UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
LAUREN DAWIDOICZ, et al.,
Plaintiffs, Civil Action No. 18-3285 (MAS) (DEA)
vs MEMORANDUM OPINION RUTGERS UNIVERSITY, et al.,
Defendants.
SHIPP, District Judge
This matter comes before the Court upon Defendants Manville Board of Education and
Nancy Kessler’s (collectively, “Manville Defendants”) Motion to Dismiss (ECF No. 54) and
Defendants Eden Autism Services and Rachel Tait’s (collectively, “Eden Defendants”) Motion to
Dismiss! (ECF No. 58) the Second Amended Complaint ("SAC,” ECF No. 53). Pro se plaintiff
Lauren Dawidoicz, on behalf of herself and as guardian to C.F. (collectively, “Plaintiffs”), opposed
the Motions (ECF Nos. 60, 62), and Manville Defendants replied (ECF No. 61). The Court has
carefully considered the arguments and decides the matter without oral argument pursuant to Local
Civil Rule 78.1. For the reasons set forth herein, the Court grants Eden Defendants’ Motion to
Dismiss and grants in part and denies in part Manville Defendants’ Motion to Dismiss.
' Eden Defendants adopted all arguments within Manville Defendants’ Motion. (Eden Defs.” Moving Br. 6, ECF No. 58.) Where applicable, the Court refers to Manville Defendants and Eden Defendants collectively as “Defendants.”
I. BACKGROUND?
On November 6, 2017, Plaintiffs initiated an action against Eden Autism Services in the
Superior Court of New Jersey, Mercer County (the “Superior Court Action”). (See generally
Compl., Dawidoicz v. Eden Autism Services, MER-L-002553-17 (N.J. Super. Ct. Nov. 6, 2017),
Ex. A to Crocker Certif., ECF No. 39-1 at *4-6.)° Plaintiffs alleged that: (1) “Eden misrepresented
what the school does,” (id. at 1): (2) “[Eden] didn’t give [C.F.] an appropriate education,” (id.);
(3) Eden forced C.F. to use an iPad, which led Ms. Dawidoicz to “pull [C.F.] from the school,”
(id, at 1-2); (4) Eden called Rutgers DDDC and defamed Ms. Dawidoicz, (id. at 2): (5) Eden called
the Division of Family Services and slandered Ms. Dawidoicz, (éd.); and Eden intimidated Ms.
Dawidoicz with cease and desist letters, (id.). The Superior Court granted summary judgment in
favor of Eden Autism Services on July 5, 2019 and dismissed Plaintiffs’ claims. (Summ. J. Order,
Ex. A to Jan. 2, 2020 Crocker Certif., ECF No. 58-1 at *4: see also Tr. of Mot. 36, Ex. B to Jan. 2,
2020 Crocker Certif., ECF No. 58-1 at *6—25.)
Plaintiffs’ First Amended Complaint before this Court alleged the following claims against
Manville Board of Education and Eden Autism Services: (1) negligent misrepresentation for
failure to properly investigate; (2) breach of contract for excluding C.F. from the program and
withholding activities while C.F. was in the program: (3) violation of C.F.’s right to a free
appropriate public education (“FAPE”); (4) educational and professional malpractice violating
C.F.’s right to a free appropriate public education: (5) emotional distress; (6) discrimination based
on sexual orientation; (7) harassment; and (8) defamation. (First Am. Compl. 9-10.) The Court
> The SAC alleges the same factual circumstances as the First Amended Complaint. (Compare First Am. Compl.. ECF No. 28, with SAC.) The Court adopts the factual background as recited in its October 31, 2019 Memorandum Opinion (the “First Opinion,” ECF No. 49) and only provides additional background information where necessary for the instant motions.
} Page numbers preceded by an asterisk refer to the page number in the ECF header.
dismissed Plaintiffs’ claims seeking relief for the denial of a FAPE because Plaintiffs failed to
exhaust the administrative remedies available pursuant to the Individuals with Intellectual
Disabilities Act (*IDEA”). (First Op. 8; see Oct. 31, 2019 Order § 1-2, ECF No. 50.) The Court
granted Plaintiffs “a final opportunity to amend their complaint to plead a basis for subject matter
jurisdiction.” (First Op. 8.)
Plaintiffs filed the SAC, asserting the following claims, some for the first time:
(1) “Retaliation and Discrimination for exercising First Amendment rights advocating for C.F.”;
(2) “Discrimination and Violating Constitutional rights to equal protection based on Sexual
Orientation of [Ms.] Dawidoicz”; (3) “Conspiracy with specific and malicious intent to cause harm
to both Plaintiffs’; (4) “Negligent Misrepresentation for failure to properly investigate”;
(5) “Intentional Misrepresentation for failure to properly investigate”; (6) negligent supervision;
(7) “Retaliation for exercising First Amendment rights with Facebook post”; (8) defamation;
(9) false light; (10) “Intentional infliction of emotional distress [as] to both Plaintiffs”;
(11) “Harassment and Intimidation”; (12) “Sexual Harassment.” (SAC 9-10.)
