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

Filing 227

OPINION & ORDER denying without prejudice Plaintiff's Motions for Partial Summary Judgment as to New Jersey Department of Education and Dominic Rota 177 , and Black Horse Pike Regional School District 192 ; denying 211 Defendant BHPRSD's Cross Motion to Dismiss. Signed by Judge Noel L. Hillman on 2/29/2024. (ssp, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
K. K.-M.
Individually and as Kinship
Legal Guardian of the minor
children R.M. and A.W
Plaintiff,
v.
NEW JERSEY DEPARTMENT OF
EDUCATION; NEW JERSEY OFFICE
OF ADMINISTRATIVE LAW;
DOMINIC ROTA,
individually and in his
official capacity; GLOUCESTER
CITY BOARD OF EDUCATION d/b/a
GLOUCESTER CITY PUBLIC
SCHOOLS; and, BLACK HORSE
PIKE REGIONAL SCHOOL DISTRICT
BOARD OF EDUCATION

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

Defendants.
APPEARANCES
Robert Craig Thurston, Esq.
Thurston Law Offices LLC
433 River Road
Suite 1315
Highland Park, NJ 08904-1940
Attorney for Plaintiff
Amelia Mauriello Lolli, Esq.
Michael S. Mikulski, II, Esq.
Connor Weber & Oberlies
304 Harper Drive
Suite 201
Moorestown, NJ 08057
Attorneys for Defendant Black Horse Pike Regional School
District Board of Education

Aimee Rousseau, Esq.
Beth N. Shore, Esq.
Donna S. Arons, Esq.
State of New Jersey
Office of the Attorney General
25 Market Street
POX Box 112
Trenton, NJ 08625
Joan M. Scatton, Esq.
Office of NJ Attorney General
Richard J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625-0112
Laurie Lee Fichera, Esq.
State of New Jersey, Division of Law
Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625-0112
Attorneys for Defendants New Jersey Department of
Education, New Jersey Office of Administrative Law, and
Dominic Rota
Victoria Simoes Beck, Esq.
William Clawges Morlok, Esq.
Park McCay P.A.
9000 Midlantic Drive
Suite 300
Mount Laurel, NJ 08054
Attorneys for Defendant Gloucester City Board of Education
HILLMAN, District Judge
WHEREAS, the within action involves claims against the
State of New Jersey and two school districts located therein 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

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Title II of the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et seq. (the “ADA”)(ECF No. 133); and
WHEREAS, Plaintiff has filed Motions for Partial Summary
Judgment against Defendants New Jersey Department of Education
(NJDOE), New Jersey Office of Administrative Law (NJOAL), and
Dominic Rota (collectively, State Defendants) (ECF No. 177), as
well as against Defendant Black Horse Pike Regional School
District Board of Education (BHPRSD) (ECF No. 192); and
WHEREAS, State Defendants’ Opposition to the instant
summary judgment motion repeatedly cites their inability to
adequately respond due to the lack of discovery on the issues
presented (ECF No. 198 at 10-11, 18, 21-24, 27, 42, 46-47); and
WHEREAS, State Defendants have provided this Court with a
Declaration Pursuant to Fed. R. Civ. P. 56(d), in which counsel
for said Defendants particularizes the need for discovery in
order to adequately respond to Plaintiff’s motion for summary
judgment (ECF No. 198-3); and
WHEREAS, Defendant BHPRSD opposes partial summary judgment,
arguing in part that this Court lacks jurisdiction over
Plaintiff’s claims against it because Plaintiff never exhausted
its administrative remedies (ECF No. 209 at 5, 9-12, 16-17); and
WHEREAS, Defendant BHPRSD has also filed a Cross Motion to
Dismiss Counts IX and X of Plaintiff’s Third Amended Complaint
on the basis of a failure to exhaust administrative remedies

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(ECF No. 211 at 5, 9-12, 16-17); and
WHEREAS, but for the title pages, Defendant BHPRSD’s
summary judgment opposition brief and brief in support of cross
motion to dismiss are verbatim (ECF Nos. 209, 211);1 and
WHEREAS, Defendant BHPRSD fully briefed and pursued this
exact issue on September 7, 2021 in its Opposition to
Plaintiff’s Motion for Leave to File a Third Amended Complaint
(ECF No. 122); and
WHEREAS, on March 31, 2022, this Court flatly rejected
Defendant BHPRSD’s exhaustion argument on the basis of futility
(ECF No. 131); and
WHEREAS, the text of Defendant BHPRSD’s summary judgment
opposition brief and brief in support of cross motion to dismiss
mirrors the text contained in its Brief in Opposition to
Plaintiff’s Motion for Leave to File a Third Amended Complaint
(ECF No. 122); and
WHEREAS, in some situations, a brief submitted to the court
that clearly manifests a “copy-and-paste job” may “reflect a
dereliction of duty, not an honest mistake.”

