                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5297-16T3
LEWIS SEAGULL and
GAIL SEAGULL, his wife,

         Plaintiffs-Appellants,

v.

SARAH CHANDLER, DANIEL
O'DAY, CHARLES NELSON,
MELISSA SCOTT, and LUIS DIAZ,

         Defendants,

and

JOSEPH CRONIN, SUZANNE
BOUSQUET, NICOLE RODRIGUEZ,
KATHRYN INSKEEP, MARIA
INGELMO, PHILIP CONNELLY,
GERI-ANN BENEDETTO, and
KEAN UNIVERSITY,

     Defendants-Respondents.
_______________________________

                   Argued March 27, 2019 – Decided May 2, 2019

                   Before Judges Koblitz, Currier and Mayer.
             On appeal from Superior Court of New Jersey, Law
             Division, Union County, Docket No. L-1403-15.

             Lewis Seagull, appellant, argued the cause pro se.

             Lauren Amy Jensen, Deputy Attorney General, argued
             the cause for respondents (Gurbir S. Grewal, Attorney
             General, attorney; Melissa Dutton Shaffer, Assistant
             Attorney General, of counsel; Lauren Amy Jensen, on
             the brief).

PER CURIAM

      Plaintiffs Lewis and Gail Seagull 1 appeal from the March 4, 2016, March

3, 2017 and June 9, 2017 orders dismissing their complaint against Kean

University (Kean) and its employees. Lewis was an adjunct professor of English

at Kean from 2002 until 2013. He also enrolled as a master's student in 2012.

Lewis was not offered another contract to work as an adjunct professor after the

spring 2013 semester. On April 17, 2015, plaintiffs filed an initial complaint

against Kean and various employees, alleging wrongful termination and that,

while a master's student, Lewis was harassed, bullied, and his rights were

violated. The motion court ultimately dismissed all counts in plaintiffs' fifth

amended complaint, for failure to timely file a notice under the New Jersey Tort



1
  We refer to the parties by their first names for clarity, and intend no disrespect.
When Lewis in his brief refers to a singular plaintiff, we presume he refers to
himself.
                                                                            A-5297-16T3
                                         2
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, failure to file a more definite

statement, and failure to state a claim upon which relief can be granted. We

affirm substantially for the reasons stated by the motion court.

      Plaintiffs' fifth amended, and final, complaint alleges: (1) "Hostile Work

Environment Due to Continuous Harassment"; (2) "Breach of Duty to Student

Causing Injury"; (3) "Breach of Duty to Provide Advisement"; (4) "Retaliatory

Discharge in Violation of Public Policy"; (5) "Tortious Interference with

Prospective Economic Advantage"; (6) "Breach of Implied Covenant of Good

Faith and Fair Dealing"; (7) "Breach of Oral Contract"; (8) "Failure to Notify

Plaintiff of Termination of Employment"; (9) "Defamation and 'False Light'";

(10) "Claim on Book Account"; (11) "Intentional Infliction of Emotional

Distress"; (12) "Mandatory Injunction to Correct Pension"; (13) "Mandatory

Injunction to Correct Grades"; (14) "Claims of Gail Seagull"; and (15) "Claim

for Counsel Fees."

      On March 4, 2016, the motion court dismissed counts two, three, four,

five, six, seven, eight, nine, thirteen, and fourteen with prejudice.2 The motion


2
   On March 4, 2016, count nine was dismissed with prejudice on the record,
because it did not state a claim and also was not included in the notice of tort
claim. Count fourteen was also dismissed with prejudice on the record for
failure to state a claim, but the order did not reflect the "with prejudice"


                                                                        A-5297-16T3
                                        3
court also dismissed counts ten and eleven without prejudice. The motion court

found that a notice of tort claim for counts four through eight was not filed

timely. N.J.S.A. 59:8-8(a) (requiring that a notice be filed within ninety days of

the accrual of the cause of action). Plaintiffs did not file their notice until May

8, 2015, although Lewis stopped working as an adjunct professor in May 2013.

The motion court found that plaintiffs' cause of action arose no later than the

beginning of the fall 2013 semester, when Lewis did not receive a new teaching

contract. The motion court dismissed count nine because it was not included in

plaintiffs' untimely notice of tort claim.

