November 20, 2009
NY Court Dismisses Law Student’s Attempt to Challenge Legal Writing Grade, Finding No Implied Contract
Over at Adjunct Prof Blog, Mitchell H. Rubinstein reports on Keefe v. New York Law School, ___Misc. 3d___(N.Y. Co. Nov. 17, 2009), which dismissed a student’s claim that New York Law School breached an implied contract by giving him a “C” in Legal Writing. Here’s Rubinstein’s summary:
A transfer student to New York Law School from Hofstra Law School was unhappy with being placed in Legal Writing II. As I understand it, his argument was that New York Law School breached an implied contract because it did not provide him with "the right program for every student" as indicated on the law school's web site. Out of the blue he argued that legal writing should be graded pass/fail because that is the way it is done at Yale Law School. The court did not have any trouble dismissing the case and finding that no implied contract existed. As the court stated:
Generally, New York State courts have permitted a student to bring a breach of implied contract action against an institution of higher education. See Radin v. Albert Einstein College of Med. Of Yeshiva Univ., 2005 U.S. Dist. LEXIS 9772 at *30 (S.D.N.Y May 20, 2005). However, a student must identify specific language in the school's bulletins, circulars, catalogues and handbooks which establishes the particular "contractual" right or obligation alleged by the student in order to make out an implied contract claim. See Sweeney v. Columbia Univ., 270, AD2d 335, 336 (2d Dep't 2000); Vought v. Teacher's Coll., Columbia Univ., 127 AD2d 654, 655 (2d Dep't 1987). General statements of policy are not sufficient to create a contractual obligation. Only specific promises that are material to the student's relationship with the school can establish the existence of an implied contract. See Lloyd v. Alpha Phi Alpha Fraternity, 1999 U.S. Dist. LEXIS 906, at *27-*28 (N.D.NY Jan, 26, 1999). "To state a valid claim for a breach of contract, a plaintiff must state when and how the defendant breached those specific promises. Radin, 2005 U.S. Dist LEXIS 9772, at *32.
In the case at bar, Plaintiff fails to cite any specific provision or communication from NYLS that would establish an implied contract. One cannot breach a contractual promise that was never made. Radin, 2005 U.S. Dist. LEXIS 9772, at *37. Plaintiff fails to point to any document or communication that gives rise to a promise which NYLS has breached. See Chira v. Columbia Univ., 289 F. Supp.2d 47, 485, 486 (S.D.N.Y 2003); Ward v. New York Univ., 2000 U.S. Dist. LEXIS 14067, at *10-*12 (S.D.NY Sept 25, 2000). Therefore the motion to dismiss the complaint is granted in its entirety.
Moreover, New York courts have repeatedly refused to interfere in the academic procedures of educational institutions and cannot and will not intervene in disputes involving an educational institution's grading system.
As the New York Court of Appeals has stated quite clearly in Susan M. v. New York Law School, 76 NY2d 241, 246-247 (1990).
As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student's challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student's academic capabilities is beyond the scope of judicial review.
Plaintiff is requesting this Court to intrude upon an area to which New York Courts have [*3]strongly refused to intervene. Here, Plaintiff has shown no evidence of "bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation." id. NYLS clearly communicated through the student handbook that NYLS utilizes a letter grading system under which all of its students are evaluated. This Court declines to interfere with this quintessential function of an educational institution.
I would file this one in “nice try.”
[Meredith R. Miller]
Jon & Kate -- But Wait!! It's a Different Kate!
It is very hard to keep up with all the law suits swirling around the celebrated parents, Jon, at left, & Kate. And it's probably not worth trying to do so, but an image of a handwritten contract is simply too good to pass up. So, here it is, courtesy of the good people at Radaronline.com. In the document, Jon Gosselin appears to pledge to hire Kate Major as his "personal assistant." She would be compensated with "a percentage of accounts for payment based upon involvement." Ms. Major, aka Kate 2.0, is suing Jon Gosselin for breach. Octodad Jon's attorney proclaims that the other Kate's lawsuit is nonsense. You can read about it here.
According to the New York Daily News, the written agreement also included a pledge by Kate 2.0, that she and Jon would not comment publicly about their relationship. Both seem to have breached that part of the deal, but their accounts differ as to the nature of their relationship. Kate 2.0 also provides additional details of oral promises that Jon made to her. None of the websites visited by the author had any information about whether the parol evidence rule might apply, nor do they address the existence of a no-oral-modifications clause in the handwritten agreement.
November 18, 2009
Weekly Top Ten
November 17, 2009
A Dickensian Contract
I was amused to come across this 19th-century account of how "refined" people concluded contracts in the 19th century. It comes from Little Dorrit, by Charles Dickens (left). The exchange is between William Dorrit, recently released from the debtors prison and now (suddenly and rather mysteriously) a wealthy man, and a Mrs. General, whom he is contemplating as an agent for the cultivation of his daughters' manners -- or mannerisms.
November 16, 2009
Contract or Extortion?
Last month, we speculated a bit on the relationship between blackmail and contract. Last week, Am Law Litigation Daily reported on a case in point. Plaintiff Robert Eringer is suing Prince Albert II of Monaco (pictured) for $60,000 that plaintiff alleges is owed under a contract for investigative work that plaintiff performed in Monaco between 2005 and 2007.
Plaintiff's complaint can be found here. The complaint alleges that plaintiff was employed as an intelligence officer to help the Prince root out corruption, organized crime and money laundering in Monaco. The further details of the complaint -- and there are many -- are very interesting, setting out the individuals and entities, including the Freemasons and "Italian organized crime groups" that plaintiff claims to have investigated, with the help of various state intelligence agencies, including the CIA. The complaint also details plaintiff's alleged negotiations on the Prince's behalf with the Prince's various illegitimate children. It's quite a colorful document.
But the Prince's attorney characterizes the lawsuit as a "crude shakedown" and as "blatant extortion." Gosh. If I were going to extort money from the Prince of Monaco, I don't think $60,000 is the figure I would pick. But the allegation of extortion certainly adds flair to the drama. Defendant's motion to dismiss, largely on the grounds that the Prince is a head of state and the foreign sovereign immunity doctrine precludes the suit, can be found here. The motion also requests that the court strike from the complaint all "immaterial, impertinent and scandalous matter." Great stuff.