B.L. v. FETHERMAN

Not For Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

B.L., individually and on behalf of J.L., his Civil Action No. 22-3471

minor child at all pertinent times, and on

behalf of all similarly situated students, OPINION & ORDER

Plaintiff,

v.

MICHAEL J. FETHERMAN, et al.,

Defendants.

John Michael Vazquez, U.S.D.J.

In this civil rights matter, Plaintiff challenges a school district’s response to George Floyd’s

murder and the national backlash. Multiple motions are currently pending before the Court. First,

Defendants filed a motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). D.E. 6. Second, Plaintiff appeals Magistrate Judge Jessica S.

Allen’s February 8, 2023 Opinion and Order denying Plaintiff’s motion to proceed by pseudonym.

Plaintiff also seeks to stay enforcement of Judge Allen’s Order until this Court decides Defendants’

Rule 12 motion. D.E. 24. Defendants oppose Plaintiff’s appeal and filed a cross-motion seeking

to dismiss the matter pursuant to Federal Rule of Civil Procedure 41(b). D.E. 25. The Court

reviewed the parties’ submissions1 and considered the appeal and motions without oral argument

1 The Court refers to Plaintiff’s brief in support of his appeal and stay as “Plf. Br.” (D.E. 24-1);

Defendants’ brief in opposition to the appeal and in support of their cross-motion as “Defs. Opp.”

(D.E. 25-1); and Plaintiff’s reply brief as “Plf. Reply” (D.E. 35). The Court refers to Defendants’

pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow, Plaintiff’s

appeal is DENIED, Defendants’ cross-motion to dismiss is DENIED without prejudice but their

Rule 12 motion to dismiss is GRANTED, and the motion to stay is DENIED as moot.

I. FACTUAL2 AND PROCEDURAL BACKGROUND

In the wake of George Floyd’s murder, the Mountain Lakes School District (“MLSD”)

allegedly initiated “anti-racist” programming. Am. Compl. ¶¶ 1-2, 6, 37. According to Plaintiff,

the anti-racism pedagogy includes teaching that white children are informed that they are racially

superior, race conversations are necessary to interrupt racial biases that white children are forming,

and the role of white people in perpetuating racism. Id. ¶ 2. Plaintiff’s son J.L. is Caucasian, and

during the events at issue, was a student at Mountain Lakes High School. Id. ¶¶ 14-15. Plaintiff

maintains that the anti-racism teaching is discriminatory and illegal. Id. ¶ 10.

On June 6, 2020, Defendant Frank Sanchez, the then principal of Mountain Lakes High

School, emailed parents a communication incorporating anti-racism pedagogy. Am. Compl. ¶¶

20, 37-42. Sanchez sent a video to students the same day that addressed anti-racism concepts and

“compel[ed] students to attend rallies for the Black Lives Matter political movement.” Id. ¶¶ 44-

45. B.L. “politely reached out” to Sanchez to express his belief that Sanchez’s communications

violated MLSD policies in addition to state and federal law. Id. ¶ 46. Sanchez did not respond to

the email. Id. ¶ 48. Instead, Sanchez promoted an event on June 16, 2020 that incorporated the

anti-racist curriculum. Id. ¶ 47. On June 17, 2020, the Mountain Lakes Educational Foundation,

Rule 12 motion as “Rule 12 Br.” (D.E. 6-1); Plaintiff’s brief in opposition to the Rule 12 motion

as “Rule 12 Opp.” (D.E. 20); and Defendants’ reply brief as “Rule 12 Reply” (D.E. 21).

2 The factual background is taken from Plaintiff’s Amended Complaint. D.E. 5. When reviewing

a Rule 12(b)(6) motion to dismiss, a court accepts as true all well-pleaded facts in a complaint.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

in partnership with the MLSD, held a two-hour webinar that focused on white privilege and anti-

racism. Id. ¶ 53. The webinar was subsequently distributed to the entire school community. Id.

¶ 54.

On June 13, 2020, B.L. sent an email to the Individual Defendants3 explaining why the

anti-racism curriculum violated MLSD policy and the law. Id. ¶¶ 48-51. After no Defendant

responded to his email, B.L. sent a follow-up email on June 16, 2020 that reiterated his views,

specifically as to the “impropriety of MLSD’s endorsement of [the] webinar.” Id. ¶ 52. Defendant

Beth Azar, the then Acting Superintendent, “finally responded to B.L.’s emails on June 18, 2020.”

