# GOYDOS v. RUTGERS, THE STATE UNIVERSITY

> District Court, D. New Jersey · February 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10655209

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- concluding that plaintiff's “claim fails because he has not produced any evidence that the allegedly false statements were disseminated.”

## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES S. GOYDOS and MARIA E.
MARTINS,
Plaintiffs, Civ. A. No. 3:19-cv-8966
. OPINION
RUTGERS, THE STATE UNIVERSITY, et
al.,
Defendants.

CASTNER, District Judge
This matter comes before the Court upon Defendants Rutgers, the State University
(“Rutgers”), Rutgers Cancer Institute of New Jersey (“‘RCINJ”), Dr. Steve K. Libutti (“Dr.
Libutti”), Dr. Brian L. Strom (“Dr. Strom”), Timothy J. Fournier (“Fournier”) and Eugene Simon’s
(“Simon”) (collectively, “Defendants”) Motion to Dismiss Plaintiffs James S. Goydos’ and Maria
E. Martins’ (together, “Plaintiffs”) Third Amended Complaint (the “TAC”) (see TAC, ECF No.
82), for failure to state a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) with
prejudice (the “Motion”). (See Defs.’ Mot., ECF No. 87.) Plaintiffs opposed (see Pls.’ Opp’n,
ECF No. 91), and Defendants replied (see Defs.’ Reply, ECF No. 92). The Court has reviewed
the parties’ submissions, and now decides the matter without oral argument pursuant to Rule 78
and Local Civil Rule 78.1.
I. BACKGROUND
For the sake of expediency, and cognizant that it writes for the benefit of parties familiar
with this matter, the Court omits recollection of the factual background and procedural history, as

well as a detailed restatement of the parties’ arguments, from the instant decision. Indeed, this
Opinion adopts and incorporates the factual background set forth by the prior disposition of the
similarly situated motion to dismiss the Second Amended Complaint (“SAC”), and only provides
additional background for events that transpired after the disposition of the previous motion to
dismiss. (See Mem. Op. 1-7, ECF No. 76.)
The Court issued an Opinion (See Mem. Op.), and an Order (See Order, ECF No. 77),
adjudicating Defendants’ Motion to Dismiss the SAC. In that decision, the Court granted
Defendants’ Motion to Dismiss as to Counts One and Four through Ten of Plaintiffs’ SAC and
dismissed those counts without prejudice. (See Order, 1.) The Court also dismissed the individual
defendants Dr. Libutti, Dr. Strom, Fournier, and Simon from Count Two in their individual
capacities. (/d. at 2.) The Court denied Defendants’ Motion to Dismiss Counts Two and Three,
and ultimately provided Plaintiffs with leave to amend the SAC. (/d.)
Plaintiffs filed the TAC on November 29, 2021. (ECF No. 82.) Defendants moved to
dismiss the TAC on January 26, 2022; and the parties engaged in the appropriate motion practice.
(ECF Nos, 87-92.)
Il. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim for relief that is plausible on its face.’” Ashcroft v. Igbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state
such a prima facie plausible claim in accord with the Federal Rules, a complaint must include “a
short and plain statement of the claim showing that the pleader is entitled to relief,’” Fed. R. Civ.
P. 8(a)(2), “in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon
which it rests,” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)

abrogated by Twombly, 550 U.S. 544). The reviewing district court “must accept all of the
complaint’s well-pleaded facts as true, but may disregard any legal conclusions.” Fowler v. UMPC
Shadyside., 578 F.3d 2013, 210-11 (3d. Cir. 2009) (citing Iqbal, 556 U.S. at 678).
Following the Supreme Court’s refinement of the parameters of a plausible pleading, the
Third Circuit devised a three-step process to facilitate evaluation of a complaint’s sufficiency. See
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘tak[e] note of the
elements a plaintiff must plead to state a claim.’” Jd. (quoting Jgbal, 556 U.S. at 675). “Second,
the court should identify allegations that, ‘because they are no more than conclusions, are not
entitled to the assumption of truth.’” /d (quoting /gdal, 556 U.S. at 679). “Third, ‘whe[n] there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.’” Jd. (quoting /gbal, 556 U.S. at 679).
This divides the district court’s analysis into three discrete segments: “(1) identifying the elements
of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at
the well-pleaded components of the complaint and evaluating whether all of the elements identified
in part one of the inquiry are sufficiently alleged.” Id.
Typically, it is inappropriate for a reviewing court to consider extraneous documents—that
is, documents not attached to the complaint, nor expressly incorporated therein—unless the court
converts the motion to dismiss into a motion for summary judgment. See Watterson v. Page, 987
F.2d 1, 3 (1st Cir. 1993) (citing Rule 12(b)(6)). This tenet runs parallel to another, requiring the
court to analyze the complaint “‘in its entirety,” including “other sources courts ordinarily examine
when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Ine. v.
Makor Issues & Rts., Lid., 551 U.S. 308, 322 (2007) (citing 5B Wright & Miller § 1357 (3d ed.

2004 & Supp. 2007)). Additionally, “a court may consider an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on
the document.” Pension Benefit Guar. Corp. v. White Consul. Indus., 998 F.2d 1192, 1196 (1993)
(collecting cases). “Otherwise, a plaintiff with a legally deficient claim could survive a motion to
dismiss simply by failing to attach a dispositive document on which it relied.” /d. (citing Goodwin
v. Elkins & Co., 730 F.2d 99, 113 Gd Cir. 1984), cert. denied, 469 U.S. 831). Finally, “[t]he
defendant bears the burden of showing that no claim has been presented.” Hedges v. United States,
404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1409 (3d Cir 1991)).
Il. DISCUSSION
In the most recent iteration of the amended pleading, Plaintiffs attempt to cure the
deficiencies identified by the Court in its most recent disposition. The Court will address each
count in turn.
a. Federal Constitutional Law Claims
Plaintiffs allege constitutional violations of Dr. Goydos’ First, Fourth, Fifth, and
Fourteenth Amendment rights, and also allege that all Defendants engaged in a conspiracy to
commit civil rights violations. (See generally TAC JJ 246-385.)
The Court has already laid out the legal standard for allegations of constitutional violations
pursuant to Section 1983. (See Mem. Op. 8-9.) This Court will rely on the standard as identified
in this Court’s previous Opinion.
i. Count One: First Amendment
This Court dismissed Plaintiffs’ First Amendment claim in its previous Opinion because it
determined that the SAC did not adequately plead that Dr. Goydos’ speech addressed a matter of

