DOE v. PRINCETON UNIVERSITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN DOE,

Plaintiff,

Civil Action No. 22-5887 (RK) (DEA)

vy.

OPINION

PRINCETON UNIVERSITY,

Defendant.

KIRSCH, District Judge

THIS MATTER comes before the Court upon the Motion to Dismiss filed by Defendant

Princeton University, (ECF No. 24),! seeking dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(6) of Plaintiff John Doe’s Complaint. (ECF No. 1.)? Plaintiff filed a brief in

opposition, (ECF No. 26), and Defendant filed a brief in reply, (ECF No. 32). The Court has

considered the parties’ submissions and resolves the matter without oral argument pursuant to

Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below,

Defendant’s Motion to Dismiss, (ECF No. 24), is GRANTED in part and DENIED in part.

Plaintiff named “Princeton University” as the Defendant in his Complaint. (See ECF No. 1.) Defendant

notes in its Motion to Dismiss that the proper Defendant in the matter is actually “The Trustees of Princeton

University.” (ECF No, 24-1 at 1 n.1.)

* The Honorable Douglas E. Arpert granted Plaintiff’ s request to proceed under the pseudonym “John Doe.”

(ECF No. 38.) Further, the Complaint refers to the female complainant as “Jane Roe” in order to protect

her identity, and the Court therefore refers to her as same throughout the Opinion.

I. BACKGROUND

This matter arises from Princeton University’s (“Princeton” or the “University’’)

investigation and sanction of a male student, John Doe’s, alleged sexual misconduct against a

female student, Jane Roe, on two occasions: once in October of 2017 and again in February of

2019. Following Roe’s complaint against him, the University conducted a thorough investigation,

interviewed both Doe and Roe multiple times, gathered evidence, and weighed testimony from a

myriad of witnesses. Following an appeal and additional investigation on remand, ultimately,

Princeton found Doe in violation of the University’s sexual misconduct policy and sanctioned Doe

to four months’ probation and a mark on his permanent school records. Doe brings this suit,

claiming, inter alia, that Princeton’s investigation was permeated with gender bias against him in

violation of Title IX.

A. FACTUAL HISTORY

1. The October 2017 Interaction

On October 14, 2017, Plaintiff, a Princeton student, met Jane Roe, a senior in high school,

who was on Princeton’s campus attending a prospective student’s weekend. (“Compl.”, ECF No.

1. { 109) Plaintiff and Roe “immediately hit it off,’ and Plaintiff gave Roe a walking tour of

campus. (/d. § 111.) Following this walk, during which the parties consensually kissed, Roe asked

Plaintiff if “she could stay the night in his room,” as the student she was visiting was allegedly

angry with her. Ud. □□□ 110-13.) Plaintiff agreed. Ud. § 114.) Upon returning to Plaintiff’s

dormitory room, “Roe told Doe she did not want to have vaginal sex,” but she agreed to give

Plaintiff oral sex at his request. Ud. JJ 116-17.) Afterwards, Doe and Roe exchanged contact

information, and Roe slept on a couch in the common room in Plaintiff’s dormitory room. (Id.

{| 120.) Roe left the dormitory before Plaintiff awoke the next morning. (/d. 121.)

□

2. The February 2019 Interaction

Plaintiff and Roe stayed friendly following their initial meeting: they would “periodically

exchange friendly messages,” and Roe informed Plaintiff that she had been accepted to Princeton.

Ud. J 122.) Roe matriculated at Princeton in the Fall of 2018. Ud. J 123.) When she “arrived at

Princeton that fall, the dynamic between them changed . . . [as] Roe become bolder with respect

to her feelings about Doe,” telling him she was “[g]rateful to have [Plaintiff] in [her] life” and

asking him on a date. Ud. Jf 123-24.) On February 7, 2019, Plaintiff and Roe separately attended

the same event at “a campus eating club called Quadrangle.” Ud. { 125.) Later that night, after

briefly speaking earlier, Plaintiff “re-engaged [Roe] in conversation,” and the two “wound up

kissing for about five minutes.” Ud. § 126.)

During the evening, Roe sent a text message to a friend that she was “tempted to break a

celibacy pledge she’d made.” Ud. § 128.) Roe followed this first text, which was riddled with

typos, with “several coherent, nearly-typo free texts” to the same friend. ({ 129.) Plaintiff alleges

that one of Roe’s friends asked if she wanted to leave, but Roe told him she wanted to stay. (/d.)

Roe, who Plaintiff claims “showed no signs of severe intoxication,” asked to go to Plaintiffs room.

127.) At 1:35 am, on the way to Plaintiffs room, Roe texted two friends, asking each to call

her, even requesting one friend “insist I come back.” (Id. J 130.)°

Plaintiff alleges that upon reaching his dorm room, “Roe then became aggressive,”

“push[ing] [Plaintiff] down on the bed with both hands,” “suck[ing] on [Plaintiff's] neck,” and

“ageressively perform[ing] oral sex on him.” Ud. J 131.) The parties then “decided to have sex,”

even though “Roe was a virgin, and Doe had only had sex with one girl.” (/d. J 132.) Roe assisted

? The Court notes that this asserted fact, in Plaintiff's own Complaint, appears to be cognizant that on the

way to Plaintiff’s dormitory, in real time, Roe exhibited some trepidation towards accompanying Plaintiff

to his room and sought to make arrangements out of the situation.

Plaintiff in putting on a condom. (/d.) The parties then engaged in sexual intercourse. (/d.) At some

point during the sexual encounter, Roe “chose not to answer or respond to” her friends who had

texted her as she had asked. Ud. J 133.) Shortly thereafter, Plaintiff “grew unnerved at how things

had quickly progressed” and told Roe that “it wasn’t a good idea to continue.” (Id. J 134.) Plaintiff

and Roe heard laughter from the common area outside Plaintiff's room, and “Roe grew visibly

disturbed” that others were just outside Plaintiff's room. Ud. J 135.) Roe “quickly left,”

immediately called a friend, and began crying, “presumably upset at how she’d lost her virginity,

culminating in the boys seemingly laughing at her.” (/d. { 136.) When Plaintiff rejoined his friends

in the common room, he learned “that he had a large number of big, darkly colored hickeys on

both sides of his neck.” (/d. § 137.) Plaintiff “texted a video of his neck,” covered in hickeys, to a

female friend asking for her help covering the blemishes. (/d.)

