NOEL L. HILLMAN, District Judge.
Presently before the Court is the motion of Defendant Harrison Township School District Board of Education ("Harrison") to dismiss Counts IV and V in Plaintiffs' Second Amended Complaint [Doc. No. 29]. Plaintiffs filed a cross-motion to amend and attached a Proposed Third Amended Complaint [Doc. No. 73]. Harrison opposes Plaintiffs' motion to amend and additionally seeks to dismiss Counts VI, VII, X, and XI in Plaintiffs' Proposed Third Amended Complaint. Also before the Court is Harrison's motion to consolidate [Doc. No. 107] and Plaintiffs' motion for partial summary judgment as to Counts I-III regarding the administrative record [Doc. No. 57]. The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons that follow, Harrison's motion to dismiss will be granted in part and denied in part. Plaintiffs' motion to amend will be granted in part and denied in part. Harrison's motion to consolidate will be granted. Plaintiffs' motion for partial summary judgment will be denied without prejudice.
The minor Plaintiff, A.S., now an eight year-old student, has numerous alleged disabilities, including autism spectrum disorder, attention deficit hyperactivity disorder, epilepsy, and hearing impairment. Prop. Third Am. Compl. ("PTAC") ¶ 4. A.S. resides with his parents and legal guardians, Plaintiffs H.S. and M.S., in the Township of Mullica Hill, New Jersey.
Plaintiffs allege that in August 2010 Harrison classified A.S. as a preschool child with a disability and placed him in a segregated half-day "Preschool Disability Classroom" for the 2010-2011 school year.
On October 29, 2012, when A.S. was five years old, Plaintiffs filed a due process petition pursuant to the Individuals with Disabilities Education Act of 2004, 20 U.S.C. § 1400
An Administrative Law Judge entered a final decision on Plaintiffs' due process petition on October 11, 2013, which provided:
PTAC ¶ 19. Thus, according to the October 11, 2013 Order, Harrison was to pay Plaintiffs H.S. and M.S. a total of $3,781.84. The Order did not specify a time period for compliance.
On October 17, 2013, A.S. filed a petition for emergent relief after Harrison allegedly refused to maintain A.S.'s placement at Cherrywood. PTAC ¶ 21. On October 21, 2013, an ALJ granted A.S.'s petition for emergent relief and ordered Harrison to comply with the stay-put placement at Cherrywood.
PTAC ¶ 22.
On October 24, 2013, thirteen days after the October 11, 2013 Order was entered, "after numerous prior unsuccessful attempts to get Defendant Harrison to pay the ordered reimbursements," Plaintiffs complained to the New Jersey Department of Education ("NJDOE").
On January 9, 2014, Plaintiffs filed a complaint in this Court alleging violations of the IDEA, ADA, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. 10:5-1
On March 17, 2014, Plaintiffs and Harrison voluntarily agreed to a settlement which disposed of all the issues between the parties for the 2013-2014 school year, except for compensatory education. PTAC ¶ 34.
Between August 5, 2014 and August 22, 2014, M.S. and Harrison exchanged emails to schedule an initial individualized education plan ("IEP")
By email dated August 22, 2014, Harrison canceled the previously scheduled IEP meeting because Harrison's attorney could not attend.
On September 9, 2014, A.S. and his parents filed a Request for Emergent Relief, which was heard on September 18, 2014, and a Petition for Due Process with the New Jersey Department of Special Education, which was transferred to the Office of Administrative Law on October 9, 2014.
PTAC ¶ 55.
Following the hearing on the September 9, 2014 Petition for Due Process an ALJ ruled that A.S.'s placement at Cherrywood for September 22 — October 31, 2014 was appropriate and that A.S.'s parents were entitled to limited tuition and transportation reimbursement.
Count IV of the Proposed Third Amended Complaint asserts claims against Harrison under the IDEA and NJLAD alleging that Harrison "discriminated against A.S. based on their custom or practice of segregating disabled preschoolers, like A.S., regardless of whether they, like A.S., could be educated with non-disabled peers" during the 2010-2011 school year.
