ROTANTE v. FRANKLIN LAKES BOARD OF EDUCATION et al
Filing
28
OPINION. Signed by Judge Jose L. Linares on 3/26/14. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
DOMINICK D. ROTANTE,
:
:
Plaintiff,
:
:
v.
:
:
FRANKLIN LAKES BOARD OF
EDUCATION AND FRANK ROMANO :
III, individually and in his official capacity :
of Superintendent of the Franklin Lakes :
:
School District,
:
:
Defendants.
:
OPINION
Civil Action No. 13-3380 (JLL)
JOSE L. LINARES, U.S.D.J.:
This matter comes before the Court upon the following Motions: i) Motion to Dismiss by
Defendant Frank Romano III (“Romano”); ii) Motion to Dismiss by Franklin Lakes Board of
Education (the “Board”); iii) Cross-Motion for Leave to File a Notice of Claim by Plaintiff
Dominick D. Rotante (“Plaintiff”); and iv) Motion to Amend/Correct Complaint by Plaintiff.
Pursuant to Federal Rule of Civil Procedure 78, no oral argument was heard. Based on the reasons
that follow, Romano’s Motion to Dismiss is granted in part and denied in part, the Board’s
Motion to Dismiss is granted in part and denied in part, Plaintiff’s Cross-Motion for Leave to
File a Notice of Claim is denied, and Plaintiff’s Motion to Amend/Correct Complaint is granted
in part and denied in part.
1
I.
BACKGROUND1
Plaintiff is the former Principal of the Woodside Avenue Elementary School (“Woodside”)
located in Franklin Lakes, New Jersey. Woodside is part of the Franklin Lakes School District (the
“District”). Romano has been the Superintendent of the schools in the District since April 2010.
Immediately after Romano was hired, Plaintiff informed members of the Board during a
meeting that Romano was denied for a position as Curriculum Director of the District about two
years earlier. Plaintiff was then asked to attend another meeting with the Board. Plaintiff states
that he understood that the purpose of the meeting was to discuss the reasons Romano was rejected
for the Curriculum Director position. Plaintiff claims that he received confirmation from the Board
that it would hold his comments as strictly confidential. Plaintiff states that he truthfully answered
questions about Romano’s prior candidacy for the Curriculum Director Position, and claims that
these comments were later leaked by members of the Board to Romano.
Plaintiff states that during the summer of 2010, Romano used threats, intimidation, and
deception to collect negative statements about Plaintiff from other teachers. Plaintiff claims that
these teachers cooperated because they were “bullied,” and that Romano later manipulated and
broadcasted these statements to teachers, administrators, and Board members. Plaintiff also alleges
that in January 2011, Romano forced the Middle School Principal to resign, and that immediately
after, Romano stated to certain Board members that he was “also going to get rid of [Plaintiff].”
Plaintiff states that in February 2011, during a public meeting open to Franklin Lakes
residents, Romano gave a presentation that included recommendations for redistricting. Plaintiff
claims that these changes would have a negative impact on students and teachers, such as requiring
students to walk across busy streets to attend their new schools. Plaintiff alleges that Romano
1
The facts from this section are taken from the parties’ pleadings.
2
found out that he was opposed to the redistricting plan, and thereafter began to increase his efforts
in finding a way to get rid of Plaintiff.
By a memorandum dated June 29, 2012, Marie Warnke, Grievance Chair of the Union,
sent Romano a “Level 2” grievance against Plaintiff (the “Grievance”), citing unprofessional
conduct. Plaintiff claims that the Grievance contained allegations that were either false, obtained
through threats and coercion, or otherwise exaggerated by Romano. Plaintiff asserts that Romano
used trickery and deception to convince him that the Grievance was real.
Plaintiff states that Romano eventually convinced him that if he attempted to fight the
Grievance, address the purported claims against him, or attempt to identify the names of his
purported accusers, the Board would take legal action to have him fired for cause. Plaintiff claims
that although these threats were false, he still believed the Grievance was real at that point in time.