Following this interaction, Plaintiff and Roe had limited communications aside from

Plaintiff “occasionally see[ing] things she posted on Instagram.” Ud. 139.) In October 2019,

Plaintiff had a relationship with another student, “someone Roe knew.” (/d. J 140.) After this

relationship concluded, “and more than eight months after the second incident [between Plaintiff

and Roe]—Roe filed a complaint with Princeton’s Title [X office, @d.) On October 27, 2019, Roe

“alleged that Doe had physically forced her to perform oral sex on him in October 2017; had

physically forced her to perform vaginal and oral sex in [February 2019]; and... had made her

give him a hickey .. . in [February 2019] before allowing her to leave his room.” (Id. Jf 1, 140.)

3. Princeton’s Policy

Princeton’s code of student conduct is relevant to Roe’s complaint, to Princeton’s Title XI

office, and to the instant litigation. Plaintiff and the University were bound to follow “Princeton’s

code of student conduct entitled “Rights, Rules, Responsibilities’” (the “Policy” or the “RRR”), to

which Plaintiff had agreed upon enrolling at Princeton. (/d. | 39; see ECF No. 24, Ex. 6 at 17.)

Section 1.3 of the Policy is entitled “Sex Discrimination and Sexual Misconduct.” Ud.

41; see ECF No. 24, Ex. 6.) It “proscribed certain conduct by students at the University and

established procedures for investigating and resolving claims of proscribed conduct.” (Compl. ¥

41.) This Policy prohibited, inter alia, ‘““Non-Consensual Sexual Penetration;” “Non-Consensual

Sexual Contact;” and “Sexual Harassment.” (ECF No. 24, Ex. 6 at 18.) According to the Policy,

consent was defined as “as the voluntary, informed, un-coerced agreement through words and

actions freely given, which a reasonable person would interpret as a willingness to participate in

mutually agreed-upon sexual acts.” Ud. at 20.) Consent, however, could not be given when “a

person is incapable of making an intentional decision to participate in a sexual act, which could

include instances in which the person is in a state of incapacitation.” Ud.) Incapacitation was

defined, in the Policy, as “the state in which a person’s perception or judgment is so impaired that

the person lacks the cognitive capacity to make or act on conscious decisions,” which could be

caused by alcohol. (/d. at 21.)

The Policy prescribed that “[w]hen the Title IX Coordinator receives a complaint or report

alleging that a student violated this policy, the Title IX Coordinator will appoint a three-person

investigative panel of University administrators and/or investigators.” (/d. at 34.) Following the

panel’s investigation, they will “determine, by a preponderance of the evidence, whether this

policy was violated.” Cd.) The Policy further stated that the “panelists will have training in

investigating and evaluating” sexual misconduct allegations and will “be impartial and unbiased.”

«

At the conclusion of their investigation, the panelists would issue their report, and if the

student under investigation (the “respondent’’) is found in violation, the “dean of undergraduate

students and the deputy dean for academic affairs of the Graduate school [would] jointly determine

the penalty.” Ud. at 35.) The Policy sought “to complete the investigation and any resulting

disciplinary process and provide notice of the outcome within 60 calendar days after the

investigative panel’s first interview of the complainant.” Ud. at 32.) Both parties had the

opportunity to appeal to the five-member appellate board, consisting of “the dean of the college,

the dean of the Graduate School, the vice president for campus life, the chair of the Judicial

Committee of the Council of the Princeton University Community, and another faculty member

appointed by the president.” (/d. at 35.)

4. Princeton’s Investigation

Following Roe’s Title [IX complaint, Princeton began its investigation. Ud. J 141.) It

selected three panelists: “Associate Dean of Undergraduate Students Joyce Chen Smith, and

investigators Randy Hubert and Walter Wright.” Ud.) The panelists first interviewed Roe on

November 26, 2019. Ud. J 142.) Plaintiff's and Roe’s description of their sexual encounters

differed significantly. Ud.)

Regarding the October 2017 night, Roe stated she consumed copious amounts of alcohol

rapidly; and “when her host stopped answering her texts, [Plaintiff] offered his couch for her to

sleep on.” Ud. J 143.) Plaintiff, Roe claimed, became physical with her on the walk back to his

dorm and then physically forced her to perform oral sex. (Ud. {| 144-45.) Following the incident,

Roe claimed she was “friendly” with Plaintiff “so it wouldn’t be awkward” once she matriculated

at Princeton. Ud. J 146.) With respect to Plaintiffs and Roe’s second encounter in February 2019,

Roe “admitted that she kissed [Plaintiff] consensually, and stated that “she asked [Plaintiff] to

G6

take her home,” to which he agreed to do, but only after they “check[ed] on his sick roommate.”

Ud. 148, 151.) Roe stated that once they reached Plaintiff’s dorm room: “she said ‘no’ to kissing

[Plaintiff]’’; Plaintiff “ignored her ‘no’s’ and then took her clothes off’; Plaintiff “then had vaginal

sex with her, but that she was on top of him”; Plaintiff forced her to “perform oral sex on him”;

and Plaintiff “made her give him a hickey” following the oral sex. Ud. J 153-54.)

The panel interviewed Plaintiff on December 13, 2019. Ud. { 158.) Plaintiffs recounting

to the panel largely mirrors his recitation of facts contained in the Complaint here. Again, his

account of their encounters differed greatly from Roe’s. (See id. JJ 159-65.)

After hearing from Plaintiff and Roe, the panel interviewed “a large number of

witnesses,” including those friendly to Plaintiff and Roe. Ud. J 166.) Plaintiff alleges these witness

interviews “undermined Roe’s stories and confirmed Doe’s.” (/d.) For example, regarding the

October incident, one of Roe’s friends stated that Roe told her “she went to Doe’s room only after

trying to climb into her host’s dorm window and finding it was locked.” Ud. { 167.) Other

witnesses corroborated Plaintiff’s February 2019 account, testifying that Plaintiff had told him Roe

“had been ‘really aggressive’” and “had thrown him on the bed” before performing oral sex on

Plaintiff. Ud. { 176.) On the other hand, a different witness told the panel that Roe had told her

that Plaintiff “had literally pinned her to the bed,” “that she said no and was sobbing as he did

that,” and “that [Plaintiff] forcibly raped her.” Vd. § 185 (emphasis in original).) Plaintiff also

alleges that the panel “uncovered a large amount of documentary evidence undermining Roe’s

claims and corroborating Doe’s,” including Roe’s text messages to friends asking them to call her

and texts that confirmed Roe “had sent [Plaintiff] flirty texts before the second incident and had

asked him on a date.” Ud. ¥ 193.)

