# V. v. CHERRY HILL BOARD OF EDUCATION

> District Court, D. New Jersey · April 21, 2025

URL: https://www.frixlaw.com/law-library/cases/10849645

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10849645

## How later opinions describe it (automated extraction)

- finding that ALJ’s consent orders entered had sufficient judicial imprimatur where order compelled specific action by defendant school district and were enforceable under state law and Section 1983

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

J.V. and H.V., on behalf of D.V.,

Plaintiffs,
Civil No. 24-7333
v. (RMB/SAK)

CHERRY HILL TOWNSHIP BOARD OPINION
OF EDUCATION,

Defendant.

APPEARANCES

DAVIS & MENDELSON, L.L.C.
Howard S. Mendelson
1200 Laurel Oak Rd
Suite 101
Voorhees, New Jersey 08043

Attorney for Plaintiffs

METHFESSEL & WERBEL, ESQS.
Eric L. Harrison
205 Lincoln Hwy, Suite 200
Edison, New Jersey 08817

Attorney for Defendant

RENÉE MARIE BUMB, Chief United States District Judge:
Plaintiffs J.V. and H.V., on behalf of their child D.V. (together, the “Plaintiffs”),
bring this action for attorney’s fees and costs and expert fees and costs pursuant to
20 U.S.C. § 1415(i)(3)(B)(i)(I), 29 U.S.C. § 794a, and 42 U.S.C. § 12133, arguing that
they are entitled to this remedy as the prevailing party in an underlying dispute under
the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”),
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131(s) (“ADA”). This
matter now comes before the Court upon Defendant Cherry Hill Township Board of
Education’s (the “District” or “Defendant”) motion to dismiss for failure to state a
claim [Docket No. 7-3] and Plaintiffs’ cross-motion to amend their Complaint [Docket
No. 8-2].1 For the reasons set forth below, the Court will DENY Defendant’s Motion,

in part, and CONVERT the Motion to one for summary judgment, in part.
I. FACTUAL BACKGROUND
J.V. and H.V. are the parents of D.V., a child who has been diagnosed with
Autism Spectrum Disorder, mixed receptive-expressive language disorder, and

milestone delays for his age. [Compl. ¶ 44 (Docket No. 1).] D.V. is classified for
special education services under the autism classification. [Id. at ¶ 23.] Most recently,
he attended Woodcrest Elementary School, which is operated by the District. [Id. at
¶ 22.] D.V. is a child with a disability who is eligible to receive special education

1 Plaintiffs’ purported cross-motion to amend the complaint was raised in their
submission in opposition to Defendant’s motion. It was not separately filed, did not
include a proposed amended complaint in compliance with Local Rule 15.1, and it is
not designated as a pending motion before this Court. The Court need not entertain
this application. L. R. Civ. P. 7.1(d)(7). Regardless, for all the reasons stated herein,
the Court denies Plaintiffs’ purported cross-motion to amend as moot.
services under the IDEA, as well as a qualified individual with a disability under
Section 504 and the ADA. [Id. at ¶ 2.]
D.V. was first referred for special education eligibility on September 26, 2019,

and an initial Individualized Education Program (“IEP”) was implemented on
January 21, 2020. [Id. at ¶ 22.] D.V. has been enrolled in preschool (2021–2022),
kindergarten (2022–2023), and first grade (2023–2024) in special disability programs.
[Id.] D.V. has had several IEPs over the years, and D.V.’s parents have lodged

numerous complaints with the District about the sufficiency of those IEPs to
accommodate D.V.’s disability. [Id. at ¶¶ 47–82.]
Ultimately, these complaints culminated in the Plaintiffs filing a Petition for
Due Process with the New Jersey Office of Administrative Law on July 20, 2022. [Id.
at ¶¶ 79–80.] This petition was withdrawn and subsequently dismissed without

prejudice on October 12, 2023. [Id.; Mendelson Cert. ¶ 32 (Docket No. 8-3).]
Thereafter, Plaintiffs filed a second petition on November 7, 2023, alleging that the
District failed to provide a Free Appropriate Public Education (“FAPE”) in the least
restrictive environment for D.V., as required by the IDEA, 20 U.S.C. § 1400(d)(1)(A).
[Compl. ¶¶ 12, 79–80.] The second petition sought:

(1) a finding that the District’s program and placement was not
appropriate for D.V.’s educational needs; (2) a finding that the District
failed to make a FAPE available to D.V., (3) a finding that D.V. required
an out of district placement, (4) a finding that the parents were reasonable
in making such request, (5) an Order requiring the District to reimburse
the Parents for the cost of an out of district placement, (6) an Order
requiring the District to reform D.V.’s IEP to include and provide for an
out of district placement for the [2023–2024] school year and continuing
for so long as same remains appropriate, (7) a finding that the private
placement in an out of district setting capable of meeting D.V.’s needs is
appropriate, (8) an Order directing the District to reimburse the parents
for the cost of D.V.’s out of district academic program, and for the entire
cost of D.V.’s placement for the [2023–2024] school year, (9) an Order
directing the District to reimburse parents for the cost of D.V.’s
transportation to and from the out of district placement and continuing
for so long as same remains appropriate, and (10) an Order directing the
District to reform D.V.’s IEP to provide for out of district placement and
transportation at no cost to parents for the 2023–2024 school year and
continuing for so long as same remains appropriate.

[Id. at ¶ 80.]

On March 6, 2024, the parties voluntarily and privately reached a new IEP
agreement at a meeting. [Harrison Cert. Ex. 1.] The IEP commenced on March 6,
2024 and ended on June 13, 2024, during which period the student would receive
support services. [Id. at 1.] The IEP provided for an out-of-district placement, with a
“bank” of up to 720 hours of supplemental instruction outside of school hours.
[Id. at 1, 22.] It also provided that when D.V. began attending this out-of-district
placement, the District’s IEP team would meet with the staff at the placement thirty
days afterward (“or earlier if warranted”) to revisit the IEP in light of his progress.
[Id. at 24.]
The IEP was then memorialized in a written settlement agreement
(the “Settlement Agreement”), which contains materially the same terms as the IEP
[Compl. Ex. A.] The Settlement Agreement explicitly provides that the March 6, 2024
IEP “will continue to be implemented as written.” [Id. at ¶ 1.] This includes the
out-of-district placement; the immediate availability of the 720 supplemental
instruction hours while the out-of-district placement was pending; and home
instruction pending the out-of-district placement. [Id. at ¶¶ 1, 2.] Pursuant to the
Settlement Agreement, the District “shall be solely responsible for all tuition, costs,
transportation expenses, and all other costs associated with implementation of the

March 6, 2024 IEP.” [Id. at ¶ 3.] Additionally, the Settlement Agreement assigns
logistical and administrative responsibilities for the placement to the District, and
obligates the District to advise Plaintiffs of any actions necessary to secure the out-of-
district placement. [Id. at ¶ 4.] It further provides that if no out-of-district placement

“mutually agreeable to the parties” was found by June 30, 2024—the IEP termination
date—the IEP team would meet and draft a new IEP in July. [Id. at ¶ 5.] If no
agreement could be reached then, the March 6, 2024 IEP would “remain D.V.’s ‘stay
put’ placement, in the event of a subsequent dispute.” [Id.] Under the Settlement
Agreement, Plaintiffs waived all claims against the District relating to facts occurring

prior to the execution of the agreement, except claims to enforce the Settlement
Agreement.2 [Id. at ¶ 6.]
The Settlement Agreement specifically addressed the “prevailing parties” issue:
While the District maintains that the Petitioners are not “prevailing
parties” and, as such, are not entitled to attorney fees or costs, the
Petitioners disagree and, as such, maintain that they are “prevailing
parties” entitled to attorney fees and costs. Accordingly, to effectuate a
settlement that avoids an unnecessary due process hearing simply
because of the parties’ dispute over fees and costs, the parties agree that
Petitioners shall retain their right to file an action in the United States