Id. ¶¶ 18, 55. In her email, Azar stated that she felt the contents of the webinar did not compromise

MLSD policies. Id. ¶ 55. B.L. replied to Azar on June 18, 2020, asking if she would have a

conversation with B.L. and his attorney. B.L. followed up with Azar on July 3, 2020 because she

had not sent another email, prompting her to respond to his request for a meeting. Id. ¶¶ 56-57.

Beginning on June 23, 2020, MLSD administrators “began an email dialogue” with a group

of former and current students who supported the anti-racism curriculum. Id. ¶ 58. These

communications continued for months. Id. ¶ 59. During the same time, B.L. “and another

gentleman” tried to engage in discussions with the Individual Defendants about objections to the

anti-racism curriculum. Id. ¶ 60.

Defendant Michael J. Fetherman became Superintendent for the new school year. As

Superintendent, Fetherman met with B.L. on several occasions. Id. ¶ 63. Several weeks after these

meetings, MLSD began to promote a second webinar involving the anti-racist curriculum. B.L.

3 The Individual Defendants include the current Superintendent of the MLSD, the former Acting

Superintendent, the Assistant Superintendent, Sanchez, and members of the Mountain Lakes

Board of Education (the “Board”). Am. Compl. ¶¶ 17-32. Plaintiff also assert claims against the

Board. Id. ¶ 33.

subsequently sent Fetherman an email “asserting his disappointment” with Fetherman after their

conversations, and Fetherman responded. Id. ¶ 65. B.L. followed with a series of questions, but

Fetherman did not respond. The advertised webinar occurred on November 16, 2020. Id. ¶¶ 66-

67. B.L. sent an email to the Individual Defendants after the webinar and received a response from

the MLSD’s attorney. Id. ¶ 68. B.L. subsequently attended another meeting at the MLSD

attorney’s request. Fetherman; Defendant Joanne Calabria Barkauskas, President of the Board;

and B.L.’s attorney also participated. Id. ¶ 71. At the meeting, Barkauskas asked B.L. about his

desired outcome. B.L. then submitted a written response of proposed solutions that “would help

in correcting the illegal actions that had occurred.” Id. ¶¶ 71-72. B.L. never received a response

to his written demands. Id. ¶ 72.

Plaintiff filed his initial Complaint on June 6, 2022, D.E. 1, and filed the Amended

Complaint on July 1, 2022, D.E. 5. In the Amended Complaint, B.L. asserts Counts One through

Four and the Eighth Count on J.L.’s behalf. B.L. asserts Counts Five through Seven as well as

Nine and Ten on his own behalf. On July 20, 2022, Defendants filed a motion to dismiss the

Amended Complaint pursuant to Federal Rule of Civil Procedure 12. Defendants maintain that

B.L. lacks standing to assert claims on J.L.’s behalf, seeking dismissal under Federal Rule of Civil

Procedure 12(b)(1). Defendants also contend that remaining claims must be dismissed under

Federal Rule of Civil Procedure 12(b)(6). D.E. 6.

In addition, Plaintiff and his son, who are only referred to by their initials, sought leave to

proceed under their pseudonyms pursuant to Federal Rule of Civil Procedure 10(a). D.E. 10. B.L.

contends that he received threats because of the claims he asserts in the instant matter, causing him

to fear for his and J.L.’s safety. Moreover, J.L. was a student at Mountain Lakes High School and

a minor when most of the relevant events occurred. Am. Compl. ¶ 15; Plf. Br. at 7. As a result,

Plaintiff maintains that because this matter involves the interests of minors, including J.L.’s at the

time, he and J.L. should be allowed to proceed anonymously. Plf. Br. at 7. Judge Allen denied

Plaintiff’s motion and ordered that Plaintiff and J.L. file an amended pleading disclosing their

identities by February 24, 2023. D.E. 22, 23. On February 22, 2023, Plaintiff filed the instant

appeal. D.E. 24. Plaintiff has not filed an amended complaint, and instead seeks to stay Judge

Allen’s Order requiring an amended complaint until this Court decides Defendants’ Rule 12

motion. Id. On March 6, 2023, Defendants filed a cross-motion to dismiss pursuant to Federal

Rule of Civil Procedure 41(d) because of Plaintiff’s failure to comply with Judge Allen’s Order.

