KALICK v. UNITED STATES OF AMERICA et al

Filing 25

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 7/30/14. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANDREW P. KALICK,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
CIVIL NO. 13-6456 (JBS/JS)
v.
OPINION
UNITED STATES OF AMERICA,
et al.,
Defendants.

Appearances:
Andrew P. Kalick, Pro Se
47 George Street
Mount Ephraim, NJ 08059
Jennifer J. McGruther, DAG
State of New Jersey
Department of Law & Public Safety
Division of Law
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Attorney for Defendant Rowan University Board of Trustees
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter is before the Court on Defendant Rowan

University Board of Trustees’ (hereinafter, “Rowan University”

or “Rowan”)1 motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6). [Docket Item 12.] Plaintiff’s claims stem
from Defendant’s alleged refusal to release Plaintiff’s physical
degree or official transcript despite his eligibility to receive
same, as well as Rowan’s alleged failure to recognize certain
credits Plaintiff completed prior to enrolling at Rowan or
recognize Plaintiff’s completion of certain course requirements.
Plaintiff’s Complaint originally asserted claims against Rowan
University and a host of federal agencies and officials,
including the United States Department of Veterans Affairs and
the United States Department of Education. Plaintiff has
voluntarily dismissed all claims against the federal parties.
Defendant alleges that subject matter jurisdiction is
lacking because Plaintiff’s remaining claims do not arise from
federal law and because Rowan is an arm of the State entitled to
sovereign immunity. Further, Rowan argues it has not been served
with the claim as required by New Jersey law and that the

1

For the purposes of the instant motion, the Court will construe
Plaintiff’s claims against the “Rowan University Board of
Trustees, in their official capacities,” as claims against Rowan
University. In considering whether Plaintiff states a procedural
or substantive due process claim, the Court construes
Plaintiff’s Complaint as an attempt to assert a cause of action
against Rowan University pursuant to 42 U.S.C. § 1983 for
actions under color of state law. See Leshko v. Servis, 423 F.3d
337, 339 (3d Cir. 2005). Further, “[o]fficial-capacity suits . .
. generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985)) (quoting Monell v. New York
City Dept. of Social Services, 436 U.S. 658, 690, n.55 (1978)).
2

Complaint fails to state a claim upon which relief can be
granted. The principal question presented is thus whether this
Court has subject matter jurisdiction over Plaintiff’s remaining
claims against Rowan University.
For the reasons discussed below, the Court finds that it
lacks subject matter jurisdiction and will grant Defendant’s
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) without
prejudice.
II.

BACKGROUND
A. Facts
The following facts, gleaned from Plaintiff’s prolix

Complaint, are accepted as true for the purposes of the instant
motion.
This is a dispute about tuition payments, college credits
and grades awarded at a state college. Plaintiff alleges that
Defendant Rowan University failed to provide him with his degree
and/or transcript after he successfully completed the
requirements for an undergraduate degree. (Compl. [Docket Item
1] ¶¶ 13a, 13f, 14a, 18c, 24h.) It appears from Plaintiff’s
Complaint that Rowan is withholding Plaintiff’s degree and
transcript in part due to a dispute over tuition payments. (Id.
¶¶ 11d, 11e, 11g.) Plaintiff is a veteran entitled to
educational benefits from the Department of Veteran Affairs
(“VA”). (Id. ¶ 4a.) Accordingly, while Plaintiff was enrolled at
3