      On March 4, the motion court also found that count four failed to make

out a prima facie claim under the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -14.3 On May 17, 2016, the court ordered plaintiffs

to file a more definite statement as to count one. The court directed Lewis to

"state clearly whether he alleges [a claim under the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49] of failure to contract on [the]




dismissal of either count nine or fourteen. On June 9, 2017, the court stated it
had dismissed both counts without prejudice.
3
   The motion court also dismissed counts two, three, ten, eleven, thirteen, and
fourteen because they failed to state a claim upon which relief can be granted
pursuant to Rule 4:6-2(e). She found counts four through nine also failed to
state a claim.
                                                                          A-5297-16T3
                                         4
basis of age, or if he alleges employment status." When Lewis failed to file a

further statement as directed, on March 3, 2017, the court dismissed count one

with prejudice for failure to state a claim upon which relief can be granted. On

June 9, 2017, the court also dismissed counts twelve and fifteen with prejudice

for the same reason. Each time the court dismissed a count in the complaint, it

articulated on the record its reasons for doing so.

      On appeal, plaintiffs state about Lewis: "Although he was an 'at will'

employee, who could be fired for any reason or no reason, he could not be fired

for the wrong reason." Yet Lewis concedes he was not terminated while an

employment contract was in effect. He argues that he was on a list of potential

adjunct professors, until he was improperly stricken from that list.            As

defendants point out, plaintiffs refer to documents on appeal that were not

incorporated into their complaint.          Plaintiffs also refer to a recorded

conversation, in which Lewis was allegedly led to believe he would remain an

adjunct professor after the spring 2013 semester, which is not part of the record.

Plaintiffs claim Lewis was discriminated against because he was an adjunct

professor and adjunct professors have been relegated to a "precariat" or "serf"

class. Plaintiffs also allege that as a student, Lewis was discriminated against




                                                                         A-5297-16T3
                                        5
because he was sixty years old and because defendant Sarah Chandler had a

"disdain for all white males of privilege."

      Plaintiffs, appearing pro se, present the following issues on appeal: 4

            POINT I: ALLEGATIONS OF INJURY DUE TO
            HARASSMENT AND ABUSE BY A TEACHER
            AGAINST A STUDENT STATE A CAUSE OF
            ACTION UPON WHICH RELIEF MAY BE
            GRANTED.

            POINT II: THE ALLEGATIONS OF PLAINTIFFS'
            COMPLAINT ARE NOT, AS A MATTER OF LAW,
            TIME-BARRED.

            POINT III: PLAINTIFF DID COMPLY WITH THE
            PROCEDURES      OF    THE   NEW   JERSEY
            CONTRACTUAL LIABILITY ACT, SO HIS CLAIM
            ON A BOOK ACCOUNT SHOULD NOT HAVE
            BEEN DISMISSED.

            POINT IV: THE TRIAL COURT COMMITTED
            REVERSIBLE ERROR BY RESOLVING FACTUAL
            ISSUES IN DETERMINING A MOTION TO
            DISMISS ON THE PLEADINGS UNDER R. 4:6-2(e).

            POINT V: THE TRIAL COURT COMMITTED
            REVERSIBLE ERROR BY IGNORING PLAINTIFF'S
            ALLEGATION OF WRONGFUL DISCHARGE IN
            VIOLATION OF AN EXPRESS MANDATE OF
            PUBLIC POLICY.


4
  Plaintiffs do not "include in parentheses at the end of the point heading the
place in the record where the opinion or ruling in question is located or if the
issue was not raised below a statement indicating that the issue was not raised
below." R. 2:6-2(a)(1).
                                                                          A-5297-16T3
                                        6
            POINT VI: THE TRIAL COURT COMMITTED
            REVERSIBLE ERROR BY DISMISSING AS
            INVALID PLAINTIFF'S CAUSE OF ACTION
            AGAINST DEFENDANTS FOR NOT REPORTING
            ACCURATE INFORMATION TO THE STATE
            REGARDING HIS DATES OF SERVICE FOR HIS
            PENSION.

            POINT VII: PLAINTIFF WAS AN EMPLOYEE OF
            KEAN UNIVERSITY UNDER THE LAD, COMMON
            LAW TORT, AND C.E.P.A.

            POINT VIII:    THIS LAWSUIT ADDRESSES
            IMBALANCES IN THE POWER STRUCTURE IN
            INSTITUTIONS OF     HIGHER EDUCATION-
            SPECIFICALLY    THE    DENIGRATION  OF
            ADJUNCT     FACULTY-WHICH    RAISES AN
            IMPORTANT ISSUE OF PUBLIC POLICY.

            POINT IX: THE TRIAL JUDGE COMMITTED
            ERROR WHEN SHE RESOLVED FACTUAL
            DISPUTES REGARDING MOTIVE.

