# GREEN v. ROWAN UNIVERSITY

> District Court, D. New Jersey · May 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10276824

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHRISTINA GREEN,
Civ. No. 1:22-cv-00039-NLH-SAK
Plaintiff,
OPINION
v.

ROWAN UNIVERSITY,

Defendant.

APPEARANCES:
SOMMER MILLER
THE LAW OFFICES OF SOMMER MILLER, LLC
2 BALA PLAZA
SUITE 300
BALA CYNWYD, PA 19004

Attorney for Plaintiff

JAMES ANDREW KELLER
SAUL EWING ARNSTEIN & LEHR, LLP
1500 MARKET STREET
3800 CENTRE SQUARE WEST
PHILADELPHIA, PA 19102

Attorney for Defendant

HILLMAN, District Judge

Before the Court is Rowan University’s Motion to Dismiss
(ECF 16). For the reasons expressed below, the Motion to
Dismiss will be granted in part and denied in part, the Court
will decline to exercise supplemental jurisdiction over the
remaining claims, and will remand the action to state court.
I. BACKGROUND

Plaintiff, Christina Green, was a student at Rowan
University in 2015. (ECF 14, Amended Complaint (“Am. Compl.”)
at ¶ 10). On October 17, 2015, Plaintiff was sexually assaulted
in the dorms by another student, Symaj Paulk (“Paulk”). (Id. at
¶ 11). Plaintiff reported the assault to Rowan University as
well as to police. (Id. at ¶ 13). Rowan University
investigated the assault and held a disciplinary hearing. (Id.
at ¶¶ 14–15). Following the hearing, Paulk was “[f]ound
responsible” by the Sexual Misconduct & Harassment Hearing
Board, and was sanctioned with immediate expulsion. (Id. at ¶¶
16–17).
Paulk appealed the decision, and the Appeals Board “upheld

the finding of liability but reduced the sanction from expulsion
to an immediate 3-year suspension from campus with a conditional
eligibility for reapplication for the Fall of 2018 semester.”
(Id. at ¶¶ 19–20). Paulk appealed again and the Executive Vice
President of the University overturned the determination,
allowing Paulk to return to campus. (Id. at ¶¶ 22–23).
Although Rowan University issued a “No Contact Directive”
restricting Paulk from contacting Plaintiff, Plaintiff and Paulk
came into contact “several times.” (Id. at ¶¶ 25–27).
Plaintiff reported these violations of the directive. (Id. at ¶
27). Plaintiff was harassed by other students, which she
reported to the Vice President of Student Engagement and Dean of

Students, Sean Richard Jones (“Dean Jones”). (Id. at ¶¶ 27–31).
In response, Dean Jones “took no steps to pursue disciplinary
proceedings” against the harassers, and advised Plaintiff that
“she should utilize the Campus mental health services.” (Id. at
¶ 32).
Plaintiff requested accommodations within her role as a
Residential Advisor, seeking to avoid events that Paulk might
attend, and Rowan University did not provide accommodation “and
instead removed her from her residential advisor position.”
(Id. at ¶¶ 35–36). Plaintiff continued at Rowan University
until Fall 2018, after which Plaintiff withdrew from the school.
(Id. at ¶¶ 37–38).

On December 2, 2021, Plaintiff filed her complaint in the
New Jersey Superior Court, Camden County, Law Division. (ECF 1
at 6). Defendant, Rowan University, removed the case to this
District Court on January 5, 2022. (ECF 1). On February 25,
2022, Defendant filed a motion to dismiss Plaintiff’s complaint.
(ECF 7). Subsequently, Plaintiff filed a motion for leave to
amend her complaint (ECF 11), which was granted and the motion
to dismiss was denied as moot. (ECF 13).
Plaintiff filed her amended complaint on September 30,
2022. (ECF 14). Plaintiff’s amended complaint includes the
following claims: Discrimination under the Americans with