“public concern protected by the First Amendment.” (Mem. Op. 10.) The Court explained that
Dr. Goydos had “raised specific concerns regarding discrepancies in his own salary allocation
efforts, not fraud or misappropriation at RCINJ generally,” and raised those issues “only to his
superiors.” (/d. at 10-11.) The Court further held that “while Dr. Goydos’s official duties may not
have included reviewing the accuracy of grant figures, Dr. Goydos was responsible for regularly
submitting accurate grant applications and even discovered this discrepancy while doing so,”
causing the Court to conclude that Dr. Goydos was not “simply acting as a citizen, and not a public
employee, in this instance.” (Ud. at 11-12.)
The standard for a First Amendment claim was laid out in this Court’s previous Opinion,
and the Court relies on it now:
In order to establish a First Amendment retaliation claim, a public
employee must show that (1) his speech is protected by the First
Amendment and (2) the speech was a substantial or motivating
factor in the alleged retaliatory action, which, if both are proved,
shifts the burden to the employer to prove that (3) the same action
would have been taken even if the speech had not occurred.
Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014)
(citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)).
Generally, a public employee’s speech is protected by the First
Amendment when “(1) in making it, the employee spoke as a
citizen[;] (2) the statement involved a matter of public concern[;]
and (3) the government employer did not have ‘an adequate
justification for treating the employee differently from any other
member of the general public’ as a result of the statement he made.”
Falco v. Zimmer, 767 F. App’x 288, 300 (3d Cir. 2019) (alteration
in original) (quoting Hill vy. Borough of Kutztown, 455 F.3d 225,
241-42 (3d Cir. 2006)). The Supreme Court held in Garce/#ti that a
public employee does not speak “as [a] citizen” when he makes a
statement “‘pursuant to [his] official duties.” Garcetti v. Ceballos,
547 U.S. 410, 421 (2006). “Whether an employee’s speech
addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the
whole record.” Rankin v. McPherson, 483 U.S. 378, 384-85 (1987)
(quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).
(Mem. Op. 9-10.)

Defendants allege that Plaintiffs’ attempts to cure the First Amendment claims in the TAC
have failed. (Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, (“Def’s Moving Br.”), ECF 87-1,
9-10.) Defendants assert that Plaintiffs have still failed to demonstrate that Dr. Goydos’ alleged
speech addressed a matter of public concern protected by the First Amendment, and instead the
TAC only again describes Dr. Goydos’ conversations with his supervisor regarding his salary
allocation. Ud.) The Court agrees.
It is clear that Plaintiffs have tried to cure the deficiencies this Court described in its
previous Opinion, especially the Court’s conclusion that Dr. Goydos was acting within the scope
of his official duties. (See TAC JJ 256-257 (“Dr. Goydos’ position in no way involved auditing,
maintaining, or overseeing the Rutgers Defendants’ financial records, payroll records, or
accounting department. In reporting what he reasonably believed to be misappropriation and
fraud, Dr. Goydos spoke as a private citizen upon matters outside the scope of his employment
with the Rutgers Defendants.”).) The Court is unpersuaded by these attempts.
The Court’s previous Opinion found that Plaintiffs failed to state a valid First Amendment
claim because he raised concerns related to his own salary allocation to his direct supervisor,
despite his official duties not including the review of the accuracy of grant figures. (Mem. Op. 10-
11.) Plaintiffs’ TAC does not assert that he identified an issue of concern aside from his own grant
and associated salary concerns (see TAC {J 193-206, 251-252), and does not assert that he raised
this issue to anyone other than his supervisors (see id. 4] 207-219, 252-253, 262). While it is clear
that Plaintiffs’ TAC attempts to couch his reporting of the alleged grant deficiencies as the actions
of a concerned citizen reporting a matter of significant public concern, it is evident in the TAC, as
it was in the SAC, that “while Dr. Goydos’s official duties may not have included reviewing the
accuracy of grant figures, Dr. Goydos was responsible for regularly submitting accurate grant

applications,” (Mem. Op. 11) and it is not plausible that Dr. Goydos was simply acting as a citizen
and not a public employee when he spoke to his supervisors about errors in the grant application.
Ultimately, the Court again finds that the TAC does not plausibly allege that Dr. Goydos
was acting as a citizen, and not a public employee. Following, his speech is not protected, and
Plaintiffs’ First Amendment claim must again fail and will be dismissed with prejudice.
ii. Count Two: Fourth Amendment
The Court now turns to the allegations that Defendants violated Dr. Goydos’ constitutional
rights under the Fourth Amendment. This Court’s previous Opinion held that Plaintiffs’ SAC and
the allegations surrounding the October 2, 2017 imaging of Dr. Goydos’ computer were sufficient
to raise a claim under the Fourth Amendment, but the allegations surrounding the November 6,
2017 forensic image were not. (Mem. Op. 13-15.) The TAC removes no allegations from
Plaintiffs’ Fourth Amendment claims, and only adds detail and color to the allegations contained
therein. (See TAC JF 295, 298-299, 319-322.) Thus, this Court finds no cause in the TAC to
disturb the conclusion that the “November 6, 2017 forensic image of Dr. Goydos’ office computer
and the seizure of his University-issued cell phone were part of an investigation into workplace
misconduct and that this search was reasonable.” (Mem. Op. 13.) Further, the Court concludes
that the TAC still supports the conclusion that “the allegations regarding the October 2, 2017
imaging of Dr. Goydos’s work computer are sufficient to raise a Fourth Amendment claim,”
because “it is not so clear that on October 2, 2017, there were reasonable grounds for suspecting
the search [of Dr. Goydos’ computer] would uncover misconduct by Dr. Goydos and that he had
a reasonable expectation of privacy at that time.” (/d. 15.) Thus, the Court concludes that Plaintiffs
have sufficiently pled a Fourth Amendment claim for the reasons stated in the Court’s previous
Opinion. (See Mem. Op. 12-16.)

However, Plaintiffs’ TAC again brings claims against the individual defendants for
violations of the Fourth Amendment. This Court’s previous Opinion dismissed Dr. Libutti from
this claim pursuant to the doctrine of qualified immunity, specifically because Plaintiffs’ SAC
failed to allege that a constitutional right was clearly established. (/d. 15-16.)
“Qualified immunity shields officials ‘from liability from civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Lentz v. Taylor, No. 17-4515, 2019 U.S. Dist. LEXIS 37542, at *21
(D.N.J. Mar. 8, 2019) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the
law.” Walker v. Coffey, 905 F.3d 138, 143 Gd Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7,
12 (2015)). To resolve a claim of qualified immunity, courts engage in a two-pronged inquiry:
“(1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether
the right was ‘clearly established’ at the time of the official’s conduct.” Z.R. v. Sch. Dist. of Phila.,
836 F.3d 235, 241 (Gd Cir. 2016).
As the Court has already determined that Plaintiffs have sufficiently pled their Fourth
Amendment claim so as to survive a motion to dismiss, the Court now turns to the question of
whether the right was “clearly established.” In analyzing whether a right is clearly established,
“the Supreme Court has determined that such a finding hinges on ‘whether it would be clear to a
reasonable [official] that his conduct was unlawful in the situation he confronted.’” Lentz v.
Taylor, No. 17-4515, 2019 U.S. Dist. LEXIS 37542, at *22 (D.N.J. Mar. 8, 2019) (quoting Saucier
v. Katz, 533 U.S. 194, 202 (2001)).
[A] [g]overnment official’s conduct violates clearly established law
when, at the time of the challenged conduct, ‘[t]he contours of [a]
right [are] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’” Although

