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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY




W.P.,
Plaintiff,
v.

PRINCETON UNIVERSITY, CYNTHIA
CHERREY, COLE CRITTENDEN,
KATHLEEN DEIGNAN, JOHN
KOLLIGIAN, ANITA McLEAN, MICHAEL
OLIN, SHIRLEY TILGHMAN, DOES 1-10,

Defendants.


Case No.: 3:14-cv-01893-JAP-TJB


Document Electronically Filed


Motion Return Date: November 3, 2014





BRIEF IN SUPPORT OF DEFENDANTS
MOTION FOR PARTIAL DISMISSAL OF THE COMPLAINT


William F. Maderer
Ryan E. San George
SAIBER LLC
18 Columbia Turnpike
Florham Park, New Jersey 07932

Of Counsel:
Henry Morris, Jr.
Karen Vladeck
ARENT FOX LLP
1717 K Street, NW
Washington, D.C. 20036

Attorneys for All Defendants


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TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .................................................................................................... 1

LEGAL ARGUMENT .................................................................................................................... 5

POINT I
STANDARD OF REVIEW ............................................................................................................ 5

POINT II
W.P.S REHABILITATION ACT CLAIMS AGAINST THE NAMED INDIVIDUAL
DEFENDANTS ARE NOT JUSTICIABLE BECAUSE HE DOES NOT ALLEGE THAT
THEY RECEIVE FEDERAL FINANCIAL ASSISTANCE ......................................................... 6

POINT III
W.P.S ADA CLAIMS AGAINST THE NAMED INDIVIDUAL DEFENDANTS ARE NOT
JUSTICIABLE BECAUSE HE DOES NOT ALLEGE THAT THEY OWN, LEASE, OR
OPERATE PRINCETON ............................................................................................................... 7

POINT IV
W.P.S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS ARE NOT
JUSTICIABLE BECAUSE HE HAS FAILED TO ALLEGE EXTREME AND OUTRAGEOUS
CONDUCT ..................................................................................................................................... 9

POINT V
W.P.S CONTRACT CLAIM FAILS AS A MATTER OF LAW BECAUSE HE HAS PLEAD
INSUFFICIENT FACTS TO RAISE IT ABOVE THE SPECULATIVE LEVEL ..................... 10

POINT VI
W.P.S GOOD FAITH AND FAIR DEALING CLAIM FAILS AS A MATTER OF LAW
BECAUSE HE HAS PLED INSUFFICIENT FACTS TO RAISE IT ABOVE THE
SPECULATIVE LEVEL .............................................................................................................. 13

POINT VII
W.P.S FRAUD CLAIMS ARE NOT JUSTICIABLE BECAUSE W.P. HAS FAILED TO
ALLEGE FRAUD WITH SUFFICIENT PARTICULARITY..................................................... 14

POINT VIII
W.P.S CLAIMS AGAINST PRESIDENT TILGHMAN ARE NOT JUSTICIABLE BECAUSE
W.P. HAS ALLEGED INSUFFICIENT FACTS TO RAISE THOSE CLAIMS ABOVE THE
SPECULATIVE LEVEL .............................................................................................................. 15

