KAMINSKI-MINTZ v. NEW JERSEY DEPARTMENT OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

K. K.-M.

Individually and as Kinship

Legal Guardian of the minor

children R.M. and A.W

Plaintiff,

v.

NEW JERSEY DEPARTMENT OF No. 1:17-cv-11579-NLH-MJS

EDUCATION; NEW JERSEY OFFICE OPINION & ORDER

OF ADMINISTRATIVE LAW;

DOMINIC ROTA,

individually and in his

official capacity; GLOUCESTER

CITY BOARD OF EDUCATION d/b/a

GLOUCESTER CITY PUBLIC

SCHOOLS; and, BLACK HORSE

PIKE REGIONAL SCHOOL DISTRICT

BOARD OF EDUCATION

Defendants.

APPEARANCES

Robert Craig Thurston, Esq.

Thurston Law Offices LLC

433 River Road

Suite 1315

Highland Park, NJ 08904-1940

Attorney for Plaintiff

Amelia Mauriello Lolli, Esq.

Michael S. Mikulski, II, Esq.

Connor Weber & Oberlies

304 Harper Drive

Suite 201

Moorestown, NJ 08057

Attorneys for Defendant Black Horse Pike Regional School

District Board of Education

Aimee Rousseau, Esq.

Beth N. Shore, Esq.

Donna S. Arons, Esq.

State of New Jersey

Office of the Attorney General

25 Market Street

POX Box 112

Trenton, NJ 08625

Joan M. Scatton, Esq.

Office of NJ Attorney General

Richard J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, NJ 08625-0112

Laurie Lee Fichera, Esq.

State of New Jersey, Division of Law

Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, NJ 08625-0112

Attorneys for Defendants New Jersey Department of

Education, New Jersey Office of Administrative Law, and

Dominic Rota

Victoria Simoes Beck, Esq.

William Clawges Morlok, Esq.

Park McCay P.A.

9000 Midlantic Drive

Suite 300

Mount Laurel, NJ 08054

Attorneys for Defendant Gloucester City Board of Education

HILLMAN, District Judge

WHEREAS, the within action involves claims against the

State of New Jersey and two school districts located therein 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. (the “ADA”)(ECF No. 133); and

WHEREAS, Plaintiff has filed Motions for Partial Summary

Judgment against Defendants New Jersey Department of Education

(NJDOE), New Jersey Office of Administrative Law (NJOAL), and

Dominic Rota (collectively, State Defendants) (ECF No. 177), as

well as against Defendant Black Horse Pike Regional School

District Board of Education (BHPRSD) (ECF No. 192); and

WHEREAS, State Defendants’ Opposition to the instant

summary judgment motion repeatedly cites their inability to

adequately respond due to the lack of discovery on the issues

presented (ECF No. 198 at 10-11, 18, 21-24, 27, 42, 46-47); and

WHEREAS, State Defendants have provided this Court with a

Declaration Pursuant to Fed. R. Civ. P. 56(d), in which counsel

for said Defendants particularizes the need for discovery in

order to adequately respond to Plaintiff’s motion for summary

judgment (ECF No. 198-3); and

WHEREAS, Defendant BHPRSD opposes partial summary judgment,

arguing in part that this Court lacks jurisdiction over

Plaintiff’s claims against it because Plaintiff never exhausted

its administrative remedies (ECF No. 209 at 5, 9-12, 16-17); and

WHEREAS, Defendant BHPRSD has also filed a Cross Motion to

Dismiss Counts IX and X of Plaintiff’s Third Amended Complaint

on the basis of a failure to exhaust administrative remedies

(ECF No. 211 at 5, 9-12, 16-17); and

WHEREAS, but for the title pages, Defendant BHPRSD’s

summary judgment opposition brief and brief in support of cross

motion to dismiss are verbatim (ECF Nos. 209, 211);1 and

WHEREAS, Defendant BHPRSD fully briefed and pursued this

exact issue on September 7, 2021 in its Opposition to

Plaintiff’s Motion for Leave to File a Third Amended Complaint

(ECF No. 122); and

WHEREAS, on March 31, 2022, this Court flatly rejected

Defendant BHPRSD’s exhaustion argument on the basis of futility

(ECF No. 131); and

WHEREAS, the text of Defendant BHPRSD’s summary judgment

opposition brief and brief in support of cross motion to dismiss

mirrors the text contained in its Brief in Opposition to

Plaintiff’s Motion for Leave to File a Third Amended Complaint

(ECF No. 122); and

WHEREAS, in some situations, a brief submitted to the court

that clearly manifests a “copy-and-paste job” may “reflect a

dereliction of duty, not an honest mistake.” Conboy v. United

States SBA, 992 F.3d 153, 158 (3d Cir. 2021); and

1 Defendant BHPRSD’s Cross Motion to Dismiss contains the same

Response to Statement of Undisputed Material Facts and

Additional Statement of Facts as that provided in its summary

judgment Response. These items pertain to Fed.R.Civ.P. 56 and

are misplaced for purposes of litigating a motion to dismiss.