The panel interviewed Plaintiff and Roe for a second time in January 2020. Ud. JJ 194,

200.) Plaintiff alleges that Roe’s second interview “consisted mostly of the panel asking Roe to

repeat or clarify parts of her stories” without meaningfully pressing her on witness testimony that

rebuffed her story. Ud. J§ 194-95.) In addition, Plaintiff claims that Roe contradicted her own

original story by, for example, testifying that “Doe had first made her perform oral sex on the night

of the second incident, and only afterwards made her have vaginal sex,” which flips the events in

her original interview. (id. § 196.) When presented with this inconsistent testimony, Plaintiff

alleges the panel presented Roe a way out, by asking her “if she really didn’t remember the order

that things happened on Respondent’s bed.” (/d.) In addition, when confronted regarding the image

of the many hickeys on Plaintiff's face, Roe testified that she “just kept going because I wanted to

leave.” (Ud. J 198.) Plaintiff alleges that “[ijn stark contrast with Roe’s interviews,” during his

second interview the panel was highly “confrontational . . . pressing [Plaintiff] on perceived

inconsistencies .. . on the most peripheral of topics.” (Ud. | 200.) Thereafter, on February 6, 2020,

Plaintiff was sent “official notice of the allegations against him,” to which he was able to submit

a written response. (/d. J 208.) Plaintiff alleges his response “identified dozens of inconsistencies,

contradictions, and implausibilities told by Roe and ways her testimony was [contradicted] by the

evidence.” Ud. J 209.)

Notwithstanding Plaintiffs contentions, on March 20, 2020, the panel issued its decision,

which Plaintiff alleges went to “extraordinary lengths to downplay exculpatory evidence, to find

Roe credible, and to find some basis on which to find Doe less than fully credible.” Ud. § 214.)

The panel held Plaintiff “not responsible” for the first encounter due to “insufficient evidence to

convict.” Ud. J 216.) Regarding the second incident, “the panel found Doe responsible for

nonconsensual conduct and [sexual] penetration for nearly all of the activity that Roe said

occurred: kissing, touching her breasts, oral sex, and vaginal sex.” (Ud. § 221.) Plaintiff also

claimed the panel’s “findings defied logic and the evidence, in obvious and straightforward ways.”

Ud.) For example, Plaintiff alleges that in order to find him responsible, the panel “found Roe

credible even though it expressly concluded that her claim about why she gave Doe so many

hickeys ‘was implausible.’” Ud. J 222.) In addition, the panel credited Roe’s testimony because

“it believed she had ‘no apparent reason’ to falsify her claims,” despite her celibacy pledge, her

embarrassment following “people laughing in [Plaintiff's dormitory common room], which she

wrongly assumed was about her,” and the fact that she “had filed her report soon after learning

Doe had ended a brief relationship with someone she knew.” (Id. § 223.) Moreover, the panel did

not credit the testimony of Roe’s friend, who claimed Roe told her Plaintiff had “forcibly raped

her.” Ud. J 227.) Following the panel’s decision, Plaintiff was issued a two-year suspension. (/d.

q 247.)

On April 13, 2020, Plaintiff appealed to the five-member appellate board established by

the University, citing “procedural unfairness” in the panel’s decision. (Id. § 249.) His appeal was

granted on May 4, 2020 on the “grounds of ‘possible procedural unfairness’ identified by Doe”

relating to credibility determinations and “related to the finding of non-consensual sexual

penetration,” and the matter was remanded to the same panel for further investigation. (/d. J 250.)

On remand, the panel interviewed Roe a third time on May 13, 2020. Ud. {| 251-52.) In

this interview, Plaintiff alleges that the panel challenged Roe on inconsistencies in her testimony

but failed to incorporate these discrepancies in assessing Roe’s ultimate credibility, “[d]Jespite

Roe’s being unable to explain them.” Ud. ¥ 252.) Throughout the panel’s second investigation,

Plaintiff alleges that it “search[ed] for evidence to gin up an adverse credibility finding against”

him. (/d. 266.) In support, Plaintiff points to the fact that the panel failed to reinterview any “non-

oO

party witness[es] who might have challenged Roe’s credibility,” and instead interviewed one of

Plaintiffs friends on peripheral issues. (id. J] 267—68.) The panel also interviewed Plaintiff for a

third time on May 22, 2020. Ud. § 272.) On June 23, 2020, the panel issued its second decision.

(Ud. 280.) It found Plaintiff “not responsible for all of Roe’s allegations except one: the allegation

that Doe had kissed her and touched her breasts without consent at the beginning of the encounter.”

(id. J 299 (emphasis in original).) Plaintiff was “sanctioned with ‘censure’ and 48 months of

disciplinary probation,” a punishment that would be noted in his student records. (/d. { 311.)

On July 13, 2020, Plaintiff appealed the panel’s second decision, which was denied on

August 3, 2020. Ud. Jf 312-13.)

B. PROCEDURAL HISTORY

On October 5, 2022, Plaintiff brought suit in federal court against Defendant, alleging

claims for violation of Title [IX (Count One); breach of contract (Count Two); breach of the duty

of good faith and fair dealing (Count Three); and negligence (Count Four). The crux of Plaintiff’ □

Complaint is his allegation that Princeton’s process for investigating and disciplining allegations

of sexual misconduct is gender biased against male students like Plaintiff in favor of female

complainants and that their decision sanctioning Plaintiff was internally inconsistent and resulted

from a procedurally deficient process embedded with gender bias. (Compl. {J 17, 30.) Defendant

filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that

the Complaint fails to allege any evidence of gender bias or that the University violated its own

Policy in investigating Roe’s complaint against Plaintiff. “MTD”, ECF No, 24.) Plaintiff filed a

brief in opposition, (“Pl. Opp’n,”” ECF No. 26), and Defendant filed a brief in reply, (“Reply,”

ECF No. 32).

Nn

I. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), the court may dismiss a complaint

for “failure to state a claim upon which relief can be granted.” For a complaint to survive dismissal

under this rule, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.”” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

U.S. at 570). In evaluating the sufficiency of a complaint, “[a]ll allegations in the complaint must

be accepted as true, and the plaintiff must be given the benefit of every favorable inference to be

drawn therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (citations omitted).

However, the Court “need not credit bald assertions or legal conclusions” or allegations

“involv[ing] fantastic factual scenarios lacking any arguable factual or legal basis” or that “surpass

all credulity.” Degrazia y. F.B.I., No. 08-1009, 2008 WL 2456489, at *3 (D.N.J. June 13, 2008),

aff'd, 316 F. App’x 172 (3d Cir. 2009) (citations and quotation marks omitted).

