KH V Picsataway - MTD

Case 2:18-cv-10037-CCC-MF Document 7 Filed 08/21/18 Page 1 of 3 PageID: 43
Maxiel L. Gomez, Esq.

PASHMAN STEIN WALDER HAYDEN, P.C.
Court Plaza South
21 Main Street, Suite 200
Hackensack, New Jersey 07601
(201) 488-8200
Attorneys for Defendants
Piscataway Township Board of
Education (improperly pleaded
as “Piscataway Township School
District”) and Teresa Rafferty
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
S.P. on behalf of her minor

daughter, K.H., Civ Action No.: 2:18-CV-10037-CCC-MF
Plaintiff,
v. NOTICE OF MOTION
TO DISMISS BY DEFENDANTS
PISCATAWAY TOWNSHIP SCHOOL
DISTRICT, PISCATAWAY BOARD
OF EDUCATION, TERESA
RAFFERTY as Superintendent
of the PISCATAWAY TOWNSHIP
SCHOOL DISTRICT,
Defendants.
PLEASE TAKE NOTICE that on September 17, 2018, or on a date
and time to be set by the Court, Defendants Piscataway Township
Board of Education (improperly pleaded as “Piscataway Township
School District”) and Teresa Rafferty, as Superintendent,
(collectively “Defendants”), by and through their attorneys,
Pashman Stein Walder Hayden, P.C., will move before the United
States District Court for the District of New Jersey, at the
Martin Luther King Building & U.S. Courthouse, 50 Walnut Street,

Newark, New Jersey 07102, for an order pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure dismissing portions of
Plaintiff’s Complaint.
PLEASE TAKE FURTHER NOTICE that in support of their Motion,
Defendants will rely upon the accompanying Memorandum of Law,
Certification of Counsel, and all other pleadings on file in
this matter.
PLEASE TAKE FURTHER NOTICE that oral argument is requested.
PLEASE TAKE FURTHER NOTICE that a proposed form of Order is
submitted herewith.
PLEASE TAKE FURTHER NOTICE that a Certification attesting
to the date and manner of service is also submitted herewith.
PASHMAN STEIN WALDER HAYDEN

A Professional Corporation
Counsel for Defendants,
By: _/s/ Maxiel Gomez

Dated: August 21, 2018

Hackensack, New Jersey
2
CERTIFICATE OF SERVICE
I hereby certify that on August 21, 2018, I served the
foregoing Notice of Motion to Dismiss, along with all supporting
documents, upon all parties to the action by causing it to be
filed on the Court’s ECF system.
Executed on August 21, 2018 at Hackensack, New Jersey.
By: /s/Maxiel Gomez

3
Case 2:18-cv-10037-CCC-MF Document 7-1 Filed 08/21/18 Page 1 of 13 PageID: 46

FOR THE DISTRICT OF NEW JERSEY
S.P. on behalf of her minor daughter,

K.H., Civ Action No.: 2:18-CV-10037-CCC-MF
Plaintiff,
v.

DISTRICT, PISCATAWAY BOARD OF
EDUCATION, TERESA RAFFERTY as
Superintendent of the PISCATAWAY
TOWNSHIP SCHOOL DISTRICT,
Defendants.
DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS

Court Plaza South
(201) 488-8200
On the Brief:

TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
PROCEDURAL HISTORY AND STATEMENT OF FACTS.......................................................2
STANDARD OF REVIEW .............................................................................................................4
ARGUMENT ...................................................................................................................................5
I. ALL CLAIMS AGAINST RAFFERTY AS SUPERINTENDENT

SHOULD BE DISMISSED BECAUSE ALL ALLEGATIONS
AGAINST RAFFERTY ARE REDUNDANT ....................................................................5
II. COUNTS ONE AND TWO OF PLAINTIFF’S COMPLAINT MUST
BE DISMISSED AS AGAINST RAFFERTY BECAUSE TITLE IX DOES
NOT AUTHORIZE SUITS AGAINST SCHOOL OFFICIALS, TEACHES,
AND OTHER INDIVIDUALS............................................................................................6
III. COUNT FOUR OF PLAINTIFF’S COMPLAINT MUST BE
DISMISSED BECAUSE DEFENDANTS DO NOT STAND
IN LOCO PARENTIS TO PLAINTIFF ..............................................................................6
IV. ALL REFERENCES TO 42 U.S.C §§ 1983 SHOULD BE STRICKEN
FROM THE COMPLAINT BECAUSE PLAINTIFF’S COMPLAINT
DOES NOT CONTAIN CLAIMS UNDER EITHER STATUTE ......................................8
CONCLUSION ................................................................................................................................9
ii
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................... 4
B.F. v. Township of Hazlet,