Rowan, the VA paid to Rowan a portion of Plaintiff’s educational
expenses based on reports the VA received from Rowan regarding
tuition and fees. (Id. ¶¶ 11c, 11d, 11f, 11g, 11j, 13a, 13j,
13m, 18b, 18d.)
Plaintiff asserts that after he exhausted his “Chapter 30”
benefits, he was entitled to payment by the VA of 70 percent of
his tuition and fees under “Chapter 33.” (Id. ¶¶ 13l, 15c.)
Plaintiff claims that Rowan was paid in full for his tuition and
fees during the “pendency of Chapter 30 benefits.” (Id. ¶¶ 11d,
13q, 13r.) However, Plaintiff does not specify what amount was
allegedly paid or what amount remains due. He only alleges that
Rowan “has not refunded payments made to it under Chapter 33”
and “has not incurred any loss with respect to benefits
administered under Chapter 33.” (Id. ¶¶ 13t, 13w.) Despite
noting that his Chapter 33 benefits only covered a percentage of
his tuition and fees, Plaintiff claims that “Rowan reported to
VA tuition and fees charged (to Plaintiff) that were completely
covered by VA (even at the 70% rate).” (Id. ¶ 13m.) As such,
Plaintiff notes that “any possible allegation of debt would be
exclusively to the university.” (Id. ¶ 13l.) Plaintiff, however,
claims he is “not indebted to Rowan in any manner.” (Id. ¶ 13w.)
Plaintiff alleges a fraudulent scheme between Rowan and the
VA through which Rowan was unjustly enriched. Plaintiff asserts
that Rowan either “employed” or colluded with the VA, so the “VA
4

would (and did) claim indebtedness by Plaintiff to VA as a
result of courses allegedly not counting toward graduation.”
(Id. ¶¶ 11b, 13k.) Plaintiff claims that Rowan “intentionally
misrepresented that Plaintiff was . . . taking courses that
didn’t count toward graduation” (id. ¶ 11b) and underreported
his tuition and fees to the VA. (Id. ¶¶ 11c, 11d, 11e, 11g.)
Moreover, Plaintiff alleges that certain courses he
enrolled in should have counted toward graduation, but did not.
(Id. ¶¶ 11b, 13j, 24c.) Specifically, Plaintiff claims that
although he received a passing grade in a music history class,
Rowan, “after the fact, removed the course from Plaintiff’s
online degree evaluation.” (Id. ¶ 14d.) Plaintiff further claims
that some professors either intentionally awarded him failing
grades or developed grading schemes that unfairly prejudiced
him. (Id. ¶¶ 14d, 14e, 14f, 14g.)
Plaintiff also alleges that Rowan did not allow certain
credits obtained prior to enrolling to transfer to Rowan, in
violation of the “New Jersey Transfer Act.” (Id. ¶¶ 24a, 24b,
24f, 24g.) Plaintiff alleges that he “accepted Rowan’s offer of
enrollment” based on Rowan’s acceptance of his “official course
transfer evaluation,” before subsequently receiving a course
requirement outline that “did not comport with the NJ Transfer
Act.” (Id. ¶ 24f.) Plaintiff claims that Rowan violated his due
process rights by not conducting a hearing as to the transfer of
5

certain credits where he could call and confront witnesses. (Id.
¶ 24g.) Additionally, “[w]hen Plaintiff attempted to avail
himself of the administrative remedies under both ‘grade
dispute’ and ‘NJ Transfer Act’ violations, he was insulted and
mocked, and/or ignored by every Rowan University figure.” (Id. ¶
14l.) Instead of permitting administrative remedies, Rowan
invited litigation. (Id. ¶ 14m.)
Despite Plaintiff’s allegations that Rowan manipulated its
course requirements to obtain additional payments from Plaintiff
or the VA, Plaintiff alleges that he is eligible to receive a
degree. (Id. ¶¶ 13e, 13f.)
B. Procedural History
On October 28, 2013, Plaintiff filed a complaint against
the United States, the United States Department of Veterans
Affairs, the United States Department of Education, and various
individuals associated with those entities,2 claiming that the
United States Department of Veterans Affairs violated 38 U.S.C.
§§ 1110 and 1155 and that those statutes are unconstitutional.3
(Compl. ¶¶ 2a, 4a.) The Complaint also asserts various state law