In August 2012, Plaintiff and the Board executed a separation agreement, a resignation
letter, and a release of claims (collectively the “Separation Agreement”). Plaintiff claims that he
would not have entered into the Separation Agreement if he knew that the Grievance had been
fabricated. Plaintiff also asserts that the Grievance Committee of the Union never approved the
Grievance. He claims that after the execution of the Separation Agreement, he spoke to certain
members of the Grievance Committee who stated that they were not aware of any grievance or the
basis for any grievance against him, and who further confirmed that no vote or meeting ever took
place.
Plaintiff filed a five-count Complaint in the Superior Court of New Jersey on March 20,
2013. Count one asserts a fraudulent inducement claim. Count two asserts a breach of contract
claim. Count three asserts a tortious interference with contractual relations and prospective
economic advantage claim. Count four asserts a claim for violation of the Tenure Employee’s
3
Hearing Law, N.J.S.A. § 18A:6-10-1, et seq. Count five asserts a claim for retaliation under the
First Amendment. On May 30, 2013, Romano removed the case to federal court (ECF No. 1). 2
The Board consented to this removal. Romano filed a Motion to Dismiss on June 18, 2013 (ECF
No. 5). The Board filed a Motion to Dismiss on June 19, 2013 (“Bd. Mot.,” ECF No. 6). Plaintiff
filed a Cross-Motion for Leave to File a Notice of Claim on July 22, 2013 (ECF No. 10), and
Plaintiff filed a Motion to Amend/Correct Complaint on December 10, 2013 (ECF No. 17).
II.
LEGAL STANDARD
For a complaint to survive dismissal, it “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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In determining the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678. Thus, legal conclusions draped in the guise of factual
allegations may not benefit from the presumption of truthfulness. Id.
III.
DISCUSSION
A.
Notice of Claim Requirement
Under the New Jersey Tort Claims Act (“TCA”), a plaintiff is barred from recovering
2
This Court’s jurisdiction is premised on 28 U.S.C. § 1331.
4
against a public entity or employee if he fails to file a notice of claim within ninety days of the
claim’s accrual. N.J.S.A. § 59:8-8. Romano asserts that counts one (fraud in the inducement), two
(breach of contract), and three (tortious interference with contractual relations and prospective
economic advantage) must be dismissed because Plaintiff did not file a notice of claim. The Board
only argues that count one must be dismissed for this reason. In response, Plaintiff argues that a
notice of claim is not necessary, that he substantially complied with the TCA’s notice requirement,
and, alternatively, Plaintiff moves for leave to file a notice of claim.
In count one of the Complaint, Plaintiff asks this Court to declare the Settlement Agreement
void and to order the reinstatement of Plaintiff to his position as Principal of Woodside. Thus, as
Plaintiff only seeks equitable relief, a notice of claim is not required, and this Court will address
the merits of the claim below. See Blazer Corp. v. N.J. Sports & Exposition Auth., 480 A.2d 953,
957 (N.J. Super. Ct. Law Div. 1984) aff'd, 488 A.2d 1025 (N.J. Super. Ct. App. Div. 1985) (“It is
probably not possible to define precisely the causes of action to which the Tort Claims Act is
applicable, except to say that it does not apply to contract cases or cases in which purely equitable
relief is sought.”). With respect to count two, this claim is only asserted against the Board. Thus,
because only Romano and not the Board argues that count two must be dismissed for failure to file
a notice of claim, the Court will address the merits of count two below. Finally, with regards to
count three, this Court finds that it must be barred for failure to file a notice of claim. This is not a
claim in which purely equitable relief is sought, as Plaintiff also seeks compensatory and punitive
damages. Further, this Court rejects Plaintiff’s argument that he substantially complied with the
TCA because his original complaint was served on Defendants within ninety days of the events
that led to his separation. See Guzman v. City of Perth Amboy, 518 A.2d 758, 760 (N.J. Super. Ct.
App. Div. 1986) (stating that “the filing of a complaint would not be a substitute for the notice
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required by [the TCA]”).