No. A-0918-15T1, 2016 WL 7232370 (N.J. Super. Ct. App. Div. Dec. 14, 2016) .................... 6
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .................................................................................................................... 4
Bistrian v. Levi,
696 F.3d 352 (3d Cir. 2012)........................................................................................................ 4
Cuvo v. De Biasi,
169 F. App'x 688 (3d Cir. 2006) ................................................................................................. 5
Davis v. Devereux Found.,

209 N.J. 269 (2012) .................................................................................................................... 8
Delaware Riverkeeper Network v. Delaware River Basin Comm'n,

No. CIV. 10-5639 AET, 2011 WL 3882503 (D.N.J. Sept. 2, 2011) .......................................... 5
Fitzgerald v. Barnstable Sch. Comm.,

555 U.S. 246 (2009) .................................................................................................................... 6
Hardwicke v. Am. Boychoir Sch.,

188 N.J. 69 (2006) .................................................................................................................. 6, 7
J.P. v. Smith,
444 N.J. Super. 507 (App. Div.) ................................................................................................. 7
McMillian v. Monroe Cty., Ala.,

520 U.S. 781 (1997) .................................................................................................................... 5
Phillips v. County of Allegheny,

515 F.3d 224 (3d Cir. 2008)................................................................................................ 2, 3, 4
Ray v. Twp. of Warren,

No. CIV.A.07-2812JAP, 2009 WL 3074776 (D.N.J. Sept. 23, 2009)........................................ 5
TEMPO Networks LLC v. Gov't of NIA,

No. CIV. 2:14-6334 WJM, 2015 WL 4757911 (D.N.J. Aug. 12, 2015) .................................... 5
iii
Y.G. v. Bd. of Educ. for Twp. of Teaneck,