2

In his Complaint, Plaintiff named as defendants the following
individuals in their official capacities: Eric Shinseki,
Secretary of Veterans Affairs; Allison Hickey, Under Secretary
of Veterans Affairs, Veterans Benefits Administration; Tom
Murphy, Department of Veterans Affairs, Director of Compensation
and Pension; and Arne Duncan, Secretary of Education.
3
38 U.S.C. §§ 1110 and 1155 discuss the eligibility criteria for
veterans’ benefits for service-connected disabilities and the
schedule for rating such disabilities.
6

tort and contract claims against the “Rowan University Board of
Trustees, in their official capacities.” Plaintiff voluntarily
dismissed his claims against all federal defendants on January
27, 2014, leaving Rowan as the only remaining defendant. [Docket
Item 21.]
Plaintiff asserts the following causes of action, all arising
under New Jersey law, against Rowan: (1) common law fraud (id. ¶
11); (2) conversion (id. ¶ 13); (3) breach of contract/violation
of the New Jersey Transfer Act (id. ¶ 14); (4) tortious
interference with prospective business and economic advantage
(id. ¶ 16); (5) unjust enrichment (id. ¶ 18); (6) trespass to
chattels (id. ¶ 19); (7) breach of implied covenant of good
faith (id. ¶ 20); (8) intentional infliction of emotional
distress (id. ¶ 21); (9) civil conspiracy/collusion (id. ¶ 22);
(10) breach of fiduciary duty (id. ¶ 23); and (11) negligent
misrepresentation of material fact (id. ¶ 24).
Rowan filed the instant motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6). [Docket Item 12.] Plaintiff filed
a response [Docket Item 19], and Rowan filed a reply. [Docket
Item 22.] This motion is decided upon these submissions without
oral argument pursuant to Fed. R. Civ. P. 78.
III. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1) which is filed prior to
7

answering the complaint is considered a “facial challenge” to
the court’s subject matter jurisdiction. Cardio–Med. Assocs. v.
Crozer–Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). This
is distinct from a factual attack on the court’s subject matter
jurisdiction which can only occur after the answer has been
served. Mortensen v. First Federal Sav. and Loan Ass’n, 549 F.2d
884, 891 (3d Cir. 1977). In deciding a Rule 12(b)(1) motion to
dismiss which is filed prior to an answer, the court must
“review only whether the allegations on the face of the
complaint, taken as true, allege facts sufficient to invoke the
jurisdiction of the district court.” Licata v. U.S. Postal
Serv., 33 F.3d 259, 260 (3d Cir. 1994).
IV. DISCUSSION
Rowan argues that this Court does not have subject matter
jurisdiction because Plaintiff’s remaining claims do not arise
from or implicate federal law. Rowan further argues that it is
an arm of the state and therefore is entitled to sovereign
immunity. Moreover, Rowan asserts that it has not been served a
notice of claim as required by New Jersey law, and Plaintiff’s
Complaint fails to state a claim upon which relief can be
granted.
Plaintiff responds that this Court has subject matter
jurisdiction because Rowan violated Plaintiff’s substantive and
procedural due process rights and his claims substantially rely
8

upon questions of federal law. Plaintiff further asserts that
Rowan is not entitled to sovereign immunity, that he need not
comply with the notice of claim provisions under New Jersey law,
and that his Complaint sufficiently states claims upon which
relief may be granted.
A.

Subject Matter Jurisdiction

Plaintiff asserts that this Court has subject matter
jurisdiction for two reasons: (1) Plaintiff’s substantive and
procedural due process rights were violated; and (2) federal law
is sufficiently involved in Plaintiff’s claims to invoke federal
question jurisdiction.
When a court is faced with 12(b)(1) and 12(b)(6) motions to
dismiss, as a general rule, the proper procedure is to consider
dismissal on the jurisdictional ground first, “for the obvious
reason that if the court lacks jurisdiction to hear the case
then a fortiori it lacks jurisdiction to rule on the merits.”
Mortensen, 549 F.2d at 895 n.22. Under 28 U.S.C. § 1331, “[t]he
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States.”
An action arises under the laws of the United States
if and only if the complaint seeks a remedy expressly
granted by a federal law or if it requires the
construction of a federal statute or a distinctive
policy of a federal statute requires the application
of federal legal principles for its disposition.

