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

Filing 78

OPINION. Signed by Judge Robert B. Kugler on 11/17/2020. (rtm, )

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 1 of 18 PageID: 1449

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
:
:
:
:
:
:
:
:
:
:
:
:
:

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

Civil No. 17-11579 (RBK/KMW)
OPINION

KUGLER, United States District Judge:
Presently before the Court is Plaintiff K.K-M’s Motion to Amend the Complaint. (Doc.
No. 67). Defendant Gloucester City Public Schools (“GCPS”), New Jersey Department of
Education, New Jersey Office of Administrative Law, and Dominic Rota (collectively “New
Jersey Defendants’) oppose Plaintiff’s motion. For the reasons set forth below, Plaintiff’s Motion
is GRANTED.
I.

BACKGROUND
The procedural history of this case and the underlying administrative proceedings are a

series of interlocking and continuous de facto and de jure appeals. Because this history is
important to resolution of the current motion and any future motions, it is described below.

1

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 2 of 18 PageID: 1450

a. Factual Background
In 2012, R.M. and A.W., moved with their biological parents to Gloucester City, New
Jersey where they enrolled in Gloucester City Public Schools (“GCPS”). (Doc. No. 20, First Am.
Compl. at ¶¶ 13, 15). After several tumultuous years with their birth parents, R.M. and A.W.
were placed with K.K-M in September 2015. (Id. at ¶ 21). They have remained there ever since.
(Id.). Plaintiff K.K-M was granted Kinship Legal Guardship (“KLG”) status over the two
children on May 16, 2017. (Id. at ¶ 22). KLG status grants Plaintiff the “same rights,
responsibilities, and authority relating to [the children] as a birth parent.” (Id. at ¶ 23). Among
the rights, responsibilities, and authority granted to Plaintiff as the children’s KLG is the “right
to arrange and consent to educational plans for the child[ren].” (Id. at ¶ 24). However, the
appointment of a KLG does not terminate the parental rights of A.W. and R.M.’s biological
mother. (Id. at ¶ ¶ 25, 27). Plaintiff, unlike R.M. and A.W.’s birth parents, resides in Laurel
Springs, New Jersey, which falls outside of GCPS’s district boundaries. (Id. at Exhibit K).
R.M. and A.W. each have a disability that qualifies them for special education and related
services under the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C. §§1400 et
seq. (Id. at ¶ 17). Since moving to GCPS in 2012, R.M. and A.W. each have had an
Individualized Educational Program (“IEP”) drafted pursuant to IDEA, designed to
accommodate their respective disabilities and provide the proper educational supplements to
ensure they receive the same quality of education as a non-disabled child. (Id.).
On October 24, 2017, Plaintiff received an email from the superintendent of GCPS
informing Plaintiff that the two children should enroll in the Laurel Springs School District,
where they resided. (Id. at ¶¶ 33–34). The superintendent recommended the transition from
GCPS to the Laurel Springs School District occur at the end of the marking period. (Id.). In
2

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 3 of 18 PageID: 1451

response to this email notice, Plaintiff filed Requests for Due Process Hearings and Emergent
Relief from the NJDOE Office of Special Education Policy (“OSEP”) on November 12, 2017.
(Id. at ¶ 35). In her petition for a Due Process hearing, Plaintiff alleged GCPS violated the IDEA
and denied A.W. and R.M. a FAPE by changing their educational placement in contravention of
various procedural safeguards and by failing to include transportation in A.W.’s IEP. (Doc. No.
20, Exhibit H). She also alleged violations of §504 of the Rehabilitation Act, the American with
Disabilities Act, the New Jersey Law Against Discrimination, and the Every Student Succeeds
Act. (Id.). These initial filings were rejected by Ms. Rota—a docket clerk for OSEP—on
November 13, 2017, for failing to meet the substantive requirements of N.J.A.C. 6A:14. (Id. at ¶
36).
On November 14, 2017, Plaintiff responded by filing a Complaint and a Motion for
Temporary Restraining Order before this Court seeking to enjoin the New Jersey Department of
Education, New Jersey Office of Administrative Law, and Dominic Rota (collectively “New
Jersey Defendants’) from asserting or adjudicating a sufficiency challenge to Plaintiff’s due
process complaint, and enjoining GCPS from disenrolling, transferring or removing R.M. or
A.W. until the resolution of the due process complaints. (Doc. No. 19). This Court heard
arguments and denied the request for a TRO on November 16, 2017. (Doc. No. 12).
Plaintiff subsequently amended her Due Process Requests (“Due Process Case 1”) and
submitted a second set, this time in compliance with the statutory requirements on November 19,
2017. (Doc. No. 20, First Am. Compl. at ¶ 37). The substance of the allegations in this amended
due process petition changed. Plaintiff alleged GCPS violated the IDEA and denied A.W. and
R.M. a FAPE by: (1) advising K.K-M that she did not have authority to make education
decisions for A.W. and R.M.; (2) failing to re-evaluate A.W. and R.M. for a period of more than
3

