COLLICK et al v. WILLIAM PATERSON UNIVERSITY et al

Filing 27

OPINION fld. Signed by Judge Kevin McNulty on 11/17/16. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 16-47 1 (KM) (JBC)

GARRETT COLLICK, NOAH WILLIAMS,
and NANCY WILLIAMS,
Plaintiffs,

OPINION

V.

WILLIAM PATERSON UNIVERSITY,
KATHLEEN M. WALDRON, ROBERT
FULLEMAN, ELLEN DESIMONE, WILLIAM
PATERSON UNIVERSITY POLICE
DEPARTMENT, JOHN DOES 1-20 (names
fictitious as presently unknown),
employees, representatives, and! or
agents of defendant WILLIAM PATERSON
UNIVERSITY POLICE DEPARTMENT,
JANE DOES 1-20 (names fictitious as
presently unknown), employees,
representatives, and! or agents of
defendant WILLIAM PATERSON
UNIVERSITY POLICE DEPARTMENT,
JOHN SMITH 1-5 (names fictitious as
presently unknown), employees,
representatives, agents, and/or
spokespersons of defendant WILLIAM
PATERSON UNIVERSITY, and JANE
SMITH 1-5 (names fictitious as presently
unknown), employees, representatives,
agents, and/or spokespersons of
defendant WILLIAM PATERSON
UNIVERSITY,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The manner in which colleges address allegations of sexual assault on
campus is an issue of great public concern. Now before this Court, however, is
1

a motion like any other—in particular, a motion to dismiss the complaint for
failure to state a claim upon which relief may be granted, under Federal Rule of
Civil Procedure 12(b)(6). (ECF no. 14) It is not the Court’s task on this motion
to determine whose account is more credible. Indeed, the opposite: for
purposes of such a motion, “[t}he only issue before the Court now is whether

f we

the Complaint,

assume its allegations are true, states a legal claim.

Whether the allegations are true can be determined only after the parties

exchange discovery and the case is decided, either by summary judgment or
trial.”
The campus in question here is that of William Paterson University
(“WPU”). The primary plaintiffs, Garrett Collick (“Collick”) and Noah Williams
(“Williams”), are two male WPU students who were accused of having engaged
in non-consensual sex with a female classmate. Collick and Williams were
arrested by university police officers and charged with sexual assault and other
crimes. A grand jury declined to indict them. WPU, however, ultimately
expelled them. The claims in the Complaint (ECF nos. 1-1 and 12)2 arise from
those criminal and university disciplinary processes.
Collick, Williams, and Collick’s mother, Nancy Williams (“Ms. Williams”),
bring this suit against WPU; the WPU Police Department (“University Police”);
WPU’s President, Kathleen M. Waldron; its Director of Public Safety and
University Police, Robert Fulleman (“Director Fulleman”); and a University
Police Detective Sergeant, Ellen DeSimone (“Det. Sgt. DeSimone”). Also named

Evans v. City of Newark, No. 14-00120, 2016 WL 2742862, at *1 (D.N.J. May
10, 2016).
2

Record items cited repeatedly will be abbreviated as follows:
Compl.

=

Complaint (ECF nos. 1-1 and 1-2)

Def. Mot. = Memorandum of Law in Support of Defendants’ Motion to Dismiss
(ECF no. 14-5)
P1. app.

=

Def. Reply

Memorandum of Law in Opposition (ECF no. 17)
=

Defendants’ Reply Brief (ECF no. 20)
2

as defendants are some two dozen other employees, representatives, or agents
of WPU’s administration and the University Police.
The Complaint asserts some twenty-one causes of action. Collick,
Williams, and Ms. Williams allege that the WPU Defendants have violated their
rights under Title IX of the Education Amendments of 1972, 20 U.S.C.

§ 1681

et seq. (“Title IX”), the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution, 42 U.S.C.

§ 1985 (“Section 1985”), 42 U.S.C. § 1986

(“Section 1986”), the New Jersey Law Against Discrimination, and the New
Jersey Constitution and laws. They also assert multiple common law tort and
contract based causes of action.
For the reasons set forth below, Defendants’ motion to dismiss is
GRANTED IN PART and DENIED IN PART. I dismiss without prejudice certain
defectively pleaded claims, or parts of claims: Counts 11 and 17 are dismissed
in their entirety; Counts 1, 2, 3, 4, 6, and 8 are dismissed in part to the extent
they are based on racial discrimination or theories of substantive due process
or equal protection/racial discrimination; Count 10 is dismissed as to the

respondeat superior liability of WPU and the University Police only; and Count
12 is dismissed as to Plaintiffs’ relationship with WPU only. The remainder of
the Complaint will go forward.
BACKGROUND

I.

In considering a motion to dismiss, the Court is required to treat the
facts alleged in the Complaint as true and to draw all reasonable inferences in
the plaintiffs’ favor. I summarize those allegations as follows:
A. The Matriculation of Collick and Williams at WPU
WPU is a public, coeducational college located in Wayne, New Jersey.
(Compl.

¶ 28) In late November 2014, Collick and Williams, both male, were

18-year-old freshmen at WPU, in good academic and financial standing. (Id.

¶

1) Both Collick and Williams enrolled at WPU as members of the Educational
Opportunity Fund Program (“EOFP”), “a program instituted to offer students
from disadvantaged backgrounds the tools and financial support needed to
3

succeed in college.” (Id.

¶

35) EOFP-related loans of $11,000 and $4,000,

respectively, enabled Collick and Williams to attend WPU. (Id.

¶J

50, 60)

Collick also worked at WPU’s dining hail, earning approximately $8.35 per
hour. (Id.

¶

53)
B. Student Code of Conduct and Sexual Violence Policy

As WPU students, Collick and Williams were subject to WPU’s Student
Code of Conduct 20 14-2015 (“Student Code of Conduct”) and the
Domestic/ Dating Violence, Stalking and Sexual Violence Policy (“Sexual
Violence Policy”). (Id. ¶36) These documents govern WPU’s investigations and
disciplinary proceedings. (Id.

¶

47)

The Sexual Violence Policy provides that “Students accused of.

.

.

sexual

violence: will be treated with fairness and respect. The University will ensure
that its investigations and disciplinary proceedings comply with due process
requirements.” (Id.

¶

39) This policy also establishes the process WPU must use

when investigating and prosecuting claims of misconduct:
sexual violence
Disciplinary sanctions for violations of this.
of the student code of conduct will be imposed in
policy and/or
accordance with applicable [WPUI policies, including but not
limited to, expulsion or termination of employment. The
University’s determination shall be based on the preponderance of
evidence in the case. [WPU} typically conducts a full investigation
within sixty days of receiving a complaint. Additional time may be
necessary depending of the complexity of the investigation and the
sexual violence. Both parties will be
severity and extent of.
ly provided with written notification of the outcome of
simultaneous
the investigation/proceeding and, if applicable, either party may
file an appeal within three days. Both parties will be given periodic
status updates on the investigation. The appropriate University
disciplinary process is determined by the status of the person
sexual violence. If the accused is a
accused of engaging in
student, the complaint is addressed with the procedures for
student discipline as set forth in the University’s Student Code of
Conduct.
.

.

(Id.

¶

.

.

.

.

.

40) Similarly, the Student Code of Conduct establishes that:
[Tjhe threshold utilized for determining responsibility for alleged
policy violations will be the “preponderance of the evidence.” This
means that the hearing officer will weigh all information available
4

about an incident and ask if the violation is more likely than not to
have occurred. If the answer is affirmative, then the student(s) will
be found responsible for the violation.
(Id.

¶

41) The Student Code of Conduct also assures WPU students that “[t]he

University will guarantee procedural fairness in all its disciplinary actions.” (Id.

¶

42)
C. Encounters Between Collick and Williams and Jane Doe
During their freshman year, Collick lived in WPU’s Overlook North

dormitory, and Williams lived in the Overlook South dormitory. (Id. ¶j 26-27)
3
“Jane Doe,” a female first-year student, also lived in Overlook South. (Id.

¶{

2,

52) Both Collick and Williams first met Jane Doe during their first semester at
WPU, and both had participated in consensual sexual activity with Doe before
the night of November 25, 2014. (Id.

¶J

54-55, 62-63) Jane Doe had initiated

the sexual relationships with both Collick and Williams, and some of the
consensual sexual activities in both relationships had involved other male WPU
students as well. On at least one occasion prior to November 25, 2014, Collick,
Williams, and Jane Doe jointly participated in sexual activity. (Id.

¶J

56-58, 64-

66) Between such sexual episodes, Jane Doe “inundated” Collick with
messages, via text message and otherwise, seeking sex. Most of these Collick
rejected. (Id.

¶

59)

On November 24, 2015, Jane Doe hoped to engage sexually with Collick
and, for that purpose, attempted to call him thirty-three times. (Id.

¶f

68-69)

Later that evening and into the early morning of November 25, 2014, Collick
and Williams were watching television with three other male WPU students in a
friend’s room in the Overlook South dormitory. (Id.

¶

67) While those five were

watching TV, Jane Doe entered, turned off the lights and TV, closed the blinds,
and invited Collick to have sex with her in her room, but he declined. (Id.

¶J

70-72) Jane Doe then “initiated consensual sex on Collick,” and subsequently
participated in conserisual sexual activities with Williams and the other three

The name is fictional, to protect privacy. Doe is not a party to this action.
5

male students. (Id. ¶j 73-74) Afterward, Williams and another male student
accepted—but Collick declined—an invitation from Doe to come back to her
room, where Williams then had additional consensual sex with Doe. (Id.
77) Williams then returned to his room. (Id.

¶

¶J

75-

78) Afterward, Jane Doe, Coflick

and Williams, and the three other first-year students remained on good terms.
(Id.

¶

4) Later on November 25, 2014, Jane Doe “visited Williams’ dormitory

and other nearby rooms looking for Collick who was not there.” (Id.

¶

79)

D. Defendants’ Investigation of Allegations by Doe
University Police is a police organization “responsible for servicing and
protecting William Paterson’s campus and its community.” (Id.

¶

29) Director

Fulleman was “responsible for implementing, overseeing, and supervising all
laws and safety procedures” at WPU, and DeSimone was a sergeant on the
force. (Id.

¶J

3 1-32)

On November 25, 2014, shortly before 2 p.m., Jane Doe falsely reported
the events of the prior evening and early morning to the University Police as
rape and sexual assault. (Id. ¶j 5, 80) Defendants’ investigation was limited to
receiving Jane Doe’s report; it “did not include interviews of other students, a
review of videotapes from the dorm, an analysis of any cell phone records, an
examination of [Jane Doe’s] blogs or other social media profiles, or any
investigation into previous relations between [Jane Doe] and Collick and
Williams.” (Id.

¶

83) However, “interviews with other students would have

revealed that [Jane Doel was very sexually active at William Paterson, had
many sexual partners, engaged in sexual activities with more than one partner
on multiple occasions, had to change dormitory rooms because her roommate
was uncomfortable with the level of [Jane Doe’sl sexual activity, had previous
sexual relations with plaintiffs, was known to use illicit drugs, and would have

6

demonstrated that plaintiffs committed no wrongdoing and, thus, [that Jane
Doe’s] accusations were false.” (Id.

¶

84)4

Prior to their eventual arrest, Collick and Williams were not interviewed
or questioned regarding the accusations, were not notified of any investigation
pending against them, and were not given an opportunity to deny the sexual
assault allegations. (Id.

¶

82, 93-94) More generally, Defendants did not treat

Collick and Williams fairly or respectfully in the course of any investigation. (Id.

¶

91) “In essence, [D]efendants rushed to judgment, considered plaintiffs

Collick and Williams guilty solely on [Doe’s] report, and gave little thought, if
any, to the investigation and discovery of the actual facts involved.” (Id.
On November 28, 2014, Det.
which were issued by a judge. (Id.

Sgt.
¶

¶

22)

DeSimone applied for arrest warrants,

81) At no point during Defendants’

investigation did “anyone corroborate [Doe’s] allegations or speak to potential
witnesses,” obtain or review security camera footage from the Overlook South
dormitory, or seek exculpatory evidence. (Id. ¶j 87-89) Further, at no point
during the investigation into Jane Doe’s allegations did the University Police
follow “rape kit” procedures. (IcL

¶

90)

E. Arrest, Imprisonment, and Grand Jury Presentation
On November 29, 2014, University Police arrested Collick and Williams
while they were off-campus during Thanksgiving break. They were placed in
handcuffs, but were not told the reason for the arrest. (Id.
Williams witnessed the arrest of her son, Collick. (Id.

¶

“suffered severe emotional distress,” then and later. (Id.

¶J

96-97, 101) Ms.

102) As a result, she

¶

115)

University Police returned Collick and Williams to WPU’s campus,
questioned each for at least twenty minutes, and held them for at least an hour
in handcuffs. (Id. ¶j 98-99, 101) Neither became aware of the reason for their
arrest until an arresting officer mentioned Jane Doe’s name. (Id. ¶ 100)

The use of an accuser’s history of promiscuity to vitiate a sexual assault charge,
even at trial, is highly problematic. See, e.g., Fed. R. Evid. 412; N.J. R. Evid. 412. For
present purposes, however, it is unnecessary to discuss that issue further.
7

Collick and Williams were then taken to Passaic County Jail and booked.
(Id.

