Case 3:07-cv-01322-TJM-DEP Document 46 Filed 10/17/08 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
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`Chardles O. Ogindo,
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`Plaintiff,
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`v.
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`07-CV-1322
`
`Lois DeFleur, Individually and in her official
`capacity as President of Binghamton University;
`John J. Eisch, Individually and in his official
`capacity as Professor of Chemistry at Binghamton
`University and Plaintiff’s advisor; David
`Doetschman, Individually and in his official
`capacity as the Chemistry Chair person;
`Alistair Lees, Individually and in his official
`capacity as the Chemistry chair that succeeded
`David Doetschman; and Wayne Jones, Individually
`and in his official capacity as the Director of the
`Graduate Program Committee,
`
`Defendants.
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`THOMAS J. McAVOY
`Senior United States District Judge
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`DECISION and ORDER
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`Plaintiff Charles Ogindo commenced the instant asserting various claims including
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`discrimination, violation of his constitutional right, copyright infringement, and patent
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`infringement, breach of contract, promissory estoppel, and fraud, arising out of his
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`constructive discharge from the Binghamton University doctoral program and dismissal from
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`Binghamton University. Presently before the Court is Defendants’ motion to dismiss
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`pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
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`I.
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`FACTS
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`The following facts are taken from Plaintiff’s Amended Complaint and, for purposes
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`of the instant motion, are assumed to be true.
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`In January 2002, Plaintiff was accepted into Binghamton University’s doctoral
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`program in the Department of Chemistry. In December 2002, Plaintiff was invited by
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`Defendant John Eisch to join a research group for doctoral dissertation research. Eisch
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`verbally assured Plaintiff that he “would be able to defend his dissertation in December of
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`2005" and that “obtaining publications would not be difficult.” Am. Compl. at ¶ 15.
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`Plaintiff received positive appraisals towards his May 2006 graduation date.
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`Plaintiff “passed his coursework, cumulative examinations and oral examinations, and was
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`admitted to doctoral candidacy as an ABD (All But Dissertation) when he submitted his
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`dissertation prospectus” in March 2004. Id. at ¶ 16. Thereafter, Eisch assigned Plaintiff to
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`duplicate certain experiments. Plaintiff followed Eisch’s direction, but was unable to obtain
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`the same results as the prior student experimenter. Id. at ¶ 17. According to Plaintiff, his
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`experiments “disproved Eisch’s hypotheis as written up in Jane Sohng’s Honors thesis as
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`well as disproving numerous other experiments along the same lines previously published by
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`Defendant Eisch.” Id. Plaintiff alleges that “Eischs encouraged [Plaintiff] to forge data, which
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`[Plaintiff] refused to do.”
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`“[I]n the course of his experimentation, [Plaintiff] discovered a novel route to metal
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`carbene complexes and a novel catalyst, trinuclear nickel carbene species, with . . . a
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`combined possible market value of over $200 million. . . .” Id. at ¶ 18. In April 2005, Plaintiff
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`completed his doctoral research proposals. Plaintiff “presented to Eisch by interpretation a
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`proposed experiment which would be a route to the Grubbs catalyst.” Id. at ¶ 19. Eisch
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`would not allow Plaintiff to perform the experiment. Shortly thereafter, Eisch removed
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`Plaintiff from the project and assigned him to a different project. In the new experiments,
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`Plaintiff did not get the same results as others had. By letter dated December 14, 2005,
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`Eisch terminated Plaintiff’s doctoral dissertation research “on the . . . ground that [Plaintiff] . .
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`. lacked aptitude.” Id. at ¶ 21. Plaintiff was, thereafter, returned to the laboratory in a
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`probationary status.
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`In January 2006, Plaintiff was prevented from taking a position at SUNY-Oneonta
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`because Eisch threatened “that Plaintiff would not complete his degree if he took the
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`position.” Id. at ¶ 23. Nevertheless, by letter dated February 19, 2006, Eisch praised
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`Plaintifif’s work and promised to expedite Plaintiff’s doctoral studies “as expeditiously as
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`possible.” Id. at ¶ 24.
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`In June 2006, Eisch “abruptly terminated [Plaintiff], citing his performance on the
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`cleavage experiment. The Defendant removed the Plaintiff from the laboratory and
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`confiscated his laboratory notebooks et al.” Id. at ¶ 25. “Eisch went on to block all
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`publications by Plaintiff, as well as any presentations in professional seminars. . . . In
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`addition, Eisch himself published a corrective paper on the cleavage experiements without
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`including Plaintiff as a co-author or giving him any credit. . . .” Id. at ¶ 26.
