ROSE v. SETON HALL UNIVERSITY

Filing 76

OPINION. Signed by Judge Claire C. Cecchi on 9/30/16. (jr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TRAVIS ROSE,

Civil Action No.: 13-7797
Plaintiff,

OPINION

V.

SETON HALL U1’1IVERSITY,
Defendant.
CECCHI, District Judge.
I.

INTRODUTION

This matter comes before the Court on the Motion of Defendant Seton Hall University
(“Seton Hall” or “Defendant”) to Dismiss the Third Amended Complaint ofpro se Plaintiff Travis
Rose (“Plaintiff’) pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF No. 73]. The
motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78.
II.

BACKGROUND

As set forth in more detail in this Court’s December 15, 2015 Opinion, [ECF No. 69], this
case arises from Plaintiffs October 2001 dismissal from a physicians’ assistant program,
specifically a graduate-level course of study run jointly by Seton Hall and the University of
Medicine and Dentistry of New Jersey. Plaintiff filed the instant action in March 2013 in the
United States District Court for the District of Connecticut. On April 4, 2013, Judge Shea ordered
Plaintiff file an amended complaint in compliance with federal Rule of Civil Procedure 8(a),
noting that Plaintiffs complaint “does not identify the substantive bases for his claims” and was
improperly styled as a “plea agreement.” [ECF No. 5].
Plaintiff filed an Amended Complaint on April 11, 2013. [ECF No. 6]. In November2013,

the case was transferred to this Court. [ECF No. 32]. Plaintiffs Amended Complaint alleged a
violation of Title VI of the Civil Rights Act of 1964. [ECF No. 6 at 1]. Specifically, he alleged
that Joseph Thornton, the director of the physicians’ assistant program manipulated his grade point
average, while other students had their grades changed from F grades to A grades. [ECF No. 6 at
2].

On March 17, 2015, this Court dismissed Plaintiffs first Amended Complaint without

prejudice as the named defendants were all individuals and individuals cannot be held liable under
Title VI. [ECF No. 61].
Plaintiff filed a Second Amended Complaint on April 14, 2015 asserting claims under
Title VII of the Civil Rights Act of 1964, 42 U.C.C
Disabilities Act, 42 U.S.C.

§ 12101

§ 2000(d)

et seq.; the Americans with

et seq.; the Rehabilitation Act, 29 U.S.C.

the Sherman Antitrust Act, 15 U.S.C.

§1

§ 701

et seq.; and

et seq. [ECF No. 63]. The Second Amended Complaint

alleged generally that Vatican City entered into a business relationship with the New Jersey state
university system, under which Seton Hall University “employed a grade rigging apparatus[,]
thereby establishing a state of no competition among students” in order to profit from federallybacked student loan money. [ECF No. 63 at 13]. On December 15, 2015, this Court dismissed
Plaintiffs Second Amended Complaint, finding his claims were time-barred. [ECF Nos. 69, 70].
The Court granted Plaintiff leave to cure the deficiencies in the Second Amended Complaint by
way of amendment, [ECF No. 70], and Plaintiff filed a Third Amended Complaint on December
28, 2015, [ECF No. 71].
Rather than re-raise the claims brought in the Second Amended Complaint, Plaintiffs
Third Amended Complaint asserts claims under the Federal Mail Fraud Statute, 18 U.S.C.

§ 1341.

[Id. at 8-12]. On February 1, 2016, Defendant moved to dismiss the Third Amended Complaint
pursuant to federal Rule of Civil Procedure 12(b)(6). [ECF No. 73]. In response, on February 19,
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2016, Plaintiff filed an “Amendment to the Third Amended Complaint,” which reasserted the
claims set forth in the Third Amended Complaint, raised additional claims for “major fraud” under
18 U.S.C.

§ 1031, and asserted that any statutes of limitations applicable to Plaintiff’s claims have

been tolled under the Wartime Suspension of Limitations Act (“WSLA”), 18 U.S.C.

§ 3287. [ECF

No. 74]. In response, Defendant submitted a letter to the Court noting the inapplicability of the
WSLA to Plaintiff’s claims. [ECF No. 75].
III.