¶

105) Collick was charged with four counts of aggravated sexual assault,

one count of aggravated criminal sexual contact, one count of conspiracy to
commit sexual assault, and one count of criminal restraint. (Id.

¶

9, 103)

Williams was charged with two counts of aggravated sexual assault, one count
of first degree kidnapping, one count of conspiracy to commit sexual assault,
and two counts of criminal restraint. (Id.

10, 104)

¶J

Initially, Plaintiffs’ bail was set at $200,000, but later lowered to
$25,000. Collick and Williams spent nine days in Passaic County Jail, until
December 9, 2014, when their families helped them make bail. (Id. ¶j 106,
108-09, 114) While in jail, Collick and Williams spent five days in general
population and four days in medium security. (Id.

¶

106) During their

imprisonment, “Collick and Williams were extremely scared and frightened for
their lives

.

.

.

,

and they slept in shifts to attempt to protect one another.” (IcL

¶

107) As a result, both students “suffer[edj immeasurable and permanent
emotional and psychological trauma.” (Id.

113)

¶

The matter was presented to a Passaic County grand jury. On January
26, 2014, the grand jury declined to indict Collick and Williams, returning no
bill. (Id.

¶

110)
F. WPU’s Student Disciplinary Actions

On November 29, 2014, Jennifer Tumlin, WPU’s Director of Student
Conduct and Dispute Resolution, issued Collick and Williams a Notice of
Interim Suspension. The Notice cited “a serious incident” on WPU’s campus,
and informed them that they had been “temporarily suspended” and banned
from entering WPU’s grounds and facilities until the school’s disciplinary
process adjudicated the case, because they were deemed to be clear and
present dangers to the community. (Id.

¶J

12, 85) The Notice also stated that

Collick and Williams needed to contact Ms. Tumlin’s office “as soon possible to
arrange to meet to discuss the university’s adjudication process thoroughly.”
(Id.) The Notice was issued based on the University Police’s “incomplete and
8

improper” investigation. (Id.)
University President Waidron was “responsible for all aspects of student
life at WPU,” and “her decisions, statements, instructions, and/or edicts
constituted policy” of WPU. (Id. ¶j 30, 169) On November 30, 2014, the day
after the Notice of Interim Suspension was issued, President Waldron issued a
public statement asserting that a crime had occurred on campus and offering
her condolences to Jane Doe:
On November 25, 2014, a sexual assault of a female student
allegedly took place in a residential hail on our campus. Five male
students who were living in the residence halls have been arrested
and charged. As soon as the victim reported this incident, she was
attended to by university counselors and police officers. All of the
alleged perpetrators of this heinous crime have been barred from
campus. Prosecution is being handled by the Passaic County
Prosecutor’s office and the university is fully cooperating in the
prosecution. I am angry and dismayed that this crime was
committed on our campus and allegedly by students. My deepest
concern is for the victim of this criminal act who has courageously
stepped forward to take legal action and seek justice. No
expression of anger or sadness on my part can alleviate the harm
done to the victim and my heart goes out to her and her family. I
offer the full support of the University community. William
Paterson University its students, faculty, staff, and board of
trustees is horrified by this alleged sexual assault. Our University
is a place of learning and personal growth where individuals are
respected. It is our responsibility to provide a safe environment for
all its members and to be a campus where students can grow and
thrive. We are committed to ensuring that William Paterson
University will always be a place where students feel safe and
sound. This commitment extends from our classrooms to our
residence halls and to everywhere on campus.
-

-

(Id.

¶

13, 86)
Although Defendants’ investigation did not yield sufficient evidence to

meet the preponderance of the evidence burden established in the Student
Code of Conduct (Id.

¶

95), WPU expelled Collick and Williams. (Id.

¶J

18, 111)

G. Plaintiffs’ Other Injuries and Losses
As additional results of Defendants’ actions, Collick’s and Williams’s
“entire academic careers have been ruined, and their overall economic futures
9

are severely compromised”; they were “shunned from campus”; they suffered
reputational damage; and their future interpersonal relationships will be
impaired. (Id.

¶J

1 12-13, 119, 122-24) Further, Collick and Williams lost a year

of their college education, and the financial resources they expended to get into
and attend WPU were “wasted and lost without any compensation or return.”
(Id.

¶f
II.

117-18)
APPLICABLE STANDARD
FED. R. Civ. P. 12(b)(6) provides for the dismissal of a complaint, in whole

or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.s.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court Twombly case, infra).
FED.

R. CIV. P. 8(a) does not require that a complaint contain detailed

factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See Id. at 570; see also
Umland v. PLANCO Fin. Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
10

‘probability requirement’.

.

.

it asks for more than a sheer possibility.” Iqbal,

556 U.S. at 678 (2009).
The United States Court of Appeals for the Third Circuit, interpreting the
Twombly/Iqbal standard, has provided a three-step process for analyzing a
Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
U.S.] at 675; Argueta [v. U.S. Immigration & Customs Enforcement,
643 F.3d 60, 73 (3d Cir. 2011)]. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556 U.S. at 679;
Argueta, 643 F.3d at 73. Finally, we look for well-pled factual
allegations, assume their veracity, and then “determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679; Argueta, 643 F.3d at 73. This last step is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
III.

ANALYSIS
In Section III.A, infra, I deny WPU’s motion to dismiss all counts on

sovereign immunity grounds.
Section B covers civil rights counts that allege racial or gender
discrimination (Counts 1, 3, 4, 8). I partly grant the motion to dismiss those
counts to the extent they are based on racial discrimination, but deny the
motion to dismiss to the extent they are based on gender discrimination.
Section C covers civil rights claims relating to the criminal charges and
the WPU disciplinary process (Counts 2, 6). These counts are sustained to the
extent they rest on Fourth Amendment, procedural due process, and equal
protection/gender discrimination grounds. The motion to dismiss is granted,
however, to the extent these counts rest on theories of substantive due process
or equal protection / racial discrimination.
Section D covers the liability of WPU, the University Police, and
supervisory personnel liability for civil rights violations by lower level
11

employees, and for declaratory relief (Counts 5, 7, 15, 21). As to these, the
motion to dismiss is denied.
Section E covers state common law causes of action (Counts 9—14, 16—
20). As to Counts 9, 13, 14, 16, 18, 19, and 20, the motion to dismiss is
denied. As to Count 10 (malicious prosecution), the motion to dismiss is
granted as to respondeat superior liability of WPU and the University Police, but
otherwise denied. As to Count 12 (tortious interference), the motion to dismiss
is granted as to Plaintiffs’ relationship with WPU, but denied as to Plaintiffs’
relationship with EOFP. As to Counts 11 (abuse of process) and 17 (negligent
infliction of emotional distress), the motion to dismiss is granted. Because
Count 17 is the only count in which Nancy Williams is named, the Clerk will
dismiss her as a party.
A. Sovereign Immunity
WPU, as a State university, argues that all of the claims against it are
barred by sovereign immunity. (Def. Mot. at 62-65) WPU concedes in its reply
brief that by removing this case to federal court, it waived its immunity from
suit in federal court under the Eleventh Amendment. Lombardo v.
Pennsylvania, Dep’t of Pub. Welfare, 540 F.3d 190, 198 (3d Cir. 2008). WPU
correctly notes, however, that it retains the “defenses it would have enjoyed
had the matter been litigated in state court, including immunity from liability,”
i.e., sovereign immunity. Lombardo, 540 F.3d at 198.
The question, then, is whether WPU is entitled to invoke the State’s
sovereign immunity under New Jersey law. In Fitchik v. New Jersey Transit Rail
Operations, Inc., 873 F.2d 655 (3d Cir. 1989), the Third Circuit provided an
analytical framework for determining whether a State entity, such as a public
university, is entitled to Eleventh Amendment immunity. New Jersey courts
have adopted an identical framework to analyze sovereign immunity. See
Royster v. New Jersey State Police, 439 N.J. Super. 554, 579, 110 A.3d 934,
Various state law tort immunity doctrines are discussed separately in Section
III.E, passim.

5

12

948 (App. Div. 2015) (although the New Jersey Appellate Division was “not
bound by lower federal court decisions” it applied Fitchik to state sovereign
immunity analysis “in an attempt to create judicial comity’ and to avoid forum
shopping”). I therefore start from the premise that the Eleventh Amendment
case law, though not literally applicable, is highly relevant to the interpretation
of the analogous state law of immunity.
I previously considered whether WPU is entitled to Eleventh Amendment
immunity in Brennan v. William Paterson Coil., 34 F. Supp. 3d 416 (D.N.J.
2014). As I explained there:
Whether WPU, a public university, is a state entity for Eleventh
“is a fact-intensive review that calls for
Amendment purposes
[ani individualized determination[].” Bowers v. NCAA, 475 F.3d
524, 546 (3d Cir. 2007). Although the facts as to different
universities may differ, it is instructive that, as to two major
institutions in the State system, the federal courts have found that
immunity does not apply. See Kovats v. Rutgers, State University,
822 F.2d 1303, 1312 (3d Cir. 1987) (Rutgers); Bostanci v. N.J. City
Univ., 2010 WL 4961621, *1, 2010 U.S. Dist. LEXIS 126693, *2_3
(D.N.J. Dec. 1, 2010) (New Jersey City University). But see Nannay
v. Rowan College, 101 F. Supp. 2d 272 (D.N.J. 2000) (sovereign
immunity applied to Rowan College at summary judgment stage).
.

.

.

Questions of Eleventh Amendment immunity are for the court
to decide. Bostanci, supra, 2010 WL 4961621 at *1, 2010 U.S. Dist.
LEXIS 126693 at *2_3 (citing Skehan v. State System of Higher
Education, 815 F.2d 244, 246 (3d Cir. 1987)). The burden of setting
forth facts proving entitlement to immunity is borne by the party
asserting such immunity, Id. at *1, 2010 U.S. Dist. LEXIS 126693
at *3 (citing Christy v. Pennsylvania Turnpike Comm’n, 54 F.3d
1140, 1144 (3d Cir. 1995)).
Id at 430-431. Based on the information WPU provided in its motion to dismiss
in Brennan, I held that “WPU ha[d] not remotely met its burden of setting forth
sufficient facts to demonstrate an entitlement to [Eleventh Amendment]
sovereign immunity.” Id. at 432.
The limited information that I may consider on this motion to dismiss,
which is directed to the face of the complaint, does not justify a different result
as to State sovereign immunity. Unlike the Eleventh Amendment, a
13

jurisdictional bar which permits the court to consider extrinsic evidence under
Rule 12(b)(1), state-law sovereign immunity “is an affirmative defense

.

.

.

Garcia v. Richard Stockton Coil, of New Jersey, 210 F. Supp. 2d 545, 548
(D.N.J. 2002) (citing Carter v. City of Philadelphia, 181 F.3d 339, 347 (3d Cir.
1999) (citing Christy v. Pennsylvania Turnpike Commission, 54 F.3d 1140, 1144
(3d Cir. 1995)).
Under the Third Circuit’s “three-part test,” a court must examine “the
following three elements: (1) whether the payment of the judgment would come
from the state; (2) what status the entity has under state law; and (3) what
degree of autonomy the entity has.” Id. at 431 (citing Bowers, 475 F.3d at 546;
see also Fitchik, 873 F.2d 655). As I explained in Brennan:
The first “question at issue is ‘whether a money judgment against a
state instrumentality or official would be enforceable against the
State.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430, 117
S.Ct. 900, 137 L.Ed.2d 55 (1997). The appropriate underlying
inquiry “is whether the State is obligated to pay or reimburse the
University for its debts.” Bowers, 475 F.3d at 547. In Bostanci, for
example, this Court found that New Jersey City University “failed
to show that the State of New Jersey bears an obligation to pay a
judgment against it[,]” noting that, under state statutes pertaining
to state universities generally, a university’s board of trustees may
borrow money from the state, but such borrowing would not
constitute a debt of the State. See Bostanci at *2, 2010 U.S. Dist.
LEXIS 126693 at *5 (citing N.J.S.A. § 18A:64—6(t)).
Brennan, 34 F. Supp. 3d. at 431.6
Here, Defendants do not even really attempt to address the first factor.
They merely note that “there is no clear answer as to the

.

.

.

