STRUNK v. HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

S.S. AND M.S., individually No. 1:20-cv-13077-NLH-MJS

and on behalf of

H.S., and H.S., OPINION

Plaintiffs,

V.

HILLSBOROUGH TOWNSHIP BOARD

OF EDUCATION and NEW JERSEY

DEPARTMENT OF EDUCATION,

Defendants.

ROBERT CRAIG THURSTON

THURSTON LAW OFFICES LLC

100 SPRINGDALE ROAD A3

PMB 287

CHERRY HILL, NJ 08003

DONALD A. SOUTAR

COYLE LAW GROUP, LLP

55 MADISON AVENUE - SUITE 400

MORRISTOWN, NJ 07960

KRISTA LYNN HALEY

JOHN RUE & ASSOCIATES

37 MAIN ST.

SPARTA, NJ 07871

JOHN DOUGLAS RUE

JOHN RUE & ASSOCIATES

694 ROUTE 15 SOUTH - SUITE 206

LAKE HOPATCONG, NJ 07849

LISA MARIE QUARTAROLO

JOHN RUE & ASSOCIATES, LLC

694 ROUTE 15 SOUTH

LAKE HOPATCONG, NJ 07849

Counsel for Plaintiffs.

JACLYN MICHELLE FREY

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET - P.O. BOX 112

TRENTON, NJ 08625

Counsel for NJDOE.

VITTORIO S. LAPIRA

FOGARTY & HARA, ESQS.

21-00 ROUTE 208 SOUTH

FAIR LAWN, NJ 07410

Counsel for Hillsborough Township Board of Education.

HILLMAN, District Judge

Currently before the Court is the New Jersey Department of

Education’s (the “NJDOE”) Motion to Dismiss Plaintiffs’1

Complaint (ECF 32). For the reasons that follow, the NJDOE’s

motion will be granted in part and denied in part.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

For purposes of this motion to dismiss, the Court takes the

facts alleged in the complaint as true and will only recount

those salient to the instant motion. H.S. is a disabled child

born in 2001 who was receiving special education services from

the Hillsborough Township Public Schools District (“HTPSD”).

(ECF 9 at 9). The complaint alleges that H.S. has been

diagnosed with autism, Attention Deficit Disorder (“ADD”);

Generalized Anxiety Disorder; Major Depressive Disorder and

1 Plaintiffs are S.S. and M.S., individually and on behalf of

H.S. and H.S. individually. S.S. and M.S. are H.S.’s parents.

(See generally ECF 9).

Social Anxiety Disorder. (Id.) Plaintiffs claim that HTPSD

knew about H.S.’s autism diagnosis at all relevant times and

knew about H.S.’s ADD and anxiety since at least December 2011.

(Id.) Despite HTPSD’s knowledge of the diagnoses, Plaintiffs

contend that H.S. did not receive the proper education

placement, in part because HTPSD failed to conduct learning

assessments when it was obligated to do so. (Id.) Among other

failures, Plaintiffs contend that HTPSD was obligated to conduct

learning assessments of H.S. in 2014 and that they never

conducted such an assessment. (Id. at 10). Because of this,

H.S. was not placed in an appropriate educational program. (Id.

at 11).

Plaintiffs further allege that H.S. was subjected to severe

bullying by teachers at Hillsborough High School, particularly

the Director of Bands. (Id. at 12). The complaint details

verbal abuse by the Director and emulation of that abuse by

H.S.’s classmates. (Id. at 12-13). Ultimately, because of this

bullying and the fact that HTPSD failed to provide H.S. with an

appropriate educational program, Plaintiffs decided to withdraw

H.S. from Hillsborough High School and enroll him at Fusion

Academy. (Id. at 21). Before doing so, in August 2017,

Plaintiffs filed two “ten-day notices” with HTPSD to give HTPSD

an opportunity to try to remedy the issue. (Id.) HTPSD never

proposed a remedy during those ten-day periods and H.S. started

schooling at Fusion Academy in October 2017. (Id. at 21-22).

The complaint states that Plaintiffs ultimately filed a due

process petition with the NJDOE to resolve their grievances.

