OPINION & ORDER
Plaintiff Petrus J. Winter (“Winter” or “Plaintiff’) brings this action against American Institute of Medical Sciences & Education (“AIMS” or “Defendant”), a private health training school that offers certificate degree programs. In October 2014, Winter graduated from AIMS Education with a certificate in magnetic resonance imaging technology (“MRI Tech”). Shortly after graduating, Winter sat for and passed the national examination administered by the American Registry for Magnetic Resonance Imagining Technologists (“ARMRIT”), a certifying board that lists successful examinees in its registry. Upon being certified in magnetic resonance imaging, Winter started to apply for positions as an MRI Technologist, but despite his “activef ] and diligente ]” efforts, he has not received a single job offer.
Asserting that he is “legally unemployable as an MRI Technologist,” Winter is now suing AIMS Education. (Compl. ¶ 12, ECF No. 1.) Specifically, Winter alleges that AIMS (1) breached a quasi or implied-in-law contract; (2) engaged in fraud and misrepresentation;, and (3) engaged in unfair and deceptive business practices. AIMS .moves to dismiss the action and argues that (1) Winter’s entire suit is barred by the educational malpractice doctrine; (2) the breach of contract claim fails because Winter signed an express enrollment contract with AIMS Education; and (3) the fraud claim fails because,Plaintiff failed to plead the elements with the specificity required by Rule 9(b) of the Federal Rules of Civil Procedure. (See Def s Mem, of Law in Supp. of Def s Mot. to Dismiss (“Def.’s Mem.”) at 1-2, ECF No. 15.) Alternatively, AIMS moved to transfer the action to the United States District Court for the District of New Jersey, pursuant to Title 28, United States Code, Section 1404(a), (Def.’s Mem. at 22.) For the reasons explained below, Defendant’s motion to transfer is DENIED in its entirety and Defendant’s motion to dismiss is GRANTED in its entirety.
BACKGROUND
The following facts — which are taken from the Complaint, documents it incorporates, and.matters of which the court may take judicial notice — are construed in the light most favorable to Plaintiff. See, e.g., Kleinman v. Elan Corp.,
The relevant facts are relatively straightforward. AIMS Education is a private, allied health training school organized and existing under the laws of New Jersey with its principal place of business in Piscataway, New Jersey. (See Def.’s Mem. at 3.) The school is approved by the U.S. Department of Education and State of New Jersey Department of Education, and its MRI certificate program is accredited by ARMRIT. (Id.)
Winter, who is domiciled in New York, is seeking to be employed as an MRI Technologist and despite having graduated from AIMS Education and obtained his certificate frpm ARMRIT, he has not received a single job offer. (Compl. ¶20.) The Complaint alleges that AIMS Education improperly induced Plaintiff to enroll in its MRI program and, accordingly, failed to properly train him with certain skills required by “almost every available employment opportunity for an MRI Technologist.” (Compl. ¶ 13.) Plaintiff reasons that because “it is impossible for [him] to find employment as an MRI technologist” Defendant’s program is “absolutely worthless.” (Compl. ¶ 20.)
On or about December 2011, Winter first learned about MRI certificate program offered at AIMS from the school’s website, which advertised that “(t)he number of MRI job opportunities is growing faster than the availability of qualified MRI Technologists,” “result(ing) in tremendous career opportunities for all of our graduates.” (Compl. ¶ 6.) The same website represented the “minimum requirements” to enroll in the MRI Tech program as a “High School Diploma or GED.” (Id.) The same further represented that the school offered a “Comprehensive education and training” course that included, inter alia, “IV [intra-venous] therapy.” (Id.)
Motivated by these representations, Plaintiff traveled to New Jersey on January 23, 2012, for an informational interview with the school’s administrative director, Mr. Chirag Patel. (Compl. ¶ 7.) During'this introductory meeting, Mr. Patel explained that the school’s MRI program is accredited by ARMRIT and not the American Registry of Radiologic Technology (“ARRT”). (Compl. ¶¶9, 19.) The pleadings — read most liberally — suggest that employers favor technicians who are certified by ARRT.