the Supreme Court “do[es] not require a case directly on point, ...
existing precedent must have placed the statutory or constitutional
question beyond debate.” A plaintiff must identify either
“controlling authority in the[] jurisdiction” or a “consensus of cases
of persuasive authority.”
Walker 905 F.3d at 144 (internal citations omitted).
Here, the Court again finds it appropriate to dismiss the individual defendants, Dr. Libutti,
Fournier, and Simon pursuant to the doctrine of qualified immunity. The Third Circuit has dealt
with a similar matter, analyzing whether qualified immunity protected a deputy attorney general
and a special agent working with the Pennsylvania Office of the Attorney General from
prosecution when they relied on an unenforceable subpoena to direct the Assistant General
Counsel at Pennsylvania State University (“Penn State”) to search for requested emails and turn
them over. See Walker 905 F.3d at 144. The Court began its analysis by “consider[ing], at a
minimum, whether it is clearly established that the Fourth Amendment affords an employee, such
as [the plaintiff], the right to have the contents of her work emails remain free from a law
enforcement search, absent a warrant or valid exception to the warrant requirement.” /d. at 144.
The Third Circuit concluded that “such a right is not clearly established.” /d.
The Court here also finds that Plaintiffs’ TAC or moving papers do not identify a
constitutional right that was clearly established. Plaintiffs must do more than simply allege that
“Dr. Goydos’ Fourth Amend[ment] rights against warrantless searches and seizures is a clearly
established constitutional right.” (TAC § 319.) Plaintiffs must demonstrate that the Fourth
Amendment clearly establishes a right to have the contents of Dr. Goydos’ work computer remain
free from inspection or copying by his employer, which the TAC fails to do. Because Plaintiffs’
TAC cannot establish that a constitutional right was clearly established, the Court will dismiss

individual defendants Dr. Libutti, Fournier, and Simon pursuant to the doctrine of qualified
immunity.
ili. Count Three: Fifth Amendment
The Court now turns to Plaintiffs’ assertions that Defendants Rutgers and RCINJ violated
the Fifth Amendment by demanding that Dr. Goydos’ appear for a “deposition like interview, with
court reporter present, without disclosing the subject matter of the inquiry and without disclosing
that the information sought was in furtherance of a criminal investigation.” (TAC § 333.) This
Court, in its previous Opinion, concluded that Plaintiffs’ SAC plausibly alleged a claim under the
Fifth Amendment as “Dr. Goydos . . . could not have been compelled to answer questions that
required him to waive any privileges or rights under the threat of termination.” (Mem. Op. 18.)
Count Three of Plaintiffs’ TAC is substantially identical to Count Three of Plaintiffs’ SAC,
which has already survived this Court’s analysis on the previous motion to dismiss, and the Court
finds no reason to disturb that sound analysis. (See TAC {¥ 326-343 (adding only three allegations
when compared to SAC).) Thus, for the reasons stated in the Court’s previous Opinion, the motion
to dismiss is denied as to Plaintiffs’ Fifth Amendment claims.
iv. Count Four: Fourteenth Amendment
Plaintiffs’ final Section 1983 claim is that Dr. Goydos had “a protected property right and
interest in his employment and a liberty right and interest in his professional reputation under the
Constitution of the United States,” and that Defendants deprived him of these rights. (TAC § 349.)
Specifically, the TAC asserts that Dr. Goydos was placed on administrative leave without a
hearing, and despite the fact that no charges were ever brought against Dr. Goydos, he was
informed that detenuring proceedings would begin against him. (TAC {ff 351-354.) Dr. Goydos

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asserts that these events forced him to resign from his position on December 14, 2018. (TAC
356.)
The Fourteenth Amendment protects against “depriv[ation] of an individual interest
[in]... property” without the “‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225,
234 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 Gd Cir. 2000)). For a protected
property interest to exist, a plaintiff is required to have “a legitimate claim of entitlement to” the
interest at issue that stems from ‘“‘an independent source such as state law — rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Bd of
Regents of State Colls, v. Roth, 408 U.S. 564, 577 (1972). “Thus, it is not sufficient that a plaintiff
has an abstract need or desire or a unilateral expectation of a particular benefit.” McKinney v.
Univ. of Pittsburgh, 915 F.3d 956, 960 (3d Cir. 2019) (internal quotations and citations omitted).
“(T]he property interest must arise from either the ‘circumstances of... service’ or the ‘mutually
explicit understandings that support [the] claim of entitlement to the benefit.” Jd (quoting Perry
v. Sindermann, 408 U.S. 593, 601-02 (1972)).
Plaintiffs here assert that “Dr. Goydos had a protected property right and interest in his
employment and a liberty right and interest in his professional reputation under the Constitution
of the United States.” (TAC § 349.) The TAC also asserts that Dr. Goydos “was constructively
discharged from his tenured employment, of which he had a protected property right and interest
under the Constitution of the United States.” (TAC 4 364.)
The Court concludes that the TAC does not cure the deficiencies of the SAC as to Dr.
Goydos’ due process claim as it relates to his employment. “There is no dispute... that
‘tenured professors at public universities hold a property interest in their tenure, so that procedural
due process is necessary when the university seeks to dismiss a tenured professor.’” Vatner v. Bd.

11

of Trs. of the Univ. of Med. & Dentistry of N.J., No. 12-3339, 2015 U.S. Dist. LEXIS 13135, at
*26 (D.N.J. Feb. 3, 2015) (quoting Univ. of Pittsburgh v. United States, 507 F.3d 165, 176 (3d Cir.
2007)). However, Dr. Goydos was not dismissed from his position — rather he was placed on a
paid administrative leave, which has different property implications.
The Court finds, as it did in the previous Opinion, that Plaintiffs do not sufficiently allege
a due process violation when Dr. Goydos was suspended with pay from March 30, 2018, through
the date of his resignation. According to the TAC, Dr. Goydos was placed under arrest on March
30, 2018, after law enforcement officials executed a search warrant at his home. (TAC {ff 49-53.)
Dr. Goydos was placed on administrative leave that same day. (Ud. §§ 54-55.) This Court again
concludes that “while Dr. Goydos had an interest in his continued employment, the property
interest implicated was diminished because he was placed on leave with pay.” (Mem. Op. 20-21.)
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544 (1985) (suggesting that “in those
situations where the employer perceives a significant hazard in keeping the employee on the job,
it can avoid the [due process] problem by suspending with pay.”). See also Edwards v, Cal. Univ.,
156 F.3d 488, 492 (3d Cir. 1998) (holding that placing a tenured professor on paid leave does not
implicate due process concerns); Jerrytone v. Musto, 167 F. App’x 295, 301 Gd Cir. 2006) (“Given
the minimal property interest involved, [a public teacher’s] due process rights were not violated
when he was placed on paid suspension without a prior hearing after allegations of serious
misconduct and criminal activity in his classroom arose from credible sources.”) The Court thus
finds that Plaintiffs do not state a claim for relief on this basis.
Next, Plaintiffs assert that Dr. Goydos was constructively discharged and thus deprived of
his property interest in his employment in violation of the Fourteenth Amendment. This Court