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 4 of 18 PageID: 1452

three years; (3) denying A.W.’s rights to accommodations for after school activities; and (4)
failing to include transportation in A.W. or R.M.’s IEP. (Doc. No. 20, Exhibit J). Plaintiff also
alleged that R.M. had been the subject of repeated bullying and despite GCPS’s investigation and
finding no evidence of such harassment, R.M. continues to experience such bullying. (Id.).
On December 13, 2017, as part of the administrative process for Due Process Case 1,
GCPS and Plaintiff participated in a mediation session. (Id. at ¶ 38). No agreement was formed,
and the session terminated unsuccessfully. (Id.). That same day, the superintendent of GCPS sent
Plaintiff a Preliminary Notice of Ineligibility, which notified Plaintiff that R.M. and A.W. failed
to meet the eligibility requirements for attendance in GCPS because they were domiciled outside
the district boundaries. (Doc. No. 1, Compl. at Exhibit K). This meant GCPS had initiated
residency proceedings pursuant to N.J.S.A.18A:38-1(b)(2). (Doc. No. 38, Thurston Declaration
at ¶ 8). Accompanying the Preliminary Notice of Ineligibility, and as set forth in
N.J.S.A.18A:38-1, was an explanation of the appeal process that Plaintiff could pursue if
Plaintiff disagreed with the superintendent’s determination of the children’s ineligibility. (Id.).
As the superintendent’s communication set forth, Plaintiff could appeal the residency
determination of the superintendent multiple times, first to the district board of education, then to
the Commissioner of Education, and finally to the Appellate Division of the New Jersey state
courts. (Id.). The superintendent made clear to Plaintiff that during the appeal process the two
children could not be removed from GCPS, pursuant to New Jersey state law. (Id.).
Advised of the protections and appeals process set forth under NJ state law, on December
17, 2017, Plaintiff requested a hearing before the district board of education, thus preventing
GCPS from preemptively disenrolling the students. (Doc. No. 29, N.J. Def. Mot. to Dismiss at
7). For simplicity sake, this will be referred to as “Appeal of Residency Proceedings.” That same
4