2 Plaintiffs maintained all substantive and procedural rights to file subsequent
Complaints for Due Process against the District relating to future acts or omissions.
[Compl. Ex. A ¶ 5.]
District Court for an award of attorney fees as a “prevailing party.”
The District reserves all defenses to such a claim.
[Id. at ¶ 7.] The Settlement Agreement additionally stated that it “represent[ed] a
compromise of disputed claims between the parties” and would “not be treated as an
admission on the District’s part that it has not offered D.V. an appropriate program or
placement or has failed to act in accordance with any applicable laws, statutes,

regulations, and/or codes at any time.” [Id. at ¶ 12.] Finally, the Settlement
Agreement provided that it would be submitted to a New Jersey Administrative Law
Judge (“ALJ”) “for incorporation into a Decision Approving Settlement.” [Id. at ¶ 9.]
In accordance with the Settlement Agreement’s terms, it was submitted to and
approved by ALJ Kathleen Calemmo on April 25, 2024 (the “Final Decision”).

[Compl. Ex. C.] ALJ Calemmo’s decision included the Settlement Agreement as an
exhibit and explained that “[t]he parties have voluntarily agreed to resolve all disputed
matters and have entered into a settlement as set forth in the attached document.” [Id.
at 1.] She further found that “[t]he parties have voluntarily agreed to the settlement as
evidenced by their signatures or their representatives’ signatures on the attached

Settlement Agreement and Release, received on April 25, 2024.” [Id. at 2.] The order
directs “that the parties comply with the settlement terms” and states that any
compliance concerns “should be communicated in writing to the Direct, Office of
Special Education.” [Id.]
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint

if the plaintiff fails to state a claim upon which relief can be granted. The party seeking
dismissal of the complaint must show it fails to state a claim. Lesher v. Zimmerman,
822 F. App’x 116, 119 (3d Cir. 2020). When reviewing a motion to dismiss, courts
must accept the complaint’s factual allegations as true and afford the plaintiff “every
favorable inference to be drawn therefrom.” Malleus v. George, 641 F.3d 560, 563

(3d Cir. 2011) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)).
Courts will dismiss a complaint if the plaintiff has failed to plead “enough facts to state
a claim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
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). Courts will not accept “legal conclusions” as true, and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 663; see also Malleus, 641 F.3d at 563.
Courts may “generally consider only the allegations contained in the complaint,

exhibits attached to the complaint[,] and matters of public record.” Schmidt v. Skolas,
770 F.3d 241, 249 (3d Cir. 2014) (citing Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
When “matters outside of the pleadings” are presented to and are not excluded
by the court on a Rule 12(b)(6) motion, the court must instead convert the motion into
one for summary judgment under Federal Rule of Civil Procedure 56, after giving

proper notice to the parties. FED. R. CIV. P. 12(d); In re Rockefeller Ctr. Prop., Inc. Secs.
Litig., 184 F.3d 280, 287 (3d Cir. 1999). Notice must be “unambiguous” and “fairly
apprise” the parties of the court’s intention to convert the motion. Rockefeller, 184 F.3d
at 288.

“Matters outside of the pleadings” does not include, however, documents
“integral to or explicitly relied upon in the complaint.” Id. (citations omitted). That
includes “any 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.” Mator v.
Wesco Distribution, Inc., 102 F.4th 172, 178 (3d Cir. 2024) (quoting In re Asbestos Prods.

Liab. Litig. (No. VI), 822 F.3d 125, 133 n.7 (3d Cir. 2016)). “Otherwise, a plaintiff with
a legally deficient claim could survive a motion to dismiss simply by failing to attach
a dispositive document on which it relied.” Pension Benefit, 998 F.2d at 1196.
III. DISCUSSION
Under the “American Rule,” parties are generally responsible for their own

attorney’s fees. Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 247 (1975).
Parties are thus not awarded attorney’s fees unless permitted by statute. Key Tronic
Corp v. United States, 511 U.S. 809, 819 (1994). The IDEA, Section 504, and the ADA
each include a fee-shifting provisions that allows a court “in its discretion” to award
“reasonable attorneys’ fees as part of the costs” to a “prevailing party.” 20 U.S.C.
§ 1415(i)(3)(B)(i)(I); 29 U.S.C. § 794a; 42 U.S.C. § 12205.3 Although expert fees are
not compensable under the IDEA, they may be awarded under Section 504 and the