9

Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974) (citations
omitted). “[T]he mere presence of a federal issue in a state
cause of action does not automatically confer federal-question
jurisdiction.” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S.
804, 813 (1986). For federal jurisdiction to attach to state law
claims, a substantial, disputed question of federal law must be
a necessary element of a well-pleaded state claim. Grable & Sons
Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314
(2005); Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1, 27–28 (1983).  
Plaintiff asserts that “subject-matter jurisdiction is
based on 28 U.S.C. § 1331 because [Rowan] violated Plaintiff’s
substantive and procedural due process rights guaranteed and
protected by the U.S. Constitution.” (Pl.’s Br. [Docket Item 19]
at 8.) Plaintiff alleges that “the fact of whether or not a debt
exists as to Rowan” is a dispute of constitutional dimension.
(Id. at 11.)
For the reasons now discussed, Plaintiff’s claims about
tuition charges, grades and academic credits all arise under
state law and do not state a plausible basis for invoking
federal question jurisdiction under 28 U.S.C. § 1331. Sticking a
conclusory label of constitutional due process violation upon a
state tort or contract claim does not convert this case into a
federal question case.
10

To state a claim of a procedural due process violation, a
plaintiff must allege (1) an asserted individual interest
encompassed within the Fourteenth Amendment’s protection of
“life, liberty, or property,” and (2) that the procedures
available denied him or her of “due process of law.” Alvin v.
Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (citing Robb v. City of
Phila., 733 F.2d 286, 292 (3d Cir. 1984)). To have a protected
property interest, “a person clearly must have more than an
abstract need or desire for it” or “a unilateral expectation of
it,” but rather must have “a legitimate claim of entitlement to
it.” Robb, 733 F.2d at 292. Courts look to state law to
determine whether an asserted property interest exists. Dee v.
Borough of Dunmore, 549 F.3d 225, 229–30 (3d Cir. 2008).
“To prevail on a substantive due process claim, a plaintiff
must demonstrate that an arbitrary and capricious act deprived
them of a protected property interest.” Taylor Inv., Ltd. v.
Upper Darby Twp., 983 F.2d 1285, 1292 (3d Cir. 1993). The “core
of the concept” of due process is “the protection against
arbitrary action.” County of Sacramento v. Lewis, 523 U.S. 833,
845 (1998). It is well-settled that “only the most egregious
official conduct can be said to be ‘arbitrary in the
constitutional sense.’” Id. at 846 (citing Collins v. Harker
Heights, 503 U.S. 115, 129 (1992)); DeShaney v. Winnebago County
Dep’t of Social Servs., 489 U.S. 189 (1989). And, substantive
11

due process is violated by executive action only when it “can be
properly characterized as arbitrary, or conscience shocking, in
a constitutional sense.” Collins, 503 U.S. at 128.
The Court finds that Plaintiff has failed to raise a claim
arising under the U.S. Constitution or other federal law as
required for § 1331 jurisdiction. Plaintiff merely asserts legal
conclusions, unsupported by facts, that his due process rights
were violated by Rowan. Specifically, the “Subject Matter
Jurisdiction” section of the Complaint states that “[t]his Court
has jurisdiction of the state law claims by virtue of Rowan
violating federal law/Constitution.” (Compl. ¶ 2f.) Moreover,
the first sentence of the “Rowan (Common Law Fraud)” section
states, “Due Process violations of the Constitution are
incorporated throughout and applies to Rowan through the
Fourteenth Amendment.” (Id. at 45.) The Court is unable to
determine whether Plaintiff refers to substantive or procedural
due process, let alone what protected interest he contends was
implicated. A conclusory allegation of federal question
jurisdiction, untethered to some plausible federal statutory or
constitutional basis, does not suffice to confer subject matter
jurisdiction.
The portion of Plaintiff’s Complaint that asserts his due
process right to a hearing focuses on Rowan’s alleged failure to
honor certain credits completed prior to his enrollment in
12