No. A-5146-09T2, 2011 WL 1466277 (N.J. Super. Ct. App. Div. Apr. 19, 2011) .................... 7
Statutes
20 U.S.C. § 1681 ......................................................................................................................... 1, 6
42 U.S.C. § 1988 ............................................................................................................................. 8
42 U.S.C. §§ 1983 and 1988 ....................................................................................................... 1, 8
N.J.S.A. 10:5-1................................................................................................................................ 1
Rules
Fed. R. Civ. P. 12(b)(6)............................................................................................................... 1, 4
iv
Defendants Piscataway Township Board of Education (improperly pleaded as
“Piscataway Township School District”) (“the Board”) and Teresa Rafferty, as Superintendent,
(collectively “Defendants”), respectfully submit this brief in support of their Motion to Dismiss
portions of the Complaint filed by plaintiff S.P., on behalf of her minor daughter, K.H., pursuant
to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
PREMINARY STATEMENT
Plaintiff seeks to recover for injuries alleged to have resulted from the sexual assault of
K.H. by a fellow student, K.B., and Defendants’ subsequent handling of the matter. Plaintiff’s
Complaint alleges counts of common law negligence, negligent infliction of emotional distress,
negligent supervision, and several state and federal statutory claims including those under 20
U.S.C. § 1681, et seq. (“Title IX”) and N.J.S.A. 10:5-1 et seq., the New Jersey Law Against
Discrimination.
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants respectfully move for dismissal of all
claims against Teresa Rafferty and Count Four of Plaintiff’s Complaint. More specifically, all
claims against Rafferty, who is named in her official capacity, should be dismissed as redundant.
Moreover, the individual liability claims against Rafferty in Counts One and Two under Title IX
must be dismissed as they are not legally cognizable claims. Count Four, asserting claims of
negligence, must be dismissed as against all defendants because Defendants do not stand in loco
parentis to K.H. as alleged by Plaintiff. Finally, any reference to 42 U.S.C. §§ 1983 and 1988
should be stricken from Plaintiff’s Complaint because the Complaint does not contain any
allegations that Defendants violated either statute.
1
PROCEDURAL HISTORY AND STATEMENT OF FACTS
On June 1, 2018, Plaintiff filed this Complaint in the District Court of New Jersey under
Docket No. 2:18-cv-10037-CCC-MF, a copy of which is attached to the Declaration of Maxiel L.
Gomez, Esq. as Exhibit A. On or around June 22, 2018, Plaintiff transmitted a Waiver of the
Service of Summons, an executed copy of which is attached to the Declaration of Maxiel L.
Gomez, Esq. as Exhibit B.
On June 1, 2016, K.H. and her fellow eighth-grade students from Theodore Schor Middle
1
School (“T. Schor”) went on a school field trip to Forest Lodge in Warren, New Jersey.
Compl. ¶ 26. The students, while accompanied by four supervising adults, were transported back
and forth by school bus. Compl. ¶ 29. While on the bus ride home from the field trip, K.H. was
sexually assaulted by K.B. Compl. ¶¶ 35-38. The following morning, the school nurse, Jasmine
Cromartie (“Cromartie”), was informed of the incident. Compl. ¶ 44.
In response, Cromartie immediately pulled K.H. from her homeroom class and brought
K.H. to her office. Compl. ¶ 45. There, Cromartie, teacher Maria Perry (“Perry”), and assistant
principal Dr. Orsolina Cetta (“Cetta”) listened to K.H. as she recounted her story. Compl. ¶¶ 45-
47. K.H. stayed in Cromartie’s office for at least six (6) class periods. Compl. ¶ 46. To aid in
the school’s investigation, Dr. Cetta asked K.H. to draw a diagram of the seating arrangement on
the bus and write down her recollection of the event. Id. Dr. Cetta then sent K.H. back to class
while she conducted an investigation. After interviewing twelve students, the school determined
1
For purposes of this motion to dismiss, the Court must accept as true all well-pleaded factual
allegations in the Complaint. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
Thus, defendant’s recitation of the facts will derive from the Complaint, but shall not be
considered an admission by defendant of the accuracy of such allegations.
2
that K.H.’s allegations were unfounded and suspended both K.H. and the alleged perpetrator,
K.B., for disorderly conduct on the school bus. Compl. ¶¶ 47-48. Plaintiff asserts that K.B.
received a shorter suspension than K.H. Compl. ¶ 56.
After the summer break, K.H. and K.B. attended Piscataway High School as ninth
graders. Compl. ¶ 58. Plaintiff asserts that K.H. was forced to attend the same classes and ride
the same bus as K.B. during their first year of high school. Id. Plaintiff alleges that as a result of
the assault and the school’s response, K.H. has suffered extreme anxiety and severe emotional
distress.
Plaintiff asserts the following claims against Defendants:
• Count One – Asserting a Title IX claim against defendants who were allegedly
deliberately indifferent to the severe, pervasive, and objectively offensive sexual
harassment suffered by K.H.
• Count Two – Asserting a Title IX claim against defendants for allegedly retaliating
against K.H. for engaging in protected activity.
• Count Three – Asserting a New Jersey Law Against Discrimination claim against
defendants.
• Count Four – Asserting a common law negligence claim based on the principle of in
loco parentis as against defendants.
• Count Five – Asserting a claim of gross negligence against defendants.
• Count Six – Asserting a claim of Negligent Infliction of Emotional Distress against

defendants.
• Count Seven – Asserting a negligent supervision claim against defendants.
Defendants now move to dismiss portions of plaintiff’s Complaint as set forth below.
3
STANDARD OF REVIEW
In deciding a motion to dismiss under Rule 12(b)(6), courts must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations
omitted). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. The Third Circuit has explained the review process that must be undertaken:
To determine whether a complaint meets the pleading standard, our

analysis unfolds in three steps. First, we outline the elements a
plaintiff must plead to a state a claim for relief. Next, we peel
away those allegations that are no more than conclusions and thus
not entitled to the assumption of truth. Finally, we look for well-
pled factual allegations, assume their veracity, and then “determine
whether they plausibly give rise to an entitlement to relief.” This
last step is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (internal citations omitted).
As detailed below, when reviewed under this standard, several counts of Plaintiff’s
Complaint must be dismissed as a matter of law because Plaintiff has not alleged sufficient
plausible facts to state cognizable claims against the Board of Education and Rafferty.
4
ARGUMENT
I. ALL CLAIMS AGAINST RAFFERTY AS SUPERINTENDENT SHOULD BE