Fitchik factor

“None of the three Fitchik factors is itself dispositive. The Third Circuit formerly
stated that the question of whether any judgment would be paid out of the state
treasury is the ‘most important’ factor.” State of N.J., Dep’t of Envtl. Prot. v. Gloucester
Ertvtl. Mgmt. Servs., Inc., 923 F. Supp. 651, 655 (D.N.J. 1995) (citations omitted)
(quoting Fitchik, 873 F.2d at 659). More recently, however, that Court has stated that
“we [] no longer ascribe primacy to the first factor.” Benn u. First Judicial Dist. of Pa.,
426 F.3d 233, 239 (3d Cir. 2005). Instead, the financial liability factor is just “one
factor co-equal with [the] others in the immunity analysis.” Id. at 240.
6

14

about the funding source of judgment.” (Def. Mot. at 63). At this, the motion to
dismiss stage, there is nothing else for me to consider as to factor one.
“The second question asks whether the State itself considers the entity
an arm of the state. Under the second factor, we look to how state law treats
the entity generally; whether the entity can sue or be sued in its own right,
whether the entity is separately incorporated, and whether the entity is
immune from state taxation.” Brennan, 34 F. Supp. 3d at 431 (citing Bowers,
475 F.3d at 548).
Here, Defendants note that WPU was statutorily established as a “state
college” under N.J. Stat. Ann.

§ 18A:64-1 et seq. As such, it is not separately

incorporated or empowered to “sue and be sued”; it has the power of eminent
domain; and it is within the definition of the “State” for the purposes of the New
Jersey Tort Claims Act and the New Jersey Contractual Liability Act. (Def. Mot.
at 63-64) (citing the relevant New Jersey statutes) Further, as a state college,
WPU is subject to the New Jersey Administrative Procedure Act in resolving
certain controversies and disputes; its collective bargaining with unions is
governed by the New Jersey Employer-Employee Relations Act; and certain
employees are protected by the Civil Service Laws and state personnel
regulations. (Def. Mot. at 63-64) (same) That is much more than WPU
presented in support of the second Fitchik factor in Brennan. Nevertheless,
most, if not all, of these characteristics were also before the court in State of NJ
DEP v. Gloucester, 923 F. Supp. 651, 657-59 (D.N.J. 1995) (Simandle, J.), in
which Glassboro State College was named as a defendant. Gloucester found no
“clear answer as to the [state] colleges’ status under state law. Some Ffactorsl
support a finding of immunity, others do not.” Id. at 658. Gloucester concluded
that “this second Fitchik factor, i.e., the entity’s status under state law, tilts
slightly in favor of finding immunity of the state colleges, but only to a small
degree.” Id. at 659 (quotations omitted).
7

Gloucester cited general legislative findings that the State colleges are
independent of State government:
15

The third factor concerns the extent of the institution’s autonomy.
Defendants offer little on this point. WPU argues that a 2011 State
Reorganization Plan consolidated and transferred “powers, functions, and
duties,” previously belonging to the New Jersey Commission on Higher
Education, to the Secretary of Higher Education (the “Secretary”). (Def. Mot. at
64-65) (quoting 43 N.J.R. 1625(a)) “As a result, the Secretary.
enforcement power.

.

.

.

.

now wields

and the power to grant or revoke the licenses of State

colleges. Id. (citing N.J. Stat. Ann.

§ 18A:3B-34, 18A:68-6, -7). Defendants fail

to explain specifically how this reorganization has had any impact on the
autonomy of state colleges like WPU.
WPU’s contentions are suggestive, and the issue might profitably be
revisited at the summary judgment stage. I cannot make the necessary findings
without a factual record, however, and the issue is not clear enough as a
matter of law to justifr dismissal on a Rule 12(b)(6) basis. Accordingly,
Defendants’ motion to dismiss all counts against WPU on sovereign immunity
grounds is denied.

The Legislature hereby finds that it is in the best interest of the State
that the State colleges shall be and continue to be given a high degree of
self-government and that the government and conduct of the colleges
shall be free of partisanship. The Legislature finds further that a
decentralization of authority and decision-making to the boards of
trustees and administrators of the State colleges will enhance the idea of
self-government. Such colleges shall be maintained for the purpose of
providing higher education in the liberal arts and sciences and various
professional areas, including the science of education and the art of
teaching, at such places as may be provided by law. The names of the
colleges shall be designated by the board of trustees subject to
regulations of the Commission on Higher Education concerning
university status. The name of each of the existing State colleges shall
continue the same unless a new name is so designated.
N.J. Stat. Ann. § 18A:64-1. Such general declarations of principles, however, might or
might not be overridden by other evidence not properly considered on a motion to
dismiss.
16

B. Counts Alleging Racial and Gender Discrimination
The Complaint, although it adequately alleges violations of the plaintiffs’
due process and civil rights, including gender discrimination, fails to support
with facts its allegations of racial discrimination. Counts 1, 3, 4, and 8 will
therefore be dismissed to the extent they rest on a racial discrimination theory.
1. Title IX Claim (Count One)
In Count One, Plaintiffs allege that they were subjected to gender-based
discrimination in violation of Title IX of the Education Amendments of 1972.
Title IX provides in relevant part, “No person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C.

§ 1681(a) (emphases added). “This

provision, which is enforceable through an implied private right of action, was
enacted to supplement the Civil Rights Act of 1964’s bans on racial
discrimination in the workplace and in universities.” Doe v. Columbia Univ.,
831 F.3d 46, 53 (2d Cir. 2016) (citing Yusuf v. Vassar Coil., 35 F.3d 709, 71415 (2d Cir. 1994)). “Because Title IX prohibits (under covered circumstances)
subjecting a person to discrimination on account of sex, it is understood to bar
the imposition of university discipline where gender is a motivating factor in
the decision to discipline.” Id.
Plaintiffs contend in their briefing that they have adequately alleged three
theories of Title IX claims against Defendants: “erroneous outcome,” “selective
enforcement,” and “deliberate indifference” claims. (P1. Opp. at 11) Differences
between these different theories aside, Plaintiffs concede that in any case they
must adequately allege that “the complained-of conduct was discriminatory.”
(P1. Opp. at 8) (citing Yusuf, 35 F.3d at 715; see also Mallory v. Ohio Univ., 76 F.
App’x 634, 638, (6th Cir. 2003) (“In Yusuf, the Second Circuit, analogizing from
Title VII law, categorized Title IX claims against universities arising from
disciplinary hearings into ‘erroneous outcome’ claims and ‘selective

17

enforcement’ claims, both of which require a plaintiff to demonstrate that the
conduct of the university in question was motivated by a sexual bias.”)).
Defendants argue that Plaintiffs fail to plead specific facts that would
support a plausible inference of a gender-based discriminatory motive on
Defendants’ part. Plaintiffs counter that in asserting a Title IX claim the
Complaint need only “plead[] specific facts that support a minimal plausible
inference of such discrimination” to survive a 12(b)(6) motion to dismiss. See
Doe v. Columbia Univ., 831 F.3d at 56 (emphasis added). In Doe v. Columbia
Univ., the Second Circuit explicitly applied the McDonnell Douglas burdenshifting framework to Title IX claims and correspondingly reduced the
8
plaintiff’s initial pleading burden to reflect the temporary presumption that
benefits a plaintiff who has established a prima facie case of discrimination. Id
at 54-56 (quoting Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015)
(“To the same extent that the McDonnell Douglas temporary presumption
reduces the facts a plaintiff would need to show to defeat a motion for
summary judgment prior to the defendant’s furnishing of a non-discriminatory
motivation, that presumption also reduces the facts needed to be pleaded
under Iqbal.”) (emphases in original)).
The Third Circuit has yet to directly address the application of McDonnell
Douglas to the pleading burden for Title IX claims in the context of a motion to

The [McDonnell Douglas] framework consists of three steps. First, a plaintiff
must present sufficient evidence to support a prima facie case of
discrimination. Once the plaintiff establishes a prima facie case, the burden of
production then shifts to the defendant, who must articulate a legitimate,
nondiscriminatory reason for its actions. If the defendant satisfies this burden,
the reviewing court proceeds to the third step. At this stage, the burden shifts
back to the plaintiff to show that the defendant’s proffered reason was not the
true reason for the employment decision, but was merely a pretext for
discrimination. The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.
Davis v. City of Newark, 285 F. App’x 899, 903 (3d Cir. 2008) (citations and quotations
omitted). See also Abramson v. William Paterson Coil, of New Jersey, 260 F.3d 265, 281
(3d Cir. 2001).

8

18

dismiss. Under general pleading standards, however, it is clear at least that
“[w]holly conclusory allegations” are insufficient. Tafuto v. New Jersey Inst. of
Tech., 2011 WL 3163240, at *2 (D.N.J. July 26, 2011) (citing Yusufv. Vassar
Coil., 35 F.3d 709, 715 (2d Cir. 1994)).
The issue is one that should be addressed, in a proper case, by the Third
Circuit. I find, however, that it does not matter here. Whether under the offthe-rack Iqbal standard or a tailored McDonnell Douglas standard, I would find
that gender-based discrimination in Defendants’ treatment of Collick and
Williams is adequately pled (and that race-based discrimination is not, see
infra).
True, the allegations of gender-based discrimination are rife with
conclusory assertions. In many places, the Complaint asserts that Defendants
mistreated Collick and Williams, and merely appends the allegation that they
9
did so “on the basis of their gender.” In other places, the Complaint alleges
that Defendants had engaged in “a pattern of decision-making that
discriminates against male students accused of sexual misconduct,” Compl.

¶ 134, but without supporting facts.’° I would not require a plaintiff to plead a

See Compi. ¶ 19 (“In arresting, disciplining, and jailing plaintiffs Collick and
Williams, defendants discriminated against them on the basis of their gender and race
and without affording them due process and the equal protection of the laws.”); Id. ¶
137 (“Male respondents in sexual misconduct cases at William Paterson are
discriminated against solely on the basis of sex, and are subject to discipline without
arose out of a classthe benefit of due process.”); Id. ¶ 159. (“[S]aid conspiracy
y animus based on plaintiffs’ gender and/or race.”); Id.
based, invidiously discriminator
¶ 163 (“[Certain defendants] had knowledge of the conspiracy to deprive plaintiffs jof
their rights] based on their status as African American male students accused of
sexual misconduct, and the overt acts/actions committed in furtherance thereof.”); Id.
¶ 220 (“[Defendants] unlawfully discriminated against plaintiffs on the basis of their
race and gender.”); Id. ¶ 223 (“Plaintiffs Collick and Williams were presumed guilty and
were not afforded the full protection of the law or their due process rights because
they were male.”).
10
See Danao v. ABM Janitorial Serus., 142 F. Supp. 3d 363, 377 (E.D. Pa. 2015)
(citing Anh Truong v. Dart Container Corp., No. Civ.A.09—3398, 2010 WL 4237944, at
*3 (E.D. Pa. Oct. 26, 2010) (dismissing Title VII claim for race or national origin
discrimination where plaintiffs “baldly assert[ed]” that “Defendant has a pattern and
19
.

.

.

laundry list of incidents or a roster of comparators, but the Complaint must do
more than just state the conclusion that discrimination is going on, or that
female students who are similarly situated (in some unspecified way) are
treated differently (in some unspecified way).
Also unpersuasive is Plaintiffs’ quotation of a statement issued by
President Waldron on November 30, 2014, which begins, “On November 25,
2014, a sexual assault of a female student allegedly took place in a residential
hall on our campus. Five male students who were living in the residence halls
have been arrested and charged.” (Compi.

¶

86) Plaintiffs make much of

President Waidron’s description of the alleged victim as female, and the
perpetrators as male. (P1. Opp. at 14) That minimal specification of gender,
however, is natural in a report of sexual assault. I do not say that it is
irrelevant, but without more it would not suffice to establish a plausible
inference of gender bias.
The Complaint is likewise extremely unclear as to the manner in which
“[WPU] and the University Police’s policies, both as written and as enforced
practice of disparate treatment and discrimination against nonwhite employees
(because of their race, color, ethnicity, and/or nationality).”)
In one older case, the Second Circuit relied in part on the plaintiff’s assertion
that “males accused of sexual harassment at Vassar [College] are ‘historically and
systematically’ and ‘invariably found guilty, regardless of the evidence, or lack
thereof,” to find that the allegations of that complaint “easily [met] the requirements of
Title IX.” Yusufv. Vassar Coil., 35 F.3d 709, 716 (2d Cir. 1994). However, Yusufwas
decided prior to the introduction of the plausibility pleading standard articulated in
Twombly and Iqbal.
Finally, Plaintiffs also cite Prasad v. Cornell Univ., No. 5:15-CV-322, 2016 WL
3212079 (N.D.N.Y. Feb. 24, 2016) (on a motion to dismiss), where the court held that
the plaintiff’s complaint had “plausibly establishe[dJ a causal connection between
gender bias and the outcome of his disciplinary proceeding.” Id. at *17. The court
based its holding on a consideration of the totality of the circumstances, which
included the allegation that “male respondents in sexual assault cases are invariably
found guilty at Cornell.” Id. However, there, unlike here, there were additional specific
factual allegations for the court to consider—in particular, that the female accuser
(“Jane Doe”) was treated more favorably than the male accused when both requested
similar procedural treatment. Id. at *16 n.28 (“Doe was given additional time to submit
her appeal despite that Plaintiffs earlier request for additional time during his final
examination period was denied, and Doe was allowed to review Plaintiff’s appeal
whereas he was not allowed to review or comment on Doe’s appeal.”).
20

against plaintiffs, impose an unequal burden on male students accused of
sexual misconduct.” Id.