CONCLUSION ............................................................................................................................. 16
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TABLE OF AUTHORITIES
Page(s)
Cases
J.M. ex rel. A.M. v. E. Greenwich Twp. Bd. of Educ.,
Civ. No. 07-2861(NLH), 2008 WL 819968 (D.N.J. Mar. 25, 2008) ...................................7, 13
A.W. v. Jersey City Pub. Sch.,
486 F.3d 791 (3d Cir. 2007).......................................................................................................6
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...............................................................................................................5, 6
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................................5
Boggi v. Med. Review & Accrediting Council,
Civ. No. 08-4941, 2009 WL 2951022 (E.D. Pa. Sept. 15, 2009), aff'd, 415 F.
App'x 411 (3d Cir. 2011) ...........................................................................................................8
Bradshaw v. Am. Inst. for History Educ.,
Civ No. 12-1367, 2013 WL 1007219 (D.N.J. Mar. 13, 2013) ...................................................5
Buckley v. Trenton Sav. Fund Socy.,
544 A.2d 857, 337 N.J. Super. 15 (N.J. 1988) .....................................................................9, 10
Ceruzzi Holdings, LLC v. Inland Real Estate Acquisitions, Inc.,
Civ. No. 09-5440 (MLC), 2010 WL 1752184 (D.N.J. Apr. 29, 2010) ....................................15
Clayton v. Trs. of Princeton Univ.,
608 F. Supp. 413 (D.N.J. 1985) ...............................................................................................13
D.G. v. Somerset Hills Sch. Dist.,
559 F. Supp. 2d 484 (D.N.J. 2008) ............................................................................................7
Datto v. Harrison,
664 F. Supp. 2d 472 (E.D. Pa. 2009) .........................................................................................8
Easley v. Univ. of Michigan Bd. of Regents,
627 F. Supp. 580 (E.D. Mich. 1986) ........................................................................................12
Emerson v. Thiel Coll.,
296 F.3d 184 (3d Cir. 2002)...............................................................................................6, 7, 8
Frederico v. Home Depot,
507 F.3d 188 (3d Cir. 2007).....................................................................................................14
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Hajjar-Nejad v. George Washington Univ.,
802 F. Supp. 2d 166 (D.D.C. 2011) .........................................................................................11
Hart v. Elec. Arts, Inc.,
740 F. Supp. 2d 658 (D.N.J. 2010) ............................................................................................1
Hayes v. Wachovia Mortg., FSB,
No. 11-cv-1622, 2011 WL 5036369 (D.N.J. Oct. 21, 2011) .....................................................1
Hemy v. Perdue Farms Inc.,
No. 11-888 (FLW), 2011 WL 6002463 (D.N.J. Nov. 30, 2011) .............................................14
Manago v. District of Columbia,
934 A.2d 925 (D.C. 2007) .......................................................................................................11
McDonnell v. Illinois,
725 A.2d 126, 319 N.J. Super. 324 (App. Div. 1999), aff'd, 748 A.2d 1105,
163 N.J. 298 (N.J. 2000) ..........................................................................................................10
A.E. ex rel. N.E. v. Freehold Reg'l High Sch. Dist. Bd. of Educ.,
Civ. No. -2923 JAP, 2012 WL 603810 (D.N.J. Feb. 23, 2012) .................................................6
Napolitano v. Trs. of Princeton Univ,
453 A.2d 263, 186 N.J. Super. 548 (App. Div. 1982) .............................................................13
Noye v. Hoffmann-La Roche Inc.,
570 A.2d 12, 238 N.J. Super. 430 (App. Div. 1990) ...............................................................13
OBrien v. S. Suburban Coll.,
No. 93 C 7172, 1994 WL 395029 (N.D. Ill., July 27, 1994) ...................................................16
Obendorfer v. Gitano Grp., Inc.,
838 F. Supp. 950 (D.N.J. 1993) .................................................................................................9
Santiago v. Warminster Twp.,
629 F.3d 121 (3d Cir. 2010).......................................................................................................6
Scholar Intelligent Solutions, Inc. v. New Jersey Eye Ctr., P.A.,
Civ. No. 13-642 SRC, 2013 WL 2455959 (D.N.J. June 5, 2013) ...........................................14
Southwell v. Univ. of Incarnate Word,
974 S.W.2d 351 (Tex. App. 1998) ...........................................................................................12
Steere v. George Washington Univ.,
368 F. Supp. 2d 52 (D.D.C. 2005) .............................................................................................8
Subbe-Hirt v. Baccigalupi,
94 F.3d 111 (3d Cir. 1996).........................................................................................................9
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Taylor v. Metzger,
706 A.2d 685, 152 N.J. 490 (N.J. 1998) ....................................................................................9
Video Pipeline, Inc. v. Buena Vista Home Entmt, Inc.,
275 F. Supp. 2d 543 (D.N.J.), affd, 342 F.3d 191 (3d Cir. 2003)...........................................10
White v. Creighton Univ.,
No. 8:06CV536, 2006 WL 3419782 (D. Neb. Nov. 27, 2006) ..................................................8
Williams v. New Jersey Transit,
Civ. No. 07-623, 2008 WL 878404 (D.N.J. Mar. 31, 2008) ......................................................5
Zamboni v. Stamler,
847 F.2d 73 (3d Cir. 1988).......................................................................................................10
Statutes
Americans with Disabilities Act, 42 U.S.C. 12181 et seq. ...............................................3, 7, 8, 9
Fair Housing Act, 42 U.S.C. 3601 et seq. .....................................................................................3
New Jersey Law Against Discrimination, N.J.S.A. 10.5-12 ......................................................3, 16
Rehabilitation Act, 29 U.S.C. 794(a) ..........................................................................3, 4, 6, 7, 16
Other Authorities
Rule 12(b)(6) ................................................................................................................................1, 5

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PRELIMINARY STATEMENT

The core of this dispute can be simply stated: Princeton University refused to gamble
with W.P.s life.
About six months into his freshman year at Princeton, W.P.
1
tried to kill himself, in his
dormitory room, by swallowing twenty (100 mg) tablets of Trazodone. That, according to
clinical information that Princeton received, was just one of several suicidal attempts or gestures
that he had made. Compl. 28, 53; Letter from Kathleen Deignan to W.P., dated March 7,
2012 (Deignan Letter), attached to the Declaration of William F. Maderer (Maderer Decl.)
as Exhibit 1.
2

Independent medical professionals who cared for W.P. urged intensive treatment to
reduce the risk of further self-destructive behavior. W.P. and his parents, however, disputed that
W.P. was at risk and asked that Princeton return him to residential study. (Deignan Letter,
Maderer Decl., Exh. 1).