DISMISSED BECAUSE ALL ALLEGATIONS AGAINST RAFFERTY ARE
REDUNDANT
“A law suit against public officers in their official capacities is functionally a suit against
the public entity that employs them.” Cuvo v. De Biasi, 169 F. App'x 688, 693 (3d Cir. 2006)
(citing McMillian v. Monroe Cty., Ala., 520 U.S. 781, n. 2 (1997)). Here, Plaintiff names both
the Board and Rafferty in her official capacity on all claims contained in her Complaint. Given
that a suit against Rafferty is functionally a suit against the Board, the Court, in its discretion,
should deem all claims against Rafferty as redundant and dismiss them accordingly. See, e.g.,
Cuvo, 169 F. App’x at 693 (dismissing claims against defendant named in his official capacity
because naming both the official and the public entity was redundant.); TEMPO Networks LLC v.
Gov't of NIA, No. CIV. 2:14-6334 WJM, 2015 WL 4757911, at *5 (D.N.J. Aug. 12, 2015)
(same); Delaware Riverkeeper Network v. Delaware River Basin Comm'n, No. CIV. 10-5639
AET, 2011 WL 3882503, at *5 (D.N.J. Sept. 2, 2011) (same); Ray v. Twp. of Warren, No.
CIV.A.07-2812JAP, 2009 WL 3074776, at *8 (D.N.J. Sept. 23, 2009), aff'd, 626 F.3d 170 (3d
Cir. 2010) (same).
In this case, Plaintiff fails to assert that Rafferty engaged in any wrongful conduct.
Under these circumstances, there is no individual liability by Rafferty and therefore, Defendants
respectfully request that all claims be dismissed as against Rafferty, with prejudice.
5
II. COUNTS ONE AND TWO OF PLAINTIFF’S COMPLAINT MUST BE

DISMISSED AS AGAINST RAFFERTY BECAUSE TITLE IX DOES NOT
AUTHORIZE SUITS AGAINST SCHOOL OFFICIALS, TEACHERS, AND
OTHER INDIVIDUALS
Counts One and Two of Plaintiff’s Complaint allege that Rafferty violated Plaintiff’s
rights under 20 U.S.C. § 1681, et seq. (“Title IX”). Although Title IX is applicable to
institutions and programs that receive federal funds, it “does not authorize suits against school
officials, teachers, and other individuals.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
257 (2009). Accordingly, Title IX claims may not lie against Rafferty.
Therefore, Defendants respectfully submit that Counts 1 and 2 be dismissed as against
Rafferty, with prejudice.
III. COUNT FOUR OF PLAINTIFF’S COMPLAINT MUST BE DISMISSED

