KAMINSKI-MINTZ v. NEW JERSEY DEPARTMENT OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

K.K-M., individually and as No. 1:17-cv-11579-NLH-MJS

Kinship Legal Guardian of the

A.W. and R.M.,

Plaintiffs, OPINION

v.

NEW JERSEY DEPARTMENT

OF EDUCATION; NEW JERSEY

OFFICE OF ADMINISTRATIVE

LAW; DOMINIC ROTA, in his

official capacity; GLOUCESTER

CITY BOARD OF EDUCATION

d/b/a GLOUCESTER CITY

PUBLIC SCHOOLS; and BLACK

HORSE PIKE REGIONAL

SCHOOL DISTRICT,

Defendants.

APPEARANCES:

ROBERT CRAIG THURSTON

THURSTON LAW OFFICES LLC

100 SPRINGDALE ROAD A3

PMB 287

CHERRY HILL, NJ 08003

Counsel for Plaintiffs.

VICTORIA SIMOES BECK

WILLIAM CLAWGES MORLOK

PARK MCCAY P.A.

9000 MIDLANTIC DRIVE

SUITE 300

MOUNT LAUREL, NJ 08054

Counsel for Gloucester City Board of Education.

MICHAEL S. MIKULSKI, II

CONNOR WEBER & OBERLIES, P.C.

WOODCREST PAVILION

TEN MELROSE AVENUE

SUITE 450

CHERRY HILL, NJ 08003

Counsel for Black Horse Pike Regional School District Board

of Education.

DONNA S. ARONS

JACLYN MICHELLE FREY

AIMEE ROUSSEAU

JOAN M. SCATTON

BETH N. SHORE

KERRY SORANNO

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET - P.O. BOX 112

TRENTON, NJ 08625

Counsel for the State Defendants.

HILLMAN, District Judge

This matter comes before the Court by way of Plaintiffs’

Second Motion to Amend Complaint. (ECF 121). For the reasons

stated below, the Court will grant in part and deny in part

Plaintiffs’ motion.1

1 Plaintiffs are K.K-M., individually and as Kinship Legal

Guardian of the A.W. and R.M. Defendants are the New

Jersey Department of Education (“NJDOE”); the New Jersey Office

of Administrative Law (“OAL”); Dominic Rota, in his official

capacity (together, the “State Defendants”); Gloucester City

Board of Education d/b/a Gloucester City Public Schools

(“GCPS”); and Defendant Black Horse Pike Regional School

District (“BHPRSD”).

BACKGROUND

Plaintiffs seek to file a third amended complaint in

response to Judge Robert Kugler’s August 10, 2021 ruling on the

State Defendants’ motion to dismiss Plaintiffs’ second amended

complaint, which granted in part and denied in part the State

Defendants’ motion. (See ECF 119). On August 23, 2021,

Plaintiffs formally moved to amend the complaint and filed a

proposed complaint with the changes redlined. (See ECF 121).

BHPRSD and the State Defendants filed oppositions to the motions

regarding specific counts, arguing that amendment would be

futile.2 (ECF 122, 127). Plaintiffs promptly filed replies in

further support of its motion. (ECF 123, 128). Briefing is now

complete, and the Court will proceed to the merits of the

motion.

DISCUSSION

I. Legal Standard for a Motion to Amend Complaint

Federal Rule of Civil Procedure 15(a)(2) provides that “a

party may amend its pleading . . . with the opposing party's

written consent or the court’s leave.” Leave to amend is to be

freely granted unless there is a reason for denial, “such as

2 The State Defendants filed their opposition after the deadline

to do so had passed and did not seek an extension until after

that deadline. The Court allowed the State Defendants to file

an opposition brief but stated that Plaintiffs could still argue

that it was untimely. (ECF 126).

undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, futility of amendment,

etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Arthur

v. Maersk, 434 F.3d 196, 204 (3d. Cir. 2006) (“Among the factors

that may justify denial of leave to amend are undue delay, bad

faith, and futility.”).