(Id. at 4). The NJDOE eventually transferred the matter to the

New Jersey Office of Administrative Law (the “OAL”) for a

hearing. (Id.) According to the complaint, the Administrative

Law Judge (the “ALJ”) who handled the hearing took over a year

to issue an opinion and when she finally did, it was so rife

with factual errors and failures to address the facts that it

shows a complete breakdown of the hearing process which the

NJDOE was responsible for maintaining. (See id. at 26, 46).

Specifically, Plaintiffs allege that the ALJ completely ignored

the testimony of certain witnesses at the hearing, improperly

shifted the burden of proof and persuasion onto Plaintiffs, and

ignored the fact that Plaintiffs gave notice of their concerns

regarding H.S.’s educational placement prior to enrolling him at

Fusion Academy. (Id. at 26-27).

Plaintiffs originally filed this matter on September 23,

2020, naming the Hillsborough Township Board of Education as the

sole defendant. (ECF 1). On February 10, 2021, Plaintiffs

filed an amended complaint, naming the NJDOE2 as a defendant.

(ECF 9). The amended complaint contains five counts against the

2 The complaint also adds the Commissioner of Education in her

official capacity to the caption but none of the counts in the

complaint implicate the Commissioner directly.

NJDOE. Count VI alleges that the State Defendants violated

Plaintiffs’ right to an impartial due process hearing under the

Individuals with Disabilities Education Act 20 U.S.C. § 1400, et

seq. (the “IDEA”) and corresponding New Jersey law, N.J.A.C.

6A:14-1, et seq. (ECF 9 at 44). Count VII alleges that the

State Defendants violated Plaintiffs’ right to a timely final

decision by the ALJ under the IDEA and attendant New Jersey law.

(Id. at 46). Count VIII alleges violation of § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (ECF 9 at

47). Count IX alleges violation of Title II of the Americans

with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the

“ADA”). (ECF 9 at 48). Finally Count X alleges a violation of

the New Jersey State Constitution via the New Jersey Civil

Rights Act, N.J.S.A. 10:6-2 (the “NJCRA”). The NJDOE moves to

dismiss the counts against it under Rule 12(b)(1) and Rule

12(b)(6).

BACKGROUND

I. The IDEA

Though Plaintiffs state claims under laws other than the

IDEA, the thrust of their complaint revolves around the

defendant’s failure to honor their responsibilities under the

IDEA. Therefore, the Court will provide some color on the IDEA

as a statutory and regulatory scheme. Congress enacted the IDEA

to, among other things, ensure “the rights of children with

disabilities and parents of such children are protected[.]” 20

U.S.C. § 1400(d)(1)(A)-(B). The IDEA requires that every child

with a disability receive a free appropriate public education (a

“FAPE”) from their public school if that school receives federal

funding under the IDEA. Id. at § 1412(a)(1)(A); 34 C.F.R. §

300.101(a). The term “free appropriate public education” means

the provision of “special education and related services” that

meet certain criteria. 20 U.S.C. § 1401(9). The IDEA also

guarantees parents of disabled children a right to participate

in the educational programming offered to their children.

To ensure that public schools adequately provide a FAPE and

that the rights of disabled students and their parents are not

infringed, Congress enacted various “procedural safeguards” that

participating public schools must comply with. Id. at §

1412(6)(A); id. at § 1415(a). One such procedural safeguard

provides standards for adjudicating disputes about whether a

school has adequately provided a FAPE. Per Congress’

requirements, these disputes begin with the filing of a “due

process petition” or “due process complaint.” Either the public

school or the child may file a due process complaint, and that

complaint may seek relief with respect to “any matter relating

to the identification, evaluation, or educational placement of

the child, or the provision of a free appropriate public

education to such child.” Id. at § 1415(b)(6). The IDEA

contemplates that it is the State Educational Agency that is

responsible for making sure that there are fair and impartial

procedures in place to handle any due process petition. Id. at

§1415 (f)(1)(A) (“Whenever a complaint has been received under

subsection (b)(6) or (k), the parents or the local educational

agency involved in such complaint shall have an opportunity for

an impartial due process hearing, which shall be conducted by

the State educational agency or by the local educational agency,

as determined by State law or by the State educational

agency.”); id. at §1415(e)(1) (“Any State educational agency or

local educational agency that receives assistance under this

subchapter shall ensure that procedures are established and

implemented to allow parties to disputes involving any matter.”)