Finally, this Court denies Plaintiff’s Cross-Motion to file a Notice of Claim, as Plaintiff
has not shown that extraordinary circumstances exist as to why he failed to file a timely notice of
claim. See Davis v. Twp. of Paulsboro, 371 F. Supp. 2d 611, 618 (D.N.J. 2005) (stating that
pursuant to N.J.S.A. 59:8–9, a court may allow a party to file a late notice of claim “based on
‘sufficient reasons constituting extraordinary circumstances’”). Plaintiff first argues that he should
be permitted to file a late notice of claim because he did not realize that any of his claims were
tort-based, and instead thought they all arose from contract law. In Tripo v. Robert Wood Johnson
Med. Ctr., 845 F. Supp. 2d 621, 631 (D.N.J. 2012), one of the extraordinary circumstances alleged
by the plaintiff was that he did not become aware that the defendants were state employees until
after the time to file a notice of claim had passed. The Court rejected this argument, stating that
“with the exercise of reasonable diligence, Plaintiff could have, and should have, discovered that
[Defendants] were state employees, and, as a result, filed a timely Notice of Claim.” Id. at 632.
See also McDade v. Siazon, 208 N.J. 463, 477 (2011) (stating that the extraordinary circumstances
inquiry “focuses on the diligence of the plaintiff in investigating the claim”). Similarly, in the
present case, simple research on the law of tortious interference would have revealed to Plaintiff
that his claim is a tort claim. Further, the name of the claim itself should have suggested to Plaintiff
that his claim arises from tort law.
Plaintiff also contends that extraordinary circumstances exist because he had been
undergoing “serious family problems” during the time that the notice of claim should have been
filed. This vague statement, without any supporting facts, fails to show that Plaintiff was subjected
to extraordinary circumstances. However, even with more detail, Plaintiff’s argument would be
futile. As Plaintiff himself pointed out, he was able to serve the Complaint within ninety days of
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the accrual of his claims. Thus, regardless of the nature of Plaintiff’s family problems, this Court
rejects the argument that they prevented him from filing a timely notice of claim. Accordingly,
count three of the Complaint is dismissed against both Defendants with prejudice.
B.
Fraudulent Inducement Claim
Count one alleges that Defendants fraudulently induced Plaintiff to execute the Separation
Agreement and resign from his position as Principal.
To state a claim for fraudulent misrepresentation or omission under New Jersey law,3 a
plaintiff must establish: “(1) a material misrepresentation [or omission] of a presently existing or
past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other
person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.”
Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). In addition, Federal Rule of Civil
Procedure 9(b) requires that “in all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity.” Fed. R. Civ. P. 9(b). The purpose of the
heightened pleading standard is to require the plaintiff to “state the circumstances of the alleged
fraud with sufficient particularity to place the defendant on notice of the precise misconduct with
which it is charged.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007); see also Seville
Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). “To satisfy this
heightened standard, the plaintiff must plead or allege the date, time and place of the alleged fraud
or otherwise inject precision or some measure of substantiation into a fraud allegation.” Frederico,
507 F.3d at 200. Plaintiff must also allege who made the purported misrepresentations and what
specific misrepresentations were made. See, e.g., Frederico v. Home Depot, No. 05–5579, 2006
3
The parties do not dispute that New Jersey law applies to Plaintiff’s claims.
7
WL 624901, at *2 (D.N.J. Mar.10, 2006).
Here, Plaintiff’s fraudulent inducement claim must be dismissed because he has not
alleged, among other things, the existence of any particular material misrepresentation and
defendants’ knowledge of its falsity. First, while Plaintiff contends generally that the Grievance
at issue was fabricated, he fails to allege any particular misrepresentations made by anyone acting
on behalf of the Franklin Lakes Board of Education as it pertains to the allegedly false Grievance.
