MICHAEL OKPOR v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3090-04T33090-04T3

MICHAEL OKPOR,

Plaintiff-Appellant,

v.

RUTGERS, THE STATE UNIVERSITY

OF NEW JERSEY,

Defendant-Respondent.

________________________________

 

Submitted: April 25, 2006 - Decided May 12, 2006

Before Judges Kestin and Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-2479-04.

Michael Okpor, appellant pro se.

Norris, McLaughlin & Marcus, attorneys for respondent (Edward G. Sponzilli, of counsel and, with Keith D. McDonald, on the brief).

PER CURIAM

Plaintiff, Michael Okpor, appeals from the trial court's orders of January 21, 2005 denying his motion for leave to file a second amended complaint and granting defendant's motion for summary judgment. The trial court also denied plaintiff's motion for reconsideration in an order entered on January 27, 2005. Argument on the initial motions occurred on December 17, 2004, and argument on the motion for reconsideration occurred on January 21, 2005.

Plaintiff had been enrolled at Rutgers, The State University of New Jersey, defendant herein. He was a student in the School of Business at Camden from 1997 until January 30, 2002, the date of his academic dismissal. In his initial complaint, filed on January 23, 2004, plaintiff sought a review of his academic record and a change of grade in specified courses from "F" for failure to "W" for withdrawal, and reinstatement with the right to take all of the courses he had failed with no additional charge for tuition. In his amended complaint, plaintiff added a second count alleging "grievous financial loss, anxiety, and depression" and demanding a judgment for damages, interest and costs of suit. In his motion for leave to file a second amended complaint, plaintiff sought to add counts alleging breach of contract and of the implied covenant of good faith and fair dealing, and consumer fraud. In his brief in support of the motion, he asserted that his initial and amended complaint had stated a claim for violation of 42 U.S.C.A. 1983. Even with the most indulgent reading of the pleadings, no such claim can be found, and the trial court did not address it. Thus, that issue is not before us on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

We note that all of plaintiff's claims, including a 1983 claim and other causes of action arising from federal statutes, were raised in an action filed in the United States District Court for the District of New Jersey. They were considered on the basis of an amended complaint filed on February 14, 2005. For the reasons stated in an opinion dated August 23, 2005, Judge Wolfson granted defendant's motion to dismiss that complaint with prejudice. In deciding the matter, she thoroughly analyzed the factual background, and concluded that plaintiff had made no claim for which relief could be afforded in a federal court.

The gravamen of plaintiff's claim in this matter is that, by reason of automobile accidents, he had been medically disabled from fulfilling the conditions of a reinstatement following an earlier academic dismissal. According to the complaint, plaintiff had been academically dismissed from the University in February 1999. He was reinstated in May 2001, agreeing to complete the requirements of several courses in the ensuing semester. Plaintiff alleges that another accident occurred that fall, rendering him unable to complete the courses. Failing grades were entered and plaintiff's request for a retroactive withdrawal was denied. The result was the second academic dismissal in January 2002.

Plaintiff's formal petition to defendant for re-enrollment and change of grades was denied, and this suit followed. Plaintiff has alleged that the University acted in contravention of its own guidelines for course withdrawal, and denied plaintiff his "right to complete his undergraduate degree."

The motion judge dismissed the complaint on the basis that plaintiff had failed to comply with either the ninety-day notice requirement of the Tort Claims Act, N.J.S.A. 59:8-8a, or the Act's two-year statute of limitations, N.J.S.A. 59:8-8b. In his written and oral presentations on the motions, plaintiff made no adequate or persuasive showing that the ninety-day notice requirement had been met. Thus, we view the motion judge's dismissal of the tort claims in the complaint as manifestly correct. Because the dismissal on the ninety-day-notice ground was fully dispositive of the tort claims, we need not address the statute of limitations issue, i.e., whether the cause of action accrued on January 31, 2002, as plaintiff contends, or on some earlier date, as defendant argues.

The resolution of the tort claims issues has no bearing on the other issues raised, however. The motion judge did not specifically address those other issues, which include the claim charging defendant with a violation of its own established standards and, if the motion to amend the complaint were granted, the claims based on breach of contract and consumer fraud.

In most instances, a trial court's omission to address discrete claims specifically calls for a remand for full consideration and resolution. Nevertheless, where a parsing of the record justifies an exercise of original jurisdiction in order to dispose of a matter fully, see R. 2:10-5, and no further fact-finding is necessary in order to resolve the matter, an appellate court may act accordingly. See, e.g., State v. Harris, 181 N.J. 391, 416-21 (2004), cert. denied, ___ U.S. ___, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); New Jerseyans For A Death Penalty Moratorium v. Department of Corr., 370 N.J. Super. 11, 18 (App. Div. 2004), aff'd, 185 N.J. 137 (2005); Auletta v. Bergen Ctr. for Child Dev., 338 N.J. Super. 464, 474-76 (App. Div.), certif. denied, 169 N.J. 611 (2001); AAA Mid-Atlantic Ins. v. Prudential Prop. & Cas. Ins. Co., 336 N.J. Super. 71, 78 (App. Div. 2000).

Our review of the record in this matter in the light of the arguments advanced by the parties and prevailing legal standards discloses that plaintiff has failed to make a prima facie showing of facts or circumstances sufficient to overcome the well-established reticence of courts to review the academic decisions of institutions of higher learning and substitute a judicial evaluation for the expertise of the institutions involved. See Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1985); Swidryk v. Saint Michael's Med. Ctr., 201 N.J. Super. 601 (Law Div. 1985). Plaintiff has made no adequate prima facie showing that defendant's determination in this instance was the product of an irregular application of University procedures designed to promote academic standards. Instead, the academic evaluation of plaintiff's record was, by all indications, both regular and well-justified. Plaintiff had not met academic standards; and he did not fulfill his own undertaking to do so after having been reinstated following an earlier dismissal for academic deficiencies, offering only post hoc justifications for the lapse. The record discloses that, for the same reasons, plaintiff's claims are not amenable, either, to resolution in a suit based on a breach of contract theory or a consumer fraud cause of action. See Mittra v. University of Med. & Dentistry, 316 N.J. Super. 83, 89-92 (App. Div. 1998). Hence, the denial of his motion for leave to file a second amended complaint was also correct.

 
Affirmed.

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A-3090-04T3

May 12, 2006