                                NOT FOR PUBLICATION WITHOUT THE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-5713-17T3

SAMARADASA WEERAHANDI,

           Plaintiff-Appellant,

v.

REGINA LIU and AMERICAN
STATISTICAL ASSOCIATION,

     Defendants-Respondents.
_____________________________

                    Submitted March 13, 2019 – Decided April 22, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-7225-17.

                    Samaradasa Weerahandi, appellant pro se.

                    Arent Fox, LLP, attorneys for respondents (Adrienne
                    M. Hollander, on the brief).

PER CURIAM

           Plaintiff, Samaradasa Weerahandi, appeals from two Law Division orders.

The first order denied plaintiff's motion to enter default judgment against
defendants, American Statistical Association ("the Association") and Regina

Liu, editor of the Journal of the American Statistical Association ("Journal" or

"the Association's Journal"). The second order granted defendants' motion to

dismiss plaintiff's complaint for failure to state a claim upon which relief could

be granted.

      Plaintiff alleged in his complaint that defendants engaged in reverse

discrimination and retaliated against him when he challenged their

discriminatory actions, thus violating the New Jersey Civil Rights Act ("CRA"),

N.J.S.A. 10:6-1 to -2, and the New Jersey Law Against Discrimination ("LAD"),

N.J.S.A. 10:5-1 to -49. A private CRA action only may be pursued against

persons acting under color of law, and a LAD action, with exceptions not pled

in plaintiff's complaint, requires an employment relationship. Plaintiff did not

allege in his complaint either that defendants were acting under color of law or

that he was an employee of the Association. Consequently, the Law Division

properly granted defendants' motion – which was filed before a default or default

judgment was entered.

      We affirm the dismissal, but because a dismissal for failure to state a claim

is generally without prejudice, and because the court did not explain why it




                                                                           A-5713-17T3
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dismissed the complaint with prejudice, we modify the order of dismissal, which

shall be construed as a dismissal without prejudice.

      Plaintiff alleged the following facts in his complaint. The Association is

a national association of statisticians with local chapters in many states,

including New Jersey. Defendant Liu is an elected co-editor of the Association's

Journal. Plaintiff has been a member of the Association since 1983. According

to the complaint, plaintiff "was highly successful as a member of [the

Association] making some outstanding contributions to the profession,

including the introduction of new concepts and notions to solve difficult

statistical problems." In addition, plaintiff has been a spokesperson for the

Asian-American community. He claims that as such "he was instrumental in

enhancing the [d]iversity of [the Association] at various levels, including the

election of the first minority president and vice-president of [the Association]."

      In March 2010, plaintiff communicated with the Association's senior

management and editors about the lack of diversity on the Journal's editorial

board. His communications resulted in the Association appointing Chinese

statisticians as the Journal's co-editors. Plaintiff asserts defendant Liu "is the

latest Chinese American, who became a co-editor of [the Journal], thus




                                                                          A-5713-17T3
                                        3
becoming a beneficiary of [p]laintiff's [d]iversity [c]ommunications."        The

complaint alleges that:

             [i]n late 2010 and early 2011 the first two Chinese
             American Editors . . . made racially biased
             appointments of Associate[d] Editors (AEs), when they
             fired almost all well accomplished AEs in the previous
             editorial board, and appointed seriously underqualified
             Chinese American AEs, including their recently
             graduated own students and friends, thus creating a
             serious situation of "Reverse Racial Discrimination."

      Plaintiff claims that when he protested the reverse racial discrimination,

he became a target for retaliation; namely, "all his articles submitted to [the

Journal] for publication were rejected."

      The complaint skips from the 2010-11 timeframe to 2016 and 2017. The

complaint alleges that in retaliation against plaintiff's repeated protests

concerning diversity, the Association "deliberately appointed t wo Chinese

American Statisticians as co-editors in 2016 as they did in 2010, thus alienating

any members of the association, in which total minority membership is less than

[thirty-five percent] and the Chinese American membership is around [twenty

percent]."