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cannot agree. The Court laid out the relevant legal standards in its previous Opinion and in the
interest of judicial economy, the Court will reproduce it below:
The Third Circuit has deemed that a resignation will be
deemed a constructive discharge, and within the protections of
the due process clause under two circumstances: “(1) when the
employer forces the employee’s resignation or retirement by
coercion or duress, or (2) when the employer obtains the resignation
or retirement by deceiving or misrepresenting a material fact to the
employee.” Hill, 455 F.3d at 233 n.10 (quoting Leheny v. City of
Pittsburgh, 183 F.3d 220, 228 (3d Cir. 1999)). If an employee
resigns of his own “free will”, however, the Third Circuit has ruled
that “even though prompted to do so by some action of his employer,
he is deemed to have relinquished his property interest in his
continued employment for the government, and cannot contend that
he was deprived of his due process rights.” Leheny, 183 F.3d at
227 (citations omitted),
Courts in this circuit have considered the following factors
in determining whether there was a constructive discharge pursuant
to coercion or duress:
(1) whether the employee was given some alternative
to resignation; (2) whether the employee understood
the nature of the choice [h]e was given; (3) whether
the employee had a reasonable time in which to
choose; (4) whether the employee was permitted to
select the effective date of resignation; and (5)
whether the employee had the advice of counsel.
Errington v. City of Reading, No. 21-118, 2021 U.S. Dist. LEXIS
164401, 2021 WL 3885177, at *5 (E.D. Pa. Aug. 31,
2021) (citing Judge v. Shikellamy Sch. Dist., 905 F.3d 122, 125-26
(3d Cir. 2018)). The objective test for whether Defendant was
constructively discharged due to misrepresentation is if
“{djefendants misrepresented a material fact upon which Plaintiff
reasonably relied when deciding to retire.” Balik v. City of Bayonne,
No. 10-4145, 2013 WL 12091322, at *4 (D.N.J. Feb. 20,
2013), aff'd, 567 F. App’x 86 (3d Cir. 2014). A court may also find
a resignation involuntary “if induced by an employee’s reasonable
reliance upon an employer’s misrepresentation of a material fact
concerning the resignation.” Benson v. Cooke, No. 15-858, 2016
US. Dist. LEXIS 50765, 2016 WL 1562898, at *3 (D. Del. Apr. 15,
2016) (quoting Hargray v. City of Hallandale, 57 F.3d 1560, 1570
(11th Cir. 1995)).

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(Mem. Op. 21-22.)
The Court here must also conclude that the TAC does not sufficiently allege that Dr.
Goydos was constructively discharged. The TAC raises no plausible allegations that Dr. Goydos
was coerced into submitting his resignation and presents no allegations that would support an
inference that he resigned pursuant to a misrepresentation made by Defendants. If he was so
inclined, Dr. Goydos could certainly have decided to move forward with the detenuring
proceedings. He declined to do so, and instead elected to submit his resignation on December 14,
2018. The Court therefore concludes that the allegations in the TAC, even taken in the light most
favorable to Plaintiffs, do not support a constructive discharge claim, and thus the property interest
claim under the Fourteenth Amendment must fail.
Plaintiffs next assert that Defendants “created and disseminated a false and defamatory
impression about Dr. Goydos in connection with his termination, while restraining his ability to
lawfully correct same,” and this conduct destroyed Dr. Goydos’ reputation. (TAC § 366-367.)
“(T}Jo make out a due process claim for deprivation of a liberty interest in reputation, a
plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.”
Hill, 455 F.3d at 236.
In the public employment context, the “stigma-plus” test has been
applied to mean that when an employer “creates and disseminates a
false and defamatory impression about the employee in connection
with his termination,” it deprives the employee of a
protected liberty interest. The creation and dissemination of a false
and defamatory impression is the “stigma,” and the termination is
the “plus.”
Id. “To satisfy the ‘stigma’ prong of the test, the employee must show: 1) publication of 2) a
substantially and materially false statement that 3) infringed upon the ‘reputation, honor, or
integrity’ of the employee.” Brown v. Montgomery County, 470 F. App’x 87, 91 (3d Cir. 2012).

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The Court’s inquiry into whether Plaintiffs can maintain a due process claim under this
theory is a short one. Plaintiffs’ TAC does not allege that the allegedly stigmatizing statements
were made publicly, and thus his Fourteenth Amendment claim under this theory must fail. It is
clear the TAC attempts to cure the deficiencies of the SAC as to this claim. It is also clear that
those attempts have failed. The TAC asserts that Dr. Goydos was banned from Rutgers property
and directed to have no contact with “his colleagues, employees, and patients.” (TAC § 365.) It
further alleges that “[i]t was in February of 2018 that Dr. Goydos first learned through workplace
rumors that the “investigation” described by counsel for the Rutgers Defendants was in fact
centered around a camera placed in the women’s second floor bathroom at RCINJ.” (TAC 4312.)
Plaintiffs’ TAC describes the alleged investigation of Dr. Goydos, including searches of his home
and electronic devices, (TAC □ 36-75), the discovery of a hidden video camera in the women’s
restroom, (TAC {J 86), the information allegedly found on Dr. Libutti’s computers, (TAC {] 92),
allegations that Dr. Libutti improperly began investigating Dr. Goydos, (TAC 98-104), Dr.
Goydos’ conversations surrounding the inaccurate grant application, (TAC 262), and the alleged
improper preservation of Dr. Goydos’ work computer, (TAC §J 289-325). (See Pls.’ Opp’n Br.,
13-14) (arguing that the TAC has sufficiently plead publication).)
However, the TAC does not allege that any Defendants shared any information with the
public as relating to Dr. Goydos. The TAC does not allege that Defendants published the letter
placing Dr. Goydos on administrative leave, nor does it allege that Defendants published any
information about Dr. Goydos’ status as a possible suspect in any underlying criminal actions. The
TAC does not allege that Defendants in fact shared any information to the public at any time.
Further, while the TAC asserts that Dr. Goydos suffered damage to his reputation, (TAC 367-
368, 381), it does not assert that Defendants published or disseminated any information that can

