E.K. v. NEW JERSEY DEPARTMENT OF EDUCATION et al
LETTER OPINION. Signed by Judge Susan D. Wigenton on 1/7/2021. (ams, )
Case 2:20-cv-14409-SDW-LDW Document 17 Filed 01/07/21 Page 1 of 5 PageID: 487
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
January 7, 2021
David R. Giles, Esq.
34 Rynda Road
South Orange, NJ 07079
Counsel for Plaintiff
Aimee Blenner, Esq.
State of New Jersey Office of The Attorney General
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
LETTER OPINION FILED WITH THE CLERK OF THE COURT
E.K. v. New Jersey Dep’t of Educ, et al.
Civil Action No. 20-14409 (SDW) (LDW)
Before this Court is Plaintiff’s Motion for Reconsideration (“Motion”) of this Court’s
November 19, 2019 Order denying Plaintiff’s application for an Order to Show Cause and closing
this matter (D.E. 9), and a request for leave to file an amended complaint. (D.E. 10.) This Court,
having considered the parties’ submissions, and for the reasons discussed below, denies Plaintiff’s
Motion and the request for leave to amend the pleading.
E.K. (“Plaintiff”) is the parent of O.K., a twelve-year-old child who is allegedly eligible
for special education and related services under the Individuals with Disabilities Education Act
(“IDEA”). 2 (D.E. 1 ¶¶ 3–4, 8.) Plaintiff and O.K. reside within the Bayonne School District
(“BSD”). (Id. ¶ 5.)
The Court writes primarily for the parties and summarizes the relevant procedural history below.
The IDEA was enacted to ensure that children with disabilities receive a free appropriate public education (“FAPE”)
and are not placed “in regular classrooms awaiting the time when they were old enough to drop out.” Bd. of Educ. of
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Plaintiff commenced this action individually and on behalf of O.K. on October 14, 2020,
against the New Jersey Department of Education and Kevin Dehmer, the Interim Commissioner
of Education (collectively, “State Defendants”). (D.E. 1.) On the same day, Plaintiff filed an
application for an Order to Show Cause as to why a preliminary injunction should not issue. (D.E.
1-4, 1-6.) Plaintiff ultimately sought injunctive relief consisting of (i) a due process hearing before
an Administrative Law Judge (“ALJ”) to be conducted and decided within 30 days, and (ii) an out
of district placement for O.K. during the pendency of this matter and the due process hearing.
(D.E. 1-5, 1-6.) The complaint sought identical relief as well as attorneys’ fees and compensatory
education for the delay in O.K.’s FAPE allegedly caused by the State Defendants’ failure to
provide Plaintiff a timely due process hearing as required under the IDEA. (D.E. 1 ¶¶ 74–85.)
Before filing this lawsuit, Plaintiff reached a settlement (“Settlement”) with BSD for claims
related to O.K.’s right to a FAPE through October 29, 2019. (D.E. 1-7 ¶¶ 15–19; D.E. 1 ¶¶ 14–
20.) Thereafter, on November 13, 2019, BSD amended O.K.’s Individualized Education Plan
(“IEP”) to incorporate terms from the Settlement. (D.E. 1 ¶ 21.) On June 23, 2020, Plaintiff filed
a due process petition (“Petition”) alleging various failures by BSD in connection with its
development and implementation of O.K.’s IEP. (Id. ¶ 33; D.E. 1-7 ¶ 12.)
Following unsuccessful mediation on July 27, 2020, the Petition was referred to New
Jersey’s Office of Administrative Law. (D.E. 1-7 ¶¶ 12–13.) The parties participated in a
settlement conference before the ALJ Barry E. Moscowitz on August 13, 2020, before the matter
was assigned to ALJ Danielle Pasquale (“ALJ Pasquale”). (Id. ¶¶ 14–15.) ALJ Pasquale permitted
BSD to file a motion to dismiss the Petition on jurisdictional grounds given the potentially
controlling Settlement; briefing was to be completed by October 16, 2020. (Id. ¶¶ 18–31.) A
hearing before ALJ Pasquale was scheduled to occur on December 14, 2020. (Id. ¶ 36.)