On January 23, 2012, Winter signed the two documents governing the agreement. First, Winter signed the “Enrollment Contract,” a sparse one-page document that includes the following disclaimer:
No representative of AIMS EDUCATION has promised me employment or any specific starting salary. The student acknowledges that AIMS EDUCATION (i.e. the school) does not warrant or guarantee that successful completion by the student of the programs will result in the student obtaining employment in any field or profession.
(Freeman Decl., Ex. 4. (“Enrollment Contract”).) This disclaimer appears at the bottom of the one-page contract, immediately preceding Winter’s signature.
Second, Winter signed an “Employment / Registry Assistant Consent,” with the principal understanding that “finding employment is a joint effort between the school and [Winter].” (Freeman Decl., Ex. 6 (“Employment Consent Form”).) The one-page consent form also states, in relevant part, that “[t]he student acknowledges that AIMS EDUCATION (i.e., the school) does not warrant or guarantee that successful completion by the student of the programs will result in the student obtaining employment in any field or profession.” Id. At the same time, Winter was also handed a single-page advertisement reiterating what Winter learned from the school’s website: '“[t]he availability of magnetic resonance imaging (MRI) job opportunities is growing faster than the number of qualified medical MRI technologists.” (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n Mem.”) at 3, ECF No. 18.)
After signing these two documents, AIMS Education mailed Winter published catalogs describing the MRI Certification Program as one “designed to prepare high school graduates to become MRI technologists and preparing them to sit for the ARMRIT Registry certification examination in Magnetic Resonance Imaging.” (Freeman Decl., Ex. 2 (“Course Catalog”), at 59.) The Course Catalog also stated that students would be instructed for a total of “1980 clock hours,” “75” of- which were designated as “CPR, Venipuncture, Intra Venous Therapy Skills.” (Id. at 60.)
Winter started his evening course on October 22, 2012. Between October 2012 and August 2014 (approximately twenty-two months), Winter traveled to New Jersey every weekday for instruction, and successfully completed the course requirements. By the time Winter graduated in August 2014, he had paid a total tuition of $29,550.00. (Compl. ¶ 8.)
In his exit graduation survey dated September 25, 2014, Winter “stated that he was completely satisfied with the quality of his education at AIMS Education.” (Compl. ¶ 20.) Then in October 2014, Winter prepared for and passed ARMRIT’s certification exam. Soon after obtaining his ARMRIT certificate, Winter “actively and diligently” applied for positions as an MRI Technologists. (Id.) As of the Complaint’s filing date, Winter had “not received a single offer of employment.” (Id.)
LEGAL STANDARDS
A. Motion to Transfer
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).
In considering a motion to transfer venue, the inquiry is twofold. Freeplay Music v. Gibson Brands,
If the action could have been filed in the proposed transferee district, the court must then determine whether transfer is appropriate. This inquiry is guided by a non-exhaustive list of factors, including: (1) the plaintiffs choice of forum, (2) the convenience of the witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of the parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, (7) the relative means of the parties, (8) the forum’s familiarity with the government law, and (9) trial efficiency and the interest of justice. See, e.g., N.Y. Marine & Gen Ins. Co. v. Lafarge N. Am. Inc.,
“No one factor is dispositive and the relative weight of each factor depends on the particular circumstances of the case.” Smart Skins,
To survive a motion to dismiss under Rule 12(b)(6), the- complaint must plead “enough facts to state a claim for relied that is plausible on its face.” Bell Atl. Corp. v. Twombly,
C. Rule 9(b)
Finally, to the extent that a plaintiff alleges fraud, Rule 9(b) requires the plaintiff to plead his claims “with particularity,” specifying “the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). In particular, “the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A.,
DISCUSSION
As noted above, Plaintiff brings claims for (1) breach of contract, (2) fraud and misrepresentation, and (3) unfair and deceptive business practices. (Compl. ¶¶ 21-38.) Defendant moves to dismiss on several grounds. First, it argues that -because all of Plaintiffs claims arise from the theory that his education was deficient, the entire Complaint is barred by the educational malpractice doctrine. (Def.’s Mem. at 1, 8-16.) Second, Defendant moves, presumably pursuant to Rule 12(b)(6), to dismiss any of Plaintiffs surviving claims. (Id. at 16-17.) Finally, Defendant moves, pursuant to Rule 9, to dismiss Plaintiffs fraud claim for failure to plead the’elements with the required specificity. (Id. at 17-22.) Defendant moves in the alternative, pursuant to Section 1404(a), to transfer venue to the District of New Jersey. (Id. at 22-25.) Because Defendant’s request to transfer this matter presents a threshold issue, the Court will first consider the parties’ arguments concerning § 1404(a) before proceeding to the merits of Plaintiffs claims.