1
On March 26, 2014, W.P. filed an Application for Orders Granting Leave to Proceed
Anonymously and Otherwise Protecting the Identity of the Plaintiff from Public Disclosure
[ECF No. 2] and served same upon Defendants on September 17, 2014. The application contains
no notice of motion or a proposed return date and the Court has not otherwise set a return date
for the application. Defendants plan to oppose the application but, pending the Courts ruling on
the application, as a courtesy, Defendants refer herein to Plaintiff as W.P., the pseudonym that he
requests.
2
When deciding a Rule 12(b)(6) motion to dismiss, courts typically focus on the four
corners of the complaint. See, e.g., Hart v. Elec. Arts, Inc., 740 F. Supp. 2d 658, 66263 (D.N.J.
2010). But, where the complaint explicitly refers to or relies upon a document, and the
defendant attaches an undisputedly authentic copy of that document as an exhibit to a motion to
dismiss, the Court may consider that document in deciding the motion under the incorporation by
reference doctrine. Hayes v. Wachovia Mortg., FSB, No. 11-CV-1622, 2011 WL 5036369, at
*2 (D.N.J. Oct. 21, 2011) (citation omitted). W.P.s Complaint references each of the documents
that Defendants have attached as exhibits.

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Princeton considered alternatives, such as part-time study and waiving Princetons long-
standing requirement that freshmen and sophomores live on-campus in one of Princetons
residential colleges. Those alternatives, however, would have fundamentally altered the nature
of a Princeton education. Hence, Princeton concluded that they were unreasonable. Compl.
61; Letter from Cynthia Cherrey to W.P., dated March 26, 2012 (Cherrey Letter), attached to
the Maderer Decl. as Exhibit 2.
Rather, the best available evidence, including current medical information, established
that only intensive treatment would meaningfully mitigate the risk to W.P.s health and safety.
So, refusing to gamble with his life, Princeton asked W.P. to withdraw and engage in intensive
treatment, subject to being readmitted the following spring semester. See Compl. 61, 63;
Cherrey Letter, Maderer Decl, Exh. 2; Letter from Lisa Herschbach and Clair Fowler to W.P.,
dated April 9, 2012, attached to the Maderer Decl. as Exhibit. 3.
Princeton explained that, when deciding whether to re-admit W.P., Princeton would look
for an increased ability to safely handle the stresses of student life. Also, to enable them to
advise Princeton on W.P.s ability to safely engage in full-time residential study, clinicians from
Princetons Counseling & Psychological Services (CPS) would have to evaluate W.P.
Princetons clinicians recommended regular individual psychotherapy to help him stabilize his
mood, cope with stress, limit substance abuse, and comply with recommended medication
management. Compl. 64; Letter from Michael Olin and Cole Crittenden to W.P., dated April
24, 2012, attached to the Maderer Decl. as Exhibit 4.
As of the spring 2013 semester, W.P. met those conditions and Princeton readmitted him.
Compl. 67. Still, he has elected to drag Princeton and seven Princeton officials -- Cynthia
Cherrey, Ph.D.; Cole Crittenden, Ph.D.; Dean Kathleen Deignan; John Kolligian, Jr., Ph.D.,
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M.B.A.; Anita McLean, Ph.D., Psy.D.; Michael Olin, Ph.D.; and Shirley Tilghman, Ph.D., (the
Named Individual Defendants) into Court on a patently meritless lawsuit.
W.P. divides his Complaint into ten Causes of Action.
In Cause of Action I, he contends that the Defendants violated his rights under the Fair
Housing Act, 42 U.S.C. 3601 et seq. (the FHA);
In Cause of Action II, he contends that the Defendants violated his rights under Section
504 of the Rehabilitation Act of 1973, 29 U.S.C 794 (the Rehabilitation Act);
In Cause of Action III, he contends that the Defendants violated his rights under the
Americans with Disabilities Acts public accommodations title, 42 U.S.C. 12181 et seq.
(the ADA);
In Cause of Action IV, he contends that the Defendants violated his rights under New
Jerseys Law against Discrimination, N.J.S.A. 10.5-12(f), (g), and (l) (the NJLAD);
In Cause of Action V, he contends that the Defendants intentionally caused him to suffer
severe emotional distress;
In Cause of Action VI, he contends that the Defendants invaded his privacy;
