UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

“A,” a minor, et al., :

 :

Plaintiffs, : HONORABLE JOSEPH E. IRENAS

 : CIV. ACTION NO. 10-4062 (JEI/AMD)

v. :

 : OPINION

GLOUCESTER TOWNSHIP, et al., :

 :

Defendants. :

APPEARANCES:

MILDENBERG & STALBAUM, P.C.

By: David S. Mildenberg, Esq.

123 South Broad Street, Suite 1610

Philadelphia, Pennsylvania 19109

Counsel for Plaintiffs

PARKER McCAY, P.A.

By: Elizabeth Garcia, Esq.

Three Greentree Center

7001 Lincoln Drive West

P.O. Box 974

Marlton, New Jersey 08053

Counsel for Defendant Gloucester Township

BROWN & CONNERY, LLP

By: Christine P. O’Hearn, Esq.

360 Haddon Avenue

P.O. Box 539

Westmont, New Jersey 08108

Counsel for Defendants Gloucester Township Public

Schools, the Board of Education of Gloucester

Township, and Thomas D. Seddon

ADAMS STERN GUITERREZ & LATTIBOUDERE LLC

By: Perry L. Lattiboudere, Esq.

1037 Raymond Boulevard, Suite 710

Newark, New Jersey 07102

Counsel for Defendants Black Horse Pike Regional

School District, the Board of Education of Black

Horse Pike Regional School District, Ralph E.

Ross, and Mae Robinson

Case 1:10-cv-04062-JEI-AMD Document 65 Filed 07/21/11 Page 1 of 13 PageID: 435
IRENAS, Senior District Judge:

African American Plaintiffs, who were children during the

relevant time period, bring this suit alleging that they were the

victims of pervasive and persistent racism of teachers and

administrators while attending public schools in Gloucester

Township, New Jersey. Presently before the Court are the Motions

to Dismiss of: (1) Defendants Gloucester Township Public Schools,

the Board of Education of Gloucester Township, Board of Education

President William G. Collins, and Superintendent Thomas D. Seddon

(collectively “the Gloucester School District Defendants”); and

(2) Defendants Black Horse Pike Regional School District, the

Board of Education of Black Horse Pike Regional School District,

Superintendent Ralph E. Ross, and Mae Robinson, Principal of the

Timber Creek Regional High School (collectively “the Black Horse 1

Pike School District Defendants”). For the reasons stated 2

herein, the Motions will be granted in part and denied in part.3

Timber Creek Regional High School is one of three high

1

schools within the Black Horse Pike Regional School District.

(Amend. Compl. ¶ 19)

Defendant Gloucester Township has also moved to dismiss 2

all the claims asserted against it. Plaintiffs did not submit

any opposition to the Township’s Motion, and at a status

conference on the record held before Magistrate Judge Donio on

July 13, 2011, Plaintiffs stipulated to the dismissal with

prejudice of all claims against the Township. Accordingly,

Gloucester Township will be terminated as a party to this suit,

and their Motion to Dismiss will be dismissed as moot.

The Court exercises federal question subject matter

3

jurisdiction pursuant to 28 U.S.C. § 1331.

2

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I.

Plaintiffs allege that over the course of several years

(2004 through February, 2010), while attending public schools

within the Gloucester Township School District and the Black

Horse Pike Regional School District, several teachers called them

racially derogatory names such as “nigger” and “tar baby.” 

(Amend. Compl. ¶ 1) The Amended Complaint also alleges that 4

teachers repeatedly tolerated other students’ use of such

language when directed at Plaintiffs. (Amend. Compl. ¶ 37, 44,

50, 56-57, 68, 73, 88, 101)

Further, the Amended Complaint alleges that Plaintiffs

“Minor B” and “Student C” were not allowed to participate in 5

extracurricular activities such as school clubs and sports

because of their race (Amend. Compl. ¶ 69, 90); and that Minor C

received a report card with failing grades in three subjects even

though those grades did not match the actual grades he received

on tests, papers, and quizzes. (Amend. Compl. ¶ 92)

Lastly, the Amended Complaint alleges that Plaintiffs and

their mother reported the alleged incidents of racism to teachers

and school officials, who did nothing, and on at least two

The Amended Complaint alleges that “over 83% of

4

[Gloucester Township’s] population is Caucasian, while only 11% .

