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SOLOMON v. PASSAIC COUNTY EDUCATIONAL SERVICES COMMISSION

September 12, 2005.

HOWARD SOLOMON, Ed.D., Plaintiff,
v.
PASSAIC COUNTY EDUCATIONAL SERVICES COMMISSION, JOAN HALL, JAMES DWYER, THOMAS COMICIOTTO, WILLIAM LIESS, MICHAEL RICE, RICHARD SPIRITO, ANTHONY GONELLA, RAY KWAK, ALBERT GUAZZO, BRUCE deLYON, CHARLES FERRARO, ROBERT HOLSTER, DIANA LOBOSCO, ED DUROY, DENNIS CLANCY, TERRANCE BRENNAN, JAMES BARRIALE, PETER CARTER, VINCENT VARCADIPANE, ALAN SKRILOFF, RICHARD LINKH, ROBERT GILMARTIN, FREDERICK LIJOI, MARIA NUCCETELLI, ANTHONY SCIARRILO, ESQ., JOHN DOES 1-10 (a ficticious name), ABC SCHOOL DISTRICTS 1-10 (a fictitious Passaic County School District), Defendants.



The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge

OPINION

Plaintiff, Howard Solomon, Ed.D., ("Solomon"), is the Superintendent of Defendant Passaic County Educational Services Commission ("Commission"). Solomon commenced this suit November 29, 2004 against the Commission and members of the Board of Directors of the Commission individually, the Commission's attorney, Anthony Sciarrillo, Esq., and Maria Nuccetelli, former Superintendent of Schools for Passaic County. The ten counts of the complaint allege violations of Constitutional rights (42 U.S.C. § 1983), as well as cause of action under various state laws. The claims originate from a June 25, 2002 Commission resolution which placed Solomon on a paid leave of absence until June 2003, when his contract expired, and provided that his contract would not be renewed. The Commission, the Board members and Sciarrillo have filed a motion to dismiss Solomon's complaint under Rule 12(b)(6), contending, among other things, that Solomon's claims are barred by the applicable statute of limitations. Nuccetelli filed a separate motion to dismiss, asserting an additional defense of sovereign immunity from the suit. Solomon has filed a cross-motion seeking to amend the complaint, if necessary, pursuant to Fed.R.Civ.P. 15(a). For the reasons stated below, the Defendants' 12(b)(6) dismissal motions are granted in their entirety because Solomon's federal claims are barred by the applicable statute of limitations, and the Court declines to exercise jurisdiction over the state law claims. Solomon's motion to amend is denied as futile.

  I. BACKGROUND FACTS

  Solomon's version of the facts, as set forth in his complaint, are accepted as true for the purposes of this 12(b)(6) motion. On May 29, 1998, Solomon signed an employment contract ("Contract") with The Commission. (Pl.'s Compl. ¶ 20.) The Contract appointed Solomon Superintendent/School Business Administrator for five years, from July 1, 1998 to June 30, 2003. (Id.) In the Contract, the Commission agreed to provide at least two years notice of non-renewal, or else the 2003-2004 school year term would be automatically added to the Contract. (Id. at ¶¶ 22-23.) The Contract also detailed the procedure for evaluations of Solomon, providing that if Solomon's performance was unsatisfactory in any way, Solomon would receive written notice of "the specific instances of unsatisfactory performance," with recommendations for improvement, and Solomon could "counter with a written . . . response to the evaluation." (Id. at ¶ 25.) Solomon never breached the duties of his employment contract. (Id. at ¶ 28.)

  On June 25, 2002, at a Commission meeting, the Commission unanimously passed "Resolution 02-75." (Id. at ¶ 29). Solomon was present at the meeting (See Pl.'s Ex. B).*fn1 In Resolution 02-75, the Commission decided not to renew Solomon's contract, placed him on administrative leave with salary and benefits until the Contract expired, withheld his salary increase for the 2002-2003 school year, and appointed an interim Superintendent/School Business administrator (Pl.'s Compl. ¶¶ 30, 35, 38, 40.) The Commission also authorised a forensic audit "of the operation of the Commission." (Id. at ¶ 41.) The Commission did not issue a negative written evaluation of Solomon's performance.

  Solomon communicated with the Department of Education, contesting the Commission's actions, and alleging breach of contract. (Id. at ¶ 44.) The Department of Education transmitted the matter to the Office of Administrative Law on November 27, 2002 for a decision. (Pl.'s Ex. C at 2).*fn2 The Commission argued that the Contract's two-year notice provision was unenforceable. On May 10, 2004, the OAL judge concluded that the Contract's two-year notice provision was valid, and ordered that the Commission reinstate Solomon "for the same term as the preceding contract." (Pl.'s Compl. ¶ 50.) The Commissioner of the Department of Education reviewed the decision as per New Jersey Administrative Law procedure (N.J.A.C. 1:1-12.5e), and also determined that the two-year notice provision was enforceable. (Pl.'s Compl. ¶ 52.) However, the State Board of Education could not agree that Solomon should be reinstated, because "there remain[ed] an unresolved question regarding the reach of the preceding contract," and as to back pay and benefits, "no specific determination [could] be made on the present record." (Id. at ¶ 52). Despite this, the Commission notified Solomon on November 12, 2004 that it would reinstate him, "pursuant to the terms of the contract that was in effect prior to his termination." (Id. at ¶ 53).