I. Motion to Transfer Venue
The Court turns first to Defendant’s motion to transfer the case to the District of New Jersey. Upon due consideration of the parties’ submissions (ECF Nos. 14-19), the Court concludes that transfer to the District of New Jersey is not warranted.
In considering whether to transfer, a case pursuant to Section 1404(a), a court must first establish that the case could have been filed in the‘transferee district and, if so, determine whether the convenience and the interest of justice favor transfer. See, e.g., Bossom v. Buena Cepa Wines, No. 11-CV-6890 (VB),
The answer to the first inquiry is yes— this action could have been brought in the District of New Jersey and there is no dispute as to the issue. § 1404(a) does not condition transfer on the initial forum’s being “wrong” and it permits transfer to any district where venue is also proper 0ie., “where [the case] might have been brought”) or to any other district to which the parties have agreed by contract or stipulation. Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, — U.S. -,
In the instant action, Defendant resides in the District of New Jersey, where it is incorporated, has its nerve center, and does business. (Compl. ¶ 2; Def’s Mem. at 23.) Since Defendant is “at home” in the District of New Jersey, it resides in the proposed transferee district for the'purposes of Section 1400(a). Therefore, the first prong of the inquiry for a motion to transfer, venue is satisfied. Since the action could have been filed in the District of New Jersey, the Court will now consider the nine factors mentioned above to determine if transfer is appropriate. See N.Y. Marine & Gen. Ins.,
1. Convenience to Witnesses
Convenience to witnesses is typically the most important consideration in deciding a motion to transfer venue. See Freeplay Music v. Gibson Brands,
The parties’ disagreement about the location of party and third-party witnesses and the availability of process to compel the latter does not favor transfer to the District of New Jersey. On this point, the moving party must “‘clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover.” AEC One Stop Grp., 326
Plaintiff does not fundamentally contest Defendant’s broad facts. Instead, he lamely asserts that this factor weighs in favor of New York because he
“... verily believes that many, if not most, of the witnesses who will be subpoenaed to testify reside in the State of New York, and within the eight counties comprising the United State District Court for the Southern District of New York; such belief can only be corroborated in the course of discovery.”