D.E. 25.

II. CROSS-MOTION TO DISMISS

Defendants contend that their cross-motion to dismiss is a threshold issue that must be

addressed before the Court reaches the merits of Plaintiff’s appeal. Defs. Opp. at 2-5. “A

defendant may move to dismiss a claim against him [under Rule 41(b)] where ‘the plaintiff fails

to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order.’”4

Hildebrand v. Allegheny County, 923 F.3d 128, 131-32 (3d Cir. 2019) (quoting Fed. R. Civ. P.

41(b)). Judge Allen ordered Plaintiff to file an amended complaint that discloses his and J.L.’s

identities by February 24, 2023. See Feb. 8 Opinion at 13, D.E. 22. Plaintiff did not file an

amended pleading but instead filed the instant appeal and motion to stay. D.E. 24.

In most cases, appealing a non-dispositive decision of a magistrate judge

4 A court typically determines whether to dismiss a matter pursuant to Rule 41(b) using the factors

set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 2011). See Doe v.

Megless, 654 F.3d 404, 411 (3d Cir. 2011). In Megless, however, the Third Circuit stated that if a

party refuses to comply with an order requiring the party to disclose his identity, “dismissal

pursuant to Rule 41(b) is appropriate, even without consideration of the Poulis factors.” Id. The

Court further explained that such a position “makes adjudication of the case impossible.” Id.

does not operate to stay the order pending to a Judge. A stay of a Magistrate

Judge’s order pending appeal must be sought in the first instance from the

Magistrate Judge whose order has been appealed, upon due notice to all

interested parties.

L. Civ. R. 72.1(c)(1)(B). Plaintiff did not seek a stay from Judge Allen but has since filed a motion

to stay Judge Allen’s Order nunc pro tunc. D.E. 28. The Third Circuit emphasizes that “[w]ithout

a doubt, cases should be decided on the merits barring substantial circumstances in support of the

contrary outcome.” See Hildebrand, 923 F.3d at 132. Moreover, “dismissal is a harsh sanction

which should be resorted to only in extreme cases.” Coulter v. Paul Laurence Dunbar Cmty. Ctr.,

765 F. App’x 848, 853 (3d Cir. 2019) (quoting Dyotherm Corp. v. Turbo Mach. Co., 392 F.2d 146,

148-49 (3d Cir. 1968)). Although Plaintiff did not follow the Local Rules of Civil Procedure in

seeking a stay, Plaintiff moved for a stay before Judge Allen’s deadline and has since attempted to

fix his error. Accordingly, the drastic sanction of dismissal is not appropriate. Defendants’ cross-

motion is denied, and the Court will consider the merits of Plaintiff’s appeal.

III. MAGISTRATE JUDGE APPEAL

A magistrate judge may hear and determine any non-dispositive pretrial matter pursuant to

28 U.S.C. § 636(b)(1)(A). A district court may only reverse a magistrate’s decision on these

matters if it is “clearly erroneous or contrary to law.” Id.; Fed. R. Civ. P. 72(a); L. Civ. R.

72.1(c)(1)(A). A district court’s review of a dispositive order is de novo. Wag Acquisition, LLC

v. Gattyán Grp. S.à.r.l., No. 14-2832, 2020 WL 5105194, at *2 (D.N.J. Aug. 31, 2020). A litigant’s

right to proceed anonymously is not a dispositive issue. Accordingly, the Court applies the clearly

erroneous standard. See Doe v. Hartford Life & Accident Ins. Co., 237 F.R.D. 545, 548 (D.N.J.

2006); Doe v. College of N.J., No. 19-20674, 2020 WL 3604094, at *2 (D.N.J. July 2, 2020).

