The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
K.N. and J.N., on behalf of
J.N.,
Plaintiffs, Civil No. 17-7976 (NLH/JS)
v. OPINION
GLOUCESTER CITY BOARD OF
EDUCATION,
Defendant.
APPEARANCES:
CATHERINE MERINO REISMAN
REISMAN CAROLLA GRAN & ZUBA LLP
19 CHESTNUT STREET
HADDONFIELD, NJ 08033-1810
Attorney for Plaintiffs K.N. and J.N, on behalf of J.N.
BRETT E.J. GORMAN
PARKER MCCAY PA
9000 MIDLANTIC DRIVE
SUITE 300
MT. LAUREL, NJ 08054
Attorney for Defendant Gloucester City Board of Education.
HILLMAN, District Judge
This case concerns the appeal of a decision of an
administrative law judge (“ALJ”) finding no violations of
federal and state anti-discrimination laws. The Defendant
school district provides services for an autistic child, J.N,
through an after-school program (“ASP”). Presently before the
Court are Defendant’s Motion for Reconsideration and Motion to
Certify an Issue for Interlocutory Appeal (the “Motion to
Certify” and, collectively, the “Motions”). As described
herein, the Court will deny Defendant’s Motion for
Reconsideration and deny Defendant’s Motion to Certify.
BACKGROUND
This Court will rely upon the facts stated in its March 29,
2019 Opinion and will only restate those facts as necessary to
the disposition of the Motions. Since this Court filed its
March 29, 2019 Opinion and Order, Defendant filed its Motions
for Reconsideration and to Certify an Issue for Interlocutory
Appeal. The Motions have been fully briefed by the parties and
are ripe for adjudication.
ANALYSIS
A. Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1367.
B. Motion for Reconsideration Standard
Local Rule 7.1(i) allows a party to file a motion with the
Court requesting the Court to reconsider the “matter or
controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked.” Under Local Rule 7.1(i), the
moving party must demonstrate “‘the need to correct a clear
error of law or fact or to prevent manifest injustice.’”
Andreyko v. Sunrise Sr. Living, Inc., 993 F. Supp. 2d 475, 478
(D.N.J. 2014) (citations omitted). In doing so, the moving
party must show the “‘dispositive factual matter or controlling
decisions of law’” it believes the court overlooked in its
initial decision. Mitchell, 913 F. Supp. 2d at 78 (citation
omitted). A mere disagreement with the Court will not suffice
to show that the Court overlooked relevant facts or controlling
law. United States v. Compaction Sys. Corp., 88 F. Supp. 2d
339, 345 (D.N.J. 1999).
C. Defendant’s Motion for Reconsideration
Defendant moves for reconsideration of the Court’s decision
to grant summary judgment as to Plaintiff’s New Jersey Law
Against Discrimination (“NJLAD”) claim. Defendant’s argument is
threefold. First, Defendant argues Plaintiffs were required to
commence a proceeding before the New Jersey Division of Civil
Rights (“NJDCR”) or file their NJLAD claim directly in New
Jersey Superior Court. A failure to do so, according to
Defendant, requires dismissal on procedural grounds. Second,
Defendant argues that even if the NJLAD claim may remain before
this Court, Defendant should be given an opportunity to engage
in discovery and present the claim before a jury, assuming a
genuine issue of material fact remains. Plaintiffs disagree on
both points, arguing that it was proper to bring the NJLAD claim
first in federal district court and that Defendant has
affirmatively waived its right to a jury trial or further
discovery in this case. Third, Defendant argues the differing
burdens at the administrative and district court level require
the Court to reconsider its decision.
The Court will first address the question of whether
administrative exhaustion before the NJDCR is required.
Plaintiffs argue that “NJLAD complainants, in the ordinary
course, are entitled to proceed directly to court without
exhausting administrative remedies anywhere.” (Pls.’ Opp’n Br.
