J.L. et al v. HARRISON TOWNSHIP BOARD OF EDUCATION et al
OPINION. Signed by Judge Renee Marie Bumb on 12/19/2014. (tf, )
NOT FOR PUBLICATION
[Docket No. 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
J.L., a minor, individually and
by her Parents K.L. and J.L.,
Civil No. 14-2666 RMB/JS
HARRISON TOWNSHIP BOARD OF
EDUCATION AND CLEARVIEW BOARD
Jaime Epstein, Esq.
107 Cherry Parke, Suite C
Cherry Hill, NJ 08002
Attorney for Plaintiffs
Brett E.J. Gorman, Esq.
Parker McCay P.A.
9000 Midlantic Drive, Suite 300
P.O. Box 5054
Mount Laurel, NJ 08054
Attorneys for Defendants
BUMB, United States District Judge:
This matter comes before the Court upon a Motion by
Defendants, Harrison Township Board of Education (“Harrison”) and
Clearview Board of Education (“Clearview”), (hereinafter together
referred to as the “Defendants”) to dismiss the Plaintiffs’ First
Amended Complaint (“Complaint”) in the above-captioned matter.
For the reasons set forth below, Defendants’ motion shall be
denied in part and granted in part.
Plaintiffs, K.L. & J.L., individually and on behalf of their
minor child, J.L., have fled a Complaint with this Court seeking
relief under three separate statutes: the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,
Section 504 of the Rehabilitation Act, 29 U.S.C § 794 (“Section
504”), and the New Jersey Law Against Discrimination, N.J.S.A. §
10:5-1, et seq., (“LAD”). 2
Per the Complaint, Plaintiff, J.L., is a student with
numerous severe disabilities which cause her to have cognitive,
learning, hearing and vision disorders.
Compl. at ¶ 2.
Plaintiff J.L. resided with her parents K.L. and J.L. in the
Township of Mullica Hill, County of Gloucester, in the State of
New Jersey during the relevant time period. Compl. at ¶7.
This Court will accept the Plaintiffs’ well-pled
allegations as true for purposes of this motion to dismiss. See
Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
2 Plaintiff also cites to the New Jersey Special Education
Law, N.J.S.A. 18A:46-1 et seq., and the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., in the Complaint but
does not cite claims pursuant to those statutes therein.
Defendant Clearview Board of Education, located in Mullica Hill,
New Jersey, and Defendant Harrison Township Board of Education
located in Harrison Township, New Jersey are alleged to be the
“local educational authority as defined by 20 U.S.C. § 1401(a)
and responsible for ensuring compliance with all federal mandates
under the IDEA, 504 and ADA for school aged students,” for those
residing in the Township of Mullica Hill, New Jersey.
¶¶ 8-9. 3
Plaintiff contends that while attending public school, the
Defendants “failed to provide her with a free and appropriate
education in the least restrictive environment and failed to
accommodate J.L.’s disabilities in order for her to benefit from
a public education that Defendants had a duty to offer.”
at ¶ 11.
As a result of these alleged issues, Plaintiffs filed a
Due Process Complaint on August 27, 2013 under IDEA, 504 and the
Americans with Disabilities Act (“ADA”) with the New Jersey
Department of Education (“NJDOE”) requesting that Harrison and
Clearview provide J.L. with:
Additional evaluations in areas of suspected disabilities;
Accommodations of her numerous disabilities;
An appropriate Individualized Education Plan (“IEP”); 4
Harrison is responsible for pre-school to grade 6 and
Clearview for grades 7-12.
4 An IEP is “a detailed written statement arrived at by a
Appropriate placement and extended school year; and
Compl. at ¶ 11.
The Due Process Complaint also sought to
prohibit Harrison from allowing J.L.’s educational or health
records to be disclosed to third parties without J.L.’s parents’
The NJDOE transmitted the matter to the New Jersey Office of
Administrative Law (NJOAL) for an initial due process hearing on
October 7, 2013, but the NJOAL failed to hold that hearing.
Compl. at ¶ 13.
The NJOAL noticed the case for a due process
hearing on December 17, 2013 before ALJ Kerins.
Id. at ¶ 14.
December 6, 2013, the Defendants sent the parties last written
offers to the ALJ and “represented [that] Defendants had met
Plaintiffs settlement demand requiring the ALJ to dismiss the
Compl. at ¶ 15.
Plaintiffs then wrote to the ALJ to
object to the Defendants disclosing the parties’ last settlement
offers and, instead of commencing the trial, the ALJ declined to
proceed and ordered the Defendants to file a motion requesting
Compl. at ¶¶ 16-17.