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 5 of 18 PageID: 1453

day, Plaintiff filed another Motion for a Temporary Restraining Order in this Court seeking to
enjoin GCPS from removing R.M. and A.W. from GCPS. (Doc. No. 13). Only a day later, on
December 18, 2017, Plaintiff filed new requests for Emergent Relief with OSEP, which were
subsequently transmitted to the NJOAL. (Doc. No. 29, N.J. Def. Mot. to Dismiss at 7).
This Court heard arguments on Plaintiff’s second motion for a temporary restraining
order on December 21, 2017 and denied the motion. (Doc. No. 18). This denial of motions
continued Administrative Law Judge Laura Sanders issued a decision the very next day on
December 22 denying Plaintiff’s request for emergent relief. (Doc. No. 29, N.J. Def. Mot. to
Dismiss at 8).
In response to this consecutive denial of motions, Plaintiff filed an Amended Complaint
(Doc. No. 20) with this Court on January 2, 2018, alleging the New Jersey Defendants and GCPS
violated the IDEA, the Fostering Connections Act (42 U.S.C. §§ 670-75), the Rehabilitation Act
(29 U.S.C. § 794), and the American with Disabilities Act (42 U.S.C. § 12101 et. seq.). (Doc.
No. 20, First Am. Compl. at ¶¶ 42–112). Plaintiff sought an order enjoining New Jersey
Defendants and GCPS from disenrolling or removing R.M. and A.W. from GCPS and from
further “discriminatory behavior toward Plaintiffs.” (Doc. No. 20, First Am. Compl. at ¶¶
119(A), (E)).
The District Board of Education held a hearing on Plaintiff’s appeal of the residency
proceedings on January 9, 2018. (Doc. No. 38, Exhibit C). It determined that A.W. and R.M.
were not entitled to receive a free and appropriate public education in the district because K.K-M
resided outside the district, meaning the children’s domicile was likewise outside the district.
(Doc. No. 51, Exhibit 1). Plaintiff appealed this decision which was subsequently transmitted to

5

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 6 of 18 PageID: 1454

the Office of Administrative Law. (Doc. No. 38, Thurston Declaration at ¶ 9). In March of 2018,
both Defendants moved to dismiss Plaintiff’s amended complaint. (Doc. No. 27, 29).
b. District Court Opinion
This Court granted the New Jersey Defendants’ and GCPS’s Motions to Dismiss under
Federal Rule of Civil Procedure 12(b)(1) and dismissed Plaintiff’s Complaint with prejudice on
June 25, 2018. (Doc. No. 33). In so ruling, we concluded Plaintiff failed to establish standing
because she could not demonstrate R.M. and A.W. faced any “concrete and particularized . . . and
actual or imminent,” as opposed to purely “conjectural or hypothetical,” harm. (Id.). The alleged
harm to R.M. and A.W. that would occur by being forced to move school districts was premised
on a series of speculative assumptions. (Id.). Specifically for the alleged harm to occur: (1) the
district board of education had to affirm the GCPS’s finding regarding the students’ district of
residence, (2) on appeal, the Commissioner of Education and the state court Appellate Division
had to affirm GCPS’s finding and that of the district board of education, and (3) when R.M and
A.W. were disenrolled from GCPS and enrolled in a different district, the new district would have
to fail to provide the necessary materials to compensate for their learning disabilities. (Id.). This
standing deficiency was caused, in part, by the fact that at the time Defendants moved to dismiss
Plaintiff’s amended complaint, administrative proceedings were taking place to resolve the
residency issue. (Id.).
Likewise, Plaintiff’s complaint was devoid of any factual support for the claim that a new
district will fail to meet the children’s learning needs and we explained that it was equally
speculative, given the children had not moved to the new school district yet, that they would suffer
some sort of emotional harm from the move. (Id.). Lastly, Plaintiff’s allegation that “substantial
resources and money” were expended on this case was insufficient to establish standing. (Id.).

