W.P. v. PRINCETON UNIVERSITY et al
MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/30/2016. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PRINCETON UNIVERSITY et al,
Civil Action No. 14-1893 (PGS)
This matter comes before the Court upon Plaintiff, W.P.’s (“Plaintiff”) motion to file a
second amended complaint (Docket Entry No. 98) against Defendants Princeton University
(“Princeton”), Cynthia Cherry, Cole Crittenden, Kathleen Deignan, John Kolligan, Anita
McLean and Michael Olin (collectively, “Defendants”). Defendants oppose Plaintiff’s motion
(Docket Entry No. 99). The Court has fully reviewed and considered all arguments made in
support of, and in opposition to, Plaintiff’s motion. The Court considers Plaintiff’s motion
without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below,
Plaintiff’s motion to file a second amended complaint is GRANTED.
Background and Procedural History
This case arises out of an incident in which Plaintiff “impulsively ingested”
approximately twenty tablets of a prescribed anti-depressant while in his dorm room at Princeton
University. (Pl.’s Compl. at ¶28). Plaintiff immediately tried to induce vomiting and unable to
do so, walked to Princeton’s Health Center for assistance. (Id.) Plaintiff alleges that he was
required to voluntarily withdraw from Princeton due to this incident. (Id. at ¶38).
On March 26, 2014, Plaintiff filed a complaint against Princeton University, Cynthia
Cherry, Cole Crittenden, Kathleen Deignan, John Kolligan, Anita McLean, Michael Olin,
Shirley Tilghman and Does 1-10 alleging violations of the Fair Housing Act Amendments of
1998, the Rehabilitation Act of 1973, the Americans with Disabilities Act and the New Jersey
Law Against Discrimination (Docket Entry No. 1). Defendants filed a Motion for Partial
Dismissal of the Complaint on October 8, 2014 (Docket Entry No. 12). On October 20, 2014,
Plaintiff filed an amended complaint. (Docket Entry No. 14). Defendants asked the Court to
terminate their motion for partial dismissal so that they could respond to Plaintiff’s amended
complaint. (Docket Entry No. 17). The Court granted the request and Defendants subsequently
filed a motion for partial dismissal of the amended complaint on October 31, 2014. (Docket
Entry No. 21). On October 23, 2015, Defendants’ motion for partial dismissal was granted as to
Plaintiff’s Rehabilitation Act and Americans with Disabilities Acts claims against the named
individual defendants, Plaintiff’s fraud claims and all claims against Shirley Tilghman and
denied as to the intentional infliction of emotional distress claims against all Defendants except
Shirley Tilghman, and the breach of contract and good faith and fair dealing claims. (Docket
Entry No. 49).
Plaintiff filed the instant motion on October 14, 2016.
A. Plaintiff’s Motion to Amend
Plaintiff seeks to amend his complaint to “(1) refelect the Court’s October 23, 2015 Order
on the Defendants’ Motion for Partial Dismissal; (2) clarify factual allegations underpinning
already existing-claims; and (3) add an additional claim for publication of private facts based
upon factual allegations existing in the Plaintiff’s original complaint and further exacerbated by
subsequent conduct of the Defendants in this litigation.” (Pl.’s Br. in Supp. of Mot. at 2)
Plaintiff argues that allowing the amendment will not prejudice defendants as it will not
extend or delay the case. (Id. at 8) Moreover, Plaintiff states that “Defendants were made aware
of Plaintiff’s intention to amend, and the parties consequently agreed to push back by two weeks
the start date of formal discovery…” (Id.). Plaintiff notes that he is “merely seeking to clarify
the factual allegations underpinning already-existing claims and to add factual allegations of
which the Defendants have been aware of since at least when Plaintiff made his arguments at the
hearing on Defendants’ Motion to Dismiss.” (Id. at 9). Plaintiff argues that there has been no
undue delay as formal discovery has not yet started. (Id. at 9). Plaintiff further argues that he
has not acted in bad faith or with a dilatory motive. Plaintiff states that he has been “transparent
with Defendants regarding its intention to seek leave to amend.” (Id. at 10).
Finally, Plaintiff argues that his motion to amend is not futile. Plaintiff notes that the
“clarifying factual allegations are added to causes of action which have already survived
Defendants’ Motion to Dismiss. (Id. at 11). Plaintiff further notes that the new cause of action is
based on factual allegations already known by the Defendants and previously aired in
proceedings before this Court.” (Id.)
B. Defendants’ Opposition
Defendants argue that Plaintiff’s new claim of public disclosure of private facts (Count
Ten) and his augmented claims of invasion of privacy (Count Six) and intentional infliction of
emotional distress (Count Five) could not survive a motion to dismiss and are, therefore, futile.