¶ 136; see also id. ¶ 133. Without evidentiary

development, the Court cannot find the policies to be discriminatory.”
The Complaint gets a bit closer to sufficiency, however, in alleging that
“ja]s a purported female victim, the Accuser’s allegations against the male
plaintiffs were accepted as true without any investigation being performed and
without the development of any facts or exculpatory evidence.” (Compi.

¶ 222)

And the Complaint does allege that Collick and Williams were not given the
opportunity to respond or explain themselves, did not receive proper notice of
the specific charges, were not permitted to confront or cross-examine their
accuser, were not given a list of witnesses against them, and more generally
were not afforded a thorough and impartial investigation. (E.g., Compl.

¶ 150)

Whether such allegations are true (or can survive summary judgment)
remains an open question. At the pleading stage, however, an allegation that
the process was one-sided, irregular, and unsupported by evidence may give
2
rise to an inference of bias.’

11
The portions of the WPU Sexual Violence Policy and the Student Code of
Conduct that Plaintiffs quote in the Complaint are at least facially gender-neutral.
(Compl. ¶37-46) For example, the Sexual Violence Policy states that WPU “is dedicated
to providing a campus environment free from violence for all members of the campus
community. Domestic/dating violence, stalking and/or sexual violence incidents.
happen to people of all genders, races, ethnicities, religions, ages, abilities, sexual
orientations, gender expressions, sexual identities etc.” (Compl. ¶ 37) (emphases
added)

Allegations that a university was under government pressure may add
plausibility to an otherwise-conclusory allegation of bias:
12

[C]ourts have split on whether allegations along these lines—that due to
pressure from the [U.S. Department of Education’s Office for Civil
Rights], men accused of sexual assault are invariably found guilty—pass
muster after Iqbal and Twombly. Put another way, absent any female
comparators at the pleading stage, is the allegation that schools are
concerned about appearing too lenient on male students accused of
sexual assault, and therefore those students are systematically found
guilty regardless of the evidence, a factual allegation—which must be
credited—or a conclusory legal allegation—which does not get the
presumption of truth.
21

Plaintiffs state in their briefs that universities were under pressure to
make a show of compliance with Title IX following a U.S. Department of
Education’s Office of Civil Rights (“OCR”) “Dear Colleague Letter” in 2011. (P1.
Opp. at 14- 15) A Complaint, of course, cannot be amended by statements in
briefs. See Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) (citing
Commw. of Pa. ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d

Cir. 1988)). Nevertheless, this is an official, publicly promulgated document of
which the Court may take judicial notice—not for the truth of anything stated
3
therein, but for the fact of its promulgation.’ And it is no more than a
common sense inference that the public’s and the policymakers’ attention to the
issue of campus sexual assault may have caused a university to believe it was
in the spotlight.
For the foregoing reasons, Count One, though far from ideally pled,
sufficiently states a claim under Title IX. Accordingly, the motion to dismiss
Count One is denied.

Doe v. Brown Univ., 166 F. Supp. 3d 177, 186 (D.R.I. 2016). Other cases relied on by
Plaintiffs likewise upheld complaints where they contained corroborative factual
allegations that the University had reason to slant its procedures. See Doe v. Columbia
Univ., 831 F.3d 46, 57—58 (2d Cir. 2016) (plaintiff alleged that the university was
motivated “to accept the female’s accusation of sexual assault and reject the male’s
claim of consent,” to publicly demonstrate its seriousness “about protecting female
students from sexual assault by male students” in order to counteract severe criticism
by students and the press that it had previously tolerated sexual assault of female
students); Wells v. Xavier Univ., 7 F. Supp. 3d 746, 751 (S.D. Ohio 2014) (“[Plaintiff’s]
allegations show Defendants were reacting against him, as a male, to demonstrate to
the [Office of Civil Rights] that Defendants would take action, as they had failed to in
the past, against males accused of sexual assault.”).
Of course, it would be better to simply include such allegations in the
Complaint, rather than simply attach an allegation of bias to each complaint of
unfairness. But I am considering whether the Complaint is adequate, not whether it is
optimal.
13
It is available at www. ed. gov/ about! offices / list! ocr/letters / colleague201 104.pdf, and has been cited and relied upon in other cases, e.g., Doe v. Brown
Univ., 166 F. Supp. 3d at 181.

22

2. Section 1985 and 1986, NJLAD (Counts Three,
Four, and Eight)
In Counts Three and Four, Plaintiffs allege that several of Defendants
entered into a conspiracy to deprive Collick and Williams of their rights, in

§ 1985(3), or that they knew of that conspiracy but did
nothing to stop it, in violation of 42 U.S.C. § 1986. “[I}n order to state a claim
under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy; (2)

violation of 42 U.S.C.

motivated by a racial or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons to the equal protection of
the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person
or property or the deprivation of any right or privilege of a citizen of the United
States.” Lake v. Arnold, 112 F.3d 682, 685, (3d Cir. 1997). “In order to
maintain a cause of action under
existence of a

§ 1986, the plaintiffs must show the

§ 1985 conspiracy” Clark v. Clabaugh, 20 F.3d 1290, 1295 n.5

(3d Cir. 1994).
In Count Eight, Plaintiffs allege that Defendants discriminated against
Collick and Williams on the basis of their race and gender in violation of the
New Jersey Law Against Discrimination, N.J.S.A.

§ 10:5-1 et seq. (“NJLAD”).

Under the NJLAD it is unlawful:
For any owner, lessee, proprietor, manager, superintendent, agent,
or employee of any place of public accommodation directly or
indirectly to refuse, withhold from or deny to any person any of the
accommodations, advantages, facilities or privileges thereof, or to
on
discriminate against any person in the furnishing thereof.
[or] sex, of such person.”
account of the race . .
.

.

.

§ 10:5-12(f)(1); see also N.J.S.A. § 10:5-4 (“All persons shall have the

N.J.S.A.

opportunity.

.

.

to obtain all the accommodations, advantages, facilities, and

privileges of any place of public accommodation.
because of race
“any.

.

.

. .

.

[or] sex

. . .“).

.

.

without discrimination

A “place of public accommodation” includes

college and university, or any educational institution under the

23

supervision of the State Board of Education, or the Commissioner of Education
of the State of New Jersey.” N.J.S.A.

§

10:5-5(l).’4

All three of these theories, then, require a plausible allegation of
discrimination. For the reasons stated in the preceding section, I find that the
Complaint, including these Counts, states a claim of gender discrimination.
As to racial discrimination, however, Counts 3, 4, and 8 fail to state a
plausible claim. The Complaint alleges that “[ajil of the alleged perpetrators,
including

[1

Collick and Williams were African American males,” while the

student who accused them of sexual assault “is of Latina or Spanish origin,”
and that all of the investigating and arresting officers were either “Caucasian or
Latino.” (Compi.

¶J

225-27). Voicing a grievance and identifying the

participants by race is not enough, standing alone, to support an inference of
racial discrimination. And, in contrast to the gender discrimination theory, the
racial discrimination theory is not accompanied by any corroborating
allegations, however indefinite, that would support an inference of racial bias.
Accordingly, the motion to dismiss Counts Three, Four, and Eight is
granted as to the theory of racial discrimination, but denied as to the theory of
15
gender discrimination.
C. Federal and State Civil Rights Claims Relating to the Criminal
and WPU Disciplinary Processes
1. Section 1983 and the New Jersey Civil Rights Act (Counts
Two and Six)
In Count Two, Plaintiffs assert Section 1983 claims alleging that
President Waidron, Director Fulleman, Dt. Sgt. DeSimone, and other WPU and

14
Discrimination claims brought under the NJLAD are parallel to those under
Title VII, and are analyzed within the McDonnell Douglas burden-shifting framework.
See Davis v. City of Newark, 285 F. App’x 899, 903 (3d Cir. 2008) (citing Schurr v.
Resorts Int’l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999) (“Analysis of a claim made
pursuant to the NJLAD generally follows analysis of a Title VII claim.”)).

One of the sub-theories of Plaintiffs’ claims under 42 U.S.C. § 1983 and the
New Jersey Civil Rights Act is equal protection. That, too, is dismissed as to racial
discrimination but sustained as to gender discrimination. See Section III.C. 1 .d, infra.
15

24

Police employees violated Plaintiffs’ rights under the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution.
Section 1983 provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C.

§ 1983. Thus, to sufficiently set forth a Section 1983 claim, a

complaint must allege the violation of a right secured by the Constitution or
laws of the United States, and that the alleged violation was committed by a
person acting under color of state law. See Harvey v. Plains Twp. Police Dep ‘t,
635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins,
487 U.S. 42, 48, 108 S. Ct. 2250, 101 L.Ed.2d 40 (1988).
In Count Six, Plaintiffs allege similar claims under the New Jersey Civil
Rights Act (the “NJCPA”), N.J.S.A.
after 42 U.S.C.

§ 10:6-1 et seq. The NJCRA “was modeled

§ 1983, and creates a private cause of action for violations of

civil rights secured under the New Jersey Constitutions.” Trafton v. City of
Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011). As both Plaintiffs and
Defendants acknowledge, “This district has repeatedly interpreted NJCRA

§ 1983.” Id. (see also Def. Mot. at 38-39; P1. Opp. at 28 n.7) I
will also “analyze Plaintiffs’ NJCRA claims through the lens of § 1983.” Id. at
analogously to

444 (citing Hedges v. Musco, 204 F.3d 109, 121 n.12 (3d Cir. 2000) (concluding
that New Jersey’s constitutional provision concerning unreasonable searches
and seizures is interpreted analogously to the Fourth Amendment)). Therefore,
I address Counts Two and Six together. See Middleton v. City of Ocean City, No.
CIV. 12-0605 RBK/JS, 2014 WL 2931046, at *5 (D.N.J. June 30, 2014) (“As
the allegations under the separate constitutions are virtually identical, and
federal and New Jersey law governing these violations are substantially similar,
the Court will address them together.”)
25

Defendants argue that each of these asserted constitutional violations is
either legally or factually deficient. I address each of the theories underlying
Counts 2 and 6: Fourth Amendment, procedural due process, substantive due
process, and equal protection.
a. Fourth Amendment
“The Fourth Amendment prohibits arrests without probable cause.” Berg
v. Cty. of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Orsatti v. New
Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). Thus, “[t]o state a claim
for false arrest or improper seizure under the Fourth Amendment, a plaintiff
must establish: (1) that there was an arrest; and (2) that the arrest was made
without probable cause.” Brown v. Mount Laurel Twp., No. CV 13-6455, 2016
WL 5334657, at *6 (D.N.J. Sept. 21, 2016) (citing Groman v. Twp. of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995); Dowling v. City of Philadelphia,
855 F.2d 136, 141 (3d Cir. 1988)).
Defendants first argue that Plaintiffs fail to state a claim for false arrest
and false imprisonment in violation of the Fourth Amendment because the
University Police had probable cause to arrest Collick and Williams.
Defendants further argue that even if the University Police officers lacked
probable cause, their conduct is protected by qualified immunity. At this
motion to dismiss stage, I must reject both contentions.
“Probable cause exists whenever reasonably trustworthy information or
circumstances within a police officer’s knowledge are sufficient to warrant a
person of reasonable caution to conclude that an offense has been committed
by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d
Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964)). “A
common sense approach must be taken to the issue of probable cause and a
determination as to its existence must be based on the totality of the
circumstances. Paff V. Kaltenbach, 204 F.3d 425, 436, 2000 WL 222582 (3d
Cir. 2000) (citations and quotations omitted).

26

Generally, “the question of probable cause in a [S]ection 1983 damage
suit is one for the jury.” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.
1998); see also Stolinski v. Pennypacker, 772 F. Supp. 2d 626, 638 (D.N.J.
2011) (probable cause is “a sufficiently fact—laden issue as to typically be a
question for the jury”). It is true that there are easy cases where a complaint
establishes that the officers possessed a set of facts, and that set of facts
establishes probable cause as a matter of law. See, e.g., Baker v. Wittevrongel,
363 F. App’x 146, 150 (3d Cir. 2010) (finding amendment of complaint futile
where arrest was based on facts sufficient to establish probable cause).
However, this is not such a case. I am not prepared to hold, as a matter of law,
that there was probable cause to arrest Collick and Williams under the
circumstances as pled in the Complaint.
According to the Complaint, three days after the accusing student
reported the alleged sexual assault to the University Police, the police filed for
and obtained warrants to arrest Collick without conducting any further
investigation. (Compi.

¶

6) The University Police allegedly “gave little thought, if

any, to the investigation and discovery of the actual facts involved” (Id.
and failed to corroborate the accusations in any way. (Id.

¶J

¶

22),

6, 87-90) In

particular, the police officers did not “perform or obtain a rape kit” to obtain
physical evidence (Id.

¶

90), “speak to potential witnesses” (Id.