4.) “[T]he NJLAD does not have an exhaustion of remedies
requirement.” Weisberg v. Realogy Corp., No. 12-30 (JLL), 2012
U.S. Dist. LEXIS 38931, at *7 (D.N.J. Mar. 22, 2012).
Defendant’s argument admits this much, saying “[i]nstead of the
above-discussed proceedings before the [NJDCR] . . . a
complainant may file a complaint in the Superior Court of New
Jersey.” (Def.’s Mot. for Recons. 6.) The Court finds it did
not err in refusing to dismiss the NJLAD claim because NJLAD
claims are not subject to an administrative exhaustion
requirement.
Thus, the remaining argument for dismissal made by
Defendant under this category is whether a plaintiff may,
instead of filing in the appropriate New Jersey Superior Court,
file directly in a federal district court. The relevant text of
the NJLAD states the following: “[a]ny complainant may initiate
suit in Superior Court under this act without first filing a
complaint with the division or any municipal office.” N.J. STAT.
ANN. § 10:5-13 (emphasis added). It appears, on its face, that a
plaintiff may bring an NJLAD claim - if the administrative route
is not taken – in New Jersey Superior Court. Defendant,
however, appears to argue that an NJLAD claim must be filed in
New Jersey Superior Court, and that NJLAD plaintiffs may only
have their cases heard in federal district court if it is
removed by the defendants in the action. In other words,
Defendant appears to argue the permissive language of the NJLAD
should be interpreted to require all NJLAD claims to be brought
in the first instance in New Jersey Superior Court.
But, that has clearly not been the case in the District, as
many NJLAD cases are initiated directly in federal district
court. As this District has held for a number of years, claims
under § 10:5-13 – the section cited here by Defendant – “are
consistently resolved by federal courts.” Kessler Inst. for
Rehab. v. Mayor of Essex Fells, 876 F. Supp. 641, 664 (D.N.J.
1995). The basis for allowing these claims to be heard
initially in federal court is the permissive language of the
statute, which states those claims “may” be brought in New
Jersey Superior Court. Id. at 664-65. More recent case law
shows that this remains the practice in this District. See,
e.g., Hashem v. Hunterdon Cnty., No. 15-8585 (FLW/DEA), 2016
U.S. Dist. LEXIS 134055, at *28 (D.N.J. Sept. 29, 2016)
(allowing an NJLAD claim to be brought directly in federal
court); Waters v. ShopRite Supermarkets, Inc., No. 10-cv-2986
(WJM), 2011 U.S. Dist. LEXIS 139307, at *9 (D.N.J. Dec. 5, 2011)
(holding no administrative exhaustion was required for an NJLAD
claim and allowing the claim to proceed directly in federal
court). Accordingly, this Court finds it did not err in
refusing to dismiss the NJLAD claim because an NJLAD claim may
be brought directly in federal court.1
1 It follows from Defendant’s argument that the New Jersey
legislature would have the power to limit the jurisdiction of
the federal courts by requiring that its courts, and only its
courts, hear a state statutory claim. This position is of
doubtful constitutionality and conflicts with a century of
settled federal law. See MCI Telecomms. Corp. v. Teleconcepts,
Inc., 71 F.3d 1086, 1109 (3d Cir. 1995) (“It does not follow,
however, that a state may by statutory or decisional law
restrict the subject matter jurisdiction of the federal courts.
It is axiomatic that, because its subject matter jurisdiction
can be conferred or withdrawn only by Congress, a federal court
must look only to federal, not state, law to determine that
jurisdiction vel non, even when the substantive right at issue
is a creature of the state. . . . . That a state simply has no
power to divest a federal court of its congressionally conferred
subject matter jurisdiction, has been settled law for nearly a
century.” (citations omitted and emphasis in original)).
Plaintiffs have asserted a federal statutory claim
cognizable in federal court and have the right to pursue that
claim, and any pendent claims, in this forum. 28 U.S.C. § 1367.