In Cause of Action VII, he contends that the Defendants breached a purported common
law confidential relationship;
In Cause of Action VIII, he contends that Princeton, McLean, and Kolligian defrauded
him;
In Cause of Action IX, he contends that Princeton breached its contract with him; and
In Cause of Action X, he contends that Princeton breached an implied covenant of good
faith and fair dealing.
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Plaintiffs entire Complaint is groundless, as Princeton and the Named Individual
Defendants will, in due course, demonstrate. For now, to enable the parties and the Court to
conserve resources and narrow discovery, Princeton and the Named Individual Defendants seek
an order dismissing a number of W.P.s causes of action that fail as a matter of law. Specifically,
Princeton and the Named Individual Defendants submit that the Court should dismiss (1) W.P.s
Rehabilitation Act and ADA claims against the Named Individual Defendants because neither
statute authorizes claims against individuals; (2) W.P.s intentional infliction claims against all
Defendants, because the alleged conduct upon which he predicates them falls well short of the
extreme and outrageous conduct that the tort requires; (3) W.P.s contract and good faith and fair
dealing claims against Princeton because he has pled insufficient facts to raise them above the
speculative level; (4) his fraud claims against Defendants Princeton, McLean and Kolligian,
because W.P. has failed to plead them with sufficient particularity; and (5) his claims against Dr.
Tilghman, because W.P.s factual allegations are insufficient to raise them above the speculative
level.
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LEGAL ARGUMENT
POINT I
STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts to state
a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Thus, a complaints allegations must be enough to raise a right to relief above the
speculative level, id. at 555, to the degree that the relief is plausible, not merely
conceivable. Id. at 570. A plaintiff must provide more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. Id. at 555.
When assessing a complaint, the court must distinguish factual contentions and
[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions are not entitled to
the assumption of truth by a reviewing court. Id. at 679. To the contrary, [w]hile legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations. Id. (emphasis added). That is true, even for complaints that pro se plaintiffs author.
Bradshaw v. Am. Inst. for History Educ., Civ No. 12-1367, 2013 WL 1007219, at *2 n.3 (D.N.J.
Mar. 13, 2013) (Even under the liberal pleading standards afforded a pro se plaintiff, the Court
need not credit an unrepresented party's bald assertions or legal conclusions.); Williams v.
New Jersey Transit, No. Civ. 07-623, 2008 WL 878404, at *2 (D.N.J. Mar. 31, 2008) (Pro se
complaints are held to less stringent standards than formal pleadings drafted by lawyers. But
even pro se plaintiffs are not excused from standard procedural rules and must plead facts to
support each element of their claim.) (internal citation omitted).
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Courts in the Third Circuit employ a three-part test to measure complaints against the
Supreme Courts pleading standard:
First, the court must tak[e] note of the elements a plaintiff must plead to state a
claim. Iqbal, [556 U.S. at 675]. Second, the court should identify allegations
that, because they are no more than conclusions, are not entitled to the
assumption of truth. Id. at [679]. Finally, where there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief. Id.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote omitted).
Assessed on that basis, W.P.s challenged claims are doomed.
POINT II
W.P.S REHABILITATION ACT CLAIMS AGAINST THE NAMED
INDIVIDUAL DEFENDANTS ARE NOT JUSTICIABLE BECAUSE HE
DOES NOT ALLEGE THAT THEY RECEIVE FEDERAL FINANCIAL
ASSISTANCE

Section 504 of the Rehabilitation Act prohibits programs and activities that receive
federal financial assistance from discriminating against qualified individuals with a disability.
No otherwise qualified individual with a disability in the United States, as defined in
section 705(20) of this title, shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .

29 U.S.C. 794(a).
The Third Circuit has admonished that [s]uits may be brought pursuant to Section 504
against recipients of federal financial assistance, but not against individuals. A.W. v. Jersey City
Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007) (emphasis added); see Emerson v. Thiel Coll., 296
F.3d 184, 190 (3d Cir. 2002) (Because the individual defendants do not receive federal aid,
Emerson does not state a claim against them under the Rehabilitation Act.); A.E. ex rel. N.E. v.
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Freehold Reg'l High Sch. Dist. Bd. of Educ., CIV.A. No. -2923 JAP, 2012 WL 603810, at *3
(D.N.J. Feb. 23, 2012) (Rehabilitation Act suits may be brought pursuant to Section 504 [of the
Rehabilitation Act] against recipients of federal financial assistance, but not against
individuals.) (quoting A.W, 486 F.3d at 804); D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d
484, 497 (D.N.J. 2008) ([I]ndividual Moving Defendants do not receive federal financial
assistance. Accordingly, they are not subject to Section 504 of the Rehabilitation Act.); J.M. ex
rel. A.M. v. E. Greenwich Twp. Bd. of Educ., Civ. No. 07-2861(NLH), 2008 WL 819968, at *6
(D.N.J. Mar. 25, 2008) ([B]ecause plaintiffs have not alleged that any of the teachers or
administrators receive federal aid, following Emerson, the individual defendants cannot be held
liable under Section 504 of the Rehabilitation Act.).
Here, W.P. only alleges that one defendant -- Princeton -- receives federal financial
assistance. See Compl. 1(b). He does not allege that any of the Named Individual Defendants
receives such assistance, nor could he do so in good faith. Thus, as a matter of law, his
Rehabilitation Act claims against the Named Individual Defendants must fail.
3

POINT III
W.P.S ADA CLAIMS AGAINST THE NAMED INDIVIDUAL
DEFENDANTS ARE NOT JUSTICIABLE BECAUSE HE DOES NOT
ALLEGE THAT THEY OWN, LEASE, OR OPERATE PRINCETON

Title III of the ADA bars disability discrimination in places of public accommodation.
No individual shall be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.

3
As discussed below, W.P.s claims against President Tilghman also fail because W.P. has
alleged insufficient facts to raise them above the speculative level. See infra at 15-16.
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42 U.S.C. 12182(a).
In Emerson v. Thiel College, the Third Circuit held that individuals may be liable under
Title III only if they own, lease, or operate a place of public accommodation. 296 F.3d at 189.
To operate a public accommodation, according to the Court, an individual must control or
direct its functioning or conduct its affairs. Datto v. Harrison, 664 F. Supp. 2d 472, 487 n.10
(E.D. Pa. 2009). And, the Court found that Thiel Colleges former president, Vice President of
Academic Affairs, faculty members, and staff did not operate the college within the meaning
of Title III. Thus, the plaintiffs Title III claim against them could not survive.
We do not believe, however, that Congress intended to impose personal liability
upon each person involved in Emerson's education. Rather, as stated in
Coddington v. Adelphi Univ., 45 F.Supp.2d 211, 217 (E.D.N.Y.1999), the
institution has the power to make accommodations and thus it operates the place
of public accommodation and is the proper defendant.

Emerson, 296 F.3d at 189 n.3. Accord Boggi v. Med. Review & Accrediting Council, Civ. No.
08-4941, 2009 WL 2951022, at *10 (E.D. Pa. Sept. 15, 2009), aff'd, 415 F. App'x 411 (3d Cir.
2011) (Individual liability under the ADA does not exist under Titles II or III of the ADA.);
White v. Creighton Univ., No. 8:06CV536, 2006 WL 3419782, at *3 (D. Neb. Nov. 27, 2006);
4

Steere v. George Washington Univ., 368 F. Supp. 2d 52, 57-58 (D.D.C. 2005) (Under Title III

4
Holding:

I agree with the Third Circuit's conclusion that employees and administrators of a
university do not open themselves to ADA liability simply because they are involved in a
student's education. In this case, it is Creighton University and/or Creighton University
School of Medicine that potentially operate a place of public accommodation;
consequently, these are the only named defendants that may be subject to liability under
the ADA.

White, 2006 WL 3419782, at *4.
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of the ADA, as under Titles I and II, institutions, not their employees, are the ones who own,
lease, or operate places of public accommodation and are therefore subject to ADA liability).
Here, W.P. contends that Princeton is a place of public accommodation. Compl. 1(b).
But, he does not, and cannot in good faith, allege that the Named Individual Defendants own or
lease Princeton. Neither does he, nor can he in good faith, assert that they operate Princeton
within the meaning of Title III. See Compl. 1(c). Thus, as a matter of law, his ADA claims
against the Named Individual Defendants cannot survive.
POINT IV
W.P.S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
CLAIMS ARE NOT JUSTICIABLE BECAUSE HE HAS FAILED TO
ALLEGE EXTREME AND OUTRAGEOUS CONDUCT