BECAUSE DEFENDANTS DO NOT STAND IN LOCO PARENTIS TO
PLAINTIFF
Count Four of Plaintiff’s Complaint alleges that Defendants were negligent because they
owe a special duty of care to Plaintiff because they act in loco parentis with respect to public
school students. Compl., Count Four. Plaintiff claims that Defendants breached their in loco
parentis duty primarily by inflicting further injury on Plaintiff through their response to the
alleged incident. In loco parentis is defined by Black’s Law Dictionary as “in the place of a
parent.” The relationship is generally temporary in nature and characteristics include “the
responsibility to maintain, rear and educate the child, as well as duties of supervision, care, and
rehabilitation.” B.F. v. Township of Hazlet, No. A-0918-15T1, 2016 WL 7232370, at *5 (N.J.
Super. Ct. App. Div. Dec. 14, 2016) (internal citations omitted). However, multiple courts have
decided that public schools are not in loco parentis towards their students. In Hardwicke v. Am.
Boychoir Sch., 188 N.J. 69, 94 (2006), the court found that a private boarding school was acting
6
in loco parentis towards its students because it had control over all aspects of student life,
including providing food, shelter, educational instruction, recreational activities, and emotional
support to full-time boarding students. In other words, the boarding school was providing the
amenities characteristic of both a school and a home to its students and therefore, could be
viewed as fulfilling the traditional role of a parent.
However, in J.P. v. Smith, 444 N.J. Super. 507, 523-24 (App. Div.), certif. denied, 226
N.J. 212 (2016), the Supreme Court of New Jersey found that a public school did not stand in
loco parentis towards the student. In J.P., the plaintiff brought suit against her high school and
the board of education and claimed that she was subjected to repeated acts of sexual abuse by the
school’s assistant band director, defendant Smith. Id. at 512. Plaintiff argued that the school
paid for overnight trips that she took with the band and provided her with food, shelter, and
education. Id. at 518. However, the court noted that these services were not provided on a full-
time basis to full-time boarders and that the school did not supply “amenities normally associated
with a home environment for student who resided there full-time.” Id. at 523; see also Y.G. v.
Bd. of Educ. for Twp. of Teaneck, No. A-5146-09T2, 2011 WL 1466277, at *3 (N.J. Super. Ct.
App. Div. Apr. 19, 2011), certif. denied, 208 N.J. 372 (2011) (noting that the court
in Hardwicke was clearly concerned not only with the role of the school as a parental substitute,
but also with its role as the provider of amenities normally associated with a home environment
for its students who lived there full-time.)
Here, the defendants at issue are a public school and the superintendent of a public school
district, as opposed to a private boarding school. Defendants do not stand in loco parentis
because they lack the qualities associated with a residential home environment that have been
7
found to be necessary for an in loco parentis status. Furthermore, even assuming arguendo that
defendants can somehow be found to be in loco parentis to Plaintiff, courts have rejected
heighted standards of care and applied “traditional principles of due care and foreseeability” to
the in loco parentis standard. Davis v. Devereux Found., 209 N.J. 269, 289 (2012). Plaintiff
cannot demonstrate that the alleged incident on the school bus was foreseeable to Defendants or
that the presumed lack of care from the defendants was the proximate cause of the incident.
Count Four of Plaintiff’s Complaint should therefore be dismissed as a matter of law. To the
extent that plaintiff pleads in loco parentis in any of the other allegations in her Complaint, those
allegations should be stricken as well.
IV. ALL REFERENCES TO 42 U.S.C §§ 1983 AND 1988 SHOULD BE STRICKEN

FROM THE COMPLAINT BECAUSE PLAINTIFF’S COMPLAINT DOES NOT
CONTAIN CLAIMS UNDER EITHER STATUTE.
The Complaint states that the Court has jurisdiction under 42 U.S.C. §§ 1983 and 1988.
Compl. ¶ 4. Plaintiff further requests attorneys’ fees pursuant to 42 U.S.C. §§ 1983 and 1988(b).
Compl. ¶ 140. However, the Complaint does not contain any allegations that Defendants
violated either statute. Accordingly, Defendants respectfully request that any reference to 42
U.S.C. § 1983 and 42 U.S.C. § 1988 be stricken from Plaintiff’s Complaint.
8
CONCLUSION
For the foregoing reasons, Defendants respectfully submit that the Court should grant
Defendants’ motion to dismiss portions of Plaintiff’s Complaint for failure to state claims upon
which relief can be granted.
Respectfully submitted,
Dated: August 21, 2018 By: /s/ Maxiel L. Gomez

Maxiel L. Gomez
Court Plaza South
Piscataway Township Board of Education
(improperly pleaded as “Piscataway Township
School District”) and Teresa Rafferty
9