. . is African American.” (Amend. Compl. ¶ 35)

At a status conference on the record held before

5

Magistrate Judge Donio on July 13, 2011, Plaintiffs abandoned

their attempt to proceed anonymously on the public docket.

However, the parties’ stipulation identifying the Plaintiffs by

name has not yet been filed.

3

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occasions, responded by calling the Plaintiffs’ mother a

“nigger.” (Amend. Compl. ¶ 47, 50, 51, 54, 55, 67, 71, 78, 79,

94)

Plaintiffs contend that as a result of the “intimidating,

hostile, and hateful” environment (Amend. Compl. ¶ 106) allegedly

created by Defendants, they have suffered mental and physical

injuries in the form of “fear, loss of self esteem, chronic

headaches, severe anxiety, loss of trust in adults . . . hives,

stress, . . . depression, and the loss of innocence.” (Amend.

Compl. ¶ 4)

The Amended Complaint alleges seven counts: (1) a Section

1983 claim of “race discrimination/retaliation” in violation of

the Fourteenth Amendment of the United States Constitution; (2) a

Section 1981 claim of “race discrimination/retaliation”; (3) a

Title VII claim of “race discrimination/retaliation”; (4)

conspiracy to violate Plaintiffs’ civil rights in violation of

Section 1985; (5) “race discrimination/retaliation” in violation

of the New Jersey Law Against Discrimination; (6) intentional

infliction of emotional distress; and (7) negligent infliction of

emotional distress. All claims are asserted against all

Defendants, with the exception of Count 6 (intentional infliction

of emotional distress), which is only asserted against the

“Individual Defendants.”6

The Amended Complaint does not specifically identify the

6

Individual Defendants. It appears from the parties’ briefs that

the Individual Defendants are Superintendent Seddon,

4

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 Pursuant to Fed. R. Civ. P. 12(b)(6), the Moving Defendants

presently move to dismiss Counts 2, 3, 4, 6, and 7 of the Amended

Complaint.

II. 

Federal Rule of Civil Procedure 12(b)(6) provides that a

court may dismiss a complaint “for failure to state a claim upon

which relief can be granted.” In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to

relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.

8(a)(2). 

While a court must accept as true all allegations in the

plaintiff’s complaint, and view them in the light most favorable

to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008), a court is not required to accept sweeping

legal conclusions cast in the form of factual allegations,

unwarranted inferences, or unsupported conclusions. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The

complaint must state sufficient facts to show that the legal

allegations are not simply possible, but plausible. Phillips,

515 F.3d at 234. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

Superintendent Ross, and Principal Robinson.

5

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the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009).

III.

A.

With regard to the New Jersey common law claims (Counts 6

and 7 of the Amended Complaint-- negligent and intentional

infliction of emotional distress), the School District

Defendants assert that the claims are barred because Plaintiffs 7

failed to comply with the notice provision of the New Jersey Tort

Claims Act, N.J.S.A. 59:8-8. 

The Act provides,

A claim relating to a cause of action for . . . injury

or damage to person . . . shall be presented as

provided in this chapter not later than the ninetieth

day after accrual of the cause of action. After the

expiration of six months from the date notice of claim

is received, the claimant may file suit in an

appropriate court of law. The claimant shall be

forever barred from recovering against a public entity

or public employee if:

a. He failed to file his claim with the public entity

within 90 days of accrual of his claim except as

otherwise provided in section 59:8-9; or

b. Two years have elapsed since the accrual of the

claim; or

The Black Horse Pike School District Defendants have not

7

submitted their own separate motion or brief. By informal letter,

they have joined the Motion of the Gloucester School District

Defendants only with regard to dismissal of Counts 6 and 7 of the

Amended Complaint.

6

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c. The claimant or his authorized representative

entered into a settlement agreement with respect to

the claim.

Nothing in this section shall prohibit an infant or

incompetent person from commencing an action under

this act within the time limitations contained herein,

after his coming to or being of full age or sane mind.

Id. (emphasis added).