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`In August 2006, Plaintiff was “for all intent and purposes dismissed from the
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`doctoral program. On or about March 26, 2008, [Plaintiff] was officially dismissed and/or
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`disenrolled from Binghamton University.” Id. at ¶ 30.
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`As a result of the foregoing, Plaintiff commenced the instant action asserting claims
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`of: race-based discrimination (First Cause of Action); discrimination on account of national
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`origin (First Cause of Action); retaliation in violation of 42 U.S.C. §§ 1981 and 1982 and 20
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`U.S.C. § 1681(a) (Second Cause of Action); substantive and procedural due process
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`violations (Third Cause of Action); copyright infringement (Fourth Cause of Action); patent
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`infringement (Fifth Cause of Action); breach of implied contract (Sixth Cause of Action);
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`promissory estoppel (Seventh Cause of Action); educational malpractice (Eighth Cause of
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`Action); and fraud (Ninth Cause of Action). Presently before the Court is Defendants’ motion
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`pursuant to Fed. R. Civ. P. 12(b)(1) and/or (6) seeking dismissal of the Complaint in its
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`entirety.
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`II.
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`STANDARD OF REVIEW
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`A motion brought under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the
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`claims pleaded in a case. On a motion to dismiss, all factual allegations in the complaint are
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`accepted as true, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
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`507 U.S. 163, 164, 113 S. Ct. 1160, 122 L. Ed.2d 517 (1993), and the Court must determine
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`whether Plaintiff has pleaded “enough facts to state a claim to relief that is plausible on its
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`face.” Bell Atl. Corp. v. Twombly, --- U.S. ----, ----, 127 S. Ct. 1955, 1969, 167 L. Ed.2d 929
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`(2007). As such, the Court must determine whether the “[f]actual allegations . . . raise a right
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`to relief above the speculative level, on the assumption that all the allegations in the
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`complaint are true (even if doubtful in fact).” Id., at 1965; see Barkley v. Olympia Mortgage
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`Co., 2007 WL 2437810, at * 9 (E.D.N.Y. Aug. 22, 2007).
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`III.
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`DISCUSSION
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`a.
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`Discrimination on Account of Race and/or National Origin
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`Defendants move to dismiss the discrimination claims on the grounds that: (1) the
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`Complaint lacks sufficient facts alleging that other students were similarly situated to Plaintiff
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`in all material aspects to sustain a claim of selective treatment; (2) the Complaint fails to set
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`forth any facts upon which it could be found that Defendants acted with an impermissible
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`motive; and (3) there are no allegations of personal involvement by Defendant DeFleur.
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`Although Defendants’ contentions may prove to be true, their arguments impose
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`too high of a standard on a motion to dismiss. To survive a motion to dismiss, Plaintiff “need
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`not allege ‘specific facts establishing a prima facie case of discrimination.’” Boykin v.
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`Keycorp, 521 F.3d 202, 212 (2d Cir. 2008) (quoting Swierkiewicz v. Sorema N.A., 534 U.S.
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`506, 508, 122 S. Ct. 992 (2002)). Similarly, Plaintiff need not allege facts demonstrating
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`discriminatory animus. Boykin, 521 F.3d at 215. “[I]t is sufficient that [Plaintiff’s] complaint
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`states that . . . [he is Nigerian], describes [Defendants’] actions with respect to [his dismissal
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`from Binghamton University] and alleges that [he] was treated differently from similarly
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`situated . . . [students] because of [his] race [and national origin].” Id. Plaintiff’s Complaint
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`sufficiently alleges facts that put Defendants on notice of the basis for his claim and the
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`grounds upon which it rests and render the discrimination claim plausible. See Boykin, 521
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`F.3d at 213. Plaintiff’s Amended Complaint alleges that Plaintiff was the victim of adverse
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`treatment by Defendants (terminated from the doctoral program), points to instances where
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`other non-Nigerian students appear to have been treated more favorably, and further
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`attributes statements to certain Defendants that could be found to evidence a discriminatory
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`motive. This is sufficient to state a plausible claim of discrimination on account of race or
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`national origin. Whether Plaintiff’s allegations have any evidentiary support, whether the
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`1
` Plaintiff contends that white students received summer stipends, whereas he did not; Eisch
`stopped Plaintiff from publishing and making presentations while Eisch engaged in co-authorship with
`white students; Eisch prevented Plaintiff from obtaining a teaching position, whereas a white student
`received a teaching position; and Plaintiff’s dissertation was sent for outside expert review, whereas no
`white students had their dissertations sent out for outside review.
