UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
LAUREN DAWIDOICZ, et al.,
Plaintiffs, Civil Action No. 18-3285 (MAS) (DEA)
v- MEMORANDUM OPINION RUTGERS UNIVERSITY, et al.,
Defendants.
SHIPP, District Judge
This matter comes before the Court upon pro se Plaintiff Lauren Dawidoicz’s, on behalf of
herself and as a guardian to C.F. (collectively, “Plaintiffs”) Motion for Leave to Appeal Order
Dismissing Defendants Eden Autism Services and Rachel Tait (collectively, “Eden Defendants”).
(ECF No. 74.) Eden Defendants opposed (ECF No. 76) and Plaintiffs replied (ECF No. 79) and
submitted evidence in support of their Motion (ECF No. 81). The Court has carefully considered
the parties’ submissions and decides the matter without oral argument pursuant to Local Civil Rule
78.1. For the reasons set forth herein, the Court will deny Plaintiffs’ Motion.
I. BACKGROUND
On August I1, 2020, this Court granted Eden Defendants’ Motion to Dismiss. (See
generally Mem. Op., ECF No. 69.) The Court found that Plaintiffs” Individuals with Disabilities
Education Act (“IDEA”) claims against Eden Defendants were barred for failure to exhaust
administrative remedies. (/d. at 7.) The Court found that the remainder of Plaintiffs’ claims were
barred by the Entire Controversy Doctrine. (/d. at 8-9.) In the Motion now before the Court.
Plaintiffs seek leave to appeal the August 11, 2020 Order and dispute the Court's findings in the
August I1, 2020 Order.
First, Plaintiffs allege that the “Second Amended [C]omplaint makes no claims as to the
IDEA” and therefore, Plaintiffs are not required to exhaust administrative remedies. (Mot. 8, ECF
No. 74.) Plaintiffs further allege that Eden is a private school, not a public school, so the “only
recourse [available] is through a state complaint procedure.” (/. (emphasis omitted).)
Second, Plaintiffs claim that the present suit, and their previously-dismissed suit filed in
the Superior Court of New Jersey state “two [different] causes of action.” (/d. at 9; see Superior
Court Compl., Ex. A. to Crocker Certification *4-6, ECF No. 39-1.)' The Plaintiffs’ Superior
Court “cause of action was the unfit education [C.F.] received from Eden. The cause ofaction in
this suit, arises out of what took place once young [C.F.] was transferred from Eden to Rutgers
DDDC.” (Mot. 9.) Additionally, Plaintiffs allege that the Superior Court action arose from C.F.’s
improper education at Eden Autism Services while this present suit is about Eden Defendants’
discrimination and retaliation against Plaintiffs after C.F. was no longer a student at Eden Autism
Services. (/d. at 10.) To support their motion, Plaintiffs also submit as evidence excerpts ofa filing
from an entirely different case with a different plaintiff and different defendants. (ECF No. 81.)
I. LEGAL STANDARD
The Courts of Appeals have jurisdiction over appeals from “final decisions” of the U.S.
District Courts. 28 U.S.C. § 1291. Section 1291 limits “the normal jurisdiction ofcourts of appeal
to the reviewing of final judgments,” and it expresses the “basic and persisting policy against
piecemeal appeals.” Panichella v. Pa. R.R. Co., 252 F.2d 452, 454-55 (3d Cir. 1958). “Generally.
an order [terminating] fewer than all [pending claims] in an action or claims against fewer than all
' Page numbers preceded by an asterisk refer to the page number ofthe ECF header.
the parties to an action does not constitute a ‘final’ order for purposes of 28 U.S.C. § 1291.” Elliott
v. Archdiocese of N.Y.. 682 F.3d 213, 219 (3d Cir. 2012).
Under Federal Rule of Civil Procedure 54(b) (“Rule 54(b)”), however, “a district court may
convert an order adjudicating less than an entire action to the end that it becomes a ‘final decision
over which a court of appeals may exercise jurisdiction under 28 U.S.C. § 1291.” fd. Rule 54(b)
provides that
[w]hen an action presents more than one claim for relief— whether as a claim, counterclaim, cross-claim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.
Fed. R. Civ. P. 54(b).
The determination of whether there is “no just reason for delay” and whether to direct the
entry of judgment under Rule 54(b) is within discretion ofthe district court. Boer v. Borg-Warner
Corp., 364 F.2d 907, 907 (3d Cir. 1966). “Certification under Rule 54(b) is the exception, not the
norm.” Indivior Inc. v. Dr. Reddy's Labs. S.A., No. 17-7111, 2020 WL 4932547, at *11 (D.N.J.
