 ECF No. 6, 1 171 ("Langford's access to and presence in the sorority house violates the
housing contract that Plaintiffs signed."), 1175 ("Through their [i.e., KKG and/or Rooney's]
initiation of Langford, Defendants have prevented Plaintiffs from having the benefit of the
Housing Contract that they signed."), at 70 (requesting "[a] declaratory judgment that the
Defendants [i.e., KKG and/or Rooney] have violated the housing contract").
15
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this case turns on KKG's governing documents, not an independent non-profit confined to
housing issues, of which any interests held are adequately represented by KKG and/or
Rooney. See id., ,r,r 170, 175; EquiMed, Inc. v. Genstler, 170 F.R.D. 175, 179 (D. Kan.
1996) (finding that j oinder of an absent party was not necessary if its interests were
adequately represented by present parties) (citing Rishell, 94 F.3d at 1411-12); Portable
Solar, LLC v. Lion Energy, LLC, No. 22-CV-00026-DAK, 2022 WL 3153869, at *2 (D.
Utah Aug. 8, 2022) (noting that in tortious interference cases, courts should determine
necessity "by evaluating whether the absent party's rights or obligations under an existing
contract have necessarily become implicated"). However ineloquent, Plaintiffs' housing
contracts with KKG Building Co., while possibly relevant to damages down the road, are
not the subject of this litigation. See Wolf Mountain Resorts, LC v. Talisker Corp., No. 07-
CV-00548DAK, 2008 WL 65409, at *3 (D. Utah Jan. 4, 2008) ("It is well-established that
a party to a contract which is the subject of the litigation is considered a necessary party.")
(internal citation omitted) (emphasis added).
Third, there is no evidence to support an assertion that KKG or Rooney would be
subject to a substantial risk of multiple or inconsistent obligations if KKG Building Co.
was removed from this lawsuit. "Inconsistent obligations occur when a party is unable to
comply with one court's order without breaching another court's order concerning the same
incident." Sonnettv. Lankford, No. 15-CV-0024-SWS, 2016 WL 9105175, at *2 (D. Wyo.
Mar. 16, 2016) (internal quotation omitted). In short, nothing before the Court indicates
that KKG or Rooney's abilities to protect their interests would be hindered by dismissing
KKG Building Co.
16
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Therefore, the Court finds that KKG Building Co. 	is not a Fed. R. 	Civ. P.
19(a)(l)(B) necessary party. 27 The action proceeds, as does the Court, without KKG
Building Co.
B. The Court's Personal Jurisdiction over Rooney.
Shouldering their burden, Plaintiffs demonstrate this Court's personal jurisdiction
over Rooney. 	The parties dispute Rooney's contacts with Wyoming. 	On one hand,
Plaintiffs say that this Court has specific jurisdiction over a derivative suit against Rooney,
a corporate official, in Wyoming, where alleged injury, past and future, occurred. See ECF
No. 24, at 2 (citing Newsome v. Gallacher, 722 F.3d 1257 (10th Cir. 2013)). Defendants
counter that Plaintiffs levy no allegation that Rooney directed any conduct at Wyoming.
See ECF No. 26, at 3--4.
Plaintiffs assert one sect of personal jurisdiction - to wit, specific - which allows
this Court to haul a nonresident defendant to Wyoming federal court. See OM! Holdings,
Inc., 149 F.3d at 1090-91.28 Specific jurisdiction "depends on an affiliation between the
forum and the underlying controversy, principally, activity or an occurrence that takes
place in the forum State and is therefore subject to the State's regulation." Goodyear
27 Because KKG Building Co. is not a necessary party, the Court need not proceed with an
indispensability analysis under the Tenth Circuit's second step. See Salt Lake Tribune Pub. Co.,
LLC v. AT & T Corp., 320 F.3d 1081, 1098 (10th Cir. 2003).
28 This Court holds "'considerable leeway in deciding a pretrial motion to dismiss for lack of
personal jurisdiction."' Tungsten Parts Wyo., Inc. v. Glob. Tungsten and Powders Corp., No. 21-
CV-99-ABJ, 2022 WL 19263451, at *3 (D. Wyo. Jul. 13, 2022) (quoting Cheyenne Pub/'g, LLC
v. Starostka, 94 P.3d 463,469 (Wyo. 2004) (internal citation omitted)). The Court also makes
that determination "'on the basis of pleadings and other materials called to its attention."' Id
(quoting Staroskta, 94 P .3d at 469).
17
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Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal quotation,
citation, and brackets omitted). "To obtain personal jurisdiction over a nonresident
defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under
the laws of the forum statel 291 and that the exercise of jurisdiction does not offend the due
process clause of the Fourteenth Amendment." Towne, 46 F.3d at 1074.
Notably, 	"[s]pecific jurisdiction 	is 	proper 	if ( 1) 	the 	out-of-state 	defendant
'purposefully directed' its activities at residents of the forum State, and (2) the plaintiffs
alleged injuries 'arise out of or relate to those activities."' XMission, L. C. v. Fluent LLC,
955 F.3d 833, 840 (10th Cir. 2020) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985)). Challenged today, purposeful direction 30 "calls for an inquiry into
whether [Plaintiffs] have shown that [Rooney's] acts were (1) intentional, (2) 'expressly
aimed' at Wyoming, and (3) done with 'knowledge that the brunt of the injury would be
felt' in Wyoming." Eighteen Seventy, LP v. Jayson, 32 F.4th 956, 959 (10th Cir. 2022)
(quoting Dudnikov, 514 F.3d at 1072).31
29 Wyoming's long-arm statute, Wyo. Stat.§ 5-l-107(a), confers jurisdiction "on any basis not
inconsistent with the Wyoming or United States constitution."
30 Purposeful direction, or purposeful availment, requires that the defendant "deliberately . . .
engaged in significant activities within the forum State or deliberately directed [her] activities at
the forum State, so that [she] has manifestly availed [her]self of the privilege of conducting
business there." XMission, 	L.C., 955 F.3d at 840 (internal quotation, citation, and brackets
omitted).
31 Additionally, if the Court determines that the minimum contacts standard is satisfied,
exercising personal jurisdiction over Rooney "must always be consonant with traditional notions
of fair play and substantial justice." Dudnikov, 514 F.3d at 1080 (quoting Int'! Shoe Co. v.
Washington, 326 U.S. 310,316 (1945)).