(PL’s Opp’n Mem. at 14.) To be sure, neither party presents a persuasive portrait or credible alternative of who the trial’s important witnesses might be. But the movant, in this case the Defendant, is the party who bears the burden of proving that New York is an inconvenient forum. Because Defendant failed to demonstrate by clear and convincing evidence that New York would particularly inconvenience witnesses or lack process to compel their appearance, this factor ultimately weighs against transfer. Flood v. Carlson Rests.,
2. Plaintiffs Choice of Forum
As a general matter, “a plaintiffs choice of forum should not be disturbed unless the balance of the factors tips heavily in favor of a transfer.” Rush v. Fischer,
Typically, the plaintiffs choice of forum is given substantial deference especially if it is the plaintiffs home state. See, e.g., Atl. Recording Corp. v. Project Playlist,
While some courts have accorded less deference to a plaintiffs choice of forum where the case lacks significant contacts with the forum state, less deference does not equal transfer. Kwik Goal v. Youth Sports Publ’g, No. 06-CV-395,
3. Remaining Factors
The balance of the remaining factors does not tip in favor of transfer, let alone heavily. The factors are either neutral or weakly favor New York over New Jersey. For one thing, although Defendant devotes a substantial amount of its briefing to arguing that only one factor favors New York — namely, deference to Plaintiffs choice of forum — it fails to demonstrate by clear and convincing evidence that relevant documents and the relative ease of access to sources of proof materially favor New Jersey. Given electronic discovery, and absent any concrete illustration of inconvenience to either side relating to documents or other non-testimonial evidence, this factor is neutral. Guardian Life Ins. Co. of Am. v. Hernandez, No. 11-CV-2114 (SAS),
Similarly, neither party looks to the relative means of the parties to argue which district should retain venue. Therefore, the Court can only assume that Plaintiffs choice is entitled to greater deference as the individual squaring off with an institution. Contra Holiday Image v. Victoria’s Secret Stores Brand Mgmt., No. 14-CV-8660 (JMF),
Finally, it is not, at this point, clear that efficiencies will be realized by sitting this litigation in the District of New Jersey.
II. Motion to Dismiss Plaintiffs Claims
To date, Plaintiff has been unable to secure employment as an MRI technician. Plaintiff alleges that the AIMS Education Handbook and Program Catalog reprer sented several “promises” that remain unfulfilled, entitling him to damages for breach of implied or quasi contract. Defendant counters that these allegations are non-cognizable claims of educational malpractice. Defendant also argues that Plaintiffs fraud and misrepresentation claim fails for lack of specificity pursuant to Rule 9(b). As a final matter, the Court notes that Defendant’s motion to dismiss does not address Plaintiffs unfair and deceptive business practices claim whatsoever.
Before addressing the merits of Plaintiffs claims, the Court must first resolve what law applies to each claim. Neither the Enrollment Contract nor the Employment Assistant Consent form contain choice-of-law provisions opting for New Jersey or New York law. (Enrollment Agreement, Ex. 4; Employment Consent Form, Ex. 6.) Neither party clearly argues choice of law nor point the Court decidedly toward a particular forum.
A federal court sitting in diversity applies the choice-of-law principles of the state in which it sits, in this case New York law. First Hill Partners, LLC v. BlueCrest Capital Mgmt. Ltd.,
However, if the court finds an actual conflict in the applicable law of each jurisdiction, the court embarks on- a choice-of-law analysis. New York maintains two choice-of-law tests — one for contract claims and one for tort claims. See Global-Net Financial.Com, Inc. v. Frank Crystal & Co.,
1. Breach of a Quasi or Implied-in-Law Contract
a. Choice of Law
Plaintiffs opposition brief does not cite to a single case for breach of implied contract. (See, PL’s Opp’n Mem, at 10-12.) Plaintiff instead reiterates the claims alleged in the Complaint, mainly that Defen
Defendant argues that “New Jersey law applies to [Plaintiff’s contract claim because New Jersey has the more significant contacts,” (Def.’s Mem. at 10), but Defendant fails to first address whether New Jersey and New York have different substantive rules that are relevant to the issue of implied contracts between students and educational institutions, as required by a federal court sitting in diversity. Defendant’s memorandum analyzes Plaintiffs implied contract claim under New York law. However, as best the Court can tell, Defendant also argues that it would prevail under either the law of New York or New Jersey. (See id. at 10 n. 5 (asserting that “dismissal of Plaintiffs Complaint is warranted under both New York and New Jersey since both states have adopted the educational malpractice doctrine, barring claims by students against their schools”),) The Court will now analyze each state’s substantive rules regarding student-university conflicts.