15

be tied to any reputational injury. See Yu v. U.S. Dep’t of Veterans Affs., 528 F. App’x 181, 185
(3d Cir. 2013) (concluding that plaintiff's “claim fails because he has not produced any evidence
that the allegedly false statements were disseminated.”). See also McCarthy v. Darman, 372 F.
App’x 346, 351 (3d Cir. 2010) (finding publication of official meeting minutes did not constitute
a stigma because the plaintiff “was suspended and the . . . [d]Jefendants were engaged in an on-
going investigation.”’).
In sum, accepting as true the allegations in the Complaint, Plaintiffs’ TAC still fails to
allege that any negative or false information was actually published by Defendants. Thus,
Plaintiffs’ liberty interest claim must fail.
Because Plaintiffs’ TAC does not properly plead due process violations, the Fourteenth
Amendment claim will be dismissed with prejudice.
V. Count Five: Conspiracy to Commit Civil Rights Violations
The Court turns now to the allegations that “the Defendants conspired to deprive Dr.
Goydos of his First, Fourth, Fifth, and Fourteenth Amendment rights by creating, orchestrating,
pursuing, prompting, directing, and coordinating a bad faith investigation into Dr. Goydos for the
misdeeds of Dr. Libutti in an effort to protect Dr. Libutti and silence Dr. Goydos’ reports of
misappropriation and fraud by destroying his career and forcing his resignation.” (TAC { 379.)
The Court summarized the law on a civil rights conspiracy claim as follows:
“To prevail on a conspiracy claim under § 1983, a plaintiff must
prove that persons acting under color of state law ‘reached an
understanding’ to deprive him of his constitutional
rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d
Cir. 2018). A plaintiff must establish that the object of the
conspiracy was the deprivation of a federally protected
right. Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d
Cir. 2009) (citing Rogin v. Bensalem Twp., 616 F.2d 680, 686-87
(3d Cir. 1980)). Next, the plaintiff “must provide some factual basis
to support the existence of the elements of a conspiracy: agreement

16

and concerted action.” Jd. To show agreement, the plaintiff must
demonstrate that “the state actors named as defendants in the
complaint somehow reached an understanding to deny [the plaintiff]
his rights.” Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993). In
the absence of direct proof, a “meeting of the minds” or
“understanding or agreement to conspire” can be “infer[red]” from
circumstantial evidence. See Startzell v. City of Phila., 533 F.3d
183, 205 (3d Cir. 2008). Such circumstantial evidence may include
that the alleged conspirators “did or said something . . . to create an
understanding,” “the approximate time when the agreement was
made, the specific parties to the agreement[,] the period of the
conspiracy, or the object of the conspiracy.” BanxCorp v. Bankrate,
Inc., No. 07-3398, 2011 U.S. Dist. LEXIS 149912, 2011 WL
6934836, at * 10 (D.N.J. Dec. 20, 2011) (quoting Great W. Mining
& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178-79 Gd
Cir. 2010)). The Court is also mindful that “direct evidence of a
conspiracy is rarely available.” Capogrosso, 588 F.3d at 184.
(Mem. Op. 25-26.)
The Court concludes that Plaintiffs’ TAC does not cure the deficiencies of the SAC for this
purpose. First, to the extent the Court has dismissed the constitutional claims, those cannot serve
as the basis for the conspiracy claim. See Talley v. Varner, 786 F. App’x 326, 329 (3d Cir. 2019).
Further, Plaintiffs’ TAC broadly alleges that “the Defendants conspired to deprive Dr. Goydos of
his First, Fourth, Fifth, and Fourteenth Amendment rights by creating, orchestrating, pursuing,
prompting, directing, and coordinating a bad faith investigation” into Dr. Goydos, authorized
“warrantless searches and seizures of Dr. Goydos’ electronic devices, conducted surreptitious
stakeouts of Plaintiffs’ home, took adverse employment and criminal action in response to Dr.
Goydos’ refusal to incriminate himself by appearing for a demanded interview in light of an
ongoing criminal investigation, placed Dr. Goydos on administrative leave without a hearing and
without being charged with any policy violations, and ultimately threatened Dr. Goydos with
detenuring proceedings.” (TAC § 379-380.) However, these allegations are too conclusory on
their face to support a conspiracy claim. The TAC lists the actions Plaintiffs allege are unjust and

17

wrongful. The TAC does not sufficiently reference any evidence, aside from unsupported
conclusory statements, that demonstrate when an agreement to deprive Plaintiffs of their
constitutional right was reached, facts that demonstrate concerted activity occurred, or other
circumstantial evidence that would permit this conspiracy claim to survive. Thus, Plaintiffs’
conspiracy claim fails and is dismissed with prejudice.
b. Claims based in New Jersey State Law
i. Count Six: New Jersey Conscientious Employee Protection Act
Next, Plaintiffs bring a claim under New Jersey’s Conscientious Employee Protection Act
(“CEPA”) alleging Defendants retaliated against Dr. Goydos. The Court’s previous Opinion stated
that ‘Plaintiffs do not allege causation under CEPA sufficient to survive a motion to dismiss” and
concluded that “Dr. Goydos’ placement on administrative leave and the end of his employment at
Rutgers [was] not due to any whistleblowing activity that Dr. Goydos allegedly engaged in when
he flagged the discrepancy in the salary figures.” (Mem. Op. 27.) The Court again focuses on the
causation element of a CEPA claim and concludes that the TAC also fails to state a claim.
This Court set out the relevant standard for a CEPA claim in its previous Opinion. In sum:
CEPA requires that a plaintiff must demonstrate: (1) he or she
reasonably believed that his or her employer’s conduct was violating
either a law, rule, or regulation promulgated pursuant to law, or a
clear mandate of public policy; (2) he or she performed a “whistle-
blowing” activity described in N.J. Stat. Ann. 34:19-3c; (3) an
adverse employment action was taken against him or her; and (4) a
causal connection exists between the whistle-blowing activity and
the adverse employment action. Dzwonar y. McDevitt, 828 A.2d
893, 900 (N.J. 2003). CEPA covers employee complaints about
activities the employee reasonably believes are: (1) in violation ofa
specific statute or regulation; (2) fraudulent or criminal; or (3)
incompatible with policies concerning public health, safety or
welfare or the protection of the environment. See Estate of Roach
v. TRW, Inc.,754 A.2d 544, 549 (N.J. 2000).
(Mem. Op. At 27.)