18
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Plaintiffs plead Rooney's32 purposeful direction. Plaintiffs allege that Rooney,
despite "aware[ness ]" of Langford's ineligibility, "violated [her] fiduciary duties to
[KKG] when [she] procured and approved the initiation of' Langford. ECF No. 6, ,r,r 49,
105. Thus, the first element, intentional action, is satisfied; the record contains no
suggestion that Rooney acted unintentionally when, accepted as true, she approved
Langford's initiation following the UW chapter's invitation. While the parties disagree
when Rooney, or others on the Fraternity Council, knew about Langford's invitation to
join the UW chapter, Rooney's approval of Langford's induction, as alleged, occurred
thereafter. See ECF Nos. 20, at 12 n.6; 24, at 8.
The second element, express aiming at Wyoming, is more difficult for Plaintiffs,
but is nonetheless cleared. Yes, Plaintiffs' Complaint lacks reference to Rooney's
dealings with the UW chapter as President or her personal sign-off on Langford's
admission thirteen hundred miles away. The email from Executive Director33 Kari
Kittrell Poole - informing Plaintiffs that their "concerns were reviewed by several
national officers of the organization" and "we believe proceeding with [Langford's]
32 Plaintiffs' suing of only KKG's President, Rooney, and not other Fraternity Council members,
is also debated. See ECF Nos. 20, at 10 n.5; 24, at 7 n.2 ("The law does not require more, but if
there is a concern, Plaintiffs can sue more directors. [] Plaintiffs are open to whatever direction is
provided."). § 1702.12(1)(l)(c) does not appear to require naming all directors or officers as
defendants. See Ohio Rev. Code Ann.§ 1702.12(1)(l)(c) (" ... against ... a director, an
officer[.]") (emphasis added); see also In re Ferro Corp. Derivative Litig., 511 F.3d 611, 618-19
(6th Cir. 2008) ("[A] [pre-suit] demand may also be excused [from Ohio Civ. R. 23.1] 'when all
directors are named as wrongdoers and defendants in a suit[.]'") (quoting Carlson v. Rabkin, 152
Ohio App. 3d 672, 681 (1st Dist. 2003)). Due to its inability, however, to locate any state
authority on this question, the Court reserves judgment.
33 ECF No. 6-1, at 21 ("An Executive Director, employed by the Fraternity, shall serve as the
chief administrative officer and corporate secretary of the Fraternity and perform such duties as
defined by Fraternity Council.").
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initiation is the appropriate next step" - goes both ways; while that email could refer to
any of the other six members of the Fraternity Council, excluding Rooney, it is obviously
feasible that the Fraternity Council's corporate secretary was referring to the president34
of that body when she used "we". ECF No. 6, ,r,r 93, 141. Forgoing separation of their
purposeful direction analysis by element, Defendants lean upon, without naming, the
fiduciary shield doctrine. See ECF No. 20, at 8-9 (quoting Christian v. Loyakk, Inc., No.
19-CV-220-F, 2023 WL 170868, at* 14 (D. Wyo. Jan. 12, 2023)) (also quoting Virgin
Enter. Ltd. v. Virgin LLC, No. 19-CV-220-F, 2019 WL 13222758, at *3 (D. Wyo. Dec.
30, 2019), that dealt with foreign service of process and is in_apposite). Under that
doctrine, 35 even if a particular employee has "substantial contacts" with the forum state,
"those contacts will not count against the employee in the personal jurisdiction analysis
so long as the employee acted solely on the corporation's behalf." Newsome, 722 F.3d at
1275. Given that Rooney undoubtedly has not had "substantial contacts" with Wyoming,
Defendants appear to be arguing that contacts by Rooney's ''workforce" (e.g., KKG-
employed alumnae advisers at the UW chapter or Executive Director Poole) 36 in
Wyoming do not convey this Court's personal jurisdiction over Rooney. ECF No. 6,174;
34 "The members of Fraternity Council shall be the officers of the Fraternity: the President, the
Four Vice Presidents, and the Treasurer." ECF No. 6-1, at 18 (emphasis added).
35 Though the Wyoming Supreme Court has not expressly adopted the fiduciary shield doctrine,
the Tenth Circuit invoked the doctrine under an application of Wyoming law. See Newsome, 722
F.3d at 1277.
36 While this Judge is near-numb to hyperbole, Plaintiffs' statement that "every single [chapter]
decision is made by the 'workforce' that Rooney commands" is plainly inaccurate. See ECF No.
24, at 7. Per the UW chapter's Bylaws, K.KG advisers may not vote during recruitment of new
members. See ECF No. 6-1, at 208 ("Advisers shall serve in an advisory capacity without a
vote."). The KKG bylaws outline the same. See id. at 27 ("Advisers to each of the chapter
officers ... shall serve in an advisory capacity without vote.").
20
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see, e.g., Walden v. Fiore, 571 U.S. 277, 286 (2014) ("Due process requires that a
defendant be haled into court in a forum State based on h[ er] own affiliation with the
State, not based on the ... 'attenuated' contacts [s]he makes by interacting with other
persons affiliated with the State.") (quoting Burger King Corp., 471 U.S. at 475).
Fair enough. Nevertheless, accepting Plaintiffs' allegation that Rooney approved
Langford as true, as I must, the "'focal point"' of Rooney's actions occurred in
Wyoming. See Dudnikov, 514 F.3d at 1076-77 (quoting Calder v. Jones, 465 U.S. 783,
789 (1984)). Langford's admission, however minor among thousands across 140 chapters
each fall and spring, occurred at a KKG chapter house in Wyoming; Rooney's alleged
sign-off was an "intentional action[] that [was] expressly aimed at" Wyoming. See id.
(finding express aiming where the defendants intended "to halt a Colorado-based sale by
a Colorado resident" and the presiding-state's location was obvious from an eBay auction
page) (emphasis altered). Moreover, a corporate officer 37 may be sued in a derivative
action where the injury occurred. See, e.g., Newsome,38 722 F.3d at 1268-69 (finding
personal jurisdiction where corporate directors expressly aimed their wrongdoing at
37 Defendants do not offer, nor can this Court unearth, controlling authority indicating that
Rooney's volunteer status on the Fraternity Council dictates a contrary outcome than would a
compensated officer. See ECF Nos. 20, at 8-9; 26, at 3-4; see also Bronner v. Duggan, 249 F.
Supp. 3d 27, 40 (D.D.C. 2017) (finding that, despite the volunteer service of a governing body's
officers, the directors could still anticipate being hauled into a Washington, D. C. court to account
for their activities).