Under New York law, “when a student is admitted to a school, an implied contract arises between the student and the school,” Dasrath v. Ross Univ. Sch. of Med.,
New Jersey law similarly “recognizes an implied agreement between students and institutions of higher education.” Mehta v. Fairleigh Dickinson Univ., No. 09-CV-0455 (SDW),
Some New York courts have also held that contractual claims are subject to judicial review “to determine whether [the school] abided by [its] own rules, and whether [it has] acted in good faith or [its] action was arbitrary or irrational.” Gertler v. Goodgold,
Defendant argues that even assuming an implied contract existed between Plaintiff and AIMS, Plaintiffs claims are automatically barred by the educational malpractice doctrine under both New York and New Jersey law.
Here, Plaintiff 'claims that AIMS failed to provide the required instruction for intravenous therapy and skills. Construing Plaintiffs Complaint most liberally, Defendant may well have failed to provide the “specified service” as advertised, including the designated hours of intravenous instruction. Lacking any case law to the contrary, a New Jersey court is likely to classify Plaintiffs claim as a tort claim for educational malpractice, and thus bar the suit in its entirety.
If there is a conflict, in a contract casé, “[i]t is well settled that New York has long recognized ‘the use of a center of gravity or grouping of contacts analytical approach to choice of law questions.’” Feldman Law Grp. P.C. v. Liberty Mut. Ins. Co.,
Here, Plaintiff contends that he signed the Enrollment Contract with Defendant in New Jersey, and that, all meetings between Plaintiff and Defendant occurred in New Jersey, Because Plaintiff attended all classes in New Jersey, where the AIMS Education campus is located, New Jersey is also the primary place of performance. While the parties have different domiciles, the bulk of the factors clearly favor New Jersey as the “center of gravity.” Therefore, the Court will apply New Jersey law.
b. Merits Analysis
Having determined that New Jersey contract law applies, the Court will now assess Plaintiffs claim for breach of implied contract. Plaintiffs ill-defined implied breach of contract is set out as follows: Defendant’s website, advertisements, and course manual — taken together — constitute an implied guarantee that students who successfully complete and graduate from the MRI Tech program should be legally employable as MRI technicians. (Pl.’s Opp’n Mem. at 11.) To support the allegation that “AIMS Education’s MRI Technologist program is absolutely worthless,” Plaintiff claims that, (1) the phlebotomy and intravenous skills training ¡he .received was insufficient; (2) AIMS mischaracter-ized the minimum education and type of license required to administer 'intravenous injections as an MRI Tech; and (3) AIMS misrepresented the employment prospects of graduates with ARM-
Defendant argues for the narrowest interpretation of New Jersey law by citing only cases in which New Jersey’s educational malpractice doctrine barred students’ allegations regarding the sufficiency, adequacy, and quality of their education. But the Court notes that Defendant does so without referring to the limits imposed by New Jersey’s administrative law approach to student-university conflicts. New Jersey law is clear to distinguish between cases where the court is being asked to evaluate inadequate or ineffective education services (see, e.g., Myers,
None of the New Jersey cases approximate the instant facts under either approach. It is therefore unclear whether a New Jersey court would apply a tort or administrative law analysis in the instant case. And “when diversity jurisdiction forces us to grapple with an uncertain question of state law, we should approach the problem- with the background assumption that the state judiciary would not formulate a new rule of equity that would produce an unfair result.” Shah v. Racetrac Petroleum Co.,
To start, Plaintiffs claim would be entirely barred under New Jersey’s tort approach given that “[ejducational malpractice has not been approved as a theory of recovery ...” Myers
Plaintiffs claim also fails under New Jersey’s administrative law approach. While New Jersey courts will not intervene in conflicts predicated upon the quality and adequacy of the course of instruction, they will resolve conflicts that involve determining “whether the procedures followed were in accordance with the institution’s rules and regulations.” Mittra,
Plaintiff further claims that Defendant failed to clarify either that (1) it did not provide a separate certificate for intravenous therapy (Compl. ¶ 15) and (2) such certificate programs would require at least an associate’s degree. (Compl. ¶ 17.) With these allegations Plaintiff is proposing that Defendant should have made additional representations in its materials rather than Defendant deviated significantly from existing rules and regulations, a claim relegated to Plaintiffs fraud and deceptive practices claims discussed below. Plaintiff has not alleged any facts to suggest that Defendant acted capriciously or in bad faith. Thus, the Court finds that Plaintiffs claim fails under New Jersey’s administrative law approach. Because Plaintiffs quasi contract claim cannot proceed under either an administrative or tort law approach under New Jersey law, it must be dismissed.