To prevail on an intentional infliction claim, the plaintiff must prove, among other things,
that the defendant engaged in conduct so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Taylor v. Metzger, 706 A.2d 685, 694, 152 N.J. 490, 508
(N.J. 1998) (quoting Buckley v. Trenton Sav. Fund Socy., 544 A.2d 857, 863, 337 N.J. Super.
15, 23 (N.J. 1988)).
The Court must determine in the first instance whether the plaintiff has alleged conduct
that is sufficiently extreme to allow a reasonable jury to award damages. Subbe-Hirt v.
Baccigalupi, 94 F.3d 111, 118 (3d Cir. 1996). And, the plaintiff can satisfy that standard only in
extreme cases. See Obendorfer v. Gitano Grp., Inc., 838 F. Supp. 950, 955 (D.N.J. 1993);
Griffin v. Tops Appliance City, Inc., 766 A.2d 292, 296, 337 N.J. Super. 15, 23 (App. Div. 2001).
Thus, courts in New Jersey have rejected intentional infliction claims in which:
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an employer subjected its employee to unusual discipline, such as requiring him to
present himself for a psychiatric evaluation, Zamboni v. Stamler, 847 F.2d 73, 76, 80 (3d
Cir. 1988);
an employer refused to promote an employee and terminated him due to his age,
McDonnell v. Illinois, 725 A.2d 126, 319 N.J. Super. 324 (App. Div. 1999), aff'd, 748
A.2d 1105, 163 N.J. 298 (N.J. 2000); and
an employer filed a groundless criminal complaint against the plaintiff, Griffin, 766 A.2d
at 297, 337 N.J. Super. at 24-25.
The result here should be no different. W.P. contends that he is entitled to relief because
Princeton and/or the Named Individual Defendants purportedly asked him to withdraw from
Princeton, subject to being readmitted the following spring semester; discussed his medical
condition among themselves; failed to afford him a meaningful appeal; requested information
about his medical condition; and treated him rudely. Compl. 111. But, as a matter of law, such
conduct, if it even occurred, falls far short of high bar that courts have set for intentional
infliction claims. Thus, his intentional infliction claims fail.
POINT V
W.P.S CONTRACT CLAIM FAILS AS A MATTER OF LAW BECAUSE
HE HAS PLEAD INSUFFICIENT FACTS TO RAISE IT ABOVE THE
SPECULATIVE LEVEL

To state a breach of contract claim, the plaintiff must allege (1) a valid contract between
the parties; (2) a duty arising from the contract; (3) a breach of that duty; and (4) resulting
damages. See Video Pipeline, Inc. v. Buena Vista Home Entmt, Inc., 275 F. Supp. 2d 543, 566
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(D.N.J.), affd, 342 F.3d 191 (3d Cir. 2003). Conclusory allegations do not suffice. See supra at
5-6.
W.P. declares, in a conclusory fashion, that Princeton breached its purported contract
with him, which was formed [a]t the time of W.P.s matriculation to Princeton. Compl. 136.
The purported contract, he contends, called for W.P. to fulfill certain financial obligations and
for Princeton to provide W.P. with instruction, housing, food, and access to it amenities and
programs. Id.
But, W.P. has neglected to either identify the alleged contract or attach it to his
Complaint. Thus, he has given the Court no basis to conclude (1) that there was a contract
between the parties; (2) that imposed specific obligations or duties on Princeton; (3) which
Princeton breached.
In short, W.P. has failed to raise his right to relief above a speculative level. Thus, as a
matter of law, his contract claim cannot survive. See Hajjar-Nejad v. George Washington Univ.,
802 F. Supp. 2d 166, 174 (D.D.C. 2011) (dismissing students breach of contract claim pled in
conclusory fashion); Manago v. District of Columbia, 934 A.2d 925, 927 (D.C. 2007)
(dismissing students breach of contract claim because she fail[ed] to allege sufficient facts to
demonstrate either the terms of the contract or reason to think it was breached, and did not
attach contract to complaint).
Plaintiff contends that Princeton breached Princetons Rights, Rules, Responsibilities
Section 1.1.7, which purportedly entitles students to an automatic review of summary
suspensions, bars, and dismissals. Compl. 138. However, Rights, Rules, Responsibilities is not
a contract nor does it reference an automatic review.
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Rather, Rights, Rules, Responsibilities makes clear that it is not a contract, but is
intended to provide a concise reference and guide. Rights, Rules, Responsibilities, (ii),
attached to the Maderer Decl. as Exhibit 5.
5
In certain sections, it provides an excerpt of rules or
policies while referring readers to the full statement of the rule; see, e.g., Section 2.1, 2.1.1, and
2.2.1. As such, Rights, Rules, Responsibilities, upon which W.P. relies, is not enforceable. See
Easley v. Univ. of Michigan Bd. of Regents, 627 F. Supp. 580, 586 (E.D. Mich. 1986) (Recital
that [t]he information contained in this Bulletin is subject to change at any time, and is
intended to serve only as a general source of information about the Law School and is in no way
intended to state contractual terms, negates contract claim.); Southwell v. Univ. of Incarnate
Word, 974 S.W.2d 351, 356 (Tex. App. 1998) (Recital that [t]his bulletin is for informational
purposes only ...The college reserves the right to change or alter any statement herein without
prior notice, negates contract claim.).
Moreover, W.P.s claim would fail even if Section 1.1.7 were contractual.
That section describes the reasonably prompt appeal available if Princeton suspends,
dismisses, or bars an individual in circumstances seriously affecting health or safety.
In circumstances seriously affecting the health or well-being of any person, or
where physical safety is seriously threatened, or where the ability of the
University to carry out its essential operations is seriously threatened or impaired,
the president or his or her representative, a senior officer of the University
authorized by him or her, may summarily suspend, dismiss, or bar any person
from the University. In all such cases, actions taken are subject to reasonably
prompt subsequent review by regular University processes or authorities. If a
review process is not otherwise available, the provost will act in this capacity if
requested to do so.