Aug. 24, 2020). When “the adjudicated and unadjudicated claims share significant similarities,
such as involving the same parties, the same legal issues, or the same evidence, Rule 54(b)
certification is disfavored[.}” and “should be used only in the infrequent harsh case as an
instrument for the improved administration of justice[.J]” /d. at 11] (internal quotation marks and
citations omitted).
Alternatively, an immediate appeal of an interlocutory District Court order may also be
sought pursuant to 28 U.S.C. § 1292(b). Under that rule. the judge may certify the order when he,
“shall be of the opinion that such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation[.]” 28 U.S.C. § 1292(b); see
also Simon v. United States, 341 F.3d 193, 199 (3d Cir. 2003).
A “controlling question of law” is one where: “(1) if decided erroneously, [it] would lead
to reversal on appeal; or (2) [it] is ‘serious to the conduct of the litigation either practically or
legally.”” Hall v. Wyeth, Inc., No. 10-738, 2010 WL 4925258, at *1 (E.D. Pa. Dec. 2, 2010)
(citation omitted); see also Ensey v. Gov't Emps. Ins. Co., No. 12-7669, 2014 WL 12613400, at
*2 (D.N.J. Aug. 18, 2014). A “*[s]ubstantial ground(] for difference of opinion’” exists where
“courts that have examined an issue reach ‘conflicting and contradictory opinions ... upon the
particular question of law.°” Ensey, 2014 WL 12613400, at *2 (ellipses in original)
(quoting Kolbeck v. Gen. Motors Corp., 702 F. Supp. 532, 542 (E.D. Pa. 1988)); see also Cuttic v.
Crozer—Chester Med. Ctr., 806 F. Supp. 2d 796, 805 (E.D. Pa. 2011) (*[S]ubstantial grounds for
difference of opinion exist where there is genuine doubt or conflicting precedent as to the correct
legal standard.” (internal quotation marks omitted)). Additionally, “§ 1292(b) ‘is to be used only
in exceptional cases where an immediate appeal may avoid protracted and expensive litigation[.}’~
Sporck v. Peil, 759 F.2d 312, 315 n.4 (3d Cir. 1985) (quoting Milbert v. Bison Labs., Inc., 260
F.2d 431, 433-34 (3d Cir. 1958)).
A court may exercise discretion to decline certification ofa question for immediate appeal
even if the certification criteria are met. Ensey, 2014 WL 12613400, at *1 (citing Bachowski v.
Usery, 545 F.2d 363, 368 (3d Cir. 1976); P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., \61
F. Supp. 2d 355, 358 (D.N.J. 2001)).
“Rule 54(b) and 28 U.S.C. [§] 1292(b) should be carefully distinguished in application
because they serve different interests.” Ford Motor Credit Co. v. S. E. Barnhart & Sons, Inc., 664
F.2d 377, 380 (3d Cir. 1981). “Section 1292(b) permits appeals of interlocutory orders upon
certification by the district judge and permission by the court of appeals. It is designed to allow for
early appeal of a legal ruling when resolution of the issue may provide more efficient disposition
ofthe litigation.” /d: “The order need not be a final one nor need it decide all of the issues with
respect to one party[,]" or to all claims. Jé.
By contrast, Rule 54(b) requires that the order be final in the sense that it disposes of one
or more but fewer than all claims against a party or, in a multiple party situation, a claim against
one or more but fewer than all parties. 9 JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE
§ 110.09 (2d ed. 1980). The rule “permits the district judge to direct entry of judgment if there is
nojust reason for delay, thus making the decision appealable.” Ford Motor Credit Co., 664 F. 2d
at 380. “No controlling legal principle need be at issue nor need the court of appeals grant
permission.” /d. “The order, however, must be a final one insofar as it decides a specific claim.”
Id.
At times, the policies behind Rule 54(b) and section 1292(b) may overlap when a final
decision as to one party also involves a controlling principle of law for the litigation. See Curtiss-
Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 n.2 (1980). The 1961 Advisory Committee note to
Rule 54(b) recognized that § 1292(b) certification might be available in such multi-party
situations. but indicated, “[t]he Rule 54(b) procedure seems preferable for those cases, and §
1292(b) should be held inapplicable to them... .” Fed. R. Civ. P. 54(b) advisory committee's note
to 196! amendment; accord 9 MOORE'S FEDERAL PRACTICE § 110.22(5) (“[i]f.an order can be
made appealable by a Rule 54(b) certificate, it, and not a § 1292(b) certificate, should be sought”).