a. Choice of Law
The Court finds that there is no actual conflict of law with respect to Plaintiffs second cause of action.
6. Merits Analysis
Plaintiff asserts that a variety of statements made to him, beginning with the initial, unsolicited advertisements describing the program, and continuing through the time when Plaintiff completed the program, are actionable as fraudulent misrepresentations. Defendant counters that “plaintiff failed to plead all the elements ... with the specificity required by the Fed. R. Civ. P. Rule 9.” (Def.’s Mem. at 17.)
Although the rules of federal pleading usually require only “a short and plain statement” of the plaintiffs claim for relief, see Fed. R. Civ. P. 8, averments of fraud must be “state[d] with particularity.” Fed. R. Civ. P. 9(b). See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
To the extent this Court understands Plaintiff to be proceeding on a material misrepresentation theory, Plaintiff’s pleadings are wholly conclusory and do not pass muster under Rule 9(b). Plaintiff maintains that Defendant made several affirmative “material misrepresentations.” The alleged false statements include: (1) “the number of MRI job opportunities is growing faster than the availability of qualified MRI Technologists,” (Compl. ¶ 6); (2) that it provides “a ‘comprehensive education and training,’ course which includes inter alia ‘intravenous therapy’” (id.)', (3) the program’s “admission eligibility as High School Diploma or GED” (id. ¶ 7); (4) “the MRI certification program is designed to prepare high school graduates to become MRI technologists and preparing them to sit for the ARMRIT Registry certification examination in Magnetic Resonance Imaging” (id. ¶ 9); (5) “57% of its graduates are gainfully employed as MRI Technologists within 180 days after graduation,” (id. ¶ 19); and (6) “that ARMRIT was accepted everywhere” (id.). But short of stating these claims are patently false, Plaintiff fails to explain why these statements were fraudulent. Instead, Plaintiff relies on a series of disjointed declarations in asking the Court to infer that Defendant knowingly made material misrepresentations. Accordingly,. Plaintiff has failed to plead fraud with the requisite specificity.
The Court finds Plaintiffs fraudulent misrepresentation claim, as alleged in the Complaint and supplemented by the Opposition unpersuasive, and frankly, bizarre. For example, Plaintiff claims that because Title IV of the Higher Education Act of 1965 was amended, Defendant “was aware, or should have been aware” that there was “a Federal presumption or expectation of employability.” (Compl. ¶ 11.) Under this theory, every educational program in the country is presumptively liable for damages when any graduate fails to secure a job. This stance lacks a legal basis. Similarly, Plaintiff claims that Defendant misrepresented what was required to be employed as an MRI. technician when it failed to disclose that New York, New Jersey, and Connecticut require separate licenses, to administer intravenous injections. (Compl. ¶ 14.) While Plaintiff admits that this license is only available to Radiologic Technologists, he maintains that Defendant misrepresented what was required to become an MRI Technologist. (Compl. ¶ 13.) This allegation is incongruous, provided that Defendant only made claims about MRI technicians and never Radiology Technicians. As a final example, Plaintiff claims that Defendant misrepresented that a GED was the minimum education required to enroll and train to become an MRI Technician. To support this claim, the Complaint states, in a conclusory manner, that Defendant “knew or should have known, that ARRT, the primary credentialing organization in the United States, as of January 1, 2015, requires as a minimum . i. an Associate Degree.” (Compl. ¶ 17). To start, this alleged change by ARRT in January 2015 occurred after Plaintiff enrolled and graduated from Defendant’s program. Therefore, it is difficult to comprehend how Defendant knowingly made a false statement (true at the time)
Having reviewed the allegations in a light most favorable to Plaintiff, it seems that only two of Defendant’s statements, if false, might represent misstatements of material fact: (1) “ARMRIT is accepted everywhere” and 57% of its graduates are employed upon completing the program. Nevertheless, Plaintiff fails to allege any additional facts or extrinsic evidence as to why or how these statements are misrepresentations of material fact. Moreover, there are no allegations supporting that Defendant knew these misrepresentations were false. Plaintiff is therefore asking the Court' to infer that the statements are patently false without any basis for such an assumption.