6

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 7 of 18 PageID: 1455

Such a self-induced choice to hire counsel cannot be used to manufacture the “concrete and
particularized . . . actual or imminent” harm necessary for standing. (Id.). Accordingly, we
dismissed Plaintiff’s complaint with prejudice under Rule 12(b)(1) for lack of subject matter
jurisdiction. (Id.).
c. Procedural History Between Appeal and Third Circuit’s Decision
On July 10, 2018, Plaintiff filed a notice of appeal challenging this Court’s decision
dismissing the amended complaint. (Doc. No. 35). While this appeal was pending, Plaintiff’s
Appeal of the Residency Proceedings—not Plaintiff’s Due Process Case 1, which was still
pending—came to a head on August 28, 2018. (Doc. No. 38, Thurston Decl., ¶10). The
administrative law judge granted GCPS’s motion for a summary decision because after K.K-M
became A.W. and R.M.’s KLG, their school district changed thereby relieving GCPS of the
obligation to provide a FAPE. (Id. at Exhibit C). Plaintiff appealed this residency decision to the
New Jersey Commissioner of Education. (Id. at Thurston Decl., ¶12). The Commissioner of
Education adopted the ALJ’s residency decision on October 4, 2018. (Id. at ¶13).
In response to these decisions, on October 9, 2018, GCPS initiated the disenrollment
process of A.W. and R.M. (Id. at ¶14). That same day, Plaintiff filed new two emergent relief
applications in the New Jersey Office of Administrative Law seeking to prevent the disenrollment
process. (Doc. No. 42. Statement). Administrative Law Judge Lisa James-Beavers was assigned
to hear those emergent matters. (Id.). The following day, on October 10, 2018, Plaintiff also filed
a motion for a preliminary injunction pending appeal in the Third Circuit seeking to prevent GCPS
from disenrolling A.W. and R.M. from the school. (Doc. No. 38, Thurston Decl., at ¶15). The very
next day, the Third Circuit temporarily enjoined GCPS from disenrolling A.W. and R.M. from the
school until it could consider Plaintiff’s motion for a preliminary injunction. (Doc. No. 37). During

7

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 8 of 18 PageID: 1456

a telephone conference on October 12, 2018, ALJ Beavers the parties that she would reserve her
ruling on the emergent relief applications until the Third Circuit decided Plaintiff’s request for an
injunction pending appeal. (Doc. No. 42, Statement at ¶4).
Between the filing of the request for a preliminary injunction pending appeal, and the Third
Circuit’s decision on that motion, on November 27, 2018, Plaintiff appealed the NJ Commissioner
of Education’s decision to the New Jersey Appellate Division. (Doc. No. 51, at Exhibit 1). Six
months later, on April 18, 2019, the Third Circuit denied Plaintiff’s motion for an injunction
pending appeal, reasoning that she had to make such a motion with the District Court in the first
instance. (Doc. No. 38, Thurston Decl., ¶17).
Undaunted by the Third Circuit’s denial, Plaintiff filed her third request for a preliminary
injunction in this Court on April 18 seeking to prevent the disenrollment of A.W. and R.M. from
GCPS. (Doc. No. 38). At the time Plaintiff filed her request for a preliminary injunction with this
Court, ALJ Beavers had not issued a decision on the new emergent relief applications. (Doc. No.
42). Consequently, this Court deferred ruling on Plaintiff’s motion for a preliminary injunction
until ALJ Beavers ruled. (Doc. No, 48 at ¶ 3). On May 9, 2019, ALJ Beavers issued an Order
denying Plaintiff’s emergent relief requests. (Doc. No. 50).
Before this Court ruled on Plaintiff’s request for a preliminary injunction, Plaintiff filed a
second due process complaint (“Due Process Case 2”) against GCPS for the 2018-2019 school
years on May 30, 2019. (Doc. No. 67, Brief, Exhibit A at ¶ 82). Plaintiff alleged GCPS failed to
prepare a new IEP for that year; blocked adequate parental participation by K.K-M. in the
development of a new IEP; failed to convene an IEP meeting; failed to fully implement that 2017
‘stay put’ IEP. (Id.). On July 1, 2019, this due process complaint was transmitted to the Office of