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`other non-Nigerian students were similarly situated, and whether Defendants acted with a
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`discriminatory animus are best determined at trial or on a motion for summary judgment.
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`Plaintiff’s Complaint fails, however, as to Defendant DeFleur. There can be no
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`liability under 42 U.S.C. § 1983 unless a Defendant is found to have been personally
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`involved. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). Plaintiff’s Complaint fails to
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`make sufficient allegations suggesting any personal involvement as to Defendant DeFleur.
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`Accordingly, the claims as to her do not rise above the speculative level, are not plausible,
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`and fail to state a claim upon which relief can be granted.
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`Defendant DeFleur’s motion to dismiss the First Cause of Action is granted. In all
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`other respects, Defendants’ motion to dismiss the First Cause of Action is denied.
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`b.
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`Statute of Limitations
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`Defendants next argue that any claims arising out of events that transpired in the
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`summers of 2003 and 2004 are barred by the three-year statute of limitations applicable to
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`claims under § 1983. Plaintiff concedes that such claims are time-barred, but were included
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`merely to provide “a history of such discriminatory events.” Pl’s Mem. of Law at 3.
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`Accordingly, any discrete claims of discrimination occurring more than three years prior to the
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`commencement of this action are barred.
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`c.
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`42 U.S.C. § 1981
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`Defendants move to dismiss Plaintiff’s claims under 42 U.S.C. § 1981 on the
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`ground that the Complaint fails to allege an intent to discriminate on account of Plaintiff’s
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`race. For the reasons stated in connection with the analysis of the discrimination claims
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`brought under 42 U.S.C. § 1983, the Court finds that the Complaint adequately states a claim
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`under § 1981. The elements of a § 1981 claim are: (1) plaintiff's membership in a racial
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`minority; (2) defendant's intent to discriminate on the basis of race; and (3) discrimination
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`concerning the plaintiff's ability to make and enforce contracts, sue, be party to a suit, give
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`evidence, or fully and equally enjoy the benefit of all laws and proceedings for the security of
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`persons and property. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087
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`(2d Cir. 1993). Section 1981 also recognizes a cause of action for retaliation in response to
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`the plaintiff’s assertion of a right protected by § 1981. Hawkins v. 1115 Legal Serv. Care,
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`163 F.3d 684, 693 (2d Cir. 1998). To establish a prima facie case of retaliation under §
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`1981, Plaintiff must show that (1) he was engaged in a protected activity, (2) Defendants
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`were aware of his participation in the protected activity, (3) Defendants took adverse action
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`against him, and (4) a causal connection existed between the protected activity and the
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`adverse action. See, e.g., Gordon v. New York City Bd. Of Educ., 232 F.3d 111, 116 (2d Cir.
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`2000) (discussing the elements of retaliation under Title VII).
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`Here, Plaintiff’s Complaint alleges that he filed litigation against Defendants,
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`Defendants knew of the litigation, he was terminated from the doctoral program, and he was
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`dismissed after filing a lawsuit against Defendants. These allegations, if true, sufficiently put
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`Defendants on notice of the claim, the grounds for the claim, and render the claim legally
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`plausible. Again, whether Plaintiff’s allegations are true, whether there is evidence
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`supporting Plaintiff’s allegations, whether his prior litigation was protected by § 1981, and
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`whether there is a causal connection between the prior litigation and his dismissal from the
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`University are best determined at trial or on a summary judgment motion. Accordingly, the
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`motion to dismiss this claim is denied.
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`Defendants next claim that Plaintiff fails to allege how any of the named
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`Defendants were personally involved in a violation of § 1981. Neither the Amended
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`Complaint nor Plaintiff’s opposition shed much light on this issue. Fairly read, however, the
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`Amended Complaint suggests that Defendants Eisch, Jones, Lees, and Doetschman were
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`involved in the dismissal process. There are insufficient allegations in this regard concerning
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`Defendant DeFleur. Accordingly, the § 1981 claim is dismissed as to Defendant DeFleur.
