PELLECCHIA v. PRINCETON UNIVERSITY BOARD OF TRUSTEES

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARK J. PELLECCHIA,

Plaintiff,

V. Civil Action No. 23-21828 (GC) (JBD)

PRINCETON UNIVERSITY BOARD OF OPINION

TRUSTEES,

Defendant.

CASTNER, U.S.D.J.

THIS MATTER comes before the Court upon Defendant Princeton University’s Motion

to Dismiss Plaintiff Mark Pellecchia’s complaint pursuant to Federal Rule of Civil Procedure

(“Rule”) 12(b)(6). CECF No. 5.) Plaintiff opposed. (ECF Nos. 10 & 11.) The Court has carefully

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

78(b) and Local Civil Rule 78.1(b). For the reasons set forth below, and other good cause shown,

Defendant’s motion is GRANTED.

I. BACKGROUND

Plaintiff Mark Pellecchia claims that he suffered physical and emotional harm stemming

from incidents that occurred during his almost twenty-year employment with Defendant Princeton

University.! (ECF No. 1 at 9.)

I According to Defendant, Plaintiff was employed in Princeton University’s Office of

Information Technology from July 8, 2002, until April 3, 2020. (ECF No. 5-1 at 6.)

On October 3, 2023, Plaintiff filed a complaint against Princeton University in the Superior

Court of New Jersey, Mercer County, asserting claims for “infliction of bodily harm,” “intentional

infliction of emotional distress,” “negligent infliction of emotional distress,” and “invasion of

privacy.” (ld. at 10.) Prior to service of the complaint, Defendant removed the case to this Court

based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Ud. at 1-4.)

Plaintiff alleges that a series of “very subtle” incidents took place while he was employed

at Princeton University that “created a work environment” that was “intimidating, hostile, or

abusive” and that the “abuse ultimately extended out to his private life.”? (/d. at 11.) He alleges

that these incidents demonstrate that “Princeton University employees, affiliates, and townspeople

knew intimate details of his web surfing behaviors, spoken comments while in the privacy of his

home, and therapy sessions.” (/d. at 9.) The alleged incidents are as follows.

e In 2017, Plaintiff was at home, and he “placed a beer bottle under the cold tap and spun it

to cool it down.” The next day, while Plaintiff was playing softball, a Princeton University

student said to Plaintiff, “did you know that spinning a bottle under water is a way to cool

it down faster?” (/d. at 13.)

e In 2018:

o co-worker told Plaintiff that a photograph of Plaintiff's nephew and niece was

“cute.” When Plaintiff said that the children were not his, the co-worker “looked

surprised and walked out without allowing him to explain.” After this exchange,

“photos of new children showed up in several of his co-workers’ offices.” Plaintiff

told a co-worker that a girl in a photo on the co-worker’s credenza was “hot.” The

co-worker informed Plaintiff that the girl was still in high school. (/d. at 14.)

o Plaintiff was at home, and he “jested about having 80% good luck for the following

day.” The next day, while Plaintiff was trying to repair a server, Plaintiff spoke to

a co-worker who said, “there’s your 80% luck.” (Ud. at 13.)

2 Plaintiff indicates in his complaint that he suffers from complex post-traumatic stress

disorder and that he experienced traumatic incidents as a child. (ECF No. 1 at 8, 11.)

o While walking to lunch, Plaintiff saw people wearing blue shirts, and he

commented, “Blue, Blue.” The next day, a co-worker said “blue, blue” to Plaintiff

with a smirk. (Id. at 16.)

e In 2019:

o Plaintiff “purchased a bottle of Charlotte’s Web CBD oil” and placed the bottle in

his office’s “overhead cabinet.” The next day, a co-worker sarcastically told

Plaintiff to “make sure you shake the bottle really good first.” (Ud. at 15.)

o Plaintiff “drank a large glass of water from the filtered water dispenser” that

allegedly cause Plaintiff to become “high” within “minutes.” A co-worker

“witnessed the non-characteristic behavioral change.” (/d. at 17.)

e In October 2020, Plaintiff's “apartment in New Jersey was illegally entered and

combustible material was smeared on the gas burners of his stove.” (/d.)

e In September 2022, Plaintiff's “home in Colorado was illegally entered and the beer that

was brewing was contaminated.” (/d.)

e At unknown points:

o Plaintiff was “updating a twitter account page,” and Plaintiff's co-workers were

“reverting changes he had just made” and “laughing as [Plaintiff] went back to fix

the work they had undone.” (/d. at 14.)

o Aco-worker “displayed exceptionally aggressive behavior” toward Plaintiff during

“a campus intramural softball game.” Later, the same co-worker “began to

intentionally slow his speech” while on the telephone with Plaintiff in order to

“mirror” or “mimic” Plaintiff who was subject to a “nonconsensual drugging.” (Id.

at 15.)

o Plaintiff was at home and “passively messaged not to go to a softball game.” The

cleats Plaintiff brought to the game ended up being “a larger size and not the same

cleats” as those he owned. (/d.)

o While Plaintiff was working on a shared display, Plaintiffs co-worker “typed out

the letters ‘cry,’ as he looked across the table with a smirk.” (Id. at 16.)

o After Plaintiff made a brief reference to an event that occurred in his life, a co-

worker told Plaintiff, “I’m sorry that happened to you.” (d.)