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Plaintiffs’ CEPA claim as laid out in the TAC suffers from the same deficiencies as their SAC,
and the Court will dismiss this claim on the same grounds.
Plaintiffs’ TAC asserts that Dr. Goydos engaged in his first alleged whistleblowing activity
in 2014. (TAC 4¥ 190-215.) The TAC also alleges that Plaintiffs’ last alleged protected activity
took place in or around February 2017. (TAC 4 216-219.) However, the TAC, like the SAC
before it, does not sufficiently draw a causal link between Dr. Goydos’ alleged protected activity
in 2017, and any adverse employment action, such as being placed on administrative leave in
March 2018, or the alleged decrease in bonus. (TAC { 351.)
Thus, for substantially the same reasons as expressed in the Court’s previous Opinion,
Plaintiffs’ CEPA claim will be dismissed.
il. Count Seven: Intentional Infliction of Emotional Distress
This Court dismissed Plaintiffs’ claim for IED from the SAC because it determined that
Plaintiffs failed to plead conduct that was extreme and outrageous. (See Mem. Op. 29.) The Court
explained that Defendants’ course of conduct while investigating the camera in the women’s
bathroom was not unreasonable, let alone extreme or outrageous. U/d.) The Court also determined
that Plaintiffs had failed to plead that Defendants actions were the proximate cause of Dr. Goydos’
emotional distress. (/d.)
To state a claim for ITED, a plaintiff must plausibly plead “intentional and outrageous
conduct by the defendant, proximate cause, and distress that is severe.” Tarr v. Ciasulli, 853 A.2d
921, 924 (N.J. 2004) (quoting Buckley v. Trenton Sav. Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988)).
The conduct alleged must be “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community[,]” Buckley, 544 A.2d at 863 (quoting Restatement § 46 cmt. d), and indeed, to be so

19

outside the bounds of humane discourse that “no reasonable person could be expected to endure
it.” Mardini v. Viking Freight, Inc., 92 F. Supp. 2d 378, 384 (D.N.J. 1999). “This objective
standard ensures that defendants are not held liable when hypersensitive plaintiffs suffer severe
emotional trauma from conduct that would not seriously wound most people.” Taylor v. Metzger,
706 A.2d 685, 697 (N.J. 1998). Additionally, the plaintiff must “show ‘that [he or she] suffered
from a specific ailment and sought treatment for it.” Conserve v. City of Orange Township, No.
21-872, 2021 WL 3486906, at *5 (D.N.J. Aug. 9, 2021) (quoting Phillips v. N.J. Transit, No. 19-
13427, 2021 WL 1661087, at *12 (D.N.J. Apr. 28, 2021)). For instance, “[a] severe and disabling
emotional or mental condition which is capable of being generally recognized and diagnosed by
professionals trained to do so qualifies as severe emotional distress.” Hill v. N.J. Dep’t of Corr.
Comm Fauver, 776 A.2d 828, 841-42 (N.J. Super. Ct. App. Div. 2001) (citing Taylor, 706 A.2d
at 697).
Defendants allege that Plaintiffs’ ITED claim in the TAC does not differ materially from
its earlier rendition, the SAC, highlighting that Plaintiffs have not been able to successfully allege
extreme and outrageous conduct by Defendants, as “[t]his Court has already found that
Defendants’ investigation into workplace misconduct was justified.” (See Defs.’ Moving Br. 34,
ECF No. 87-1.) Additionally, Defendants contend that Plaintiffs have failed to state that “Dr.
Goydos experienced any ailments or sought medical assistance[,]’” for his distress. (/d. at 34.)
Plaintiffs respond that,
Defendants mercilessly retaliated against Dr. Goydos for almost two
years because he reported suspected fraud to Dr. Libutti. The
Defendants portrayed Dr. Goydos as a sex offender, violated his
privacy, induced law enforcement to violate the sanctity of his
home, and ultimately robbed him of his career and life’s work.
Defendants do not dispute the conduct alleged in the TAC but rather
assert that the Court already found that the Defendants’ actions were
justified. However, whether the Defendants’ actions were justified

20

is a factual question that is not presently before the Court and must
be answered through discovery. Indeed, it is the substance of
Plaintiffs’ well-pleaded claims that controls on a motion to dismiss,
not Defendants[’] potential defenses thereto.
(Pls.” Opp’n 27-28.) Defendants respond by emphasizing the arguments included in their Motion.
(See Defs.’ Reply 11-12.)
At this stage, as Plaintiffs emphasize, the Court must weigh all inferences in Plaintiffs’
favor, accept all factual allegations as true, and interpret all allegations in the light most favorable
to Plaintiffs. See McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (quoting Schrab vy.
Catterson, 948 F.2d 1402, 1408 (3d Cir. 1991)). Plaintiffs have amended the pleading to
(substantially) cure the deficiencies identified in the SAC. Plaintiffs have added allegations which,
if accepted as true, would constitute extreme and outrageous conduct (see TAC 4 413 (alleging
intentional destruction of reputation and livelihood as retaliation scheme)), and stated that these
actions were the proximate cause of Dr. Goydos’ distress (see id. § 417 (naked allegation that
conduct proximately caused distress)).
Setting aside the implication of collateral estoppel raised by a prior court’s factual
determination that Defendants’ actions were justified, thereby removing the inquiry from the
judgment of the trier-of-fact, Plaintiffs’ IED claim must once again be dismissed because
Plaintiffs have failed to plead the element of severe emotional distress. Stripped of conclusory or
reductive restatements that Dr. Goydos suffered severe emotional distress, Plaintiffs’ allegations
include a single, vague allegation that “Defendants intentionally subjected and continue to subject
Dr. Goydos to severe duress, strain, anxiety, shame, embarrassment, mental anguish, and pain in
their effort to protect Dr. Libutti and silence and discredit Dr. Goydos.” (See TAC § 415.) But
this alone is not enough. In New Jersey, for an ITED claim “to be actionable, the claimed emotional
distress must be sufficiently substantial to result in physical illness or serious psychological

21

sequelae.” Burgess vy. Bennet, No. 20-7103, 2021 WL 1050313, at *9 (D.N.J. Mar. 19, 2021)
(quoting Aly v. Garcia, 754 A.2d 1232, 1237 (N.J. Super. Ct. App. Div. 2000)); see also Love v.
N.J. Dep’t of Corr., No. 15-4404, 2016 WL 2757738, at *12 (D.N.J. May 12, 2016) (dismissing
IJED claim for same reason). The law typically requires more than just an allegation that a person
suffered severe emotional distress. See Naprstek v. Ditech Fin. LLC, No. 18-cv-11442, 2022 US.
Dist. LEXIS 127633, at *21-22 (D.N.J. July 19, 2022) (“Plaintiff has also failed to allege any facts
that suggest he suffered severe distress — his sole conclusory allegation that ‘distress is certainly
severe’ and has ‘manifested itself both as a physical illness, and a psychological malady as well’
is insufficient.”). See also Birch v. Wal-Mart Stores, No. 15-1296, 2015 U.S. Dist. LEXIS 165341,
at *10 (D.N.J. Dec. 9, 2015) (‘While the Complaint uses terms like ‘outrageous’ and
‘severe emotional distress,’ these legal conclusions are not supported by facts.”); See also Tassel
Ocean Cty., Civil Action No. 16-4761, 2017 U.S. Dist. LEXIS 190953, at *23-24 (D.N.J. Nov.
17, 2017).
Plaintiffs have not shown that Dr. Goydos plausibly suffered emotional harm so severe that
no reasonable person could be expected to bear it, because they have provided no detail whatsoever
about the alleged distress. Plaintiffs’ ITED claim, therefore, must once again be dismissed.
ill. Count Eight: Conversion!

