NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EK., T.K. and D.K.. Civil ction No.: lUcvMO687 (CCC)

Plaintiffs.

OPINION

RIVER DELL REGIONAL SCHOOLDISTRICT BOARD OF EDUCATION,CHARLES LANGE, LORRAINE BROOKS,

SUSAN BECKER, DESIREE FERRANDI,

and KATHRYN KREGER, in theirindividual and official capacities, and

PATRICK 3. FLETCHER, in his official

capacity,

Defendants.

CECCHI, District Judge.

Currently pending before the Court is a motion for summary judgment filed on March 7,

2014 by defendants River Dell Regional School District Board of Education, Charles Lange,

Lorraine Brooks, Susan Becker, Kathryn Kreger, and Patrick J. Fletcher (collectively,

“Defendants”). Plaintiffs E.K., T.K. and D. K. (collectively, “Plaintiffs”) filed an opposition to

Defendants’ motion on June 9, 2014. (ECF No. 56). The Court decides the motion without oralargument pursuant to Rule 78 of the Federal Rules of Civil Procedure.’ For the reasons set forth

below, the Court grants Defendants’ motion for summary judgment.

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I. BACKGROUND 2

Plaintiff E,K. is the son of father T.K. and mother D.K, This case arises from plaintiff

E.K.’s (“E.K,”) enrollment and education at River Dell High School (“River Dell”) between

2007 and 2011. E,K, was diaguosed with the learning disability ‘Attention Deficit Hyperactivity

Disorder (“ADHD”) when he was 8 years old. At that time. E.K. was enrolled at Solomon

Schechter School, a K-12 private school. E.K.’s ADHD was reevaluated at the Hackensack

Medical Center when E.K. was 14, The results suggested that E.K. continued to suffer from

ADHD.

In June 2007, E.K.s parents met with representatives of River Dell’s Special Education

Program. During the meeting, D.K. and T.K. submitted the results of E.K.’s learning disability

evaluations and were told that if E.K. enrolled at River Dell, a specialized plan would be put in

place to address his disability. Thereafter, D.K. and T.K. enrolled E.K. at River Dell as a

sophomore, to begin attendance in September 2007.

In August 2007, T.K. called Defendant Charles Lange (“Mr. Lange”), Director of Special

Services at River Dell, to discuss the specialized plan for addressing E.K.’s ADHD, however,

T.K. was advised to call back in September because E.K.’s file had yet to be reviewed. In

September, T.K. called again and was told by Mr. Lange to call back in October. In October,

T.K. called a third time and was directed by Mr. Lange to speak to Defendant Susan Becker

(“Ms. Becker”). Subsequently, Ms. Becker explained to T.K. that she could not comment on

E.K. ‘s accommodations until she received certain information from Mr. Lange.

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regarding special education accommodations, Ms. Becker explained to T.K. that EK. would not

be afforded any special services or accommodations until Ms. Becker received certain

information from Mr. Lange. T.K. then called Mr. Lange, who directed T.K. to Ms. Becker.

At the end of his first semester at River Dell, E.K.’s teachers observed that E.K. was

frequently missing work, lacking in concentration and disorganized. in addition, E.K,’s grades

were siiticantly below average. Over the following two years. E.K. ‘s grades remained poor.

By E.K.’s senior year, E.K. was failing several courses.

In October 2009, during E.K.’s senior year, D.K. took E,K. to an adolescent psychiatrist

who requested a copy of River Dell’s evaluation report and 504 plan. D.K. contacted River Dell

to obtain the report and plan and was informed that evaluations had never been performed, E.K.

had never been classified and no plan or accommodation had ever been put in place. D.K. then

contacted Nr. Lange, who admitted River Dell had failed to evaluate E.K. and blamed the

mistake on the loss of E.K.’s file. Mr. Lange offered to institute a 504 plan for the remainder of

E.K.’s senior year.