ALJ Kerins, sua sponte
multi-disciplinary team summarizing the child's abilities,
outlining the goals for the child's education and specifying the
services the child will receive.” Polk v. Central Susquehanna
Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988).
recused herself on December 20, 2013, and the Defendants’ motion
was heard by ALJ John Shuster, III, on January 14, 2014.
at ¶ 18.
On January 28, 2014, Judge Shuster granted the Defendants’
motion, ultimately holding that the matter had been rendered
moot, stating: “[b]ased on the finding that petitioner has
received by way of offer an affirmative response to all of its
demands as set forth in the petition, I conclude that a
controversy no longer exists, meaning this case has become moot
and therefore the petition should be dismissed.” Compl. Ex. 1 at
Plaintiffs have now filed a Complaint with this Court
asserting three separate Counts.
In Count One, Plaintiffs seek
an award of “reasonable attorney’s fees and costs [pursuant to 20
U.S.C. § 1415(i)(3)(B)] because they are the parents of J.L., a
child with a disability, who is the prevailing party in her
IDEA/504/ADA due process proceeding.”
Compl. at ¶ 21. Count Two
requests attorney’s fees as the prevailing party under Section
504 of the Rehabilitation Act, 29 U.S.C. § 794a.
Count Three, Plaintiffs seek to assert a claim under the LAD
against Defendant Harrison only.
In support of the LAD claim,
Plaintiffs allege the following:
J.L. is a handicapped person within the meaning of the
New Jersey Law Against Discrimination;
J.L. is otherwise qualified for the educational
programs provided by the Defendant;
By failing to make reasonable accommodations for J.L.
including individualized educational services
appropriate to meet her needs, the Defendant Harrison
have [sic] deprived J.L. of rights secured to her under
the under the New Jersey Law Against Discrimination;
The harm suffered by the Plaintiff J.L. was the result
of Defendant Harrison’s actions or omissions, and their
conduct was malicious, or wanton and willful or in
deliberate disregard of Plaintiff, J.L.’s rights.
Compl. at ¶¶ 41-44.
The Defendants have moved to dismiss all three Counts of
To withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
Id. at 663.
“[A]n unadorned, the-
defendant-unlawfully harmed-me accusation” does not suffice to
survive a motion to dismiss.
Id., 566 U.S. at 678. “[A]
plaintiff's obligation to provide the 'grounds' of his
'entitle[ment] to relief' requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In reviewing a plaintiff’s allegations, the district court
“must accept as true all well-pled factual allegations as well as
all reasonable inferences that can be drawn from them, and
construe those allegations in the light most favorable to the
plaintiff.” Bistrian v. Levi, 696 F.3d 352 n.1 (3d Cir. 2012).
Only the allegations in the complaint, and “matters of public
record, orders, exhibits attached to the complaint and items
appearing in the record of the case” are taken into
Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1384 n.2 (3d Cir. 1994)(citing Chester County
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990)).
A. Attorney’s Fees Under IDEA and Section 504
The Defendants argue that Plaintiffs’ request for attorney’s
fees under IDEA is barred as a matter of law because they made an
offer of judgment that exceeded the relief ultimately obtained by
the parents in the hearing.
Pursuant to 20 U.S.C. §
(i)  Attorneys' fees may not be awarded and related
costs may not be reimbursed in any action or
proceeding under this section for services
performed subsequent to the time of a written
offer of settlement to a parent if—
the offer is made within the time
prescribed by Rule 68 of the Federal
Rules of Civil Procedure or, in the
case of an administrative proceeding,
at any time more than 10 days before
the proceeding begins;
the offer is not accepted within 10
the court or administrative hearing
officer finds that the relief finally
obtained by the parents is not more
favorable to the parents than the
offer of settlement.
Defendants contend that all of the requirements set forth in
20 U.S.C. § 1415(i)(3)(D)(i-iii) have been met and an award of
fees is barred because on December 6, 2013, more than ten days
prior to the December 17, 2013 hearing, Defendants outlined an
offer of judgment “with as much detail as could be determined
based upon the information presented at that moment.”
Defendants amended their offer on December 12, 2013 “upon
receipt of Plaintiffs’ trial exhibits and after finally being
able to determine the specifics of Plaintiffs’ Petition . . . to
exceed the relief Plaintiffs sought in their Petition.”
Br. at 11.
Defendants argue that, because all of the
requirements under the statute have been met, as a matter of law,
this Court must prohibit an award of attorney’s fees and costs.