Further, if Plaintiffs were only able to assert a NJLAD claim in
state court, they would be forced to assert their federal claims
in state court or run the risk of running afoul of the entire
controversy doctrine, in effect denying this Court jurisdiction
over a federal statutory claim. The only fair interpretation of
the permissive language of the state statute is that it limits
its express reach to the New Jersey legislature’s proper
constitutional lane – the jurisdiction of the state courts.
Second, Defendant argues that the Court erred in deciding
the NJLAD claim without directing discovery to be completed or
permitting a jury trial to be held. Plaintiffs counter that
Defendant waived its right to discovery and a jury based on the
joint discovery plan submitted and Defendant’s waiver of its
jury trial right by not requesting one in its Answer. The Court
will address each argument in turn.
First, the Court will address whether it erred in deciding
the NJLAD claim without first allowing Defendant discovery. The
Court did not err. The joint discovery plan submitted by the
parties references the claims at-issue, federal and state anti-
discrimination laws, and states that no discovery is needed.
Plaintiffs’ Complaint explicitly states an NJLAD claim.
Defendant cannot complain now that the Court did not permit
discovery when it previously stated to the Court it did not wish
to engage in discovery, knowing an NJLAD claim had been
asserted.
Second, the Court will address whether it erred in deciding
the matter without submitting it to a jury. The Court did not
err for two reasons. First, Defendant admits that the issue may
only go before a jury “[i]f there are any issues of material
fact.” (Def.’s Mot. for Recons. 7.) In other words, Defendant
states there is no right to a jury trial unless there is a
genuine issue of material fact that must be determined by a
jury. Defendant cites no genuine issue of material fact that
the Court incorrectly decided. More importantly, Defendant did
not include a jury demand in its answer – nor did Plaintiffs
include one in their Complaint. Under Federal Rule of Civil
Procedure 38(d), “[a] party waives a jury trial unless its
demand is properly served and filed.” Defendant did not do so.
The Court did not err in deciding the NJLAD claim without first
requiring discovery or resorting to a jury.
Finally, Defendant argues the Court erred by not
considering the differing burdens at the administrative and the
district court level. It appears Defendant’s complaint is
procedural in nature. Defendant argues that it possessed the
burden of production and proof before the ALJ while Plaintiffs
possess the burden of persuasion here. Plaintiffs do not
directly respond to this argument. The Court finds this
argument does not bear on the Court’s decision. The parties
agreed to have the claims be considered on the administrative
record and the burden of persuasion rested with Plaintiff.
Whether the burden was different is of no moment, as the correct
burden was applied here – Plaintiff maintained the burden of
persuasion.
The Court acknowledges, however, it was incorrect in
stating that the ALJ erred in not finding Defendant had violated
the NJLAD. No NJLAD claim was presented to the ALJ and
therefore could not have been decided – rightly or wrongly – by
the ALJ. Even though the nomenclature used by the Court was
incorrect, its ruling was not. Nowhere in Defendant’s Motion
for Reconsideration does Defendant state that the Court’s
ruling, on its merits, was incorrect as to the NJLAD claim. In
fact, Defendant states “admittedly, the NJLAD and ADA claims
involve similar analysis.” (Def.’s Mot. for Recons. 9.) The
law states this more strongly: “NJLAD relies on the same
analytical framework as the Americans with Disabilities Act.”
D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 502-03
(D.N.J. 2008) (emphasis added). The Court was therefore correct
in finding an NJLAD violation on the administrative record as it
found an ADA violation. Defendant does not ask the Court to
reconsider the substance of the NJLAD or ADA violation, which
appears to be an admission (for this motion only), that the
decision was substantively correct. There is no reason for the
Court to revisit those decisions now.2 Accordingly, the Court
denies Defendant’s Motion for Reconsideration in its entirety.
D. Motion to Certify Issue for Interlocutory Appeal
2 The Court also notes Defendant’s concerns about the precedent
this case may set. These concerns are misplaced, as this case
presents a peculiar factual scenario. Defendant, as well as
other litigants, may avoid this situation in the future by
pursuing discovery and making clear to the Court that it wishes
the court to only address the appeal of the administrative
record rather than summary judgment on all claims.