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`d.
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`42 U.S.C. § 1982
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`Defendants move to dismiss Plaintiff’s claims under 42 U.S.C. § 1982 on the
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`ground that Plaintiff makes no allegation of discrimination in connection with real or personal
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`property rights. Plaintiff has not responded to this claim, thereby indicating his consent to the
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`relief granted. N.D.N.Y.L.R. 7.1(b)(3).
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`In any event, upon review of the Complaint, the Court finds that Plaintiff fails to
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`state a claim for a violation of 42 U.S.C. § 1982. Section 1982 provides that “[a]ll citizens of
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`the United States shall have the same right, in every State and Territory, as is enjoyed by
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`white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal
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`property.” The Amended Complaint makes no claim that Defendants prevented Plaintiff from
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`inheriting, purchasing, leasing, selling, holding, or conveying property. Accordingly, this claim
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`is dismissed.
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`e.
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`20 U.S.C. § 1681(a)
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`Defendants move to dismiss Plaintiff’s claim pursuant to 20 U.S.C. § 1681(a) on
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`the ground that Plaintiff makes no allegation of gender-based discrimination. Plaintiff has not
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`responded to this claim, thereby indicating his consent to the relief granted. N.D.N.Y.L.R.
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`7.1(b)(3).
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`In any event, upon review of the Complaint, the Court finds that Plaintiff fails to
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`state a claim for a violation of 20 U.S.C. § 1681(a). That section provides that “[n]o person in
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`the United States shall, on the basis of sex, be excluded from participation in, be denied the
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`benefits of, or be subjected to discrimination under any education program or activity
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`receiving Federal financial assistance. . . .” The Amended Complaint makes no claim that
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`Defendants acted on account of Plaintiff’s gender. Accordingly, this claim is dismissed.
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`f.
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`Due Process
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`Defendants next move to dismiss Plaintiff’s due process claims on the ground that
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`he is not entitled to a pre-deprivation hearing prior to academic dismissal. While Defendants
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`are correct that academic dismissals are not subject to pre-deprivation hearings, a due
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`process interest is implicated where it is contended that the dismissal was motivated by bad
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`faith or ill will unrelated to academic performance. Branum v. Clark, 927 F.2d 698, 705 (2d
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`Cir. 1991). Here, Plaintiff claims that he was terminated not for academic reasons, but for
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`improper motives, including reasons relating to his race and national origin. Because Plaintiff
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`alleges facts supporting an inference that Defendants were motivated by ill will, rather than
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`academic performance, in dismissing him, he has stated a valid procedural due process
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`claim. Id; see also Oladokun v. Ryan, 2007 WL 3125317, at *4 (S.D.N.Y. 2007).
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`Plaintiff’s substantive due process claim must, however, be dismissed. “The Due
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`Process Clause . . . ‘does not transform every tort committed by a state actor into a
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`constitutional violation.’” Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (quoting
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`DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 202 (1989).
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`Substantive due process applies only to a narrow range of extreme acts that can be said to
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`be “‘so egregious, so outrageous, that it may fairly be said to shock the contemporary
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`conscience.’” Lombardi, 485 F.3d at 79 (quoting Penal v. DePrisco, 432 F.3d 98, 112 (2d
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`Cir. 2005). The conduct at issue “must be truly ‘brutal and offensive to human dignity.’”
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`Lombardi, 485 F.3d at 81 (quoting Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d
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`168, 173 (2d Cir. 2002)). Although the Amended Complaint alleges that Defendants acted to
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`intentionally harm Plaintiff, the allegations in the Amended Complaint simply fail to rise to the
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`level of behavior necessary to sustain a substantive due process claim.
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`Defendants also claim that Plaintiff fails to sufficiently allege personal involvement.
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`Plaintiff’s Amended Complaint is less than clear as to who is claimed to be involved in this
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`procedural due process violation. The Court finds that there are inadequate allegations of
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`personal involvement as to Defendant DeFleur. There are no factual allegations tending to
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`suggest that DeFleur was involved in the dismissal process. Accordingly, the due process
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`claims are dismissed as to her. The Court finds that a fair reading of the Amended
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`Complaint suggests that the remaining named Defendants may have been sufficiently
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`involved in the dismissal process such that claims are validly asserted against them. If, after
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`discovery, there is evidence suggesting that the remaining Defendants in this Court were not
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`personally involved, then Defendants may move for summary judgment on this issue.