¶

87), or “obtain

¶ 88). In addition,
(Id. ¶ 89), nor did they

or review” the dormitory building security camera video (Id.
at no point did the police seek any exculpatory evidence

interview Collick or Williams, review any cell phone records, examine the
accuser’s social media and blogging activity, or investigate any previous
relationship between Collick and Williams and their accuser. (Id.

¶J

82-83)

Accepting these allegations as true, I cannot as a matter of law rule out a
conclusion that the University Police lacked probable cause to arrest and
detain William and Collick. Therefore, Defendants have not met their burden to
show that Plaintiffs failed to state a claim for Section 1983 false arrest and
imprisonment.
27

Defendants assert that the University Police officers, even if they are in
the wrong, are nevertheless entitled to qualified immunity. “[Q]ualified
immunity shields government officials from civil liability as long ‘as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” McGreevy v. Stroup, 413 F.3d
359, 364 (3d Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “When properly applied, [qualified
immunity] protects all but the plainly incompetent or those who knowingly
violate the law.” Schneyder v. Smith, 653 F.3d 313, 331 (3d Cir. 2011) (internal
citations and quotations omitted).
Qualified immunity issues (such as whether a violation was “objectively
apparent” under the circumstances at the time) may require the kind of factual
context that is available only on summary judgment or at trial. Nevertheless,
when a qualified immunity issue is raised on a motion to dismiss, the Court is
obligated to address it. “[U}nless the plaintiff’s allegations state a claim of
violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery. “ Thomas v.
Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526, 105 5. Ct. 2806 (1985)). As Thomas implies, at the
pleading stage such a clear violation need only be alleged, not proven. “The
focus of the qualified immunity inquiry is on the allegations.

.

.

.“

Estate of

Lagano v. Bergen County Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir. 2014).
The Complaint alleges that the University Police arrested Collick and
Williams without probable cause, failed to take basic investigatory steps that
reasonable officers would at least have attempted, jumped to the conclusion of
probable cause, and generally showed little interest in corroborating the
veracity of Doe’s report of sexual assault. If that were all true, it could
constitute a violation of clearly established law that would have been apparent
to a reasonable officer. See, e.g., Orsatti v. New Jersey State Police, 71 F.3d
480, 483 (3d Cir. 1995) (as of 1989, “the right to be free from arrest except on
28

probable cause was clearly established”). Thus I cannot hold, without a factual
record, that Defendants’ behavior was reasonable. The motion to dismiss on
grounds of qualified immunity will therefore be denied at this, the pleading
stage. This denial is without prejudice to reconsideration after appropriate
6
discovery has been conducted.’
b. Procedural Due Process
“In the context of public education, the due process clause may be
implicated if a student is suspended or expelled without notice or an
opportunity to be heard.” Bowers v. NCAA, 475 F.3d 524, 555 n.33 (3d Cir.
2007) (citing Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725
(1975)). Additionally, “the law on procedural due process.

.

.

require[s] that the

decision of student disciplinary proceedings be supported by ‘substantial
evidence.”’ Le v. Univ. of Med. & Dentistry, No. CIV.A. 08-991SRC, 2009 WL
1209233, at *13 (D.N.J. May 4, 2009) (citing Sill v. Pennsylvania State Univ.,
318 F. Supp. 608, 621 (M.D. Pa. 1970)). “The substantial evidence standard is
extremely deferential to the factfinder: ‘Substantial evidence is more than a
mere scintilla. It means such relevant evidence as a reasonable mind might

Defendants note that the University Police obtained warrants to arrest Collick
and Williams. (Def. Mot. at 19) (citing Compi. ¶j 6, 81) Courts have generally extended
qualified immunity “to an officer who makes an arrest based on an objectively
reasonable belief that there is a valid warrant.” Berg v. Cty. ofAllegheny, 219 F.3d
261, 273 (3d Cir. 2000). “Nevertheless, an apparently valid warrant does not render an
officer immune from suit if his reliance on it is unreasonable in light of the relevant
circumstances.” Id. The Third Circuit has explained that “a plaintiff may succeed in a
§ 1983 action for false arrest made pursuant to a warrant if the plaintiff shows, by a
preponderance of the evidence: (1) that the police officer ‘knowingly and deliberately,
or with a reckless disregard for the truth, made false statements or omissions that
create a falsehood in applying for the warrant;’ and (2) that ‘such statements or
omissions are material, or necessary, to the finding of probable cause.”’ Goodwin v.
Conway, No. 15-2720, 2016 WL 4728004, at *4 (3d Cir. Sept. 12, 2016) (citing Wilson
v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000)). Officers are obligated to disclose
was the kind of
known facts that “[a]ny reasonable person would have known.
thing the judge would wish to know” in making a probable cause determination.
Wilson, 212 F.3d at 787. Like the determination of whether there was probable cause,
this issue requires further factual development in discovery, and will be resolved on
summary judgment or at trial.
16

.

29

.

accept as adequate to support a conclusion.”’ Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 149, 117 S. Ct. 1953 (1997) (quoting Consolidated
Edison Co. v. NLR.B, 305 U.S. 197, 229, 59 S. Ct. 206 (1938)).
The Complaint sets forth violations of procedural due process standards.
Among other things, it alleges that WPU’s decisions to discipline Collick and
Williams were not supported by substantial evidence. (Compi. ¶J 111, 150-52;
see also P1. Opp. at 26) I agree with Defendants that the Complaint could have
been far more specific about the disciplinary proceedings, but that is not the
standard. Read in the light most favorable to the Plaintiffs, the allegations that
Defendants lacked credible evidence and did not comply with their own
regulations (e.g., Compi.

¶J

83-84, 87, 110), adequately make out a claim that

WPU’s disciplinary actions did not comply with due process standards.
That is sufficient to require the Court to deny the motion to dismiss the
procedural due process component of Counts 2 and 6.
c. Substantive Due Process
In Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 142 (3d Cir.2000),
the Third Circuit summarized the framework for approaching a plaintiff’s
challenge to “non-legislative state action (such as an adverse employment
decision)” on substantive due process grounds. The Third Circuit explained
that:
[Wje must look, as a threshold matter, to whether the property
interest being deprived is “fundamental” under the Constitution. If
it is, then substantive due process protects the plaintiff from
arbitrary or irrational deprivation, regardless of the adequacy of
procedures used. If the interest is not “fundamental,” however, the
governmental action is entirely outside the ambit of substantive
process and will be upheld so long as the state satisfies the
requirements of procedural due process.
Id.; see also Chainey v. Street, 523 F.3d at 219 (3d Cir. 2008) (citing United
Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 400-02 (3d
Cir. 2003)) (“To establish a substantive due process claim, a plaintiff must
prove the particular interest at issue is protected by the substantive due
30

process clause and the government’s deprivation of that protected interest
shocks the conscience.”).
Plaintiffs allege that Defendants’ conduct interfered with Plaintiffs’
reputational interests and their “property interest in their education.” (Compi.

¶

152) Defendants argue that Plaintiffs fail to state a claim for a substantive

due process violation because the interests at issue are not fundamental rights
or liberty interests, and Defendants’ actions were rationally related to a
legitimate state interest. (Def. Mot. at 27-28; Def. Reply at 7-8) I agree.
“[Tjhere is no fundamental right to education protected under the federal
constitution.” MG. v. Crisfield, 547 F. Supp. 2d 399, 408 (D.N.J. 2008) (citing
Bowers v. NCAA, 475 F.3d 524, 553 (3d Cir. 2007) (“[Tjhe Supreme Court has

7
held that there is no fundamental right to public education”)).’ In Mauriello v.
University of Medicine & Dentistry of New Jersey, 781 F.2d 46 (3d Cir. 1986),
the Third Circuit opined that “a graduate student’s interest in continued
academic enrollment ‘bore little resemblance to the fundamental interests that
previously had been viewed as implicitly protected by the Constitution.”’
Nicholas, 227 F.3d at 141-42 (quoting Mauriello, 781 F.2d at 50). Additionally,
“reputation alone is not an interest protected by the Due Process Clause,” let
alone a fundamental right. Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073,
1077 (3d Cir. 1997) (citing Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir.
1989)); see also Paul v. Davis, 424 U.S. 693,96 S. Ct. 1155 (1976).
“Government actions that do not affect fundamental rights or liberty
interests and do not involve suspect classifications will be upheld if

[]

they are

rationally related to a legitimate state interest.” MG. v. Crisfield, 547 F. Supp. 2d
399, 408 (D.N.J. 2008). Because Plaintiffs’ asserted educational and

Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 9 1-92
(1978) and Regents of the University of Michigan v. Ewing, 474 U.S. 214, 222 (1985),
cited by Plaintiffs (P1. Opp. at 20-2 1), are not to the contrary. In both cases, the
Supreme Court only assumed, without deciding, the existence of a liberty or property
interest in an education, but then dismissed the substantive due process claim on the
ground that the students’ dismissals were not arbitrary.
17

31

reputational interests are not fundamental rights or liberty interests, a
rational-basis standard applies. The Complaint does not plausibly allege that
the investigation and disciplinary process for students accused of sexual
assault is not rationally related to the legitimate state interest of ensuring
public safety. See Schall v. Martin, 467 U.S. 253, 264, 104 S. Ct. 2403, 2410
(1984) (“The legitimate and compelling state interest in protecting the
community from crime cannot be doubted.”) (quotations omitted).
That is not to say that those interests are not protected by other
constitutional principles, such as procedural due process or the Fourth
Amendment—but that is a separate issue. Plaintiffs’ allegations related to the
the criminal and disciplinary process have been considered, and largely
sustained, above. And to the extent that the substantive due process interest
claimed is the right to be free of discrimination, the claim is superfluous.
The motion to dismiss the substantive due process component of Counts
2 and 6 is therefore granted.
d. Equal Protection
Defendants argue that Counts 2 and 6 do not sufficiently plead a claim
of race or gender-based discrimination under the Fourteenth Amendment’s
Equal Protection Clause. (Def. Mot. at 28) To state a claim under the Equal
Protection Clause, a plaintiff must allege that (1) he is a member of a protected
class; (2) that he was treated differently from similarly situated individuals; and
(3) that this disparate treatment was based on his membership in the protected
class. See Kasper v. Cnty. of Bucks, 514 F. App’x 210, 214 (3d Cir. 2013) (citing
Ancirews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)).
For the reasons expressed above, gender discrimination is sufficiently
rooted in the factual allegations of the Complaint (see Section III.B. 1), although
racial discrimination is not (see Section IlI.B.2). The motion to dismiss the
equal protection component of Counts 2 and 6 is therefore granted as to racial
discrimination, but denied as to gender discrimination.

32

D. Responsibility of WPU, University Police, and Supervisors
In this section, 1 discuss the allegations that WPU, the University Police,
and supervisory personnel are responsible for any federal or state civil rights
18
violations (see Sections III.B and C, supra) perpetrated by employees. Also
discussed is Count 21, which seeks declaratory relief against WPU.

1. Monellf Counts 5 and 7
In Counts Five and Seven, Plaintiffs allege that WPU and the University
Police are responsible for any federal and state civil rights violations
perpetrated by their employees, including President Waidron, Director
Fulleman, and Det. Sgt. DeSimone. (Compi. ¶j 178, 182, 209, 213)
It is well established that the liability of a government body (typically a
municipality) under Section 1983 “may not be proven under the respondeat
superior doctrine, but must be founded upon evidence that the government
unit itself supported a violation of constitutional rights.” Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990) (citing Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). As a consequence,
a municipality may be liable under Section 1983 only where the constitutional
injury is alleged to have been caused by a municipal “policy” or “custom”. See
Monell, 436 U.S. at 694, 98 S. Ct. 2018. A municipal policy is made when a
“decisionmaker possess[ing] final authority to establish municipal policy with
respect to the action issues an official proclamation, policy, or edict.” Andrews
v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (internal quotations
omitted). In a proper case, “an official with policymaking authority can create
official policy, even by rendering a single decision.” McGreevy v. Stroup, 413
F.3d 359, 367—68 (3d Cir. 2005) (considering whether a school superintendent
was a final policymaker with regard to allegedly retaliatory issuance of
substandard employment rating for school nurse); see also Ecotone Farm LLC v.
18
Vicarious respondeat superior liability as to certain state claims is discussed
separately in Section III.E.9, infra.

33

Ward, 639 F. App’x 118, 127 (3d Cir. 2016) (town engineer’s decision to enforce
a soil disturbance ordinance was attributed to the township because he was
the final policymaker in that domain).
Plaintiffs allege that President Waidron, Director Fulleman, and Det. Sgt.
DeSimone were the holders of “high level” positions within WPU and the
University Police. As such, (1) “President Waldron was the person responsible
for all aspects of student life” at WPU; 2) Director Fulleman “was responsible
for implementing, overseeing, and supervising all laws and safety procedures”
at WPU; and 3) “Sergeant DeSimone was a sergeant with the University Police.”
(Compl.