      Around the same time, when plaintiff "was at the Statistics Department of

the Rutgers University participating at a conference, he observed a serious [l]ack

of [d]iversity in the [g]raduate [s]tudents population in that Department, under

                                                                          A-5713-17T3
                                        4
the chairmanship of [d]efendant Liu." Plaintiff asserted that more than seventy-

five percent of graduate students were of Chinese origin when the national

average is about twenty-percent.     The complaint alleged that non-Chinese

applicants, who were well qualified, were denied admission to the graduate

program and less qualified Chinese students were admitted. Plaintiff alleged

defendant Liu had been appointing disproportionate numbers of Chinese

applicants to faculty positions while she overlooked more qualified non-Chinese

applicants. Plaintiff sent an email to Liu about this situation on June 17, 2016.

He claims Liu kept silent, thinking that the situation was beyond her con trol.

However, the matter was brought to the attention of the Executive Dean of the

Arts and Sciences, "who kindly responded and thanked the plaintiff for his

constructive comments and suggestions."

      Meanwhile, on March 26, 2017, plaintiff wrote to Liu and applied for a

position as Associate Editor on the Journal. He said he did so because, among

other motivating factors, the Association had argued that editorial appointments

had been given to less qualified applicants due to the lack of more qualified

applicants being willing to serve on the Journal's editorial board. Plaintiff

asserted in the complaint that due to his complaints about disproportionate

numbers of Chinese American statisticians serving on the Journal's editorial


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                                       5
board, Liu ignored his follow-up request that he be appointed as a co-editor. He

heard from another member of the Association in May 2017. This member of

the Association was an administrator and not in the position to make

appointments of associate editors, but he nonetheless told plaintiff from now on

to communicate only with him.

      In June 2017, plaintiff sent reminders about his application for the position

of associate editor to the administrator, with a copy to the Association's

president. He asserted that the Association simply ignored his requests in

retaliation for his previous protests concerning diversity on the editorial board.

He alleged he had been blocked from such a position since 2013, when the

Association prevented the previous editor of the Journal from appoint ing

plaintiff as an associate editor.

      Plaintiff concluded the allegations in the complaint by asserting the

conduct and actions of defendant violated the CRA and the LAD. He alleged

that as a consequence of these violations, his employment and compensation,

which depend on services to professional societies and research publications,

suffered, resulting in economic loss and "job detriment." He also claims to have

suffered "mental anguish, embarrassment, stress, anxiety, and humiliation."




                                                                           A-5713-17T3
                                        6
      Plaintiff filed his complaint on December 5, 2017.              In a series of

communications between plaintiff and counsel for defendants, the attorney

requested an extension of time to file an answer to the complaint, even though

she contended the Association had never been properly served with process.

Plaintiff emailed the attorney and said he would grant an extension only to file

an answer, not to file a motion in lieu of an answer. Based on plaintiff's oral

extension, Liu filed an answer. The Association did not file an answer, although

it does not appear from the record the Association was properly served with the

complaint.

      On May 11, 2018, plaintiff filed a motion seeking an order granting him

the following relief:

             Minimum of $85,000 by Defendants as monetary
             damage, which is totaling to hundreds of thousands of
             dollars, happened to Plaintiff's inability to get a job . . .
             due to Racial Discrimination and Retaliation against
             Plaintiff by Defendants, preventing him from serving in
             [the Association's] Editorial Board, or publish research
             papers in the [the Journal.]

      He provided a supporting certification for "Default Judgment." In his

certification, he averred that when a sheriff's officer was unable to serve Liu, he

had a private process server serve her on March 12, 2018. He did not aver that

he had served the Association.


                                                                             A-5713-17T3
                                          7
      On May 16, 2018, the Association filed a motion to dismiss plaintiff's

complaint with prejudice for failure to state a claim upon which relief could be

granted.