Count V asserts claims under the IDEA, Rehabilitation Act, ADA and NJLAD based on Harrison's failure to comply with the ALJ orders.
Count VI asserts new ADA and NJLAD claims against Harrison for the 2014-2015 school year. Plaintiffs allege Harrison denied A.S. educational benefits because of his disabilities by denying A.S. formal notice of his IEP meeting, denying A.S. an IEP meeting, creating a unilateral IEP, failing to maintain A.S.'s stay-put placement, and failing to ensure A.S. would be provided a FAPE in the LRE for the 2014-2015 school year. PTAC ¶ 117.
Count VII alleges that in retaliation for Plaintiffs' litigation, Harrison and Joan Ruberton, Supervisor of Student Services of Harrison Township, informed East Greenwich of the litigation in order to encourage East Greenwich to deny A.S.'s placement at the Jeffrey Clark School. PTAC ¶ 132. Plaintiffs further allege Harrison and Ruberton failed to provide A.S. an IEP meeting in order to impose its unilateral education plan rather than ensure A.S. had a placement compliant with the ALJ orders.
Counts VIII asserts new ADA and NJLAD claims against East Greenwich School District for denying A.S. admittance into the Jeffrey Clark School based on his disabilities. PTAC ¶ 139. Count IX asserts new ADA, Section 504, and NJLAD claims against East Greenwich and Beth Godfrey, Special Education Supervisor of East Greenwich School District, for denying A.S. placement at the Jeffrey Clark School based on their knowledge of the Harrison litigation. PTAC ¶ 142.
Count X asserts a new claim against Ruberton for tortiously interfering with A.S.'s placement at the Jeffrey Clark School. PTAC ¶ 148. Count XI is a new claim against Ruberton and Godfrey for conspiring to interfere with A.S.'s placement at the Jeffrey Clark School. PTAC ¶ 160.
The Court exercises subject matter jurisdiction over Plaintiffs' federal civil rights claims pursuant to 28 U.S.C. § 1331. The Court exercises supplemental jurisdiction over Plaintiffs' related state law claims pursuant to 28 U.S.C. § 1367.
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the claim as true and view them in the light most favorable to the claimant.
A district court, in weighing a motion to dismiss, asks "`not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'"
Following the
Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice.
Amendments to pleadings are governed by Federal Civil Procedure Rule 15, which provides that the Court "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The Third Circuit has shown a strong liberality in allowing amendments under Rule 15 in order to ensure that claims will be decided on the merits rather than on technicalities.
To prevail on a discrimination claim under the ADA a plaintiff must demonstrate that s/he: (1) has a disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the benefits of the program or was otherwise subject to discrimination because of his or her disability.
In the Proposed Third Amended Complaint Plaintiffs have sufficiently pled a prima facie case for discrimination under the ADA and NJLAD. First, Plaintiffs allege A.S. is a disabled child. Second, Plaintiffs allege during the 2010-2011 school year A.S. should have been educated in a regular classroom, with supplementary aids and support services in the least restrictive environment, but was instead segregated. PTAC ¶¶ 12-13. Third, Plaintiffs allege A.S. was segregated from non-disabled students because of his disability.
Harrison argues Count IV must be dismissed as futile because: (1) New Jersey school districts are only required to develop preschools for disabled students; (2) Plaintiffs' cannot prove a denial of a FAPE occurred; and (3) the relief Plaintiffs seek contradicts their claims under the IDEA. The Court will address Harrison's arguments in turn.
New Jersey schools are required to provide a free, appropriate public education ("FAPE") to students with disabilities no later than the student's third birthday, which includes preschool age students. N.J.A.C. 6A:14-1.1(b)(2). Students with disabilities are to be educated in the least restrictive environment, thus, to the maximum extent appropriate, a student with a disability must be educated with children who are not disabled. N.J.A.C. 6A:14-4.2(a)(1); 20 U.S.C. § 1412(a)(5)(A).
The Third Circuit adopted a two-part test for determining whether a school is complying with least restrictive environment requirement. First, the court must determine whether education in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily. Second, the court must evaluate whether the school has mainstreamed the child to the maximum extent appropriate.