8

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 9 of 18 PageID: 1457

Administrative Law and assigned to ALJ Lieberman. (Id. at ¶ 84). That same day, this Court denied
Plaintiff’s request for a preliminary injunction. (Doc. No. 54).
Again, Plaintiff appealed this Court’s decision denying the preliminary injunction to the
Third Circuit, this time in the form of an interlocutory appeal. (Doc. No. 55). Fifteen days after we
denied Plaintiff’s motion for a preliminary injunction, Plaintiff filed a motion for reconsideration
on July 21, 2019, requesting this Court to re-examine our order denying the injunction. (Doc. No.
58). Before we ruled on Plaintiff’s motion for reconsideration, the New Jersey Appellate Division
issued a decision on Plaintiff’s Appeal of the Residency Determination denying the motion for
stay of enforcement pending appeal. (Doc. No. 62). On August 27, 2019, this Court denied
Plaintiff’s motion for reconsideration. (Doc. No. 63).
It was not until March 9 and 16, 2020 that final decisions were rendered in Plaintiff’s Due
Process Case 2 and Due Process Case 1, respectively. (Doc. No. 67, Brief, Exhibit A at ¶¶ 104,
81). Both decisions were rendered in favor of GCPS. (Id.).
d. Appeal
On May 15, 2020, the Third Circuit issue a decision on Plaintiff’s appeal of the order
dismissing her amended complaint for lack of standing but dismissed her other appeals as moot.
(Doc. No. 65). The Third Circuit vacated this Court’s judgment and remanded the case to the
District Court to dismiss without prejudice. (Id.). It agreed with this Court’s reasoning that standing
was not satisfied but explained we were required to dismiss the case without prejudice as we could
not adjudicate the merits of the case. (Id.).
It went on to note that K.K.-M had alleged factual developments since the
commencement of the litigation that were potentially relevant to a new standing inquiry. (Id.).

9

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 10 of 18 PageID: 1458

But because it could not render a decision in this case due to its lack of jurisdiction, the proper
forum to raise these issues would be in a new complaint. (Id.).
e. Current Dispute
On remand, we dismissed Plaintiff’s complaint without prejudice. (Doc. No. 66).
Subsequently, Plaintiff filed a motion for leave to amend the Complaint pursuant to Federal Rule
of Civil Procedure 15(a)(2) seeking to add the appeals of Due Process Case 1 and 2 and Black
Horse Pike Regional School District (“BHPRSD”) as a necessary party. (Doc. No. 67). The New
Jersey Defendants and GCPS’s oppose this motion.
II.

LEGAL STANDARD
a. Federal Rule of Civil Procedure 15

Under Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave. The court should freely grant leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Motions to amend pleadings should be liberally granted
and “leave to amend must generally be granted unless equitable considerations render it otherwise
unjust.” Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir.2006) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
“Among the factors that may justify denial of leave to amend are undue delay, bad faith, and
futility.” Arthur, 434 F.3d at 204; see also Foman, 371 U.S. at 182 (“In the absence of any apparent
or declared reason—such as 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.—the leave
sought should, as the rules require, be ‘freely given’.”).

10

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 11 of 18 PageID: 1459

Futility means that the complaint, as amended, would fail to cure a deficiency in the original
complaint or fail to state a claim upon which relief could be granted. Jablonski v. Pan American
World Airways, Inc., 863 F.2d 289, 292 (3rd Cir.1988). In assessing futility, the district court
applies the same standard of legal sufficiency as applies under Rule 12(b)(6). In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Thus, “the trial court may properly
deny leave to amend when the amendment would not withstand a motion to dismiss.” Massarsky
v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983).
b. Local Civil Rule 15.1(a)
Local Civil Rule 15.1(a) provides “a party who seeks leave to amend a pleading shall do so by
motion, which shall state whether such motion is opposed, and shall attach to the motion: (1) a
copy of the proposed amended pleading; and (2) a form of the amended pleading that shall indicate
in what respects it differs from the pleading which it proposes to amend, by bracketing or striking
through materials to be deleted and underlining material to be added.” L. Civ. R. 15.1(a).
III.

DISCUSSION

The heart of this dispute is whether Plaintiff is required to file a new complaint, creating a new
case and docket number, or whether Plaintiff can amend the original complaint to include new
legal theories premised on new facts.
Plaintiff seeks leave to amend the Complaint to add two appeals which were fully litigated and
decided on March 9 and 16, 2020, and to add BHPRSD as a necessary party. Plaintiff contends
that leave should be granted because there is no dilatory motive or undue prejudice to Defendants,
and the deficiencies noted by the Third Circuit have been cured. Plaintiff notes that Defendants
did not respond to her request to amend the complaint.

