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Kalick v. United States

United States District Court, D. New Jersey

July 30, 2014

ANDREW P. KALICK, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants

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[Copyrighted Material Omitted]

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Andrew P. Kalick, Pro se, Mount Ephraim, NJ.

Jennifer J. McGruther, DAG, State of New Jersey, Department of Law & Public Safety, Division of Law, Trenton, NJ, Attorney for Defendant Rowan University Board of Trustees.


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HONORABLE JEROME B. SIMANDLE, Chief United States District Judge.


This matter is before the Court on Defendant Rowan University Board of Trustees' (hereinafter, " Rowan University" or " Rowan" )[1] motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [Docket Item 12.] Plaintiff's claims stem from Defendant's alleged refusal to release Plaintiff's physical degree or official transcript despite his eligibility to receive same, as well as Rowan's alleged failure to recognize certain credits Plaintiff completed prior to enrolling at Rowan or recognize Plaintiff's completion of certain course requirements. Plaintiff's Complaint originally asserted claims against Rowan University and a host of federal agencies and officials, including the United States Department of Veterans Affairs and the United States Department of Education. Plaintiff has voluntarily dismissed all claims against the federal parties.

Defendant alleges that subject matter jurisdiction is lacking because Plaintiff's remaining claims do not arise from federal law and because Rowan is an arm of the State entitled to sovereign immunity. Further, Rowan argues it has not been served with the claim as required by New Jersey law and that the Complaint fails to state a claim upon which relief can be granted. The principal question presented is thus whether this Court has subject matter jurisdiction over Plaintiff's remaining claims against Rowan University.

For the reasons discussed below, the Court finds that it lacks subject matter jurisdiction and will grant Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) without prejudice.


A. Facts

The following facts, gleaned from Plaintiff's prolix Complaint, are accepted as true for the purposes of the instant motion.

This is a dispute about tuition payments, college credits and grades awarded at a state college. Plaintiff alleges that Defendant Rowan University failed to provide him with his degree and/or transcript after he successfully completed the requirements for an undergraduate degree. (Compl. [Docket Item 1] ¶ ¶ 13a, 13f, 14a, 18c, 24h.) It appears from Plaintiff's Complaint that Rowan is withholding Plaintiff's degree and transcript in part due to a dispute over tuition payments. (Id. ¶ ¶ 11d, 11e, 11g.) Plaintiff is a veteran entitled to educational benefits from the Department of Veteran Affairs (" VA" ). (Id. ¶ 4a.) Accordingly, while Plaintiff was enrolled at Rowan, the VA paid to Rowan a portion of Plaintiff's educational expenses

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based on reports the VA received from Rowan regarding tuition and fees. (Id. ¶ ¶ 11c, 11d, 11f, 11g, 11j, 13a, 13j, 13m, 18b, 18d.)

Plaintiff asserts that after he exhausted his " Chapter 30" benefits, he was entitled to payment by the VA of 70 percent of his tuition and fees under " Chapter 33." (Id. ¶ ¶ 13l, 15c.) Plaintiff claims that Rowan was paid in full for his tuition and fees during the " pendency of Chapter 30 benefits." (Id. ¶ ¶ 11d, 13q, 13r.) However, Plaintiff does not specify what amount was allegedly paid or what amount remains due. He only alleges that Rowan " has not refunded payments made to it under Chapter 33" and " has not incurred any loss with respect to benefits administered under Chapter 33." (Id. ¶ ¶ 13t, 13w.) Despite noting that his Chapter 33 benefits only covered a percentage of his tuition and fees, Plaintiff claims that " Rowan reported to VA tuition and fees charged (to Plaintiff) that were completely covered by VA (even at the 70% rate)." (Id. ¶ 13m.) As such, Plaintiff notes that " any possible allegation of debt would be exclusively to the university." (Id. ¶ 13l.) Plaintiff, however, claims he is " not indebted to Rowan in any manner." (Id. ¶ 13w.)

Plaintiff alleges a fraudulent scheme between Rowan and the VA through which Rowan was unjustly enriched. Plaintiff asserts that Rowan either " employed" or colluded with the VA, so the " VA would (and did) claim indebtedness by Plaintiff to VA as a result of courses allegedly not counting toward graduation." (Id. ¶ ¶ 11b, 13k.) Plaintiff claims that Rowan " intentionally misrepresented that Plaintiff was . . . taking courses that didn't count toward graduation" (id. ¶ 11b) and underreported his tuition and fees to the VA. (Id. ¶ ¶ 11c, 11d, 11e, 11g.)

Moreover, Plaintiff alleges that certain courses he enrolled in should have counted toward graduation, but did not. (Id. ¶ ¶ 11b, 13j, 24c.) Specifically, Plaintiff claims that although he received a passing grade in a music history class, Rowan, " after the fact, removed the course from Plaintiff's online degree evaluation." (Id. ΒΆ 14d.) Plaintiff further claims that some professors either intentionally awarded him failing ...

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