(Defs.’ Br. in Opp. at 1).
Defendants argue that the letters referenced in Plaintiff’s new claim of public disclosure
of private facts (a letter from Dean Kathleen Deignan to W.P. dated March 7, 2012 and a letter
from Vice President Cynthia Cherrey to W.P. dated March 26, 2012 (“the letters”)) fall under the
litigation privilege, therefore, the proposed claims based upon Defendants’ decision to attach the
letters to their motion for partial dismissal are barred. (Id. at 2). Defendants note that it was
Plaintiff who introduced the letters into the case by referencing them in his pleadings. (Id. at 3).
Defendant further argues that Plaintiff’s “disclosure of private facts, intentional infliction, and
invasion of privacy claims would fail, to the extent that he predicates them on the Letters.” (Id. at
Defendant states that Plaintiff must plead three elements in his public disclosure of
private facts claim: “(1) that private matters were revealed; (2) that dissemination of such facts
would be highly offensive to a reasonable person; and (3) that there is no legitimate public
interest in the disclosure.” (Id. at 5, citing Capers v. FedEx Ground, No. 2:02-CV-5532, 2012
WL 2050247 at *5 (D.N.J. June 6, 2012); Wilson v. Grant, 297 N.J. Super 128, 139 (App. Div.
1996) (quoting Romaine v. Kallinger, 109 N.J. 282, 292 (1988)). Defendants state that
Plaintiff’s claim fails under that standard because Plaintiff “voluntarily disclosed detailed
information about his circumstances nearly seven months before [Defendants] filed their Motion
for Partial Dismissal. (Id. at 6). Defendant states that in order to a disclosure to be highly
offensive to a reasonable person, Plaintiff must first prove that he had a reasonable expectation
of privacy in the information. (Id. citing White v. White, 344 N.J. Super 211, 222-23 (Ch. Div.
2001). Defendant argues that the disclosure is not “highly offensive” as Plaintiff voluntarily
placed the letters and details about his medical condition into the public sphere and thus cannot
have a reasonable expectation that the information would remain private. (Id. at 7).
C. Plaintiff’s Reply
Plaintiff argues that Defendant incorrectly focuses on litigation privilege and notes that
he seeks to amend his complaint based on Defendants’ decision to attach unredacted records to
court pleadings “despite the Plaintiff’s then-pending motion to proceed anonymously in this
case.” (Pl.’s Reply Br. at 1). Plaintiff states that “Defendants have failed to identify any case law
supporting their position that the litigation privilege protects them from Plaintff’s new
allegations here, which involve the Defendants’ failure to properly redact and protect the
Plaintiff’s identity and confidential medical information from public disclosure. (Id. at 4).
Plaintiff further states that Defendants “conflate the liberal standards of amendment with
incorrect assertions concerning the purported merits of  Plaintiff’s claim. (Id. at 10).
Pursuant to Fed.R.Civ.P.15(a)(2), leave to amend the pleadings is generally granted
freely. See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d
Cir. 2000). Nevertheless, the Court may deny a motion to amend where there is “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.” (Id.) However, where there is an absence of
undue delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be
liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
An amendment is futile if it “is frivolous or advances a claim or defense that is legally
insufficient on its face.” Harrison Beverage Co. v. Dribeck Imp., Inc., 133 F.R.D. 463, 468
(D.N.J. 1990) (internal quotation marks and citations omitted). To evaluate futility the District
Court uses “the same standard of legal sufficiency” as applied for a motion to dismiss under Rule
12(b)(6). Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). “Accordingly, if a claim is
vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend, leave to amend
generally must be granted unless the amendment would not cure the deficiency.” (Id.)
The Court finds that Plaintiff has plead sufficient facts to show that the motion to amend
is not futile. The Court finds that the litigation privilege is not relevant. Plaintiff does not object
to the attachment of the letters to Defendants’ motion to dismiss, rather, he objects to the
attachment of unredacted letters containing his identity and personal medical information.
Additionally, the Court finds that Plaintiff did not voluntarily place the letters and his medical
information into the public sphere. Although he mentioned the letters in his pleadings, his
identity was not connected with the medical information. Furthermore, it is clear that Plaintiff
wanted to maintain his anonymity due to that fact that he filed an Application to Proceed
Anonymously on the same day that he filed his Complaint.
The Court finds that there was no undue delay, bad faith or dilatory motive by Plaintiff.
Discovery was stayed on February 23, 2016 pending settlement discussions and has not yet
commenced. There is no evidence that Plaintiff has proceeded in bad faith or with a dilatory
For the reasons set forth above, Plaintiffs’ Motion to Amend is GRANTED. An
appropriate Order follows.
Dated: December 30, 2016
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
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