A pro se pleading is held to less stringent standards than more formal pleadings drafted by
lawyers. Estelle vy. Gamble, 429 U.S. 97, 106 (1976); Haines y. Kerner, 404 U.S. 519, 520 (1972). A
pro se litigant, however, is not absolved of meeting the threshold statutory requirements for its
pleadings. See Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir. 2010) (holding that pro se litigants must
comply with 12(b)(6) pleading requirements).
lil. DISCUSSION
Plaintiffs here have not specified the theory under which they seek leave to appeal the
District Court's Order. Defendants construe Plaintiffs’ Motion as a request for certification under
§ 1292(b) and argue that it should be denied under that framework. (Defs.” Opp‘n to Pls.” Mot. *7,
ECF No. 76.) In order to construe Plaintiffs° motion expansively, the Court analyzes their claims
under both § 1292(b) and Rule 54(b). See Advanced Orthopedics & Sports Med. Inst. v. Int'l Union
of Operating Eng’rs., No. 19-5076, 2020 WL 4345301, at *2 (D.N.J. July 29, 2020) (construing
defendant’s motion brought pursuant to Federal Rule of Appellate Procedure 5(a)(3) and Fed.R.
Civ. P. §1292(b) to include request for Rule 54(b) certification.)
A. Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)
In their Motion, Plaintiffs do not articulate arguments as to why the Court should certify
its August 11,2020 Order for appeal under §1292(b). Instead, they present two main objections to
the Court's ruling. First, Plaintiffs argue that their claims on behalf of C.F. were not made under
the IDEA, and therefore should not be barred for failure to exhaust administrative remedies. (Mot.
8.) Second, Plaintiffs argue that the Entire Controversy Doctrine should not bar their claims
because the Superior Court and District Court actions differ in multiple ways. (/d. at 9-13.) Even
construing pro se Plaintiffs’ claims liberally, the Court finds, for the reasons set forth below, that
neither of Plaintiffs’ arguments presents a “controlling question of law as to which there is
substantial ground for difference of opinion.” and thus fail to meet the requirements of § 1292(b).
1. Failure to Exhaust Administrative Remedies
On August 11, 2020. the Court found that. while Plaintiffs did not specifically mention
either the IDEA or whether C.F. had been afforded a Free Appropriate Public Education (*"FAPE”)
in the Second Amended Complaint (“SAC”). the SAC included claims that were effectively based
on the IDEA. (See Mem. Op. 6-8.) Plaintiffs’ failure to exhaust administrative remedies,
therefore, continued to bar those claims. In the Opinion, the Court noted that Plaintiffs” First
Amended Complaint cited the IDEA and alleged that C.F. was denied a FAPE; the SAC essentially
repeated those claims, albeit without citing to the IDEA or specifically alleging denial ofa FAPE.
(See id.) Analyzing Plaintiffs’ claims under Fry v. Napoleon Cty Schs., 137 S. Ct. 743 (2017)
and Wellman v. Butler Area Sch. Dist., 877 F. 3d (25 (3d Cir. 2017), the Court found that the
gravamen of Plaintiffs’ claims (as to C.F. only) could only arise from C.F.’s alleged denial of a
FAPE and therefore the IDEA. (See id. at 6-7.) Nothing in Plaintiffs’ present Motion justifies a
substantial ground for difference of opinion” on this finding such that an immediate appeal is
necessary to resolve it. Nor would such an appeal materially advance the ultimate termination of
the litigation.
2. Dismissal of Plaintiffs’ Claims Under the Entire Controversy Doctrine
As to Plaintiffs’ second claim, the Court found in its August 2020 Opinion that the District
Court and Superior Court suits, while not identical, arise out of a common set of facts. (/d. at 9.)
Both relate to the same alleged harms suffered by Dawidoicz or C.F. over roughly the same period
of time. The Court noted some distinctions between the two actions, including the addition of
Rachel Tait as a Defendant in this action, and some changes to the allegations. (/d.) But this did
not rebut the basic fact that they “arise from related facts” and “from the same transaction or series
oftransactions[,]” thus making them subject to the Entire Controversy Doctrine. Coleman v. Chase
Home Fin., LLC, 446 F. App’x 469, 471-72 (3d Cir. 2011).
There is no substantial difference of opinion regarding the Entire Controversy Doctrine.
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 citations omitted). Accordingly, New Jersey
federal courts are bound by the Entire Controversy Doctrine. /d. Plaintiffs here offer no argument
or legal authority, nor does the Court find any upon its review, suggesting “a substantial ground
for difference of opinion” that would justify an immediate appeal of the Court's finding.
Lastly, an immediate appeal will not materially advance the ultimate termination of the
litigation. Neither of the issues raised by Plaintiffs relate to, nor would they resolve the remaining
claims against the remaining Defendants. This factor weighs against § 1292(b) certification.