“[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Under this standard, a district court “will not

reverse the magistrate judge’s determination even if the court might have decided the matter

differently.” Bowen v. Parking Auth. of City of Camden, No. 00-5765, 2002 WL 1754493, at *3

(D.N.J. July 30, 2002). A decision is contrary to law “if the magistrate judge has misinterpreted

or misapplied applicable law.” Gunter v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164

(D.N.J. 1998).

In her February 8 Opinion, Judge Allen applied the standard adopted by the Third Circuit

in Doe v. Megless, 654 F.3d 404 (3d Cir. 2011). Feb. 8 Opinion at 3-13. As explained by Judge

Allen, the Megless court instructed district courts to use a multi-factor balancing test to determine

whether a party can proceed under a pseudonym. Id. at 3-4. Plaintiff does not argue that Judge

Allen applied an incorrect standard, rather Plaintiff contends that Judge Allen failed to

appropriately consider certain factors. Plf. Br. at 6-13; Plf. Reply at 5. Plaintiff essentially relies

on the same arguments presented to Judge Allen in his initial brief. See Plf. Br. at 3-13. Thus, it

appears that Plaintiff seeks for this Court to disregard Judge Allen’s conclusions and consider the

balancing test de novo. A “simple disagreement with the magistrate judge’s findings” is generally

“insufficient to meet the clearly erroneous standard of review.” United States v. Nobel Learning

Cmtys., 329 F.R.D. 524, 527 (D.N.J. 2018) (quoting Andrews v. Goodyear Tire & Rubber Co.,

Inc., 191 F.R.D. 59, 68 (D.N.J. 2000)); see also Omojola v. ARC of Ocean Cnty, No. 19-20354,

2022 WL 1055482, at *4 (D.N.J. Mar. 16, 2022) (denying appeal that “rehashes the same

arguments denied by the Magistrate Judge, expecting a different result”). Even though the Court

could deny Plaintiff’s motion on these grounds alone, Plaintiff’s appeal is also denied on

substantive grounds.

Plaintiff argues that due to the Internet, disclosing J.L.’s name will expose J.L. to danger.

Plf. Reply at 5. Judge Allen considered this factor at length. Feb. 8 Opinion at 7-10. Outside of

disagreeing with Judge Allen, Plaintiff does not identify any errors in Judge Allen’s well-reasoned

conclusion. As a result, the Court will not disturb her decision that this factor fails to support

Plaintiff’s motion.

Plaintiff also contends that this Court should reverse Judge Allen because he “likely will

dismiss some or all of the Amended Complaint” if he and J.L. are required to reveal their identities.

Plf. Reply at 5. The fifth Megless factor considers whether the litigant would “potentially sacrifice

a valid claim simply to preserve their anonymity.” Megless, 654 F.3d at 410. In her opinion,

Judge Allen noted that “Plaintiff did not indicate whether they would dismiss the case if required

to continue to litigate their claims” and “presume[d] Plaintiff would choose to continue” with the

matter. Feb. 8 Opinion at 11. Accordingly, Judge Allen determined that the factor was neutral.

Id. Plaintiff’s current assertion as to his plan to dismiss claims does not alter the ultimate outcome

of the Megless balancing test.5 A plaintiff’s “refusal to litigate openly by itself cannot outweigh

the public’s interest in open trials.” Megless, 654 F.3d at 410-11. In fact, in Megless, “[o]nly the

fifth factor weigh[ed] in favor of allowing Doe to proceed anonymously.” Id. at 411. The Third

5 There is no reason why Plaintiff was unable to make this argument before Judge Allen and he

fails to explain why he did not do so. In addition, Plaintiff did not make this argument to this

Court until his reply. Typically, courts consider arguments raised for the first time on appeal as

waived. See In re Nat’l Collegiate Student Loan Trusts 2003-1, 2004-1, 2004-2, 2005-1, 2005-2,

2005-3, 971 F.3d 433, 444 (3d Cir. 2020) (“Arguments not presented to a magistrate judge and

raised for the first time in objections to the magistrate’s recommendations are deemed waived”).

Courts also routinely fail to consider arguments first raised in reply. See Cobra Enters., LLC v.