Disabilities Act (“ADA”) (Count I), New Jersey Law Against
Discrimination (“NJLAD”) (Count II), Breach of Contract (Count
III), Promissory Estoppel (Count IV), Breach of Duty of Good
Faith and Fair Dealing (Count V), and Negligent Infliction of
Emotional Distress (“NIED”) (Count VI). (ECF 14). Defendant
filed its motion to dismiss Plaintiff’s amended complaint and
supporting brief on November 8, 2022. (ECF 16). Defendant
filed a supplemental supporting brief on December 2, 2022,
asking this Court to grant its motion to dismiss as unopposed.
(ECF 17). On December 5, 2022, Plaintiff filed her response.
(ECF 18, 19). On December 15, 2022, Defendant filed its reply.
(ECF 22).
I. LEGAL STANDARD

When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). A pleading
is sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2).
“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of [her]
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (first alteration added) (second alteration
in original) (citation omitted).
To determine the sufficiency of a complaint, a court must
take three steps: (1) the court must take note of the elements a
plaintiff must plead to state a claim; (2) the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief. Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,
quotations, and other citations omitted). A court in reviewing
a Rule 12(b)(6) motion must only consider the facts alleged in
the pleadings, the documents attached thereto as exhibits, and
matters of judicial notice. S. Cross Overseas Agencies, Inc. v.
Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).
“A motion to dismiss should be granted if the plaintiff is

unable to plead ‘enough facts to state a claim to relief that is
plausible on its face.’” Malleus, 641 F.3d at 563 (quoting
Twombly, 550 U.S. at 570).
With regard to a motion to dismiss based on a statute of
limitations defense, the law of this Circuit (the so-called
“Third Circuit Rule”) permits a limitations defense to be raised
by a motion under Rule 12(b)(6), but only if the time alleged in
the statement of a claim shows that the cause of action has not
been brought within the statute of limitations. Robinson v.
Johnson, 313 F.3d 128, 135 (3d Cir. 2002).
I. DISCUSION
A. Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiffs’ claims under
28 U.S.C. §§ 1331, 1367, 1441, and 1446.
B. Request to Grant Motion as Unopposed
Defendant explains that the deadline for Plaintiff to file
her opposition to the motion to dismiss was November 21, 2022.
(ECF 17 at 2). As of Defendant’s supplemental brief on December
2, 2022, Plaintiff had not yet responded, and as such Defendant
requested that the Court grant its motion to dismiss as
unopposed. (Id. at 2–3). Although Plaintiff ultimately
responded on December 5, 2022, Defendant maintains that its
motion should be granted as unopposed, as “Plaintiff should not
be rewarded for failing to follow process and the rules of this

Court.” (ECF 22 at 4).
Although a Court may dismiss a case as unopposed, such
dismissal is disfavored. Brown v. DiGuglielmo, 418 F. App’x 99,
102 (3d Cir. 2011) (“We made clear quite some time ago in
Stackhouse our disfavor of dismissals under Rule 12(b)(6) for
purposes of sanctioning a litigant.”). Generally, “the Court
must address unopposed motions to dismiss a complaint on the
merits.” Cooper v. Pressler & Pressler, LLP, 912 F. Supp. 2d
178, 182 (D.N.J. 2012) (citation omitted). Moreover, this Court
has discretion to consider an untimely response. See Simpson v.
City of Atl. City, No. 04-4537, 2007 WL 869528, at *1 (D.N.J.
Mar. 20, 2007).

