K.K-M.v. NEW JERSEY DEPARTMENT OF EDUCATION et al

Filing 131

OPINION. Signed by Judge Noel L. Hillman on 3/30/2022. (amv,n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

K.K-M., individually and as
Kinship Legal Guardian of the
A.W. and R.M.,
Plaintiffs,

No. 1:17-cv-11579-NLH-MJS
OPINION

v.
NEW JERSEY DEPARTMENT
OF EDUCATION; NEW JERSEY
OFFICE OF ADMINISTRATIVE
LAW; DOMINIC ROTA, in his
official capacity; GLOUCESTER
CITY BOARD OF EDUCATION
d/b/a GLOUCESTER CITY
PUBLIC SCHOOLS; and BLACK
HORSE PIKE REGIONAL
SCHOOL DISTRICT,
Defendants.

APPEARANCES:
ROBERT CRAIG THURSTON
THURSTON LAW OFFICES LLC
100 SPRINGDALE ROAD A3
PMB 287
CHERRY HILL, NJ 08003
Counsel for Plaintiffs.
VICTORIA SIMOES BECK
WILLIAM CLAWGES MORLOK
PARK MCCAY P.A.
9000 MIDLANTIC DRIVE
SUITE 300
MOUNT LAUREL, NJ 08054
Counsel for Gloucester City Board of Education.

MICHAEL S. MIKULSKI, II
CONNOR WEBER & OBERLIES, P.C.
WOODCREST PAVILION
TEN MELROSE AVENUE
SUITE 450
CHERRY HILL, NJ 08003
Counsel for Black Horse Pike Regional School District Board
of Education.
DONNA S. ARONS
JACLYN MICHELLE FREY
AIMEE ROUSSEAU
JOAN M. SCATTON
BETH N. SHORE
KERRY SORANNO
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
25 MARKET STREET - P.O. BOX 112
TRENTON, NJ 08625
Counsel for the State Defendants.

HILLMAN, District Judge
This matter comes before the Court by way of Plaintiffs’
Second Motion to Amend Complaint.

(ECF 121).

For the reasons

stated below, the Court will grant in part and deny in part
Plaintiffs’ motion. 1

Plaintiffs are K.K-M., individually and as Kinship Legal
Guardian of the A.W. and R.M. Defendants are the New
Jersey Department of Education (“NJDOE”); the New Jersey Office
of Administrative Law (“OAL”); Dominic Rota, in his official
capacity (together, the “State Defendants”); Gloucester City
Board of Education d/b/a Gloucester City Public Schools
(“GCPS”); and Defendant Black Horse Pike Regional School
District (“BHPRSD”).
1

2

BACKGROUND
Plaintiffs seek to file a third amended complaint in
response to Judge Robert Kugler’s August 10, 2021 ruling on the
State Defendants’ motion to dismiss Plaintiffs’ second amended
complaint, which granted in part and denied in part the State
Defendants’ motion.

(See ECF 119).

On August 23, 2021,

Plaintiffs formally moved to amend the complaint and filed a
proposed complaint with the changes redlined.

(See ECF 121).

BHPRSD and the State Defendants filed oppositions to the motions
regarding specific counts, arguing that amendment would be
futile. 2

(ECF 122, 127).

Plaintiffs promptly filed replies in

further support of its motion.

(ECF 123, 128).

Briefing is now

complete, and the Court will proceed to the merits of the
motion.
DISCUSSION
I. Legal Standard for a Motion to Amend Complaint
Federal Rule of Civil Procedure 15(a)(2) provides that “a
party may amend its pleading . . . with the opposing party's
written consent or the court’s leave.”

Leave to amend is to be

freely granted unless there is a reason for denial, “such as

The State Defendants filed their opposition after the deadline
to do so had passed and did not seek an extension until after
that deadline. The Court allowed the State Defendants to file
an opposition brief but stated that Plaintiffs could still argue
that it was untimely. (ECF 126).
2

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undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc.”