¶J

30-32) As a result, their “decisions, statements, instructions,

and/or edicts” allegedly constitute University policy or custom. (Compi.

¶[

168-

73, 199-204.)
These paragraphs plausibly allege that certain Defendants were in
positions of final policy-making authority with respect to the criminal
investigation and student disciplinary process, and that their actions should be
deemed to bind WPU and the University Police. The motion of WPU and the
University Police to dismiss Counts Five and Seven is therefore denied.
2. Negligent Training and Supervision (Count Fifteen)
In Count Fifteen, Plaintiffs assert a claim against WPU, the University
Police, President Waidron, and Director Fulleman for failing to properly train

and supervise WPU employees to properly investigate and respond to
allegations of sexual misconduct. (Compl. ¶J 270-75) This allegedly renders
them liable as employers and supervisors for the alleged violations of federal
and state civil rights perpetrated by lower level employees.
“To state a claim for negligent supervision, a plaintiff must show that 1)
the defendant employer knew or had reason to know of the particular
unfitness, incompetence, or dangerous attributes of its employee; 2) the
defendant could reasonably have foreseen that such qualities created a risk of
harm to other persons; and 3) the defendant’s negligence proximately caused
the plaintiff’s injuries.” Carmichael v. Carmichael, No. 13-CV-2409 DMC JBC,
34

2014 WL 347804, at *4 (D.N.J. Jan. 31, 2014) (citing Smith v. Harrah’s Casino
Resort of Atl. City, No. A—0855—12T2, 2013 WL 6508406, at *3 (N.J. Super. Ct.
App. Div. Dec. 13, 2013)) (internal quotations omitted). “In order to establish a
prima facie case for negligent training, Plaintiff must plead facts sufficient to
sustain a claim of negligence. In this case, those elements would be that (1)
Defendant owed a duty to Plaintiff to properly train its employees; (2)

Defendant breached that duty; (3) Defendant’s breach of its duty to train its
employees properly proximately caused Plaintiff’s injury; and (4) Defendant’s
breach caused actual damages to Plaintiff.” Sullivan v. Marina Dist. Dev. Co.,
LLC, No. CIV. 10-4204 RBK/JS, 2012 WL 993417, at *4 (D.N.J. Mar. 23, 2012)
(citing Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716, 721 (D.N.J. 2010)).
Defendants move to dismiss this claim, arguing that Plaintiffs must
prove that Defendants “acted with deliberate indifference to the known or
obvious consequences of its acts or its failure to act,” and that Plaintiffs fail to
plead sufficient facts to state this claim. (Def. Mot. at 53) (citing Adams v. City
of Camden, 461 F. Supp. 2d 263, 267, 2006 WL 3290277 (D.N.J. 2006)). In
particular, Plaintiffs do not allege facts tending to show Defendants’ awareness
of “some prior unlawful conduct in sexual assault investigations,” (Id. at 54)
(citing City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989).
In their reply brief, Defendants argue that “Plaintiffs cannot merely
speculate about the quality of training or supervision for sexual assault
investigations without alleging at least some facts in their Complaint
demonstrating some prior conduct.

.

.

that could give rise to the [defendants’]

knowledge of insufficient training or supervision.” (Def. Reply at 19; see also
Def. Mot. at 54) The requirement, however, is more general: that a defendant
“knew or had reason to know of the particular unfitness, incompetence, or
dangerous attributes of its employee.” Carmichael, 2014 WL 347804, at

*419

Qf

Plaintiffs do allege that certain WPU and University Police employees, including
Det. Sgt. DeSimone, were “were at no time trained on how to properly respond to
allegations such as those made by the Accuser.” (Compl. ¶ 272) At the very least, the
35
‘9

course, evidence of past incidents may be important and the lack of it might
cause the claim to fail. But I will not require it at the pleading stage.
Accordingly, Defendants’ motion to dismiss Count Fifteen is denied.
3. Declaratory Judgment (Count Twenty-One)
This is as good a place as any to address Count Twenty-One, which
seems to be directed primarily to the University itself. This Count seeks a
declaratory judgment, pursuant to 28 U.S.C. §2201, that:
(1) the outcome and findings made by William Paterson be
reversed; (2) plaintiffs’ reputations be restored; (3) plaintiffs’
disciplinary records be expunged; (4) the record of plaintiffs’
expulsion from defendant William Paterson University be removed
from their education files; and (5) William Paterson’s rules,
regulations, and guidelines are unconstitutional as applied.
(Compl.

¶

105) It is true that declaratory relief is forward-looking, and that a

“declaratory judgment is inappropriate to adjudicate past conduct or to
proclaim that one party is liable to another.” Corliss v. O’Brien, 200 F. App’x 80,
84 (3d Cir. 2006). Many of the allegations in Count 21 appear to run afoul of
that principle. At this early stage, however, I will not dismiss this Count, which
is primarily a demand for a particular form of relief in the event Plaintiffs
should prevail. The fashioning of relief, should any be warranted, can await the
event.
Accordingly, the motion to dismiss Count Twenty-One is denied.
E. State Common Law Claims
1. False Arrest and Imprisonment (Count Nine)
In Count Nine, Plaintiffs assert a common law claim for false arrest and
imprisonment against Director Fulleman and Det. Sgt. DeSimone and other
unnamed members of the University Police. Probable cause is asserted as an
absolute defense to false arrest and false imprisonment claims. See Calloway v.

Plaintiffs’ factual allegations about the many allegedly gross failures in WPU’s
handling of the investigation and disciplinary process, taken as true at the motion to
dismiss stage, allow a reasonable inference that the defendants were not properly
trained.
36

Boro of Glassboro Dep’t of Police, 89 F. Supp. 2d 543, 561 (D.N.J. 2000) (citing
Wildoner v. Borough of Ramsey, 162 N.J. 375, 389, 744 A.2d 1146, 1154
(2000)). However, as discussed above in Count Two, the Complaint adequately
alleges that Defendants lacked probable cause. Accordingly, the motion to
dismiss Count Nine is denied.
2. Malicious Prosecution (Count Ten)
In Count Ten, Plaintiffs assert a tort claim for malicious prosecution.
Such claim has “four elements: (1) a criminal action was instituted by this
defendant against this plaintiff; (2) the action was motivated by malice; (3)
there was an absence of probable cause to prosecute; and (4) the action was
terminated favorably to the plaintiff.” Ross v. Bd. of Ethic. Greater Egg Harbor
Reg’l High Sch. Dist., No. CIV. 1 1-6490 NLH/KMW, 2015 WL 3613724, at *6
(D.N.J. June 8, 2015) (citing LoBiondo v. Schwartz, 970 A.2d 1007, 1022 (N.J.
2009)). “The essence of an action for malicious prosecution is that the
proceeding was instituted without probable cause, that the complainant was
actuated by a malicious motive in making the charge.” Earl v. Winne, 14 N.J.
119, 134, 101 A.2d 535, 543 (1953).
As before, Defendants assert that they possessed probable cause. The
allegations that they lacked probable cause, however, are adequate, for the
reasons stated above.
Defendants argue in addition that the Complaint contains no facts
suggesting legal malice. Under New Jersey law, however, “in an appropriate
case, malice may be inferred from a lack of probable cause.” LoBiondo v.

Schwartz, 199 N.J. 62, 94, 970 A.2d 1007, 1025, 2009 WL 1362989 (2009)
(discussing both malicious prosecution and malicious use of process); see also
Prince v. Aiellos, 594 F. App’x 742, 746, 2014 WL 6765822 (3d Cir. 2014)
(unpublished) (on appeal of summary judgment the Third Circuit held that
“[hjaving concluded that the District Court did not err in holding that material
facts are in dispute regarding probable cause, it follows that malice
remains an open question.”).
37

.

.

The Complaint alleges that the defendants “initiated a criminal process
against plaintiffs as a pretextual justification for the injuries inflicted upon
plaintiffs Collick and Williams and/or in order to protect themselves from
criminal and civil liability” and that they “initiated and/or caused the initiation
of criminal process and charges.

.

.

without legal or factual justification and

were not based upon probable cause.” (Compl.

¶J

24345)20 Defendants urge

that these allegations have an “obvious [benign alternative explanation.” (Def.
Mot. at 44) (citing Iqbal, 556 U.S. at 680-8 1) The Complaint, however, must be
interpreted in the light most favorable to the Plaintiffs at this stage. The facts
and circumstances alleged are sufficient support a plausible inference of legal
malice.
Accordingly, Defendants’ motion to dismiss Count Ten is for the most
part denied. For the reasons expressed at Section III.D.9, however, respondeat
superior liability of WPU and the University Police is barred by the State Tort
Claims Act, and the motion is granted to that extent.
3. Malicious Abuse of Process (Count Eleven)
Count Eleven alleges malicious abuse of process in that Defendants used
the investigation, interview, arrest, and imprisonment of Collick and Williams
to accomplish an ulterior purpose. (Compi.

¶J

249-25 1) Under New Jersey Law,

the elements of malicious abuse of process are: “(1) an ulterior motive and (2)
some further act after an issuance of process representing the perversion of the
legitimate use of the process.” SBK Catalogue P’ship v. Orion Pictures Coip., 723
F. Supp. 1053, 1067 (D.N.J. 1989) (quoting Fielder Agency v. Eldan Constr.
Corp., 152 N.J. Super. 344, 348, 377 A.2d 1220 (Law Div. 1977)) (emphasis

This twofold allegation puts off the necessity of deciding whether a bare finding
of lack of probable cause would establish malice at summary judgment. See Brunson
v. Affinity Fed. Credit Union, 199 N.J. 381, 396, 972 A.2d 1112, 1120 (2009) (“That
said, a plaintiff cannot simply point to the absence of probable cause as sufficient
proof of the required element of malice. It has been well said that ‘it is not
unreasonable to require that plaintiff, on a defendant’s motion for summary judgment,
produce at least some extrinsic evidence of malice.”’) (quoting Westhoffv. Kerr S.S. Co.,
219 N.J. Super. 316, 324, 530 A.2d 352 (App. Div. 1987)).

20

38

added); see also Unitronics, Inc. v. Robotic Parking Sys. Inc., No. CIV.A.09-3493,
2010 WL 2545169, at *6 (D.N.J. June 18, 2010) (citing Simone v. Golden
Nugget Hotel & Casino, 844 F.2d 1031, 1036—1037 (3d Cir. 1988) (same)).
“Thus, a plaintiff must allege a further act by which the defendant acted to use
the process in an illegitimate way. ‘In the absence of some coercive or
illegitimate use of the judicial process there can be no claim for its abuse.’”
Unitrorzics, Inc., 2010 WL 2545169, at *6 (D.N.J. June 18, 2010) (citing Penwag
Property Co. v. Landau, 148 N.J. Super. 493, 499, 372 A.2d 1162 (App. Div.
1977)).
Plaintiffs fail to allege any act after the initiation of the criminal case that
constituted a perversion of the legitimate use of process. The Complaint does
allege that the Defendants “used the issuance of process as a means to
unlawfully and unjustifiably interrogate and arrest Collick and Williams”
(Compi.

¶

250); in their brief, they clariIr that by “unlawfully and

unjustifiably,” they meant that these actions were “without reasonable basis or
probable cause.” (P1. Opp. at 43) This renders the abuse of process claim
redundant—i.e., wholly duplicative of the malicious prosecution claim.
The separate identity of this tort is best maintained by rule that abuse of
process is confined to subsequent misuse of legitimately issued process.. See
Earl v. Winne, 14 N.J. 119, 128, 101 A.2d 535, 540 (1953) (quoting Ash v.
Cohn, 119 N.J.L. 54, 58, 194 A. 174, 176 (ED. & A. 1937)); Baglini v. Lau?ettci,
338 N.J. Super. 282, 293—94, 768 A.2d 825 (App. Div. 2001) (quoting Prosser &
Keeton on Torts

121 at 897 (5th ed. 1984)) (“The gist of the tort of malicious

§

abuse of process

.

.

.

is the misuse, or ‘misapplying process justified in itself for

an end other than that which it was designed to accomplish. The purpose for
which the process is used, once it is issued, is the only thing of
importance. “)

21

21
Although a malicious abuse of process claim presupposes a legitimate process
that is being abused, Plaintiffs do not concede that the arrest, custodial interview, and
imprisonment were initiated legitimately; they allege that probable cause was lacking.
39

One possible ulterior purpose is contained in the allegation that
Defendants obtained a warrant for the purpose of arresting and questioning
suspects. That, however, is not ordinarily considered a perversion, but rather a
standard feature, of the criminal process. The Complaint also alleges that
Defendants “made misrepresentations to gain an advantage over plaintiffs
Collick and Williams’s certain constitutional claims and/or to protect their
interests.” (Compl.