= Plaintiff does not allege that the co-worker was responsible for the alleged “drugging.”

As a result of these alleged incidents, Plaintiff claims that he was diagnosed with complex

post-traumatic stress disorder. (/d. at 18.) He alleges that he “felt it necessary to move .. . to

another state out of fear for his own safety” and that he is “unable to move forward and live a

normal life.”* (Id.)

On December 4, 2023, Defendant moved to dismiss Plaintiff’s complaint under Rule

12(b)(6). (ECF No. 5.) On January 8, 2024, the Court issued an Order directing Plaintiff to

respond to the motion. (ECF No. 8.) On January 19, 2024, Plaintiff filed an opposition that simply

states, “[t]here does not appear to be any basis for dismissal.” (ECF No. 10.) On January 22,

2024, Defendant wrote that it saw “no reason to file a reply.” (ECF No. 11.)

Il. LEGAL STANDARD

On a motion to dismiss for failure to state a claim upon which relief can be granted, courts

“accept the factual allegations in the complaint as true, draw all reasonable inferences in favor of

the plaintiff, and assess whether the complaint and the exhibits attached to it ‘contain enough facts

to state a claim to relief that is plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131,

140 (3d Cir. 2023) (quoting Watters v. Bd. of Sch. Directors of City of Scranton, 975 F.3d 406,

412 (3d Cir. 2020)). “A claim is facially plausible ‘when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Clark v. Coupe, 55 F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau

of Prisons, 934 F.3d 368, 372 (3d Cir. 2019)). When assessing the factual allegations in a

complaint, courts “disregard legal conclusions and recitals of the elements of a cause of action that

Plaintiff also says that he “has been under financial attack since he received his retirement

401k portfolio in 2020,” and he cites a suit he filed in the United States District Court for the

District of Colorado against Fidelity Brokerage Services LLC. (ECF No. | at 12.) In addition, he

claims that there were “salary discrepancies” when he worked at Princeton, but Plaintiff provides

no factual detail about any such discrepancies. (Id.)

are supported only by mere conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood

Lab’ys LLC v. Thanoo, 999 F.3d 892, 903 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6)

motion bears the burden of “showing that a complaint fails to state a claim.” In re Plavix Mktg.,

Sales Pracs. & Prod. Liab. Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis v. Wells

Fargo, 824 F.3d 333, 349 (3d Cir. 2016)).

UI. DISCUSSION

The Court will dismiss Plaintiffs tort-based claims without prejudice because he does not

allege facts to substantiate a plausible claim against Defendant.° Considering Plaintiff’s pro se

status, the Court will give Plaintiff thirty days to move for leave to file an amended complaint to

try to remedy the defects identified herein.

Under New Jersey law,° “common-law assault requires: (1) an action intending to cause a

harmful or offensive contact or place a person in imminent apprehension of such contact; and (2)

the person is placed in imminent apprehension, while battery is premised ‘upon a nonconsensual

touching.’””’ Bernard v. Cosby, 648 F. Supp. 3d 558, 574-75 (D.N.J. 2023) (quoting Leang v.

2 Plaintiff at times cites various statutes and regulations, but unlike his expressly stated

common-law claims, there is no indication that Plaintiff intended to assert a claim under these

statutes and regulations. While the Court is committed to its duty to construe pro se pleadings

liberally, the Court will refrain from rewriting the pleading to assert claims that Plaintiff did not

set forth. See United States v. Peppers, 482 F. App’x 702, 704 (3d Cir. 2012) (“While a court must

construe a pro se litigant’s pleadings liberally, it need not act as [his] advocate.” (citations

omitted)).

6 Because Plaintiff's tort claims arise from his employment in New Jersey for a New Jersey-

based employer, this Court sitting in diversity in New Jersey will apply New Jersey law. See

Shelley v. Linden High Sch., Civ. No. 19-20907, 2021 WL 2850452, at *3 (D.N.J. July 7, 2021).