Conboy v. United

States SBA, 992 F.3d 153, 158 (3d Cir. 2021); and

Defendant BHPRSD’s Cross Motion to Dismiss contains the same
Response to Statement of Undisputed Material Facts and
Additional Statement of Facts as that provided in its summary
judgment Response. These items pertain to Fed.R.Civ.P. 56 and
are misplaced for purposes of litigating a motion to dismiss.
1

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WHEREAS, Plaintiff discussed this Court’s ruling in its
Reply to Defendant’s Opposition to Motion for Partial Summary
Judgment (ECF No. 210 at 4-5), as well as in its Response to
Defendant BHPRSD’s Cross Motion to Dismiss (ECF No. 212 at 4-6);
and
WHEREAS, Plaintiff’s Reply to Defendant’s Opposition to
Motion for Partial Summary Judgment was filed of record before
Defendant BHPRSD elected to file its Cross Motion to Dismiss
(ECF No. 210); and
WHEREAS, Defendant BHPRSD has omitted any reference to this
Court’s prior ruling in its current briefing; and
WHEREAS, in the context of appellate briefing, the Third
Circuit has opined that the filing attorney “is to blame for
recycling meritless arguments without engaging the District
Court’s analysis.”

Conboy, 992 F.3d at 158; and

WHEREAS, attempting to relitigate issues that have already
been decided by the court could constitute a violation of
counsel’s “. . . duty of candor to the Court.

This duty

includes not only bringing relevant facts and cases to the
Court’s attention, but also avoiding the filing of frivolous
litigation. See N.J. R.P.C. 3.3 (setting forth requirement that
counsel disclose material facts and relevant legal authority to
the court) and N.J. R.P.C. 3.1 (prohibiting counsel from
bringing frivolous claims).”

Koch v. Pechota, 744 F. App’x 105,

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113 n.8 (3d Cir. 2018); and
WHEREAS, “[c]ourts have uniformly sanctioned litigants who
attempt to relitigate issues already decided against[them][.]”
Dunleavy v. Gannon, 2:11-cv-0361, 2012 U.S. Dist. LEXIS 9679, at
*18 (D.N.J. Jan. 26, 2012); see also Marchisotto v. Daley, Civil
Action No. 22-1276, 2022 U.S. Dist. LEXIS 91080, at *17-18
(D.N.J. May 20, 2022) (same); and
WHEREAS, “[Federal Rule of Civil Procedure 11] is intended
to discourage pleadings that are frivolous, legally
unreasonable, or without factual foundation, even though the
paper was not filed in subjective bad faith.” Napier v. Thirty
or More Unidentified Federal Agents, etc., 855 F.2d 1080, 10901091 (3d Cir. 1988) (internal quotations and citations omitted);
and
WHEREAS, Plaintiff has not raised any Rule 11 concerns
pertaining to this issue; and,
WHEREAS, when a court “declines to begin the sanction
process sua sponte[,]” it may place a party “on notice that the
Court will entertain sanctions should [that party] submit
another pleading with claims clearly unwarranted by fact or
law.”

Eaton v. Tosti, Civ. No. 09-5248, 2010 U.S. Dist. LEXIS

55009, at *31 (D.N.J. June 4, 2010); and
WHEREAS Defendant BHPRSD also opposes Plaintiff’s Partial
Motion for Summary Judgment on the basis that it is premature,

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as no depositions have been taken and discovery remains ongoing
(ECF No. 209 at 16-17); and
WHEREAS, Defendant BHPRSD further cites its inability to
adequately respond to Plaintiff’s Statement of Facts due to the
lack of discovery on the issues presented (ECF No. 209 at 16-17;
ECF No. 211 at 5-6, 16-17); and
WHEREAS, Rule 56(d) of the Federal Rules of Civil Procedure
provides that upon a showing by a party that, for specified
reasons, he cannot “present facts essential to justify its
opposition” to a motion for summary judgment, the court may
defer consideration of or deny the motion, allow time for the
party to take discovery, or issue any other appropriate Order.
Fed. R. Civ. P. 56(d); and
WHEREAS, “. . . the 2010 Amendments to the Federal Rules of
Civil Procedure allow for alternatives to a formal affidavit
such as ‘a written unsworn declaration, certificate,
verification, or statement subscribed in proper form as true
under penalty of perjury.’ Fed. R. Civ. P. 56, advisory
committee’s note (2010).”