  On November 29, 2004, Solomon filed this action against the Commission and named individuals. His complaint contains ten counts. Counts I and II are pursuant to 42 U.S.C. § 1983, and allege violations of procedural and substantive due process. (Id. at 17, 19.) Count III alleges defamation and denial of Solomon's liberty interests in securing future employment as a Superintendent or School Business Administrator, presumably pursuant to Section 1983. (Id. at 21.) Count IV alleges breach of contract. (Id. at 23.) Count V alleges "breach of the covenant of good faith and fair dealing." (Id. at 25.) Count VI alleges intentional infliction of emotional distress. (Id. at 26.) Count VII alleges negligent termination. Count VIII alleges violations of the New Jersey Public Meetings Act. (Id. at 27.) Count IX seeks various declaratory relief, including declaratory judgment that the Defendants' actions be declared void and back pay and benefits awarded to Solomon. (Id. at 28.) Finally, Count X alleges a conspiracy amongst Defendants to commit the various wrongs alleged in the other counts of the Complaint, the portion of which dealing with constitutional rights violations presumably being brought pursuant to 42 U.S.C. § 1985. (Id. at 30.) The Defendants other than Nuccetelli have filed a Rule 12(b)(6) motion to dismiss, based on the statute of limitations and insufficient pleading, and Nuccetelli has filed a separate motion to dismiss based on the statute of limitations and sovereign immunity. Solomon filed a cross-motion to amend his complaint.

  II. DISCUSSION

  A. Defendants' 12(b)(6) Motion to Dismiss for Failure to State a Claim

  1. Applicable Standard Fed.R.Civ.P. 12(b)(6) allows a defendant to file a pre-answer motion to dismiss the plaintiff's complaint because it "fail[s] to state a claim upon which relief can be granted." The court will accept as true all factual allegations of the plaintiff's complaint, and will draw all reasonable inferences in the plaintiff's favor when deciding a defendant's Rule 12(b)(6) motion. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1983). The court need not, however, accept the plaintiff's legal conclusions. Kost, 1 F.3d at 183. Where the basis for a 12(b)(6) motion is the statute of limitations, the Court must rely on the time alleged in the complaint to determine if the statute of limitations has expired. Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989). If the statute of limitations has expired, the claim is properly dismissed on a 12(b)(6) motion. See Cito, 892 F.2d at 25 (holding district court properly dismissed Section 1983, 1985, and 1986 claims where statute of limitations had expired).

  2. Federal Claims (Counts I, II, III, IX and X)

  Section 1983 provides, "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . 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." 42 U.S.C. § 1983. Section 1985 addresses conspiracies to violate civil rights. In all or parts of Counts I, II, III, IX, and X, Solomon alleges violations of federal law and Constitutional rights, including procedural and substantive due process and liberty interests. To the extent that Count IX, for declaratory relief, and Count X, charging conspiracy, allege some of these federal rights violations they are included within the following discussion.

  Solomon's complaint alleges that the decisions not to renew his contract, to place him on administrative leave immediately, to "reduce [his] compensation," to appoint an interim Superintendent/School Business Administrator, and to authorize the audit were made on June 25, 2002. (Pl.'s Compl. ¶¶ 29, 34, 37, 39, 41.) Furthermore, the Interim Superintendent was to begin work effective June 26, 2002. (Id. at ¶ 40.) In Count X, he specifically alleges that the Defendants "accomplished [their wrongful conduct] when a new President of the board of the Commission, Diana LoBosco, took office on June 25, 2002." (Id. at ¶ 120.)

  The state statute of limitations for personal injury actions applies to all Section 1983 and 1985 claims. Wilson v. Garcia, 471 U.S. 261, 280 (1985). In New Jersey, the applicable statute of limitations period is two years. Cito, 892 F.2d at 25; see N.J.S.A. 2A:14-2 (New Jersey statute of limitations of 2 years for "actions for injury to persons by wrongful action,"). Solomon contends that the longer statute of limitations applicable to New Jersey contracts should apply to his Section 1983 and 1985 claims, but this argument is without merit. See Kost, 1 F.3d at 190 (calling plaintiff's argument that Pennsylvania's longer breach of contract statute of limitations should apply to a Section 1983 action rather than two-year personal injury period "plainly frivolous."). For allegations of ...


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