ADA. Perkiomen Valley School Dist. v. R.B., 533 F. Supp. 3d 233, 260 (E.D. Pa. 2021)
(citations omitted).
Plaintiffs claim that they are the “prevailing parties” in the underlying
administrative proceeding and are thus entitled to attorney’s fees and costs under
IDEA, Section 504, and the ADA. According to Plaintiffs, they would not have

received the relief set forth in the Settlement Agreement “but for the immense amount
of litigation, judicial oversight/involvement by” ALJ Barry Moscowitz,4 “litigation
preparation performed by the Plaintiffs (and their expert . . . ) in anticipation of a due
process hearing, and the [April 2024] hearing dates looming over the parties’ heads.”
[Pls.’ Opp’n at 1.] Defendant, on the other hand, argues that Plaintiffs have not

achieved this status because the parties’ Settlement Agreement was not judicially
sanctioned and did not effect a change in the parties’ legal relationship. Additionally,

3 It appears that the underlying due process petition was brought pursuant to the
IDEA only. As a result, Defendant claims, Section 504 and the ADA are “wholly
inapplicable to the instant proceeding.” [Def.’s Br. at 17 (Docket No. 7-3).]
Defendant, however, has not moved to dismiss those claims on this ground and so the
Court does not address the applicability of those statutes at this time.
4 ALJ Moscowitz apparently presided over the first due process petition filed by
Plaintiffs and held a number of settlement conferences with the parties in 2023 prior
to the filing of the second due process petition. On April 19, 2024, just days before the
Settlement Agreement was finalized, ALJ Moscowitz held another settlement
conference with the parties.
Defendant contends that Plaintiffs erroneously apply the “catalyst theory” of fee
recovery, which was expressly rejected by the Supreme Court in Buckhannon Board &
Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598

(2001).
Defendant is correct that Plaintiffs argue their case under outdated law. Prior
to 2001, courts were divided as to whether a plaintiff is the “prevailing party” “if it
achieves the desired result because the lawsuit brought about a voluntary change in
the defendant’s conduct”—the “catalyst theory”—or whether an additional judicial

element was required. Buckhannon, 532 U.S. at 601–02. This additional judicial
element, often described as “judicial imprimatur,” entails “obtain[ing] an enforceable
judgment, consent decree, or settlement giving some of the legal relief sought.” Id.
at 602 (quoting S–1 and S–2 v. State Bd. of Ed. of N.C., 21 F.3d 49, 51 (4th Cir. 1994))

(internal quotation marks omitted).
In 2001, the Supreme Court in Buckhannon resolved the circuit split and rejected
the catalyst theory, holding that for a plaintiff is a prevailing party only if there has
been a “material alteration in the legal relationship of the parties” that carries “judicial
imprimatur.” Id. at 604–05 (quoting Texas State Teachers Ass’n v. Garland Ind. School

Dist., 489 U.S. 782, 792 (1989) (internal quotation marks omitted)). In other words,
to be a prevailing party, the plaintiff must have obtained some kind of judicial relief on
the merits, rather than relief alone. See id. at 606–07, 610. “A defendant’s voluntary
change in conduct, although perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id.
at 605. Buckhannon continued: “Our precedent thus counsel against holding that the
term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding

alteration in the legal relationship of the parties.” Id. (emphasis in original). Thus, the
Court must determine whether the parties’ Settlement Agreement and the ALJ’s Final
Decision rendered Plaintiffs the prevailing parties in the administrative proceeding
under Buckhannon.5

A. Material Alteration of the Parties’ Legal Relationship
The Court first addresses whether the Settlement Agreement and Final Decision
resulted in a material alteration of the legal relationship between Plaintiffs and the
District. A material alteration in the legal relationship of the parties in a civil rights
action is “an enforceable judgment against the defendant from whom fees are sought,

or comparable relief through a consent decree or settlement,” that “[affects] the
behavior of the defendant toward the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111
(1992) (citations omitted); accord P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 855
(3d Cir. 2006) (“a resolution ‘materially alters the legal relationship between the
parties’ when it ‘modif[ies] the defendant’s behavior in a way that directly benefits the

plaintiff.’”) (quoting Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3D 238, 251