Plaintiffs' Proposed Third Amended Complaint alleges that during the 2010-2011 school year A.S. was placed in a segregated half-day "Preschool Disability Classroom." PTAC ¶ 12. Plaintiffs allege this was not the least restrictive environment since A.S. could have been educated with non-disabled preschoolers. PTAC ¶ 93.
Harrison argues that although the IDEA requires school districts to provide a FAPE to disabled preschool age students, because school districts are not required to establish preschools for non-disabled students, a disabled preschool student may be provided educational services without direct inclusion with non-disabled students. At this stage, the Court rejects Harrison's argument. N.J.S.A. 18A:44-1 provides that if a school district establishes a preschool it shall admit any child under the age at which children are admitted to other schools or classes in the district, not just disabled children. Thus, according to Plaintiffs, once Harrison created a preschool it was required to admit non-disabled students and should not have segregated disabled students in one classroom. Therefore, A.S. has sufficiently stated a claim that A.S. was qualified to be educated with non-disabled preschoolers.
Harrison additionally argues that if Plaintiffs cannot prove a denial of a FAPE occurred, their NJLAD claim fails as a matter of law. However, at this stage, it is only relevant that the pleading is sufficient. Plaintiffs need not prove their allegations at this time.
Lastly, Harrison argues that A.S.'s allegations under NJLAD are at odds with their position under IDEA wherein they advocated for a placement at Cherrywood which purportedly segregates disabled children. However, Plaintiffs allege that in Cherrywood, A.S. was in an inclusive non-segregated classroom and thus the relief sought is not inconsistent. At most, Harrison's arguments raise only factual disputes.
Therefore, the Court finds that Plaintiffs have sufficiently stated a claim in their Proposed Third Amended Complaint against Harrison pursuant to the ADA and NJLAD. Accordingly, as to Count IV, Harrison's motion to dismiss is denied. Plaintiffs' motion to amend is granted.
In Count V of the Proposed Third Amended Complaint Plaintiffs allege Harrison failed to comply with the ALJ orders. Plaintiffs allege these failures constitute substantive violations of A.S. right to a FAPE. The FAPE requirement means that a disabled child is provided services which offer a meaningful educational benefit.
A procedural violation of the IDEA is not a per se denial of a FAPE unless the violation causes substantive harm to the child or his or her parents.
As stated above, to prevail on a discrimination claim under the ADA or NJLAD, a plaintiff must demonstrate that s/he: (1) has a disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the benefits of the program or was otherwise subject to discrimination because of his or her disability.
As to their IDEA and Rehabilitation Act claims for failure to implement the ALJ Orders, Plaintiffs have sufficiently alleged Harrison impeded A.S.'s right to a FAPE and denied A.S. educational benefits. As to their ADA and NJLAD claims, Plaintiffs have sufficiently alleged that A.S. was qualified to remain enrolled in his stay-put placement but was denied that benefit because Harrison failed to comply with the ALJ orders and discriminated against A.S. because of his disability. For example, Plaintiffs allege in September 2014 Harrison denied the parents' request for the Cherrywood placement and required A.S. to attend Harrison in a general education first grade class as an unclassified student, which was not compliant with the ALJ orders. PTAC ¶¶ 48, 49.
Harrison argues Plaintiffs lack standing to raise a claim under Count V. In their Second Amended Complaint, Plaintiffs alleged that the New Jersey Department of Education and Christopher Cerf, New Jersey Commissioner of Education, failed to comply with the October 11, 2014 compensatory education order in a timely manner and were capable of repeating their conduct. Plaintiffs requested injunctive and declaratory relief. The Court previously found that as to injunctive relief, Plaintiffs did not allege there may be future ALJ orders that will be violated.
Plaintiffs' Proposed Third Amended Complaint, however, cures the noted standing deficiencies. Plaintiffs allege Harrison has continuously failed to comply with ALJ orders. PTAC ¶ 113. For example, Plaintiffs allege that in September 2014, "Harrison barred A.S. from receiving a comparable stay-put placement and program."