Rights, Rules, Responsibilities, 1.1.7.

5
Exhibit 5 is the relevant excerpts from Rights, Rules, Responsibilities for the 2011-2012
academic year. Upon request, Princeton and the Individual Defendants will submit the entire 84-
page-long document.
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Here, there can be no dispute that, within weeks after it initially directed him not to return
to campus, Princeton met with W.P., his mother, and his attorney to hear W.P.s appeal, and
shortly thereafter the Vice President for Campus Life issued a written decision memorializing
her consideration of his appeal. Compl. 34-35; 56-57; Cherrey Letter, Maderer Decl., Exh. 2.
Plaintiffs complaint thus acknowledges that Princeton substantially complied with Section 1.1.7
by providing a prompt appeal process, which is the most that the law could require. See Clayton
v. Trs. of Princeton Univ., 608 F. Supp. 413, 419 (D.N.J. 1985) (no breach of contract occurred
since universitys departure from its procedures was not substantial and material); Napolitano
v. Trs. of Princeton Univ, 453 A.2d 263, 270, 186 N.J. Super. 548, 563 (App. Div. 1982) (The
principal issue, as we see it, is whether the trial judge properly viewed his role as limited to a
determination of whether Princeton substantially complied with its own regulations in
disciplining plaintiff . . . .).
Thus, W.P.s contract claim, like his previously discussed claims, fails as a matter of law.
POINT VI
W.P.S GOOD FAITH AND FAIR DEALING CLAIM FAILS AS A
MATTER OF LAW BECAUSE HE HAS PLED INSUFFICIENT FACTS TO
RAISE IT ABOVE THE SPECULATIVE LEVEL

An implied covenant of good faith and fair dealing cannot exist absent an express
contract between the plaintiff and the defendant. East Greenwich Twp. Bd., 2008 WL 819968,
at *9 (The covenant of good faith and fair dealing is implied in every contract in New Jersey;
thus, it is axiomatic that a contract must exist between two parties before a court will infer this
covenant.); Noye v. Hoffmann-La Roche Inc., 570 A.2d 12, 14, 238 N.J. Super. 430, 434 (App.
Div. 1990) (In the absence of a contract, there can be no breach of an implied covenant of good
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faith and fair dealing.). That requirement is fatal to W.P.s good faith and fair dealing claim,
since W.P. has pled insufficient facts to demonstrate that he has a contract with Princeton or, in
the alternative, that Princeton failed to fulfil the procedural framework of Rights, Rules,
Responsibilities, Section 1.1.7.
POINT VII
W.P.S FRAUD CLAIMS ARE NOT JUSTICIABLE BECAUSE W.P. HAS
FAILED TO ALLEGE FRAUD WITH SUFFICIENT PARTICULARITY

