SWARTZ v. THE BOARD OF TRUSTEES AT THE UNIVERSITY OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROGER SWARTZ, et al., :

: CIVIL ACTION

Plaintiffs, : NO. 21-4330

:

v. :

:

THE BOARD OF TRUSTEES AT THE :

UNIVERSITY OF PENNSYLVANIA, et al. :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. MARCH 23, 2022

Before the Court are three motions to dismiss the

complaint filed by pro se Plaintiff, Roger Swartz, which he

filed on his own behalf and on behalf of his children. The

motions to dismiss were filed by the three groups of Defendants:

(1) “the Penn Defendants,” consisting of the Board of Trustees

at the University of Pennsylvania, Amy Gutmann, and Scott

Diamond; (2) “the RBC Defendants,” consisting of Reaction

Biology Corporation, Haiching Ma, Kurumi Horiucki, Robert

Hartman, and Conrad Howitz; and (3) “the Princeton Defendants,”

consisting of the Trustees of Princeton University, David

MacMillan, Abigail Doyle, and Diane Carrera.

Swartz’s September 30, 2021 complaint and November 30,

2021 sealed additional count1 span 82 pages and 25 claims,2 and

allege a broad if unclear conspiracy between the Defendants to

ruin Swartz’s and his family’s lives. The actual legal theories

raised by Swartz are largely indiscernible or legally

incognizable. This alone warrants dismissal under Federal Rule

of Civil Procedure 8 for failure to provide a “short plain

statement” which fits the allegations to the elements of

recognized causes of action. Fed. R. Civ. P. 8(a)(2). However,

Swartz’s complaint must also be dismissed for a several of other

reasons, most importantly because his claims are time-barred.

I. FACTUAL AND PROCEDURAL HISTORY3

In July 2008, Swartz enrolled as a graduate student

at Princeton University and was assigned to Defendant David

MacMillan as a lab assistant. Swartz and MacMillan had various

disagreements and, in November 2008, MacMillan asked Swartz to

leave the lab and find a new advisor. While moving his

belongings from the lab, Defendant Mark Scott, another student,

1 The parties dispute whether the sealed additional count was

properly served. However, as discussed below, because Swartz

brought the additional count on behalf of his child, he cannot

maintain it.

2 Swartz lists twenty-seven counts, however, the complaint lacks

counts twelve and twenty-six.

3 The facts in the complaint are taken as true and viewed in the

light most favorable to Swartz. DeBenedictis v. Merrill Lynch &

Co., 492 F.3d 209, 215 (3d Cir. 2007).

told Swartz that there would be trouble if Swartz did not beg

MacMillan to take him back. Swartz viewed this as a threat.

Rather than beg MacMillan, Swartz agreed to work in

the lab of Defendant Abigail Doyle, who was also a professor at

Princeton. Defendant Diana Carrera, a student working with

MacMillan, had lunch with Doyle one afternoon and, according to

Swartz, turned her against Swartz pursuant to MacMillan’s

directions. Swartz contends that Doyle then sought to undermine

him and his work in Doyle’s lab.

Swartz further contends that Doyle told him that she

would only recommend him for jobs at labs. Swartz perceived this

to mean that: (1) “Abigail Doyle essentially was stating to

Roger Swartz that she would make misrepresentations or fraud . .

. by controlling how Roger Swartz would be portrayed;” (2)

“Abigail Doyle essentially told Roger Swartz that he could try

to apply and interview for other employment opportunities, but

they would not result in an actual job;” and (3) “Abigail Doyle

essentially stated to Roger Swartz that she would only present

him in a light to get specific [job] types clearly implying that

she would portray him in a different light to prevent him from

obtaining another type of job.” Compl. ¶ 52, ECF No. 1. Swartz

contends that Doyle last reiterated this position to him on

March 26, 2019.

In 2010, after a disagreement regarding Swartz’s

thesis, Doyle told him that she could no longer be his advisor.

Swartz further claims that Doyle and other unspecified

individuals at Princeton spread false information about Swartz

that hindered him from finding employment.

Swartz enrolled at Drexel University in the fall of

2010, but claims “the situation at Princeton found its way into

the graduate program at Drexel University. This ultimately

caused Roger Swartz to have to leave the University. . . .”