Defendant also requests that the Court certify the issue of
the standard of review for factual issues in this matter so it
may be appealed to the Third Circuit. Essentially, Defendant
argues that this Court’s factual determinations may have been
different under the standard of review advocated by Defendant
than under the one utilized by the Court, so an interlocutory
appeal may materially advance this case. Plaintiff disagrees,
arguing the Court accepted the material underlying factual
determinations but came to a different legal conclusion.
Therefore, the standard of review used for factual
determinations has no material effect on the case and an
interlocutory appeal could not advance the case in any material
way.
Generally, the courts of appeals only possess “jurisdiction
of appeals from all final decisions of the district courts of
the United States.” 28 U.S.C. § 1291. Federal Rule of Civil
Procedure 54(b) states the controlling test for whether a
decision of the Court may be considered final, stating:
any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and
may be revised at any time before the entry of a
judgment adjudicating all the claims and all the
parties’ rights and liabilities.
In other words, if a decision of the Court decides a party is
liable on certain claims, but reserves decision on the proper
relief for those liabilities, the decision is not yet final
under Rule 54(b). The parties agree: the Court’s March 29, 2019
Opinion and Order do not constitute a final decision, as the
question of a remedy is yet to be determined.
There are, however, exceptions allowing a federal appeals
court, here the Third Circuit, to review a non-final decision of
a federal district court. One of those exceptions is when the
district court judge certifies an issue for an interlocutory
appeal under 28 U.S.C. § 1292(b). That statute provides as
follows:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that [1] such order involves a
controlling question of law as to which there is [2]
substantial ground for difference of opinion and that
an immediate appeal from the order [3] may materially
advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of
such action may thereupon, in its discretion, permit
an appeal to be taken from such order, if application
is made to it within ten days after the entry of the
order . . . .
28 U.S.C. § 1292(b); see also Kapossy v. McGraw-Hill, Inc., 942
F. Supp. 996, 1001 (D.N.J. 1996) (stating the same test). Thus,
these three factors must be considered by the district court in
determining whether interlocutory appeal is appropriate. As
Defendant points out, “[t]he certification procedure is not
mandatory; indeed, permission to appeal is wholly within the
discretion of the courts, even if the criteria are present.”
Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976) (citing
Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974)
(en banc)).
A decision is controlling only if “its incorrect
disposition would require reversal of the final judgment.”
Kapossy, 942 F. Supp. at 1001. Plaintiff argues the Court’s
decision on the factual questions presented would not be
affected by a different standard of review, as every contested
factual question was upheld. Defendant asserts that this Court
disagreed with the factual findings of the ALJ and that a
different standard of review would have changed the factual
findings and thus the decision in this case. The Court will
review the factual decisions where Defendant asserts the Court
disagreed with the ALJ to determine whether or not (1) the Court
actually disagreed or (2) if it disagreed, whether a different
standard of review would have caused the Court to be of a
different opinion.
Before doing so, the Court notes the issue of law that is
contested. Normally, in an IDEA case, the Court would apply a
modified de novo standard of review to the factual findings made
by an ALJ. E.I.H. v. Fair Lawn Bd. of Educ., 747 F. App’x 68,
71 (3d Cir. 2018). Under that standard, a district court would
be required to give “due weight” to the factual findings of an
ALJ, and, if the district court departs from the ALJ’s factual
findings, it must explain its reasons for doing so. Id. (citing
S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d
260, 270 (3d Cir. 2003)). The Third Circuit has yet to
determine, in a case such as this where IDEA exhaustion was
completed but an IDEA claim has not been appealed, whether the
modified de novo or a de novo standard of review applies. T.F.
v. Fox Chapel Area Sch. Dist., 589 F. App’x 594, 598 (3d Cir.