11

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 12 of 18 PageID: 1460

GCPS and the New Jersey Defendant’s both oppose Plaintiffs’ Motion to Amend the
complaint. Defendant GCPS argues Plaintiffs’ Motion to Amend should be denied because she
failed to include a copy of the proposed amendment as is required by Local Civil Rule 15.1(a). It
further argues that in light of the Third Circuit’s opinion, the proper remedy is to file a new
Complaint, rather than amend the original, and as such, Plaintiff’s Motion to Amend should be
denied as futile.
The New Jersey Defendants argument largely mirrors GCPS’s. It sets forth the same
procedural infirmity that GCPS noted and argues Plaintiff should be required to file a new
complaint, rather than amend the original. Differently from GCPS, however, the New Jersey
Defendants argue Plaintiff’s complaint is futile under Foman because it adds new causes of actions
premised on new facts and the same deficiencies that were in the original complaint pervade the
proposed one.
a. Procedural Infirmity
We will quickly dispense with the Defendants’ procedural arguments. Initially, Plaintiff
did not comply with Local Civil Rule 15.1(a)(2) because she did not attach a proposed amended
complaint which set forth in what respects it differed from the complaint it was amending.
However, after Defendants pointed out this procedural flaw, Plaintiff attached a proposed
amended complaint that complied with Local Civil Rule 15.1(a)(2). As such, Defendants’
procedural arguments are now moot.
However, Local Civil Rule 15.1(a)(2) is not simply a nicety that can be disregarded by
parties at a whim. See A.B. v. Vineland Bd. of Educ., No. 17-cv-11509, 2019 WL 2354609, at *5
(D.N.J. June 4, 2019) (dismissing claim because plaintiff “did not properly indicate how the
Amended Complaint differs from her original one” as required by Local Civil Rule 15.1). It

12

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 13 of 18 PageID: 1461

serves an important purpose. Delineating the differences between the original and amended
pleading simplifies the Court’s task in assessing the proposed Amended Complaint and allows
meritorious claims to move forward more expeditiously. Accordingly, all parties must
scrupulously comply with the Local Rules in all filings.
b. Plaintiff’s Motion for Leave to Amend the Complaint is Granted
Per the plain text of the rule, leave to amend shall be freely given to Plaintiff. Her motion
for leave to amend the complaint comes seven days after the Third Circuit’s opinion and mandate
that the case be dismissed without prejudice. The swiftness in which she sought leave to amend
does not suggest a dilatory motive or bad faith. There is no indication that Plaintiff’s motion was
made to delay proceedings or that there was some duplicitous motive for not amending the
complaint earlier. In fact, Defendants do not even argue this in their opposition briefs.
Nor do Defendants argue undue delay and we do not find any either. Plaintiff could not
have included the substantive and procedural violations of IDEA in the first amended complaint
as she was required to exhaust her administrative remedies first. It was not until a final decision
was reached in Due Process Case 1 and 2 that Plaintiff could appeal these decisions to the District
Court. Thus, including her substantive and procedural violations of IDEA in the first amended
complaint would have been futile. M.M. v. Paterson Bd. of Educ., 736 F. App'x 317, 319 (3d Cir.
2018) (affirming the district court’s dismissal of an IDEA claim due to plaintiff’s failure to exhaust
administrative remedies). Simply put, there is ample reason why these alleged violations were not
included in the first amended complaint.
The three arguments Defendants’ make in opposition to Plaintiff’s motion for leave to
amend are unpersuasive. Since both Defendants cite to Foman v. Davis as establishing that
Plaintiff’s proposed amended complaint is futile, we will address this issue first.
13