Court Plaza South
(201) 488-8200


Plaintiff,
v. CERTIFICATION OF COUNSEL

SCHOOL DISTRICT,
Defendants.
Maxiel L. Gomez, Esq., of full age, does hereby certify as
follows:
1. I am an attorney at law of the State of New Jersey and
a Member of the law firm of Pashman Stein Walder Hayden, P.C.,
attorneys for Defendants Piscataway Township Board of Education
(improperly pleaded as “Piscataway Township School District”)
1
and Teresa Rafferty, as Superintendent (collectively
“Defendants”). As such, I am personally familiar with the facts
set forth herein.
2. A true and accurate copy of Plaintiff’s Complaint,
filed on or about June 1, 2018, is attached hereto as Exhibit A.
3. Attached hereto as Exhibit B is a true and accurate
copy of an executed Waiver of the Service of Summons transmitted
to Defendants on June 22, 2018.
4. Attached hereto as Exhibit C is a true and accurate
copy of the unpublished decision of the Superior Court of New
Jersey, Appellate Division, in B.F. v. Township of Hazlet, No.
A-0918-15T1, 2016 WL 7232370 (N.J. Super. Ct. App. Div. Dec. 14,
2016).
5. Attached hereto as Exhibit D is a true and accurate
copy of the unpublished decision of the United States District
Court, District of New Jersey, in Delaware Riverkeeper Network
v. Delaware River Basin Comm'n, No. CIV. 10-5639 AET, 2011 WL
3882503 (D.N.J. Sept. 2, 2011).
6. Attached hereto as Exhibit E is a true and accurate
Court, District of New Jersey, in Ray v. Twp. of Warren, No.
CIV.A.07-2812JAP, 2009 WL 3074776 (D.N.J. Sept. 23, 2009).
2
7. Attached hereto as Exhibit F is a true and accurate
Court, District of New Jersey, in TEMPO Networks LLC v. Gov't of
NIA, No. CIV. 2:14-6334 WJM, 2015 WL 4757911 (D.N.J. Aug. 12,
2015).
8. Attached hereto as Exhibit G is a true and accurate
copy of the unpublished decision of the Superior Court of New
Jersey, Appellate Division, in Y.G. v. Bd. of Educ. for Twp. of
Teaneck, No. A-5146-09T2, 2011 WL 1466277 (N.J. Super. Ct. App.
Div. Apr. 19, 2011).
I certify that the foregoing statements made by me are
true. I am aware that if any of these statements are willfully
false that I am subject to punishment by this Court.
/s/ Maxiel Gomez

Dated: August 21, 2018
Hackensack, New Jersey
3
EXHIBIT A
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FOR THE DISTRICT OF NEW JERSEY
----------------------------------------------------------------------X CIVIL ACTION NO.
S.P. on behalf of her minor daughter, K.H.,
Plaintiff, COMPLAINT AND DEMAND

FOR JURY TRIAL
-against-
PISCATAWAY TOWNSHIP SCHOOL DISTRICT,

PISCATAWAY BOARD OF EDUCATION,
TERESA RAFFERTY as Superintendent of the
DISTRICT.
.
Defendants.
-----------------------------------------------------------------------X
Plaintiff, S.P., on behalf of her minor daughter, K.H., through her attorneys, C.A. GOLDBERG
PLLC, by way of complaint against the Defendants says:
PRELIMINARY STATEMENT
1. This is a case about a middle school student who was severely disciplined in response to
reporting a serious sexual assault that had occurred less than 24 hours before.
2. K.H., a 14-year-old girl, was enrolled as an eighth grader at Theodore Schor Middle
School when she was sexually assaulted by a fellow student. Up until the assault and its
aftermath, K.H. had been a model student at her school. She received high grades, she was
admired by and had close relationships with her teachers, she was engaged in extracurricular
activities, and she led a healthy social life.