Although the Court acknowledges that Plaintiff’s response
was untimely and admonishes Plaintiff’s counsel to abide by
filing deadlines in the future, it will analyze Defendant’s
claims on the merits. As such, this Court will apply its
discretion and consider Plaintiff’s untimely response.
C. ADA (Count I) Statute of Limitations
Defendant asserts that the ADA is subject to a two-year
statute of limitations. (ECF 16-1 at 13). Defendant explains
that although New Jersey extended its statute of limitations for
injuries arising from sexual assault, this does not apply to
federal causes of action. (Id. at 14–15). Defendant points to
the allegations in the complaint, alleging continued bullying
and harassment “until the Fall of 2018.” (Id. at 14 (emphasis

in original) (quoting Am. Compl. at ¶ 30). Defendant explains
that even if Plaintiff remained on campus until the end of 2018,
her statute of limitations ran by the end of 2020 at the latest.
(Id.). However, Plaintiff filed her complaint in December 2021.
(Id.). Thus, Plaintiff’s claim under the ADA is time-barred.
(Id.).
Plaintiff responds that the statute of limitations for her
ADA claim is four years. (ECF 18 at 8). She avers that the ADA
does not specifically provide its own statute of limitations,
and states that the “four-year catch-all” statute of limitations
under 28 U.S.C. § 1658(a) should apply to her claim. (Id.).

Pursuant to 28 U.S.C. § 1658(a) “a civil action arising under an
Act of Congress [such as the ADA 2008 Amendments] enacted after
the date of the enactment of this section [December 1, 1990] may
not be commenced later than 4 years after the cause of action
accrues.” (Id. (alteration in original) (quoting 28 U.S.C. §
1658(a))). Plaintiff asserts that the claims she alleges “arise
by virtue of the ADA Amendments Act of 2008.” (Id.). Thus,
Plaintiff alleges that the four-year statute of limitations
applies. (Id.).
Plaintiff explains that her claim arises specifically under
the ADA Amendments Act of 2008 (“ADAAA” or “2008 Amendments”)
because prior to the amendments a disability under the ADA

required showing that the “disability substantially limited one
or more major life activity.” (Id. at 9 (emphasis in
original)). She avers that this requirement was removed by the
2008 Amendments. (Id.). Plaintiff claims that this amendment
“is central to Plaintiff’s cause of action” because her
averments that “she could not attend some functions required
under [her Resident Advisor] job and was therefore terminated .
. . may not be considered a ‘major life activity.’” (Id.).
Defendant urges that Plaintiff’s claim arises under the ADA
as it existed prior to the ADAAA, and as such the two-year, not
the four-year, limitations period applies. (ECF 22 at 7).
Defendant argues that the claim arises under the ADA because the

alleged disabilities, severe depression, anxiety, and PTSD
constitute “‘mental impairments’ qualifying for disability
status under the ADA.” (Id. at 8).
The ADA does not provide its own statute of limitations.
Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp.
Auth., 539 F.3d 199, 208 (3d Cir. 2008). Effective July 20,
2002, 28 U.S.C. § 1658 provides a catch-all four-year statute of
limitations for federal statutes that do not otherwise include a
statute of limitations. This statute of limitations does not
apply to the ADA, as the ADA was enacted prior to the effective
date. Disabled in Action of Pennsylvania, 539 F.3d at 208.
Instead, the District Court applies “the statute of limitations

of the most analogous state law cause of action.” Id. Thus,
for ADA claims, “courts generally apply a state’s personal
injury statute of limitations.” Somerset v. Univ. of Med. &
Dentistry of New Jersey, No. 22-1021, 2022 WL 2289561, at *2
(D.N.J. June 24, 2022). In New Jersey, the statute of
limitations for personal injury claims is two years. Id. Thus,
this statute of limitations applies to ADA claims.
However, Plaintiff points to the ADAAA as providing the
rights she asserts in her complaint, amendments that were
enacted after the 28 U.S.C. § 1658 effective date. (ECF 18 at
9). Thus, whether the four-year statute of limitations applies
depends on whether the rights Plaintiff asserts were created by