District courts “should freely give leave to amend when

justice so requires.” Schomburg v. Dow Jones & Co., 504 F. App'x

100, 103 (3d Cir. 2012) (citing Rule 15(a)(2)) (internal

alterations omitted). “Thus, leave to amend ordinarily should

be denied only when amendment would be inequitable or futile.”

(Id.) “[T]hese principles apply equally to pro se plaintiffs

and those represented by experienced counsel.” Alston v.

Parker, 363 F.3d 229, 235 (3d Cir. 2004). “Futility ‘means that

the complaint, as amended, would fail to state a claim upon

which relief could be granted.’” Burtch v. Milberg Factors,

Inc., 662 F.3d 212, 231 (3d Cir. 2011) (quoting Great W. Mining

& Min. Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir.

2010)). Courts have held amendment to be inequitable where the

plaintiff already had an opportunity to amend the complaint.

Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (“[W]e are

inclined to give the District Court even broader discretion

when, as here, the court has already granted the requesting

party an opportunity to amend its complaint.”); McMahon v.

Refresh Dental Mgmt., LLC, 2016 WL 7212584, at *11 (W.D. Pa.

Dec. 13, 2016) (“The court need not provide endless

opportunities for amendment, especially where such

opportunity already has been enjoyed.”) (internal alterations

and quotation marks omitted).

II. Analysis

Plaintiffs seek to amend their Complaint in response to

Judge Kugler’s August 10, 2021 Opinion and Order. BHPRSD and

the State Defendants challenge the amendments to specific

counts. BHPRSD challenges the amendments to Counts One and

Eight and the addition of Counts Nine through Twelve Against

them.

The Court agrees that amendment to Counts One and Eight

against BHPRSD would be futile and therefore will deny the

motion to amend to add BHPRSD to those counts. Count One

alleges legal error in two due process matters before the NJDOE

and the OAL to which BHPRSD was not a party. The Court finds

that it would be futile to add BHPRSD to those counts because

the provision that allows appeal of a due process petition to

the district court makes clear that it must be based on the

underlying complaint filed before the NJDOE. A pure claim based

on legal error is more appropriately handled as an appeal than

as a separate count. The provision of the IDEA allowing appeal

of the prior decision is clear that the scope of any appeal of

the underlying action is cabined by the due process complaint.

20 U.S.C.A. § 1415(h)(2)(A) (“Any party aggrieved by the

findings and decision made under subsection (f) or (k) who does

not have the right to an appeal under subsection (g), and any

party aggrieved by the findings and decision made under this

subsection, shall have the right to bring a civil action with

respect to the complaint presented pursuant to this section,

which action may be brought in any State court of competent

jurisdiction or in a district court of the United States,

without regard to the amount in controversy.”).

Essentially, § 1415(h)(2)(A) makes clear that a party

appealing the result of a due process proceeding must base that

appeal on the underlying complaint filed in that proceeding.

The fact that Counts One and Eight suggest that BHPRSD should

have intervened in the underlying due process complaints does

not change this. (See ECF 121-2 at 55 (“BHPRSD s failed to

intervene and ensure the IEEs were considered and incorporated

into the 8/14/2018 IEPs for A.W. and R.M. This is prima facie

proof of BHPRSD’s denial of FAPE to A.W. and R.M.”)). BHPRSD

was not a party to the underlying due process proceedings and

thus is not appropriately named as a defendant in Counts One and

Eight. Therefore, the Court will deny the motion to amend to

the extent that it seeks to amend Counts One and Eight to name

BHPRSD.

That said, the Court will allow amendment of the complaint

to add claims against BHPRSD for Counts Nine through Twelve for

alleged violations of the Individuals with Disabilities

Education Act, 20 U.S.C. § 1400, et seq. (the “IDEA”), § 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., and

Title II of the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. BHPRSD is correct that generally such

claims would be inappropriate because Plaintiffs have not

exhausted their administrative remedies against BHPRSD.