38 Defendants' interpretation of Newsome, that a fiduciary can be subject to personal jurisdiction
ifthat fiduciary has contacts with the forum state, lacks support. See ECF No. 26, at 3 (citing 722
F.3d at 1264, which merely outlined personal jurisdiction's general contours). Defendants also
fail to engage with Newsome's analysis of the purposeful direction elements. See 722 F.3d at
1268-74; ECF No. 20, at 9. Their reply offers no additional authority that compels the Court
otherwise. See ECF No. 26, at 3-4.
21
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Oklahoma when they saddled a subsidiary company, knowing it "operated exclusively"
in Oklahoma, with overwhelming debt).
The final element of purposeful direction "concentrates on the consequences of the
defendant's action-where was the alleged harm actually felt by the plaintiff." Dudnikov,
514 F.3d at 1075. I look, once again, to Newsome, where the Tenth Circuit found that a
Delaware corporation and its creditors, to whom the defendants owed fiduciary duties,
were injured primarily in Oklahoma because "the individual defendants knew that the
brunt of any injury to [the corporation] would be felt in Oklahoma." See 722 F.3d at 1269
(citingDudnikov, 514 F.3d at 1077). KKG operates via its Gamma Omicron chapter in
Wyoming; when Rooney approved Langford's admission, injury, if any, would occur on
campus in Laramie, Wyoming. ECF No. 6, ,r,r 166-67. Therefore, Rooney "purposefully
directed" her activities at Wyoming. 39 See Dudnikov, 514 F .3d at 1078 (internal quotation
marks omitted).
Plaintiffs demonstrate this Court's personal jurisdiction over Rooney. The Court
proceeds to the merits.
C. Count I: Plaintiffs' Derivative Claim.
Defendants critique Count I in two ways, including Plaintiffs': (1) failure to
demonstrate futility under Ohio law; and (2) seeking of relief contravening a voluntary
39 Because Defendants do not challenge personal jurisdiction on any basis but purposeful
direction (i.e., specific jurisdiction's initial element), the Court declines from engaging in
unbriefed analyses concerning Plaintiffs' alleged injuries "aris[ing] out of or relat[ing] to those
activities [above]" or '"offend[ed] traditional notions of fair play and substantial justice."' See
XMission, L.C., 955 F.3d at 840 (internal quotation omitted); Dudnikov, 514 F.3d at 1080
(quoting Int'/ Shoe Co., 326 U.S. at 316); ECF Nos. 20, at 8-9; 26, at 3-4.
22
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organization's freedom of association. While Plaintiffs demonstrate futility under Ohio
law, their derivative claim against Rooney40 fails to escape KKG's First-Amendment-
protected freedom of expressive association to include transgender members.
1. 	Ohio Civ. R. 23.1 Futility.
I begin with Defendants' argument of lacking Ohio Civ. R. 23.1 specificity. Due
to KKG's incorporation in Ohio, Ohio law governs Plaintiffs' derivative claim.41 "When
members bring a derivative action against a nonprofit corporation, they are enforcing a
corporate right just as shareholders in for-profit corporations." Russell v. United
Missionary Baptist Church, 92 Ohio App. 3d 736, 739 (12th Dist. 1994); Ohio Rev. Code
Ann.§ 1702.12(I)(l)(c). Governing derivative actions, Ohio Civ. R. 23.1 states:
Derivative Actions by Shareholders. ... The complaint shall also allege
with particularity the efforts, if any, made by the plaintiff to obtain the
action he desires from the directors and, if necessary, from the shareholders
and the reasons for his failure to obtain the action or for not making the
effort.
40 See ECF No. 6, ,r,r 163 ("[T]he directors of the Sorority have violated their duties of loyalty,
care, and obedience/compliance."), 166 ("As a result of Defendant's behavior ... "), 167 ("[T]he
behavior of Defendant Rooney and other Fraternity Council members will result in the chapter's
closure[.]").
41 Both parties appear to stipulate that, due to its incorporation in Ohio as a private, non-profit
corporation, KKG is governed by Ohio law. See ECF Nos. 20, at 9; 24, at 11-12; 6-1, at 23
("The Fraternity shall be governed in accordance with the laws of the state of Ohio[.]"); see, e.g.,
In re ZAGG Inc. S'holder Derivative Action, 826 F.3d 1222, 1228 (10th Cir. 2016) (noting that
"federal common law should adopt the futility law of the state of incorporation of the company
on behalf of which the plaintiffs are bringing suit"); Banjo Buddies, Inc. v. Renosky, 399 F .3d
168, 179 n.10 (3d Cir. 2005) (applying the law of the state of incorporation to breach of fiduciary
duty claims); Baker-Bey v. Delta Sigma Theta Sorority, Inc., No. 12-1364, 2013 WL 1742449, at
*4 (E.D. Pa. Apr. 23, 2013) (same).
23
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Ohio Civ. R. 23.1; see also Fed. R. Civ. P. 23.l(b)(3)(A). 42 "'[N]o shareholder has an
independent right to bring suit unless the board [of directors] refuses to do so and that
refusal i[s] wrongful, fraudulent, or arbitrary, or is the result of bad faith or bias on the
part of the directors."' In re Cardinal Health, Inc. Derivative Litig., 518 F. Supp. 3d
1046, 1064 (S.D. Ohio 2021) (quoting Drage v. Procter & Gamble, 119 Ohio App. 3d
19, 24 (1st Dist. 1997)) (emphasis in original). Failure to make this pre-suit demand is
excused, however, when a plaintiff can demonstrate that the demand would have been
futile. Id. ( citing Drage, 119 Ohio App. 3d at 25).
Ohio courts have found a demand presumptively futile 'where the directors
are antagonistic, adversely interested, or involved in the transactions
attacked.' Likewise, for example, a demand may also be excused 'when all
directors are named as wrongdoers and defendants in a suit, when there is
self-dealing by the directors such that the directors gain directly from the
challenged transactions, or when there is domination of nondefendant
directors by the defendant directors.'
In re Ferro Corp. Derivative Litig., 511 F.3d at 618-19 (quoting Bonacci, 1992 WL
181682, at *4 and Carlson, 152 Ohio App. 3d at 681) (emphasis added). Defendants
argue that Plaintiffs' failure to elevate their concerns to the Fraternity Council and
identify violated KKG bylaws belies futility. See ECF No. 20, at 11-12. Plaintiffs
counter, sans state authority, that they and other relatives 43 pestered KKG for months
42 "[Ohio] Civ. R. 23.1 and Fed. R. Civ. P. 23.1 are essentially the same." Bonacci v. Ohio
Highway Exp., Inc., No. 60825, 1992 WL 181682, at *4 (8th Dist. Jul. 30, 1992) (spacing
altered).