Once a due process complaint has been filed, Congress has set

strict deadlines by which certain events must occur. See Id. at

§ 1415(f)(1)(B)(ii) (referencing timelines “applicable [to] a

due process hearing”); 34 C.F.R. § 300.515(a) (setting forth a

strict timeframe for due process petition resolution); N.J.A.C.

6A:14-2.7(j) (same). These procedures are central to the

instant matter.

Beginning with the date the due process complaint is filed,

the parties have thirty days within which to settle or otherwise

resolve the dispute to the satisfaction of the parent and child.

See 20 U.S.C. § 1415(f)(1)(B); 34 C.F.R. § 300.510(b). This

period is referred to as the “resolution period.” If the case

is not resolved during the resolution period, it may proceed to

a hearing. Congress has called these “due process hearings.”

In New Jersey, “[a] due process hearing is an administrative

hearing conducted by an administrative law judge” in the OAL.

N.J.A.C. 6A:14-2.7(a). “If the local educational agency has not

resolved the complaint to the satisfaction of the parents within

30 days of the receipt of the complaint, the due process hearing

may occur, and all of the applicable timelines for a due process

hearing under this subchapter shall commence” 20 U.S.C. §

1415(f)(1)(B)(ii); 34 C.F.R. § 300.510(b); see N.J.A.C. 6A:14-

2.7(j) (“A final decision shall be rendered by the

administrative law judge . . . after the conclusion of the

resolution period”). Once the 30-day resolution period ends,

federal regulations require that due process petitions be

decided by hearing officers within 45 days, unless either party

requests specific adjournments. 34 C.F.R. § 300.515(a) (states

receiving federal funding “must ensure that not later than 45

days after the expiration of the 30 day period under §

300.510(b) . . . (1) A final decision is reached in the hearing;

and (2) A copy of the decision is mailed to each of the

parties.”). New Jersey’s Administrative Code contains a similar

requirement. N.J.A.C. 6A:14-2.7(j) (“[a] final decision shall

be rendered by the administrative law judge not later than 45

calendar days after the conclusion of the resolution period[.]”)

Both federal and New Jersey State law permit “specific

adjournments” to be granted “at the request of either party”

which will effectively toll the 45-day period within which a

decision must be entered. See N.J.A.C. 6A:14-2.7(j) (45-day

period may only be extended if “specific adjournments are

granted by the administrative law judge in response to requests

by either party to the dispute”); 34 C.F.R. § 300.515(c) (“[a]

hearing or reviewing officer may grant specific extensions of

time beyond the periods set out in paragraphs (a) and (b) of

this section at the request of either party.”). No other delays

are contemplated. Therefore, if no specific adjournments are

requested by the parties, a final decision must be rendered

within 45 days after the end of the 30-day resolution period.

34 C.F.R. § 300.515(a); N.J.A.C. 6A:14-2.7(j). The Court refers

to this requirement as the “45 Day Rule.” With that overview,

the Court turns to Plaintiffs’ allegations.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331 and § 1367.

II. Standard of Review

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 complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

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 claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

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.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

Rule 12(b)(1) governs the NJDOE’s motion to the extent it

challenges Plaintiffs’ action on standing and immunity grounds.

“A challenge to subject matter jurisdiction under Rule 12(b)(1)

may be either a facial or a factual attack.” Davis v. Wells

Fargo, 824 F.3d 333, 346 (3d Cir. 2016). “The former challenges

subject matter jurisdiction without disputing the facts alleged

in the complaint, and it requires the court to ‘consider the

allegations of the complaint as true.’” Id. (quoting Petruska

v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). A

factual challenge attacks the allegations underlying the

complaint’s assertion of jurisdiction, “either through the

filing of an answer or ‘otherwise present[ing] competing

facts.’” Id. (quoting Constitution Party of Pa. v. Aichele, 757

F.3d 347, 358 (3d Cir. 2014)).