Second, Plaintiff alleges that Romano “used deception and trickery to convince [him] that the
Grievance was real” (Compl. ¶ 51). However, Plaintiff provides no details as to what specific
misrepresentations Romano made in order to allegedly deceive and trick him. Instead, his
Complaint repeats numerous conclusory statements such as “[Plaintiff] made [the decision to
execute the Separation Agreement] based upon his understanding that the Grievance was real,
based on what the Defendants presented to him” (Id. ¶ 35). These vague allegations fail to show
that either Defendant made misrepresentations to Plaintiff that they knew were false. Finally,
Plaintiff asserts that Romano falsely told him that if he attempted to fight the Grievance, he would
be fired. However, Plaintiff’s own conclusory assertion that this statement was untrue does not
plausibly demonstrate that this statement was in fact false and that Romano knew it was false.
In short, count one fails to allege any specific misrepresentation(s) made by Romano or
anyone in particular on behalf of the Franklin Lakes Board of Education, or when such alleged
misrepresentations were made. Certainly, the Amended Complaint contains no facts suggesting
that Romano or anyone acting on behalf of the Franklin Lakes Board of Education had knowledge
of the falsity of any particular statements they made to the Plaintiff. In addition, Plaintiff has failed
to plead the date, time and/or place of the alleged fraud by Romano or members of the Franklin
Lakes Board of Education. Nor has Plaintiff otherwise injected some measure of substantiation
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into his allegations of fraud as against either Defendant. Absent such factual content, Plaintiff’s
allegations of fraud are insufficient to pass muster under Rule 8(a), much less to meet Rule 9(b)’s
heightened pleading standard. See generally Gennari, 148 N.J. at 610; Frederico, 507 F.3d at 200.
Defendants’ motion to dismiss this claim is therefore granted. Count one of Plaintiff’s Complaint
is dismissed without prejudice.
(i)
Related Claims Against the Board
As stated above, Plaintiff’s fraudulent inducement claim seeks to declare the Separation
Agreement void. In this regard, the Board also argues that if Plaintiff’s fraudulent inducement
claim fails, all other claims asserted against the Board must fail due to the release of claims
contained in the agreed upon Separation Agreement. The release of claims provision states:
I release and give up any and all claims and rights which I may have
against you. This releases all claims, including those of which I am
not aware and those not mentioned in this Release. This Release
applies to claims resulting from anything which has happened up to
now. . . .
(Bd. Mot. at Ex. C).4 This Court agrees that the release of claims provision bars count five against
the Board, as count five relates to conduct that occurred prior to the execution of the release of
claims and therefore falls within the scope of the language “anything which has happened up to
now.” See Matter of Terminated Aetna Agents, 590 A.2d 1189, 1193 (N.J. Super. Ct. App. Div.
1990) (“A general release ordinarily covers all claims and demands due at the time of its execution
A copy of the release of claims is not attached to Plaintiff’s Complaint. However, because the
Separation Agreement, which includes the release of claims, is relied on in the Complaint, this
court can consider the copy of the release of claims provided by the Board. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (stating that a district court can
consider matters extraneous to the pleadings if a document is “integral to or explicitly relied
upon in the complaint” (citation omitted)).
4
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and within the contemplation of the parties.”). Count Five is therefore dismissed without prejudice
as to the Board. 5 However, counts two and four relate to conduct that occurred after the Separation
Agreement was executed. Thus, they are not covered by the release of claims provision contained
therein and may not dismissed on this basis.
C.
Breach of Contract Claim
Count two alleges a breach of contract claim against the Board. “A party alleging a breach
of contract satisfies its pleading requirement if it alleges (1) a contract; (2) a breach of that contract;
(3) damages flowing therefrom; and (4) that the party performed its own contractual duties.” Video
Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 210 F. Supp. 2d 552, 561 (D.N.J. 2002).
Although Plaintiff alleges generally that “Romano and certain Board members have made
statements about Rotante in violation of the confidentiality and non-interference provisions of the
Separation Agreement,” the Complaint provides no further insight into the specific terms of the
confidentiality and/or non-interference provisions. For example, Plaintiff does not quote to those
particular provisions, nor does Plaintiff provide the Court with any additional facts concerning the
scope of those provisions that would allow the Court to draw the reasonable inference that Board
member Jamie Martino breached said provisions by statements she made at the September 2012
public meeting. This becomes even more problematic given that the Complaint does not allege
any facts about what Board member Jamie Martino actually said. (Compl., ¶ 64). Plaintiff’s
allegation that “Board member Jamie Martino made defamatory and slanderous statements about
This claim is dismissed without prejudice because if Plaintiff can cure the deficiencies in count
one and show that the Board fraudulently induced Plaintiff to enter into the Separation
Agreement, the release of claims may no longer be applicable. Additionally, because Romano
does not argue that the release of claims applies to him, this Court will address count five against
Romano below.
