German v. Rubin, et al. (Lawyers Weekly No. 12-119-17)
David Lopes Ca 1 rdozo and President & Fellows of Harvard College COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 16-01640 GUSTAVO GERMAN vs. LEE L. RUBIN & others1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS RUBIN AND PRESIDENT & FELLOWS OF HARVARD COLLEGE’S MOTIONS TO DISMISS INTRODUCTION Pursuant to Mass. R. Civ. P. 65.3, the pro se plaintiff, Gustavo German (“German”) then a fifth-year doctoral candidate at Harvard, filed a Verified Complaint for Civil Contempt (“Complaint”) on June 14, 2017. German previously obtained a harassment prevention order issued pursuant to G.L. c. 258E against Dr. Lee L. Rubin (“Rubin”) on August 25, 2016, in which this court directed that German be fully restored to the position he occupied in Rubin’s lab (“the Rubin Lab”) as of March 10, 2016, before the harassment began. That order was amended on September 9, October 4 and14, and December 5, 2016, after repeated requests by defendants Rubin and President & Fellows of Harvard College (“Harvard,” together with Rubin, “the defendants” ). German’s Complaint alleges, generally, that the defendants violated several directives contained in the most recent Revised Order dated December 5, 2016 (“Order”), and as a result (1) The harassment included, among other things, that German was forcibly seized 2 and hospitalized for a mental health evaluation on June 4, 2016, based upon fabricated concerns about German’s mental health that Rubin provided to Dr. Ayse A. Atasoylu, a physician from Harvard University Health Services. 2 German has not yet been restored to the position he was in prior to the harassment, (2) he has been prevented from completing his research and thesis, and (3) he has now been forcibly withdrawn as a student. Before the court are Rubin’s and Harvard’s separate motions to dismiss the Complaint. After hearing and careful review of the parties’ submissions, both motions are ALLOWED in part and DENIED in part. PROCEDURAL HISTORY On August 25, 2016, German obtained a harassment prevention2 order against Rubin following German’s report of Rubin’s research misconduct, i.e., his knowing publication of fabricated data. Rubin is a tenured professor at Harvard and the primary investigator (“P.I.”) of the Rubin Lab, the facility in which German works while pursuing his Ph.D. The resulting August 25, 2016 harassment prevention order consisted of two directives. First, Rubin was to stay at least 100 feet away from German and have no contact, direct or indirect, with him. Second, German was “to immediately be fully restored to his position and research in the Rubin Lab with all the assistance, equipment, and supplies he had on March 10, 2016.” See Paper No. 19, p. 27. Both Rubin and Harvard filed motions seeking to vacate or modify the Order […]