            POINT X: THE TRIAL JUDGE BETRAYED HER
            PREJUDICE AGAINST PRO SE LITIGANTS IN HER
            COMMENTS FROM THE BENCH.

      In August 2002, Kean hired Lewis as an adjunct professor of English.

Each semester Lewis received new, semester-long contracts to teach English

courses. In his fifth amended complaint, Lewis acknowledged that "no adjunct

professor ha[d] an entitlement to future contracts, but those in good standing

ha[d] a reasonable expectation that future contracts [would] be forthcoming and



                                                                       A-5297-16T3
                                      7
that the relationship [would] be renewed, semester by semester." Kean did not

offer plaintiff another contract to teach after the spring 2013 semester.

        Lewis admits in June 2013 his nameplate was removed from the Kean

English Department mailbox. He states that on June 11, 2015 "he was formally

notified, in writing, that he was terminated," by which he means he was struck

from the list of potential adjunct professors by a written notice, which he did not

attach to the complaint.

        In 2011, while teaching as an adjunct professor, Lewis was admitted to

Kean's English and Writing Studies master's degree program and began taking

classes in the spring 2012 semester. Lewis was awarded his master's degree in

2016.

        Lewis' claims of harassment and bullying stem from his enrollment in

defendant Chandler's class. Chandler was a tenured professor of English and

director of Kean's "MA English and Writing Studies Graduate Program" until

her retirement in 2014. Lewis alleges Chandler "abused him from the moment

she began teaching him" because she "'look[ed] down' on adjunct professors,"

and her "failed former marriage" led her to make Lewis "a proxy-victim for

every white male Chandler detested." The alleged tension came to a head while

Lewis was enrolled in her "Writing as Being, Saying and Doing" class during


                                                                            A-5297-16T3
                                        8
the spring 2013 semester. As an assignment, each student was required to

engage in a two-hour, audio-taped interview with Chandler. The student was

directed to prepare a transcript of the interview for Chandler so she could "post

[it] on a public website." Lewis did not want his transcript posted, which led to

arguments with Chandler concerning research ethics.

      On March 4, 2016, when it dismissed counts two through eleven, thirteen

and fourteen of plaintiffs' fifth amended complaint, the motion court concluded

the May 2015 notice of tort claim was untimely because Lewis had not had a

contract or taught for four semesters. The court stated:

            What I'm seeing here, if anything, in terms of the
            allegation[s] and reading them as favorably as I can for
            the plaintiff, as I must on a [m]otion to [d]ismiss a
            [c]omplaint, is an allegation that he was not rehired as
            an adjunct -- that he was not given another contract as
            an adjunct because of discrimination based on his age.
            And all of the things that he complains about, while not
            in themselves actionable -- I didn't get an A. I thought
            I was entitled to an A. As a student I should have been
            doing better and she told me that I wasn't going to do
            better, never ever regardless of how well I -- how --
            how great my papers were or anything like that. All of
            that is not really actionable under Law Against
            Discrimination. It really deals with employment
            practices not student practices. And I -- I think courts
            are going to be loath to reach their hands into how
            universities conduct themselves and how -- how they
            grade students.



                                                                        A-5297-16T3
                                       9
            However, if that's evidential in terms of an age
            discrimination in failure to contract, that's fine. We
            think of it as evidence, not as a cause of action. Okay.

            So . . . based on the facts in front of me, it appears that
            plaintiff is an independent contractor and not an
            employee for purposes of LAD, but I can't make a
            finding on that on this record. So that's . . . another
            issue.

            So if he -- but certainly in saying that his contracts were
            not renewed, the failure to contract because of age
            based, that is an actual . . . cause of action. That's a
            legitimate cause of action under the . . . LAD.

            The issue is timing under Tort Claim, however.
            Because as I have said, by at least the second time they
            didn't contract with him, plaintiff had a pretty good
            inkling that this was something that was going to
            happen. So if there's no contract by September of two
            -- 2013 and the beginning of the Spring semester of
            2014, it seems like you should know that there's a
            problem.

      On March 3, 2017, the court dismissed count one of plaintiffs' fifth

amended complaint after Lewis failed to comply with the court's previous order

directing him to file a more definite statement. In reaching its decision, the trial

court stated:

            THE COURT: . . . So I'm just going to dismiss the first
            count because that's the count that -- to which my -- my
            order of May [17], 2016 was directed and, you know,
            reiterate there's a lot in here and I think really a lawyer's
            guidance would be wonderful for you, Mr. Seagull, to
            just try to fig-- I know you do have legal training, I

                                                                            A-5297-16T3
                                        10
            know you have been a lawyer, you've told us that, but
            sometimes when it's yourself it's --

            [LEWIS]: Agreed.
            ....