5
10
Rotante and violated the confidentiality provisions of the Separation Agreement” is conclusory
and replete with legal conclusions that do not benefit from the presumption of truth.
Plaintiff’s vague allegations that “Romano and certain Board members have made public
statements defaming and slandering Rotante” are equally deficient. (Compl. ¶ 62). Without
knowing the nature of these statements, or the specific scope and/or terms of the confidentiality
and/or non-interference provisions, this Court cannot draw the reasonable inference that the Board
is liable for the misconduct alleged.
Finally, with respect to element four, the Board points to the fact that Plaintiff alleges that
he learned the Grievance was false only after speaking to members of the Grievance Committee.
Thus, according to the Board, Plaintiff has shown that he disregarded the same provisions of the
Separation Agreement that he claims the Board violated. As stated above, Plaintiff has failed to
allege sufficient facts as to the scope and terms of the confidentiality and/or non-interference
provisions. Thus, the Court declines to consider this argument at this time. Defendant may reassert
this argument in any future motion practice.
The Board’s motion to dismiss count two is granted. Count two is hereby dismissed
without prejudice.
D.
Violation of Tenure Employee’s Hearing Law
The Court has carefully reviewed Count four, considered the arguments raised in support
of and in opposition to this Court and finds that this Count fails to comply with Rule 8(a) of the
Federal Rules of Civil Procedure inasmuch as it fails to provide Defendants with a short and plain
statement of the claim. See, e.g., Iqbal, 556 U.S. at 677-678 (“Under Federal Rule of Civil
Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that
the pleader is entitled to relief.’ . . . . [A complaint does not] suffice if it tenders ‘naked assertion[s]’
11
devoid of ‘further factual enhancement.’ ”) (citation omitted).
In particular, it is unclear if Plaintiff intends to assert a claim for violation of the Tenure
Employees Hearing Law (“TEHL”), N.J.S.A. 18A:6-11, which provides that “[t]he consideration
and actions of the board as to any charges shall not take place at a public meeting,” or whether
Plaintiff instead claims—in this count—that Defendants have violated the Open Public Meetings
Act (“OPMA”), N.J.S.A. 10:4-12b. It is clear from the Defendants submissions that they have not
been given proper notice of the nature of this particular claim and the specific grounds upon which
it rests. This violates Rule 8(a) of the Federal Rules of Civil Procedure.
To the extent Plaintiff intends to assert claims pursuant to both TEHL and OPMA, Plaintiff
shall amend the complaint to separate such claims into separate counts. Each count must include
all facts pertinent to that particular claim and in support of Plaintiff’s theory of the claim.
Moreover, each count must contain sufficient factual matter which, if accepted as true, would allow
this Court to draw the reasonable inference that each Defendant is liable for the specific
misconduct alleged. See generally Iqbal, 556 U.S. at 678 (“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 misconduct alleged.”). Generalized allegations that “Defendant[s] on
various dates have publicly discussed the matters aforesaid mentioned at public meetings in
violation of Plaintiff’s privacy rights and the policy of confidentiality, which is required by statute
governing tenure charges” do not suffice. This is particularly so given that Plaintiff does not allege
that any tenure charges were filed against him.
Count Four is therefore dismissed in its entirety, without prejudice, for failure to comply
with Rule 8(a) of the Federal Rules of Civil Procedure.
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E.
First Amendment Claim
Count five alleges that Romano violated the First Amendment by retaliating against
Plaintiff for engaging in free speech concerning Romano’s proposal for school redistricting.6 To
state a claim for retaliation under the First Amendment, a plaintiff must allege “(1) constitutionally
protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights, and (3) a causal link between the constitutionally protected
conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.