Contrary to Defendants’ argument, the above-italicized

infant tolling provision tolls both the Act’s 90-day notice

provision and the two-year statute of limitations, not just the

statute of limitations. S.P. v. Collier High School, et al., 319

N.J. Super. 452, 464-66 (App. Div. 1999); Vedutis v. Tesi, 135

N.J. Super. 337, 340-41 (Law Div. 1975); Reale v. Twp. of Wayne,

132 N.J. Super. 100, 107-09 (Law Div. 1975). “By its terms, the 8

[infant tolling] section simply provides that an infant is not

precluded from commencing an action by the section. But the

section extends the right of an infant to bring his claim

throughout the period of his minority.” Barbaria v. Twp. of

Sayreville, 191 N.J. Super. 395, 402 (App. Div. 1983) (citing

Vedutis).

See also Brodsky v. Ounsko, No. MID-L-2564-08, 2010 N.J.

8

Super. Unpub. LEXIS 2308 at *9 n.7 (Law. Div. May 13,

2010)(observing in dicta, “[b]ecause the TCA tolls the notice

provision until a minor reaches majority, Brodsky would arguably

have to file his notice of claim 90 days after his eighteenth

birthday.”) (citing N.J.S.A. 59:8-8).

7

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Minor A

“Minor A” was allegedly born in 2000 (Amend. Compl. ¶ 7),

and is therefore presently a minor. Accordingly, his claims are

technically premature, insofar as N.J.S.A. 59:8-8 provides that

suit may be filed “six months from the date notice of claim is

received,” and his time for filing a notice of claim has not

commenced. However, as New Jersey courts have previously

recognized, dismissal without prejudice is an “inappropriate”

disposition where sufficient time has passed since the filing of

the complaint and there has been no showing that the public

entity has been “frustrated in undertaking an investigation of

the claim.” Reale, 132 N.J. Super. at 111; see also Guerrero v.

Newark, 216 N.J. Super. 66, 74-75 (App. Div. 1987). Here,

Plaintiffs filed their Complaint on August 9, 2010. By this 9

time, Defendants have had sufficient opportunity to “investigate

the claim” and possibly “work toward a settlement,” which are the

goals promoted by the six-month waiting period. Reale, 132 N.J.

at 111. Thus, the Court will not dismiss without prejudice Minor

A’s common law claims.

Minor B

Minor B was allegedly born in November, 1992 (Amend. Compl.

While an Amended Complaint was subsequently filed, the

9

common law claims were not substantially altered by the Amended

Complaint.

8

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¶ 8) , thus she reached majority in November, 2010. The 10

Complaint was filed in August, 2010, thus, as with Minor A, Minor

B’s claims were also premature. For the reasons stated above,

Minor B’s claims will not be dismissed.

 

Student C

Student C was already an “adult” when the Complaint was

filed (Compl. ¶ 10; Amend. Compl. ¶ 10); he was born in October,

1989, and thus reached majority in October, 2007. For all 11

claims accruing prior to Student C reaching the age of eighteen,

the time for filing a tort claim notice expired 90 days after

Student C’s eighteenth birthday. Those claims are now barred

because a tort claim notice was never filed.

Student C may also have claims that accrued after he reached

18 years old. The Amended Complaint alleges that Student C

entered high school in 2004 (Amend. Compl. ¶ 84); thus by

October, 2007 he may have only completed three years of high

The Amended Complaint only contains the year, and not the

10

month of Minor B’s birth. In response to the Court’s letter

Order, Plaintiffs provided to the Court and opposing counsel the

exact birthday for Minor B. As Plaintiffs have abandoned their

efforts to proceed anonymously, the Court presumes they have no

objection to the inclusion of Minor B’s birth-month in this

Opinion. If Plaintiffs do object, they may file an appropriate

motion to seal.

As with Minor B, the Amended Complaint does not plead

11

Student C’s birth date. That information was provided pursuant to

the Court’s letter Order. As with Minor B, should Plaintiffs

object to the inclusion of Student C’s birth month and year in

this Opinion, Plaintiffs may file an appropriate motion to seal.