ALJ Pasquale entered a decision (“Final Decision”) on November 16, 2020, dismissing the
Petition in its entirety for lack of jurisdiction. (See D.E. 10-2 (“Giles Cert.”) ¶ 12.) On the same
day, Plaintiff’s counsel notified this Court of ALJ Pasquale’s Final Decision and expressed
Plaintiff’s desire to withdraw the pending application for an Order to Show Cause and amend the
complaint. (Id. ¶ 13.) The State Defendants declined to file a response to Plaintiff’s application
for an Order to Show Cause by November 18, 2020, in accordance with this Court’s scheduling
Order. (See D.E. 7.) Accordingly, on November 19, 2020, this Court issued an Order denying
Plaintiff’s application for an Order to Show Cause as moot in light of ALJ Pasquale’s Final
Decision and closed this action. (D.E. 9.)
Plaintiff now moves for reconsideration of the November 19, 2020 Order and seeks leave
to amend her complaint to assert multiple claims against BSD as a new defendant and appeal ALJ
Pasquale’s Final Decision. (D.E. 10-1 at 4.) Although Plaintiff agrees that her claim for injunctive
relief became moot following ALJ Pasquale’s Final Decision, she contends that her claims for
compensatory education and attorneys’ fees remain justiciable. 3 (D.E. 10-1 at 1, 4.)
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982) (discussing the history of the IDEA) (internal
quotations omitted). “The IDEA protects the rights of disabled children by mandating that public educational
institutions identify and effectively educate those children, or pay for their education elsewhere if they require
specialized services that the public institution cannot provide.” D.K. v. Abington Sch. Dist., 696 F.3d 233, 244 (3d
Cir. 2012) (quoting P.P. ex rel. Michael P. v. W. Chester Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009)).
To the extent Plaintiff intended to raise a claim under Section 1983 against the State Defendants in the complaint,
she wholly fails to mention any purported Section 1983 claim in her Motion. Accordingly, the Court construes any
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A party moving for reconsideration must file its motion within fourteen (14) days “after
the entry of the order or judgment on the original motion” and set “forth concisely the matter or
controlling decisions which the party believes the . . . Judge has overlooked.” L. Civ. R. 7.1(i). A
motion for reconsideration is “an extremely limited procedural vehicle” which is to be granted
“sparingly.” A.K. Stamping Co., Inc. v. Instrument Specialties Co., Inc., 106 F. Supp. 2d 627, 662
(D.N.J. 2000) (citations omitted); Sch. Specialty, Inc. v. Ferrentino, No. 14-4507, 2015 WL
4602995 at *2 (D.N.J. July 30, 2015) (citations omitted). Motions to reconsider are only proper
where the moving party shows “(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court [reached its original decision];
or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Mere disagreement with a court’s
decision is not an appropriate basis upon which to bring a motion for reconsideration as such
disagreement should “be raised through the appellate process.” U.S. v. Compaction Sys. Corp., 88
F. Supp. 2d 339, 345 (D.N.J. 1999).
Here, Plaintiff seeks compensatory education and attorneys’ fees from the State Defendants
in connection with their purported denial of O.K.’s FAPE during the allegedly prolonged pendency
of administrative proceedings before the ALJ. (See D.E. 1 at 18; D.E. 10-1 at 6.) However, “[t]he
remedy of compensatory education is available only where a student’s substantive rights are
affected by a school district’s non-compliance with the IDEA.” D.K. v. Abington Sch. Dist., 696
F.3d 233, 249 (3d Cir. 2012) (emphasis added). Moreover, procedural violations are actionable
when they “result in a loss of educational opportunity for the student, seriously deprive parents
of their participation rights, or cause a deprivation of educational benefits.” D.S. v. Bayonne Bd.
of Educ., 602 F.3d 553, 565 (3d Cir. 2010). Because Plaintiff fails to identify any intervening
change in the relevant law, new evidence that was unavailable at the time this Court entered its
decision, or an error of fact or law that, if left uncorrected, would result in manifest injustice,
specifically as it relates to her claims for compensatory education and attorneys’ fees from the
State Defendants, the Motion is denied. 4 (See generally D.E. 10-1.)