All Phase Servs., Inc., No. 20-4750, 2020 WL 2849892, at *1 (D.N.J. June 1, 2020) (“As a matter

of procedure, this Court will not accept arguments offered for the first time in the reply brief, as

they were not properly asserted in the opening brief and Plaintiffs have not had the opportunity to

respond to them.”). Despite Plaintiff’s failure to appropriately raise this argument, the Court still

addresses it because Plaintiff’s appeal pertains to stated privacy and safety concerns.

Circuit, however, explained that this factor alone was insufficient to allow the plaintiff to proceed

anonymously. Id. at 410-11. Here, Judge Allen determined that none of the other factors supported

anonymity. Accordingly, Plaintiff cannot proceed anonymously on this basis alone.

Consequently, even with this new information, Judge Allen’s conclusion that B.L. and J.L. cannot

proceed by their initials is not clearly erroneous. Plaintiff’s appeal is denied.

IV. RULE 12 MOTION TO DISMISS

A. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a count

for “failure to state a claim upon which relief can be granted[.]” To withstand a motion to dismiss

under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible when

there is enough factual content “that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although the plausibility standard “does not impose a probability requirement, it does require a

pleading to show more than a sheer possibility that a defendant has acted unlawfully.” Connelly

v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations

omitted). A plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery

will uncover proof of [his] claims.” Id. at 789.

In evaluating the sufficiency of a complaint, a district court must accept all well-pled

factual allegations in the complaint as true and draw all reasonable inferences in favor of the

plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is

“not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions

disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,

after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no

relief could be granted under any set of facts consistent with the allegations, a court may dismiss

the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., LLC, No. 10-

2945, 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).

Defendants assert their standing arguments pursuant to Rule 12(b)(1). Constitutional

standing implicates a court’s subject matter jurisdiction, thus “is properly brought pursuant to Rule

12(b)(1).” Const. Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). Here, Defendants

raise a prudential standing inquiry. See Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (explaining

that whether a party can assert claims for others does “not focus on the constitutional minimum of

standing, which flows from Article III’s case-or-controversy requirement”). The prudential

standing doctrine is judge-made and not a component of Article III constitutional standing. Potter

v. Cozen & O’Connor, 46 F.4th 148, 154 (3d Cir. 2022). Accordingly, the Court addresses this

issue through the lens of Rule 12(b)(6). See id. at 157 (explaining that because shareholder

standing was a prudential rule, the district court should have treated the motion to dismiss on these

grounds as a Rule 12(b)(6) motion).

B. Analysis

1. Standing

Defendants maintain that B.L. lacks standing to assert claims on J.L.’s behalf. Rule 12 Br.

at 9-14. Generally, “[a] litigant must assert his or her own legal rights and interests and cannot

rest a claim to relief on the legal rights or interest of third parties.” Powers v. Ohio, 499 U.S. 400,

410 (1991). In some circumstances, however, it is appropriate to grant standing to a third party to

assert the rights of another. Courts consider two factors in deciding whether third party standing

is appropriate: (1) “whether the party asserting the right has a ‘close’ relationship with the person

who possesses the right;” and (2) if “there is a ‘hinderance’ to the possessor’s ability to protect his

own interest.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (internal quotations omitted).

As discussed, B.L. pleads that he is bringing claims on his own behalf, and on behalf of

J.L. and all similarly situated MLSD students. Am. Compl. ¶ 14. Counts One through Four and

Eight involve alleged harm to J.L. and similarly situated students. See, e.g., id. ¶ 86 (alleging that

Defendants violated Title VI of the Civil Rights Act, which damaged J.L. and similarly situated

students); ¶ 91 (alleging that Defendants created a hostile education environment related to race

and skin color in violation of 42 U.S.C. § 1981). Plaintiff further pleads that J.L. “was a minor

during all or most of the relevant events which are set forth herein.” Id. ¶ 15. Plaintiff argues that

because J.L. was a minor for much of the alleged wrongful conduct, B.L. can continue to assert

his claims in a representational capacity.