However, there is an exception to that requirement where

use of the administrative system would be futile. M.M. v.

Paterson Bd. of Educ., 736 F. App'x 317, 319–20 (3d Cir. 2018)

(“There are four exceptions to the exhaustion requirement: (1)

exhaustion would be futile or inadequate; (2) the issue

presented is purely a legal question; (3) the administrative

agency cannot grant relief; and (4) exhaustion would cause

severe or irreparable harm.”) (internal quotation marks

omitted). The court is satisfied that exhaustion would be

futile based on the pleadings in the proposed complaint.

Specifically, the proposed complaint alleges that one of the due

process cases the Plaintiffs filed did not receive a final

decision until 698 days after the case was transmitted to the

OAL. (ECF 121-2 at 57). On the current record, it certainly

would seem to be an exercise in futility to require Plaintiffs

to commence a due process petition that, based on the timeline

of their last petitions, could take years to resolve.

The State Defendants argue that the Court should not allow

amendment to Count Four because it would be futile.

Specifically, they contend that Count Four, an alleged violation

of the IDEA’s procedural safeguards against the State

Defendants, is almost identical to the count that Judge Kugler

previously dismissed. They point to the allegations against

Dominic Rota that he rejected Plaintiffs’ first due process

complaint as conclusory. Plaintiffs counter that the State

Defendants filed their opposition brief late without requesting

the Court for permission to do so before the deadline and that

the Court should therefore disregard their submission. They

also argue that their amendments to Count Four addresses what

Judge Kugler specifically found lacking in their last complaint—

an explanation of how they were substantively harmed.

The Court certainly could disregard the State Defendants’

opposition as being untimely filed. U.S. Small Bus. Admin. v.

Herbst, 2011 WL 5526057, at *2 (D.N.J. Nov. 14, 2011) (declining

to consider an untimely filed submission). However, the Third

Circuit has made clear its preference that matters be decided on

the merits where possible. Kauffman v. Moss, 420 F.2d 1270,

1276 (3d Cir. 1970) (“[L]itigation, where possible, should

be decided on the merits.”) Plaintiffs’ proposed complaint adds

allegations in Count Four of how Mr. Rota’s actions caused them

substantive harm. The proposed complaint states, “Upon

information and belief NJDOE and/or Rota have rejected other due

process complaints and Emergent Relief applications without

transmitting them to an Administrative Law Judge and without a

sufficiency challenge by a party.” (ECF 121-3 at 105). This is

admittedly still thin, but taken with the rest of the

allegations in the complaint and considering what information

would be available to Plaintiffs about Mr. Rota’s activities at

this point in litigation, the Court cannot say that this

amendment is futile. Destro v. Hackensack Water Co., 2009 WL

3681903, at *2 (D.N.J. Nov. 2, 2009) (“The Court must consider

the Complaint in its entirety and review the allegations as a

whole and in context.”); Wood v. State of New Jersey, 2016 WL

4544337, at *5 n.5 (D.N.J. Aug. 31, 2016) (citing In re

Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d

Cir. 2002) (“[T]he Third Circuit has [] recognized that

pleading facts upon information and belief is permitted where

the factual information at issue is within the Defendants'

exclusive possession and control.”) Thus, the Court finds

amendment to Count Four to be appropriate.

With respect to the rest of the proposed complaint, none of

the defendants have raised arguments that leave to amend should

not be granted. The Court is not prepared to hold at this time

that amendment to the rest of the complaint would be futile or

inequitable. The record indicates that Plaintiffs have been

diligently pursuing their rights and have tailored the proposed

amendments to fit with Judge Kugler’s directives on the prior

motion to dismiss.

CONCLUSION

For the reasons stated above, the Court will grant

Plaintiffs’ Motion to Amend Complaint except with respect to the

proposal to add BHPRSD as a defendant to Counts One and Eight.

An appropriate Order will be entered.

Date: March 30, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.