the ADAAA or whether they already existed under the ADA. If
Plaintiff’s claims arise under the ADA as written prior to the
amendment, the four-year federal catch-all statute of
limitations does not apply. See Lei Ke v. Drexel Univ., No. 11-
6708, 2013 WL 5508672, at *6 (E.D. Pa. Oct. 4, 2013).
Effective January 1, 2009, the ADA was amended to “carry
out the ADA’s objectives . . . by reinstating a broad scope of
protection.” See ADA Amendments Act of 2008 (“ADAAA”), Pub. L.
No. 110–325, 122 Stat. 3553 (2008). The purpose of the ADAAA is
to “restore the intent and protections of the Americans with
Disabilities Act of 1990.” Id. In enacting the amendment,
Congress explained that the ADA was originally intended to

provide “broad coverage” and a “clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities.” Id. Accordingly, the ADAAA
clarified the scope of rights already existing under the ADA.
Matthews v. Pennsylvania Dep’t of Corr., 613 F. App’x 163, 167
(3d Cir. 2015) (“the 2008 ADA Amendments Act (‘ADAAA’) was
enacted to clarify that the definition of ‘disability’ should be
construed ‘in favor of broad coverage of individuals ... to the
maximum extent permitted.’”). It is an open question whether
the ADAAA expanded plaintiffs’ rights, and accordingly whether
the four-year statute of limitations may apply for a claim under
the ADAAA that did not exist under the ADA before that

amendment. We need not answer this question here, as
Plaintiff’s claim as alleged would be actionable under the ADA
prior to its amendment.
Plaintiff’s argument that her claim arises under the
amendments is premised on her hedging that her allegations “that
she could not attend some functions required under the job and
was therefore terminated . . . may not be considered a ‘major
life activity.’” (ECF 18 at 9). Even if this were so,
Plaintiff distorts the nature of the claim in her Amended
Complaint.
Prior to amendment, disability was defined in the ADA as

follows:
(2) DISABILITY- The term `disability' means,
with respect to an individual--
(A) a physical or mental impairment that
substantially limits one or more of the
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an
impairment.

Americans with Disabilities Act of 1990, P.L. 101-336, July 26,
1990, 104 Stat. 327 at 42 U.S.C. § 12102(2).
In summary fashion, the ADA - pre-ADAAA – defined someone
as disabled if they: A) currently have an impairment
substantially limiting a major life activity; or B) had a record
of an impairment substantially limiting a major life activity;
or C) were perceived as having an impairment substantially
limiting a major life activity. Id.
One change effected by the ADAAA was to expand the
definition of disability for those asserting an ADA claim under
what this Court will call the “perception” clause of 42 U.S.C. §
12102(1).1 Congress achieved this by broadening the definition

1 Another change was to renumber the subsections of 42 U.S.C. §
12102. Under the original version of the Act the definition of
disability was found at § 12102(2). It is now found at §
12102(1).
of “disability” to include those who were perceived to be
disabled in the most general sense, whether or not the person
holding that perception thought subjectively that the disability

affected a major life activity and whether or not the actual
disability was that severe. Congress made this change by adding
the parenthetical phrase “(as described in paragraph (3))” to
the perception prong in § 12102(1)(C) and adding paragraph (3)
which now reads:
(3) Regarded as having such an impairment
For purposes of paragraph (1)(C):
(A) An individual meets the requirement of
“being regarded as having such an
impairment” if the individual establishes
that he or she has been subjected to an
action prohibited under this chapter because
of an actual or perceived physical or mental
impairment whether or not the impairment
limits or is perceived to limit a major life
activity.
(B) Paragraph (1)(C) shall not apply to
impairments that are transitory and minor. A
transitory impairment is an impairment with
an actual or expected duration of 6 months
or less.