7 Although Plaintiff asserts a claim for “infliction of bodily harm,” assault and battery are

the common-law claims ordinarily asserted for such harm. See, e.g., Gibson v. United States, 457

F.2d 1391, 1396 n.7 (3d Cir. 1972) (“At common law, the remedy for the intentional infliction of

bodily harm resulting directly from the actor’s conduct was redressed by an action of trespass for

Jersey City Bd. of Educ., 969 A.2d 1097, 1117 (N.J. 2009)). Here, Plaintiff does not plausibly

allege that that he was subject to “nonconsensual touching” by Defendant or its employees or that

he was in “imminent apprehension” of “‘a harmful or offensive contact.” See Shelley v. Linden

High Sch., Civ. No. 19-20907, 2020 WL 6391191, at *3 (D.N.J. Nov. 2, 2020) (“The Complaint

does not allege that the Schools touched or contacted Plaintiff, nor does it allege that the Schools

attempted to touch Plaintiff or that Plaintiff feared an imminent harmful or offensive touch. . . .

Plaintiff has failed to plausibly allege assault and battery. These claims are dismissed.”). The

claim is therefore dismissed without prejudice.

For intentional infliction of emotional distress, a plaintiff must plead, among other things,

that the “defendant’s conduct was ‘extreme and outrageous.’ The conduct 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.’” Moretz v. Trustees of

Princeton, Civ. No. 21-19822, 2023 WL 9017155, at *6 (D.N.J. Dec. 29, 2023) (quoting Ingraham

v. Ortho-McNeil Pharm., 25 A.3d 1191, 1195 (N.J. Super. Ct. App. Div. 2011)).

Here, the conduct that Plaintiff complains of does not plausibly rise to the level of “extreme

or outrageous.” Plaintiff alleges that his co-workers, students, and others made certain comments

(e.g., “blue, blue”; “there’s your 80% luck”; “make sure you shake the bottle really good first”;

“cry”’) over several years that Plaintiff alleges shows that Defendant knew what Plaintiff was

saying or doing in private. Plaintiff does not allege plausible facts from which this Court could

infer a claim for intentional infliction of emotional distress. See, e.g., Shui v. Wang, Civ. No. 23-

2620, 2023 WL 8520778, at *6 (D.N.J. Dec. 8, 2023) (dismissing intentional infliction of

battery. Therefore, bodily harm so caused and, indeed, the act which caused it were both

customarily called a battery.” (citation omitted)).

emotional distress claim for lack of “extreme and outrageous conduct” where the defendants were

alleged to have “made working conditions . . . difficult and stressful and were ‘insulting,

condescending, and rude throughout the parties’ dealings’”’); Jayme v. MCI Corp., Civ. No. 07-55,

2008 WL 508601, at *5 (D.N.J. Feb. 21, 2008) (dismissing intentional infliction of emotional

distress claim where the defendant “used an irritating tense voice” on the phone with the plaintiff,

“banged the phone while [the plaintiff] was still talking,” and the plaintiff alleged that he “was

‘emotionally jarred,’ and that he ‘was humiliated like a slap on the face’”); Bishop v. Inacom, Inc.,

Civ. No. 99-664, 1999 WL 1416919, at *9 (D.N.J. Dec. 1, 1999) (finding insufficient that a

supervisor made “rude” and “degrading comments” about the plaintiff). Moreover, Plaintiff does

not allege that anyone at Princeton is connected in any way to the alleged break-ins to his homes

in New Jersey or Colorado. Plaintiff’s allegations are therefore insufficient for an intentional

infliction of emotional distress claim.

For negligent infliction of emotional distress, a “plaintiff must show that: (1) defendant

owed a duty to plaintiff; (2) defendant breached that duty; (3) plaintiff suffered severe emotional

distress; and (4) defendant’s breach proximately caused plaintiff's emotional distress.” Johnson

v. City of Hoboken, 299 A.3d 856, 864 (N.J. Super. Ct. App. Div. 2023) (quoting Dello Russo v.

Nagel, 817 A.2d 426, 435 (N.J. Super. Ct. App. Div. 2003)). Here, Plaintiff does not plead any

facts supporting a finding that Defendant breached a duty proximately causing Plaintiff severe

emotional distress. See, e.g., Larry v. State, No. A-1286-10T2, 2011 WL 6782438, at *2 (N.J.

Super. Ct. App. Div. Dec. 28, 2011) (“[T]he employer had no reason to foresee that its actions

would lead an employee in plaintiff’s position to experience fright or shock sufficient to cause

substantial injury.”). The claim is therefore dismissed without prejudice.

Finally, for invasion of privacy via an “intentional intrusion” claim,® it consists of an

“intentional intrusion, ‘physically or otherwise, upon the solitude or seclusion of another or his

private affairs or concerns’ that ‘would be highly offensive to a reasonable person.’” Barker v.

