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Thomas v. Trustees of Indiana University

United States District Court, S.D. Indiana, Indianapolis Division

November 21, 2018

JADEN THOMAS, RYAN BRAVERMAN, KATIE DEDELOW, JAKE RAMSEY, ISABELLA BLACKFORD, MICHAEL DUKE, LINDSAY FREEMAN individuals, each on behalf of himself/herself and all others similarly situated, Plaintiffs,
v.
THE TRUSTEES OF INDIANA UNIVERSITY, Defendant.

          ENTRY ON APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

          TANYA WALTON PRATT JUDGE

         This matter is before the Court on an Application for Temporary Restraining Order and Preliminary Injunction (Filing No. 23) filed by Plaintiffs Jaden Thomas, Ryan Braverman, Katie Dedelow, Jake Ramsey, Isabella Blackford, Michael Duke, and Lindsay Freeman (collectively, “Plaintiffs”). Plaintiffs are freshman students at Indiana University (“IU”) in Bloomington, Indiana. After discovering mold infestation in their dorm rooms at IU, Plaintiffs initiated this lawsuit on behalf of themselves and other similarly situated IU students against the Trustees of Indiana University (“Defendant” or “Trustees”) to obtain declaratory and injunctive relief and to recover damages arising from the mold issue.

         Plaintiffs seek a temporary restraining order directing Defendant to:

(i) refrain from making misleading, inaccurate, coercive or confusing statements to members of the putative class regarding the dangers posed by Mold or the effectiveness of remedies offered or implemented by IU and (ii) refrain from spoliation of evidence and take necessary steps to video or photograph, and also retain physical viable samples of, the mold found in IU's dorms prior to its removal during remediation.

(Filing No. 23 at 1.) The Court, having considered the parties' briefs and having heard oral arguments on November 19, 2018, grants in part and denies in part the Plaintiffs' Application for Temporary Restraining Order, and to the extent that Plaintiffs seek a preliminary injunction, takes under advisement that request pending a hearing, which will be held at a later date.

         I. BACKGROUND

         On October 17, 2018, Plaintiffs filed a Complaint in Monroe Circuit Court, asserting claims for breach of contract, breach of implied warranty of habitability, and declaratory judgment on behalf of themselves and other similarly situated IU students (Filing No. 1-1 at 7-19). Each of the Plaintiffs is a freshman student at IU's Bloomington campus and resides in either the McNutt dormitory or the Foster dormitory. Id. at 7-8.

         In their Complaint, Plaintiffs allege that, when they started their undergraduate experience at IU during the Fall 2018 semester, they each moved into residential dormitories operated and maintained by IU. However, their IU dorm rooms were not clean, safe, and habitable because it was soon discovered that their rooms were infested with mold. Plaintiffs allege the mold “created a dangerous and toxic environment for Plaintiffs and members of the putative Class.” Id. at 9. They further allege that IU has had a mold problem in its residential dormitories for several years, and IU has been aware of its mold problem. Id.

         Plaintiffs allege the Defendant has failed to adequately remediate the mold problem in its dormitories. Plaintiffs and other IU students are getting sick and suffering other adverse effects because of the mold, and their requests to adequately remediate the mold problem have gone unanswered. The mold problem has forced Plaintiffs to relocate, and this has adversely affected their studies and student life. Moreover, Defendant has failed to provide detailed and accurate information about the nature of the mold problem and IU's efforts to remediate the mold. Id. at 10.

         In an effort to address the mold problem in the IU dormitories, Defendant has conducted an investigation of the crawl spaces and basements below the dorms and has examined them for standing water or other evidence of water intrusion (Filing No. 30 at 6). The exterior of the buildings has been analyzed, and no instances of water saturation or infiltration on the exterior skin or within the rooms was observed. Id. Defendant then analyzed moisture sources at the individual room level and focused on the individual fan coil units and the outdoor weather conditions. Defendant identified the students' use of the air conditioning units in the individual rooms as a likely source of moisture causing the mold. Defendant conducted a fan coil unit inspection in the dorm rooms, which included extensive cleaning by opening the fan coil unit, inspecting the pipe chases and coils, removing and replacing insulation, wiping away visible dust or accumulation with an antimicrobial agent, and HEPA vacuuming the area, window sills, and nearby areas. Id. at 7. Defendant also installed HEPA air purifiers in thousands of dorm rooms (Filing No. 24-10).

         Where visible mold has been found in dorm rooms, Defendant has had certified industrial hygienists inspect the room and take field notes and photographs. Remediation activities have been conducted to remove the mold and clean the dorm rooms. After the remediation activities are completed in a dorm room, a spore trap sample of the air in the room is collected and analyzed by a third-party laboratory. Dr. Beauregard Middaugh (“Dr. Middaugh”), IU's Senior Industrial Hygienist and Environmental Health and Safety Systems Manager who is overseeing Defendant's remediation efforts, then analyzes the data from the spore trap samples as well as other data. Based upon his professional judgment and the review of data, Dr. Middaugh determines whether each particular dorm room can be reoccupied. If it is determined that a room can be reoccupied, the student is informed of that determination. If it is determined that a room cannot be reoccupied, additional remediation efforts are performed (Filing No. 30 at 8-10).

         More than 1, 200 rooms have been cleaned or remediated in the McNutt and Foster dormitories so that they can be reoccupied. This work was completed by November 2, 2018. Approximately thirty-nine rooms are still receiving enhanced remediation, and there are twenty-four rooms that have yet to be inspected. Additionally, there are about 391 rooms in the Teter dormitory that Defendant intends to inspect if needed and to take appropriate action. Id. at 11.

         Defendant established a website (http://buildings.iu.edu) to provide information to students, students' family members, and the public about the mold problem and remediation efforts. This website addresses many frequently asked questions and also allows students to obtain updated information about the status of their particular dorm room. The website also provides access to the detailed laboratory data for individuals interested in seeing that level of information. The website is updated daily and also provides information about a mold remediation call center that provides additional resources (Filing No. 24-8; Filing No. 24-9; Filing No. 24-10; Filing No. 32-15).

         Nine days after Plaintiffs initiated this lawsuit, on October 26, 2018, Defendant filed a notice of removal, thereby removing the lawsuit from Monroe Circuit Court to this Court (Filing No. 1). The Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), served as the basis of Defendant's removal. Soon thereafter, Plaintiffs filed their Application for Temporary Restraining Order and Preliminary Injunction on November 9, 2018 (Filing No. 23).

         II. LEGAL STANDARD

         The standards that apply to preliminary injunction orders also apply to temporary restraining orders. Loveless v. Chi. Bd. of Election Comm'rs, 2004 U.S. Dist. LEXIS 18832, at *6 (N.D. Ill. Sep. 8, 2004). Federal Rule of Civil Procedure 65(b) provides that a temporary restraining order may be issued without notice to the adverse party only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Here, Defendant has been ...


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