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`g.
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`Qualified Immunity
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`Defendants next move for dismissal of the constitutional claims on the ground of
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`qualified immunity. As discussed, the allegations in the Amended Complaint give rise to
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`claims of discrimination and due process violations against certain Defendants. To the
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`extent the Amended Complaint states valid claims against these Defendants, they are not
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`entitled to qualified immunity because it was well-settled at all times relevant hereto that it
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`was unlawful to intentionally discriminate against someone on account of their race or
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`national origin. It also was well-settled that a due process interest is implicated where
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`academic dismissal is motivated by bad faith or ill will unrelated to academic performance.
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`Further, it is not objectively reasonable to discriminate against someone on account of their
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`race or national origin or to terminate them from an academic program for reasons unrelated
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`to academic performance. The motion to dismiss on grounds of qualified immunity is,
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`therefore, denied.
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`h.
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`Copyright Infringement
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`Defendants next seek dismissal of Plaintiff’s copyright claim. This motion is
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`granted, albeit on grounds other than those raised by Defendants. The Court has an
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`independent obligation to ensure it has subject matter jurisdiction over claims brought before
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`it and may do so sua sponte. Cave v. East Meadow Union Free School Dist., 514 F.3d 240,
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`250 (2d Cir. 2008). The Copyright Act “regulates a district court’s authority to adjudicate a
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`copyright claim.” In re Literary Works in Electronic Databases Copyright Litigation, 509 F.3d
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`116, 121 (2d Cir. 2007). Pursuant to 17 U.S.C. § 411(a), “no action for infringement of the
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`copyright in any United States work shall be instituted until preregistration or registration of
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`the copyright claim has been made in accordance with this title.” Based on this statute, it is
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`well-settled that, “[a]lthough a copyright need not have been registered in all cases before it
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`may be infringed, the owner of that copyright must register the copyright before a federal
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`court can entertain an infringement suit.” Brewer-Giorgio v. Producers Video, Inc., 216 F.3d
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`1281, 1285 (11 Cir. 2000); see also Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2d
`th
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`Cir. 2001). The Second Circuit has explicitly held that “section 411(a)’s registration
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`requirement limits a district court’s subject matter jurisdiction to claims arising from registered
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`copyrights only.” In re Literary Works in Electronic Databases Copyright Litigation, 509 F.3d
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`at 122. Thus, “[t]he registration requirement is a jurisdictional prerequisite to an infringement
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`suit.” M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990).
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`Here, the Amended Complaint makes no claim that Plaintiff registered his works.
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`Plaintiff has, therefore, failed to demonstrate that the Court has subject matter jurisdiction
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`over his copyright infringement claim. Accordingly, that claim is dismissed.
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`i.
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`Patent Infringement
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`Defendants move to dismiss Plaintiff’s patent infringement claim. Only a “patentee”
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`is entitled to bring a civil action for infringement of the patent. Morrow v. Microsoft Corp., 499
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`F.3d 1332, 1339 (Fed. Cir. 2007); see also 35 U.S.C. § 281. A “patentee” “includes not only
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`the patentee to whom the patent was issued but also the successors in title to the patentee.”
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`35 U.S.C. § 100. This claim must be dismissed because Plaintiff fails to allege a patent was
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`issued to him or that he otherwise has the right to bring a patent claim on behalf of someone
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`who does own a patent. See Kunkel v. Topmaster Intern., Inc., 906 F.2d 693, 695 (Fed. Cir.
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`1990) (requiring the plaintiff to plead ownership of a patent still in force); see also Fed. R.
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`Civ. P. Form 18 (requiring the complaint to include an allegation that the plaintiff owns the
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`patent).
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`j.
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`Breach of Implied Contract
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`Defendant next moves to dismiss the breach of implied contract claim on the
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`ground that there is no plausible claim that any of the individual Defendants were parties to
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`an implied contract with Plaintiff. Plaintiff responds that an implied contract was created by
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`virtue of Binghamton University manuals and representations made by Defendants, but that
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`he cannot specify what specific clauses were breached because “of the secrecy of
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`Defendants and other school personnel.” Am. Compl. at ¶ 72.