A court must only consider “the complaint, exhibits attached to the complaint, matters of

the public record, as well as undisputedly authentic documents if the complainant’s claims are

based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).* “Factual

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550

US, at 555, Furthermore, “[a] pleading that offers labels and conclusions or a formulistic recitation

of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked

assertion[s| devoid of further factual enhancement.” Igbal, 556 U.S. at 678 (citations and quotation

marks omitted). “Restatements of the elements of a claim are legal conclusions, and therefore, are

not entitled to a presumption of truth.” Valentine v. Unifund CCR, Inc., No. 20-5024, 2021 WL

4 The Third Circuit has explained that “[w]hen the truth of facts in an ‘integral’ document are contested by

the well-pleaded facts of a complaint, the facts in the complaint must prevail.” Doe v. Princeton Univ., 30

F.4th 335, 342 (3d Cir. 2022), As such, the Court only relies on exhibits submitted with Defendant’s Motion

to Dismiss where the facts in those documents are not contested by Plaintiff.

11

912854, at *1 (D.N.J. Mar. 10, 2021) (citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224

(3d Cir. 2011)).

DISCUSSION

A. TITLE IX

Count One of Plaintiff’s Complaint alleges a Title LX claim against Defendant. (See Compl.

315-321.) Plaintiff alleges that Defendant unlawfully discriminated against him because “the

finding and sanction against [Plaintiff] were the product of gender bias.” Ud. § 319.) In support,

Plaintiff points to alleged “extreme... gender-biased pressure” on Defendant to enforce Title IX

protections, “[t]he statements and actions of a biased panel,” and “[aJn incoherent and unsupported

rationale that calls the decision against [Plaintiff] into grave doubt.” (/d.) Defendant argues on its

Motion to Dismiss that Plaintiff’s claim of gender bias is speculative and unsupported by factual

allegations in the Complaint, and that his contention of pressure on Princeton to investigate more

thoroughly and punish sexual misconduct on campus does not give rise to a Title [IX claim. (MTD

at 11—28.) Plaintiff responds that his Complaint adequately alleges a Title LX claim through his

pleading of (1) the external pressures on Princeton and (2) procedural flaws in Princeton’s

investigation and sanction, including the “differential treatment” levied upon him versus Roe, the

“inexplicable rationale” of Princeton’s decision, and “archaic assumptions about gender”

underlying the Panel’s decision. (Pl. Opp’n at 19, 21-25.)

Title LX of the Education Amendment Act of 1972 states, “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

19

assistance.” 20 U.S.C. § 1681(a).° The Third Circuit has explained that Title IX “bar[s] the

imposition of university discipline [when sex] is a motivating factor in the decision to discipline.”

Doe v. Univ. of Scis., 961 F.3d 203, 209 (3d Cir. 2020) (quoting Doe v. Columbia Univ., 831 F.3d

46, 53 (2d Cir. 2016)). In University of Sciences, the Third Circuit adopted a “straightforward

pleading standard” for Title IX claims. 961 F.3d at 209. The Court held that “to state a claim under

Title IX, the alleged facts, if true, must support a plausible inference that a federally-funded college

or university discriminated against a person on the basis of sex.” /d.; see also Doe v. Princeton

Univ. (“Princeton HI’),° 30 F.4th 335, 343 (3d Cir. 2022) (applying the standard from University

of Sciences). Plaintiffs remain “free to characterize their claims however they wish,” using any

indicia of discrimination to support their allegations. Univ. of Scis., 961 F.3d at 209.

In Princeton II, the Third Circuit discussed the “external pressure” facing Princeton,

30 F.4th at 345, which Plaintiff cites and alleges the University faced ahead of his hearing.

Following the Department of Education’s (“DOE”) Dear Colleague Letter in 2011 (“2011 DCL”),

and an investigation by the Office of Civil Rights into Princeton’s Title [IX procedures, colleges

and universities “ushered in a more rigorous approach to campus sexual misconduct allegations.”

Princeton 1, 30 F.4th at 345 (quoting Doe v. Purdue Univ., 928 F.3d 652, 668 (7th Cir. 2019));

see also Univ. of Scis., 961 F.3d at 210. While “‘pressure from [the DOE] and the 2011 Dear

Colleague Letter cannot alone support a plausible claim of Title IX sex discrimination,’ it factors

into the total mix of information supporting a plausible Title [IX discrimination claim.” Princeton

HT, 30 F.4th at 345 (quoting Univ. of Scis., 961 F.3d at 210); see also Doe v. Baum, 903 F.3d 575,

586 (6th Cir, 2018) (“[E]xternal pressure alone is not enough to state a claim that the university

° The parties do not dispute that Princeton receives federal funds and is therefore subject to Title IX’s

strictures.

6 As the parties refer to the Third Circuit’s decision here as “Princeton HI,” the Court will do the same.

12

acted with bias in this particular case.”); Doe v. Univ. of Denver, 952. F.3d 1182, 1193 (10th Cir.

2020) (noting that “evidence of the DCL and the pressure [the University] felt to comply with its

guidance” must be “combined with a ‘particularized something more’ . . . that would indicate that

[the University’s] decision in [the plaintiff's] particular case was based on his gender” (quoting

Doe v. Columbia Coll. Chi., 933 F.3d 849, 856 (7th Cir. 2019))).

Like the plaintiff in in University of Sciences and Princeton III, Plaintiff here catalogs

numerous external pressures on Princeton. (See, e.g., Compl. Jf 56-60 (detailing DCL letter and

the three investigations by the DEO’s Office of Civil Rights (“COCR”) between 2010 and 2014);

{ 63 (OCR claim filed against Princeton in 2016 “alleging Princeton failed to adequately respond

to a female student’s claims of sexual misconduct by a male”); | 64 (noting “Princeton received

widespread attention and pressure when it initially declined to terminate or suspend a male faculty

member accused of sexual misconduct by a female graduate student); J] 76-80 (numerous articles

in student newspaper calling for increased scrutiny of Princeton’s sexual assault polices).) The

Court finds that these pressures are a relevant “factor into the total mix of information,” see

Princeton IT, 30 F Ath at 345, but consistent with Third Circuit caselaw, on its own, insufficient

to meet Plaintiff’s pleading burden. The Court next turns to Plaintiffs specific allegations of

gender bias in Princeton’s investigation in his case.