5 This framework applies equally to the fee-shifting provisions in IDEA,
Section 504, and the ADA. John T. ex rel. Paul T. v. Delaware Co. Intermediate Unit, 318
F.3d 545, 556 (3d Cir. 2006); see also Rena C. v. Colonial Sch. Dist., 890 F.3d 404 (3d Cir.
2018) (applying Buckhannon to claim for attorney’s fees under Rehabilitation Act);
J.C. v. Regional Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 125 (2d Cir. 2002) (same).
(3d Cir. 1999)). For example, a judgment that “materially altered the school district’s
policy limiting the rights of teachers to communicate with each other concerning
employee organizations and union activities,” where plaintiffs were covered by the

policy, effected a material alteration in the legal relationship between the parties. Texas
State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782, 793 (1989).
This material alteration does not need to be complete relief on all claims; “even
an award of nominal damages suffices under this test.” Buckhannon, 532 U.S. at 604.

“[A] party achieves a ‘material alteration’ of the parties’ legal relationship and
‘prevail[s]’ for attorneys’ fees purposes only if he obtains relief that is ‘in some way
merit[s]-based.’” M.R. v. Ridley Sch. Dist., 868 F.3d 218, 224 (3d Cir. 2017) (quoting
Raab v. City of Ocean City, New Jersey, 833 F.3d 286, 293 (3d Cir. 2016)). “[P]revail[ing]
through a settlement rather than through litigation” may constitute a material

alteration of the parties’ legal relationship. Raab, 833 F.3d at 293.
The District argues that the parties’ Settlement Agreement and the Final
Decision did not materially alter the parties’ legal relationship because “they merely
reflected the relief already voluntarily provided to the Plaintiffs by the IEP of March
6, 2024.” [Def.’s Br. at 16.] But this is not the correct metric to evaluate the change

in the parties’ relationship. The comparison is instead between the relief sought in the
underlying Petition for Due Process and the relief obtained in the Settlement
Agreement, rather than between the IEP and the Settlement Agreement and Final
Decision memorializing that IEP. Put simply, the Court must “make a commonsense
comparison between the relief sought and obtained.” D.S. v. Voorhees Twp. Bd. of Educ.,
No. CV 16-131 (RMB/JS), 2016 WL 7387413, at *5–6 (D.N.J. Dec. 21, 2016)
(internal citation omitted) (comparing relief sought in Due Process Petition to relief
obtained in final settlement agreement to determine prevailing party status); accord

K.N. v. Passaic City Bd. of Educ., No. CIV.A. 11-399 JLL, 2011 WL 5157280, at *7
(D.N.J. Oct. 28, 2011) (comparing relief achieved in consent order approving parties’
settlement with relief demanded in plaintiffs’ Petition for Due Process).
Here, there was clearly a material alteration of the legal relationship between
the parties effected through the March 6, 2024 IEP, the Settlement Agreement, and

the Final Decision. The underlying due process petition sought new IEP terms that
included an out-of-district placement. This relief was obtained in the March 6, 2024
IEP and later memorialized in the Settlement Agreement and Final Decision.
Comparing the relief sought and the relief obtained, it is clear that the Settlement

Agreement and Final Decision modified the District’s behavior in a way that directly
benefited the Plaintiffs. This is sufficient to allege a material alteration in the parties’
legal relationship, the first prong under Buckhannon. The Motion to Dismiss is denied
as to this issue.
B. Judicial Imprimatur

