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

> District Court, E.D. Pennsylvania · March 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10402956

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402956. Public record. Not legal advice.