violation of the “New Jersey Transfer Act,” N.J.S.A. 18A:62-46
to 18A:62-51. The “New Jersey Transfer Act” governs the transfer
of credits between state universities and directs public
institutions of higher learning to enter into a collective
statewide transfer agreement that “provides for the seamless
transfer of academic credits to a baccalaureate degree program
from a completed associate of arts degree program.” N.J.S.A.
18A:62-46. The Act requires the transfer agreement to include
“policies and procedures for the implementation of an appeals
process for students and institutions to resolve disputes
regarding the transfer of academic credits.” Id. Plaintiff has
not identified anything in the text of the Act that would
entitle him to a hearing at which he could call and confront
witnesses. Furthermore, Plaintiff acknowledges in his Complaint
Rowan’s claim that the Commission on Higher Education (now the
Office of the Secretary of Higher Education) has found that
Rowan is operating in compliance with the “NJ Transfer Act.”
(Compl. ¶ 14n.) Thus, Plaintiff has not identified, nor has the
Court found, any basis for a hearing pursuant to the text of the
“New Jersey Transfer Act.”
Further, the Supreme Court has recognized the substantial
discretion of school authorities in state-operated universities
over academic decisions regarding the completion of program
requirements and the award of academic degrees. See Bd. of
13

Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978), and
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985). In
Horowitz4 and Ewing,5 the Supreme Court noted that “courts are
generally ill-equipped to review subjective academic appraisals
of educational institutions, and admonished courts to permit
university faculties a wide range of discretion in making
judgments as to the academic performance of students.” Hankins
v. Temple Univ. (Health Servs. Ctr.), 829 F.2d 437, 444 (3d Cir.
1987).
In the present case, Plaintiff states in two conclusory
sentences separated by 71 seemingly unrelated paragraphs that he
was insulted, mocked, and ignored when he “attempted to avail
himself of the administration remedies under both ‘grade

4

In Horowitz, a student was dismissed from medical school for
academic reasons after several faculty members expressed
dissatisfaction with the student’s clinical performance. The
student argued that she had not been accorded due process prior
to her dismissal, but the Court found that “[t]he school fully
informed respondent of the faculty’s dissatisfaction with her
clinical progress and the danger that this posed to timely
graduation and continued enrollment.” Id. at 85. The Court found
no procedural due process violation because “[t]he ultimate
decision to dismiss respondent was careful and deliberate.” Id.
5
In Ewing, a student brought a substantive due process claim
after being dismissed from a 6-year program at a state
university. The student failed an examination that was required
to qualify for the final two years of the program. The Supreme
Court assumed “the existence of a constitutionally protectable
right in [the student’s] continued enrollment,” but found that
the right had not been violated. Id. at 227-28. The student’s
dismissal “rested on an academic judgment that is not beyond the
pale of reasoned academic decisionmaking when viewed against the
background of his entire career at the University.” Id.
14

dispute’ and ‘NJ Transfer Act’ violations” and that he was not
granted a hearing at which he could call and confront witnesses.
(Compl. ¶¶ 24g, 14l.) The Court is unable to determine from
these allegations what process Plaintiff received and what
process he believes he was entitled to.6
Nor can it be said that the right to an adjudicatory
hearing is inherent in a dispute about tuition, grading, or
course credit. The Third Circuit has concluded that a formal
hearing is not necessary to review academic decisions by a
university; rather an “informal-give-and-take” between the
student and the administrative body is adequate. Mauriello v.
Univ. of Med. and Dentistry of N.J., 781 F.2d 46, 50-52 (3d Cir.
1986) (finding adequate process where student “was informed of
her academic deficiencies, was given opportunity to rectify them
during a probationary period before being dismissed, and was
allowed to present her grievance to the graduate committee”). In
his Complaint, Plaintiff describes a meeting in the office of
“Chairman Weiss,” during which Plaintiff had the opportunity to
express his grievances regarding Rowan’s alleged grading scheme