For the reasons discussed above, Plaintiffs fraud claim fails to meet the particularity requirements of Rule 9(b) and must be dismissed.
3. Unfair and Deceptive Business Practices
a. Choice of Law
With respect to Plaintiffs third and final cause of action, New Jersey and New York law require similar elements for claims under their respective consumer protection statutes.
The pleading standard is the key substantive difference "between the two consumer protection statutes. A claim under New Jersey’s Consumer Fraud Act (“NJCFA”) is subject to the heightened pleading standard of Fed. R. Civ. P. 9(b), which requires particularized pleading for the conduct underlying fraud claims. See, e.g., Frederico v. Home Depot,
Claims under N.Y. GBL § 349, however, are examined under the more liberal pleading standard of Fed. R. Civ. P. 8(a). Unlike the NJCFA, N.Y. GBL § 349 prohibits all “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” Section 349 “extends well beyond common-law fraud to cover a broad range of deceptive practices,” and as such, claims under § 349 are not subject to the heightened pleading standard of Fed. R. Civ. P. 9(b). Pelman ex rel. Pelman v. McDonald’s Corp.,
Thus, to the extent that claims under New York’s consumer protection statute are examined under a more liberal pleading standards than claims under New Jersey’s consumer protection statute, the Court finds the difference represents a conflict.
Plaintiffs unfair and deceptive business practices claim sounds in tort. See, e.g., Am. Airlines, Inc. v. Wolens,
b. Merits Analysis
Having determined that New Jersey law applies, the Court will now assess Plaintiffs unfair and deceptive business practices claim under NJCFA.
A party asserting such a claim must establish (1) wrongful conduct; (2) an ascertainable loss; and (3) and a causal relationship or nexus between the wrongful conduct and the loss. See Int’l Union of
Plaintiffs NJCFA claim — which is premised on the same allegations as Plaintiffs fraud and misrepresentation claim— states that Defendant both affirmatively misrepresented and intentionally omitted material facts with the intent to cause Plaintiff to enroll in the MRI Technologist program. The heightened pleading standards of Rule 9(b) are therefore applicable to Plaintiffs claim under the NJCFA. See Frederico v. Home Depot,
CONCLUSION
For the reasons stated above, Defendant’s motion to transfer this action to the District of New Jersey is DENIED in its entirety. Defendant’s motion to dismiss Plaintiffs Complaint is GRANTED in its entirety. The Clerk of the Court is respectfully directed to terminate Docket No. 14.
SO ORDERED.
Notes
. The Court notes that both parties rely on a string of conclusory arguments to argue their positions. This is true of all the pleadings and memorandum submitted to date.
. A program in radiography, nuclear medicine technology, radiation therapy, magnetic resonance imaging, or sonography.