Turning to the relevant factors, Plaintiff argues that a close personal relationship exists

because he is J.L.’s father. Rule 12 Opp. at 20. The Court does not dispute that a parental

relationship is generally considered a close relationship. As for the hinderance, Plaintiff contends

that J.L.’s ability to protect his own interests is hindered because he “is now away at college.”6 Id.

at 21. Plaintiff, however, fails to explain why attending college amounts to a hinderance, and this

Court sees no reason why it would impact J.L.’s ability to litigate his claims. Plaintiff is

represented by counsel. Further, J.L. appears to be an independent, adult child. There is no

suggestion that J.L. is incompetent or faces any other obstacles in pursuing his claims. Although

college may create some inconveniences, this simply does not amount to a hinderance sufficient

6 Plaintiff also maintains that because J.L. graduated, J.L. “is not in the best position to protect the

interest of those similarly situated.” Id. This is not relevant to the Court’s analysis of third-party

standing. More importantly, Plaintiff fails to explain why he, as a parent to a graduated high school

student, remains a good advocate. Accordingly, the Court disregards this argument.

to allow a third party to represent J.L.’s interests. See Kowalski, 543 U.S. at 132 (concluding that

unsophisticated, pro se criminal defendants were not hindered in pursuing their constitutional

challenges to state court proceedings); Holland v. Rosen, 895 F.3d 272, 288 (3d Cir. 2018)

(rejecting argument that “criminal defendants under home detention and electronic monitoring face

obstacles to pursuing litigation”). Therefore, third party standing is not appropriate in this matter.7

Because B.L. does not have standing to assert claims on J.L.’s behalf, Counts One through Four

and Eights are dismissed. The Court, however, provides Plaintiff leave to file an amended

complaint substituting J.L. as the plaintiff for these claims.8

2. Section 1983 (Counts Five and Six)

Next, Defendants seek to dismiss B.L.’s Section 1983 claims. Section 1983, in relevant

part, provides as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress[.]

42 US.C. § 1983. Section 1983 does not provide substantive rights; rather, Section 1983 provides

a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-

7 Federal Rule of Civil Procedure 17 permits a guardian to sue on behalf of a minor. Fed. R. Civ.

P. 17(c)(1)(A). Thus, B.L. could have asserted claims on behalf of J.L. when J.L. was a minor. It

is not clear when J.L. reached the age of majority, but Plaintiff does not dispute that J.L. is no

longer a minor. Accordingly, B.L. cannot pursue claims on J.L.’s behalf under Rule 17. See

Adm’r-Benefits for Exxon Mobil Sav. Plan v. Williams, 567 F. App’x 97, 100 (3d Cir. 2014)

(affirming district court’s dismissal of plaintiff’s mother as plaintiff after the real party in interest

reached the age of majority under Virgin Islands law).

8 Because these claims are dismissed for lack of prudential standing, the Court will not consider

Defendants’ remaining arguments to dismiss these counts.

94 (1989). To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived

him of a federal right; and (2) the person who deprived him of that right acted under color of state

or territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr.

14, 2015).

a. Right to Petition

In the Fifth Count, B.L. alleges that Defendants did not respond to his parental grievances

because they did not agree with the nature of his speech. B.L. further alleges that this refusal

violated MLSD policies and procedures and his First Amendment right to petition. Am. Compl.

¶¶ 101, -03. The First Amendment provides individuals with the right to petition the government

for redress of grievances.9 See U.S. Const. amend. I. “The right to petition the government is ‘one

of the most precious of the liberties safeguarded by the Bill of Rights.’” Mirabella v. Villard, 853

F.3d 641, 653 (3d Cir. 2017) (quoting BE & K Constr. Co v. NLRB, 536 U.S. 516, 524 (2002)). A

petition may take multiple forms and may be directed towards any department of a local, state, or

the national government. Further, “[t]he right to petition allows citizens to express their ideas,

hopes, and concerns to their government and their elected representatives.” Id. at 654. But

critically, there is no corresponding requirement that a governmental unit must respond to a

petition. See Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 465 (1979) (“But the

First Amendment does not impose any affirmative obligation on the government to listen, [or] to

respond[.]”); Newton v. Greenwich Township, No. 12-238, 2012 WL 3715947, at *2 (D.N.J. Aug.

27, 2012) (“[W]hile there is a constitutional right to petition the government for redress of

grievances, there is no constitutional right to have the government respond to that petition.”)

9 The First Amendment provides as follows: “Congress shall make no law . . . abridging the

freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” U.S. Const. amend. I.