Defendants now move to dismiss the SAC for lack of subject matter jurisdiction, again
asserting that the gravamen of Plaintiffs’ complaint seeks relief for the denial ofaFAPE and that
Plaintiffs failed to exhaust administrative remedies. (Manville Defs.. Moving Br. 19-34.)
Defendants also move to dismiss Plaintiffs’ claims for failure to state a claim under Federal Rute
of Civil Procedure 12(b)(6). (/d. at 34-37.) Finally, Eden Defendants move to dismiss Plaintiffs’
claims because they are precluded by the litigation in the Superior Court Action. (Eden Defs.”
Moving Br. 6-10.)
Il. |LEGALSTANDARD
A. Rule 12(b)(1)
A motion to dismiss pursuant to Rule 12(b)(1) challenges the existence ofa federal court's
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “When subject matter jurisdiction is
challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.” Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A motion to dismiss for lack of subject
matter jurisdiction may either “attack the complaint on its face . . . [or] attack the existence of
subject matter jurisdiction in fact, quite apart from any pleadings.” Mortenson v. First Fed. Sav.
& Loan Ass’n., 549 F.2d 884, 891 (3d Cir. 1977).
A facial challenge asserts that “the complaint, on its face, does not allege sufficient grounds
to establish subject matter jurisdiction.” Avanowa v. Ford Motor Co., 67 F. Supp. 2d 424. 438
(D.N.J. 1999). A court considering a facial challenge construes the allegations in the complaint as
true and determines whether subject matter jurisdiction exists. Mortenson, 549 F.2d at 891; see
also Cardio-Medical Assocs. Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983).
A factual attack under Rule 12(b)(1) challenges the very power of a district court to hear a
case, independent of the pleadings. Mortensen, 549 F.2d at 891. When evaluating a factual
challenge, a court “is free to weigh the evidence and satisfy itself as to the existence of its power
to hear the case.” /d. Unlike a facial analysis, no presumption of truth attaches to plaintiff's
allegations in a factual challenge and “the existence ofdisputed material facts will not preclude
the trial court from evaluating for itself the merits of jurisdictional claims.” /d. Furthermore. ina
factual challenge, the plaintiff bears the burden of establishing thatjurisdiction exists. /d.
B. Rule 12(b)(6)
*Federal Rule of Civil Procedure 8(a)(2) requires only *a short and plain statement of the
claim showing that the pleader is entitled to relief.” in order to ‘give the defendant fair notice of
what the... claim is and the grounds upon which it rests.”” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). On a motion to dismiss for
failure to state a claim, the “defendant bears the burden of showing that no claim has been
presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
A district court conducts a three-part analysis when considering a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). See Malleus v. George, 641 F.3d 560, 563
(3d Cir. 2011). “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a
claim.’” /d. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must
“freview] the complaint to strike conclusory allegations[.}” /d. The court must accept as true all
the plaintiff's well-pleaded factual allegations and “construe the complaint in the light most
favorable to the plaintiff[.]” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation
omitted). In doing so, however, the court is free to ignore legal conclusions or factually
unsupported accusations that merely state “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). Finally, the court must determine whether “the facts
alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.”
Fowler, 578 F.3d at 211 (quoting /gbal, 556 U.S. at 679). A facially plausible claim “allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” /d.
at 210 (quoting /qbal, 556 U.S. at 678).
Where a plaintiff proceeds pro se, the complaint must be “liberally construed” and.
“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation
omitted). But a pro se litigant “is not absolved from complying with Twombly and the federal
pleading requirements merely because [the litigant] proceeds pro se.” Thakar v. Tan, 372 F. App’x
II. DISCUSSION
A. The Court has Subject Matter Jurisdiction.
Defendants assert this Court lacks subject matter jurisdiction over Plaintiffs’ claims
because the gravamen of Plaintiffs’ SAC seeks relief for the denial ofaFAPE and Plaintiffs failed
to exhaust the administrative remedies under the IDEA. (Manville Defs.” Moving Br. 21-33.)
To determine whether the gravamen of the complaint concerns the denial of a FAPE, the
Court must consider: (1) “could the plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school”; and (2) “could an adult at the
school . . . have pressed essentially the same grievance?” Fry v. Napoleon Cmty, Sch., 137 S. Ct.
743, 756 (2017). “When the answer to those questions is yes, a complaint that does not expressly
allege the denial of a FAPE is also unlikely to be truly about that subject.” /d. “But when the
answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say
so.” Id.; see also Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 133 (3d Cir. 201 7) (holding that
Fry requires review of “both the entire complaint and each claim to determine if the plaintiff seeks
relief for the denial ofaFAPE”).