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`Any claims of breach of implied contract against the individual Defendants are
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`dismissed for failure to state a claim. There are no facts or plausible allegations that any of
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`the individual Defendants, agents and/or employees of Binghamton University, personally
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`entered into a contractual relationship with Plaintiff. Rather, any contractual relationship that
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`existed was between Plaintiff and Binghamton University.
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`To the extent Plaintiff seeks breach of implied contract damages against
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`Binghamton University through his allegations against the individuals acting in their official
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`capacities, they must be dismissed. The official capacity claims are, in actuality, claims
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`against Binghamton University itself. Binghamton University is an “arm of the state” and,
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`therefore, a claim for monetary damages against it is barred by the Eleventh Amendment.
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`See Clissuras v. City Univ. of New York, 359 F.3d 79, 83 (2d Cir. 2004); Garcia v. S.U.N.Y.
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`Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Dube v. State
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`University of New York, 900 F.2d 587, 594-95 (2d Cir. 1990); see also Sank v. City Univ. of
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`New York, 112 Fed. Appx. 761 (2d Cir. 2004); Acquaah v. State Univ. of New York Health
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`Sciences Center at Brooklyn, 199 F.3d 1321 (2d Cir. 1999). Inasmuch as Plaintiff’s sixth
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`cause of action fails to state a claim against the individual defendants, does not seek to
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`enjoin conduct that violates the federal constitution, and his claim for money damages
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`against the State of New York is barred by the Eleventh Amendment, the sixth cause of
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`action is dismissed.
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`k.
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`Promissory Estoppel
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`Defendants moves to dismiss Plaintiff’s promissory estoppel claim (the seventh
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`cause of action) on the ground that Plaintiff fails to allege a clear and unequivocal promise
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`upon which Plaintiff reasonably relied to his detriment. Plaintiff’s Amended Complaint
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`alleges that he reasonably relied on Eisch’s promises that Plaintiff would be able to defend
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`his dissertation in December 2005, that obtaining publication would not be hard, and that he
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`would expedite Plaintiff’s doctoral studies as much as possible.
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`This cause of action fails to state a claim upon which relief can be granted. The
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`elements of a promissory estoppel claim are: (1) a clear and unambiguous oral promise; (2)
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`reasonable reliance upon the promise; and (3) injury caused by the reliance. New York City
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`Health and Hosps. Corps. v. St. Barnabas Hosp., 10 A.D.3d 489, 491 (1 Dept. 2004).
`st
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`Plaintiff’s Complaint fails to identify any clear and unambiguous promises upon which he
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`reasonably relied. Any statements that (i) obtaining publication would not be difficult; (ii)
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`Eisch “would expedite the Plaintiff’s doctoral studies as expeditiously as possible”; or (iii)
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`Plaintiff could defend his dissertation in December 2005, are not clear and unambiguous
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`promises. To the extent that Eisch’s statement that Plaintiff could defend his dissertation in
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`December 2005 can be construed to be a clear and unambiguous promise, Plaintiff did not
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`reasonably rely on that promise. Plaintiff reasonably knew, or should have know, that his
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`ability to defend his dissertation in December 2005 could not be guaranteed, but would
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`depend on issues including his academic performance. Indeed, Plaintiff was never promised
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`that he would receive his doctoral degree. Lastly, Plaintiff does not identify any injury caused
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`by the reliance. Accordingly, this claim is dismissed.
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`l.
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`Educational Malpractice
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`Defendants move to dismiss the educational malpractice claim on the ground that
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`New York does not recognize any such cause of action. Defendants are correct that New
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`York does not recognize such a claim. Torres v. Little Flower Children’s Servs., 64 N.Y.2d
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`119 (1984); Simons v. Lycee Francais de New York, 47 A.D.3d 416, 850 N.Y.S.2d 23 (1st
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`Dep’t 2008); Alligood v. County of Erie, 299 A.D.2d 840 (4 Dep’t 2002). Citing Baldridge v.
`th
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`Case 3:07-cv-01322-TJM-DEP Document 46 Filed 10/17/08 Page 15 of 17
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`State, 293 A.D.2d 941 (3d Dep’t 2002), Plaintiff responds that an educational malpractice
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`action is properly considered through the “back door” under a breach of contract analysis is
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`incorrect.