2014). The Third Circuit in T.F. suggested that a de novo
standard of review may be appropriate in such a situation and
that under that standard, no due weight is to be given. As
suggested by the procedural posture, the Court here utilized a
de novo standard of review for both the factual and legal
findings of the ALJ.
First, Defendant asserts the Court found that the ALJ
committed a factual error in finding the factors of transferring
schools and bussing contributed to J.N.’s behavioral problems in
fall 2014. (March 29, 2019 Opinion 18.) Defendant is correct,
the Court found that this factual finding of the ALJ did not
match the chronology explained by the ALJ and the parties and
thus disagreed with the ALJ’s factual finding. But, Defendant’s
argument omits that that it admitted the ALJ’s factual finding
was erroneous on this particular issue. It is improper for
Defendant to use this aspect of the decision to support its
Motion to Certify. In any event, it is clear that whether the
Court utilized a de novo or modified de novo standard of review,
the Court would have come to the same conclusion as this finding
was contradicted by the ALJ’s own opinion.
Second, Defendant argues that the Court found the reasons
for J.N.’s behaviors were a lack of staffing in addition to the
factors the ALJ listed. Defendants also argue that the Court
found these supports would have altered J.N.’s behaviors. Both
of these assertions are a misinterpretation of the Court’s
Opinion and would not have been decided differently under the de
novo or modified de novo standard of review.
The Court ruled that J.N.’s behaviors were a result of his
autism. This fact is undisputed by the parties. The Court then
ruled - based on a legal interpretation of the facts as found by
the ALJ and this Court - that only a special education teacher
supported by at least one one-to-one aide could provide J.N.
with meaningful access. The Court did not opine on whether the
necessary supports would have altered J.N.’s behaviors, just
that the supports the Court ordered would be enough to maintain
J.N. and allow him to attend the ASP. Regardless, the Court’s
ruling here was legal, not factual, in nature and thus does not
bear on the question presented by Defendant.
Third, Defendant asserts that the Court disagreed with the
ALJ as to whether the ASP was a component of FAPE and should
have been included in an IEP. That question was not before the
Court and was not analyzed by the Court. More importantly,
Defendant has, again, misinterpreted the Court’s Opinion. The
Court merely observed that J.N.’s activities in the ASP were
similar to the activities he participated in during the school
day. This is supported by the factual findings made by the ALJ,
which the Court accepted. There was no disagreement here.
Fourth and finally, Defendant asserts that there are
differences between a “school district’s operations and legal
requirements during the school day and during an after school
program that would further distinguish those programs . . . .”
(Def.’s Reply Br. 3.) Defendant argues that staffing
requirements and abilities are different based on the contract
between it and the teachers’ union. This is relevant, according
to Defendant, because the Court ruled that the ASP was an
extension of the school day. As to the first point, neither the
ALJ nor the Court was presented with the question of whether
staffing ability was diminished at the ASP because of
contractual concerns. It was not material to the opinion, and
thus cannot be a basis for this Court to certify an
interlocutory appeal. Moreover, as discussed supra, the Court
did not rule that the ASP was an extension of the school day but
was merely illustrating the point that there were similarities
between J.N.’s activities at school and in the ASP. As there
was no factual disagreement between the Court’s findings and the
ALJ’s findings, this is also not a basis on which interlocutory
appeal could be granted.
This Court will not certify its Opinion for an
interlocutory appeal. Except for one factual disagreement,
which Defendant admitted was incorrectly decided by the ALJ,
this Court adopted the factual findings of the ALJ. While the
Court came to a different legal conclusion than the ALJ, the
parties agree that the Court utilized the correct standard of
review for legal decisions. Therefore, because the Opinion
would not have changed based on the standard of review utilized
for these factual questions, the Court – in its discretion –
declines to certify its Opinion for interlocutory appeal.
Defendant’s Motion to Certify will be denied.
CONCLUSION
For the reasons stated herein, the Court will deny both
Defendant’s Motion for Reconsideration and Motion to Certify.
An appropriate Order will be entered.
Date: August 27, 2019 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.