1 Tn rendering this finding, the Court notes affirmatively that it did not consider the documents
extraneous to the TAC discussed by both parties—i.e., the correspondence exchanged between
counsel providing additional information and specifications about the alleged missing items. (See
Defs.’ Moving Br. 36-37; see Pls.” Opp’n Br. 29-30; see Defs.’ Reply Br. 12-13 (collectively
referencing Email Exchange, Certification of John K. Bennett in Supp. of Defs. Mot. to Dismiss □□
Pls.’ TAC (the “Bennett Cert.”) Ex. M, ECF No. 87-3).) These materials would be more
appropriately considered on a motion for summary judgment.

22

In the prior Opinion, the Court dismissed Plaintiffs’ conversion claim because Plaintiffs
“failled] to allege any facts indicating the Defendants’ wrongful interference with his rights,”
specifically finding that the SAC did not plead that Defendants appropriated Dr. Goydos’ property
in order to “‘exercise’ the right of ownership.” (See Mem. Op. 30 (citing Barco Auto Leasing
Corp. v. Holt, 548 A.2d 1161, 1164-65 (N.J. Super. Ct. App. Div. 1988)).)
“TCjonversion is ‘the exercise of any act of dominion in denial of another’s title to the
chattels or inconsistent with such title.” Lembaga Enters., Inc., v. Cace Trucking & Warehouse,
Inc., 727 A.2d 1026, 1029 (N.J. Super. Ct. App. Div. 1999) (quoting Mueller v. Tech. Devices
Corp., 84 A.2d 620, 623 (N.J. 1951)). To state a claim for conversion, the plaintiff must show:
“(1) the property and right to immediate possession thereof belong to the plaintiff and (2) the
wrongful act of interference with that right by the defendant.” Reddy v. Patel, No. 16-8256, 2017
WL 1709595, at *4 (D.N.J. May 1, 2017) (quoting Latefv. Cicenia, No. A-5747-13T2, 2015 WL
10458543, at *5 (N.J. Super. Ct. App. Div. Mar. 14, 2016)).
Plaintiffs add three new purported allegations to their conversion claim, all of which border
the line between factual and conclusory. (See TAC 9 425-27.) Plaintiffs claim that the Rutgers
Defendants have assumed physical control of certain belongings of Dr. Goydos, including
laboratory equipment and other scientific paraphernalia. (See id. JJ 424-25.) Plaintiffs infer that
the Rutgers Defendants are using Dr. Goydos’ belongings “for their own work and purposes” (see
id. § 426), and further, that despite Plaintiffs’ persistent requests to return the property, those in
possession refuse to do so (see id. { 427). The Court finds that Plaintiffs have sufficiently cured
the deficiencies previously identified to permit them to probe the issue further in discovery.
Assuming all factual allegations to be true, Plaintiffs have plausibly stated a claim that, in the
aftermath of their conflict, Defendants assumed physical control of certain items belonging to Dr.

23

Goydos, and are now using these items as their own. Defendants’ request to dismiss Plaintiffs’
conversion claim will be denied.
iv. Count Nine: Breach of Contract
Next, the Court turns to the sufficiency of the common law breach of contract claim in
Plaintiffs’ TAC. The Court dismissed Plaintiffs’ breach of contract claim as stated in the TAC
upon determining that Plaintiffs “do not adequately allege that the Rutgers Defendants breached
the alleged contract or that Dr. Goydos sustained damages flowing from that contract.” (Mem.
Op. 31.) The Court also found that constructive discharge was inadequately pled. (See id. at 31-
32.)
Defendants argue that Plaintiffs’ additions do not provide meaningful amendment to the
pleadings, but are instead conclusory allegations. Specifically, Defendants assert that the TAC
fails to relay how the administration’s election to place Dr. Goydos on administrative leave
pending further investigation, and “the mere conveyance of information that Defendants may
potentially initiate detenuring proceedings, subjected Dr. Goydos to working conditions so
intolerable that he was compelled to resign.” (Defs.? Moving Br. 38.) Moreover, Defendants
contend that Plaintiffs have failed to establish that the policy at issue (see Rutgers Policy 60.5.13,
Bennett Cert. Ex. N), in fact constitutes an employment contract (Defs.’ Moving Br. 39).
Plaintiffs respond that Dr. Goydos and relevant Rutgers entities were party to an
employment contract for twenty-five (25) years, of which Rutgers Policy 60.5.13 is a part. (See
Pls.” Opp’n Br. 31.) They add that, even assuming it is not, this is a question of fact to be verified
in discovery, and that they have adequately pled the existence of a contract at this stage. (/d.)
Plaintiffs argue that “Defendants’ retaliation, pretext investigation, unexplained suspension, and
announcement of detenure proceedings constitute breaches of that contract.” Ud.) Plaintiffs also

24

allege that Defendants’ conduct caused Dr. Goydos such distress that he was indeed constructively
discharged, i.e., forced to resign, from his position at Rutgers. (/d. at 32.)
To state a claim for breach of contract under New Jersey law, the plaintiff must adequately
allege:
[F]irst, that the parties entered into a contract containing certain
terms; second, that [the] plaintiffs did what the contract required
them to do; third, that [the] defendants did not do what the contract
required them to do, defined as a breach of the contract; and fourth,
that the defendants’ breach, or failure to do what the contract
required, caused a loss to the plaintiffs.
Globe Motor Co. v. Igdalev, 139 A.3d 57, 64 (N.J. 2016) (quoting Model Jury Charge (Civil),
§ 4.10A “The Contract Claim-Generally” (May 1998)) (internal punctuation marks omitted); see
Frederico v. Home Depot, 507 F.3d 188, 203 (Gd Cir. 2007) (“To state a claim for breach of
contract, [the plaintiff] must allege (1) a contract between the parties; (2) a breach of that contract;
(3) damages flowing therefrom; and (4) that the party stating the claim performed its own
contractual obligations.”’).
Accepting that Plaintiffs have adequately stated the existence of a contract by alleging that
the policy is incorporated therein, Plaintiffs must still state facts supportive of breach and damages.
Because Plaintiffs concede that Dr. Goydos elected to resign, the harm must arise from the
constructive discharge. “A discharge encompasses not just an actual termination from
employment, but a constructive discharge.” Donelson v. DuPont Chambers Works, 20 A.3d 384,
392 (N.J. 2011). “A constructive discharge occurs when an employer’s conduct ‘is so intolerable
that a reasonable person would be forced to resign rather than continue to endure it.’” Jd. (quoting
Shepherd yv. Hunterdon Dev’tal Cir., 803 A.2d 611, 627 (N.J. 2002)). “For purposes of the laws
against discriminatory or retaliatory discharge, an employee is expected to take all reasonable steps