As Plaintiff claims that his case is factually similar to Princeton IH and University of

Sciences, the Court begins its analysis there. In Princeton HI, the Third Circuit pointed to two

allegations that provided a sufficient inference of gender discrimination for the complaint to

survive dismissal. First, Princeton initially encouraged the plaintiff to seek “mental health

services” after complaining that Jane Roe, his ex-girlfriend, was “harass[ing]” and “spreading false

information” about him. /d. at 340 (citations omitted). In contrast, when Roe complained to the

1A

school about the plaintiff subjecting her to “Intimate Relationship Violence” under the Policy,

Princeton “encouraged Roe to file a formal Title [IX complaint.” /d. at 340, 344, Second, Princeton

treated the students differently when they violated a no-contact order Princeton had implemented

between them. /d. at 340-41. The plaintiff’s violation “was met with formal disciplinary process”

while Roe’s violation “was dismissed as minor.” Jd. at 344. The Third Circuit found that “anti-

male bias” plausibly explained the school’s differential treatment of the two students and that

therefore “the Complaint state[d] a plausible claim of sex discrimination.” Id. at 345,

In University of Sciences, the plaintiff cited allegations beyond “the external pressure”

facing the university following the DCL letter. Univ. of Scis., 961 F.3d at 209-10. There, the male

plaintiff alleged that the University “permitted and encouraged” two female students “to disclose

confidential informational ... to find other women willing to make a complaint against him,” in

clear violation of their written policies. Jd. at 207-08 (citations and quotation marks omitted), In

addition, the university “[e]ngaged in selective investigation and enforcement of [its] policies by

failing to consider [Doe’s]| alcohol consumption and whether [Roe] should have been charged with

violations of [the Policy] if [Doe] was intoxicated when they had sex[.]” /d. at 210. The university

failed to investigate the female complainants even though, the plaintiff alleged, the university

“knew. . . [the two female complainants] violated the Policy.” Jd. at 211. Based on these

allegations, combined with external pressure facing the school, the Third Circuit held the plaintiff

had adequately pled a Title IX claim. Jd.

Tn similar situations, courts within and without the Third Circuit have found male plaintiffs

sufficiently pled Title IX claims to survive a motion to dismiss. See Doe v. Univ. of Denver, 1

F.4th 822, 832, 835 (10th Cir. 2021) (university interviewed eleven of female complainant’s

witnesses but none of the male plaintiff's witnesses and failed to formally investigate any of the

15

twenty-one sexual misconduct complaints brought by men while investigating fourteen complaints

by women during the same period); Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018)

(plaintiff alleged “external pressure on Miami University” and allegations that “every male student

accused of sexual misconduct in the Fall 2013 and Spring 2014 semesters was found responsible

for the alleged violation”); Doe v. Purdue Univ., 928 F.3d 652, 669 (7th Cir. 2019) (panelists never

interviewed male respondent’s witnesses); Doe v. Princeton Univ., No. 19-7853, 2023 WL

1778832, at *7 (D.N.J. Feb. 6, 2023) (university failed to investigate plaintiffs claim that he had

been assaulted by female complainant); Abraham v. Thomas Jefferson Univ., No. 20-2967,

2021 WL 4132566, at *6 (E.D. Pa. Sept. 10, 2021) (supervisor “told [plaintiff] that a man cannot

be sexually assaulted by a woman, and discouraged Plaintiff from making such a claim” (quotation

marks omitted)).

On the other hand, courts have granted motions to dismiss Title IX claims that lack

allegations and evidence of gender bias in the investigations and demonstrate a thorough

investigation. See Verdu v. Trustees of Princeton Univ., No. 20-1724, 2022 WL 4482457, at *4—5

(3d Cir. Sept. 27, 2022) (plaintiff failed to show Title [X violation where he admitted to violation

of University’s policies and “failed to allege that he received different treatment by Princeton than

a similarly situated female”); Doe v. St. Joseph’s Univ., 832 F. App’x 770, 774-75 (Gd Cir. 2020)

(noting panel’s investigation, which failed to question Roe’s credibility or memory, may have been

“shoddy,” but did not give rise to gender bias where “allegations” did not “relate to bias on account

of sex” (quoting Doe y. Columbia Uniy., 831 F.3d 46, 57 (2d Cir. 2016)); Doe v. Princeton Univ.

(“Princeton IP’),’ 790 F. App’x 379, 384 (3d Cir. 2019) (affirming dismissal of Title IX claim

where plaintiff pled conclusory statements that Princeton would have treated him differently if he

7 As the parties do in their briefing, the Court refers to this case as Princeton II.

1G

were a female, failed to plead facts “reflecting that the disciplinary process and results for female

victims are different from men,” and found his “many grievances about how the process was

conducted and how he was treated” did not show “unfavorable treatment due to his sex”); Gendia

v. Drexel Univ., No. 20-1104, 2020 WL 5258315, at *3 (E.D. Pa. Sept. 2, 2020) (no Title Ix

allegations where investigator “assumed Roe’s truthfulness” and made evidentiary determinations

that favored Roe over plaintiff; Saravanan v. Drexel Univ., No. 17-3409, 2017 WL 4532243, at

*4 (B.D. Pa. Oct. 10, 2017) (holding that plaintiff's complaint did not demonstrate Title IX claim

where plaintiff alleged ‘“‘an adverse and erroneous outcome” and “blanket allegations of

discrimination” (citations omitted)).

Even where there are allegations of bias in favor of sexual assault victims, without further

allegations specifically regarding gender, courts have held these claims have failed to adequately

plead a Title IX claim. See Univ. of Denver, 952 F.3d at 1197 (no Title LX claim where the

“evidence demonstrates at most that [university] had an anti-respondent or pro-complainant bias,

which is insufficient to create an inference of anti-male bias.”); Sahm v. Miami Univ., 110 F. Supp.

3d 774, 778 (S.D. Ohio 2015) (“Demonstrating that a university official is biased in favor of the

alleged victims of sexual assault claims, and against the alleged perpetrators, is not the equivalent

of demonstrating bias against male students.”’); Haley v. Virginia Com. Univ., 948 F. Supp. 573,

579 (B.D. Va. 1996) (“[A]llegations at best reflect a bias against people accused of sexual

harassment and in favor of victims and indicate nothing about gender discrimination.”’).