In April 2010, River Dell finally instituted a 504 plan for E.K. However, despite the 504

plan, E.K. failed his English and Computer Art Graphics courses, did not receive a diploma and

was not permitted to participate in graduation. That summer, E.K. was tutored by his

grandfather while taking courses at Bergen Community College. In September 2010, E.K.

earned sufficient credits to receive a high school diploma. 3

In December 201 1. E.K., T.K. and D.K. brought suit as joint plaintiffs against the

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compensatory damages, attorneys’ fees and such other relief as the court deems just under

Section 504 of the Rehabilitation Act (“Section 504”). the New Jersey Law Against

Discrimination (“NJLAD”). and the Due Process Clause of the l4 Amendment to the United

States Constitution. Compi. 12 (11 6676, Feb. 7. 2011. ECF No, 3. Defendants’ motion for

summary judgment followed. (ECF No. 48)

11. LEGAL STANDARD

Summary judgment is appropriate if the ‘depositions, documents. electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, orother materials” demonstrate that there is no genuine issue as to any material fact, and,

construing all facts and inferences in a light most favorable to the non-moving party, “the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d

860, 864 (3d Cir. 1986).

The moving party has the initial burden of proving the absence of a genuine issue of

material fact. See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the nonmoving party has the burden of identifying specific facts to show that, to the contrary, there

exists a genuine issue of material fact for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio

Co, 475 U.S. 574, 586-87 (1986). In order to meet its burden, the non-moving party must “go

beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine

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Inc., 477 U.S. 242, 249 (1986); Big Apple BMW. inc. v, BMW of N, Am., Inc.. 974 F.2d 1358,

1363 (3d Cir. 1992) (stating that “[t]o raise a genuine issue of material fact,” the opponent must

“exceed the ‘mere scintilla’ threshold ....“). A fact is “material” if a dispute about that fact

might affect the outcome of the suit under governing [substantive} law.” and a “genuine” issue

exists as to that fact “if the evidence is such that a reasonable jury could return a verdict for thenon moving party.” Anderson, 477 U.S. at 248. The Court’s role is to determine whether there

is a genuine issue for trial, not to weigh the evidence and decide the truth of the matter. j at

249.

III. DISCUSSION

A. Section 504 of the Rehabilitation ActPlaintiffs’ first claim is brought pursuant to Section 504 of the Rehabilitation Act

(“Section 504”). Section 504 prohibits disability discrimination by school districts receiving

federal financial assistance. Jeremy H. by Hunter v. Mount Lebanon Sch. Dist., 95 F.3d 272,

278 (3d Cir. 1996). The statute provides in relevant part:

[Nb othenvise qualified individual with a disability in the United States. . . shall, solely

by reason of his or her disability, be excluded from the participation in, be denied the

benefits ot or be subject to discrimination under any program or activity receiving

Federal financial assistance or under any program or activity conducted by any Executive

agency.

29 U.S.C. § 794(a).

Defendants argue that this Court does not have subject matter jurisdiction over Plaintiffs’

Section 504 claim because Plaintiffs failed to exhaust their administrative remedies pursuant to

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the IDEA administrative process, and thus, the Plaintiffs’ claim is exempt from the exhaustion

requirement. Pltfs Opp. to Mot. Summ. J. 17. ECF No. 56.

1. The Exhaustion Requirement

Pursuant to the IDEA, a district court can assert subject matter jurisdiction over civil

actions seeking relief available under the IDEA only after the plaintiffs exhaust their

administrative remedies. 20 LS.C. § 1415(1) (“before the filing of a civil action under such lawsseeking relief that is also available under this subchapter, the procedures under subsections (f)

and (g) shall be exhausted to the same extent as would be required had the action been brought

under this subchapter.”). The Third Circuit has held that this provision applies to claims brought

under Section 504 of the Rehabilitation Act. Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d

266, 272 (3d Cir. 2014) (IDEA “bars plaintiffs from circumventing the IDEA’s exhaustion

requirement by taking claims that could have been brought under IDEA and repackaging them as

claims under some other statute- e.g., section 504 ofthe Rehabilitation Act . . . .“) (citing JeremyH., 95 F.3d at 281).

2. Applicability of the IDEA’s Exhaustion Requirement

[D]etermining if the IDEA’s administrative process must be exhausted before bringing

claims in federal court turns on whether the parties could have asserted the claims under

the IDEA. Intertwined with this inquiry is whether the claims could have been remedied

by the IDEA’s administrative process.