This, however, is not enough to establish that the Plaintiffs are prevailing
parties. The Settlement Agreement must also have been judicially sanctioned.
Buckhannon, 532 U.S. at 604–05. The Court reiterates that a “defendant’s voluntary
change in conduct, although perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.”
Id. at 605. But a “settlement agreement[] enforced through a consent decree may serve
as the basis for an award of attorney’s fees” because it judicially compels conduct.
Id. at 604. Without some element of judicial compulsion there is insufficient judicial

imprimatur to confer prevailing party status. Id. at 604, 608–09.
“Private settlements do not entail the judicial approval and oversight involved
in consent decrees. And federal jurisdiction to enforce a private contractual settlement
will often be lacking unless the terms of the agreement are incorporated into the order

of dismissal.” See Buckhannon, 532 U.S. at 604 n.7. However, “under Buckhannon,
attorney’s fees may be awarded based on a settlement when it is enforced through a
consent decree.” Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 165 (3d Cir. 2002)
(citing Buckhannon, 532 U.S. at 604). An agreement that appears to be a “stipulated
settlement” may nonetheless bear the judicial imprimatur of a consent decree if it orders

or compels a specific action by a party through “mandatory language,” is entitled
“Order,” “bears the signature of the [judge], not the parties’ counsel,” and provides for
judicial enforcement. Id. (emphasis added); see also John T., 318 F.3d at 558.
i. The Final Decision Does Not Bear Markers of a Consent Decree
Defendant argues that the Final Decision lacks sufficient judicial imprimatur to

confer prevailing party status. The Final Decision observes that the parties entered
into the Settlement Agreement voluntarily, and that agreement in turn “merely
mirrored the terms of the previously-negotiated IEP which was the product of private
negotiations out of court” and “wholly outside of any judicial process.” [Def.’s Br.
at 12–13.] Defendant argues that the Final Decision “simply adopts the Settlement
Agreement” and includes “no mandatory language or express incorporation of the
Settlement Agreement provisions into the Final Decision.” [Def.’s Reply at 8 (Docket
No. 11).] The Court agrees.

The Final Decision reads in full:
This case arises under the Individuals with Disabilities Education Act,
20 U.S.C. §§ 1400 to 1482. The parties have voluntarily agreed to resolve
all disputed matters and have entered into a settlement as set forth in the
attached document.

I have reviewed the terms of settlement and I FIND:

1. The parties have voluntarily agreed to the settlement as evidenced by
their signatures or their representatives’ signatures on the attached
Settlement Agreement and Release, received on April 25, 2024. []
2. The settlement fully disposes of all issues contained in the Settlement
Agreement.
Therefore, I [ALJ Calemmo] ORDER that the parties comply with the
settlement terms and that these proceedings be concluded.

This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R.
§ 300.514 (2022). If the parent or adult student feels that this decision is
not being fully implemented with respect to program or services, this
concern should be communicated in writing to the Director, Office of
Special Education.
[Compl. Ex. C (emphasis in original).]
The brief Final Decision notes twice that the parties voluntarily agreed to the
Settlement Agreement. Nowhere does the ALJ sanction the terms of the Settlement
Agreement. The terms are not even incorporated into the Final Decision.
Additionally, the Final Decision does not compel any action other than compliance
with voluntarily reached terms. [Id.] The Final Decision includes none of the
mandatory language that the courts above found sufficient to confer judicial
imprimatur. See, e.g., P.N., 442 F.3d at 851 (finding that ALJ’s consent orders entered
had sufficient judicial imprimatur where order compelled specific action by defendant
school district and were enforceable under state law and Section 1983);

K.N., 2011 WL 5157280, at *9 (granting prevailing party status where plaintiffs
obtained two consent orders compelling specific action by defendants).
What’s more, the Final Decision is not entitled “Order” and bears no
characteristics of a consent order or decree demonstrating judicial imprimatur. [Compl.

Ex. C at 1.] Indeed, by its own terms the Final Decision is not a consent order or
decree, but merely a “decision approving [the] settlement” voluntarily reached by the
parties, which concluded the proceedings in court. [Id.] And, while the Final Decision
is signed by the ALJ, the Settlement Agreement itself – which contains the actual
material terms of compliance for the parties – is signed only by the parties. [Compl.