(emphasis in original). Here, B.L. does not allege that any Defendant prohibited or limited his

right to communicate with them. Although B.L. was unsatisfied with Defendants’ response to his

complaints, Defendants’ lack of a purportedly appropriate response does not amount to a violation

of B.L.’s right to petition.

Plaintiff counters that Defendants engaged in viewpoint discrimination, such that

Defendants’ actions must withstand strict scrutiny. Rule 12 Opp. at 28-29. Viewpoint

discrimination arises when a government actor attempts to regulate and prohibit a specific opinion.

See Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys., 938 F.3d 424, 432-37 (3d Cir.

2019). Again, Plaintiff’s First Amendment claim arises from Defendants’ purportedly insufficient

response. There is no allegation that any Defendant attempted to prohibit Plaintiff from expressing

his views on the curriculum. Accordingly, viewpoint discrimination is not at issue here.

Plaintiff also argues that by ignoring his petitions, Defendants violated MLSD policy. Rule

12 Opp. at 28. Even if Defendants violated a school policy, this alone does not give rise a Section

1983 claim. As discussed, Plaintiff must plead that a Defendant violated a constitutional right,

which Plaintiff does not do. Defendants’ motion, therefore, is granted with respect to Plaintiff’s

First Amendment claim, and the Fifth Count is dismissed.

b. Equal Protection

In the Sixth Count, B.L. alleges that Defendants violated his equal protection rights because

they ignored his grievances due to their contents, but provided “other, informal, channels of

communication” to individuals they agreed with. Am. Compl. ¶¶ 106-10. Plaintiff contends that

he is proceeding under a “class of one” equal protection theory. 10 See Rule 12 Opp. at 30. To

10 Ordinarily, to plead a claim under the equal protection clause, a plaintiff must plead that he is a

member of a protected class and was treated differently than similarly situated members of the

state a class-of-one equal protection claim, “a plaintiff must allege that (1) the defendant treated

him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there

was no rational basis for the difference in treatment.” Newark Cab Ass’n v. City of Newark, 901

F.3d 146, 156 (3d Cir. 2018) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.

2006)).

Although Plaintiff generally pleads in the Sixth Count that Defendants treated him

differently, Am. Compl. ¶ 107, his specific factual allegations fall short. Plaintiff does not plead

any facts establishing the existence of similarly situated individuals. The only comparison Plaintiff

provides is that some of the Individual Defendants had conversations with a group of former and

current students. Id. ¶¶ 58-59. Students and parents are not similarly situated. But even assuming

that B.L. is similarly situated to a group of students, Plaintiff fails to allege that any Defendant

treated B.L. differently. Plaintiff pleads that certain Defendants responded to some of his emails

and met with him in person. Plaintiff also pleads that certain of the Individual Defendants also

emailed with the student group. Thus, B.L. and the students appeared to receive similar treatment

by Defendants.

Plaintiff’s purported equal protection violation is focused on Defendants’ overall response,

not how quickly or how many times an Individual Defendant responded to B.L.’s emails. Plaintiff

ultimately alleges that Defendants discriminated against him because they “refuse[d] to remedy

their openly race-based disparate treatment,” Am. Compl. ¶ 9, and due to their “insistence on

proceeding with such [anti-racist] programming,” id. ¶ 10. But Defendants’ failure to bend to

unprotected class. See Mayer v. Gottheiner, 382 F. Supp. 2d 635, 651 (D.N.J. 2005). Here, B.L.

does not contend that he is a member of a protected class.

B.L.’s demands does not amount to discriminatory conduct. Consequently, Plaintiff fails to

plausibly plead an equal protection claim. The Sixth Count is dismissed.11

3. Remaining Claims as to B.L.

B.L. also asserts a claim under the New Jersey Civil Rights Act (Seventh Count), in

addition to claims for slander (Ninth Count) and libel (Tenth Count). These claims arise under

New Jersey state law. A federal court may have subject-matter jurisdiction through either federal

question or diversity jurisdiction. 28 U.S.C. §§ 1331, 1332; see also Rockefeller v. Comcast Corp.,