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3. K.H.’s normalcy was destroyed one day in June 2016 when she was sexually assaulted on
a school bus ride by a male student. The assault itself was incredibly traumatic. Even more
destructive to K.H. was the school’s response to her when she courageously reported the assault
to school officials. Without undertaking even a modicum of an investigation into K.H.’s serious
allegations, the school’s Vice Principal made the knee-jerk decision to suspend K.H. mere hours
after the assault was reported. The basis for the suspension: “disorderly conduct” on the school
bus. Instead of protecting one of their young female students, instead of responding to her
distress and remedying the effects of her trauma, school officials ruthlessly and unreasonably
attacked her, blamed her, and punished her. After reporting what had occurred to her, K.H. was
suspended from school - for being sexually assaulted while under the school’s care and
supervision.
JURISDICTION & VENUE
4. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343(3), and 42 U.S.C. §§ 1983 &
1988.
5. This Court has supplemental jurisdiction over this action under 28 U.S.C. § 1367,
because the claims that arise under the laws of New Jersey are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy under Article
III of the United States Constitution.
6. Plaintiff is a resident of the State of New Jersey.
7. Defendants are located in and primarily conduct business in the State of New Jersey.
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PARTIES
8. Plaintiff S.P., the natural parent and sole legal guardian of K.H., resides in Piscataway,
New Jersey with K.H. During all times relevant to this proceeding, K.H. attended T. Schor
Middle School for her eighth grade academic year and Piscataway High School for her ninth
grade academic year.
9. Defendant PISCATAWAY TOWNSHIP SCHOOL DISTRICT (hereinafter “Piscataway
Tp. Sch. District”) is a community public school district that oversees over 7,000 students in pre-
kindergarten through twelfth grades from Piscataway Township, in Middlesex County, New
Jersey. Defendant Piscataway Tp. Sch. District is a recipient of federal funding.
10. Defendant PISCATAWAY BOARD OF EDUCATION (hereinafter “Piscataway BOE”)
is responsible for, among other things, employing the superintendent of the Piscataway School
District; developing and adopting the school district’s policies; and adopting the school district
operating budget.
11. Defendant TERESA RAFFERTY is, and was at all relevant times, the Superintendent of
the Piscataway Township School District and is responsible for implementing the Board’s
policies, hiring, supervising, and managing school district staff, planning and managing the
district budget, monitoring school educational programs and student achievement, and otherwise
coordinating and supervising all school operations.
12. THEODORE SCHOR MIDDLE SCHOOL (hereinafter “T. Schor”) is a school that
serves approximately 600 students grades 6 through 8. It operates within and under the purview
of the Piscataway Township School District.
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13. PISCATAWAY HIGH SCHOOL (hereinafter “Piscataway High”) is a school that serves
approximately 2,173 students. It operates within and under the purview of the Piscataway
Township School District.
14. All defendants are collectively referred to as “Defendants”.
FACTUAL BACKGROUND
District Rules
15. The New Jersey Anti-Bullying Bill of Rights Act, N.J.S.A. 18A:37-13.2 (hereinafter
“Anti-Bullying Act”) requires each school district to adopt a policy prohibiting harassment,
intimidation or bullying on school property, at a school-sponsored function or on a school bus.
16. The Piscataway BOE’s Policy on Harassment, Intimidation, and Bullying (“HIB
Policy”), issued on September 22, 2011, outlines the Piscataway Tp. Sch. District’s procedures
and obligations upon the reporting of any instances of harassment, intimidation and/or bullying1.
Upon information and belief, this HIB Policy was in effect during all times relevant to this
proceeding.
17. The HIB Policy defines harassment, intimidation, or bullying as any gesture, any written,
verbal or physical act, or any electronic communication, whether it be a single incident or a
series of incidents that is:
a. reasonably perceived as being motivated either by any actual or perceived
characteristic, such as race, color, religion, ancestry, national origin, gender,
sexual orientation, gender identity and expression, or a mental, physical or
sensory disability, or by any other distinguishing characteristic; and that
1
Accessible at
http://p3cdn3static.sharpschool.com/UserFiles/Servers/Server_804050/File/Announcements/HARASSMENT,%20I
NTIMIDATION%20AND%20BULLYING%20POLICY.pdf (last viewed on June 1, 2018).
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b. takes place on school property, at any school-sponsored function, on a school bus,
or off school grounds, as provided for in N.J.S.A. 18A:37-15.3, that substantially
disrupts or interferes with the orderly operation of the school or the rights of other
students; and that
c. a reasonable person should know, under the circumstances, that the act(s) will
have the effect of physically or emotionally harming a student or damaging the
student's property; or
d. placing a student in reasonable fear of physical or emotional harm to his person or
damage to his property; or