Batchelor, 759 F.3d at 272-273; see R.R. v. Manheim Tp. Sch. Dist., 412 F. App’x. 544, 550 (3d

Cir. 2011); see also James S. cx rel. Thelma S. v. Sch. Dist. of Phila., 559 F.Supp. 2d 600, 616

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child[,]’” the relevant inquiry is whether the plaintiffs’ claims “relate” to the identification.

evaluation, or educational placement of a disabled student. Id. at 274 (citing 20 U.S.C.

1415(b)(6)(A)) (emphasis in original)

Plaintiffs allege that River Dell violated Section 504 by negligently and/or intentionally

failing to timely evaluate E,K. for a learning disability and provide him with appropriate

accommodations. Compi. 10-11 ¶1, 61-65, ECF No. 3. The alleged result of River Dell’s

misfeasance was, inter a/ia. a significant reduction in the benefit gained from his educational

experience. Compi, 10-1 1 ¶J 63-64, ECF No. 3. The evaluation of a student’s learning

disability, the provision of corresponding accommodations and the benefits of education,

irrefutably relate to the “identification, evaluation and educational placement of a disabled

student.” Batchelor, 759 F.3d at 274. Therefore, the IDEA’s exhaustion requirement applies to

Plaintiffs’ claim and the Court must determine whether the administrative process was, in fact,

exhausted. Id. (a Section 504 claim alleging numerous actions by school district to sabotage

student’s education “relate[s] unmistakably to the provision of a free appropriate public

education. and [is] thus subject to the IDEA’s exhaustion requirement”) (citing Rose v. Yeaw,

214 F.3d 206, 210 (1st Cir. 2000)); see also S.B. v. Trenton Bd. of Educ.. iso. CIV.A. 13-0949

FLW. 2014 WL 5089716, at *5 (D.N.J. Oct. 9, 2014).

3. Exhaustion of Available Administrative Remedies

The purpose of the IDEA is to 11ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services

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receiving federal financial assistance, the process provides parents with an avenue to file a

complaint and to participate in an impartial due process hearing. 20 LJ.SC. 14l5(b)(6)(A)and 1415(f)(l)(A). In New Jersey. after a parent files an administrative complaint, parents and

the school board go to mediation; thereafter, if mediation is unsuccessful. a due process hearing

is held before an administrative law judge (“ALl’). See 20 USC. § 1415(e) and (f); N.J.A.C.6A: 14-2.7(e) and (d): see also, NJ Department of Education, IDEA 2004: Summary of Mediation

and Due Process Requirements (2005). The AU is empowered to provide various forms of

relief, including compensatory education, financial reimbursement, and attorneys’ fees. 20U.S.C. § 1400, 1401(8). 1412 (a)(1)(A), 1415(i)(2)(B)(iii).

Prior to the instant action, Plaintiffs did not file a due process grievance, did not engage

in mediation with the school district and did not seek a due process hearing. Thus, theiradministrative remedies were not exhausted and this Court is deprived of subject matter

jurisdiction unless an exception applies.

4. Exception to the IDEA’s Exhaustion Requirement

Plaintiffs argue that even if their Section 504 claim falls within the scope of the

exhaustion requirement, it is exempt because Plaintiffs’ requested relief, compensatory damages,is unavailable through the administrative process. Pltf’s Opp. to Mot. Summ. J. 17, ECF No. 56.

Previously, courts in this circuit have held actions seeking compensatory damages to be exempt

from exhaustion. See ç,g, D.G. v. Somerset Hills Sch. Dist., 559 F. Supp. 2d 484, 496 (D.N.J.2008). However, in a July 2014 decision, the Third Circuit Court of Appeals clarified that

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Such is the case here.

In Batchelor v. Rose Tree Media School District, the Third Circuit observed that “the

theory behind [Plaintiffs’] grievance may activate the IDEA’s process, even if the [Plaintiffs]

want a form of relief that the IDEA does not supply.” Id, (citing Charlie F. v, Bd. of Educ, of

Skokie Sch, Dist. 68, 98 F,3d 989, 992 (7th Cir, 1996)). Thus.