25

necessary to remain employed.” Zubrycky v. ASA Apple, Inc., 885 A.2d 449, 451 (N.J. Super. Ct.
App. Div. 2005) (citing Shepherd, 803 A.2d at 627).
But this matter is more easily resolved, because CEPA’s waiver provision precludes
Plaintiffs’ breach of contract claim as a matter of law. A plaintiff may advance a claim for
constructive discharge under CEPA or the common law, but not both. Indeed, the article in
question provides,
Nothing in this act shall be deemed to diminish the rights, privileges,
or remedies of any employee under any other federal or State law or
regulation or under any collective bargaining agreement or
employment contract; except that the institution of an action in
accordance with this act shall be deemed a waiver of the rights and
remedies available under any other contract, collective bargaining
agreement, State law, rule or regulation or under the common law.
CEPA, N.J. Stat. Ann. § 34:19-8. The New Jersey Supreme Court has clarified that,
the waiver exception means, for purposes of this case, that once a
CEPA claim is “instituted,” any rights or claims for retaliatory
discharge based on a contract of employment; collective bargaining
agreement; State law, whether its origin is the Legislature, the
courts, the common law or rules of court; or regulations or decisions
based on statutory authority, are all waived. The waiver exception
contains a list of sources of law that may provide a bundle of rights
protecting employees from retaliatory discharge. Parallel claims
based on those rights, privileges and remedies are waived because
they represent multiple or duplicative claims based on retaliatory
discharge.
Young v. Schering Corp., 660 A.2d 1153, 1160 (N.J. 1995); see Matthews v. N.J. Inst. of Tech.,
717 F. Supp. 2d 447, 452 (D.N.J. 2010) (“State claims that allege facts substantially related to the
CEPA must be dismissed.”); see Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643, 683-84
(D.N.J. 2008) (summary judgment on LAD claim as precluded by CEPA); see also Bowen v.
Parking Auth. of Camden, No. 00-5765, 2003 WL 22145814, at *23 (D.N.J. Sept. 18, 2003)
(dismissing LAD claim as waived by pursuit of CEPA claim).

26

Ultimately, the pursuit of the CEPA claim waives the parallel advancement of rights under
other laws. Accordingly, Plaintiffs’ breach of contract claim will be dismissed with prejudice.
v. Count Ten: Per Quod
Finally, Plaintiffs allege a per quod claim on behalf of Dr. Goydos’ wife, Plaintiff Martins.
The TAC alleges that “Dr. Martins has sustained the loss or impairment of the comfort, economic
support, companionship, consortium, services and duties previously provided by her husband.”
(TAC § 442.)
First, the Court must note that the viability of Plaintiff Martins’s per quod claim is subject
to the survival of the claims of Dr. Goydos. Bachman v. United States, No. 03-4897, 2006 U.S.
Dist. LEXIS 94574, 2006 WL 3761985, at *7 (D.N.J. Dec. 19, 2006) (“Per quod claims are ‘only
maintainable by reason of a spouse’s injury.’” (citation omitted)). Further, neither the Third
Circuit nor New Jersey state courts have recognized per quod claims on Section 1983 claims.
Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1215 n.10 (3d Cir. 1993); Maudsley v.
State, 816 A.2d 189, 208 (N.J. Super. Ct. App. Div. 2003). See Pahle v. Colebrookdale Township.,
227 F. Supp. 2d 361, 381 (E.D. Pa. 2002) (“It is well-established that a spouse .. . has no standing
to raise § 1983 claims resting on violations of her husband’s constitutional rights.”) Thus,
Plaintiffs per quod claims as to all remaining Section 1983 claims must fail.
As to Plaintiffs’ per guod claims for any claims that have survived the motion to dismiss
and are based in New Jersey law, namely Plaintiffs’ Conversion claim, those claims may go
forward. “A per quod, or loss of consortium, claim is a separate cause of action for loss of society,
companionship, and services from an injured spouse.” Worster-Sims v. Tropicana Entm't, Inc.,
No. 13-1981, 2016 U.S. Dist. LEXIS 122994, at *21 (D.N.J. Sep. 12, 2016). A Plaintiff who files
a per quod claim “could recover for the deprivation of her husband’s aid, society and conjugal

27

fellowship.” Landwehr v. Landwehr, 111 N.J. 491, 501 (1988) (internal citations and quotations
omitted). Here, as at least one of the TAC’s New Jersey state law claims has survived the motion
to dismiss, so too shall Plaintiffs’ per guod claim, and thus Defendants’ motion to dismiss will be
denied as to this claim.
Il. CONCLUSION
For the reasons explained herein, and for other good cause shown, Counts One, Four, Five,
Seven, and Nine will be dismissed with prejudice, and the individual defendants will be dismissed
from Count Two.
The District Court has provided Plaintiffs with multiple opportunities to amend their
Complaint. This Court’s previous Opinion essentially provided a roadmap that detailed the
deficiencies in Plaintiffs’ SAC, and yet Plaintiffs’ TAC still failed to cure the vast majority of
those deficiencies, In fact, Plaintiffs have been put on notice by this Court that future amended
complaints would be required to adhere to the pleading standards, lest it be dismissed with
prejudice. (Transcript of Telephone Conference with Judge Martinotti, ECF No. 93, 5:19-23)
(“Though I can tell you moving forward, counsel, this dismissal will be with prejudice,” and
warning Plaintiffs not to file a “baseless” Third Amended Complaint). Accordingly, granting
Plaintiffs leave to file yet another amended complaint is clearly futile, and all claims with the
exception of Counts Two, Three, Eight, and Ten will be dismissed with prejudice. Vamsidhar
Reddy Vurimindi v. City of Philadelphia, 521 F. App’x 62, 66 (3d Cir. 2013) (“Accordingly,
granting [the plaintiff] leave to file yet another amended complaint would have been futile, and
the District Court did not abuse its discretion by dismissing the third amended complaint with
prejudice.”’).
An appropriate Order follows.

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Date: February 28, 2023 /s/ Georgette Castner
GEORGETTE CASTNER, U.S.D.J.

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655209. Public record. Not legal advice.