Compl. ¶ 33, ECF No. 1. Drexel is not a Defendant in the case.

Thereafter, Swartz began a test prep and tutoring business.

Swartz claims that his clients often acted suspiciously and

suggests they were planted by the Princeton Defendants or the

University of Pennsylvania (“Penn”) to injure Swartz.

Swartz was not a student at Penn nor did he work

there. However, he claims that Doyle’s mother, Defendant Amy

Gutmann, who was the president of Penn, acted to further Doyle’s

grudge and to injure Swartz and his family. Swartz also contends

that individuals at Penn hacked his computer and phone to obtain

unspecified personal information. Swartz further alleges that

the Penn Defendants blocked his employment opportunities in

unspecified ways.

In 2011, Swartz’s ex-wife, E.S., was hired by Reaction

Biology Company (“RBC”). Swartz claims that RBC hired her in

order to injure Swartz and his family. Specifically, Swartz

alleges that Defendant Scott Diamond, a faculty member at Penn

and co-founder of RBC, directed Defendant Haiching Ma to hire

E.S. to work at RBC on a “bogus” project at Gutmann’s behest. At

RBC, Swartz alleges that E.S. was verbally abused by Defendant

Kurumi Horiuchi and sexually harassed by Defendant Robert

Hartman. Swartz styles these allegations as “employment rape.”

Swartz further claims that Defendant Conrad Howitz also engaged

in unspecified “employment rape” activities against E.S. while

working at RBC. E.S.’s employment at RBC ended in 2012.

Swartz contends that all of these events occurred

prior to the end of 2013 with the exception that Doyle last told

Swartz on March 26, 2019 that she would only provide him

recommendations for lab-based jobs.

Swartz filed his complaint on his own behalf and on

behalf of his children on September 30, 2021. E.S., Swartz’s ex-

wife, is not a party. Thereafter, the Defendants filed their

three motions to dismiss.

II. LEGAL STANDARD

A party may move to dismiss a complaint for failure

to state a claim upon which relief can be granted. Fed. R. Civ.

P. 12(b)(6). When considering such a motion, the Court must

“accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the non-moving party.”

DeBenedictis, 492 F.3d at 215 (internal quotation marks

omitted).

To withstand a motion to dismiss, the complaint’s

“[f]actual allegations must be enough to raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). The pleadings must contain sufficient

factual allegations so as to state a facially plausible claim

for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co.,

583 F.3d 187, 190 (3d Cir. 2009). “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.” Id. (quoting

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).

III. DISCUSSION

A. Preliminary Matters

The Court concludes that Swartz’s claims are time-

barred. But, before discussing that conclusion, the Court must

address two other matters that are detrimental to the complaint.

First, as a pro se plaintiff, Swartz may not bring

claims on behalf of his children.

The right to counsel belongs to the children, and, under

the cases from the Second and Tenth Circuits . . . the

parent cannot waive this right.

In accord with [these decisions], we hold that Osei–

Afriyie was not entitled, as a non-lawyer, to represent

his children in place of an attorney in federal court.

Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876,

883 (3d Cir. 1991). Thus, the claims Swartz purports to raise on

behalf of his children must be dismissed.

Second, Swartz’s overarching claim seems to be that

the Defendants’ actions violated his Thirteenth and Fourteenth

Amendment rights. However, Swartz has failed to adequately

allege that any of these Defendants are state actors, which is

required to maintain constitutional claims under 42 U.S.C. §

1983. Rendell-Baker v. Kohn, 457 U.S. 830, 835 (1982) (“A claim

may be brought under § 1983 only if the defendant acted ‘under

color’ of state law”).

Swartz merely alleges that the Princeton and Penn

Defendants receive funds from the government which allows them

“unbridled liberty” to “to wield power they would not otherwise

have.” See Resp. to Princeton Def.s’ Mot. at 42-43, ECF No. 68-

1. The Court concludes that such allegations are insufficient to

pursue a claim under Section 1983 for a constitutional

violation. The Supreme Court has repeatedly held that extensive

regulation or even total public funding do not necessarily make

otherwise private actors into public actors. See Blum v.