6

Plaintiff also alleges that “Davey and Weiss failed to organize
and/or attend a meeting as required and in accordance with Rowan
policy and Plaintiff’s due process rights.” (Compl. ¶ 14h.) Yet,
the immediately preceding paragraph of Plaintiff’s Complaint
discusses a meeting between Weiss and Plaintiff in Weiss’
office. (Id. ¶ 14g.) Rather than providing clarity, these
contradictory allegations further obscure the factual basis on
which Plaintiff’s due process claims may rest.
15

and course requirements. (Compl. ¶ 14g.) Because universities
are permitted a “wide range of discretion” in making academic
judgments, Plaintiff’s conclusory allegations that Rowan refused
to provide a hearing or “substantive administrative remedies”
are insufficient to state a claim for a violation of his
procedural due process rights without additional allegations
regarding why Plaintiff would be entitled to a hearing and what
type of hearing he was entitled to.7
Because Plaintiff’s Complaint discusses his disagreement
with a multitude of decisions by Rowan officials or faculty
members including the grades he received, the transfer (or nontransfer) of certain credits, and his apparent indebtedness,
Plaintiff fails to identify with any specificity which decisions
by Rowan University he would have challenged, what due process
right he had, and how the constitution is a source of that
right. Plaintiff’s allegations are insufficiently specific to
state a claim for a procedural or substantive due process
violation. Certainly, Plaintiff’s allegation that Rowan failed
to provide a hearing to challenge Rowan’s prejudicial grading
policies or failure to recognize certain credits prior to his

7

This is not to suggest Plaintiff has no rights regarding
tuition and academic disputes. He undoubtedly does, but those
rights arise, if at all, under state tort and contract law, as
his Complaint itself alleges.
16

enrollment does not “shock the conscience” as required to claim
a substantive due process violation.
As a second theory of federal question jurisdiction,
Plaintiff argues that the federal law requiring the VA to pay
for his educational expenses is sufficiently involved in his
state law claims to invoke federal question jurisdiction.
Plaintiff asserts that “[t]he due process causes of
action/claims significantly relate to Title IX and GI Bill
(Chapter 30 and 33) educational allowances and involve a myriad
of federal laws and regulations that directly affect and govern
relief.” (Pl.’s Br. at 8.)
The standard for asserting federal question jurisdiction in
the context of a state-law claim that raises a federal issue is
stated in Grable, 545 U.S. at 314. “[T]he question is, does a
state-law claim necessarily raise a stated federal issue,
actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.” Id.
Thus, federal question jurisdiction over a state law claim will
lie if a federal issue is: (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance
approved by Congress. “The state suit need not invoke a federal
law in order to ‘arise under’ it for removal purposes. It is
17

sufficient that the merits of the litigation turn on a
substantial federal issue that is ‘an element, and an essential
one, of the plaintiff's cause of action.’” U.S. Express Lines
Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002) (quoting Gully
v. First Nat'l Bank in Meridian, 299 U.S. 109, 112 (1936)).
Plaintiff’s claims do not require the resolution of any
substantial question of federal law. The Complaint alleges that
Rowan is withholding Plaintiff’s degree in connection with
tuition payments made in some part by the VA pursuant to federal
law. However, it is not clear what Plaintiff disputes regarding
these payments. Plaintiff asserts that after he exhausted his
“Chapter 30” benefits, he was entitled to payment by the VA of
70 percent of his tuition and fees under “Chapter 33.” (Id. ¶¶
13l, 15c.) Despite noting that his Chapter 33 benefits only
covered a percentage of his tuition and fees, Plaintiff claims
that “Rowan reported to VA tuition and fees charged (to
Plaintiff) that were completely covered by VA (even at the 70%
rate).” (Id. ¶ 13m.) As such, Plaintiff notes that “any possible
allegation of debt would be exclusively to the university.” (Id.
¶ 13l.) Plaintiff, however, claims he is “not indebted to Rowan
in any manner.” (Id. ¶ 13w.) Plaintiff does not seek a
determination of his VA education benefits, and he has dropped