[i]n response to a school district’s alleged bad behavior, the educational harms suffered

by children with disabilities will be addressed first and foremost during the IDEA’s

administrative process. Once these educational deficiencies have been addressed, victims

may seek further remedy in court pursuant to statutory schemes allowing forcompensatory and punitive damages, such as Section 504...,

Id. at 278. Therefore, the question of whether a plaintiff is exempt from exhaustion does not

focus on the reliefrequested, but on the educational harm suffered. j4.

Preliminarily, the Court notes that, like the plaintiff in Batchelor, Plaintiffs’ requested

relief is not confined to compensatory damages. In addition to compensatory damages, plaintiffs

also request “reasonable attorneys’ fees and costs; [and, s]uch other relief as the Court deems

just. Compl. 12 ¶ 74, ECF No. 3. In a due process hearing, an administrative law judge may

grant relief in the form of attorneys’ fees, compensatory education, and reimbursement. See

Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194. 197 (3d Cir. 2004) (affirming an

administrative law judge’s order for a school district “to reimburse [the student] for the out-ofdistrict tuition and related costs, including [the student’]s reasonable attorneys’ fees”). Thus. the

Plaintiffs do. in fact, seek relief available under the IDEA.

Now the Court turns to whether the allegations underlying the Plaintiffs’ causes of action

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appropriate public education are the very grievances upon which the IDEA’s administrative

process was built to address, 20 U.S.C. § 1400(d)(l)( ) (the purpose of the IDEA is to “ensure

that all children with disabilities have available to them a free appropriate public education that

emphasizes special education and related services desied to meet their unique needs”). If theallegations in the complaint had been proven before an AU, E.K. and his parents would have

had access to specifically tailored relief, guided by administrative officials with expertise in the

field of education. In addition, the AU could have fashioned further appropriate remedies on an

ad hoc basis “to ensure that [E.K.] [wa]s fully compensated for [River Dell’s] past violations.under the IDEA and develop an appropriate equitable award.” D.F. v. Collingwood Borough

Board of Education, 694 F.3d 488, 498-99 (3d Cir. 2012) (internal citation omitted). Thus, the

nature of Plaintiffs’ educational harms are such that they could have found effective relief

through the administrative process.

This finding is buttressed by the Court’s observation that although compensatory

damages are not available in a due process hearing, an AU could have provided Plaintiffs with

compensatory education, such as the costs of classes at Bergen Community College, see ForestGrove Sch. Dist., 557 U.S. at 246; Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359,370 (U.S. 1985); Lester H. v. Gilhool, 916 F.2d 865, 869-70 (3d Cir. 1990), and tutoring byE.K.’s grandfather. 694 F.3d at 498-499 (compensatory education can take the form ofsummer school and tutoring), Indeed, “Congress meant to include retroactive reimbursement to

parents as an available remedy in a proper case.” Batchelor, 759 F.3d 277 (citing Sch. Comm. of

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Section 504 claim seeking only compensatory damages, where IDEA “[wa]s the most

appropriate avenue of relief’). Therefore, because the IDEA administrative process could have

provided relief for the educational harms suffered by E.K. the Plaintiffs are not exempt from

exhaustion.

Even taking all inferences in Plaintiffs’ favor, the present action falls within the ambit of

the IDEA exhaustion requirement. Plaintiffs failed to satisfy the exhaustion requirement and are

unable to demonstrate that an exception applies. 4 Accordingly, this Court cannot assert subject

matter jurisdiction over the Plaintiffs’ Section 504 claim and Defendants’ motion for summary

judgment is granted. 5

B. NJLAD Claims brought by D.K. and T.K. on E.K.’s Behalf against All

Defendants

Defendants also move for summary judgment as to Plaintiffs’ state law claim under the

Plaintiffs also argue they should be excused from exhaustion because a) they only

became aware oftheir rights under Section 504 after E.K. graduated, and b) at the time of filing,

the injuries to E.K.’s education were in the past, leaving damages the only viable relief Pltf’s

Mot. Summ. J. 21-23, ECF No. 56. Plaintiffs’ arguments fail. By their own admission, Plaintiffs

were aware of potential avenues ofrelief while E.K. was still in high school: “[the Plaintiffs

reached out to an attorney and] learned ofthe potential relief available to them. . . late in the first

semester of [E.K. ‘s] senior year.” Pltfs Opp. to ot. Summ. J. 19. ECF No. 56. Plaintiffs alsoadmit the availability of administrative remedies at the time of filing the instant complaint: “[in

2011,1 the focus of the litigation was not on the supplemental educational relief possibly

available under the IDEA . . . but rather on the economic disadvantages [suffered by E.K.] .