The Court of Appeals for the Third Circuit has held that

motions to dismiss for lack of standing are best understood as

facial attacks. In re Schering Plough Corp. Intron/Temodar

Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)

(“Defendants’ Rule 12(b)(1) motions are properly understood as

facial attacks because they contend that the [a]mended

[c]omplaints lack sufficient factual allegations to establish

standing.”). In assessing a facial attack on subject matter

jurisdiction under Rule 12(b)(1), courts must apply the familiar

12(b)(6) standard. Id. (“In evaluating whether a complaint

adequately pleads the elements of standing, courts apply the

standard of reviewing a complaint pursuant to a Rule 12(b)(6)

motion to dismiss for failure to state a claim”); see also

Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d

Cir. 2011) (“A dismissal for lack of statutory standing is

effectively the same as a dismissal for failure to state a

claim.”). Guided by In re Schering Plough and Baldwin, the

Court finds it must apply the 12(b)(6) standard to Defendants’

jurisdictional arguments.

III. Analysis

a. Counts VI and VII: Violation of the

IDEA and New Jersey Law

The NJDOE moves to dismiss Counts VI and VII on the grounds

that Plaintiff has not plausibly pled that they did not receive

an impartial due process hearing and that the NJDOE violated the

45 Day Rule. The NJDOE argues that Plaintiffs have not

plausibly pled that they did not receive an impartial due

process hearing because the NJDOE does have a dispute resolution

system in place pursuant to the IDEA. (ECF 32 at 7). They

further argue that the statutory framework and its attendant

regulations, specifically citing to 20 U.S.C. §1415(f)(3) 34

C.F.R. § 300.511, and N.J.A.C. § 6A:14-2.7(k), requires that due

process hearings be conducted by an impartial hearing officer

and that the NJDOE may not review those decision. (ECF 32 at 9-

10). With respect to Count VII, the NJDOE argues that a

violation of the 45 Day Rule is a procedural violation, not a

substantive violation under the IDEA, and therefore, Plaintiffs

have not pleaded a denial of FAPE. (Id. at 17-19). They also

argue that Count VII is precluded by the entire controversy

doctrine. (Id. at 12-17).

With respect to whether Plaintiffs have plausibly pled

enough facts to suggest that they did not receive an impartial

due process hearing and the 45 Day Rule was violated such that

there was a substantive violation of the IDEA, the Court holds

that those claims have been adequately pled. First, Plaintiffs

are correct that the IDEA is organized such that the ALJs who

conduct the due process hearings may not be employees of the

NJDOE. 20 U.S.C. §1415 (f)(3)(A)(i). But that very same

statute makes clear that it is the NJDOE who is responsible for

the infrastructure that creates such impartial due process

hearings. Id. at §1415(f)(1)(A) (“Whenever a complaint has been

received under subsection (b)(6) or (k), the parents or the

local educational agency involved in such complaint shall have

an opportunity for an impartial due process hearing, which shall

be conducted by the State educational agency or by the local

educational agency, as determined by State law or by the State

educational agency.”)

Further, the tone of § 1415 makes clear that it is the

State Educational Agency, in this case, the NJDOE, that is

responsible for the “procedures” underlying dispute resolution.

Id. at §1415(e)(1) (stating in the context of mediation that

“[a]ny State educational agency or local educational agency that

receives assistance under this subchapter shall ensure that

procedures are established and implemented to allow parties to

disputes involving any matter”). The state regulations echo

this requirement. See N.J.A.C. § 6A:14-2.7(g) (“When the Office

receives a request for a due process hearing, the matter shall

be processed and, as appropriate, mediation and a due process

hearing in accordance with this chapter will be made available

to the parties.”). Courts have made clear that it is ultimately

the state who is responsible for making sure that the due

process hearings are fair. Garden Acad. v. E.M. On Behalf of

B.M., 2021 WL 308108, at *2 (D.N.J. Jan. 29, 2021) (“Congress

gave state authorities the ‘responsibility generally for

establishing fair hearing procedures.’”) (quoting Schaffer ex

rel. Schaffer v. Weast, 546 U.S. 49, 54 (2005)). Thus, the

NJDOE’s hand waiving that due process hearings must be conducted

by an impartial ALJ misses that point. Indeed, such hearings

must be conducted by an impartial ALJ, but the NJDOE has the

responsibility to make sure that the overall procedure for such

hearings are set up in a fair and impartial manner. The NJDOE

may not outsource its statutory obligations under federal law.