42 U.S.C. § 12102(3).

This ADAAA amendment might be helpful to Plaintiff if her
claim in the Amended Complaint had been that the Defendant
perceived her as disabled even though they did not think it
affected a major life activity nor did her impairment actually
rise to that level. But that is not her claim in the Amended
Complaint. Plaintiff does not allege she was discriminated
against because she was perceived as having a disability as
defined by the amended version of 42 U.S.C. § 12102.
Rather, she has alleged that she does, in fact, have a

disability as defined by the original version of 42 U.S.C. §
12102, that she informed the Defendant of those specific
disabilities, and that she was not accommodated. (Am. Compl. at
¶¶ 12 (“Ms. Green was diagnosed with a series of disabilities as
a result of her attack including but not limited to severe
depression, anxiety and PTSD.”), 41 (“Ms. Green is a qualified
individual with a disability, as [s]he has both a record of
disability, and more specifically, has been diagnosed with
several disabilities.”), 42 (“. . . Ms. Green informed the
[Defendant] of her disabilities, which include but are not
limited to PTSD, anxiety, and depression.”), and 44 (“. . .
[t]he [Defendant] . . . has subjected [Plaintiff] to disability-

based discrimination . . . .”)).
Having not alleged a claim under the ADAAA for rights not
previously provided for by the ADA, the four-year statute of
limitations does not apply to Plaintiff’s ADA claim. Rather,
Plaintiff’s claim is subject to the two-year statute of
limitations. To hold otherwise would be to determine in effect
that all ADA claims are now subject to a four-year statute of
limitations as result of the ADAAA, a result unwarranted and
unsupported by any statutory text including 28 U.S.C. § 1658(a).
Because Plaintiff has not stated any allegations after
2018, and Plaintiff filed her complaint in 2021, her ADA claim
is barred by the statute of limitations. Therefore, Plaintiff’s

ADA claim, Count I of her complaint, will be dismissed.
D. Remand
“Section 1367(c) grants district courts the discretion to
refuse to exercise supplemental jurisdiction when ‘values of
judicial economy, convenience, fairness, and comity’ counsel
that the district court remand state claims to a state forum.”
Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 157
(3d Cir. 1998) (citing City of Chicago v. International College
of Surgeons, 522 U.S. 156, 167 (1997)) (other citation omitted)
(“The whole point of supplemental jurisdiction is to allow the
district courts to exercise pendent jurisdiction over claims as
to which original jurisdiction is lacking.”). Section 1367(c)

provides:
The district courts may decline to exercise
supplemental jurisdiction over a claim under
subsection (a) if—
(1) the claim raises a novel or complex
issue of State law,
(2) the claim substantially predominates
over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all
claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are
other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c).
The Third Circuit “has made clear that, ‘where the claim
over which the district court has original jurisdiction is
dismissed before trial, the district court must decline to

decide the pendant state claims unless considerations of
judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.’” Jacobowitz
v. M & T Mortg. Corp., 372 F. App’x 225, 228 (3d Cir. 2010)
(quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788
(3d Cir. 1995) (emphasis in original)).
Because we must dismiss Plaintiff’s ADA claim pursuant to
the statute of limitations, the only federal claim over which
this Court had original jurisdiction is no longer in the case.
The only remaining claims arise under state common law and
violations of the New Jersey Law Against Discrimination, a state

statute. Moreover, this matter is in the earliest stages of
litigation and no substantive decision has been rendered
affecting the claims or positions of the parties beyond
dismissal of the federal claim.
Therefore, there are no significant considerations of
judicial economy, convenience, and fairness to the parties that
provide an affirmative justification for retaining jurisdiction
over the matter. Thus, the Court will decline to exercise
supplemental jurisdiction over Plaintiff’s remaining claims
under § 1367(c)(2) and (3), and remand the matter to state
court.
II. CONCLUSION

For the reasons expressed above, Defendants’ Motion to
Dismiss the complaint will be granted in part and denied in part
without prejudice. Accordingly, Plaintiff’s ADA claim will be
dismissed with prejudice. For the remaining state law claims,
this case will be remanded for adjudication in full by the state
court.2
An appropriate order will be entered.

Date: May 26, 2023 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

2 In light of this disposition, this Court expresses no opinion
on the viability of Plaintiff’s state law claims and will deny
that aspect of Defendant’s motion without prejudice.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10276824. Public record. Not legal advice.