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 14 of 18 PageID: 1462

Foman does not stand for the proposition Defendants’ think it does. In that case, the
petitioner filed a complaint alleging that in exchange for her promise to care for and support her
mother, petitioner’s father promised not to make a will thereby assuring petitioner of an interstate
share of his estate. Foman v. Davis, 371 U.S. 178, 179 (1962). Contrary to this agreement, the
father devised his property to his second wife. Id. The petitioner sought recovery of what she was
promised—an intestate share of her father’s estate—but the District Court dismissed the complaint
on the ground that the oral agreement was unenforceable under the applicable statute of frauds. Id.
Petitioner filed a motion to vacate the judgment and to amend the complaint to assert a right of
recovery in quantum meruit. Id. The District Court denied both motions and the Court of Appeals
affirmed. Id. at 180. The Supreme Court concluded the Court of Appeals erred when it affirmed
the District Court’s denial of the motion to vacate the judgment in order to amend the complaint.
Id. at 182. In other words, the Supreme Court concluded the Court of Appeals should have reversed
the District Court’s denial of the motion to amend, and the amendment should have been allowed
because it would have done no more than state an alternative theory for recovery. Id.
Somehow Defendants glean from Foman that if an amendment does more than state an
alternative theory of recovery, it is futile. But futility is implicated when the amendment fails to
cure a deficiency in the original complaint or fails to state a claim on which relief can be granted.
Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3rd Cir.1988). It is not
implicated when new causes of action are raised, and new facts are injected into the pleadings. If
anything, new causes of action and new facts are usually an indication of undue prejudice.
However, Defendants do not allude to undue prejudice nor is it present here.
The cases that have cited Foman for the proposition that an amended complaint raising
new causes of action on new facts is unduly prejudicial to defendants have rejected the amendment
14

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 15 of 18 PageID: 1463

when it is requested at or near trial or just days before a hearing. Suehle v. Markem Mach. Co., 38
F.R.D. 69, 70, 72 (E.D. Pa. 1965) (denying Plaintiff’s motion for leave to amend the complaint,
which was based on new claim and a different set of operative facts, when the case was ready for
pre-trial conference and shortly thereafter would be listed and called for trial); Panetta v. SAP Am.,
Inc., 294 F. App'x 715, 717 (3d Cir. 2008) (concluding the district court did not abuse its discretion
in denying the plaintiff’s motion for leave to amend the complaint because plaintiff sought to do
so after the close of discovery); Cornell & Co. v. Occupational Safety & Health Review Comm'n,
573 F.2d 820, 826 (3d Cir. 1978) (holding the Occupational Safety and Health Review
Commission abused its discretion in allowing the Secretary of Labor to amend its complaint just
days before a hearing when the amended complaint changed the legal and factual basis of the
claim). Plaintiff’s complaint was dismissed at the motion to dismiss stage and will return to this
procedural posture upon amendment. Although there is no discovery process like a typical suit,
Defendants have not pointed to any last-minute hearings where they will be prejudiced by such an
amendment. Because Defendants have not even raised the specter of undue prejudice in their
opposition briefs, we find Plaintiff’s proposed amendment does not unduly prejudice Defendants.
Defendants reliance on Foman for the proposition that Plaintiff’s proposed amendment is
futile suggests that Foman establishes the ceiling. But Foman, at most, establishes that an
amendment stating an alternative theory of recovery is one of many permissible ways a complaint
can be altered. Here Plaintiff, unlike the petitioner in Foman, not only adds alternative theories of
recovery but also injects “new” facts into the case. The facts are only “new,” however, in the sense
that they were not included in the first amended complaint. But they are not “new” to Defendants.
The procedural history of this case makes this clear. Defendants have been aware of the factual
allegations in Due Process Case 1 since November 19, 2017 and May 30, 2019 for Due Process