Reviewing all of the relevant factors, the Court finds no basis for certification under § 1292(b).
B. Certification of Final Judgment Pursuant to Rule 54(b)
The first step in evaluating the appropriateness of a certification under Rule 54(b) is to
determine whether the judgment for which certification is being sought is “final” with respect to
one of the claims in the case. Curtiss-Wright, 446 U.S. at 7 (internal citations omitted). The
decision must be “a [*]judgment’ in the sense that it is a decision upon a cognizable claim for
relief, and it must be ‘final” in the sense that it is “an ultimate disposition of an individual claim
entered in the course ofa multiple claims action.” Skeorka v. Kean Univ., No. 09-3428, 2014 WL
59744, at *3 (D.N.J. Jan. 6, 2014) (quoting Curtiss-Wright, 446 U.S. at 7). Here, the Court
dismissed Plaintiffs’ claims against Eden Defendants. (ECF No. 70.) Accordingly, the August
2020 Order Plaintiffs seek to appeal is a final judgment and “a decision upon a cognizable claim
for relief.” Skoorka, 2014 WL 59744, at *3. The Court's ruling is thus a “final order” for purposes
of Rule 54(b).
The second step is to determine whether there is no “just reason for delay” in entering
partial judgment. Elliott, 682 F.3d at 220. This requirement “is not merely formalistic[,]” é¢., but
rather depends on an evaluation of factors including:
(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir. 2006) (citing A/lis-Chalmers Corp.
v. Phila. Elec. Co., 52\ F.2d 360, 364 (3d Cir. 1975), abrogated on other grounds by Curtiss-
Wright Corp., 446 U.S. at 9). “Courts have placed particular emphasis on the first factor.” Nafar
v. Hollywood Tanning Sys., Inc., No. 06-3826, 2011 WL 830286, at *2 (D.N.J. Mar. 2.
2011) (citing Amboy Bancorporation v. Jenkens & Gilchrist, No. 02-5410, 2009 WL 4117355, at
*2 (D.N.J. Nov.18, 2009)).
Here, the Court concludes there is “just reason for delay” in entering partial final judgment
for the reasons set forth below.
“Where the adjudicated and unadjudicated claims share significant similarities, such as
involving the same parties, the same legal issues, or the same evidence, Rule 54(b) certification is
disfavored.” Indivior, 2020 WL 4932547, at *12. Because Plaintiffs’ claims against Eden
Defendants involve the same legal issues and the same evidence as the unadjudicated clatms, the
first factor weighs against granting partial final judgment. (See generally SAC, ECF No. 53.)
Plaintiffs’ legal claims against all defendants include, inter alia, discrimination, harassment,
intentional infliction of emotional distress. and intimidation. (/d. at 9-10.) Plaintiffs’ claims
against all defendants arise from a similar set of facts and include the same evidence. (See
generally id.) Thus, Rule 54(b) certification is disfavored.
Under the second factor, the test is whether “resolution ofadditional issues ... would reach
back to alter or moot the rulings made thus far as to the [decision here].” /ndivior, 2020 WL
4932547, at *13. Here, the resolution of additional issues with the remaining defendants could
conceivably alter or moot the claims against Eden Defendants. Given the significant similarities
between the adjudicated and unadjudicated claims here, the discovery process and litigation of
additional issues could render moot or otherwise alter the basis for this appeal. This factor,
therefore, weighs strongly against granting partial final judgment under Rule 54(b).
Consideration of the third factor is intended to ensure the court “take[s] into account
judicial administrative interests as well as the equities involved.” Curtiss-Wright, 446 U.S. at 8.
This factor also weighs against granting final partial judgment. In the event there is an appeal of
the Court's final disposition of this case (by any party), the Third Circuit could be called upon to
review the facts in this case twice, contrary to the “historic federal policy against piecemeal
appeals.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438 (1956).
Given the strong weight of the first three factors against certification, it is clear that
Plaintiffs cannot satisfy the second prong of the Curtiss-Wright test. The Court finds, therefore,
that granting Plaintiffs’ Motion pursuant to Rule 54(b) would be inappropriate. Doing so would
not serve the purposes embodied in Rule 54(b), nor constitute an appropriate use ofjudicial
resources. Plaintiffs have not presented. nor does the Court find, sufficient justification to
overcome the well-established policy against piecemeal appeals. The Court, accordingly, denies
Plaintiffs” Motion for Leave to Appeal.
IV. CONCLUSION
The Court finds an insufficient basis for certification of an immediate appeal under either
28 U.S.C. § 1292(b) or Rule 54(b), and therefore denies Plaintiffs’ Motion.
MaPthepl MICHAEL A. SHIPP UNITED STATES DISTRICT JUDGE