2006).
Romano first argues that Plaintiff did not engage in constitutionally protected conduct
because his speech regarding Romano’s proposal for redistricting fails the test set forth in
Pickering v. Bd. of Educ., 391 U.S. 563 (1968). Under the Pickering test, courts “are required to
balance the first amendment interest in protecting the employee's freedom of expression against
the government's interest in maintaining discipline and efficiency in the workplace.” McPherson
v. Rankin, 786 F.2d 1233, 1236 (5th Cir. 1986) aff'd, 483 U.S. 378 (1987). Romano argues that
Plaintiff’s speech is not protected because it was disruptive and undermined the goal of his
employer, citing to Roseman v. Indiana Univ. of Pa., 520 F.2d 1364 (3d Cir. 1975) to support this
proposition. However, this case arose from a decision by the Western District of Pennsylvania that
ruled in favor of a defendant on a motion for summary judgment, not a motion to dismiss. See
generally Roseman v. Hassler, 382 F. Supp. 1328, 1329 (W.D. Pa. 1974) aff'd sub nom. Roseman
v. Indiana Univ. of Pa., 520 F.2d 1364 (3d Cir. 1975). Further, the Supreme Court has expressly
As discussed above, this claim is dismissed without prejudice as to the Board pursuant to the
release of claims provision contained in the Separation Agreement. To the extent Plaintiff cures
the pleading deficiencies in his fraudulent inducement claim, he may reassert this claim as
against the Board.
6
13
stated that an analysis under Pickering is fact-sensitive. Bd. of Cnty. Comm'rs v. Umbehr, 518
U.S. 668, 678 (1996). Therefore, this Court finds that it is premature to dismiss Plaintiff’s claim
based on the Pickering test.7
Romano also argues that Plaintiff has not suffered a retaliatory action.
This Court
disagrees. To determine whether an action was retaliatory, courts must consider whether “the
alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising
his First Amendment rights.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (citation omitted).
Here, Plaintiff alleges that he was faced with two options: sign the Separation Agreement or be
terminated. (Compl., ¶¶ 32-34). Being presented with this choice could have conceivably deterred
him from exercising his free speech rights. As Plaintiff’s allegations must be accepted as true at
this time, this Court finds that he has alleged a retaliatory action. See, e.g., Thomas, 463 F.3d at
296 (“Although ‘it is generally a question of fact whether a retaliatory campaign of harassment
has reached the threshold of actionability under § 1983,’ construing the allegations in plaintiffs’
favor, we conclude that plaintiffs have adequately pled First Amendment retaliation claims under
the Free Speech and Petition Clauses.”). Accordingly, count five is permitted to proceed against
Romano. Defendant Romano’s motion to dismiss this claim is denied.
F.
Motion to Amend Complaint
Plaintiff’s Motion to Amend seeks to i) add the Franklin Lakes Education Association (the
“FLEA”) as a Defendant to counts one, three, and four; ii) add FLEA president Donna Luciano as
This Court will not consider the argument raised for the first time in Romano’s Reply Brief—
that Plaintiff’s speech should not be protected because Plaintiff engaged in the speech pursuant
to his official duties—inasmuch as Plaintiff has not been given an opportunity to respond. See
generally Laborers’ Int’l Union v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.
1994).
7
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a Defendant to counts one and three; iii) add Board Member Christine Christopoul as a Defendant
to counts one, three, and five; and iv) add a sixth count that states a cause of action under the New
Jersey Civil Rights Act (the “NJCRA”), N.J.S.A. 10:6-1, et seq. against all Defendants. The Third
Circuit “has often held that, absent undue or substantial prejudice, an amendment should be
allowed under Rule 15(a) unless ‘denial [can] be grounded in bad faith or dilatory motive, truly
undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed
or futility of amendment.’” Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir.
1994) (quoting Bechtel v. Robinson, 886 F.2d 644, 652–53 (3d Cir.1989)). As Defendants do not
argue that they will be prejudiced by the amendments or that Plaintiff acted in bad faith, this Court
will address whether Plaintiff’s amendments are futile.