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`Plaintiff’s educational malpractice claim must be dismissed. New York’s policy of
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`precluding educational malpractice claims may not be circumvented by couching the claim in
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`terms of some other cause of action. Alligood, 299 A.D.2d at 840 (“The essence of both the
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`breach of contract and breach of fiduciary duty causes of action is that plaintiffs are entitled
`
`to money damages because of defendants' educational malpractice. There is, however, no
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`cognizable cause of action in New York for educational malpractice.”). To the extent Plaintiff
`
`is attempting to re-assert a breach of contract claim against the University as described in
`
`Baldridge, for the reasons previously discussed, such a claim is barred by the Eleventh
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`Amendment and Plaintiff has no such contractual relationship with the individual defendants.
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`This claim is, therefore, dismissed.
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`m.
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`Fraud
`
`Defendants next seek dismissal of Plaintiff’s fraud claim. Plaintiff’s Amended
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`Complaint alleges that Defendant Eisch “deceived Plaintiff” by indicating that he would
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`expedite his doctorate, but undertook actions to prevent the award of the doctorate and
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`“tricked” Plaintiff “out of his notebooks and surreptitiously appropriat[ed] Plaintiff’s intellectual
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`property rights.” According to the Complaint, Defendants engaged in a scheme “to deprive
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`Plaintiff authorship and/or ownership of his invention and . . . unjustly profit from the said
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`invention.” Am. Compl. at ¶¶ 88-92.
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`This claim, too, fails to state a claim upon which relief can be granted. The
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`elements of a fraud claim are “representation of a material existing fact, falsity, scienter,
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`Case 3:07-cv-01322-TJM-DEP Document 46 Filed 10/17/08 Page 16 of 17
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`deception and injury.” New York Univ. v. Cont'l Ins. Co., 87 N.Y.2d 308, 318 (1995). Of
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`course, fraud claims must be pled with particularity. Fed. R. Civ. P. 9(b). As previously
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`discussed in connection with the promissory estoppel claim, Eisch’s statement that he would
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`expedite Plaintiff’s doctoral program “as expeditiously as possible” is not a misrepresentation
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`of a material existing fact. Plaintiff’s fraud claim is simply a repackaged version of, and is
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`subsumed by, his breach of contract claim whereby he contends that he fulfilled the
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`requirements of the doctoral program, but Defendants refused to award him his degree.
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`Accordingly, this claim is dismissed.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART
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`and DENIED IN PART as follows:
`
`a.
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`Plaintiff’s claim of race-based and national origin discrimination contained in
`
`his First Cause of Action is DISMISSED AS TO DEFENDANT DEFLEUR
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`ONLY; in all other regards the motion to dismiss the discrimination claims is
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`DENIED;
`
`b.
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`Plaintiff’s claim pursuant to 42 U.S.C. § 1982 is DISMISSED (Second Cause
`
`of Action);
`
`c.
`
`Plaintiff’s claim pursuant to 20 U.S.C. § 1681 is DISMISSED (Second Cause
`
`of Action);
`
`d.
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`Plaintiff’s claim pursuant to 42 U.S.C. § 1981 is DISMISSED AS TO
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`DEFENDANT DEFLEUR; in all other regard, Defendants’ motion to dismiss
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`the § 1981 claim is DENIED (Second Cause of Action);
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`e.
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`Plantiff’s procedural due process claim is DISMISSED AS TO DEFENDANT
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`DEFLEUR; in all other regard, Defendants’ motion to dismiss the procedural
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`due process claim is DENIED (Third Cause of Action);
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`f.
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`Plaintiff’s substantive due process claim is DISMISSED (Third Cause of
`
`Action);
`
`g.
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`Plaintiff’s copyright infringement claim is DISMISSED (Fourth Cause of
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`Action);
`
`h.
`
`i.
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`Plaintiff’s patent infringement claim is DISMISSED (Fifth Cause of Action);
`
`Plaintiff’s Breach of Implied Contract claim is DISMISSED (Sixth Cause of
`
`Action);
`
`j.
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`Plaintiff’s Promissory Estoppel claim is DISMISSED (Seventh Cause of
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`Action);
`
`k.
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`Plaintiff’s Educational Malpractice claim is DISMISSED (Eighth Cause of
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`Action); and
`
`l.
`
`Plaintiff’s Fraud claim is DISMISSED (Ninth Cause of Action).
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`IT IS SO ORDERED.
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`Dated:October 16, 2008
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