Harrison additionally argues Count V must be dismissed because: (1) Plaintiffs acknowledge Harrison complied with the October 11, 2013 ALJ order in a timely fashion; (2) Plaintiffs failed to file an appropriate application to enforce the ALJ's order; and (3) Harrison was at all times under the supervision of the NJDOE and could not have violated Plaintiffs' rights.
Harrison's first argument is rejected. Plaintiffs have clearly contested that Harrison complied with the October 11, 2013 ALJ order in a timely fashion.
Harrison's second argument is also rejected. Harrison argues that Plaintiffs should have sought enforcement from a court rather than requesting enforcement from the New Jersey Office of Special Education. Harrison argues Plaintiffs' actions were procedurally deficient because the NJDOE only has jurisdiction to implement an order with respect to student programs or services and cannot award monetary relief.
As an initial matter, Plaintiffs do not allege they sought monetary damages for the enforcement of the October 11, 2013 Order. Instead they sought tuition and transportation compensation. Reimbursement does not constitute damages under the IDEA.
The Court also rejects Harrison third argument that it did not violate Plaintiffs' rights because it was at all times under the supervision of the NJDOE. In fact, Harrison had a duty to implement the October 11, 2013 ALJ Order pursuant to N.J. Admin. Code § 6A:14-2.7(l) ("The decision of the administrative law judge is final, binding on both parties and to be implemented without undue delay unless stayed").
Therefore, the Court finds that Plaintiffs have sufficiently stated a claim in their Proposed Third Amended Complaint against Harrison pursuant to the IDEA, Section 504 of Rehabilitation Act, the ADA and NJLAD. Accordingly, as to Count V, Harrison's motion to dismiss is denied. Plaintiffs' motion to amend is granted.
Count VI asserts claims against Harrison under the ADA and NJLAD. Plaintiffs' allege Harrison discriminated against A.S. by crafting a unilateral IEP and denying A.S. his right to a FAPE in the LRE during the 2014-2015 school year. PTAC ¶ 117. Plaintiffs have sufficiently pled a prima facie case of discrimination under the ADA or NJLAD. Plaintiffs allege A.S. was qualified to be placed in his ALJ-ordered placement but was denied his right to a FAPE during the 2014-2015 school year due to his disability.
Harrison argues Count VI should be dismissed as futile because it relates to facts "already adjudicated and rejected by the ALJ." Opp. Br. at 26 [Doc. No. 101]. Specifically, the ALJ noted that with regard to the denial of the IEP meeting, both parties were at fault for failing to schedule the IEP meeting at the start of the 2014-2015 school year.
Plaintiffs in turn argue that the ALJ did not determine explicitly whether A.S. was a denied a FAPE for the beginning of the 2014-2015 school year. Further, Plaintiffs allege A.S. was "locked-out" of an appropriate placement at the start of the 2014-2015 school year.
It is clear that the parties have several factual disputes. However, at this stage, Plaintiffs need only plead plausible facts to state a claim, which they have done. Accordingly, as to Count VI, Harrison's motion to dismiss is denied. Plaintiffs' motion to amend is granted.
To establish a retaliation claim under the ADA, NJLAD, or Section 504 of the Rehabilitation Act a plaintiff must show: (1) s/he was engaged in protected activity; (2) the alleged retaliator knew that plaintiff was involved in protected activity; (3) an adverse decision or course of action was taken against plaintiff; and (4) a causal connection exists between the protected activity and the adverse action."
Plaintiffs allege Harrison and Ruberton retaliated against Plaintiffs by denying A.S. an IEP meeting, an appropriate IEP, and a FAPE in the LRE. PTAC ¶ 122. Plaintiffs have alleged they were engaged in a protected activity in litigating their claims, Harrison and Ruberton were aware of the litigation, Harrison and Ruberton informed East Greenwich of the litigation in order to "entice" East Greenwich into denying A.S.'s placement (and took other adverse actions), and that there is a causal connection between the litigation and Harrison's adverse actions.