Foman v. Davis, 371 U.S. 178, 182 (1962); see also Arthur

v. Maersk, 434 F.3d 196, 204 (3d. Cir. 2006) (“Among the factors
that may justify denial of leave to amend are undue delay, bad
faith, and futility.”).
District courts “should freely give leave to amend when
justice so requires.” Schomburg v. Dow Jones & Co., 504 F. App'x
100, 103 (3d Cir. 2012) (citing Rule 15(a)(2)) (internal
alterations omitted).

“Thus, leave to amend ordinarily should

be denied only when amendment would be inequitable or futile.”
(Id.)

“[T]hese principles apply equally to pro se plaintiffs

and those represented by experienced counsel.”
Parker, 363 F.3d 229, 235 (3d Cir. 2004).

Alston v.

“Futility ‘means that

the complaint, as amended, would fail to state a claim upon
which relief could be granted.’” Burtch v. Milberg Factors,
Inc., 662 F.3d 212, 231 (3d Cir. 2011) (quoting Great W. Mining
& Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir.
2010)).

Courts have held amendment to be inequitable where the

plaintiff already had an opportunity to amend the complaint.
Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (“[W]e are
inclined to give the District Court even broader discretion
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when, as here, the court has already granted the requesting
party an opportunity to amend its complaint.”); McMahon v.
Refresh Dental Mgmt., LLC, 2016 WL 7212584, at *11 (W.D. Pa.
Dec. 13, 2016) (“The court need not provide endless
opportunities for amendment, especially where such
opportunity already has been enjoyed.”) (internal alterations
and quotation marks omitted).
II. Analysis
Plaintiffs seek to amend their Complaint in response to
Judge Kugler’s August 10, 2021 Opinion and Order.

BHPRSD and

the State Defendants challenge the amendments to specific
counts.

BHPRSD challenges the amendments to Counts One and

Eight and the addition of Counts Nine through Twelve Against
them.
The Court agrees that amendment to Counts One and Eight
against BHPRSD would be futile and therefore will deny the
motion to amend to add BHPRSD to those counts.

Count One

alleges legal error in two due process matters before the NJDOE
and the OAL to which BHPRSD was not a party.

The Court finds

that it would be futile to add BHPRSD to those counts because
the provision that allows appeal of a due process petition to
the district court makes clear that it must be based on the
underlying complaint filed before the NJDOE.

A pure claim based

on legal error is more appropriately handled as an appeal than
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as a separate count.

The provision of the IDEA allowing appeal

of the prior decision is clear that the scope of any appeal of
the underlying action is cabined by the due process complaint.
20 U.S.C.A. § 1415(h)(2)(A)

(“Any party aggrieved by the

findings and decision made under subsection (f) or (k) who does
not have the right to an appeal under subsection (g), and any
party aggrieved by the findings and decision made under this
subsection, shall have the right to bring a civil action with
respect to the complaint presented pursuant to this section,
which action may be brought in any State court of competent
jurisdiction or in a district court of the United States,
without regard to the amount in controversy.”).
Essentially, § 1415(h)(2)(A) makes clear that a party
appealing the result of a due process proceeding must base that
appeal on the underlying complaint filed in that proceeding.
The fact that Counts One and Eight suggest that BHPRSD should
have intervened in the underlying due process complaints does
not change this.

(See ECF 121-2 at 55 (“BHPRSD s failed to

intervene and ensure the IEEs were considered and incorporated
into the 8/14/2018 IEPs for A.W. and R.M.

This is prima facie

proof of BHPRSD’s denial of FAPE to A.W. and R.M.”)).

BHPRSD

was not a party to the underlying due process proceedings and
thus is not appropriately named as a defendant in Counts One and
Eight.

Therefore, the Court will deny the motion to amend to
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the extent that it seeks to amend Counts One and Eight to name
BHPRSD.
That said, the Court will allow amendment of the complaint
to add claims against BHPRSD for Counts Nine through Twelve for
alleged violations of the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400, et seq. (the “IDEA”), § 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., and
Title II of the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et seq.