LEGAL STANDARD

For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Ati. Corp.

V.

Twombly,

550 U.S. 544, 570 (2007)). Where fraud is alleged, a plaintiff must “plead (1) a specific false
representation of material fact; (2) knowledge by the person who made it of its falsity;
(3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be
acted upon; and (5) that the plaintiff acted upon it to his damage.” Shapiro v. UJB fin. Corp., 964
F.2d 272, 284 (3d Cir. 1992), as amended (May 27, 1992). In evaluating the sufficiency of a
complaint, district courts must first “accept all of the complaint’s well-pleaded facts as true, but
may disregard legal conclusions.” fowler v. UFMC Shadyside, 578 f.3d 203, 2 10-1 1 (3d Cir.
2009). A pro se litigant’s complaint is held to “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-2 1 (1972). Accordingly, a pro se
complaint “can only be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Estelte
v. Gamble, 429 U.S. 97, 106 (1976) (quoting Names, 404 U.S. at 520-21 (internal quotation marks
omitted)).
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IV.

DISCUSSION
In the interest ofjudicial economy, the Court will address both Plaintiffs Third Amended

Complaint and the purported Amendment to the Third Amended Complaint. Although Defendant
did not file a motion directed specifically to the purported Amendment to the Third Amended
Complaint, the Court may screen Plaintiffs claims pursuant to 28 U.S.C

§ 1915(e)(2)(B), as

Plaintiffs application to proceed informapauperis was granted on May 30, 2013, [ECF No. 8].
Plaintiff fails to state a claim for relief. First, Plaintiff lacks a private right of action to
assert claims against Defendant under the Federal Mail Fraud Statute. See Addlespurger v.
Corbett, 461 F. App’x 82, 87 (3d Cir. 2012) (“[T]here is no private cause of action for a violation
of the federal mail and wire fraud statutes.

. . .“);

Jones v. TD Bank, 468 F. App’x 93, 94 (3d Cir.

2012) (“To the extent that [the plaintiff] attempted to sue under the Federal Mail Fraud statute, 18
U.S.C.

§ 1341, he lacked a private right of action to do so.” (citing Wisdom v. First Midwest Bank,

167 F.3d 402, 408 (8th Cir. 1999))).
Second, Plaintiff lacks a private right of action to assert claims against Defendant under
18 U.S.C.

§ 1031. The only private cause of action under § 1031 is for employees who have been

retaliated against by their employers in limited circumstances. 18 U.S.C.

§ 1031(h); see also Jones

v. Lockett, No. CIV.A 08-16, 2009 WL 2232812, at *9 (W.D. Pa. July 23, 2009). Here, there is
no allegation that Plaintiff was employed by Defendant. Rather, Plaintiff claims to have been
enrolled as a student at defendant University. [See, e.g., ECF No. 74 at 10, 26, 31].
Third, the WSLA only provides for tolling the statute of limitations on certain claims
involving the United States government and its contractors, and it does not provide a cause of
action itself. To the extent Plaintiff relies on the WSLA to provide a cause of action, this reliance
is misplaced. Likewise, to the extent Plaintiff attempts to reassert the claims set forth in his prior
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complaints and argues the WSLA tolls the statutes of limitations for those claims, this effort also
fails as the Supreme Court has recently made clear that the WSLA only applies to criminal charges.
Kellogg Brown & Root Servs., Inc. v. US., ex ret. Carter, 135 S. Ct. 1970, 1978 (2015).
Accordingly, this Court will grant Defendant’s motion. As Plaintiff has thrice failed to
state a cause of action, this Court will dismiss Plaintiffs Third Amended Complaint with
prejudice.
V.

CONCLUSION

Based on the reasons set forth above, Defendant’s Motion to Dismiss is granted. Plaintiffs
Third Amended Complaint and Amendment to the Third Amended Complaint are hereby
dismissed with prejudice. An appropriate order accompanies this Opinion.
Dated
CLAIRE C. CECCHI, U.S.D.J.

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