¶

251) The Complaint does not, however, further describe

such misrepresentations. Nor does it explain what collateral advantage the
Defendants sought, the ulterior interest the Defendants hoped to protect, or
the manner in which it was protected through their alleged misrepresentations.
For the foregoing reasons, the Complaint fails to allege facts supporting a
plausible inference of either an ulterior motive or an act representing the
perversion of the legitimate use of the process. Accordingly, the motion to
dismiss Count Eleven, alleging malicious abuse of process, is granted.
4. Tortious Interference with Prospective Economic Advantage
(Count Twelve)
In Count Twelve, Plaintiffs assert a claim for tortious interference with
prospective economic advantage arising from Defendants’ statements about,
and its investigation, prosecution, and discipline of, Collick and Williams.
These acts, the Complaint alleges, deleteriously affected (1) Plaintiffs’
relationships with WPU, and (2) Plaintiffs’ relationships with the Educational
Opportunity Fund Program (the “EOFP”). (See Compi. ¶j254-58)
Under New Jersey law, the elements of tortious interference with
prospective economic advantage are: “(1) a protected interest, not necessarily
amounting to an enforceable contract; (2) defendant’s intentional interference
without justification; (3) a reasonable likelihood that the benefit plaintiff
anticipated from the protected interest would have continued but for the
interference; and (4) resulting damage.” Moe v. Setori Hall Univ., No. CIVA 2:09-

They are permitted, however, to plead theories in the alternative. See Fed. R. Civ. P.
8(d).
40

01424, 2010 WL 1609680, at *9 (D.N.J. Apr. 20, 2010) (quoting Jenkins v.
Region Nine Housing Corp., 306 N.J.Super. 258, 703 A.2d 664, 667 (N.J. Super.
App. Div. 1997)). “Importantly, this claim must be made against a non-party to
the interest creating relationship.” Ic!. (citing Printing Mart—Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 563 A.2d 31, 37. (N.J. 1989)).
Count 12, to the extent it alleges interference with the relationship
between Plaintiffs and WPU, is legally insufficient. This is a third-party tort; a
party cannot “interfere” with its own relationship. Defendants, to the extent
they acted in the scope of their employment, acted on behalf of WPU, a party to
the interest-creating relationship. It may be true, as Plaintiffs say, that whether
a person acts within the scope of employment is an issue of fact—but their
argument presupposes a complaint that places that fact in issue. This
Complaint alleges that the individual Defendants were employees, and contains
no facts suggesting that they acted outside the scope of employment.
Plaintiffs also claim, however, that the Defendants interfered with their
advantageous relationship with the EOFP. EOFP is a “program instituted to
offer students from disadvantaged backgrounds the tools and financial support
needed to succeed in college.” At the time of their expulsion, Collick and
Williams were beneficiaries of EOFP loans that enabled them to attend WPU.
(Compl.

¶J

35, 50, 60) The Complaint adequately, if not quite clearly, alleges

that they had a reasonable expectation of enjoying continued financial aid until
Defendants’ alleged misconduct “severed plaintiffs’ relationship[]” with the
EOFP (Compl. ¶j 254, 256, 117) That is enough to sustain the count on the
EOFP theory only.
Accordingly, the motion to dismiss Count Twelve is granted as to
Plaintiffs’ relationship with WPU, but denied as to Plaintiffs’ relationship with
the EOFP.
5. Breach of Contract (Count Thirteen)
In Count Thirteen, Plaintiffs assert a claim for breach of contract against
WPU, President Waldron, Director Fulleman, and other unknown defendants
41

acting on their behalf. (Compi.

¶

265) Under pure contract principles, “Plaintiff

must prove that a valid contract existed, Defendant materially breached the
contract and Plaintiff suffered damages as a result of the breach.” Fletcher
Harlee Corp. v. Pote Concrete Contractors, Inc., 421 F. Supp. 2d 831, 833
(D.N.J. 2006) (citing Coyle v. Englander’s, 199 N.J. Super. 212, 223, 488 A.2d
1083 (1985)). “In order for a valid contract to exist, Plaintiff must show mutual
assent, consideration, legality of the object of the contract, capacity of the
parties and form[ality] of memorialization.” Id. (citing Cohn v. Fisher, 118 N.J.
Super. 286, 291, 287 A.2d 222 (1972)). Defendants argue that Plaintiffs fail to
plead either the existence of a valid contract or facts demonstrating that
Defendants committed a breach. (Def. Mot. at 50)
“[P]ublic university students who are disciplined may bring a traditional
due process claim, but they may also bring a contract claim.” Moe v. Seton Hall
*4 (D.N.J. Apr. 20,
University, No. CIVA 2:09-0 1424, 2010 WL 1609680, at
2010) (emphasis in original). The relationship between a student and the
university is not purely contractual, however, and a student’s contract claim
arising from a public university’s disciplinary process is not adjudicated under
strict contract principles. Hemandez v. Don Bosco Preparatory High, 322 N.J.
Super. 1, 730 A.2d 365 (App. Div. 1999); Mittra v. University of Medicine, 316
N.J. Super. 83, 719 A.2d 693 (App. Div. 1998); Napolitano v. Trustees of
Princeton Univ., 186 N.J. Super. 548, 453 A.2d 263 (App. Div. 1982); see also
McMahon v. Salmond, 573 F. App’x 128 (3d Cir. 2014); Moe v. Seton Hall Univ.,
No. CIVA 2:09-0 1424, 2010 WL 1609680, at *46 (D.N.J. Apr. 20, 2010).
Rather, when a student asserts a contract claim, the scope of judicial review of
the disciplinary process is limited to “a determination whether the procedures
followed were in accordance with the institution’s rules and regulations.”
Mittra, 316 N.J. Super. at 90, 719 A.2d

693.22

I note, as did Judge Chesler in Moe, that Mittra and Napolitano involved
disciplinary action for academic failure, unlike the alleged misconduct in Moe and in
this case. Acaderrnc failure cases present public policy concerns not present in
42

22

A court in this district recently predicted how the New Jersey Supreme
Court would treat a contract claim similar to that of Plaintiffs in the context of
a private university, Seton Hall. Moe v. Seton Hall Univ., 2010 WL 1609680, at
*46 (D.N.J. Apr. 20, 2010) (Chesler, J.). Moe concluded that “a student in a
private university contesting disciplinary proceedings, including expulsion, will
not prevail if the university adhered to its own rules, the procedures followed
were fundamentally fair, and the decision was based on ‘sufficient’ evidence.”
Id. at *4 (citing Hemandez, 730 A.2d at 375-76) (internal citations omitted).
WPU is not a private university like Seton Hall, but public university students
23
are entitled to at least as much protection. Moe and Hemandez, then, set at
least a procedural floor, below which public university procedures cannot go.
Therefore, if Plaintiffs allege facts that plausibly suggest that the procedures
did not satisfy the three Moe/ Hemandez factors, they will have adequately
stated a claim for breach of contract.
Read in the light most favorable to Plaintiffs, the Complaint sufficiently
alleges that Defendants did not adhere to WPU’s own rules, that the procedure
they followed was unfair, and that the decision was not based on sufficient
evidence. WPU’s rules that govern its investigations and disciplinary
proceedings, as expressed in both its Sexual Violence Policy and the Student
Code of Conduct, state that the standard for implementing disciplinary

ordinary misconduct cases. See, e.g., Mittra, 316 N.J. Super. at 91, 719 A.2d at 697
(“Evaluation of student academic performance is a murkier subject. Academic
evaluations of a student bear little resemblance to the type of inquiry traditionally
Rigid application of contract principles to controversies
performed by the courts.
concerning student academic performance would tend to intrude upon academic
freedom and to generate precisely the kind of disputes that the courts should be
hesitant to resolve.”) It is possible that the New Jersey Supreme Court would assign
courts a less limited role in reviewing ordinary misconduct cases.
.

.

.

See Hernandez, 322 N.J. Super. 1, 18, 730 A.2d 365, 374 (“The procedural
rights inherent in membership with a private association, and the termination of that
membership, are substantially less than those of a public school or public university
student.”).
23

43

sanctions is “the preponderance of evidence.” (Compi.

¶J

41, 46-47) Plaintiffs

allege that WPU “expelled Collick and Williams even though defendants’
‘investigation’ did not meet the preponderance of the evidence burden
established in the Student Code of Conduct.” (Id.

¶

95) The Complaint

specifically alleges that Defendants never corroborated the sexual assault
allegations or spoke to potential witnesses (Id.

¶

87), and that a grand jury did

not find probable cause of criminal wrongdoing (fri.

¶

110). Taken together,

these allegations sufficiently plead that the procedures WPU followed were
unfair or did not adhere to WPU’s own rules. Therefore, the Complaint
adequately states a claim for breach under the law of contract as interpreted by
24
New Jersey courts in analogous contexts.
Accordingly, defendants motion to dismiss Count Thirteen is denied.
6. Breach of the Implied Covenant of Good Faith and Fair
Dealing (Count Fourteen)
In Count Fourteen, Plaintiffs assert a claim for breach of the implied
covenant of good faith and fair dealing against WPU, President Waidron,
Director Fulleman, and other unknown defendants acting on their behalf.
(Compi.

¶

268) “There is no universally-accepted test for establishing a breach

of the duty of good faith and fair dealing, but two elements appear to recur with
some frequency: (1) the defendant acts in bad faith or with a malicious motive,
(2) to deny the plaintiff some benefit of the bargain originally intended by the
parties, even if that benefit was not an express provision of the contract.”
Yapak, LLC v. Massachusetts Bay Ins. Co., No. CIV. 3:09-CV-3370, 2009 WL
3366464, at *2 (D.N.J. Oct. 16, 2009) (citing Brunswick Hills Racquet Club, Inc.
v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 225, 864 A.2d 387 (2005);

Defendants argue that to the extent that this claim is asserted as a contract
implied in law, the claim should be dismissed because the University is immune. (Def.
Mot. at 51) They cite N.J. Stat. Ann. § 59:13-3, which precludes “any recovery against
the State for claims based upon implied warranties or upon contracts implied in law.”
Because Defendants have failed to show on this motion that WPU is
“the State” for immunity purposes, I need not address this question.

24

44

Wilson v. Amerada Hess Corp., 168 N.J. 236, 251, 773 A.2d 1121(2001)). In
addition, “in the absence of a contract, there can be no breach of an implied
covenant of good faith and fair dealing.” Noye v. Hoffmann-La Roche Inc., 238
N.J. Super. 430, 433, 570 A.2d 12, 14 (App. Div. 1990).
Defendants argue that even if the relationship between WPU and its
25
students constitutes an underlying contract, Plaintiffs fail to allege a
necessary element of the implied covenant: bad faith. The Complaint alleges,
however, that Defendants, even if they observed the outward forms,
discriminated against Plaintiffs and engineered a finding that Plaintiffs they
were guilty of misconduct and should be expelled. That is a sufficient allegation
of bad faith. It may be that this cause of action is superfluous in light of the
allegations of a straightforward breach of contract. Nevertheless, the motion to
dismiss Count Fourteen is denied.
7. Intentional/Negligent Infliction of Emotional Distress
(Counts Sixteen and Seventeen)
Count Sixteen asserts a claim on behalf of Collick and Williams for
intentional infliction of emotional distress (“TIED”) arising from Defendants’
conduct in the criminal and disciplinary investigation and proceedings against
Collick and Williams. Count Seventeen asserts a claim of negligent infliction of
emotional distress (“NIED”) on behalf of Collick and Williams. It adds a claim
on behalf of Ms. Williams as well. (Compi.

284)

a. The NJTCA bar
There is a threshold issue under the New Jersey Tort Claims Act, N.J.
Stat. Ann.

§ 59:1-1 et seq. The NJTCA precludes the recovery of damages from

a “public entity or public employee for pain and suffering resulting from any
injury,” unless the plaintiff suffered “permanent loss of a bodily function,
permanent disfigurement or dismemberment where the medical treatment
I note that, in Moe v. Seton Hall University, No. CIVA 2:09-0 1424, 2010 WL
1609680, at *10 (D.N.J. Apr. 20, 2010) (discussing student contract claims arising
from university disciplinary action), the court denied the motion to dismiss the breach
of good faith and fair dealing claim without discussion.

25

45

expenses are in excess of $3,600.00.” Id. at

§ 59:9-2(d). Emotional distress

claims, like others, are barred unless they stem from a “permanent debilitating
or disfiguring physical injury,” or “result in permanent physical sequelae such
as disabling tremors, paralysis or loss of eyesight; that is, a ‘permanent loss of
a bodily function.”’ Srebnik v. State, 245 N.J. Super. 344, 351, 585 A.2d 950,
954, 1991 WL 14995 (App. Div. 1991) (affirming dismissal of emotional distress
claim); see also Ayers v. Township of Jackson, 106 N.J. 557, 576, 525 A.2d 287
(1987).
Plaintiffs do not dispute that Defendants are either public entities or
public employees entitled to the protection of the NJTCA. The Complaint
contains no allegation, plausible or otherwise, of debilitating or disfiguring
physical injury, or of permanent loss of bodily function. The only remotely
injuries” in
related allegation consists of a boilerplate reference to “physical
the recitation of damages after each count. (E.g., Compi. ¶J 280, 285) No such
.

.

.