Plaintiffs do not spell out exactly how the NJDOE fell

short of this responsibility in a concise allegation, which, to

be sure, would have been helpful. However, the standard under

Rule 12(b)(6) is whether the allegations in the complaint as a

whole state a plausible claim. See Kedra v. Schroeter, 876 F.3d

424, 441 (3d Cir. 2017) (“To make this assessment on a Rule

12(b)(6) motion, “courts must consider the complaint in its

entirety. . . The inquiry, as several Courts of Appeals have

recognized, is whether all of the facts alleged, taken

collectively, give rise to a strong inference of [a claim], not

whether any individual allegation, scrutinized in isolation,

meets that standard.”) (internal citations and quotation marks

omitted) (emphasis in original); see also 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.”)

Here, Plaintiffs specifically alleged that “The ALJ’s (as

an agent of defendant NJDOE) complete failure to address the

substance of the Parent’s complaint comprised a failure of NJDOE

to provide the Parents with an impartial due process hearing, as

required by the IDEA.” (ECF 9 at 6). The rest of the complaint

repeatedly outlines the NJDOE’s responsibility to maintain

appropriate due process hearing procedures and alleges that the

ALJ’s mistakes were so egregious that they amounted to a breach

of the NJDOE’s responsibility to provide adequate procedures.

(Id. at 18) (“The ALJ’s gross misstatement of facts on the

record goes beyond a mere error of fact or law. It is an abject

failure by the agent of NJDOE to conduct an adequate “due

process hearing.”) At this point the Court need not decide the

veracity of this allegation, but merely satisfy itself that

Plaintiffs have stated claims such that discovery might bear out

their allegations. Frazier v. Morristown Mem'l Hosp., 767 F.

App'x 371, 375 (3d Cir. 2019) (“In reviewing a District Court's

decision to grant a Rule 12(b)(6) dismissal, we look for ‘enough

facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary elements of’ a claim for

relief.”) (internal quotation marks omitted). The Court is

satisfied that Plaintiffs have pleaded Count VI sufficiently

such that it will deny the NJDOE’s motion to dismiss on this

count.

The Court will also deny the NJDOE’s motion to dismiss

Count VII alleging a violation of the 45 Day Rule. Like the

responsibility to create procedures for an impartial due process

hearing, the IDEA makes the NJDOE responsible for timely

resolution of due process hearings. 34 C.F.R. § 300.515(a)

(states receiving federal funding “must ensure that not later

than 45 days after the expiration of the 30 day period under §

300.510(b) . . . (1) A final decision is reached in the hearing;

and (2) A copy of the decision is mailed to each of the

parties.”); see also N.J.A.C. § 6A:14-2.7(j) (“A final decision

shall be rendered by the administrative law judge not later than

45 calendar days after the conclusion of the resolution

period[.]”)

Plaintiffs have plausibly stated a claim that the NJDOE

violated the 45 Day Rule. The complaint specifically states

that the NJDOE “has failed, and continues to fail to ensure, the

timely resolution of special education disputes, as required by

federal and state law.” (ECF 9 at 46). It then goes on to state

that 505 days went by between the filing of the due process

petition and the final resolution of Plaintiffs’ claims. (Id.)

The NJDOE contends that these allegations amount at most to a

procedural violation of the IDEA for which there is no remedy.

(ECF 32 at 18). This Court has already made abundantly clear

that violations of the 45 Day Rule can be so egregious that they

cross the line from procedure into substance and become

actionable. C.P. v. New Jersey Dep't of Educ., 2020 WL 2611572,

at *8 (D.N.J. May 22, 2020) (“In this case, the Court finds that

Plaintiffs have asserted a plausible claim that the delays

experienced by the Former NJOAL Plaintiffs and the Doe Family

crossed the line from minor, non-actionable delays

to delays so significant that they deprived disabled students

and their parents of the substantive rights guaranteed to them

by the IDEA.”) Plaintiffs’ allegation that it took 505 days to

resolve their due process complaint, (ECF 9 at 46), clearly

crosses the line from procedural to substantive.3

Defendants’ final argument with respect to Count VII is

that it is barred by the entire controversy doctrine because of

the pendency of C.P. v. New Jersey Dep't of Educ., No. 19-cv-

12807, (D.N.J. 2019) (the “C.P. Docket”). The Court disagrees.

