NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4054-16T3
J.L., a minor, and her parents,
K.L. and J.L.,
Plaintiffs-Appellants,
v.
KANDI PRESS in her individual
and official capacities, JOAN
PABISZ-RUBERTON in her individual
and official capacities and
HARRISON TOWNSHIP BOARD OF
EDUCATION.
Defendants-Respondents.
________________________________
Submitted May 8, 2018 – Decided June 25, 2018
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-1192-16.
Jamie M. Epstein, attorney for appellants.
Lenox, Socey, Formidoni, Giordano, Cooley,
Lang & Casey, LLC, attorney for respondents
(Michael A. Pattanite, of counsel; Christina
M. Matteo, on the brief).
PER CURIAM
Plaintiffs appeal from the trial court's orders of April 13,
2017 denying their motion for reconsideration of a February 3,
2017 order granting summary judgment to defendants and dismissing
plaintiffs' complaint alleging a violation of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, with
prejudice.1 Plaintiffs' counsel — despite the grant of his request
for an adjournment for fourteen days to file opposition — did not
submit any to the summary judgment motion. We reverse and remand.
Plaintiff J.L. was a student in the Harrison Township school
district with "cognitive, learning, hearing, and vision disorders"
resulting from "anoxic events causing encephalopathy,"2 which she
suffered as an infant. Prior to filing the now-dismissed
complaint, she and her parents filed a due process petition with
the New Jersey Department of Education (DOE), alleging violations
of the Individuals with Disabilities in Education Act (IDEA), 20
U.S.C. §§ 1400 to 1482, section 4 of the Rehabilitation Act (RA),
29 U.S.C. § 794, and the Americans with Disabilities Act (ADA),
1
Only the order denying the reconsideration motion is set forth
in plaintiffs' notice of appeal; both orders are listed as appealed
in their civil case information statement.
2
"Anoxia" is defined as, "Absence or almost complete absence of
oxygen from inspired gases, arterial blood, or tissues." Stedman's
Med. Dictionary 98 (28th ed. 2006). "Encephalopathy" is defined
as "Any disorder of the brain." Id. at 636.
2 A-4054-16T3
42 U.S.C. §§ 12101 to 12213. Plaintiffs asserted that the Harrison
Township Board of Education (Board), its school psychologist,
Kandi Press, and its director of special education, Joan Pabisz-
Ruberton, failed to provide J.L. with services necessary for her
to receive meaningful educational benefit, and failed to properly
assess and accommodate her numerous disabilities, thus depriving
her of a free appropriate public education (FAPE).3 The
administrative law judge (ALJ) to whom the case was referred
declared the case moot, concluding "a controversy no longer exists"
because the Board voluntarily offered "an affirmative response to
all of [plaintiffs'] demands as set forth in the petition."
Plaintiffs thereafter filed a complaint in federal district
court for relief under the LAD and for prevailing party attorneys'
fees and costs pursuant to the IDEA and RA. The federal district
judge, ruling on cross-motions for summary judgment, found
plaintiff was a prevailing party for the purpose of awarding fees,
but also found a reduction in fees appropriate "given the bad
faith conduct" of plaintiff's counsel. J.L. v. Harrison Twp. Bd.
3
See 20 U.S.C. § 1400(d)(1)(A) (stating one 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 designed to meet their unique needs
and prepare them for further education, employment, and
independent living").
3 A-4054-16T3
of Educ. (J.L. I), No. 14-2666 RMB/JS, 2015 U.S. Dist. LEXIS
112252, at *34 (D.N.J. Aug. 25, 2015). The district judge later
"decline[d] to exercise supplemental jurisdiction over
[p]laintiffs' only remaining state law [LAD] claim" pursuant to
28 U.S.C. § 1367(c)(3).4 J.L. v. Harrison Twp. Bd. of Educ. (J.L.
II), No. 14-2666 RMB/JS, 2016 U.S. Dist. LEXIS 110478, at *80-81
(Aug. 19, 2016).
About a month later plaintiffs commenced this action.
Our analysis begins with the type of motion originally
considered by the trial court. Both parties refer to the motion
for summary judgment as one converted from a motion to dismiss
pursuant to Rule 4:6-2 because the trial court was presented with
seven documents that were outside the pleadings. The record,
however, indicates otherwise. The notice of motion is for summary
judgment; all of the supporting documents reference summary
judgment including the certification of counsel, brief, statement
of undisputed material facts, proof of mailing and order.
4
In that same opinion, the district judge reserved on the
attorney's fees issue. Later, frustrated by plaintiffs' counsel's
"repeated unreasonable protraction of [the] case and his bad faith
conduct throughout the litigation," she issued another opinion
holding "[t]he only right and just thing for [the] [c]ourt to do
— if its grant of discretion is to mean anything — is to deny
outright all fees." J.L. v. Harrison Twp. Bd. of Educ. (J.L.
III), No. 14-2666 RMB/JS, 2017 U.S. Dist. LEXIS 71911, at *9, 17
(D.N.J. May 11, 2017).