In response, Plaintiffs argue that fees are allowed even
where an offer of judgment was rejected “if the student was
justified in rejecting the offer.”
Pls.’ Br. at 6.
Plaintiffs state that the statute only bars an award of fees
incurred “subsequent” to the offer of judgment, which is
supported by the plain language of the statute:
may not be awarded . . . for services performed subsequent to the
time of a written offer of settlement. . . .” 20 U.S.C. §
1415(i)(3)(D)(emphasis added). 5
Finally, Plaintiffs argue that
To the extent Plaintiffs argue that the initial hearing
date was October 7, 2013, such an argument is undermined by the
text of the Complaint itself, wherein the Plaintiffs make clear
that the October hearing was canceled and occurred on December
Defendants “improperly rely on over 100 pages of numerous
exhibits” and that the Defendants substantially failed to comply
with IDEA, which bars the requested reduction of fees and costs
pursuant to 20 U.S.C. § 1415(i)(3)(G). 6
With respect to Plaintiffs’ application for fees under
Section 504 of the Rehabilitation Act, Defendants contend that
Plaintiffs’ failure to accept the proposed offer of judgment
“demonstrates bad faith that precludes attorney[’]s fees under
Defs.’ Br. at 14.
In doing so, Defendants ask this Court
to find that the Plaintiffs “unjustifiably rejected a settlement
offer and needlessly prolonged the matter . . . .”
Id. at 15.
Similar to their objections to Defendants IDEA arguments,
Plaintiffs contend that the Defendants failed to present this
Court with facts regarding their own “bad faith” with respect to
Moreover, Plaintiffs argue that such
matters are outside of the appropriate confines of a 12(b)(6)
17, 2013. Compl. at ¶¶ 13-17.
6 This section states that “[t]he provisions of subparagraph
(F) shall not apply in any action or proceeding if the court
finds that the State or local educational agency unreasonably
protracted the final resolution of the action or proceeding or
there was a violation of this section.” Plaintiffs incorrectly
cite to 20 U.S.C. § 1415(h)(3)(G), which is not relevant to their
Because Defendants ask this Court to both review documents
not relied on in Plaintiffs’ Complaint and to draw legal
conclusions from the facts averred by Defendants in their briefs,
both of which are not appropriate pursuant to a 12(b)(6) motion,
conversion to a motion for summary judgment is appropriate.
support of their arguments with respect to Counts One and Two,
Defendants submit nearly 165 pages of exhibits in support of
Generally, a district court ruling on a motion to
dismiss may not consider matters extraneous to the pleadings.
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997); see Pension Benefit Guar. Corp. v. White Consol.
Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (noting that
courts usually consider only the allegations in the complaint,
attached exhibits, and matters of public record).
court may consider an undisputedly authentic document that a
defendant attaches as an exhibit to a motion to dismiss if the
plaintiff's claims are based on the document." Pension Benefit
Guar. Corp., 998 F.2d at 1196.
Again, a review of the attached
documents reveals that there are exhibits that are neither
attached to the Complaint, nor matters of public record or
documents upon which Plaintiffs’ claims are necessarily based.
“If matters outside the pleadings are presented to and not
excluded by the court, the motion to dismiss must be converted to
a motion for summary judgment under Rule 56 and the court must
give all parties a reasonable opportunity to present pertinent
Borough of Moosic v. Darwin Nat'l Assur. Co., 556
Fed. Appx. 92, 95 (3d Cir. 2014).
In addition to presenting matters outside of the pleadings,
the Defendants ask this Court to draw legal conclusions from
facts alleged in their briefs.
For example, the Defendants ask
this Court to find that the Plaintiffs’ rejection of the
settlement offer necessarily constitutes “bad faith.”
purpose of a 12(b)(6) motion, however, is to “test the legal
sufficiency of plaintiff's claim. In other words, for purposes of
resolving a Rule 12(b)(6) motion, the question is whether the
plaintiff would be able to prevail even if she were able to prove
all of her allegations.”
Petruska v. Gannon Univ., 462 F.3d 294,
302 (3d Cir. 2006).
In light of the above, this Court deems it appropriate to
convert Defendants’ 12(b)(6) motion on Counts One and Two to a
Rule 56(a) motion for summary judgment pursuant to Federal Rule
of Civil Procedure 12(d). 7
Pursuant to Federal Rule of Civil
Rule 12(d) states: “If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not
Procedure 12(d), the Court must “provide notice of its
intention to convert the motion and allow an opportunity to
submit materials admissible in a summary judgment proceeding.”
Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 284
(3d Cir. 1991) (citation omitted).
As such, this Court will
Order that the parties have sixty (60) days from the date of this
Opinion to present to this Court, via electronic filing, any
pertinent materials not already provided that they believe are
needed to resolve the motion for summary judgment. 8
B. Plaintiffs’ LAD Claim
To the extent Defendants motion requests that this Court
dismiss Plaintiffs’ LAD claim for failure to adequately plead
facts in support of that claim, the motion will be granted.
The LAD prohibits discrimination against a person because of a
disability, the definition of which includes the perception of
having a disability. N.J.S.A. 10:5-5(q); N.J.A.C. 13-13-1.3(1).
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.”
The Third Circuit has required at least ten days’ notice be
given before conversion of Rule 12(b)(6) motion. See Crown Cent.
Petroleum Corp. v. Waldman, 634 F.2d 127, 129 (3d Cir. 1980).
Unlawful discriminatory acts under the LAD include denying a
person access to public accommodations, such as public schools,
on the basis of discrimination. N.J.S.A. 10:5-4; Hinfey v.
Matawan Regional Board of Education, 77 N.J. 514, 523, 391 A.2d
899 (1978) ("Public schools and public education assuredly are
covered by [the LAD]").
To establish a prima facie case under the LAD, a plaintiff
must show that she “(1) had a disability; (2) was otherwise
qualified to participate in the activity or program at issue; and
(3) was denied the benefits of the program or otherwise
discriminated against because of his or her disability.”
Dumont Pub. Schs., 2014 N.J. Super. LEXIS 160, at *26-27 (N.J.
App. Div. Nov. 24, 2014).
In addition, “for purposes of
establishing a prima facie case of disability discrimination
under the LAD where the facts concern the provision of special
education and related services, the program or benefit measured
under the third element is the provision of a FAPE.”) 9
FAPE refers to a “free appropriate public education.”
With respect to Count Three, the Defendants argue that the
Plaintiffs’ Complaint lacks factual allegations sufficient to
support the claim:
Nowhere does it state what the District failed to provide,
in what ways the District discriminated against J.L., how
that harmed J.L., or when any of these events took place.
Furthermore, what is offered by Plaintiffs is exactly the
type of sweeping legal conclusion which the Court is not
required to accept as true. Finally, Harrison had provided
J.L. with an Individualized Education Program that
specifically addressed J.L.’s disability, so at all times
Harrison was addressing J.L.’s disability.
Defs.’ Br. p. 18.
In response, Plaintiff contends that the facts supporting
the LAD claim are contained in the Complaint by reference – i.e.,
From the time J.L. became eligible to attend public school,
Defendants failed to provide her with a free and appropriate
education in the least restrictive environment and failed to
accommodate J.L.’s disabilities in order for her to benefit
from a public education.
Pl.’s Br. at p. 7.
Withstanding a motion to dismiss "requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action . . . . [Instead,] [f]actual allegations must be
enough to raise a right to relief above the speculative level."
Twombly, 550 U.S. at 555 (internal citation omitted); see also
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(stating that "Rule 8 requires a showing, rather than a blanket
assertion, of entitlement to relief" (quoting Twombly, 550 U.S.
at 555 n.3) (internal quotation marks omitted)).
A review of the
Plaintiffs’ Complaint reveals that they have not plead sufficient
facts in support of their LAD claim beyond facts relating to the
first prong of the prima facie case – i.e., that J.L. is
The Complaint lacks sufficient facts to support the
averment that J.L., was qualified to participate in the activity
or program at issue and was denied the benefits of the program or
otherwise discriminated against because of her disability.
Without the requisite factual support, Plaintiffs’ LAD claim must
be dismissed. 10
If Plaintiffs seek leave to amend their Complaint
pursuant to Federal Rule of Civil Procedure 15, they must file a
motion for leave attaching the proposed Amended Complaint at the
same time they file their Rule 56(a) submissions.
For the reasons discussed above, Defendants’ motion to dismiss
will be granted in part with respect to Plaintiffs’ LAD claim,
The Court also notes that Plaintiffs’ averments do not
address the potential inconsistency between their proposed LAD
claim and the fact that Harrison had provided J.L. with an
Individualized Education Program under the terms of the
With respect to Counts One and Two, this Court has
converted the motion to dismiss to a motion for summary judgment.
If the parties seek to provide this Court with supplemental
submissions, those materials shall be filed within sixty days. An
appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
December 19, 2014
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