As a threshold matter, the fact that Plaintiffs already have

3 The NJDOE argues that Plaintiffs are not entitled to

compensatory damages because they are not available for

procedural violations of the IDEA. However, where the

procedural violations alleged are serious enough that they cross

into the substantive territory, compensatory damages are

available. See C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59,

66 (3d Cir. 2010) (“A plaintiff who alleges the denial of a FAPE

may seek compensatory relief in the form of appropriate

educational services within the district (referred to as

‘compensatory education’) or tuition reimbursement for an

appropriate placement in private school.”); C.P., 2020 WL

2611572 at *8.

claims pending related to the 45 Day Rule does not act as a per

se bar to asserting a similar claim here. Rycoline Prod., Inc.

v. C & W Unlimited, 109 F.3d 883, 889 (3d Cir. 1997)(“[W]e hold

that the Entire Controversy Doctrine does not preclude the

initiation of a second litigation before the first action has

been concluded.”); Youssef v. Dep't of Health & Sr. Servs., 524

F. App'x 788, 791 (3d Cir. 2013) (discussing Rycoline and noting

that the New Jersey Supreme Court had since left open Rycoline’s

holding that the existence of a pending case does not bar the

initiation of another case). C.P., which Defendants point to,

has not concluded.

Further, the Court sees good prudential reason to allow

Count VII to proceed. The Court takes seriously the general

principle put forward by the New Jersey Supreme Court that

courts should apply the entire controversy doctrine “to the

extent possible.” Cogdell by Cogdell v. Hosp. Ctr. at Orange,

116 N.J. 7, 26, 560 A.2d 1169, 1178 (1989) (“Accordingly, we now

hold that to the extent possible courts must determine an entire

controversy in a single judicial proceeding and that such a

determination necessarily embraces not only joinder of related

claims between the parties but also joinder of all persons who

have a material interest in the controversy.”) In so holding,

though, the New Jersey Supreme Court noted that the entire

controversy doctrine was not “unbounded” and that it should not

be applied to the detriment of “a clear presentation of the

issues and just result.” Id. at 27. It also need not be

applied in favor of “monolithic adjudications.” Id. Ultimately

the application of the doctrine is “‘left to judicial discretion

based on the factual circumstances of individual cases.’” Aragon

Partners LP v. HDOX Bioinformatics, Inc., 2018 WL 1370661, at *6

(N.J. Super. Ct. App. Div. Mar. 19, 2018) (quoting Oliver v.

Ambrose, 152 N.J. 383, 395 (1998)). “The doctrine's joinder

requirements may be relaxed on the grounds of equitable

considerations.” Id. Ultimately, the “application of the entire

controversy doctrine is ‘equitable in nature’ and based

substantially on ‘judicial fairness,’ meaning that the Court

must balance considerations of judicial efficiency as well as

fairness to the litigants.” Rogers v. Rushmore Loan Mgmt.

Servs., LLC, 2021 WL 1921586, at *2 (D.N.J. May 13, 2021).

The facts and procedural history of this case as well as

that of C.P. do not compel the application of the entire

controversy doctrine to bar Count VII at least not at this

juncture. First, C.P., and Plaintiffs’ claims raised in that

matter, have not been adjudicated, including disputes over class

certification. Moreover, Plaintiffs received a decision on

their due process proceeding after this Court had rendered its

decision on the motion to dismiss the Second Amended Complaint

in C.P. which may have an effect on the range of remedies

available to these Plaintiffs in this matter if they prevail.

(See ECF 9 at 46; C.P. Docket, ECF 98). The NJDOE contends that

Plaintiffs should have just moved to amend the Second Amended

Complaint in C.P. (ECF 32 at 13-14). The Court finds that

suggestion unrealistic after the complaint in C.P. had already

been amended twice and had been pending for a year. (See C.P.

Docket).