4 A-4054-16T3
Confusingly, the notice of motion provides in part, "[d]efendants
file this motion as a [m]otion for [s]ummary [j]udgment, rather
than a [m]otion for [s]ummary [j]udgment, because pursuant to
[Rule] 4:6-2(e), [d]efendants rely on materials outside of the
pleadings." The trial court referred to the underlying motion in
its decision as "a motion for summary judgment that has been filed
by the attorney for [d]efendants Press, Ruberton and Harrison
Township Board of Ed[ucation]." We conclude, as did the trial
court, that the motion was for summary judgment and see no merit
in plaintiffs' argument that the judge improperly converted a
motion to dismiss to a motion for summary judgment.
The practice of filing and procedure for challenging a motion
for summary judgment in lieu of filing an answer are long
recognized. Lenzner v. Trenton, 22 N.J. Super. 415, 424 (Law Div.
1952). "A motion for summary judgment is not premature merely
because discovery has not been completed, unless plaintiff is able
to 'demonstrate with some degree of particularity the likelihood
that further discovery will supply the missing elements of the
cause of action.'" Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,
555 (2015) (quoting Wellington v. Estate of Wellington, 359 N.J.
Super. 484, 496 (App. Div. 2003)). Although summary judgment
should "normally . . . not be granted when discovery is
incomplete," if the motion "turns on a question of law, or if
5 A-4054-16T3
further factual development is unnecessary in light of the issues
presented, then summary judgment need not be delayed." United
Savs. Bank v. State, 360 N.J. Super. 520, 525 (App. Div. 2003).
Plaintiffs, who submitted no opposition to the motion, made no
such showing.
After reviewing the procedural history and defendants'
arguments in support of the summary judgment motion – there was
never a judicial determination that J.L. was denied a FAPE by the
school district and plaintiffs failed to exhaust their
administrative remedies — the trial court concluded:
In this matter there was no opposition. There
was no counter argument. I should also note
that this matter was adjourned one cycle to
certainly provide greater opportunity for any
opposition and none was forthcoming. So at
this time this motion is granted and the
complaint against the [d]efendants [Kandi]
Press, Joan Pabisz-Ruberson and Harrison
Township Board of Education is [hereby]
dismissed with prejudice so ordered.
So too, in deciding the motion for reconsideration, the trial
court focused on plaintiffs' counsel's dilatory conduct – both
before it and in the United States District Court as there noted
by the District Court judge — in finding the motion for
reconsideration was not supported by excusable neglect.
A motion for reconsideration is committed to the sound
discretion of the court, which should be "exercised in the interest
6 A-4054-16T3
of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App.
Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990)). Reconsideration is appropriate only when a
court has rendered a decision "based upon a palpably incorrect or
irrational basis," or failed to consider or "appreciate the
significance of probative, competent evidence." Ibid. (quoting
D'Atria, 242 N.J. Super. at 401). We review the grant of summary
judgment de novo, applying the same standard as the trial court.
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We
must determine whether the competent evidence presented, "when
viewed in the light most favorable to the non-moving party, [is]
sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We also
review the trial court's legal conclusions de novo. Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We determine the trial court abused its discretion in denying
the motion for reconsideration because its decision was based on
counsel's conduct and not, at least as we can perceive from the
record, on a legal basis correlated to the facts as required by
Rule 1:7-4(a).
Even an unopposed motion must be thoroughly reviewed on the
merits. In a matter where an attorney failed to answer a complaint
7 A-4054-16T3
resulting in the denial of a motion to file out-of-time and a
subsequent default judgment, we said:
We appreciate the desirability of the
prompt disposal of cases. Courts should not
forget, however, that they merely provide a
disinterested forum for the just resolution
of disputes. Ordinarily, the swift movement
of cases serves the parties' interests, but
the shepherding function we serve is abused
by unnecessarily closing the courtroom doors
to a litigant whose only sin is to retain a
lawyer who delays filing an answer during
settlement negotiations.
[Audubon Volunteer Fire Co. No. 1 v. Church
Constr. Co., 206 N.J. Super. 405, 406 (App.
Div. 1986).]
We then listed the recourse available to judges dealing with
"slowdowns," concluding "[u]ntil courts have exhausted means of
performing their shepherding function which do not terminate or
deeply affect the outcome of a case, they ought not to bar a
litigant's way to the courtroom." Id. at 407; see also Automatic
Washer Serv., Inc. v. Brunswick Burlington, Inc., 153 N.J. Super.
343, 346 (App. Div. 1977) (holding that although counsel failed
to respond to summary judgment and "walked in on the morning of
court and was late at that and wanted to be heard even after the
matter was disposed of," his conduct "warrant[ed] the imposition
of sanctions by the court rather than dismissal of the pleadings").