WHEREAS, Plaintiff discussed this Court’s ruling in its

Reply to Defendant’s Opposition to Motion for Partial Summary

Judgment (ECF No. 210 at 4-5), as well as in its Response to

Defendant BHPRSD’s Cross Motion to Dismiss (ECF No. 212 at 4-6);

and

WHEREAS, Plaintiff’s Reply to Defendant’s Opposition to

Motion for Partial Summary Judgment was filed of record before

Defendant BHPRSD elected to file its Cross Motion to Dismiss

(ECF No. 210); and

WHEREAS, Defendant BHPRSD has omitted any reference to this

Court’s prior ruling in its current briefing; and

WHEREAS, in the context of appellate briefing, the Third

Circuit has opined that the filing attorney “is to blame for

recycling meritless arguments without engaging the District

Court’s analysis.” Conboy, 992 F.3d at 158; and

WHEREAS, attempting to relitigate issues that have already

been decided by the court could constitute a violation of

counsel’s “. . . duty of candor to the Court. This duty

includes not only bringing relevant facts and cases to the

Court’s attention, but also avoiding the filing of frivolous

litigation. See N.J. R.P.C. 3.3 (setting forth requirement that

counsel disclose material facts and relevant legal authority to

the court) and N.J. R.P.C. 3.1 (prohibiting counsel from

bringing frivolous claims).” Koch v. Pechota, 744 F. App’x 105,

113 n.8 (3d Cir. 2018); and

WHEREAS, “[c]ourts have uniformly sanctioned litigants who

attempt to relitigate issues already decided against[them][.]”

Dunleavy v. Gannon, 2:11-cv-0361, 2012 U.S. Dist. LEXIS 9679, at

*18 (D.N.J. Jan. 26, 2012); see also Marchisotto v. Daley, Civil

Action No. 22-1276, 2022 U.S. Dist. LEXIS 91080, at *17-18

(D.N.J. May 20, 2022) (same); and

WHEREAS, “[Federal Rule of Civil Procedure 11] is intended

to discourage pleadings that are frivolous, legally

unreasonable, or without factual foundation, even though the

paper was not filed in subjective bad faith.” Napier v. Thirty

or More Unidentified Federal Agents, etc., 855 F.2d 1080, 1090-

1091 (3d Cir. 1988) (internal quotations and citations omitted);

and

WHEREAS, Plaintiff has not raised any Rule 11 concerns

pertaining to this issue; and,

WHEREAS, when a court “declines to begin the sanction

process sua sponte[,]” it may place a party “on notice that the

Court will entertain sanctions should [that party] submit

another pleading with claims clearly unwarranted by fact or

law.” Eaton v. Tosti, Civ. No. 09-5248, 2010 U.S. Dist. LEXIS

55009, at *31 (D.N.J. June 4, 2010); and

WHEREAS Defendant BHPRSD also opposes Plaintiff’s Partial

Motion for Summary Judgment on the basis that it is premature,

as no depositions have been taken and discovery remains ongoing

(ECF No. 209 at 16-17); and

WHEREAS, Defendant BHPRSD further cites its inability to

adequately respond to Plaintiff’s Statement of Facts due to the

lack of discovery on the issues presented (ECF No. 209 at 16-17;

ECF No. 211 at 5-6, 16-17); and

WHEREAS, Rule 56(d) of the Federal Rules of Civil Procedure

provides that upon a showing by a party that, for specified

reasons, he cannot “present facts essential to justify its

opposition” to a motion for summary judgment, the court may

defer consideration of or deny the motion, allow time for the

party to take discovery, or issue any other appropriate Order.