Harrison argues Plaintiffs' retaliation claims must be dismissed because Plaintiffs fail to prove an adverse action taken against them. However, Harrison's arguments are appropriate on a motion for summary judgment, not on a motion to dismiss. Plaintiffs allege that Ruberton informed East Greenwich of the ongoing litigation, "essentially enticing" East Greenwich to deny A.S. placement at the Jeffrey Clark School. Further, Plaintiffs allege Harrison engaged in other retaliatory acts such as failing to adhere to the stay-put order and "coerc[ing]" A.S.'s parents to sign a unilateral IEP. PTAC ¶ 127. This is sufficient to support the allegation that Harrison and Ruberton took an adverse action.
Therefore, the Court finds Plaintiffs have sufficiently pled a claim for retaliation under the ADA, NJLAD, and Section 504 of the Rehabilitation Act. Accordingly, Harrison's motion to dismiss Count VII is denied. Plaintiffs' motion to amend is granted.
A claim for tortious interference with a contract and/or prospective business relationship requires a plaintiff to prove: (1) he had some reasonable expectation of economic advantage; (2) the defendants' actions were malicious in the sense that the harm was inflicted intentionally and without justification or excuse; (3) the interference caused the loss of the prospective gain or there was a reasonable probability that the plaintiff would have obtained the anticipated economic benefit, and (4) the injury caused the plaintiff damage.
Count X alleges that Ruberton unlawfully interfered with A.S.'s ability to be placed at the Jeffrey Clark School which denied A.S. educational and economic benefits. In Count XI Plaintiffs allege Ruberton and Godfrey conspired to prevent A.S. from attending the Jeffrey Clark School and "both aided in the tor[ious] interference of A.S.'s education and economic benefit and advantage." PTAC ¶ 162. Harrison argues these claims should be dismissed because the tort of unlawful tortious interference requires some kind of "economic advantage" which does not equate to an educational advantage when the tort is committed by a school administrator against a student. The Court agrees with Harrison on this point. Plaintiffs have cited no authority for extending the state tort claim of tortious interference to interferences with an educational opportunity.
Harrison argues that the Court should permit this new claim and notes that courts within the Third Circuit have sometimes equated the relationship between a school administrator and student to an employer/employee relationship. However, the Court need not reach this issue because Plaintiffs have not plausibly pled facts to show that A.S. was denied an economic advantage, which is a required element of a tortious interference claim. The Court agrees with Harrison that "Plaintiffs have attempted to expand the parameters of this recognized tort cause of action by suggesting that interference with a `benefit' such as education, without a showing of economic loss, is sufficient in itself to establish liability." Thus, Count X does not plead a viable cause of action and must be dismissed. Further, without a separate underlying tort as a predicate for liability, Plaintiffs' conspiracy claim under Count XI must also be dismissed.
Whether a case should be consolidated is at the discretion of the trial court and should be permitted where the consolidation of separate actions presenting common questions of law or fact will promote convenience and economy in judicial administration.
Harrison moves to consolidate this case with
The Court finds that these two actions present common questions of law and fact. Further, consolidating these cases will avoid duplication of effort, and help prevent conflicting outcomes involving similar legal and factual issues. Accordingly, the Court will consolidate the actions.
On June 3, 2015, Harrison notified the Court that both parties have appealed the January 7, 2015 Order from the Office of Administrative Law, which will require cross-motions for summary judgment. Thus, Harrison requests that the Court permit supplemental briefing before the motion for partial summary is decided. Plaintiffs have not opposed Harrison's letter request.
Accordingly, the Court will deny without prejudice A.S.'s first motion for partial summary judgment. Plaintiffs may refile their motion for partial summary judgment to include any issues related to the January 7, 2015 Order from the Office of Administrative Law by October 23, 2015. The deadline for opposition papers will be November 2, 2015 and the deadline for reply papers will be November 9, 2015.
For the reasons discussed above, Harrison's motion to dismiss will be granted in part and denied in part. Plaintiffs' motion to amend will be granted in part and denied in part. Harrison's motion to consolidate will be granted. Plaintiffs' motion for partial summary judgment will be denied without prejudice.
An Order consistent with this Opinion will be entered.