We appreciate the trial court's frustration with plaintiffs'
counsel's conduct. Plaintiffs, however, were entitled to the
8 A-4054-16T3
trial court's consideration of the merits of the case where
defendant contends summary judgment was properly granted because
there was never a judicial determination that J.L. was denied a
FAPE and that plaintiffs failed to exhaust their administrative
remedies. We acknowledge a full study of these issues under the
facts of this case will not be a facile task.
We previously recognized the interplay of the RA and ADA in
determining the extent of protections provided by the LAD. J.T.
v. Dumont Pub. Schs., 438 N.J. Super. 241, 263 (App. Div. 2014).
Among the elements a plaintiff must show to establish a prima
facie LAD failure-to-accommodate case is that the disabled student
"was deprived 'a cognizable benefit or program.'" Id. at 264.
"[W]hen a LAD discrimination claim concerns the special education
benefits and related services available to a child under the IDEA,
the program or benefit used to determine the prima facie test for
disability discrimination is the provision of a FAPE." Id. at
265.
Although ordinarily a plaintiff need not exhaust
administrative remedies prior to bringing a LAD action, Hernandez
v. Region Nine Hous. Corp., 146 N.J. 645, 652-53 (1996); Ensslin
v. Twp. of N. Bergen, 275 N.J. Super. 352, 372 (App. Div. 1994),
"when the dispute is based upon benefits provided pursuant to the
IDEA, the LAD claim is coextensive with the IDEA . . . claim[],"
9 A-4054-16T3
J.T., 438 N.J. Super. at 268. Plaintiffs may not "make an end run
around the IDEA['s exhaustion requirement] by dismissing the
[administrative claim] and repackaging the claim . . . under the
LAD." Id. at 267.
One of the questions here is, did plaintiffs make an end run?
They filed a due process action. Although the ALJ never found
that J.L. was denied a FAPE, his full decision was obviated by the
Board's acquiescence to plaintiffs' demands for J.L. The ALJ
found that the Board: "will complete evaluations regarding
[a]ssistive technology, [v]ocational[] [s]peech pathology,
[p]hysical therapy and [o]ccupational therapy"; "will amend J.L.'s
[individualized education plan] to incorporate the recommendations
set forth in the evaluations completed to date, including
accommodations and placements set forth therein"; "will include
J.L. in its [e]xtended [s]chool [y]ear [p]rogram"; "will [provide
J.L. with one hundred] half-hour sessions [of compensatory
occupational therapy], even though only [eighty] sessions were
recommended in the [o]ccupational [t]herapy evaluation"; shall
"reimburse J.L.'s parents for [the full amount of] expenses
incurred for services and evaluations"; and "will not release
J.L.'s records without parental consent."
Given that, as conceded by defendants in their merits brief,
"[p]laintiffs were eligible for attorney's fees as 'prevailing
10 A-4054-16T3
parties' since the [Board] offered them the relief sought in the
[d]ue [p]rocess [p]etition," and the ALJ "found all the demands
made by [plaintiffs] in their petition for due process had been
voluntarily offered," the question is: was there a reason or basis
to appeal the ALJ's decision as defendants contend was a pre-
requisite to pursuing plaintiffs' state-court action? Did
plaintiffs, by bringing a due process action, and settling the
case, exhaust administrative remedies? And even if the ALJ was
compelled to determine whether J.L. received a FAPE, would the
decision have encompassed the same time frame as that for which
plaintiffs seek damages under the LAD or would the period have
been limited to the time the petition was filed? Further, can
defendants avoid LAD liability by settling the due process matter
and agreeing to provide services not previously supplied to J.L.,
thereby precluding a FAPE determination by the ALJ?
These are among the issues that needed to be addressed in
deciding the summary judgment motion. Deciding this motion
requires more than simply addressing "a single, lingering issue,"
and although the case has previously come before an administrative
body and Federal District Court, it does not currently present a
threat of perpetual, lengthy or burdensome litigation. Allstate
Ins. Co. v. Fisher, 408 N.J. Super. 289, 301-02 (App. Div. 2009).
We thus decline to exercise original jurisdiction under Rule 2:10-
11 A-4054-16T3
5; "the necessary factual findings and legal conclusions are best
made by the trial judge." Id. at 302.
"Appellate review . . . 'does not consist of weighing evidence
anew and making independent factual findings; rather, our function
is to determine whether there is adequate evidence to support the
judgment rendered' by the trial court." Ibid. (quoting Cannuscio
v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.
1999)). We remand so that the issues raised can "be first decided
by the motion judge, with an accompanying statement of reasons,"
id. at 303, fully articulating of the trial court's factual
findings and correlative conclusions of law, without which we
cannot know whether the court's ultimate decision was based on
fact and law or was the product of arbitrary action resting on an
impermissible basis, R. 1:7-4. We leave to the discretion of the
trial judge whether to allow plaintiffs to file a response, with
or without sanctions.
We decline to address plaintiffs' argument that the trial
court dismissed their complaint "without performing its parens
patriae responsibility" as that issue was not raised before the
trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973).
Reversed and remanded. We do not retain jurisdiction.
12 A-4054-16T3