Here, Plaintiff’s allegations do not give rise to a Title IX claim. The Complaint is devoid

of allegations that Princeton had a history of only investigating female complainants and ignoring

male student complaints. Nor does Plaintiff allege that he lodged his own complaints of sexual

harassment or assault with the University that were ignored. Plaintiff does not allege that the

17

University, in investigating Roe’s complaint, failed to interview him or his witnesses. In fact,

Princeton interviewed twenty-six (26) witnesses in total, including “nine connected to” Plaintiff,

and interviewed Plaintiff and Roe on repeated occasions. (Compl. {J 252, 272, 280; see also id. {

166 (“Following their interviews of Plaintiff and Roe, the panel interviewed “a large number of

witnesses .. . both those friendly to [Plaintiff]” and Roe.).) Furthermore, the Complaint does not

allege that any investigator, or any University personnel at all, made comments during the

investigation suggesting they were treating him differently than another respondent based on his

and the complainant’s gender.®

At most, Plaintiff alleges that Princeton demonstrated gender bias when it chose to believe

Roe’s story over his due to “archaic assumptions,” including that the panel failed to believe that

Roe could be the aggressor as a woman. (Compl. 9 319.) Such conclusory statements cannot serve

as the basis for a complaint to survive dismissal. See Degrazia, 2008 WL 2456489, at *3.

Moreover, to the extent Plaintiff attempts to proceed under an “archaic assumption” theory, this

theory is not available in suits concerning sexual assault allegations. See Baum, 903 F.3d at 587—

88 (noting “archaic assumptions about the sexes” do not “appl[y] in the context of university of

disciplinary proceedings” but rather only potentially in cases involving allegations of equal

opportunity in student athletics); Saravanan, 2017 WL 4532243, at *7 (same).

Lastly, the Court is loathe to accept the assertion that the panel chose to believe Roe’s

account over Plaintiff’s as evidence of gender bias given the Supreme Court’s admonition that

“courts should refrain from second-guessing the disciplinary decisions made by school

administrators.” Davis ex rel. LaShonda D. vy. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999).

Plaintiff states that the panel asked his witnesses “whether they had spoken to Doe or his lawyers about

their testimony, or whether Doe had otherwise influenced their testimony” but did not ask any of Roe’s

witnesses this question. (Compl. J 280.) This single question to Plaintiffs witnesses does not demonstrate

gender bias.

19

Princeton, here, conducted a thorough investigation, which included granting Plaintiffs first

appeal, and then in large measure found in his favor on a number of the most egregious allegations

which resulted in a significantly reduced sanction. While Plaintiff may have disagreed with the

outcome of the second decision on remand, he has not connected the unfavorable decision to any

indicia of gender bias. As such, the Court grants Plaintiffs motion to dismiss the Title IX claim

and dismisses Plaintiff's Count One claim.

B. BREACH OF CONTRACT?

In Count Two, Plaintiff asserts a breach of contract claim. (See Compl. Jf 322-37.)

Plaintiff alleges that he and Princeton were parties to a contract, which included the University’s

RRR. Ud. § 323.) Plaintiff alleges that Princeton breached this contract by failing to apply the

preponderance of the evidence standard to its decision to discipline Plaintiff and failed to provide

“an impartial, unbiased, and adequately trained panel.” Ud. 327-37.) Defendant contends that

the RRR is not subject to a pure contract analysis, but rather is at most a “quasi-contract.”

(Pl. Opp’n at 28-29.) To maintain a breach of contract “in the student disciplinary context,”

Defendant argues that a plaintiff must show a “substantial” departure from the University’s

The Court finds, at this stage of the ligation, that diversity jurisdiction is satisfied such that the Court has

jurisdiction to hear Plaintiff’s state law claims. Under 28 U.S.C. § 1332, “[t]he district courts shall have

original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs, and is between... citizens of different States.”” However, in order for the

federal court to have diversity jurisdiction, there must be “‘complete diversity’ of all the parties, meaning

that ‘in cases with multiple plaintiffs or multiple defendants, no plaintiff [can] be a citizen of the same state

as any defendant.” Ibrahim, 2020 WL 4251477, at *2 (quoting Zambelli Fireworks Mfg. Co. v. Wood, 592

F,3d 412, 419 Gd Cir. 2010)) (alteration in original), Here, Plaintiff alleges that Defendant is deemed a

citizen of New Jersey, whereas Plaintiff “is a citizen of a State other than New Jersey.” (Compl. § 34; see

Lincoln Ben. Life Co. v. AETI Life, LLC, 800 F.3d 99, 107-10 (3d Cir. 2015) (holding that a party may

establish diversity jurisdiction in its complaint by alleging that plaintiff and defendant are citizens of

different states)). Moreover, Plaintiff avers the amount in controversy exceeds $75,000. (Id.) As such, the

requirements for diversity jurisdiction are satisfied.

10

policies. Ud. at 29.) Defendant asserts that it afforded Plaintiff the requirements under the RRR,

and Plaintiffs disagreement with its outcome cannot sustain a claim for breach. Ud. at 30-33.)

The Third Circuit’s Opinion in Princeton ITT dictates the outcome here. 30 F.4th at 335.

There, the Third Circuit discussed the very Princeton policies at issues here. /d. at 346. The Court

concluded that “New Jersey law requires at least that the school ‘follow its own established

procedures’ and that those procedures be “fundamentally fair.’” Jd. (quoting Hernandez vy. Don

Bosco Preparatory High, 730 A.2d 365, 376 (N.J. Super. Ct. App. Div. 1999)). The Court held

that “the Princeton Policy guarantees that, after considering the “‘totality of the facts and

circumstances’... ‘[t]he investigative panel will . . . determine, by a preponderance of the

evidence, whether [the] policy was violated.’” Jd. at 347 (citations omitted). This standard, as the

Third Circuit explained, “requires proof by the ‘greater weight of the evidence.’” Jd. (quoting

Preponderance of the Evidence, Black’s Law Dictionary (11th ed. 2019)). The Third Circuit also

concluded that Princeton’s Policy that “[t]he panelists will... be impartial and unbiased” merely

required that the adjudicators “do[] not favor one side or the other” and approach the matter

“without a prejudice or inclination in favor of one party.” /d. (citations omitted and emphasis in

original).

Applying this standard to the complaint in Princeton UT, the Third Circuit held that the

plaintiff adequality pled facts to support his breach of contract claim as the “facts suggest that

Princeton failed to provide [the plaintiff] the promised and fair impartial proceeding.” Id. at 348.