      Following the parties' oral argument for and against the respective

motions, the court denied plaintiff's motion for default judgment. The court

found defendants were not in default, and in any event, plaintiff had not properly

moved for a default.

      The court granted the Association's motion to dismiss the complaint. The

court noted that an element of a private cause of action under the CRA is that a

defendant must be acting under color of law. In his complaint plaintiff had made

no such allegation against either the Association or Liu.

      In addition, the court found that the LAD addressed discrimination in an

employment setting. The complaint did not allege plaintiff was an employee of

the Association. The court noted plaintiff applied for a position of associate

editor of the Journal as an unpaid volunteer. Because plaintiff had not alleged

an employer-employee relationship, the court determined his LAD claim failed.

The court also noted that though only the Association had filed the motion to

dismiss, the "law of the case" applied to Liu as well.




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                                        8
      On appeal, plaintiff presents two points for our consideration. Citing the

court's reference to his motion for default judgment as a "cross-motion," he

argues the court erred by characterizing it as such, as he filed the motion before

defendants filed their motion to dismiss. Second, he contends the court erred by

misinterpreting the CRA to apply only to situations of paid employment

discrimination. Plaintiff claims he showed the court an identical prior case,

where a federal judge found the denial of plaintiff's appointment to the

Association's Journal's editorial board to be discriminatory.

      We affirm the dismissal of plaintiff's complaint. In Perez v. Zagami, LLC,

218 N.J. 202, 204 (2014) the Court held: "although the [CRA] bestows such

authority on the Attorney General, a private CRA cause of action only may be

pursued against persons acting under color of law."

      We reach a similar conclusion concerning plaintiff's claim defendants

violated the LAD.       Indisputably, "the LAD was intended to prohibit

discrimination in the context of an employer/employee relationship." Pukowsky

v. Caruso, 312 N.J. Super. 171, 184 (App. Div. 1998); see also, Chrisanthis v.

Cty. of Atl., 361 N.J. Super. 448, 453 (App. Div. 2003); Thomas v. Cty. of

Camden, 386 N.J. Super. 582, 594 (App. Div. 2006). Plaintiff does not contend

he was an employee of the Association.


                                                                          A-5713-17T3
                                        9
      The LAD also prohibits discriminatory refusals to do business, N.J.S.A.

10:5-12(l); and discrimination in places of public accommodation. N.J.S.A.

10:5-12(f); Pepper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 67 (1978).

Plaintiff has alleged neither of these theories in his complaint.

      Plaintiff contends a federal judge found the denial of his appointment to a

position on the Association's Journal to be discriminatory. Although plaintiff

filed virtually identical actions in the United States District Court for the

Southern District of New York and in the New York County Supreme Court,

both causes of action were dismissed; neither involved the CRA or LAD.

Further, plaintiff has cited no language in either of these decisions that supports

his assertion another court found the Association's actions discriminatory.

      Plaintiff also argues that somehow he was prejudiced because the trial

court treated his motion for default judgment as a cross-motion when he in fact

filed the motion before defendants filed their motion.         He also contends

defendants "seriously missed a due date for filing their answers." He provides

no proof that he properly served the Association, nor does he deny that he

verbally agreed to extend the time for Liu to answer the complaint. The trial

court's mischaracterization of Liu's motion as a cross-motion did not affect the

merits of the motion. We find no abuse of discretion by the trial court based on


                                                                           A-5713-17T3
                                       10
the manner in which it considered the motions. Plaintiff's arguments to the

contrary are without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

      The court signed an order that had been prepared by defendants. The order

included language dismissing the complaint with prejudice, even though the

motion was decided pursuant to Rule 4:6-2(e). Generally, such motions should

be dismissed without prejudice. Smith v. SBC Commc'ns, Inc., 178 N.J. 265,

282 (2004). There are exceptions, but here the trial court did not give any reason

for dismissing the matter with prejudice. For that reason, the dismissal shall be

deemed without prejudice.

      Affirmed as modified.




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                                       11
