United States District Court, D. New Jersey
For A.S., A MINOR, INDIVIDUALLY AND BY HIS PARENTS H.S. AND M.S., Plaintiff: JAMIE EPSTEIN, LEAD ATTORNEY, CHERRY HILL, NJ.
For NEW JERSEY DEPARTMENT OF EDUCATION, COMMISSIONER CHRISTOPHER D. CERF, Defendants: CAROLINE GENETT JONES, LEAD ATTORNEY, STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, TRENTON, NJ.
NOEL L. HILLMAN, United States District Judge.
Presently before the Court is the motion of Defendants, Christopher Cerf and the New Jersey Department of Education (hereafter, " NJDOE" ), to dismiss Plaintiff's Second Amended Complaint [Doc. No. 29] (hereafter, " SAC" ). The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons that follow, Defendants' motion is granted, and the claims against the NJDOE and Commissioner Cerf contained in Counts V and VI will be dismissed without prejudice.
The minor Plaintiff, A.S., now a seven year-old student, has numerous alleged disabilities, including autism spectrum disorder, attention deficit hyperactivity disorder, epilepsy, and hearing impairment. (SAC ¶ 4.) A.S. resides with his parents and legal guardians, Plaintiffs H.S. and M.S., in the Township of Mullica Hill, New Jersey. (Id. ¶ 5.) Defendant Harrison Township Board of Education (hereafter, " Harrison BOE" ) is a " Local Educational
Authority," as defined by 20 U.S.C. § 1401, responsible for ensuring compliance with certain federal mandates for school-aged students residing in the Township of Mullica Hill. (Id. ¶ 7.) Defendant NJDOE is a " State Educational Authority," as defined by 20 U.S.C. § 1401, responsible for ensuring compliance with certain federal mandates for school-aged students. (Id. ¶ 6.) Defendant Cerf is the Commissioner of the NJDOE, serving as New Jersey's chief executive school officer and as Secretary of the State Board of Education. (Id.) Commissioner Cerf is being sued in his individual and official capacities. (Id.)
On October 29, 2012, when A.S. was five years old, Plaintiffs filed a due process petition pursuant to the Individuals with Disabilities Education Act of 2004, 20 U.S.C. § 1400 et seq. (hereafter, " IDEA" ), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (hereafter, " ADA" ). (Id. ¶ 12.) In the petition, Plaintiffs sought several remedies, such as a finding that A.S. should be classified and provided special education; that the Harrison BOE should maintain A.S. at Cherrywood Academy and Private Preschool for the remainder of the current school year; that the Harrison BOE should provide A.S. with compensatory education for the period of time it should have known that A.S. was not receiving a free and appropriate education (hereafter, " FAPE" ) in the least restrictive environment; that the Harrison BOE should reimburse Plaintiffs for tuition, transportation and related costs at Cherrywood; and other unspecified remedies. (Id. ¶ 13.)
Defendant NJDOE transmitted the matter to the New Jersey Office of Administrative Law (hereafter, " NJOAL" ) on December 4, 2012 for an initial hearing. (SAC ¶ 14.) The hearing was not held until March 18, 2013, although the hearing was required to be held, according to Plaintiffs, by November 29, 2012. (Id.) The NJOAL held eight days of hearings on the petition between March 18, 2013 and September 11, 2013. (Id. ¶ 15.)
An Administrative Law Judge entered a final decision on October 11, 2013, which provided:
It is ORDERED that the petition of parents H.S. and M.S. on behalf of A.S. is GRANTED. A.S. shall be classified and provided special education. The District shall compensate the parents and reimburse them the co-pays for tuition for the 2012-13 school year in the amount of $2,460.00. I also ORDER that the transportation expense of $1,321.84 for mileage reimbursement shall be paid to the parents by the District.
I further ORDER that the petition of the District to conduct a pediatric neurological evaluation of A.S. in order to determine the present state of his disability is GRANTED.
Pending completion of that evaluation, A.S. shall be classified as other health impaired and shall be provided with an IEP and special-education services designed to accommodate his particular needs. A 504 plan shall also be formulated to maximize his access to education in the least restrictive environment.
(SAC ¶ 16.) Thus, according to the Order, the Harrison BOE was to pay Plaintiffs H.S. and M.S. a total of $3,781.84. The Order did not specify a time period for compliance. (See Compl., Ex. (Decision of NJOAL) at 40-41 [Doc. No. 14-1].)
On October 24, 2013, thirteen days after the Order was entered, " after numerous prior unsuccessful attempts to get Defendant Harrison to pay the ordered reimbursements," Plaintiffs complained to the NJDOE that the Harrison BOE had failed to comply with the Order. (SAC ¶ 18.)
The NJDOE purportedly waited until December 4, 2013 to direct the Harrison BOE to comply with the October 11, 2013 Order. (Id. ¶ 19.) The Harrison BOE allegedly complied with the Order on December 17, 2013. (Id.)
On January 9, 2014, Plaintiff filed a complaint in this Court alleging violations of the IDEA, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the New Jersey Law Against Discrimination (" NJLAD" ), N.J. Stat. Ann. 10:5-1 et seq.. Based on Plaintiff's allegations, Counts I through IV are directed at the Harrison BOE and fictitious defendants, Count V is directed against the NJDOE, NJDOE ...