. Complaint alleges that “as of January 1, 2015,” "ARRT, the primary credentialing organization in the United States .., requires as a minimum, that candidates for ARRT certification examinations must have an Associate's Degree, but prefer (and it may in the near future, be a requirement) that such candidates have. a Bachelor Degree, effectively ending non-degree granting diploma programs.” (Compl. ¶ 17.)
. A plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully,” id. and cannot rely on mere "labels and conclusions" to support -a claim, Twombly,
. Section 1391 governs “venue generally,” that is, in cases where a more specific venue provision does not apply. Cf., e.g., § 1400 (identifying proper venue for copyright and patent suits).
. Both parties cite New Jersey and New York law to support their arguments. Cf. Fed. Ins. Co. v. Am. Home Assurance Co.,
. Under New Jersey law,- the "true” university-student "contract” is one of mutual obligations implied, not in fact, but by law; it is a . quasi-contract which is "created by law, for reasons of justice without regard to expressions of assent by either words or acts.” Beukas v. Bd. of Trustees of Fairleigh Dickinson Univ.,
. In an albeit unpublished decision, this Third Circuit decision noted that New Jersey courts have "reject[ed] the rigid application of contractual principles to university-student conflicts involving academic performance and [have] limit[ed] [their] scope of review to a determination [of] whether the procedures followed [by the school] were in accordance with the institution's rules and regulations." Mehta v. Fairleigh Dickinson Univ.,
. "An institution involved in training health care professionals, where the conferral of a degree places the school's stamp of approval upon the student as qualified to practice the profession ... should be free to determine its ability to meet its educational responsibility so long as it does not act arbitrarily or in bad faith.” Beukas v. Bd. of Trustees of Fairleigh Dickinson Univ.,
.“An institution involved in training health care professionals, where the conferral of a degree places the school’s stamp of approval upon the student as qualified to practice the profession, see, Doherty v. Southern College of Optometry,
.The educational malpractice doctrine recognizes that "professional educators — not judges — are charged with the responsibility for determining the method of learning that should be pursued for their students.” Paladino v. Adelphi Univ.,
. "When considering breach of contract claims based on inadequate or ineffective educational services (rather than claims based on breach of an express contractual provision), New Jersey courts have noted that such claims are comparable to a tort claim for educational malpractice.” M.G. v. Crisfield, No. CIV-A-06-5099 (FLW),
. The Court notes that even if Plaintiff’s claims were to proceed under New York law, they are unlikely to succeed in the end. First, Plaintiff does not assert a traditional contract
. The Course Catalog, incorporated by reference in the Catalog Consent Form, states that ''[t] he student acknowledges that AIMS EDUCATION ("school”) does not warrant or guarantee that successful completion by the student of the programs will result in the student obtaining employment in any field or profession.” (Course Catalog at 14.)
. While the Court analyzed Plaintiff's claim under New Jersey law, it notes here that Plaintiffs claim would also be dismissed under New York law for failing to allege how postgraduate statistics were misleading in a material way. See Gomez-Jimenez v. N.Y. Law Sch.,
. The Court notes that because Plaintiff never clarifies whether he is alleging a separate misrepresentation claim (of which there are several types, including intentional or negligent) it has assumed that Plaintiff is proceeding under a material misrepresentation theory based on common law fraud. This approach seems warranted given that Plaintiff's Complaint fails to allege, for instance, a "special relationship of trust or confidence” between the parties. Compare McBeth v. Porges,
. Both the New Jersey Consumer Fraud Act ("NJCFA”), N.J.S.A. § 56:8-1 et seq., and New York General Business Law ("NYGBL”) § 349, prohibit deceptive practices in connection with the sale or advertisement of consumer goods. See, e.g., Daaleman v. Elizabethtown Gas Co.,
. Section 350 has the same elements as Section 349 except that the plaintiff must demonstrate that the defendant's advertisement "(1) had an impact on consumers at large, (2) was deceptive or misleading in a material way, and (3) resulted in injury.” Koch v. Greenberg,