43 See also ECF No. 27-1, at 1 (i.e., the mother of Plaintiff Holtmeier's email to a KKG officer).
Though the email's date is unlisted, the Court presumes, based on the reference to Langford's
accepting a bid "today", that the email was sent in October or early November 2022.
24
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prior to Langford's induction and were ultimately rejected by Executive Director Poole's
email in mid-November 2022. See ECF Nos. 24, at 10; 6, ,r 165; 6-1, at 45-47.
Plaintiffs plead specific facts to demonstrate that the Fraternity Council, akin to
Kappa's board of directors,44 is "antagonistic, adversely interested, or involved in the
transactions attacked." See In re Ferro Corp. Derivative Litig., 511 F.3d at 618; see also
Lejfv. CIP Corp., 540 F. Supp. 857, 868-69 (S.D. Ohio 1982) (when evident from a
complaint that the directors of a corporation would oppose a derivative suit, formal
demand on the directors is considered futile and unnecessary). Though demand futility in
Ohio is no "easy task,"45 further efforts by Plaintiffs to convince the Fraternity Council to
alter their stance on admitting "individuals who identify as women" would be futile. For
months ahead of Langford's induction, Plaintiffs, their families, and counsel petitioned
Executive Director Poole, Rooney, KKG district and content directors, and KKG alumni
representatives to overrule the UW chapter's decision. ECF Nos. 6-1, at 178-79; 24, at 9-
11; 27-1, at 1. Addressing KKG leadership, including Rooney, Plaintiffs' counsel
communicated the crux of their future claims, including "a breach of contract and a
44 See Ohio Rev. Code Ann. §§ 1702.0l(K) ("'Directors' means the persons vested with the
authority to conduct the affairs of the corporation irrespective of the name, such as trustees, by
which they are designated."), 1702.30(B) ("A director shall perform the duties of a director,
including the duties as a member of any committee of the directors upon which the director may
serve, in good faith, in a manner the director reasonably believes to be in or not opposed to the
best interests of the corporation, and with the care that an ordinarily prudent person in a like
position would use under similar circumstances. A director serving on a committee of directors is
acting as a director."); ECF No. 6-1, at 18 ("Fraternity Council serving hereunder shall have the
power, authority and responsibilities of and shall perform the functions provided for directors
under the Ohio Nonprofit Corporation Law.").
45 In re Ferro Corp. Derivative Litig, No. 04CV1626, 2006 WL 2038659, at *5 (N.D. Ohio Mar.
21, 2006).
25
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violation of Kappa Kappa Gamma's by-laws and standing rules", recounted their failed
efforts thus far (e.g., being "told that their values don't align with those of Kappa so they
should reconsider being in Kappa"), and requested that the Fraternity Council "legally
alter the sorority's membership requirements and conduct a valid vote in accord with
existing rules or halt the illegal course of conduct being pursued[.]" ECF No. 6-1, at 179-
80 (internal quotation marks and errant comma omitted). Rooney, Executive Director
Poole, and other Fraternity Council members are the same officers who purportedly
approved Langford; under Plaintiffs' theory, Rooney and other directors violated KKG's
bylaws46 - of course the Fraternity Council would oppose Plaintiffs' federal lawsuit.
Finding futility under Ohio Civ. R. 23.1, the Court forges on.
2. 	Kappa Kappa Gamma's Freedom of Expressive Association.
After much leadup, the Court turns to the gravamen of Plaintiffs' lawsuit. Their
derivative claim condenses to this: from 1870 to 2018, KKG defined "woman" to exclude
transgender women; any new definition may not be enacted, ultra vires, without a KKG
bylaw amendment. 47 Expectedly, Defendants counter: private organizations may interpret
their own governing documents and define "woman" as including transgender women. 48
Defendants are correct. Defining "woman" is Kappa Kappa Gamma's bedrock
right as a private, voluntary organization- and one this Court may not invade. Below, I
apply Ohio and U.S. Supreme Court jurisprudence to the facts at bar.
46 ECF No. 6, 11 163-65.
47 See ECF Nos. 24, at 11-14; 6, 1104.
48 See ECF No. 20, at 12-15.
26
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First, Ohio law is highly deferential to associational interpretation. "As a general
rule, Ohio courts are unwilling to interfere with the management and internal affairs of a
voluntary association." Redden v. Alpha Kappa Alpha Sorority, Inc., No. 09CV705, 2010
WL 107015, at *5 (N.D. Ohio Jan. 6, 2010). More specifically:
[T]hose who become members of non-profit corporations are presumed to
have joined them with knowledge of their nature and the law applicable to
them, and to have consented to be bound by the principles and rules of
government, or the policy which they have adopted, or may adopt ... [T]he
member has, by voluntarily becoming a member of the order, chosen his
forum for the redress of his grievances, and unless there has been some
palpable violation of the constitution or laws of the corporation whereby he
has been deprived of valuable rights, the civil courts will not interfere.
Powell v. Ashtabula Yacht Club, No. 953, 1978 WL 216074, at *3 (11th Dist. Dec. 4,
1978) (internal citations omitted) (emphasis added) (rejecting a member's plea to
overturn the termination of his club membership where the club met due process
requirements, including facilitating the member's presence and opportunity to be heard at
a hearing); see Stibora v. Greater Cleveland Bowling Ass 'n, 63 Ohio App. 3d 107, 113
(8th Dist. 1989) ("'A voluntary association may, without direction or interference by the
courts, for its government, adopt a constitution, by-laws, rules and regulations which will
control as to all questions of discipline, or internal policy and management, and its right
to interpret and administer the same is as sacred as the right to make them."') (quoting
State ex rel. Givens v. Superior Court of Marion Cnty., 233 Ind. 235,238 (1954))
(emphasis added); Putka v. First Catholic Slovak Union, 75 Ohio App. 3d 741, 748 (8th
Dist. 1991), cert. denied, 503 U.S. 986 (1992) ("Generally speaking, in matters of policy,
discipline or internal economy of a voluntary association, wherein the members have
27
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mutually agreed upon a charter or rules, the decision of the association itself is
supreme.") (internal citation omitted).
I tum to guidance from the United States Supreme Court. In Boy Scouts ofAm. v.