.“ Pltf’s Opp. to i\’iot. Summ. J. 22, ECF No. 56. Finally, at the time of filing the instant

complaint, E.K. was only a few months out of high school and under the age oftwenty-one.

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NJLAD. Def’s Mot. Summ, J. 26, ECF No. 48. However, the Court declines to assert

supplemental jurisdiction and dismisses Plaintiffs’ state law claim without prejudice. See 28

U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over

[related state law claims] if ..the district court has dismissed all claims over which it has

original jurisdiction.”): see also Figueroa Buccaneer Hotel, inc.. 188 F.3d 172. 181 (3d Cir.

1999) (“Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental

jurisdiction over a claim if the district court has dismissed all claims over which it has originaljurisdiction.”).

“[T]he Third Circuit has held that, where all federal claims are dismissed before trial, ‘the

district court must decline to decide the supplemental state claims unless considerations of

judicial economy, convenience, and fairness to the parties provide an affirmative justification for

doing so.” Fitzgerald v. Bellmawr Borough, Civil No. 05-1264 (JBS), 2007 WL 2687456, at 9

(D.N.J. Sept. 6, 2007) (quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citations

omitted) (emphasis added)); City of Pittsburgh Com’n on Human Relations v. Key Bank USA,

163 F. App’x 163, 166 (3d Cir. 2006) (“[I]f it appears that all federal claims are subject to

dismissal, the court should not exercise jurisdiction over remaining claims unless ‘extraordinarycircumstances’ exist.”) (citations omitted)). “Needless decisions of state law should be avoided

both as a matter of comity and to promote justice between the parties, by procuring for them a

surer-footed reading of applicable law.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966).

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and expense incurred by the parties do not constitute extraordinary circumstances.” City of

Pittsburgh Com’n on Human Relations, 163 F. App’x at 166 (citations and quotations omitted).

To the extent that Plaintiffs are concerned about any relevant statute of limitations period.

Congress has expressly provided for this foreseeable difficulty:

The period of limitations for any [state law] claim asserted [pursuant to supplemental

jurisdiction] ..shall be tolled while the claim is pending and fbr a period of 30 days

after it is dismissed unless State law provides for a longer tolling period,

28 U.S,C. § 1367(d); see also 204 F.3d at 123.

Most importantly, any regard for the convenience of the parties is outweighed by the fact

that Plaintiffs’ claims present significant issues of state law, namely whether E.K.s excessive

absenteeism is grounds for disqualification under the NJLAD and whether significant efforts

made by Defendants on the Plaintiffs behalf are sufficient to rise to the level of accommodation

under the NJLAD despite the absence of a memorialized plan or agreement.

The Court therefore finds “that the state court is a better forum to provide the ‘surerfooted reading of the applicable law’ required by Gibbs.” Fitzgerald, 2007 WL 2687456, at *10

(quoting Gibbs, 383 U.S. at 726). Thus, the Court declines to exercise supplemental jurisdictionover Plaintiffs’ state law claims and dismisses them without prejudice such that they may be

refiled in the Superior Court of New Jersey.

IV. CONCLUSION

For the reasons set forth above, the Court grants summary judgment to River Dell as to

E.K.’s claims under Section 504. In addition. by indicating their intent to withdraw or dismiss

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Defendants under Section 5O4. and EK., T.K. and DK’s claims against all Defendants under

the Fourteenth Amendment. Finally, the Court dismisses Plaintiffs’ state law claims without

prejudice in order to allow Plaintiffs to re-file these claims in a court of competent jurisdiction.

An appropriate order follows this opinion.

DATED: Lø _____________________ CLAIRE C, CECCHI, US,DJ.

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