It is simply too early to determine give the breadth and

scope of Plaintiffs’ claims in this matter and the overall

claims in C.P. to foreclose potentially valid claims because of

a rigid application of judge-made rules. Such a result does not

vindicate the entire controversy, it undermines it. Vision

Mortg. Corp. v. Patricia J. Chiapperini, Inc., 156 N.J. 580,

585, 722 A.2d 527, 529 (1999) (“One of the goals of the entire

controversy doctrine is the efficient judicial administration of

multiple claims. That is better accomplished when courts possess

the facts upon which to base case-management decisions.”) At

this time, the Court holds that it is not appropriate to

construe the entire controversy doctrine so as to require

dismissal of Count VII at this early stage of the litigation.

b. Counts VIII and IX: Violation of the ADA and § 504

The NJDOE also moves to dismiss Count VIII, violation of §

504, and Count IX, violation of the ADA. They argue that

dismissal of Counts XIII and IX is appropriate because the

claims require a showing “that the disabled person was denied

access to a service, program, or activity of the state on the

basis of their disability.” (ECF 32 at 22). Plaintiffs counter

that their complaint alleges that the NJDOE’s dereliction of

their duties to provide proper special education dispute

resolution procedures was so egregious that they “constructively

closed the courtroom doors to Plaintiffs.” (ECF 35 at 26).

To state a claim of violation Title II of the ADA or § 504,

“a plaintiff must show that he is a qualified individual with a

disability; that he was excluded from a service, program, or

activity of a public entity; and that he was excluded because of

his disability.” Disability Rts. New Jersey, Inc. v. Comm'r,

New Jersey Dep't of Hum. Servs., 796 F.3d 293, 301 (3d Cir.

2015); Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 288

(3d Cir. 2019) (noting that the substantive standards for both

claims are the same). The parties do not appear to dispute that

H.S. is a qualified individual with a disability. (See ECF 32,

35). Rather, the crux of the dispute is whether Plaintiffs were

deprived of something they otherwise were entitled to as a

result of H.S.’s disability. The complaint clearly states that

“NJDOE is prohibited from excluding students with disabilities

from participating in or receiving the benefits of a school’s

services, programs, or activities, and such exclusion

constitutes disability discrimination” and that the flawed

dispute resolution procedures that the NJDOE put in place

resulted in a “discriminatory outcome.” (ECF 9 at 47-48).

This, with the rest of the allegations in the complaint, is

enough to satisfy the Court that Plaintiffs are entitled to

proceed with their ADA and § 504 claims. Indeed, the Supreme

Court has noted that an action may lie for violation of the ADA

and § 504 where the facts arise out of an alleged violation of

the IDEA. Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 750, 197

L. Ed. 2d 46 (2017) (“[T]he IDEA does not prevent a plaintiff

from asserting claims under such laws even if. . .those claims

allege the denial of an appropriate public education (much as an

IDEA claim would).”) Plaintiffs’ complaint alleges that the

NJDOE’s flawed procedures pervaded the dispute resolution system

to the extent that they effectively barred H.S. from receiving

the same educational benefits as other children. (See ECF 9 at

48).

The NJDOEs characterize the allegations of violation of §

504 and the ADA as conclusory, focusing on statements like the

above-quoted allegations. Plaintiffs certainly could have plead

their claims more artfully, neatly tying together how the

NJDOE’s flawed procedures constituted discrimination or some

sort of disparate impact in compact phraseology. But this Court

reads the allegations in the complaint as a whole and the

allegations read in that light tell a story of due process

procedures so deficient that Plaintiffs were not able to place

their child in the right educational setting, a benefit that

non-disabled children were readily receiving. Destro, 2009 WL

3681903, at *2 (noting that a complaint must be read as a whole

and in context).

The NJDOE also argues that Plaintiffs, as H.S.’s parents

lack standing to state ADA and § 504 claims against them on

their own behalf, because they, themselves, are not disabled.

(ECF 32 at 22 n.6). They cite to D.A. ex rel. K.A. v.

Pleasantville Sch. Dist., 2008 WL 2684239, at *6 (D.N.J. June

30, 2008) for the proposition that the parents here do not have

associational standing. This appears to be a facial attack of

the Court’s subject matter jurisdiction under Rule 12(b)(1) and

the Court applies the Rule 12(b)(6) standard. In re Schering

Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d at

243. It is a close question, but the Court holds that H.S.’s

parents have stated a claim for violation of their rights under

§ 504 or the ADA. To state a claim for associational

discrimination under § 504 or the ADA, “a plaintiff must

experience direct discrimination, and that the benefit must be

separate and distinct and not merely derivative of the benefit

to a disabled person[.]” United States v. Nobel Learning

Communities, 2017 WL 4697050, at *8 (D.N.J. Oct. 19, 2017).