Dale, 530 U.S. 640 (2000) (Rehnquist, CJ.), the Court held that the application ofNew
Jersey's nondiscrimination law, requiring the Boy Scouts to appoint James Dale, an
openly gay man as a scoutmaster, ran "afoul of the Scouts' freedom of expressive
association." 49 Id. at 656. The Court found that a state compelling the Scouts to include
Dale would "interfere with the Boy Scouts' choice not to propound a point of view
contrary to its beliefs." Id. at 653-54. "[T]he First Amendment simply does not require
that every member of a group agree on every issue in order for the group's policy to be
'expressive association.' The Boy Scouts takes an official position ... and that is
sufficient for First Amendment purposes." 50 Id. at 655 (emphasis added). Chief Justice
Rehnquist concluded:
'While the law is free to promote all sorts of conduct in place of harmful
behavior, it is not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one,
however enlightened either purpose may strike the government.'
49 Freedom of expressive association is the "right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious, and cultural ends." Dale, 530 U.S. at
647.
so See also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1149 (10th Cir. 2013) (en bane)
(Hartz, J., concurring) ("[An organization's] speech or conduct may reflect the view of only a
bare majority of the members, or even just the view of the members' delegate-such as the editor
of a newspaper or the pastor of a congregation. It suffices that the speech or conduct represents
an 'official position."') (quoting Dale, 530 U.S. at 655) (emphasis added).
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Id. at 661 (quoting Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515
U.S. 557, 579 (1995)) (emphasis added). Dale's takeaway for the Court: the government
may not defy the internal decision-making of a private organization, including the criteria
governing that entity's membership. 51
Voluntary organizations beget benefits and drawbacks. KKG provides community
on campus and a professional network for life.52 Forty-four women in Laramie seemingly
prioritized those benefits when they rushed. Membership, on the other hand, relinquishes
a dose of personal autonomy. That organization may say or publish something anathema
to one or a faction of members. Take the 2018 Guide, speech that Plaintiffs undoubtedly
51 Advanced by Defendants, Bostock, by contrast, is inapposite today. See Bostock v. Clayton
Cnty., Ga., 140 S. Ct. 1731 (2020) (Gorsuch, J.). There, the Court held that "it is impossible to
discriminate against a person for being ... transgender without discriminating against that
individual based on sex" because "to discriminate on th[is] ground[] requires an employer to
intentionally treat individual employees differently because of their sex." Id at 1741-42. Justice
Gorsuch concluded that Title VII "prohibit[ s] [employers] from firing employees on the basis of
... transgender status." Id at 1753. Both sides misapply Bostock. Defendants say that if the
Supreme Court interpreted "discrimination because of sex" as protecting transgender individuals,
so too may Kappa interpret its bylaws "to be similarly inclusive." See ECF No. 20, at 14.
Plaintiffs respond that the law's ordinary meaning at enactment (i.e., KKG's definition of
"woman" in 1870) "usually governs." See ECF No. 24, at 12-13. Neither argument assists the
Court today. Had the UW chapter or KKG denied Langford admission because she was
transgender, Bostock, though addressing employer discrimination, would certainly amplify. On
the other hand, Bostock concerned the Court's statutory interpretation of Title VII and not a
private organization's internal bylaws. See, e.g., 140 S. Ct. at 1738 ("[O]nly the words on the
page constitute the law adopted by Congress and approved by the President. If judges could add
to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and
our own imaginations, we would risk amending the statutes outside the legislative process
reserved for the people's representatives.").
52 In fact, each year of their KKG membership, Plaintiffs signed the following: "I recognize that
membership in Kappa Kappa Gamma offers me many benefits and the opportunity for
friendship, mutual support, personal growth and intellectual development. I understand that the
privilege of membership comes with great responsibility." ECF No. 6-1, at 163; see also 303
Creative LLC v. Elenis, 143 S. Ct. 2298, 2315 (2023) (Gorsuch, J.) ("In Dale, the Boy Scouts
offered what some might consider a unique experience.") (citing 530 U.S. at 649-50).
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disagree with. Just as the Boy Scouts were "an expressive association" entitled to First
Amendment protection, so too is Kappa Kappa Gamma. 53 See Dale, 530 U.S. at 647-56,
650 ("It seems indisputable that an association that seeks to transmit such a system of
values engages in expressive activity."). The law, or this Court, may not interfere with-
whether promoting or discouraging - that speech. Dale controls today, interestingly with
the shoe on the other foot. 54 Whether excluding gay scoutmasters in Dale or including
trans gender women in Kappa, this Judge may not invade Kappa's sacrosanct,
associational right to engage in protected speech. KKG's "official position" of admitting
trans gender women, even if decreed by a mere "delegate", is speech which this Court
may not impinge. See Dale, 530 U.S. at 655; Sebelius, 723 F.3d at 1149 (Hartz, J.,
53 See Iota XI Chapter of the Sigma CHI Fraternity v. Paterson, 538 F. Supp. 2d 915,923 (E.D.
Va. 2008), aff'd on other grounds, 566 F.3d 138 (4th Cir. 2009) (extrapolating Dale to find that
"a college fraternity is no different from the Boy Scouts"); see also Schultz v. Wilson, 304 F.
Appx. 116, 120 (3d Cir. 2008) (unpublished) ("A social group is not protected unless it engages
in expressive activity such as tal<lng a stance on an issue of public, political, social, or cultural
importance.") (internal citation omitted). The 2018 Guide was obviously such a stance by KKG.
Because this matter presents no governmental action, which, in part, distinguishes Dale, the
Court sees no reason to conduct Dale's three-step analysis regarding a group's expressive
association claim. See 530 U.S. at 650-56.
54 Plaintiffs do not engage with Dale. Had they, Plaintiffs would likely contend that the
Fraternity Council's unilateral decision to admit transgender women violated the members' First
Amendment rights because it "force[d] the organization to send a message ... that [it] accepts"
transgender women for KKG membership, belying their views. See Dale, 530 U.S. at 650; see
also Green v. Miss United States ofAm., LLC, 52 F.4th 773, 802 (9th Cir. 2022) (rejecting a
transgender applicant's plea to "use the power of the state to force Miss United States of
America to express a message contrary to what it desires to express"). Dale's posture, however,
lends little to Plaintiffs; there, the Court considered the constitutionality of a state's
nondiscrimination law compelling expression, rather than a member's challenge to an expressive
decision of their voluntary organization. See also Roberts v. U.S. Jaycees, 468 U.S. 609, 622-23
(1984) (Brennan, J.) ("There can be no clearer example of an intrusion into the internal structure
or affairs of an association than a regulation that forces the group to accept members it does not
desire. Such a regulation may impair the ability of the original members to express only those
views that brought them together.").