Shelton v. Bledsoe, 775 F.3d 554, 567

(3d Cir. 2015); and
WHEREAS, 28 U.S.C. § 1746 provides in pertinent part:
Wherever, under any law of the United States or under
any rule, regulation, order, or requirement made
pursuant to law, any matter is required or permitted
to be supported, evidenced, established, or proved by
the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the
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person making the same (other than a deposition, or an
oath of office, or an oath required to be taken before
a specified official other than a notary public), such
matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn
declaration, certificate, verification, or statement,
in writing of such person which is subscribed by him,
as true under penalty of perjury, and dated, in
substantially the following form:
* * * *
If executed within the United States, its territories,
possessions, or commonwealths: “I declare (or certify,
verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date).
(Signature)”.
28 U.S.C. § 1746(2); see also N.J. L. Civ. R. 7.2(a)
(“Affidavits, declarations, certifications and other documents
of the type referenced in 28 U.S.C. § 1746 shall be restricted
to statements of fact within the personal knowledge of the
signatory.”); and
WHEREAS, despite its reliance upon a “lack of discovery” in
Defendant BHPRSD’s Response to Plaintiff’s Motion for Partial
Summary Judgment and its Cross Motion to Dismiss, neither filing
contains an Affidavit, Declaration, Certification, Verification,
or any other statement “subscribed in proper form as true under
penalty of perjury” in accordance with Fed. R. Civ. P. 56(d) or
28 U.S.C. § 1746(2); and
WHEREAS, “[u]nder the IDEA, a district court is required to
‘hear additional evidence at the request of a party[.]’”
Moynihan v. W. Chester Area Sch. Dist., No. 21-2530, 2022 U.S.
App. LEXIS 5757, at *5 (3d Cir. March 4, 2022) (citing 20 U.S.C.

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§ 1415(i)(2)(C)(ii)); see also L.G. ex rel. E.G. v. Fair Lawn
Bd. of Educ., 486 F. App’x 967, 975 (3d Cir. 2012) (“[W]hile a
district court may appropriately exclude some evidence, ‘a court
must exercise particularized discretion in its rulings so that
it will consider evidence relevant, non-cumulative and useful in
determining whether Congress’ goal has been reached for the
child involved.’” (quoting Susan N. v. Wilson Sch. Dist., 70
F.3d 751, 760 (3d Cir. 1995))); M.D. v. Vineland City Bd. of
Educ., No. 1:19-cv-12154, 2024 WL 195371, at *7-8 (D.N.J. Jan.
17, 2024) (synthesizing Federal Rule of Civil Procedure 56(d)
and 20 U.S.C. § 1415(i)(2)(C)(ii) and providing defendants, who
had provided a Rule 56(d) declaration, fourteen days to propose
necessary discovery and a related schedule); and
WHEREAS, denial of a motion for summary judgment without
prejudice to Plaintiff’s right to re-file once discovery is
complete is appropriate and warranted under these circumstances.
See Lee v. Sunrise Sr. Living, Inc., 455 F. App’x 199, 202 (3d
Cir. 2011) (affirming district court’s denial of motion for
summary judgment because discovery had not yet been completed);
Miller v. Beneficial Management Corp., 977 F.2d 834, 846 (3d
Cir. 1992) (reversing grant of summary judgment as premature
where several depositions remained to be taken); Costlow v.
United States, 552 F.2d 560, 564 (3d Cir. 1977) (holding that a
continuance of a motion for summary judgment for purposes of

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discovery should be granted almost as a matter of course); Otero
v. County of Monmouth, No. 06-3435, 2007 U.S. Dist. LEXIS 61504,
at *3-4 (D.N.J. Aug. 16, 2007) (denying summary judgment without
prejudice because discovery was not yet complete).
THEREFORE, it is on this 29th day of February 2024,
ORDERED that Plaintiff’s Motions for Partial Summary
Judgment Against Defendants New Jersey Department of Education,
New Jersey Office of Administrative Law, and Dominic Rota (ECF
No. 177) and Defendant BHPRSD (ECF No. 192) be, and the same
hereby are, DENIED without prejudice, pending United States
Magistrate Judge Matthew J. Skahill’s determination of the scope
and completion of outstanding or additional discovery; it is
further
ORDERED that Defendant BHPRSD’s Cross Motion to Dismiss
(ECF No. 211) be, and the same hereby is, DENIED; and it is
further
ORDERED that counsel for Defendant BHPRSD is hereby put on
NOTICE that the filing of any further frivolous motions or
engagement in a lack of candor to the tribunal, could result in
sanction proceedings.
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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