15

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 16 of 18 PageID: 1464

Case 2. Defendants have been dragged in and out of the state and federal courts for years as this
case has made its way through the normal state administrative process, with intermittent motions
for preliminary injunctions or temporary restraining orders filed in between. Defendant, then,
should be intimately familiar with the claims and factual allegations. Indeed, Plaintiff even denotes
which Due Process Case the claims originated from in the heading of each count. Thus, while this
amendment is not a run of the mill alteration to fix purported deficiencies, we see no reason, and
Defendants have not provided any, why Plaintiff should be precluded from amending the
complaint.
Defendants’ also assert that in light of the Third Circuit’s opinion the proper course of
action for Plaintiff is to file a new complaint creating a new case and separate docket number, not
to amend the original. Defendants’ cite to the Third Circuit’s language “the proper forum to raise
these issues would be in a new complaint” to show Plaintiff must file a new complaint creating a
new docket number. In rebuttal, Plaintiff points to the footnote in the Third Circuit’s opinion which
states “Plaintiff is advised that in addition to demonstrating standing, any future complaint would
also need to demonstrate that state administrative remedies were exhausted,” as indicating that
amendment is proper. While the Defendant’s interpretation of the Third Circuit’s opinion is
possible, it seems too unduly rigid to be plausible. In fact, in the very case that Defendants’ cite to
support their argument the Supreme Court admonished that it is “entirely contrary to the spirit of
the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such
mere technicalities.” Foman, 371 U.S. at 182. The Defendants’ approach would do just that—have
this Court deny Plaintiff’s motion for leave to amend on a mere technicality and an ambiguous one
at that. Courts routinely treat the phrases “new complaint” and “amended complaint” as
synonymous. Hummel v. Prime Care, No. CIV.A. 1:08-CV-1567, 2009 WL 813976, at *1 (M.D.

16

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 17 of 18 PageID: 1465

Pa. Mar. 27, 2009) (using the phrases “new complaint” and “amended complaint”
interchangeably). Moreover, Defendants argument, which hinges on the mere technical distinction
between a new and amended complaint, would unnecessarily prolong resolution of this case and
cause Plaintiff to incur additional litigation costs.
Likewise, in Kamal, a case with similar procedural posture, after the Third Circuit vacated
the District Court’s order dismissing the case with prejudice and remanded for the “limited
purpose” of dismissing the case without prejudice, the District Court allowed the Plaintiff to file a
third amended complaint. Kamal v. J. Crew Grp., Inc., 918 F.3d 102, 119 (3d Cir. 2019); Kamal
v. J. Crew Grp., Inc., 416 F. Supp. 3d 357, 360 (D.N.J. 2019). The District Court granted the
amendment despite the Third Circuit’s clear limiting language to the contrary. Id.; see also Adams
v. Gould Inc., 739 F.2d 858, 869 (3d Cir. 1984) (finding plaintiff’s amendment adding a new legal
theory to the complaint did not prejudice defendants in light of the procedural posture of the case
because defendants had not litigated the facts of this case once as plaintiffs’ legal theory was
rejected in an interlocutory appeal). Thus, because of the current procedural posture of this case—
at the motion to dismiss stage—and the Defendants’ familiarity with factual allegations and claims,
the technical distinction between a new complaint and an amended one will not preclude Plaintiff’s
motion for leave to amend.
Lastly, Defendants argue Plaintiff’s complaint is futile because it fails to cure the same
deficiencies as the original one. This Court disagrees. At the time that we dismissed Plaintiff’s first
amended complaint for lack of standing, her claims were based on several contingent and
speculative assumptions. But the speculative nature of the harm alleged by Plaintiff is no longer
an issue in this complaint. First, as pled, Plaintiff seems to have exhausted the administrative
remedies available to her and thus the complaint is no longer deficient for want of standing. While
17

Case 1:17-cv-11579-RBK-KMW Document 78 Filed 11/20/20 Page 18 of 18 PageID: 1466

Plaintiff has not provided this Court with the administrative record as required by 20 U.S.C. §
1415(i)(2)(C)(i),1 Defendants do not contend, and therefore this Court does not have any reason to
believe, that Plaintiff failed to exhaust her administrative remedies. Second, Plaintiff’s proposed
Second Amended Complaint is premised on entirely new facts and asserts new causes of action.
As such, it cannot be said that Plaintiff’s proposed complaint fails to establish a concrete and
particularized injury like the first one. Therefore, because the same deficiencies that pervaded the
first complaint are not present, and Defendants have failed to articulate or identify any undue
prejudice, bad faith, or dilatory motive, Plaintiff’s motion will be granted.
IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Leave to Amend the Complaint is
GRANTED. An appropriate order will follow.
Dated: 11/17/20

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

20 U.S.C. § 1415(i)(2)(C)(i) provides the reviewing court shall “receive the records of the administrative
proceedings.”
1

18