424 F. App’x 82, 83 (3d Cir. 2011). Here, Plaintiff maintain that this Court has federal question

jurisdiction pursuant to 28 U.S.C. § 1331. Am. Compl. ¶ 11. Federal question jurisdiction arises

through Plaintiff’s Section 1981 and 1983 claims. See Maglioli v. Alliance HC Holdings LLC, 16

F.4th 393, 406 (3d Cir. 2021) (“Under the well-pleaded-complaint rule, federal jurisdiction exists

only when a federal question is presented on the face of the plaintiff’s properly pleaded

complaint.”) (internal citation omitted). This Court, therefore, has supplemental jurisdiction over

Plaintiff’s remaining state law claims pursuant to 28 U.S.C. § 1367(a). See 28 U.S.C. § 1367(a)

(explaining that a court has supplemental jurisdiction over “other claims that are so related to

claims in the action within such original jurisdiction that they form part of the same case or

controversy”). Section 1367(c), however, provides that a “district court[] may decline to exercise

supplemental jurisdiction over a claim” if “the district court has dismissed all claims over which

it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Retaining supplemental jurisdiction-based claims is a matter of discretion. Borough of

West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). “[W]here the claim over which the

11 Because Plaintiff factually fails to plead any constitutional violation, the Court will not address

Defendants’ remaining grounds to dismiss Plaintiff’s Section 1983 claims.

district court has original jurisdiction is dismissed before trial, the district court must decline to

decide the pendent state claims unless considerations of judicial economy, convenience, and

fairness to the parties provide an affirmative justification for doing so.” Id. (emphasis added).

Moreover, district courts generally decline to exercise supplemental jurisdiction after dismissing

all original jurisdiction claims early in the proceedings. See, e.g., Payne v. CareOne, LLC, No.

17-2660, 2017 WL 4618752, at *2-3 (D.N.J. Oct. 13, 2017) (declining to exercise supplemental

jurisdiction over state claims because federal claims were dismissed before an initial conference).

Here, the Court is dismissing Plaintiff’s federal claims, which provide the Court with

subject-matter jurisdiction, at the earliest possible stage of the proceeding. As a result, the Court

declines to exercise supplemental jurisdiction over Counts Seven, Nine and Ten. The Court,

therefore, will not consider Defendants’ arguments to dismiss these counts.

Plaintiff is provided with thirty (30) days to file an amended complaint that cures the

deficiencies noted herein with respect to the claims dismissed under Rule 12(b)(6). As discussed,

if Plaintiff files an amended pleading he cannot proceed via pseudonym and cannot assert claims

on J.L.’s behalf. In addition, if J.L. decides to proceed as a Plaintiff, J.L. cannot proceed by

pseudonym. If, however, Plaintiff does not file an amended pleading, the claims dismissed herein

pursuant to Rule 12(b)(6) will be dismissed with prejudice and Plaintiff’s state law claims will be

dismissed for lack of jurisdiction.

V. MOTION TO STAY

Finally, Plaintiff also seeks to stay enforcement of Judge’s Allen’s Order requiring him to

file an amended complaint disclosing his, and J.L.’s, identities until this Court decides Defendants’

pending Rule 12 motion to dismiss. Plf. Br. at 14. Because this Court decided the Rule 12 motion,

Plaintiff’s request for a stay is denied as moot.

VI. CONCLUSION

For the reasons stated above, and for good cause shown,

IT IS on this 18th day of April, 2023,

ORDERED that Plaintiff's appeal (D.E. 24) is DENIED; and it is further

ORDERED that the Court AFFIRMS Judge Allen’s February 8, 2023 Opinion and Order;

and it is further

ORDERED that Plaintiff's motion to stay is DENIED; and it is further

ORDERED that Defendants’ motion to dismiss pursuant to Rule 12(b) is GRANTED;

and it is further

ORDERED that the First through Sixth and Eighth Counts of the Amended Complaint are

DISMISSED without prejudice pursuant to Rule 12(b)(6); and it is further

ORDERED that Plaintiff is granted leave to file an amended complaint that cures the

identified deficiencies within thirty (30) days; and it is further

ORDERED that any amended pleading must disclose B.L. and/or J.L.’s identity; and it is

further

ORDERED that Defendants’ cross-motion to dismiss is DENIED without prejudice.

Que VOQ.NA\

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