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concurring). Notably, there are also two associational layers before the Court. Not only
did KKG headquarters publish their willingness to accept transgender women in 2018,
the UW chapter voted to associate with Langford in 2022. See Dale, 530 U.S. at 658
("Impediments to the exercise of one's right to choose one's associates can violate the
right of association protected by the First Amendment.") (internal quotation and brackets
omitted). Cognizant of Langford's gender identity, the UW chapter determined that she
met their criteria for membership, including, inter alia, "integrity, respect, and regard for
others"; KKG confirmed the same thereafter. ECF No. 6-1, at 6-7. Their decisions lie
beyond the purview of this Court.
Plaintiffs respond that Kappa's freedom of expressive association does not insulate
the organization from amendment of its own bylaws. I disagree, especially where
Plaintiffs cannot point the Court to the bylaw that defines "woman" the way they wish.
Of course, an organization binds itself via its bylaws. 55 Those bylaws state that a new
Kappa "shall be a woman". 56 ECF No. 6-1, at 6. The parties diverge from there. Whereas
Plaintiffs circumscribe "woman", their delegate augmented the same. See ECF No. 24, at
11. In the Court's view, that is a lawful interpretation - explicitly authorized per the
sorority's Standing Rules - of an otherwise-silent bylaw. See ECF No. 6-1, at 119 ("The
55 ECF No. 6-1, at 23 ("The Fraternity Bylaws shall constitute the code ofregulations of the
Fraternity.").
56 The Court sees no reason to disturb the governance process by which the Fraternity Council
published its Position Statements in 2021 and FAQs in 2022 ahead of KKG's biennial
convention in 2022. Any issue that Plaintiffs raise with respect to KKG' s putatively improper
counting of the two-thirds vote necessary for bylaw amendment belong before the sorority, not
this Court. See also ECF No. 6-1, at 24 (mandating a two-thirds convention vote to amend a
KKG bylaw, sans any requirement regarding the Fraternity Council's method (e.g., voice or
written) of counting votes).
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administrative duties of Fraternity Council shall include ... [i]nterpreting the Fraternity
Bylaws and Standing Rules[.]"). Plaintiffs' plea that the Court interpret "woman" as it
was in 1870 clashes with this and other Courts' deference to organizational autonomy, or
the notion that organizations deserve considerable latitude to interpret their own bylaws.
For instance, the Powell court in Ohio spotlighted an exception to courts' general
unwillingness to interfere with a voluntary association when "there has been some
palpable violation of the constitution or laws of the corporation whereby [the member]
has been deprived of valuable rights." 1978 WL 216074, at *4. Plaintiffs make no such
showing. Instead, they ask this Court to overrule one interpretation and inject another.
The Court refuses to do so.
Though an akin bylaw-interpretation, derivative challenge is non-existent, the
Court's approach today, from a policy perspective, is practical. This Court cannot step in
every time a member, or even multiple members, cries foul when a bylaw is disparately
interpreted; if it did, KKG and its Fraternity Council would spend their days responding
to derivative suits from their thousands of current members and 210,000 alumnae. See
also Barrash v. Am. Ass 'n ofNeurological Surgeons, Inc., No. 13-cv-1054, 2013 WL
4401429, at *6 (S.D. Tex. Aug. 13, 2013) (noting that such interference would subject a
non-profit, private organization to "frustration at every tum" and cause it "to founder in
the waters of impotence and debility"). Our federal and state courts would similarly be
overrun with disgruntled members challenging large organizations. Consider, also, that
KKG supervises 140 chapters nationwide; reception of contested speech in today's
climate will obviously vary. Finally, Plaintiffs' alternative recourse lies within their
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chapter and organization, not this Court. An appeal to other chapters is one such route;
disassociation, while drastic, is another.
In summary, the delegate of a private, voluntary organization, in pursuit of
"inclusiv[ity]", broadened its interpretation of "woman". ECF No. 6-1, at 105. The Court
will not interfere with its result, nor invade the organization's freedom of expressive
association. Accordingly, this Court dismisses Count I. 57
D. Count II: Plaintiffs' Breach of Contract Claim.
Plaintiffs fail to demonstrate any breach of contract. Plaintiffs allege KKG's
breach of two contracts, including Plaintiffs': ( 1) membership contracts with KKG under
Ohio law; and (2) housing contracts with KKG Building Co. under Wyoming law. 58 See
ECF Nos. 24, at 14; 6-1, at 163, 165-76. Defendants respond that Plaintiffs do not allege
any plausible breach of their housing contracts. See ECF Nos. 20, at 18; 26, at 7.
Defendants are correct on both contracts. I begin with Plaintiffs' membership
contracts with KKG. Under Ohio law, "[t]o establish a claim for breach of contract, a
plaintiff must prove: (1) the existence of a contract, (2) performance by the plaintiff, (3)
breach by the defendant, and (4) damages or loss resulting from the breach." In re Fifth
Third Early Access Cash Advance Litig., 925 F.3d 265,276 (6th Cir. 2019) (internal
quotation omitted); Tel. Mgmt. Corp. v. Goodyear Tire & Rubber Co., 32 F. Supp. 2d
960, 969 (N.D. Ohio 1998) ("A breach of contract is a failure without legal excuse to
57 ECF No. 6, ,I,I 159-67.
58 Finding that KKG Building Co. was not a Fed. R. Civ. P. 19(a)(l)(B) required party within
Section A. supra, the Court dismissed KKG Building Co. from this lawsuit.
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perform any promise that forms a whole or a part of a contract.") (internal citation
omitted). Entirely unalleged in their Complaint, Plaintiffs supplement that KKG's
admission of Langford in the UW chapter house "created a breach of contract as to ...
the sorority experience[.]" See ECF No. 24, at 14. While Plaintiffs and KKG formed a
membership contract and Plaintiffs appear to have performed, any demonstration of
element (3) is absent; Plaintiffs fail to point the Court to any contractual breach by KKG.
See ECF No. 6-1, at 163. The Court admits its confusion as to what contractual language
KKG, in Plaintiffs' view, breached. See id.; Allied Erecting and Dismantling Co., Inc. v.
Genesis Equip. & Mfg., Inc., 649 F. Supp. 2d 702, 728 (N.D. Ohio 2009) ("[W]here a
contract is clear and unambiguous, the court need not ... go beyond the plain language of
the agreement to determine the rights and obligations of the parties.") (internal quotation
omitted). If anything, the membership contract primarily outlines Plaintiffs' obligations.