Fed. R. Civ. P. 56(d); and

WHEREAS, “. . . the 2010 Amendments to the Federal Rules of

Civil Procedure allow for alternatives to a formal affidavit

such as ‘a written unsworn declaration, certificate,

verification, or statement subscribed in proper form as true

under penalty of perjury.’ Fed. R. Civ. P. 56, advisory

committee’s note (2010).” Shelton v. Bledsoe, 775 F.3d 554, 567

(3d Cir. 2015); and

WHEREAS, 28 U.S.C. § 1746 provides in pertinent part:

Wherever, under any law of the United States or under

any rule, regulation, order, or requirement made

pursuant to law, any matter is required or permitted

to be supported, evidenced, established, or proved by

the sworn declaration, verification, certificate,

statement, oath, or affidavit, in writing of the

person making the same (other than a deposition, or an

oath of office, or an oath required to be taken before

a specified official other than a notary public), such

matter may, with like force and effect, be supported,

evidenced, established, or proved by the unsworn

declaration, certificate, verification, or statement,

in writing of such person which is subscribed by him,

as true under penalty of perjury, and dated, in

substantially the following form:

* * * *

If executed within the United States, its territories,

possessions, or commonwealths: “I declare (or certify,

verify, or state) under penalty of perjury that the

foregoing is true and correct. Executed on (date).

(Signature)”.

28 U.S.C. § 1746(2); see also N.J. L. Civ. R. 7.2(a)

(“Affidavits, declarations, certifications and other documents

of the type referenced in 28 U.S.C. § 1746 shall be restricted

to statements of fact within the personal knowledge of the

signatory.”); and

WHEREAS, despite its reliance upon a “lack of discovery” in

Defendant BHPRSD’s Response to Plaintiff’s Motion for Partial

Summary Judgment and its Cross Motion to Dismiss, neither filing

contains an Affidavit, Declaration, Certification, Verification,

or any other statement “subscribed in proper form as true under

penalty of perjury” in accordance with Fed. R. Civ. P. 56(d) or

28 U.S.C. § 1746(2); and

WHEREAS, “[u]nder the IDEA, a district court is required to

‘hear additional evidence at the request of a party[.]’”

Moynihan v. W. Chester Area Sch. Dist., No. 21-2530, 2022 U.S.

App. LEXIS 5757, at *5 (3d Cir. March 4, 2022) (citing 20 U.S.C.

§ 1415(i)(2)(C)(ii)); see also L.G. ex rel. E.G. v. Fair Lawn

Bd. of Educ., 486 F. App’x 967, 975 (3d Cir. 2012) (“[W]hile a

district court may appropriately exclude some evidence, ‘a court

must exercise particularized discretion in its rulings so that

it will consider evidence relevant, non-cumulative and useful in

determining whether Congress’ goal has been reached for the

child involved.’” (quoting Susan N. v. Wilson Sch. Dist., 70

F.3d 751, 760 (3d Cir. 1995))); M.D. v. Vineland City Bd. of

Educ., No. 1:19-cv-12154, 2024 WL 195371, at *7-8 (D.N.J. Jan.

17, 2024) (synthesizing Federal Rule of Civil Procedure 56(d)

and 20 U.S.C. § 1415(i)(2)(C)(ii) and providing defendants, who

had provided a Rule 56(d) declaration, fourteen days to propose

necessary discovery and a related schedule); and

WHEREAS, denial of a motion for summary judgment without

prejudice to Plaintiff’s right to re-file once discovery is

complete is appropriate and warranted under these circumstances.

See Lee v. Sunrise Sr. Living, Inc., 455 F. App’x 199, 202 (3d

Cir. 2011) (affirming district court’s denial of motion for

summary judgment because discovery had not yet been completed);

Miller v. Beneficial Management Corp., 977 F.2d 834, 846 (3d

Cir. 1992) (reversing grant of summary judgment as premature

where several depositions remained to be taken); Costlow v.

United States, 552 F.2d 560, 564 (3d Cir. 1977) (holding that a

continuance of a motion for summary judgment for purposes of

discovery should be granted almost as a matter of course); Otero

v. County of Monmouth, No. 06-3435, 2007 U.S. Dist. LEXIS 61504,

at *3-4 (D.N.J. Aug. 16, 2007) (denying summary judgment without

prejudice because discovery was not yet complete).

THEREFORE, it is on this 29th day of February 2024,

ORDERED that Plaintiff’s Motions for Partial Summary

Judgment Against Defendants New Jersey Department of Education,

New Jersey Office of Administrative Law, and Dominic Rota (ECF

No. 177) and Defendant BHPRSD (ECF No. 192) be, and the same

hereby are, DENIED without prejudice, pending United States

Magistrate Judge Matthew J. Skahill’s determination of the scope

and completion of outstanding or additional discovery; it is

further

ORDERED that Defendant BHPRSD’s Cross Motion to Dismiss

(ECF No. 211) be, and the same hereby is, DENIED; and it is

further

ORDERED that counsel for Defendant BHPRSD is hereby put on

NOTICE that the filing of any further frivolous motions or

engagement in a lack of candor to the tribunal, could result in

sanction proceedings.

/s/ Noel L. Hillman

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