26
physical injuries are alleged or described, however.
Plaintiffs correctly note that they need not satisfy the provisions of N.J.
Stat. Ann. § 59:9-2(d) to the extent that an individual defendant’s conduct “was
outside the scope of his employment or constituted a crime, actual fraud,
actual malice or willful misconduct.” (P1. Opp. at 54 n. 14) (quoting N.J. Stat.
Ann. § 59:3-14). The lIED count contains a boilerplate allegation of malice and
willful indifference; in context of the facts discussed above, it might pass the
Plaintiffs counter that New Jersey courts have held that emotional distress,
without severe physical manifestations, may constitute a permanent loss of a bodily
function in satisfaction of the NJTCA § 59:9-2(d) injury threshold. (P1. Opp. at 54)
(citing Collins v. Union County Jail, 150 N.J. 407, 4 13-20 (1997); Frugis u. Bracigliano,
351 N.J. Super. 328, 353-55 (App. Div. 2002), affd in part and rev’d in part on other
grounds, 177 N.J. 250 (2003); Randall v. State, 277 N.J. Super. 192, 197 (App. Div.
1994)) However, in contrast to these cited cases, Plaintiffs have not alleged any specific
permanent manifestations of severe emotional distress, let alone alleged any objective
verifiable symptoms or professional verification or diagnosis. See, e.g., Randall, 277
N.J. Super. at 197 (“[N]ot only must there be verifiable objective manifestations of
emotional distress, but those manifestations must be verified by physical examination
and observation of a physician.”) (quotations omitted).
26

46

NJTCA bar at the pleading stage. The NIED count, as would be expected,
alleges only negligence, and hence does not surmount the NJTCA bar.
Nevertheless, for the guidance of the parties, my substantive discussion will
encompass both counts.
b.

lIED (Count Sixteen)

To state a prima fade case for lIED, a plaintiff must plausibly assert
that: 1) The defendant acted either intentionally to do the act and to produce
emotional distress or acted “recklessly in deliberate disregard of a high degree
of probability that emotional distress will follow”; 2) The defendant’s conduct is
so “extreme and outrageous.

.

as to go beyond all possible bounds of decency,

.

and to be regarded as atrocious, and utterly intolerable in a civilized
community”; 3) The defendant’s intentional or reckless conduct proximately
caused the plaintiff’s emotional distress; and 4) The plaintiff suffered emotional
distress that is “so severe that no reasonable man could be expected to endure
it.” Juzwiak v. Doe, 415 N.J. Super. 442, 451, 2 A.3d 428, 433 (App. Div. 2010)
(citing and quoting Buckley v. Trenton Saving Fund Socy., 111 N.J. 355, 544
A.2d 857 (1988).)
Defendants state that their conduct could not have been “extreme or
outrageous” because there was probable cause to arrest Collick and Williams;
as stated above, however, the Complaint does plausibly allege a lack of
probable cause. As for the emotional distress itself, the Complaint alleges that
while in jail for nine days, “Both Collick and Williams were extremely scared
and frightened for their lives
one another.” (Compl.

¶

.

.

.

and they slept in shifts to attempt to protect

107) Additionally, they “have and will continue to

suffer permanent and irreparable harm,” including “immeasurable and
permanent emotional and psychological trauma.” (Compi. ¶Jj 113, 280, 285)
Because severe emotional distress—though far from inevitable—is a plausible
outcome of the situation as alleged, I will not require more in the way of
concrete allegations to sustain the lIED claim. The motion to dismiss Count 16
is denied.
47

c.

NIED (Count Seventeen)

As noted above, the NIED claim fails to pass the NJTCA bar. Particularly
as to Ms. Williams, however, it has another flaw.
NIED has as an essential element that “plaintiff suffered severe emotional
distress.” Dello Russo v. Nagel, 358 N.J. Super. 254, 269—70, 817 A.2d 426,
435 (App. Div. 2003) (citing Decker v. Princeton Packet, 116 N.J. 418, 429, 561
A.2d 1122 (1989)). Where the distress consists of witnessing harm to another,
the courts have set a high bar: the person harmed must be a close family
member, and the injury must be severe. Ms. William’s NIED claim, then, fails
for the alternative reason that the Complaint does not allege that she observed
a death or serious physical injury. Trisuzzi v. Tabatchnik, 285 N.J. Super. 15,
26, 666 A.2d 543, 548 (App. Div. 1995) (citing Portee v. Jaffee, 84 N.J. 88, 101,
417 A.2d 521 (1980)) (“the death or serious physical injury of another caused
by defendant’s negligence” is an essential element of the cause of action for
negligent infliction of emotional distress from witnessing injury to a family
member).
Accordingly, the motion to dismiss Count Sixteen (TIED) is denied, and
the motion to dismiss Count Seventeen (NIED) is granted. Because Count 17 is
the only Count in which Ms. Williams is named as a plaintiff, the Clerk shall
terminate her as a party.
8. Negligence and Gross Negligence (Counts Eighteen and
Nineteen)
In Counts Eighteen and Nineteen, Plaintiffs assert claims for negligence
and gross negligence.
a. The Elements
To prove negligence, a plaintiff must establish: (1) that the defendant
owed the plaintiff a duty of care; (2) that the defendant breached that duty of
care; and (3) that the defendant’s breach proximately caused the plaintiff’s
injury. Boos v. Nichtberger, 2013 WL 5566694, *4 (N.J. Super. Ct. App. Div.
Oct. 10, 2013) (citing Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97
48

(App. Div. 1997)). The difference between “gross” and “ordinary” negligence is
“one of degree rather than of quality.” Femicola v. Pheasant Run at Bamegat,
2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. July 2, 2010). Gross
negligence is defined as “the want or absence of, or failure to exercise, slight
care or diligence,” Draney v. Bachinan, 138 N.J. Super. 503, 509-510 (Law Div.
1976) (quoting Oliver v. Kantor, 122 N.J.L. 528, 532 (Sup. Ct. 1939), aff’d 124,
N.J.L. (E. & A. 1941)), and the term “refers to behavior which constitutes
indifference to consequences.” Gnffin v. Bayshore Medical Center, 2011 WL
2349423, *5 (N.J. Super. Ct. App. Div. May 6, 2011) (citing Banks v. Korman
Assocs., 218 N.J. Super. 370, 373, 527 A.2d 933 (App. Div. 1987)).
Read in the light most favorable to Plaintiffs, the Complaint alleges that
Defendants owed Collick and Williams a duty of care. (Compi.

¶

288) Further,

Plaintiffs allege that Defendants “exhibited an extreme absence of and failure to
exercise slight care or diligence” (Id.

¶

294) and contains specific allegations

that Defendants, inter alia, conducted investigations giving “little thought, if
any, to the investigation and discovery of the actual facts involved” (Id. ¶ 22)
and failing, allegedly at any point, to take basic investigatory steps including
corroborating the allegations and speaking to potential witnesses. (Id. ¶ 87)
Taken as true at the motion to dismiss stage, these allegations support a
plausible inference of negligence and gross negligence.

b. Charitable Immunity
Defendants argue that, even if Plaintiffs adequately state a claim for
negligence, they are immune to suit on simple negligence grounds under the
•27
New Jersey Charitable Immunity Act (“NJCIA”), N.J.S.A. § 2A:53A—7 to —11
“[A)n entity qualifies for charitable immunity when it ‘(1) was formed for
nonprofit purposes; (2) is organized exclusively for religious, charitable or
educational purposes; and (3) was promoting such objectives and purposes at
the time of the injury to plaintiff who was then a beneficiary of the charitable
The NJCIA grants immunity for simple negligence, but not for grossly negligent
conduct. Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 97, 902 A.2d 900 (2006).
49

27

works.”’ O’Connell v. State, 171 N.J. 484, 489, 795 A.2d 857, 860 (2002)
(quoting Hamel v. State, 321 N.J. Super. 67, 72, 728 A.2d 264 (App. Div. 1999))
The parties’ disagreement over the NJCIA centers on whether Collick and
Williams were statutory “beneficiar[iesj” of WPU in the context of the criminal
investigation and disciplinary process culminating in expulsion. Defendants
argue that as students of WPU, engaging in educational pursuits, Collick and
Williams are per se beneficiaries of WPU. (Def. Mot. at 58; Def. Reply at 22)
(citing O’Connell v. State, 171 N.J. 484, 491, 795 A.2d 857, 861 (2002) (citing
Graber, supra, 313 N.J. Super. at 484, 713 A.2d 503)) Plaintiffs counter that
Defendants have failed to establish that, at the time of Defendants’ alleged
negligence, Plaintiffs were truly Defendants’ beneficiaries. (P1. Opp. at 62)
(citing Sommers v. Union Beach First Aid Squad, 139 N.J. Super. 425, 431 (App.
Div. 1976)
The briefing on this point was limited, and neither party addressed the
applicability of more recent New Jersey case law that suggests that this issue
requires a more intensive analysis than is possible on this motion to dismiss.
In Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super. 198, 985 A.2d 189 (App.
Div. 2009), the Appellate Division held that a university was entitled to
immunity under the NJCIA in a wrongful death suit arising from the death of a
student who fell to his death from a dormitory window while intoxicated.
Orzech thoroughly analyzed precedent, including O’Connell, Graber, and
Sommers, to determine whether the deceased student was a “beneficiary” of the
university at the time of his fall. Synthesizing the law, it found that “beneficiary
status turns on whether the charitable organization was performing its
charitable works at the time of the accident, and the relationship at that time
of the organization and the claimant.” 411 N.J. Super. at 209, 985 A.2d at 195.
Orzech also considered the educational benefits students derive from living in a
dormitory. Although it ultimately concluded that “while living in a dormitory a
student is a beneficiary, to some degree, of the university,” 411 N.J. Super. At
209, 985 A.2d at 195, its legal and factual analysis suggests that New Jersey
50

courts might not categorically define Collick and Williams as WPU’s
beneficiaries simply because they were enrolled as students, without also
considering whether they were truly engaged in and benefiting from
educational pursuits at the time of the alleged negligence.
“Charitable immunity is an affirmative defense, as to which, like all
affirmative defenses, defendants bear the burden of persuasion.” Abdallah

ii.

Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280, 288, 798 A.2d 131,
136 (App. Div. 2002); see also Kain v. Gloucester City, 436 N.J. Super. 466,
479, 94 A.3d 937, 945 (App. Div. 2014). Consequently, I cannot dismiss a
complaint on a motion to dismiss unless it is clear from the face of the
complaint that the immunity applies—i.e., that plaintiffs have pled themselves
out of court. The applicability of charitable immunity is not so clear.
Counts Eighteen and Nineteen state the elements of a claim, and the
charitable immunity defense cannot be resolved on a motion to dismiss.
Therefore, I will deny Defendants’ motion to dismiss Counts Eighteen and
Nineteen.
9. Respondeat Superior (Count Twenty)
In Count Twenty, Plaintiffs allege that WPU and the University Police “are
responsible for the improper actions and conduct of their agents, employees,
representatives, and/or servants who are individual defendants under the
doctrine of vicarious liability.” (Compi.
NJTCA, N.J.S.A.

§

¶

298) Defendants argue that the

59:2-10, immunizes WPU and the University Police against

28
respondeat superior liability for willful misconduct of its employees.
As to malicious prosecution, Plaintiffs appear to agree. (P1. Opp. at 60
n. 18) The motion to dismiss on this ground is therefore granted as to Count
Ten. As to the other tort claims that have survived this motion to dismiss, the

The parties agree that the institutional defendants are not vicariously liable on
a respondeat superior theory for violations of § 1983 or the NJCRA. (Def.Mot at 60; P1.
app, at 58-59) I therefore understand Count 20 to be asserted only with respect to the
State common law tort claims.

28

51

applicability of this defense to vicarious liability under the NJTCA will depend
on the facts as they develop.
Accordingly, this component of the motion to dismiss is granted as to
Count Ten, but denied as to all other counts.

IV.

CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss is

GRANTED as to Counts 11 and 17 in their entirety; Counts 1, 2, 3, 4, 6, and 8
to the extent they are based on racial discrimination or theories of substantive
due process or equal protection/racial discrimination; Count 10 as to the

respondeat superior liability of WPU and the University Police only; and Count
12 as to Plaintiffs’ relationship with WPU only. However, Defendants’ motion to
dismiss is DENIED as to all other Counts and claims.
For ease of reference, the counts and claims that remain are: Counts 5,
7, 9, 13—16, and 18—21 in their entirety; Counts 1, 2, 3, 4, 6, and 8 to the
extent they are based on gender discrimination or on Fourth Amendment,
procedural due process, and equal protection/gender discrimination grounds;
Count 10 to the extent it does not seek respondeat superior liability of WPU and
the University Police; and Count 12 as to Plaintiffs’ relationship with
Educational Opportunity Fund Program.
This dismissal is without prejudice to the submission, within 30 days, of
a proposed amended complaint that remedies the deficiencies identified here.
An appropriate Order follows.
Dated: November 17, 2016

HON. KEVIN MCNULTY, U(JD.J.

52