9

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school, potentially leaving one year remaining. However, all 12

of those claims-- if any, the Amended Complaint is not specific

in this regard-- are also barred because no tort claim notice was

filed, and such a notice would have had to be filed 90 days from

claim accrual, which would have taken place sometime between

October, 2007 (when Student C turned 18) and June, 2008

(presumably the latest possible date Student C could have

graduated). As noted already, the Complaint was not filed until

August, 2010, much more than 90 days after the accrual of the

latest possible accruing claim.13

Accordingly, the Court holds that all of Student C’s claims

for negligent and intentional infliction of emotional distress

are barred for failure to file a notice of tort claim.

The School District Defendants’ Motion to Dismiss Counts 6

and 7 will be granted as to Student C’s claims but denied as to

Minor A and B’s claims.

The Amended Complaint alleges that Student C “received 12

his [high school] diploma early” (Amend. Compl. ¶ 102), but does

not indicate the date of his graduation.

It also appears that all of Student C’s claims accrued

13

more than two years before the Complaint was filed, and would thus

be barred by the two-year statute of limitations. However, the

Moving Defendants have not raised the issue, therefore the Court

does not rule on it.

10

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B.

Next, the Gloucester School District Defendants argue that

the Amended Complaint fails to state a claim under § 1981 (Count

2). They argue, among other things, that Plaintiffs’ vague

allegations with regard to an “Enrollment Agreement” between

Plaintiffs and the Gloucester School District Defendants do not

sufficiently allege the existence of a contract, as that term is

used in § 1981. See 42 U.S.C. § 1981 (“All persons within the

jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts . . .”). 

The § 1981 claim will be dismissed, but for a much simpler

reason. In McGovern v. City of Philadelphia, the Third Circuit

joined five other Courts of Appeal in holding that “‘the express

cause of action for damages created by § 1983 constitutes the

exclusive federal remedy for violation of rights guaranteed in 

§ 1981 by state governmental units.’” 554 F.3d 114, 120 (3d Cir.

2009) (quoting Jett v. Dallas Independent School District, 491

U.S. 701, 733 (1989)).14

The Gloucester School District Defendants are state actors. 

Indeed, Plaintiffs’ § 1983 claim implicitly concedes this point. 

Accordingly, the Amended Complaint fails to state a claim under §

1981. The Gloucester School District Defendants’ Motion to

“[Section] 1981 created an implied cause of action against

14

private actors.” McGovern, 554 F.3d at 117 n.3 (italics in

McGovern; citing Jett).

11

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Dismiss will be granted with regard to Count 2 of the Amended

Complaint. While the Black Horse Pike School District Defendants

have not joined in the Gloucester School District Defendants’

Motion to Dismiss this claim, the Court’s holding with respect to

the § 1981 claim is now the law of the case and applies equally

to the Black Horse Pike Defendants as they are also state actors. 

Accordingly, Count 2 of the Amended Complaint will be dismissed

in its entirety against all Defendants.

The Motion to Dismiss will be granted as to Count 2.

C.

Lastly, the Gloucester School District Defendants move to

dismiss Count 3 (Title VII claim) and Count 4 (§ 1985 claim),

however Plaintiffs state that they “stipulate to the

discontinuance” of these counts “as to the Moving Defendants.” 

(Pls’ Opposition Brief, p. 8 n.2) Accordingly, Counts 3 and 4

will be dismissed with prejudice as to the Gloucester School

District Defendants.

IV.

For the above-stated reasons, the Motions to Dismiss will be

granted in part and denied in part. The Motions will be granted

as to Student C’s claims for intentional and negligent infliction

of emotional distress (Counts 6 and 7) but denied as to Minor A

and Minor B’s same claims. The Section 1981 claim (Count 2) will

12

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be dismissed with prejudice as to all of the School District

Defendants. The Title VII claim (Count 3) and the § 1985 claim

(Count 4) will be dismissed with prejudice as to the Gloucester

School District Defendants only. Lastly, based on Plaintiffs’

counsel’s statement on the record that Plaintiffs stipulate to

the dismissal with prejudice of all claims against Gloucester

Township, the Township will be terminated as a party to this suit

and its Motion to Dismiss will be dismissed as moot. The Court

will issue an appropriate order.

Date: July 21, 2011

 Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

13

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