            THE COURT: You don't have the objectivity to parse
            out what's a good claim, what isn't a claim, what do I
            leave aside, maybe something's evidential but not
            actionable.

            So, you know, I -- I think that would be great if you do
            get a lawyer to -- to deal with the issues that you have
            here. So I'm just going to -- I did issue that order about
            the more definitive statement. I -- I even wrote on the
            order really what's -- what's the issue here, I -- because
            you're mixing up being a student and being a fac--
            adjunct faculty member.

            It's not clear whether you're suing under LAD for
            failure to contract . . . or continue the contractual
            relationship because of an age discrimination for which
            whatever happened in Professor Chandler's class might
            be just evidence of -- you know, so it's all -- it's all
            mixed up.

            They don't know whether they're dealing with a failure
            to contract or whether they're dealing with you're
            alleging to be an employee.

      On June 9, 2017, the court dismissed with prejudice the remaining counts,

twelve and fifteen, of plaintiffs' fifth amended complaint. As for count fifteen,

the claim for counsel fees, the court stated: "There is -- there's no attorney in

this case. There's no substantive claim to -- that would entitle someone to


                                                                         A-5297-16T3
                                       11
attorney's fees." Referring to count twelve, plaintiffs' pension claim, the court

stated:

            I can't involve myself in Pensions and Benefits and
            correcting what you think is something wrong. I mean,
            I think you should work with Kean and work with
            Pensions and Benefits. If you go down to Pensions and
            Benefits and say, look, here, I've been working since
            2002. Here's my proof. Here's my Tax Return. Here's
            everything I have. Then they've got to correct that for
            you. Okay.

      We review a trial court's grant of a motion to dismiss de novo. Watson v.

N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017). We will

"consider, and accept as true, the facts alleged in the complaint to ascertain

whether they set forth a claim against [the moving party] upon which relief can

be granted." Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005).

"Obviously, if the complaint states no basis for relief and discovery would not

provide one, dismissal [of the complaint] is the appropriate remedy. " Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

      A plaintiff must make a prima facie claim of retaliation under CEPA,

N.J.S.A. 34:19-1 to -14. Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015). A

plaintiff must demonstrate that:

            (1) he or she reasonably believed that his or her
            employer's conduct was violating either a law, rule, or


                                                                        A-5297-16T3
                                      12
            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.S.A. 34:19–3(c);
            (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.

            [Ibid. (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462
            (2003)).]

      When alleging a claim of negligence, a plaintiff must articulate facts

sufficient to show the following elements: "(1) a duty of care, (2) a breach of

that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent.

Power & Light Co. v. Melcar Utility Co., 212 N.J. 576, 594 (2013).

      When making a breach of contract claim, a plaintiff must prove "the

existence of a contract and that the defendant breached that contract and caused

damages." Sun Source, Inc. v. Kuczkir, 260 N.J. Super 256, 268 (App. Div.

1992). A plaintiff must first prove a contract exists before making a claim that

a defendant breached the implied covenant of good faith and fair dealing. See

Kalogeras v. 239 Broad Ave., LLC, 202 N.J. 349, 366 (2010) (noting that "every

contract in New Jersey contains an implied covenant of good faith and fair




                                                                        A-5297-16T3
                                      13
dealing") (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420

(1997)).

      As the court discussed, if Lewis had filed a complaint under the LAD

within 180 days of Kean's alleged failure to contract with him because of his

age, the complaint may have survived summary judgment. N.J.S.A. 10:5-12(l);

N.J.S.A. 10:5-18; see also Rubin v. Chilton, 359 N.J. Super. 105, 109-10 (App.

Div. 2003) (finding that N.J.S.A. 10:5-12(l) "is directed at refusals to do

business with persons because of a protected characteristic," and independent

contractors may "legitimately advance a claim" of age discrimination under this

statute). Plaintiffs did not raise an LAD claim and maintain on appeal that

"[Lewis] never claimed age discrimination under the LAD."

      We affirm substantially for the reasons expressed by the motion court in

its patient and thorough explanation prior to dismissing each count of plaintiffs'

fifth amended complaint.

      Plaintiffs' claim that the motion court unfairly took the side of the

"establishment" when Lewis "sp[oke] truth to power" is unconvincing. Like all

litigants, plaintiffs had the obligation of filing a complaint that complied with

legal requirements.

      Affirmed.


                                                                         A-5297-16T3
                                       14