Because the same deficiencies exist as to the FLEA, Luciano, and Christopoul for counts
one and three as discussed above for Romano and the Board, this Court will not allow Plaintiff to
assert counts one and three against the FLEA, Luciano, and Christopoul. 8 To the extent Plaintiff
cures the pleading deficiencies in Count Four, he may assert such claim(s) against the FLEA.
Plaintiff may also assert count five against Christopoul. Again, the Court reiterates that each claim
must contain sufficient facts which, if accepted as true, allow the Court to draw the reasonable
inference that each defendant is liable for the specific misconduct alleged.
Plaintiff’s proposed sixth count seeks to add a cause of action under the NJCRA against all
Defendants based upon their alleged violation of Plaintiff’s right to freedom of speech. “[T]he free
speech clause of the New Jersey Constitution is generally interpreted as coextensive with the First
Amendment.” Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 168 (3d Cir. 2008)
However, because this Court is dismissing count one without prejudice, Plaintiff is entitled to
assert count one against the FLEA, Luciano, and Christopoul in his amended complaint if he
corrects its deficiencies.
8
15
(internal quotations and citation omitted). As discussed above, this Court is not dismissing
Plaintiff’s First Amendment claim in count five against Romano. As such, Plaintiff is permitted
to file a freedom of speech claim under the NJCRA against Romano, Christopoul, Luciano, and
the FLEA. However, as this Court is dismissing count five against the Board, Plaintiff is not
permitted to assert count six against the Board.9
Plaintiff’s proposed sixth count also seeks to add a claim under the NJCRA against all
Defendants based upon their alleged violation of Plaintiff’s substantive and procedural due process
rights. While the New Jersey Constitution does not explicitly enumerate a right to due process, it
provides that
All persons are by nature free and independent, and have certain
natural and unalienable rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing, and
protecting property, and of pursuing and obtaining safety and
happiness.
N.J. Const. art. I, ¶ 1. To assert a violation of substantive due process under the New Jersey
Constitution, a plaintiff must show that the particular right is fundamental. See Lewis v. Harris,
188 N.J. 415, 434 (2006). In Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 143 (3d Cir.
2000), the Third Circuit found that a continuing interest in public employment is not fundamental.
As such, Plaintiff is not permitted to add a substantive due process claim under the NJCRA.
Further, this Court will not allow Plaintiff to add a procedural due process claim, because the
NJCRA “protects invasions of substantive due process, not procedural due process.” Major Tours,
Inc. v. Colorel, 799 F. Supp. 2d 376, 405 (D.N.J. 2011) (citing N.J.S.A. § 10:6–2 and New Jersey
Assembly Floor Statement, A.B.2073, 6/24/2004).
However, because count five is dismissed against the Board without prejudice, Plaintiff may
allege count six against the Board in his amended complaint if he cures the deficiencies in count
five.
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IV.
CONCLUSION
For the foregoing reasons, Romano’s Motion to Dismiss is granted in part and denied in
part, the Board’s Motion to Dismiss is granted in part and denied in part, Plaintiff’s CrossMotion for Leave to File a Notice of Claim is denied, and Plaintiff’s Motion to Amend/Correct
Complaint is granted in part and denied in part. In particular, Count one is dismissed without
prejudice as to both Defendants. Count two is dismissed without prejudice as to the Board. Count
three is dismissed with prejudice as to both Defendants. Count four is dismissed without prejudice
as to both Defendants. Count five is dismissed without prejudice as to the Board. Count five may
proceed against Romano.
Plaintiff may file an Amended Complaint on or before May 9, 2014 to cure the pleading
deficiencies and to include those particular amendments discussed above. Plaintiff’s failure to do
so may result in dismissal of counts one, two, four and five (as to the Board) with prejudice upon
application by the Defendants.
An appropriate Order accompanies this Opinion.
Date: March 26, 2014
s/ Jose L. Linares
Jose L. Linares, U.S.D.J.
17
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