Yaretsky, 457 U.S. 991, 1004-05 (1982); Rendell-Baker, 457 U.S.

at 840-43; Jackson v. Metro. Edison Co., 419 U.S. 345, 358–59

(1974). Thus, Swartz’s constitutional claims must be dismissed.

B. Statutes of Limitations

Swartz filed his complaint on September 30, 2021. It

is difficult to divine the legal theories under which Swartz is

attempting to proceed. However, under any reasonably imaginable

theory, Swartz’s claims are time-barred because he alleges that

the underlying acts occurred before the end of 2013. The only

allegation after this time period is that Doyle reiterated to

Swartz on March 26, 2019 that she would only provide him

recommendations for lab-based jobs.

To the extent Swartz is alleging claims of fraud or

negligent misrepresentation, computer hacking, defamation,

intention infliction of emotional distress, or another personal

injury tort, all of the alleged conduct, except the 2019

statement, fall outside of any possible statute of limitations.4

4 Penn and RBC are located in Pennsylvania while Princeton is

located in New Jersey. Under either state’s laws, Swartz’s

claims are time-barred. Pennsylvania and New Jersey have a two-

year statute of limitations for personal injury claims,

including intentional infliction of emotional distress. 42 Pa.

Cons. Stat. Ann. § 5524(7); N.J. Stat. Ann. § 2A:14–2.

Defamation has a one-year statute of limitation in both states.

42 Pa. Cons. Stat. Ann. § 5523; N.J. Stat. Ann. § 2A:14-3. The

Computer Fraud and Abuse Act has a two-year statute of

limitations. 18 U.S.C. § 1030(g). Finally, Pennsylvania has a

two-year statute of limitations for fraud while New Jersey’s

limit is six years. 42 Pa. Cons. Stat. Ann. § 5524(7); N.J.

Stat. Ann. § 2A:14–1. Assuming New Jersey law applies to

Swartz’s claim regarding Doyle’s 2019 statement, which Swartz

has clarified is a species of fraud claim, it is the only

allegation that is not facially time-barred.

Moreover, while the Court has already explained why

Swartz’s constitutional claims fail, the Court notes that it

Moreover, and as discussed more fully below, Doyle’s 2019

reiteration of her position that she would only recommend Swartz

for employment in labs does not affect the timeliness of that

claim since Swartz first learned of this alleged harm in 2010,

when Doyle first informed him of her position.

In his complaint, Swartz asserts that “[t]his case is

within the statute of limitations since Roger Swartz has only

recently within the last 6 months become familiar with the law

(see sealed document for a more extensive explanation) as it

pertains to this suit.”5 Compl. ¶ 23, ECF No. 1. Ignorance of the

law, however, does not toll the statute of limitations. Ross v.

Varano, 712 F.3d 784, 799–800 (3d Cir. 2013) (“The fact that a

petitioner is proceeding pro se does not insulate him from the

‘reasonable diligence’ inquiry and his lack of legal knowledge

or legal training does not alone justify equitable tolling.”).

In his response briefs, Swartz also erroneously argues

that Section 1983 claims, and their underlying tort claims, have

no statute of limitations. This theory is simply incorrect.

Randall, 919 F.3d at 198 (“Section 1983 has no statute of

limitations of its own . . . . Rather, it borrows the underlying

would have applied the applicable statute of limitations for

personal injury torts to the constitutional claims since Section

1983 does not provide its own statute of limitations. Randall v.

City of Phila. Law Dep’t, 919 F.3d 196, 198 (3d Cir. 2019).

5 The Court notes that Swartz’s sealed additional count does not

expand on this theory.

state’s statute of limitations for personal-injury torts.”)

Finally, Swartz argues generally that the discovery

rule, continuing violations doctrine, or equitable tolling

should apply to his claims, but fails to argue these theories

with any specificity. Nonetheless, the Court will briefly

address the three doctrines.

“[U]nder the discovery rule the statute of limitations

begins to run ‘when the plaintiff discovers, or with due

diligence should have discovered, the injury that forms the

basis for the claim.’” Stephens v. Clash, 796 F.3d 281, 288 (3d

Cir. 2015) (quoting William A. Graham Co. v. Haughey, 568 F.3d

425, 433 (3d Cir. 2009)). Swartz unconvincingly argues that he

could not have been aware of his injuries prior to filing the

suit because “[i]n some sense there was a loss of full

consciousness by plaintiff Roger Swartz and by E.S. because full

consciousness is something that is enabled through having ones

[sic] 42 U.S.C. § 1983 rights fully accessible.” Resp. to Penn

Def.s’ Mot. at 14, ECF No. 13.

