NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 15-3968

___________ MOHAMMED MEKUNS, Appellant

v. CAPELLA EDUCATION COMPANY

___________________ _________________ On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (D.C. Civil Action No. 1-15-cv-01542) District Judge: Honorable Gene E.K. Pratter

___________________ _________________ Submitted Pursuant to Th ird Circuit LAR 34.1(a) July 1, 2016 Before: AMBRO, GREENAWAY, JR . and GARTH, Circuit Judges (Opinion filed: July 19, 2016)

___________

OPINION *

___________ PER CURIAM Mohammed Mekuns appeals from the order of the District Court dismissing his complaint. We will affirm.

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 I. Mekuns was a student at Capella Univ ersity pursuing a Doctor of Psychology degree. During the review of Mekuns’s di ssertation, a reviewer noticed potential “research misconduct” as defined in Capella Un iversity Policy 3.03.06. In particular, the reviewer noticed what appeared to be plagiarism and the fa lsification or fabrication of data. After considering the evidence in supp ort of the charges and Mekuns’s responses, Capella University’s Research Compliance Committee concluded that the misconduct occurred and recommended a sanction of dismissal from the University. The University’s Deciding Official , after again providing Mekuns with an opportunity to respond, imposed that sanction. Mekuns app ealed to the President of the University, but the President agreed with the Deciding Official and upheld the sanction of dismissal. Pursuant to the University’s Policy 3.03.06, “[ t]he decision of the un iversity president is final.” (ECF No. 1-2 at 9.) Through counsel, Mekuns then filed su it against Capella Education Company, which operates Capella Univer sity (we will refer to them collectively as “Capella”). Mekuns invoked the District C ourt’s diversity jurisdiction an d asserted a single count of breach of contract, in which he asserted th at Capella breached th e terms of its Policy 3.03.06 in four ways. First, Mekuns claimed that Capella violated the provisions of the policy requiring that any finding of research misconduct be based on a preponderan ce of the evidence. (ECF No. 1-2 at 4, 8.) Mekuns claimed that Capella violated this provision because the3 evidence of misconduct did not amount to a prep onderance and Capella never stated that its finding was based on a preponderance. Second, Mekuns claimed that Capella viol ated the provision of the policy defining “research misconduct” to include only miscond uct committed “intentionally, knowingly, or recklessly.” (Id. at 4.) Mekuns claimed that Capella violated this provision because that element was not proven by a preponderanc e of the evidence and Capella never stated that it was. Third, Mekuns claimed that Capella viol ated the provision of the policy excluding “honest error” from the definitio n of “research misconduct.” (Id. at 3.) Mekuns claimed that Capella violated this provision too because the absence of honest error was not proven by a preponderance of the evidence and Capella did not expressly address that issue. Finally, Mekuns claimed that Capella vi olated a provision of the policy that governs further proceedings after a finding of research misconduct has been made. That provision states that, in the ev ent of such a finding, “[t]he i nvestigation will be closed and the discussion with respondent will focus on corrective/discip linary action.” (Id. at 9) (emphasis added). Mekuns claims that Cappe lla violated this provision by addressing disciplinary action with him in writing ra ther than at a face-to-face meeting. Capella filed a motion to dismiss Mekuns ’s complaint under Fed. R. Civ. P. 12(b)(6). The District Court held oral ar gument and then granted the motion. The District Court further determined that amendment would be fu tile, and it dismissed4 Mekuns’s complaint with prejudice. Mekuns appeals pro se. 1
II. Having exercised our plenary review, we will affirm for the reasons adequately explained by the District Court. The District Court properly conclu ded that, as a matter of Pennsylvania law, 2 the provision of the policy sta ting that “[t]he decision of the university president is final” precludes appella te-like review of the merits of Capella’s disciplinary decision. See Murphy v. Duquesn e Univ. of the Holy Ghost, 777 A.2d 418, 433-34 (Pa. 2001); Reardon v. Allegheny Co ll., 926 A.2d 477, 482 & n.5 (Pa. Super. Ct. 2007). Mekuns’s breach-of-contr act claims thus required hi m to plausibly allege that Capella breached some specific provision of th e policy itself. See Reardon, 926 A.2d at 482 n.5. The District Court properly c oncluded that Mekuns’s allegations and the documents attached to and relied on in his complaint show that Capella did not breach any of the provisions on which he relies. Mekuns raises what we construe as four arguments on appeal. They relate primarily to the requirement th at research misconduct be pr oven by a preponderance of

1 The District Court had jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plen ary review of the dismissal of a complaint under Rule 12(b)(6). See Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 601 (3d Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relie f that is plausible on its face.” Id. at 604 (quotation marks omitted).

2 The parties and the District Court all assu me that Pennsylvania law applies to this dispute, and we see no reason to question that assumption.5 the evidence, and they lack persuasive merit. First, Mekuns challenges the District Court’s reliance on Hart v. University of Pittsburgh, No. 13-3 99, 2014 WL 4218616 (W.D. Pa. Aug. 25, 2014). In that case, a uni versity student claimed that the university breached its policy requiring that any misc onduct be found by clear and convincing evidence by failing to e xplicitly state that its finding was based on that standard. The court dismissed that claim because “[t]he Ha ndbook does not explic itly require that the determination use the magic phrase ‘clear a nd convincing evidence[.]’” Id. at 21. Mekuns argues that this case is different because Capella’s policy includes the words “preponderance of the ev idence.” But the same was true as to the relevant burden of proof in Hart. As in Hart, and as the Dist rict Court explained, nothing in the policy required Capella to use those magic words. Second, Mekuns argues that, in the ab sence of an expre ss reference to the standard, “[h]ow do we know if Capella even consider ed the preponderance of the evidence standard?” (Appellant’s Br. at 2.) The relevant question, however, is whether Mekuns alleged anything rais ing the reasonable inference that Capella did not. See Pearson, 775 F.3d at 604. We agree with the District Court that Mekuns’s complaint does not do so. Third, Mekuns argues that the District C ourt erred in concluding that he sought to challenge the results of Capella’s determin ation rather than its compliance with the applicable terms of the policy in reach ing those results. But however Mekuns characterizes his challenges, they required him to plausibly allege that Capella breached6 some term of the policy. As the District C ourt explained, he did not. The investigation report and other documentation attached to Mekuns’s complaint shows that Capella thoroughly considered the evidence and Meku ns’s responses and di d not breach any of the terms of the policy on which Mekuns relies. Finally, Mekuns argues that the Distri ct Court engaged in improper speculation and denied him due process. Mekuns raises no spec ific argument on this point, however, and our review reveals no basis for one. These points aside, we fully agree with th e District Court’s assessment of Mekuns’s remaining claims. We also agree w ith the District Court’s conclusion that any amendment of Mekuns’s comp laint would be futile. Mekuns conceded through counsel at oral argument in the District Court that there was nothing he could allege differently if given leave to amend. (Supp. App’x at 50.) The nature of Mekuns’ s claims reveals that there is not, and Mekuns does not argue otherwise on appeal.
III. For these reasons, we will affirm th e judgment of the District Court.