See id. Plaintiffs make no effort to contend otherwise. 59 Giving effect to the membership
contract before the Court, KKG undertook no contractual obligation to reject transgender
women. Accordingly, Plaintiffs fail to allege a breach of their membership contracts.
Reverting to Wyoming law, I tum to Plaintiffs' housing contracts. 60 Here, a breach
of contract claim consists of: (1) "'a lawfully enforceable contract;"' (2) "'an unjustified
59 If Plaintiffs argue that KKG breached their membership contracts by redefining "woman" sans
a bylaw amendment, they, similarly, fail to direct the Court to the contractual provision within
their membership contracts that KKG allegedly violates. Even when liberally construing
Plaintiffs' Complaint to incorporate an unpled breach of contract claim, the Court cannot do
counsels' job for them.
60 See ECF No. 6-1, at 173 ("This contract is made with reference to and shall be construed in
accordance with the laws of Wyoming in which state it shall be performed by the parties.").
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failure to timely perform all or any part of what is promised [i.e., the breach];"' and (3)
"'entitlement of the injured party to damages."' Peterson v. Meritain Health, Inc., 508
P.3d 696, 705 (Wyo. 2022) (quoting Halling v. Yovanovich, 391 P.3d 611, 616-17 (Wyo.
2017)) (internal brackets omitted). Plaintiffs allege that KKG breached their housing
contracts by allowing transgender women to live in the chapter house in violation of
KKG's governing documents. See ECF Nos. 6, ,I,r 170-72; 24, at 14. Once again, though,
Plaintiffs fail to cite the Court to any explicit breach within the housing contracts; the
Court's analysis, thus, fails at element (2). ECF No. 6-1, at 165-76. As developed in
Section A. supra, the Court's review of the housing contract contradicts Plaintiffs. Within
those contracts, any obligations to comply with KKG's "Bylaws, Standing Rules and
Policies (' Fraternity standards')" were either undertaken by the UW chapter or Plaintiffs
themselves. See, e.g., id. at 166-67, 168 ("The student ... shall, at all times, comply with
all ... the Fraternity Standards. The student acknowledges that it is their responsibility to
seek out, read and understand ... the Fraternity standards and they agree to follow the
same."). 61 Plaintiffs fail to show how KKG's receptive stance towards transgender
women "forms the whole or part of' their housing contracts. See Reynolds v. Tice, 595
P .2d 1318, 1323 (Wyo. 1979). Nowhere in the housing contracts do the parties contract
an obligation to "provide housing in accordance with" KKG's governing documents;
61 Separately, KKG's bylaws state that members ofKKG Building Co., described as "members
of the Fraternity", "shall agree to be bound by ... the Fraternity Bylaws, Standing Rules and
Policies." See ECF No. 6-1, at 23-24.
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Plaintiffs may not impose such an obligation on Defendants absent from those contracts.
ECF No. 6, 1 170.
Accordingly, the Court dismisses Count II. 62
E. 	Count Ill: Plaintiffs' Tortious Interference Claim.
Plaintiffs also fail to allege any tortious interference of contract. Plaintiffs claim
that KKG 63 tortiously interfered with their housing contracts by inducting a transgender
woman in violation ofKKG's governing documents. ECF No. 6, 11173-75. Defendants
regurgitate that, without a breach of a housing contract, there can be no tortious
interference with that contract. See ECF No. 20, at 20.
I concur with Defendants. To show tortious interference with a contract, Plaintiffs
must allege: "(1) the existence of the contract; (2) the defendant's knowledge; (3)
intentional and improper interference inducing or causing a breach; and (4) resulting
damages." First Wyo. Bank v. Mudge, 748 P.2d 713, 715 (Wyo. 1998) (emphasis added)
(citing Restatement (Second) of Torts,§ 766 (Am. Law. Inst. 1979)). lnseverable from
the Court's analyses above, Plaintiffs make no effort to demonstrate that KKG induced or
caused a breach or termination of their housing contracts. See USI Ins. Servs. LLC v.
Craig, No. 18-CV-79-F, 2019 WL 5295533, at *9-10 (D. Wyo. Apr. 9, 2019) (rejecting a
62 ECF No. 6, 11 168-72.
63 The Court admits its confusion by Plaintiffs' usage, twice, of "Defendants" within Count III.
ECF No. 6, 1175. However, because Plaintiffs use "Defendant Kappa Kappa Gamma" earlier in
that paragraph and fail to clarify, even when prompted, the error in their response, the Court
construes Count III as against solely KKG. Id.; see ECF Nos. 20, at 20 n.1 0; 24, at 17 ("Plaintiffs
do allege that Kappa Kappa Gamma Fraternity has tortiously interfered with their contractual
relationship with [KKG Building Co.]").
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tortious interference claim where a plaintiff failed to show a breach of contract "[ s]ince
the third element of this tort requires an underlying breach of a contract"); ECF No. 24, at
14-20. Plaintiffs fail to even attempt their burden. See ECF No. 24; Gore v. Sherard, 50
P.3d 705, 710 (Wyo. 2002) (internal citation omitted). Given Plaintiffs' failure to allege a
breach or termination by KKG, the Court need go no further.
Accordingly, the Court dismisses Count III. 64
F. 	Count JV: Plaintiffs' Direct Claim.
Plaintiffs fail to allege a direct claim against Rooney. Count IV appears to allege
that Plaintiffs suffered direct injuries due to KKG and Rooney's admission of Langford.
ECF No. 6, ,r,r 176-79. Defendants argue that Plaintiffs' contention that they suffered
"individual legal harm distinct" from their derivative claim on behalf of all Kappa
members is wanting. See ECF No. 20, at 20-22. Plaintiffs copy and paste allegations
within their Complaint in response. Compare ECF No. 24, at 16-17, with ECF No. 6, ,r
12.
Plaintiffs have not shown a special duty, nor a separate and distinct injury, to
sustain their direct claim. Unlike a derivative action filed on behalf of a corporation, a
shareholder may bring a direct action "against a director or officerl 65 l of the corporation
' ( 1) where there is a special duty, such as contractual duty, between the wrongdoer and
the shareholder, and (2) the shareholder suffered an injury separate and distinct from that
64 ECF No. 6, ,r,r 173-75.
65 Though Plaintiffs appear to sue KKG and Rooney under Count IV, direct actions under Ohio
law are only sanctioned against a corporation's director or officer. Cf ECF No. 6, ,r 179.