Despite this claim, the Court concludes that based on

the allegations in his complaint, Swartz knew or should have

known of the alleged injuries before the end of 2013. “ A

plaintiff’s ignorance regarding the full extent of his injury is

irrelevant to the discovery rule’s application, so long as the

plaintiff discovers or should have discovered that he was

injured.” Stephens, 796 F.3d at 288. This maxim also explains

why Doyle’s 2019 reiteration does not save Swartz’s claim:

Swartz knew of Doyle’s position, and, thus, the alleged injury,

since 2010.

“To establish that a continuing violation theory

should apply to their case, the Plaintiffs must show (1) that at

least one act occurred within the statutory period, and (2) that

prior conduct was not isolated or sporadic, but was part of a

continuing, ongoing pattern.” King v. Twp. of E. Lampeter, 17 F.

Supp. 2d 394, 416 (E.D. Pa. 1998), aff’d, 182 F.3d 903 (3d Cir.

1999) (citing West v. Phila. Elec. Co., 45 F.3d 744, 754–755

(3rd Cir. 1995)). “However, if the prior events should have

alerted a reasonable person to act at that time, the continuing

violation theory will not overcome the relevant statute of

limitations.” Id. (citing Hicks v. Big Brothers/Big Sisters of

America, 944 F. Supp. 405, 408 (E.D. Pa. 1996)). Here, the only

alleged act arguably inside a relevant statutory period is

Doyle’s 2019 statement. As discussed, the statement is a

reiteration of a position Doyle gave Swartz in 2010. Doyle’s

prior statements on this issue, to the extent actionable, should

have “alerted a reasonable person to act.” Id.

“Equitable tolling of a statute of limitations may

apply where a complaint succeeds a filing deadline through

either the complainant’s benign mistake or an adversary’s

misconduct.” United States v. Midgley, 142 F.3d 174, 178–79 (3d

Cir. 1998) (citing Irwin v. Dept. of Veterans Affairs, 498 U.S.

89, 96 (1990)). “[E]quitable tolling may be appropriate if (1)

the defendant has actively misled the plaintiff, (2) if the

plaintiff has ‘in some extraordinary way’ been prevented from

asserting his rights, or (3) if the plaintiff has timely

asserted his rights mistakenly in the wrong forum.” Id. at 179

(quoting Kocian v. Getty Refining & Marketing Co., 707 F.2d 748,

753 (3d Cir. 1983)).

Swartz argues that his prior ignorance of the law and

the fact that the alleged Fourteenth Amendment violations robbed

him of his “will to act,” similar to “a person that has been

knocked unconscious and placed in a coma without any legal

representation. . . . That is[,] Plaintiff’s perception of these

rights were in a state of coma—even though other aspects of

their consciousness were active—due to their rights being

curtailed by [the] Defendants.” Resp. to Penn Def.s’ Mot. at 13-

14, ECF No. 13. Again, ignorance of the law will not act to

trigger equitable tolling. See Ross, 712 F.3d at 799–800.

Moreover, the Court finds no merit in Swartz’s theory that

Fourteenth Amendment injuries create an extraordinary situation

where individuals are stripped of their volition to seek

redress. Instead, the Court finds that Swartz has not diligently

pursued his rights, allowing any applicable statutes of

limitation to run out on his claims.

C. Fraud Claim based on Doyle’s 2019 Statement

As stated, Swartz has failed to adequately plead any

of his claims. However, the Court finds it unnecessary to delve

into the merits of most of Swartz’s claims given that they are

time-barred. Nonetheless, since Doyle’s 2019 statement is

facially within the six-year New Jersey statute of limitations

for fraud (but still not actionable as discussed above), and out

of an abundance of caution, the Court will briefly discuss the

merits of this claim, which is found in Count II of the

complaint. Count II is entitled:

After no longer being an employee or paid graduate

Student of Princeton University Abigail G. Doyle

undermined the employment rights of Roger B. Swartz by

verbally stating to him that she would confine him to

particular jobs opportunities restricting

recommendations that were limited to working in a lab

thereby undermining the legal rights of Roger Swartz and

also verbally stating that she would fradulently [sic]

misrepresent Roger Swartz and subject him to a form of

involuntary servitude violating his 13th amendment

rights.