Ex. A.]
Finally, the ALJ did not retain jurisdiction over enforcement of Settlement
Agreement’s terms. Rather, the Final Decision specifically states that concerns
regarding compliance should be raised – not before the ALJ – but with “the Director,
Office of Special Education.” [Compl. Ex. C at 2.] In Raab, by contrast, the Third

Circuit found that the plaintiff was the prevailing party where the underlying court
order incorporated the terms of the parties’ settlement agreement and explicitly stated
that the court retained jurisdiction over the settlement agreement. 833 F.3d at 294.
For these reasons, the Court finds that the Final Decision alone on its face does
not judicially enforce the terms of the parties’ Settlement Agreement through a consent
decree and, therefore, lacks sufficient judicial imprimatur to give Plaintiffs prevailing
party status. See, e.g., Sutton v. Plainfield Bd. of Educ., No. 22-2062, 2024 WL 1554059,
at *1–2 (3d Cir. Apr. 10, 2024) (a voluntary change in conduct without judicially

sanctioned relief does not give rise to prevailing party status); A.W. v. East Orange Bd.
of Educ., 248 F. App’x 363, 364–365 (3d Cir. 2007) (prevailing party status not obtained
by virtue of reaching an acceptable IEP through out-of-court negotiations and “no
court . . . endorsed the agreement with a judicial imprimatur.”).

ii. Whether the Settlement Agreement Was Negotiated In Court Cannot
be Resolved on a Motion to Dismiss
Plaintiffs claim, however, that this does not doom their case because the
Settlement Agreement was reached through extensive settlement discussions between
the parties and ALJ Moscowitz and ALJ Calemmo. According to Plaintiffs, the
District’s assertion that the IEP and Settlement Agreement was reached “wholly
outside of any judicial process” is “wholly inaccurate and blatantly untrue.”
[Pls.’ Opp’n at 18.] They do not point to the pleadings to support this statement, but
rather to a certification submitted by Plaintiffs’ counsel, Howard S. Mendelson, Esq.,

in connection with their opposition brief. [Mendelson Cert. (Docket No. 8-3).] In this
certification, Mr. Mendelson details his version of events leading up to the Settlement
Agreement and Final Decision. [Id.] None of this information is included in the
Complaint or exhibits thereto.
At this stage, this Court’s review is limited to the allegations in the complaint,

matters of public record, and documents integral or attached to or explicitly relied
upon in the complaint. Mator, 102 F.4th at 178; Schmidt, 770 F.3d at 249. The Court
cannot consider the contents of the Mendelson Certification without converting the
instant motion into one for summary judgment under Rule 56 and giving the parties

proper notice. FED. R. CIV. P. 12(d).6
Thus, as a preliminary matter, the Court addresses whether the contents of the
certification, if considered, would even be relevant to the Court’s determination.
Plaintiffs claim that the District would never have agreed to the March 6, 2024 IEP or
the Settlement Agreement “but for” the pressure of litigation and the “judicial

oversight/involvement” of the ALJs in the administrative proceeding. [Pls.’ Opp’n
at 1.] In other words, Plaintiffs argue that their achievement of the favorable IEP terms
and Settlement Agreement were effectively the result of the actions of the
administrative court. [Id. at 21.] Plaintiffs cite to a pre-Buckhannon Third Circuit

decision for the proposition that they are prevailing parties if “a causal connection
exists between the litigation and the relief obtained from the defendant.” [Id. at 11
(citing Wheeler v. Towanda Area Sch. Dist. 950 F.2d 128, 131–32 (3d Cir. 1991)).]

6 Ironically, despite offering this certification, Plaintiffs argue that it is Defendant
that improperly offers material outside the pleadings. According to Plaintiffs, the
Court cannot rely upon the March 6, 2024 IEP at this stage because it is not integral
to or relied upon in the Complaint. [See Pls.’ Opp’n at 8–9.] The Court disagrees. The
March 6, 2024 IEP is memorialized in the Settlement Agreement that forms the basis
of this entire litigation and is repeatedly referred to in the Complaint. [See, e.g., Compl.
at ¶¶ 84, 94, 98.] It is therefore properly considered on a motion to dismiss even though
not attached to the Complaint. See Pension Benefit, 998 F.2d at 1196 (“Otherwise, a
plaintiff with a legally deficient claim could survive a motion to dismiss simply by
failing to attach a dispositive document on which it relied.”).
That the administrative proceedings were “looming over the parties’ heads” and
purportedly forced the District’s hand to settle, even if true, is irrelevant. [See id. at 1.]
This argument rests on the catalyst theory of prevailing party status, which, as