Therefore, the Court solely considers Plaintiffs' direct claim against Rooney.
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suffered by other shareholders."' Morgan v. Ramby, Nos. CA2010-10-095, CA2010-10-
101, 2012 WL 626209, at *4 (12th Dist. Feb. 27, 2012) (quoting Herman's, Inc. v. Sach-
Dolmar Div., 87 Ohio App. 3d 74, 77 (9th Dist. 1993)) (emphasis in original); see also
Heaton v. Rohl, 193 Ohio App. 3d 770, 782 (11th Dist. 2011) (noting that a shareholder
may bring a direct action where they demonstrate a special duty or a separate and distinct
injury) (internal citation omitted).
First, Plaintiffs do not allege a special duty. Injury flowing "from a breach of
corporate fiduciary duty" - as Plaintiffs briefly allude to - "amounts to nothing more than
loss of the [non-profit corporation's] value, which is an injury shared in common with all
other stockholders," or here, KKG members nationwide, and should be brought as a
derivative action. See ECF No. 24, at 16; Barr v. Lauer, No. 87514, 2007 WL 117502, at
*2 (8th Dist. Jan. 18, 2007); Carlson, 152 Ohio App. 3d at 679 ("As a general
proposition, claims for breach of fiduciary duties on the part of corporate directors or
officers are to be brought in derivative suits."); see also Weston v. Weston Paper & Mfg.
Co., 74 Ohio St. 3d 377, 379 (Ohio 1996) (rejecting plaintiffs' argument that breach-of-
fiduciary-duties claims against corporate directors should be allowed as a direct action in
the absence of injury separate and distinct from the corporation). Moreover, for reasons
articulated in Section C. above, Plaintiffs have not shown that Rooney breached any
fiduciary duty to Plaintiffs by interpreting "woman" expansively.
Second, they also do not demonstrate a separate and distinct injury. Plaintiffs
allege that their "loss of privacy, frustration of contractual expectations, and emotional
distress" from Langford's induction are unique injuries. ECF No. 6, 1179. However,
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Plaintiffs sue Rooney, not their sorority sister; thus, only their frustrated contractual
expectations merit consideration. Under Plaintiffs' theory, Rooney's actions contravene
their pre-rush intent to join an organization that excludes transgender women. Yet, injury,
if any, from Rooney's purported orchestration of Langford's admission inured to all
KKG members alike, whether in Laramie or beyond, not merely Plaintiffs. In other
words, Plaintiffs' putative injury - association with a trans gender woman - technically
affected all KKG members. Therefore, Plaintiffs' claims at bar, forgoing their determined
unviability, belong as a derivative suit rather than a direct action. See Grand Council of
Ohio v. Owens, 86 Ohio App. 3d 215,220 (10th Dist. 1993) (determining that plaintiffs
brought a derivative claim by "look[ing] to the nature of the alleged wrong rather than the
designation used by plaintiffs"). Therefore, Plaintiffs fail to plead a special duty, nor a
separate and distinct injury, to sustain their direct claim.
Accordingly, the Court dismisses Count IV. 66
G. Dismissal without Prejudice and Langford's Motion to Dismiss (ECF No. 22).
Finally, Defendants argue that the Court should dismiss Plaintiffs' claims with
prejudice. See, e.g., ECF Nos. 20, at 22; 26, at 10. '"[A] dismissal with prejudice is
appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting
leave to amend would be futile."' Seale v. Peacock, 32 F.4th 1011, 1027 (10th Cir. 2022)
(quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (internal
citation omitted)) (emphasis in original) (brackets omitted). Defendants make no effort to
66 ECF No. 6, ,, 176-79.
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argue futility and do not otherwise explain why dismissal with prejudice is appropriate;
accordingly, the Court will dismiss Plaintiffs' claims without prejudice. 67
Furthermore, due to the Court's dismissal today of Plaintiffs' four claims, the
Court also dismisses Langford's Motion to Dismiss (ECF No. 22) as moot. 68
CONCLUSION
For the foregoing reasons, Plaintiffs' four claims fail. Pursuant to Fed. R. Civ. P.
12(b)(l), Defendant KKG Building Co. is dismissed. Pursuant to Fed. R. Civ. P. 12(b)(6),
Plaintiffs' four claims against Defendants KKG and Rooney are dismissed without
prejudice.
Therefore, IT IS HEREBY ORDERED that Defendants', Kappa Kappa Gamma,
Rooney, and KKG Building Co., Motion to Dismiss (ECF No. 19) is GRANTED.
67 If Plaintiffs wish to amend their complaint, the Court advises Plaintiffs that they devote more
than 6% of their complaint to their legal claims against Defendants. It also counsels Plaintiffs to
provide more factual detail, where feasible, as well as highlight the Defendant(s) it sues under
each count and relevant state statutes and authority. Finally, if provided another opportunity to
clarify unclear language within an amended complaint, Plaintiffs should not copy and paste their
complaint in lieu of elaboration or legal research that assists the Court in disentangling their
claims. See, e.g., ECF No. 24, at 14, 16-19.
68 Langford moves to dismiss herself because, inter alia, she is not a Fed. R. Civ. P. 19(a)(l)(B)
required party. See ECF Nos. 23, at 4; 27, at 2, 4. Plaintiffs respond: "if Langford stipulates that
[s]he is not a required party, Plaintiffs would support h[er] dismissal." ECF No. 25, at 13 n.4.
Langford did not reply. ECF No. 27. Without addressing the substance of Langford's motion, the
Court notes the irrelevancy of Langford's alleged behavior. The crux of Plaintiffs' lawsuit is
their derivative claim against Rooney and contractual claims against KKG. Unbefitting in federal
court, Langford's unsubstantiated behavior at the UW chapter house has no bearing on Plaintiffs'
legal claims. The Court, however, acknowledges that Plaintiffs' requested relief seeks to void
Langford's KKG membership.
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Furthermore, IT IS HEREBY ORDERED that Plaintiffs' First Amended Verified
Member Derivative Complaint for Breach of Fiduciary Duties (ECF No. 6) against
Defendants is DISMISSED WITHOUT PREJUDICE.
Finally, IT IS HEREBY ORDERED that Defendant Langford's Motion to
Dismiss with Prejudice (ECF No. 22) is DISMISSED AS MOOT.
IT IS SO ORDERED.
~~
Dated this 2 ~ 	day of August, 2023.
~#,/1;):k.,~Alan B. Johnson
United States District Judge
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