The Third Circuit cited to allegations in the complaint that Princeton:

failed to ‘consider[] the entirety of the evidence with a

neutral gaze,’ ‘disregarded exculpatory evidence . . . and rendered

inconsistent and skewed credibility determinations[,] ‘applied

inconsistent standards to assess [the parties’] credibility,’

‘overlooked or minimized glaring and substantial factors that would

tend to undermine [complainant’s] veracity ... including ... her

WD

motivations to lie,’ and ‘disregarded compelling exculpatory

evidence which contradicted [complainant’s] allegations.’

Id. at 347-48 (citations omitted).

Guided by the Third Circuit’s analysis, the Court reaches a similar conclusion here. At this

stage in the litigation, and accepting the allegations in the Complaint as true, Plaintiff argues that

Princeton violated its own policies and thus breached its contract with Plaintiff. (Compl. [J 327—

37.) Plaintiff alleges that Defendant “was aware of a large amount of evidence that called Roe’s

credibility into question and undermined her claim .. . [and] was further aware that she changed

her story;” however, the panel “still found against Doe, based on a rationale that was incoherent

and unsupported by the evidence.” Cd. §] 328-30.) Moreover, the Complaint alleges that

Defendant “flipped the burden of proof’ and thus, the panel’s findings, according to Plaintiff,

“were arbitrary and capricious, without reasoned basis, ignored contrary evidence, and were the

products of pre-determined bias in favor of Roe.” Ud. Jf 330-31.) For these reasons, Plaintiff

claims that Defendant failed to apply the preponderance of the evidence standard. (/d.)

In addition, Plaintiff alleges, inter alia, that Princeton failed to interview a witness whose

statement would allegedly have undermined Roe’s motivation, applied inconsistent credibility

determinations, and “remanded the matter to th{e] same hearing panel [notwithstanding] . . . that

it had unfairly collected and analyzed the evidence.” Ud. JY 290-99, 333-34.) Accepting these

allegations as true, the Court finds that Plaintiff alleges Defendant failed to provide an impartial,

unbiased, and adequality trained panel. Therefore, at this early pre-discovery posture, the Court

denies Defendant’s Motion to Dismiss Plaintiff's breach of contract claim.!°

‘0 The Court does not read Princeton IIT as narrowly as Defendant contends, namely that the Third Circuit’ s

analysis focuses on the penalty and the school’s investigation into the conduct. (See Reply at 11-22.)

Defendant is correct that the penalty in Princeton IJ was more severe than the case at bar because that

plaintiff was expelled. 30 F.4th at 346. However, as the Third Circuit has explained, “‘students have a

C. BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

In Count Three, Plaintiff asserts a claim for breach of the implied covenant of good faith

and fair dealing. (Compl. {§ 338-43.) Defendant moves to dismiss this Count, arguing that

Princeton’s Policy is not a “traditional contract,” and therefore, “[a] good faith and fair dealing

claim, which requires performing the contract’s literal terms (even while destroying the benefit of

the bargain) is thus misplaced.” (MTD at 34.) Defendant contends that moreover, Plaintiff fails to

demonstrate that Defendant acted in “bad faith” and cannot bring both a breach of contract and

good fair and fair dealing claim on the same conduct. (/d. at 35-36.)

In New Jersey, the implied covenant of good faith and fair dealing is a “component of every

contract” that requires both parties to a contract act in “good faith... [by] adher[ing] to community

standards of decency, fairness, or reasonableness.” Iliadis v. Wal-Mart Stores, Inc., 922 A.2d 710,

722 (N.J. 2007) (citations and quotation marks omitted); see Kenny v. Onward Search, No. 15-

456, 2015 WL 1799593, at *3 (D.N.J. Apr. 15, 2015) (“[A] contract[] include[s] an implied

covenant that the parties to the contract will act in good faith.”). This directive requires that

“neither party shall do anything which will have the effect of destroying or injuring the right of

substantial interest at stake when it comes to school disciplinary hearings for sexual misconduct,’ .. .

because the consequences are potentially dire and permanent: ‘[a] finding of responsibility for a sexual

offense can have a lasting impact on a student's personal life, in addition to his educational and employment

opportunities, especially when the disciplinary action involves a long-term suspension.’” Univ. of Scis., 961

F.3d at 213 (first quoting Baum, 903 F.3d at 582, then quoting Miami Univ., 882 F.3d at 600) (citations and

quotations omitted). A school’s punishment, even falling short off expulsion, can still have long lasting

implications, In this case, Plaintiff alleges that he is subject to a permanent reprimand because the censure

sanction will appear on Plaintiffs school records. (Compl. { 311.)

In any event, the outcome in Princeton If did not turn on the punishment but rather the plaintiff's

allegations that Princeton had failed to apply the proper standards in its investigation and adjudication. 30

F.4th at 346-48. In addition, Princeton’s treatment of the no-contact orders, as discussed above, in part led

the Third Circuit to deny the Title IX claim; however, the Third Circuit did not rely on that allegation to

deny the breach of contract claim. See Id.

the other party to receive the fruits of the contract.” Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d

575, 587 (N.J. 1997) (citations and quotation marks omitted).

The Court again turns to Princeton II. There, the Third Circuit held that the plaintiff

adequately pled a breach of good faith and fair dealing claum where the Complaint alleged that

“Princeton ‘[s]ubject[ed] [Doe] to a discriminatory disciplinary process,’ ‘[d]isregard[ed]

exculpatory evidence for [Doe] and incriminating evidence against [Roe],’ ‘constru[ed] all

discrepancies and inconsistencies in [Roe's] favor,’ and “ignor[ed] evidence corroborative of

[Doe's] counter claims.’” Princeton ITI, 30 F.4th at 348 (citations omitted). While this claim and

plaintiffs breach of contract claim “share[d] some events and circumstances,” the Court held they

were not “redundant” and thus both claims could proceed. /d. (quoting Berlin Med. Assocs., P.A.

v. CMI N.J. Operating Corp., No. A-3034-04TS 2006 WL 2162435, at *10 (N.J. Super. Ct. App.

Div. Aug. 3, 2006)). However, while the Third Circuit explained that “factual overlap is not fatal,”

Princeton HI, 30 F.4th at 348, it also clarified that certain of the plaintiff’s allegations “would fail

because [the plaintiff] pleads the same fact in support of his contract claim.” Id. at 348 n.16; see

also Ohm Systems, Inc., v. Senergene Solutions, LLC, No. 23-1340, 2023 WL 8437279, at *3

(D.N.J. Dec. 5, 2023) (denying breach of good faith claim where “Plaintiff [did] not plead any

additional facts to distinguish the claim from its breach of contract claim’); Red Hawk Fire & Sec.,

LLC v. Siemens Indus. Inc., 449 F. Supp. 3d 449, 463 (D.N.J. 2020) (“The plaintiff cannot maintain

a breach of the implied covenant of good faith and fair dealing claim that is duplicative of its

breach of contract claim.”).