The Court addressed Defendants’ argument in its First Opinion. There, the Court dismissed
“Plaintiffs” claims seeking relief for *[v]iolation of [C.F.°s] civil rights toa... FAPETM and relief
for ‘[mJalpractice for violating [C.F.’s] FAPE rights.” because “Plaintiffs failed to exhaust the
administrative mechanism for their claims seeking relief for the denial of a FAPE.TM (First Op. 7.)
The Court then held that “the gravamen of Plaintiffs’ state-law claims for negligent
misrepresentation, breach of contract. emotional distress. discrimination. harassment, and
defamation do not relate to the denial of a FAPE.” (/c.) The Court found that “[t]hese claims seek
relief for the harms suffered by Ms. Dawidoicz and relate only tangentially to C.F.°s education, if
at all.” (/d, at 7-8.) Accordingly. those claims alleging harm to Ms. Dawidoicz—not seeking relief
for the denial of a FAPE for C.F.—were not subject to the IDEA’s exhaustion requirement, and
the Court declined to dismiss Plaintiffs’ remaining claims for lack of subject matter jurisdiction.
The same goes for Plaintiffs’ claims in the Second Amended Complaint. Most of Plaintiffs’
claims in the SAC do not concern the denial ofaFAPE and, therefore, do not fall within the scope
of the IDEA. Plaintiffs’ claims of harassment, discrimination, and retaliation in violation of Ms.
Dawidoicz’s First Amendment rights seek relief for harm alleged against Ms. Dawidoicz—not her
son. Under the first prong of the Fry test, Ms. Dawidoicz could assert claims—such as retaltation
for exercising First Amendment rights, defamation, false light. intentional infliction of emotional
distress, and others—if Defendants’ conduct occurred at some public facility that is not a school.
“[A]fter all, in thfese] situations there is no FAPE obligation ....” Fry, 137 S. Ct. at 756. The
second prong of the Fry test—which asks “could an adult. . . have pressed essentially the same
grievance’—further illustrates why Defendants’ exhaustion argument is misplaced. Ms.
Dawidoicz is an adult. Therefore, Ms. Dawidoicz’s claims arising out of harm she allegedly
suffered cannot seek relief for a denial of a FAPE because, as an adult, she was not entitled to a
FAPE and not denied a FAPE.
To the extent Plaintiffs seek relief for denial ofaFAPE for C.F., those claims are dismissed
for failure to exhaust administrative remedies consistent with the Court's First Opinion. Plaintiffs”
Second Amended Complaint specifies only two claims related to both Plaintiffs: “Conspiracy with
specific and malicious intent to cause harm to both Plaintiffs” and “Intentional infliction of
emotional distress.” (SAC 9-10.) The Court finds that the only factual allegations of harm suffered
by C.F. in the Second Amended Complaint relate to his being denied a FAPE. Accordingly, all
Plaintiffs’ claims are dismissed as they relate to C.F.
Although Plaintiffs’ claims under the IDEA are dismissed, the Court retains subject matter
jurisdiction here because Ms. Dawidoicz asserts claims alleging deprivations of rights secured by
the United States Constitution. (See SAC 9.) The Court also has diversity jurisdiction because
Plaintiff is a citizen of New York, Defendants are citizens of New Jersey, and Plaintiffs plead the
amount in controversy exceeds $75,000.00. (SAC 2, 10.)
B. Plaintiffs’ Claims Against Eden Defendants are Barred by the Entire Controversy Doctrine.
Eden Defendants argue Plaintiffs’ claims against them must be dismissed because those
claims “arise out of the same set of facts asserted in [the Superior Court Action].” (Eden Defs.’
Moving Br. 6.) Eden Defendants argue all claims against them are barred by either claim
preclusion, issue preclusion, or New Jersey’s Entire Controversy Doctrine. (/d. at 7-9.)
Under the Full Faith and Credit statute, “judicial proceedings of any court of any such
State .... shall have the same full faith and credit in every court within the United States ... as
they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C.
§ 1738. “In other words, a federal court must give the same preclusive effect to a state-court
judgment as another court of that State would give.” Rycoline Prods., Inc. v. C&W Unlimited, 109
F.3d 883, 887 (3d Cir. 1997) (internal quotation marks and citation omitted).
Accordingly, a federal court “is bound by New Jersey’s Entire Controversy Doctrine, an
aspect of the substantive law of New Jersey.” /d. The New Jersey Supreme Court has described
the Doctrine’s purpose as threefold: “{1) the need for complete and final disposition through the
avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material
interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay.”
DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995) (citation omitted). The Doctrine “compels the
parties, when possible, to bring all claims relevant to the underlying controversy in one legal
action. When the court finds that a claim not joined under the original action falls within the scope
of the doctrine, that claim is barred.” Coleman v. Chase Home Fin., LLC, 446 F. App’x 469, 471
(3d Cir. 2011) (citing NJ. Ct. R. 4:30A). “New Jersey courts have held that the primary
consideration in determining if successive claims are part of the same controversy is whether the
claims ‘arise from related facts or from the same transaction or series of transactions.”” /d.
at 471-72 (quoting DiTrolio, 662 A.2d at 502). “It is a ‘commonality of facts, rather than a
commonality of issues, parties, or remedies that defines the scope of the controversy.’” /d. at 472
(quoting DiTrolio, 662 A.2d at 504).
Here, the Court finds that Plaintiffs’ claims against Eden Defendants are barred by the
Entire Controversy Doctrine and must be dismissed. In the Superior Court Action, Plaintiffs
alleged the following: (1) “Eden misrepresented what the school does,” (Super. Ct. Action
Compl. !); (2) “{Eden] didn’t give [C.F.] an appropriate education,” (id.); (3) Eden forced C.F. to
use an iPad, which led Ms. Dawidoicz to “pull [C.F.] from the school.” (id. at 1-2); (4) Eden called
Rutgers DDDC and defamed Ms. Dawidoicz, (id. at 2); (5) Eden called the Division of Family
Services and slandered Ms. Dawidoicz, (id.); Eden intimidated Ms. Dawidoicz with cease and
desist letters, (id.); and Eden negligently inflicted emotional distress, (id. at 3). The Court finds
that Plaintiffs’ claims against Eden in this matter arise from facts related to the Superior Court
Action. Although Rachel Tait was not named as a defendant in the Superior Court Action and
Plaintiffs’ claims here are not identical to those in the Superior Court Action, the claims against
Eden Defendants in this matter nevertheless arise from the same facts as those in the Superior
Court Action. The Superior Court entered final judgment in that matter on July 5, 2019, dismissing
all Plaintiffs’ claims. (Summ. J. Order; see also Tr. of Mot. 36.) The Court, accordingly, must
dismiss all claims against Eden Defendants here because these claims arise from the same facts as
those in the Superior Court Action and thus are barred by the Entire Controversy Doctrine.
Cc. Manville Defendants Fail to Meet Their Burden to Show that Plaintiffs Fail to State a Claim.
Manville Defendants argue that Plaintiffs’ remaining claims not dismissed for failure to
exhaust administrative remedies under the IDEA alternatively must be dismissed because Plaintiffs
fail to state a claim. (Manville Defs.” Moving Br. 34-36.) The Court recites the only paragraph
Manville Defendants offer specifically addressing Plaintiffs’ remaining claims:
Plaintiffs’ Second Amended Complaint asserts a number of counts against all defendants. None of these counts recite the elements of each claim. Moreover, there are no facts that can be gleaned from the pleadings supportive of any allegations that the Manville Defendants have violated any First Amendment Right of Plaintiffs, discriminated against Dawidoicz because of her sexual orientation in violation of the Fourteenth Amendment. defamed Plaintiffs, portrayed them in a false light, or intimidated or harassed Plaintiff as alleged. Even accepting as true all of the facts alleged, they are simply insufficient as a matter of law to support any of the causes of action asserted. Plaintiffs have merely set forth labels and conclusions that fail to support any reasonable inference that the Manville Defendants may be held liable for the harm alleged.
(Manville Defs.” Moving Br. 35-36.)
On a motion to dismiss for failure to state a claim, the “defendant bears the burden of
showing that no claim has been presented.” Hedges, 404 F.3d at 750. The Court finds that Manville
Defendants’ argument—which itself fails to recite the elements of any claim and offers mere
conclusions devoid of analysis or discussion of the allegations—is insufficient to meet Manville
Defendants” burden. Plaintiffs bring twelve claims supported by seven pages of factual allegations
documenting events occurring over more than two years. (See generally SAC.) Manville
Defendants may not baldly assert that every claim lacks sufficient factual allegations without any
discussion ofthe elements of each claim or Plaintiffs” factual allegations. The Court, accordingly,
denies Manville Defendants’ Motion insofar as it seeks dismissal of Plaintiffs’ claims for failure
to state a claim.
IV. CONCLUSION
The Court grants Eden Defendants’ Motion to Dismiss because Plaintiffs’ claims are either
barred for failure to exhaust administrative remedies or barred by the Entire Controversy Doctrine.
The Court grants Manville Defendants’ Motion to Dismiss all claims on behalf of C.F. because
those claims allege the denial ofaFAPE and Plaintiffs failed to exhaust administrative remedies,
but otherwise denies Manville Defendants” Motion.
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MICHAEL A. SHIPP UNITED STATES DISTRICT JUDGE