United Airlines, Inc., Civ. No. 23-3065, 2024 WL 378633, at *6 (D.N.J. Feb. 1, 2024) (quoting

G.D. v. Kenny, 15 A.3d 300, 319-20 (N.J. 2011)). Here, there are no non-conclusory factual

allegations that plausibly suggest that Defendant or one of Defendant’s employees or agents

invaded Plaintiff's private affairs. The claim is therefore dismissed without prejudice.

Even if Plaintiff plausibly stated the tort claims, Defendant argues that Plaintiff does not

identify tortious conduct by Princeton University as an institution nor does he allege plausible facts

to hold the University vicariously liable for the alleged intentional acts of those involved. (ECF

No. 5-1 at 16-17.)

Although employers may be liable for torts committed by their employees within the scope

of their employment, courts in New Jersey have long recognized that “[oJnly rarely will intentional

torts fall within the scope of employment.” Davis v. Devereux Found., 37 A.3d 469, 490 (N.J.

2012); see also Wells Fargo Bank, N.A. v. Friedman, No. A-1420-22, 2024 WL 3319829, at *5

(N.J. Super. Ct. App. Div. July 8, 2024) (“Importantly, our Supreme Court has noted that

‘[o]nly rarely will intentional torts fall within the scope of employment.’” (citation omitted)).

The factors used to determine if an employee’s tortious act is in the scope of his or her employment

are: “(a) it is of the kind he [or she] is employed to perform; (b) it occurs substantially within the

authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master;

8 The Court focuses on the claim of intentional intrusion on seclusion because there is no

suggestion that Plaintiff has been defamed, placed in a false light, or had his likeness appropriated.

See Rumbauskas v. Cantor, 649 A.2d 853, 856 (N.J. 1994) (listing the “four types of invasions of

privacy”’).

and (d) if force is intentionally used by the servant against another, the use of force is not

unexpectable by the master.” Davis, 37 A.3d at 490 (quoting Restatement (Second) of Agency §

228(1) (1958)).

Here, it is not clear to the Court if any of the acts complained of could plausibly give rise

to vicarious liability against Princeton University. The primary issue is that Plaintiff does not

allege that the comments and other actions were of the kind that Defendant’s employees were

employed to make; that the employees were motivated by a desire to serve the University; or that

any intentional force, if any, was expected by the University. See id. at 492 (“McClain’s conduct

is clearly outside of the scope of her employment. ... While McClain’s act was ‘substantially

within the authorized time and place limits’ of her job, it was not by any measure ‘actuated’ by a

purpose to serve Devereux.”); see also Roe ex rel. Roe v. Rutgers, State Univ. of New Jersey, Civ.

No. 13-1762, 2013 WL 3446456, at *5 (D.N.J. July 9, 2013) (“Plaintiffs fail to establish a viable

claim against Rutgers for the intentional torts of sexual assault, assault, and invasion of

privacy. Although Stubblefield was a Rutgers employee, her actions were allegedly intentional

and not within the scope of her employment. ... Furthermore, Stubblefield’s alleged actions were

not foreseeable and could not reasonably be actuated by a purpose of serving Rutgers.”’).

Finally, Defendant argues that Plaintiffs tort claims are time-barred. (ECF No. 5-1 at 11-

13.) Defendant argues that Plaintiff's claims are subject to a two-year statute of limitations in New

Jersey, and because Plaintiff’s active employment with the University ended in April 2020,’ more

? Defendant writes that “Plaintiff continued to be an employee of the University in an

inactive status (i.e., not performing any work) for purposes of receiving disability and medical

benefits only, .. . until May 6, 2022.” (ECF No. 5-1 at 6 n.1.)

than three years before he sued, the claims are out of time.!° (Jd. at 6, 11-13.) Because the Court

dismisses the complaint for the reasons already given, it does not reach the limitations argument

at this time. Several of the alleged incidents are undated, and Plaintiff should be given an

opportunity in an amended pleading to specify the alleged dates of his employment with Defendant

and when each incident occurred. The Court notes that the Third Circuit Court of Appeals has

instructed that a claim should be dismissed on limitations grounds “only if the time alleged in the

statement of a claim shows that the cause of action has not been brought within the statute of

limitations,” and “if the bar is not apparent on the face of the complaint, then it may not afford the

basis for a dismissal of the complaint under Rule 12(b)(6).” Fried v. JP Morgan Chase & Co.,

850 F.3d 590, 604 (d Cir. 2017) (quoting Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).

IV. CONCLUSION

For the reasons set forth above, and other good cause shown, Defendant’s Motion to

Dismiss (ECF No. 5) is GRANTED. An appropriate Order follows.

Dated: July 30, 2024 Lente

RGEITE CASTNER

ITED STATES DISTRICT JUDGE

io Defendant includes a certification from counsel and several exhibits intended to confirm

when Plaintiffs employment with the University concluded. (See ECF Nos. 5-2 & 5-3.)

10