18

the federal defendants.8 Because Plaintiff’s allegations
regarding the tuition payments made by the VA to Rowan are vague
and contradictory, and no benefits are sought from the VA
herein, the Court cannot conclude that Plaintiff’s state law
claims turn on a substantial question of federal law.
Furthermore, even if the Court could somehow construe the
state law claims as requiring the resolution of a substantial
question of federal law, it is not clear that the arrangement
between the VA and Rowan resulted in the withholding of
Plaintiff’s degree. Thus, any question of VA benefits is not
“essential” to his state law claims, as required for § 1331
jurisdiction. As noted above, Plaintiff’s Complaint also
discusses at length Rowan’s grading scheme and refusal to accept
transfer credits which caused or contributed to Rowan
withholding Plaintiff’s degree. He also contests failing grades
that resulted in no credits in those courses, having nothing to
do with payment of tuition. Accordingly, the Court is unable to
conclude based on the allegations in Plaintiff’s Complaint that
any disputed federal question is essential to Plaintiff’s
claims. Therefore, Plaintiff’s Complaint does not give rise to
federal question jurisdiction and the Court lacks subject matter

8

Moreover, even if Plaintiff sought an award of veterans’
educational benefits, Congress has not conferred jurisdiction to
review VA benefits determinations upon this Court, but rather
upon the U.S. Court of Appeals for Veterans Claims. 38 U.S.C. §
7252(a).
19

jurisdiction over Plaintiff’s remaining state law claims against
Rowan.
B. Supplemental Jurisdiction
28 U.S.C. § 1367(a) provides that “in any civil action
of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the
action within such original jurisdiction that they form
part of the same case or controversy under Article III of
the United States Constitution.” 28 U.S.C. § 1367(a).
Subsection (c) of § 1367 enumerates the four categories of
claims over which a district court has supplemental
jurisdiction but which the court may decline to adjudicate:
(1) the claim raises a novel or complex issue of State law;
(2) the claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction; (3) the district court has dismissed all
claims over which it has original jurisdiction; or (4) in
exceptional circumstances, there are other compelling
reasons for declining jurisdiction. 28 U.S.C. § 1367(c).
When deciding whether to exercise supplemental
jurisdiction, “a federal court should consider and weigh in
each case, and at every stage of the litigation, the values
of judicial economy, convenience, fairness, and comity.”
20

City of Chicago v. Int’l College of Surgeons, 522 U.S. 156,
173 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988)). Absent extraordinary circumstances,
“jurisdiction [over plaintiff’s state law claims] should be
declined where the federal claims are no longer viable.”
Shaffer v. Bd. of Sch. Dirs. of Albert Gallatin Area Sch.
Dist., 730 F.2d 910, 912 (3d Cir. 1984).
As discussed above, the Court has no federal question
jurisdiction. The litigation is at an early stage. Plaintiff has
not identified any extraordinary circumstances that would
justify the Court’s exercise of supplemental jurisdiction.
Accordingly, the Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims pursuant to 28
U.S.C. § 1367(c)(3) and these claims will be dismissed for lack
of subject matter jurisdiction without prejudice to refiling in
a court of competent jurisdiction, presumably the Superior Court
of New Jersey.9
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) will be granted without

9

Because Plaintiff’s Complaint will be dismissed for lack of
subject matter jurisdiction, the Court has no authority to
decide whether Defendant is entitled to sovereign immunity;
whether Plaintiff has satisfied the notice requirements under
New Jersey law; or whether Plaintiff has failed to state a claim
upon which relief can be granted.
21

prejudice. Based on the allegations in Plaintiff’s Complaint,
the Court does not have original jurisdiction pursuant to 28
U.S.C. § 1331 and will not exercise supplemental jurisdiction
pursuant to 28 U.S.C. § 1367. An accompanying Order will be
entered.

July 30, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

22