Compl. at p. 41, ECF No. 1.

Swartz alleges in Count II that “[w]hen Roger Swartz

requested Abigail Doyle write him a letter of recommendation for

employment opportunities Abigail Doyle verbally told Roger

Swartz she would only support him to work in a lab restricting

him from other opportunities.” Id. ¶ 51. Swartz perceived this

to mean that: (1) “Abigail Doyle essentially was stating to

Roger Swartz that she would make misrepresentations or fraud . .

. by controlling how Roger Swartz would be portrayed;” (2)

“Abigail Doyle essentially told Roger Swartz that he could try

to apply and interview for other employment opportunities, but

they would not result in an actual job;” and (3) “Abigail Doyle

essentially stated to Roger Swartz that she would only present

him in a light to get specific [job] types clearly implying that

she would portray him in a different light to prevent him from

obtaining another type of job.”6 Id. ¶ 52. Swartz alleges that

Doyle last reiterated this stance on March 26, 2019. Id. In his

response briefs, Swartz has clarified that this is a fraud

claim.7

The parties agree that under New Jersey law, common-

law fraud requires: “(1) a material misrepresentation of a

presently existing or past fact; (2) knowledge or belief by the

defendant of its falsity; (3) an intention that the other person

rely on it; (4) reasonable reliance thereon by the other person;

and (5) resulting damages.” Gennari v. Weichert Co. Realtors,

6 That Swartz uses the word “essentially” in connection with

these three statements indicates to the Court that Doyle did not

actually make these utterances.

7 See Resp. to Princeton Def.s’ Mot. at 18, ECF No. 68-1

(“Princeton University defendants’ motion can leave one with the

impression that the fraud claim is limited to ‘Doyle informed

him she would only recommend him for lab work — the basis for

his fraud claim’ (Dkt. No. 51-1 pp. 6 ¶¶ 2). But that does not

capture the other element of this specific instance of fraud . .

. .”

691 A.2d 350, 367 (N.J. 1997). Moreover, Federal Rule of Civil

Procedure 9(b) requires that, “[i]n alleging fraud or mistake, a

party must state with particularity the circumstances

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b)

requires a plaintiff to plead the “who, what, when, where and

how” underlying the allegedly fraudulent conduct. In re

Rockefeller Ctr. Properties, Inc. Sec. Litig., 311 F.3d 198, 217

(3d Cir. 2002) (quoting In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1422 (3d Cir. 1997)).

Swartz unsuccessfully attempts to shoehorn his

allegations into these factors by arguing that Doyle’s statement

that she would only recommend him for lab-based jobs is a

material misrepresentation. It is not. Swartz has not alleged

that Doyle knew he was qualified for non-lab positions, that

Doyle ever told a specific prospective employer that Swartz was

not qualified for non-lab positions, or that the prospective

employer relied on this misrepresentation and did not give

Swartz a job because of the misrepresentation. Without such

allegations, Swartz’s fraud claim is futile. To the extent that

Doyle’s opinion was that Swartz was best suited for positions in

a lab, a legitimate opinion cannot be fraud. See, e.g.,

Alexander v. CIGNA Corp., 991 F. Supp. 427, 435 (D.N.J.), aff’d,

172 F.3d 859 (3d Cir. 1998) (providing that “[s]tatements as to

future or contingent events, to expectations or probabilities,

or as to what will or will not be done in the future, do not

constitute misrepresentations, even though they may turn out to

be wrong” and “statements that can be categorized as ‘puffery’

or ‘vague and ill-defined opinions’ are not assurances of fact

and thus do not constitute misrepresentations.”).

IV. CONCLUSION

Swartz’s claims against all the Defendants are time-

barred and, thus, any amendment to his claims would be futile.

Therefore, the Court will grant the Defendants’ motions and

dismiss Swartz’s complaint with prejudice.

An appropriate order follows.