Under Federal Rule of Civil Procedure 9(b), a plaintiff alleging fraud must state the
circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of
the precise misconduct with which [it is] charged. Frederico v. Home Depot, 507 F.3d 188,
200 (3d Cir. 2007) (emphasis added) (quoting Lum v. Bank of America, 361 F.3d 217, 22324
(3d Cir. 2004)).
To satisfy this standard, the plaintiff must allege the who, what, when, where, and how of
the events at issue. See Hemy v. Perdue Farms Inc., No. 11-888 (FLW), 2011 WL 6002463, at
*13 (D.N.J. Nov. 30, 2011) ([T]he plaintiff must plead or allege the date, time, and place of the
alleged fraud or otherwise inject precision or some measure of substantiation into a fraud
allegation.). And, the plaintiff must allege specifically what was stated to him and by whom.
See Id., at *19 n.13 (D.N.J. Nov. 30, 2011) (in order to survive 9(b) plaintiffs must allege what
happened to them ... and should include some allegations of what was said to them to induce
them to purchase the product.) (quoting Rolo v. City Investing Co. Liquidating Trust, 155 F.3d
644, 658 (3d Cir. 1998)); Scholar Intelligent Solutions, Inc. v. New Jersey Eye Ctr., P.A., Civ.A.
No. 13-642 SRC, 2013 WL 2455959 , at *2 (D.N.J. June 5, 2013) (dismissing claim alleging
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defendant fraudulently misrepresented financial condition of certain companies because claim
did not set forth what defendant said about the financial condition of the companies); Ceruzzi
Holdings, LLC v. Inland Real Estate Acquisitions, Inc., Civ.A. No. 09-5440 (MLC), 2010 WL
1752184, at *4 (D.N.J. Apr. 29, 2010) (dismissing a fraud claim because it lacked the specifics
of what may have been said.).
W.P.s fraud claims fail under this standard. W.P. alleges that he was led to believe that
the information he provided when seeking mental health care from CPS at Princeton and in
speaking with Dr. Donise and Defendant McLean was a matter of confidence. Compl. 129.
But, W.P. does not specify what Dr. Donise and Defendant McLean purportedly said to him.
Nor does he identify the misstatement that Defendant Kolligian purportedly made to W.P., only
that Defendant Kolligian would have reason to know that representations of confidentiality
were routinely made. Id.
W.P.s failure to identify with particularity the purported misrepresentations, upon which
he predicates his fraud claims, are fatal to those claims. Thus, as a matter of law, the Court
should dismiss them.
POINT VIII
W.P.S CLAIMS AGAINST PRESIDENT TILGHMAN ARE NOT
JUSTICIABLE BECAUSE W.P. HAS ALLEGED INSUFFICIENT FACTS
TO RAISE THOSE CLAIMS ABOVE THE SPECULATIVE LEVEL

Dr. Tilghman, W.P. asserts, was Princetons President at all times relevant to this
action. Compl. 45. Also, W.P. vaguely contends, upon information and belief, that
Dr. Tilghman participat[ed] in establishing and effectuating [the] Princeton[] policies that he
challenges. Id. 45. And, based solely on those allegations, W.P. has named Dr. Tilghman as a
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defendant in his FHA, Rehabilitation Act, ADA, NJLAD, intentional infliction, and confidential
relationship claims.
In short, W.P. predicates his claims against Dr. Tilghman on nothing more than
threadbare allegations and conclusory recitals, which the federal courts have eschewed. See
supra pp. 5-6; OBrien v. S. Suburban Coll., No. 93 C 7172, 1994 WL 395029, at *1 (N.D. Ill.,
July 27, 1994) (Fonte [President of South Suburban College] and Hibma still cannot be held
liable for the torts of the persons they supervise simply because of their positions; to be held
liable for the conduct of subordinates, supervisors must have been somehow personally involved
in the tortious conduct.). Thus, he has failed to allege sufficient facts to raise his claims against
Dr. Tilghman above the speculative level. Accordingly, as a matter of law, the Court should
dismiss Dr. Tilghman as a defendant.
CONCLUSION

In sum, the Named Individual Defendants are not proper ADA and Rehabilitation Act
defendants. W.P.s intentional infliction claims cannot survive because the conduct on which he
premises them is neither extreme nor outrageous. W.P.s contract and implied covenant claims
fail because he has not alleged an enforceable underlying contract. W.P.s fraud claims are
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doomed because he has not pled them with sufficient particularity. And, his claims against
Dr. Tilghman fail because they are speculative, at best. Thus, the Court should dismiss those
claims as a matter of law.
Respectfully submitted,

SAIBER LLC

_/s William F. Maderer__________________
William F. Maderer (wmaderer@saiber.com)
Ryan E. San George (rsangeorge@saiber.com)
18 Columbia Turnpike, Suite 200
Florham Park, New Jersey 07932
Phone: (973) 622-3333

Henry Morris, Jr. (morris.henry@arentfox.com)
Karen Vladeck (karen.vladeck@arentfox.com
ARENT FOX LLP
1717 K Street, NW
Washington D.C. 20036
Phone: (202) 857-6403

Attorneys for All Defendants





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