While the Court is mindful that “factual overlap is not fatal,” and, at the motion to dismiss

posture, the Court “views[s] the pleadings with liberality,” Princeton LI, 30 F.4th at 348 (citations

omitted), Plaintiff's Complaint on Count Three seeks clearly foreclosed relief. Of the 112-page

92

complaint, consisting of 350 paragraphs, the Complaint dedicates just six (6) numbered paragraphs

to Count Three, which do not allege any additional or new facts and explicitly concede that this

cause of action is premised on the identical facts which premise the breach of contract claim. (See

Compl. J 338 (“Mr. Doe incorporates by reference all of the preceding paragraphs of this

Complaint as though fully set forth herein.”); Ud. { 340 (“For all the reasons stated in Count II,

the University breached the covenant of good faith and fair dealing.”’).) Thus, by Plaintiff's own

acknowledgment, Plaintiff “pleads the same fact[s] in support of his contract claim.” Princeton

IIT, 30 F.4th at 348 n.16. Accordingly, the Court grants Defendant’s Motion to Dismiss the breach

of the covenant of good faith and fair dealing claim and dismisses Plaintiff's Count II.

D. NEGLIGENCE

Plaintiff asserts a claim for negligence in Count Four. (Compl. J] 344-50.) Defendant

moved to dismiss on the grounds that Plaintiff's claim is barred by the New Jersey Charitable

Immunity Act (““NJCIA”), and that even if it were not, Plaintiff failed to allege both a duty of care

and a breach of same. (MTD at 36-37.) In opposition, Plaintiff contends that the NJCIA only bars

simple negligence, rather than gross negligence claims. (Pl Opp’n at 28.)

The NJCIA states that:

No nonprofit corporation, society or association organized

exclusively for religious, charitable or educational purposes .. . shall

... be liable to respond in damages to any person who shall suffer

damage from the negligence of any agent or servant of such

corporation, society or association, where such person is a

beneficiary, to whatever degree, of the works of such nonprofit

corporation...

N.J. Stat. Ann. § 2A:53A~-7(a). Numerous courts have held that Princeton is entitled to immunity

from negligence claims under the NJCIA. See Shaw v. Femenella & Assocs., No. 03-5895, 2005

WL 3320757, at *4 (D.N.J. Dec. 7, 2005) (“It is undisputed that Princeton is a non-profit

aA

corporation organized exclusively for educational purposes.”); Lax v. Princeton Univ., 779 A.2d

449, 452 (NJ. Super. Ct. App. Div. 2001) (holding Princeton entitled to immunity under

the NJCIA).

The Third Circuit also has had the opportunity to consider a negligence claim against

Princeton University stemming from its investigation into allegations of sexual assault. See

Princeton I, 790 F. App’x at 386. The Third Circuit explained that “an entity qualifies for

charitable immunity when it... was promoting [religious, charitable, or educational] objectives

and [for non-profit] purposes at the time of the injury to plaintiff who was then a beneficiary of

the charitable works.” /d. at 386 (quoting O’Connell v. State, 795 A.2d 857, 860 (N.J. 2002)).

Moreover, in Princeton IT, the Third Circuit held that “Princeton recognizes the harm of

sexual misconduct, and, to further its educational mission, Princeton prohibits sexual misconduct

within its community, investigates the claims, and disciplines violators. As a student, Doe is a

beneficiary of these protections and procedures.” Jd. at 387. Therefore, the Third Circuit held that

Princeton was immune from a negligence claim “arising from its investigation and adjudication of

[the plaintiff's] sexual assault complaint.” Jd. Applying Princeton I here, the Court finds that

Plaintiff's negligence claim is barred by the NJCIA.

In his opposition brief, Plaintiff contends, for the first time, that Defendant 1s liable for

gross negligence through its investigation. (See Pl. Opp’n at 28-29.) However, gross negligence

is not pled in the negligence count of Plaintiff's Complaint. (See Compl. Jf 344-50.) A plaintiff

cannot adequately allege gross negligence simply by invoking the phrase “gross negligence” in his

opposition brief. See Doe v. Princeton Univ., No. 19-7853, 2020 WL 7383192, at *7 (D.N.J.

Dec. 16, 2020) (citing Lindstrom v. St. Joseph's Sch. for the Blind, Inc., No. CV 15-8084, 2016

WL 5723658, at *10 (D.N.J. Sept. 30, 2016)). Further, “at is axiomatic that the complaint may not

Ae

be amended by the briefs in oppositionto a motion to dismiss.” See Pennsylvania ex

rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988). As such, Plaintiff cannot raise

a new claim in his opposition brief to amend his complaint. Therefore, the Court grants

Defendant’s Motion to Dismiss the simple and gross negligence claims and dismisses Defendant’s

Count Four,"!

the extent the Court construes Plaintiff’s Complaint as asserting a gross negligence claim, this claim

still fails. “The essential elements to state a claim for negligence and gross negligence are identical: (1) the

existence of a duty owed by Defendants towards Plaintiffs; (2) a breach of that duty by Defendants; (3) that

Defendants’ breach caused Plaintiffs’ injuries; and (4) that Plaintiffs suffered damages as a result.” Powell

Seton Hall Univ., No, 21-13709, 2022 WL 1224959, at *4 (D.N.J. Apr. 26, 2022) (citing Sines v. Darling

Ingredients Inc., No. 19-19121, 2020 WL 5015488, at *5 (D.N.J. Aug, 25, 2020)). The Court agrees with

the recent holding by the Honorable Claire C. Cecchi that there is no “authority indicating that a private

university or its employees owe a certain duty of care to its students under New Jersey law when carrying

out disciplinary procedures.” Donohue v. Capella Univ., LLC, No, CV 22-5634, 2023 WL 5425503, at *7

(D.N.J. Aug. 22, 2023). Because the University owes Plaintiff no duty of care under New Jersey law, his

gross negligence claim must fail.

YA

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED in part, and

DENIED in part. An appropriate Order will accompany this Opinion. On,

~~) f ( )

gf 4 oo

f fo of QU

lf fy a .

ROBERT KIRSCH

UNITED STATES DISTRICT JUDGE

Dated: December 19, 2023

77