explained above, was expressly rejected by Buckhannon. Plaintiffs’ argument that “the
District would not have done what it eventually accomplished in this matter but for
the involvement of” the administrative litigation [id. at 17] misses the point. The mere
achievement of a desired litigation objective through out-of-court negotiations is

insufficient to demonstrate judicial imprimatur. John T., 318 F.3d at 560–61.
Buckhannon’s rejection of the catalyst theory also directs the Court not to delve
into the subjective motivations of the parties in coming to an agreement. Aside from
being a purely speculative exercise, such credibility determinations are appropriate
neither at the motion to dismiss stage nor at summary judgment. “[A] request for

attorney’s fees should not result in a second major litigation.” Buckhannon, 532 U.S.
at 609 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)) (rejecting catalyst theory
because “a ‘catalyst theory’ hearing would require analysis of the defendant’s
subjective motivations in changing its conduct” that would “spawn[] a second
litigation of significant dimension.”).

Plaintiffs also claim in the Mendelson Certification that the IEP and resultant
Settlement Agreement were the product of numerous settlement conference with
ALJ Moscowitz as well as conferences with ALJ Calemmo and, as a result, the
Settlement Agreement was developed with the court and carries judicial imprimatur.
[Pls.’ Opp’n at 21.] The District appears to concede that this may be a viable theory:
“Plaintiffs apparently regret not ensuring that the resolution in this matter was not the
express product of the oft-cited conferences convened by Judge Moscowitz. . . . those
events might have afforded the Settlement Agreement the judicial imprimatur needed

to confer prevailing party status.” [Def.’s Reply at 8.] This is confirmed in the case
law. See R.B.A. v. Jersey City Bd. of Educ., No. 15-CV-8269 (LDW), 2023 WL 3098713
at *4 (D.N.J. Apr. 26, 2023) (finding plaintiffs to be prevailing parties where settlement
agreement was result of “numerous Court-conducted settlement conferences” and
“parties reached a settlement in principle before” judge); but see John T., 318 F.3d

at 560 (IEP achieved “through negotiations out of court” was insufficient to confer
prevailing party status).
There is clearly a dispute as to the level of judicial involvement in the Settlement
Agreement that cannot be resolved on the pleadings.7 Plaintiffs’ claim that they are

the prevailing party is based, in part, on materials not offered or incorporated by
reference in the Complaint. The Court thus cannot consider the Mendelson
Certification or other proofs related to settlement negotiations without converting
Defendant’s Motion to one for summary judgment. Rather than dismissing the
Complaint with leave to amend, the Court intends to resolve this case efficiently and

expeditiously by converting the instant Motion to Dismiss to one for summary

7 The Court notes for the benefit of the parties that it only finds court involvement
relevant to the extent it took place after the November 7, 2023 due process petition was
filed. Settlement conferences relating to the first due process petition filed in July 2022
are irrelevant under Buckhannon.
judgment under Rule 56 pursuant to Rule 12(d). The Court hereby provides notice to
the parties that it will convert this portion of Defendant’s Motion only to one for
summary judgment following limited discovery regarding the settlement negotiations

related to the underlying IEP and Settlement Agreement. Hyldahl v. Denlinger,
661 F. App’x 167, 172 (3d Cir. 2016) (“The decision to convert a motion to dismiss to
a motion for summary judgment is generally committed to the district court’s
discretion.”) (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1463 n.11 (3d Cir. 1992)).
At the close of this limited discovery, the District may resubmit its motion as one for

summary judgment and both parties will be permitted to supplement the record as
appropriate.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss [Docket No. 7] is

DENIED, in part, and CONVERTED to a Motion for Summary Judgment, in part.

s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

DATED: April 21, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10849645. Public record. Not legal advice.