Nobel Learning Communities held that where a child was denied

daycare services, the child’s parents were harmed because it

deprived them of “otherwise unavailable time apart from their

children.” Id. The situation is similar here, where Plaintiffs

allege that because of the delays occasioned by the NJDOE’s

procedures caused them to expend more than necessary on legal

fees and “NJDOE failed to provide H.S. and his parents an

impartial due process hearing, as required by federal law, and

resulting in a discriminatory outcome.” (ECF 9 at 47-48).

Plaintiffs essentially claim that H.S.’s parents had to expend

time and resources that could have been used elsewhere were it

not for the NJDOE’s failures.

While this portion of the pleading is admittedly

“barebones” as it was in Nobel Learning Communities, it is

“axiomatic” that impartial and timely due process hearing

procedures exist in part so that parents do not lose time and

money in getting their child in the appropriate educational

program. Nobel Learning Communities, 2017 WL 4697050 at *8.

Indeed, D.A., on which the NJDOE relies, contemplated that there

could be a way to plead that parents of a disabled child were

harmed under § 504 and the ADA. D.A. stated, “Here, as

individuals with a relationship to a person with a known

disability, D.A. and K.A. could have a cause of action under the

ADA and the Rehabilitation Act[.]” D.A., 2008 WL 2684239 at *6;

see also Addiction Specialists, Inc. v. Twp. of Hampton, 411

F.3d 399, 405 (3d Cir. 2005) (abrogated on other grounds by PDX

N., Inc. v. Comm'r New Jersey Dep't of Lab. & Workforce Dev.,

978 F.3d 871 (3d Cir. 2020)) (“[T]he enforcement provisions of

the ADA and RA do not limit relief to ‘qualified individuals

with disabilities.’”)4 Thus, the Court declines the NJDOE’s

invitation to dismiss Counts VIII and IX.

c. Count X: Violation of the NJCRA

The Court will dismiss Count X, the claim for violation of

the NJCRA. The NJDOE argues that it is entitled to Eleventh

Amendment immunity for that claim and Plaintiffs do not contest

that point. (ECF 32 at 25). The Court will not allow

Plaintiffs an opportunity to amend Count X, because such

amendment would be futile.

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

4 Addiction Specialists dealt specifically with the standing of a

methadone clinic to bring claims regarding discrimination in

town zoning ordinances rather than the standing of a parent of a

disabled client to bring an associational claim. 411 F.3d at

402-03.

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).

Here, the Court holds that amendment would be futile

because Count X seeks damages directly against the NJDOE (ECF

50-52) and such a damages claim is barred by the Eleventh

Amendment. Courts have made clear that the Eleventh Amendment

does not allow damages claims under the NJCRA to proceed against

the state. Docherty v. Cape May Cty., 2017 WL 3528979, at *4

(D.N.J. Aug. 15, 2017) (“Thus, the Court dismisses the § 1983

and NJCRA claims for damages against Lanigan in his official

capacity, based on Eleventh Amendment immunity.”); Rashid v.

Lanigan, 2018 WL 3630130, at *10 (D.N.J. July 31, 2018)

(“Plaintiffs’ claims seeking declaratory relief as to, and

monetary damages from, Defendants in their official capacities

are dismissed with prejudice as barred by Eleventh Amendment

immunity[.]”)

And courts in this district have made clear that the NJDOE

is an arm of the state for Eleventh Amendment purposes. Wright

v. New Jersey/Dep't of Educ., 115 F. Supp. 3d 490, 494 (D.N.J.

2015) (“The Department of Education is considered an arm of the

state government for purposes of determining sovereign immunity

under the Eleventh Amendment.”); ASAH v. New Jersey Dep't of

Educ., 2017 WL 2829648, at *7 (D.N.J. June 30, 2017) (“For the

purposes of the Eleventh Amendment, the DOE is an arm of the

state government.”) Given that Plaintiffs do not contest

dismissal of Count X, and because Eleventh Amendment immunity

bars Plaintiffs’ damages claim under Count X against the NJDOE,

the Court will dismiss that count without leave to amend.

CONCLUSION

For the reasons expressed in this Opinion, the NJDOE’s

motion to dismiss (ECF 32) will be granted in part and denied in

part. An appropriate Order will be entered.

Date: March 16, 2022__ __s/ Noel L. Hillman_____

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