BHPRSD is correct that generally such

claims would be inappropriate because Plaintiffs have not
exhausted their administrative remedies against BHPRSD.
However, there is an exception to that requirement where
use of the administrative system would be futile.

M.M. v.

Paterson Bd. of Educ., 736 F. App'x 317, 319–20 (3d Cir. 2018)
(“There are four exceptions to the exhaustion requirement: (1)
exhaustion would be futile or inadequate; (2) the issue
presented is purely a legal question; (3) the administrative
agency cannot grant relief; and (4) exhaustion would cause
severe or irreparable harm.”) (internal quotation marks
omitted).

The court is satisfied that exhaustion would be

futile based on the pleadings in the proposed complaint.
Specifically, the proposed complaint alleges that one of the due
process cases the Plaintiffs filed did not receive a final
decision until 698 days after the case was transmitted to the
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OAL.

(ECF 121-2 at 57).

On the current record, it certainly

would seem to be an exercise in futility to require Plaintiffs
to commence a due process petition that, based on the timeline
of their last petitions, could take years to resolve.
The State Defendants argue that the Court should not allow
amendment to Count Four because it would be futile.
Specifically, they contend that Count Four, an alleged violation
of the IDEA’s procedural safeguards against the State
Defendants, is almost identical to the count that Judge Kugler
previously dismissed.

They point to the allegations against

Dominic Rota that he rejected Plaintiffs’ first due process
complaint as conclusory.

Plaintiffs counter that the State

Defendants filed their opposition brief late without requesting
the Court for permission to do so before the deadline and that
the Court should therefore disregard their submission.

They

also argue that their amendments to Count Four addresses what
Judge Kugler specifically found lacking in their last complaint—
an explanation of how they were substantively harmed.
The Court certainly could disregard the State Defendants’
opposition as being untimely filed.

U.S. Small Bus. Admin. v.

Herbst, 2011 WL 5526057, at *2 (D.N.J. Nov. 14, 2011) (declining
to consider an untimely filed submission).

However, the Third

Circuit has made clear its preference that matters be decided on
the merits where possible.

Kauffman v. Moss, 420 F.2d 1270,
8

1276 (3d Cir. 1970) (“[L]itigation, where possible, should
be decided on the merits.”)

Plaintiffs’ proposed complaint adds

allegations in Count Four of how Mr. Rota’s actions caused them
substantive harm.

The proposed complaint states, “Upon

information and belief NJDOE and/or Rota have rejected other due
process complaints and Emergent Relief applications without
transmitting them to an Administrative Law Judge and without a
sufficiency challenge by a party.” (ECF 121-3 at 105).

This is

admittedly still thin, but taken with the rest of the
allegations in the complaint and considering what information
would be available to Plaintiffs about Mr. Rota’s activities at
this point in litigation, the Court cannot say that this
amendment is futile.

Destro v. Hackensack Water Co., 2009 WL

3681903, at *2 (D.N.J. Nov. 2, 2009) (“The Court must consider
the Complaint in its entirety and review the allegations as a
whole and in context.”); Wood v. State of New Jersey, 2016 WL
4544337, at *5 n.5 (D.N.J. Aug. 31, 2016) (citing In re
Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d
Cir. 2002)

(“[T]he Third Circuit has [] recognized that

pleading facts upon information and belief is permitted where
the factual information at issue is within the Defendants'
exclusive possession and control.”)

Thus, the Court finds

amendment to Count Four to be appropriate.
With respect to the rest of the proposed complaint, none of
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the defendants have raised arguments that leave to amend should
not be granted.

The Court is not prepared to hold at this time

that amendment to the rest of the complaint would be futile or
inequitable.

The record indicates that Plaintiffs have been

diligently pursuing their rights and have tailored the proposed
amendments to fit with Judge Kugler’s directives on the prior
motion to dismiss.
CONCLUSION
For the reasons stated above, the Court will grant
Plaintiffs’ Motion to Amend Complaint except with respect to the
proposal to add BHPRSD as a defendant to Counts One and Eight.
An appropriate Order will be entered.

Date: March 30, 2022
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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