Lastly, Plaintiff’s proposed amended complaint seeks to appeal the ALJ’s Final Decision
as it relates to the Settlement, add BSD as a defendant, and assert multiple claims against it,
including alleged violations of O.K.’s right to a FAPE and stay-put placement. (Giles Cert. at 6–
29.) Because the proposed amended complaint does not alter the original claims brought against
the State Defendants (compare D.E. 1, with Giles Cert. at 6–29), the analysis below focuses on
new claims Plaintiff attempts to lodge against BSD.
alleged Section 1983 claim as waived. See Anspach v. City of Philadelphia, 503 F.3d 256, 258 n.1 (3d Cir. 2007)
(“failure to raise an argument in one’s opening brief waives it”).
Even if Plaintiff properly seeks compensatory education from the State Defendants, she fails to provide any basis
that the alleged delay in administrative proceedings resulted in O.K.’s loss of educational opportunity, seriously
deprived Plaintiff of her participation rights, or “cause[d] a deprivation of educational benefits.” See D.S., 602 F.3d
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Pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a)(1), a party may amend its
complaint once as a matter of course within 21 days after serving it, or 21 days after service of a
responsive pleading or motion pursuant to Rule 12(b), (e), or (f). Here, there is no evidence that
Plaintiff served BSD with its proposed amended complaint. (See D.E. 10-4 (Plaintiff’s certificate
of service on the State Defendants only).) Accordingly, pursuant to Rule 15(a)(2), Plaintiff may
amend her complaint “only with the opposing party’s written consent or the court’s leave.”
A motion for leave to amend a complaint shall be freely given when justice so requires.
Foman v. Davis, 371 U.S. 178, 182 (1962); Fed. R. Civ. P. 15. Although leave to amend pleadings
is granted liberally, the court may deny a motion to amend where there is “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, [or] futility of the amendment.” Foman, 371 U.S. at 182. The decision whether to
grant or deny a motion for leave to amend rests “within the discretion of the District Court.” Id.
Here, the proposed amended complaint seeks to assert new claims against BSD that are
wholly unrelated to the alleged procedural violation in the original complaint, namely, Plaintiff’s
purported deprivation of a timely due process hearing. (Compare D.E. 1, with Giles Cert. at 6–
29.) Pursuant to Rule 20, a defendant may be joined to an action if “(A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law
or fact common to all defendants will arise in the action.” “In exercising its discretion [to join
parties], the District Court must provide a reasoned analysis that comports with the requirements
of  Rule , and that is based on the specific fact pattern presented by the plaintiffs and claims
before the court.” Hagan v. Rogers, 570 F.3d 146, 157 (3d Cir. 2009); see Boretsky v. Governor
of New Jersey, 433 F. App’x 73 (3d Cir. 2011) (unpublished).
Although the general underlying dispute regarding O.K.’s FAPE gave rise to the alleged
procedural violation asserted in the original complaint, Plaintiff seeks to add new claims against
only BSD that relate to separate and distinct issues—BSD’s development and implementation of
O.K.’s IEP. (See Giles Cert. at 21–29.) Moreover, the proposed amended complaint seeks to
appeal the ALJ’s Final Decision, which involves interpretation of the Settlement between Plaintiff
and BSD. (Id. at 28–29.) For these reasons, the proposed claims against BSD do not involve
issues of law or fact common to all the defendants. Accordingly, Plaintiff’s request for leave to
amend is denied. See Hayden v. Westfield Ins. Co., 586 F. App’x 835, 839–40 (3d Cir. 2014)
(affirming the district court’s denial of a Rule 20 motion to raise additional claims against a new
defendant that were distinct from the initial insurance dispute).
Plaintiff’s Motion for Reconsideration and request for leave to file an amended complaint
are DENIED. An appropriate order follows.
/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.
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Leda D. Wettre, U.S.M.J.
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