e. has the effect of insulting or demeaning any student or group of students: or
f. creates a hostile educational environment for the student by interfering with a
student's education or by severely or pervasively causing physical or emotional
harm to the student.
HIB Policy, at p. 1.
18. The Piscataway HIB Policy requires “a thorough and complete investigation to be
conducted for each report of an alleged incident of harassment, intimidation, or bullying”. It
requires that the investigation be conducted by the school anti-bullying specialist appointed by
the school principal and instructs that the investigation should be completed and written findings
submitted to the principal no later than ten school days from the dates of the written report of the
alleged incident of harassment. Id, at p. 7.
19. After submission of these written findings to the principal, the principal must then submit
the report to the Superintendent of School within two school days of the completion of the
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investigation, then the Superintendent, in turn, is to report the results of each investigation to the
Board of Education. Id.
20. School officials are to notify parents of students involved in an investigation within five
days after the results of the investigation are reported to the Board of Education. Id.
21. The HIB Policy specifically prohibits a “Board of Education member, school employee,
…. from engaging in reprisal, retaliation, or false accusation against a victim, witness...who
reports an act of harassment, intimidation, or bullying.” Id. at p. 8.
The Assault
22. K.H. is a young African-American girl raised by a single mother. She was enrolled as an
eighth-grader at T. Schor during the 2015-2016 academic year. She was 14 years old during the
events at issue.
23. Prior to the events described herein, K.H. was a model student active in extracurriculars,
including gymnastics and cheerleading.
24. K.H. maintained excellent grades. She made the honor roll during the first semester of
her eighth grade year. She also maintained an unblemished disciplinary record during her
enrollment at T. Schor.
25. K.H. had had no sexual or intimate experiences with anyone. She did not date and had
never “gone out on a date” with a boy.
26. On June 1st, 2016 K.H. went on a school field trip to Forest Lodge in Warren, New
Jersey. It was an annual field trip organized for the eighth grade students at T. Schor. Forest
Lodge is an outdoor event space that includes a swimming pool.
27. T. Schor had arranged the same school trip during the previous year. K.H. was only in
seventh grade and did not attend. Upon information and belief, during the 2015 trip several male
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students from T. Schor engaged in physical altercations with male students from another school,
Maplewood Middle School. Upon information and belief police had been called and several of
the involved students were arrested.
28. Despite the problems that occurred during the 2015 trip, T. Schor organized the same trip
in 2016, again with Maplewood Middle School.
29. T. Schor transported their eighth grade students to Forest Lodge by school buses. K.H.
was on a bus accompanied by four supervising adults. These adults included the bus driver, two
T. Schor teachers, Emily Slavik (“Slavik”) and Maria Perry (“Perry”), and the T. Schor school
nurse, Jasmine Cromartie (“Cromartie”). Slavik, Perry, and Cromartie all sat in the front row of
the bus during the thirty minute ride to Forest Lodge. K.H. also sat in the front row beside
Cromartie, with whom she was friendly.
30. At no point did Slavik, Perry, or Cromartie leave their seats to monitor students in the
middle or back of the bus.
31. While swimming in the pool at Forest Lodge with her friends, a group of male students
from Maplewood Middle School began sexually harassing K.H. and her friends. The boys
grabbed them, grabbed their buttocks, and pushed themselves against the girls from behind. K.H.
and her friends tried to avoid these boys by swimming to the other side of the pool. Finally, a
Maplewood teacher noticed the male students from Maplewood harassing K.H. and her friends
and told the boys to stop.
32. None of the T. Schor teachers or staff were monitoring students at the pool. For most of
the trip, they remained on a hill in the park adjacent to the pool.
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33. At some point while K.H. was in the pool area, Perry confronted K.H. and said that
another teacher had complained that K.H. was “messing with boys and twerking”2. K.H.
described to Perry what had really happened - that a group of boys had been harassing her and
her friends. In response Perry said “I know you’re not like that”, and “I don’t want them calling
you a ho”. Perry told K.H. that she would go speak to one of the Maplewood teachers about the
boys’ behavior but, upon information and belief, she never did.
34. When it was time to return to T. Schor, K.H. tried to get a seat on the bus beside her
friend, “L,”3 but they couldn’t find seats together. So K.H. sat in an available middle seat
approximately two rows from the back of the bus, squeezed in between two male students, “D”
and “K.B.” “D” sat on the aisle, and K.B. sat next to the window. Once again, the adults, Slavik,
Perry, and Cromartie sat in the front row.
35. Approximately five minutes after the bus departed Forest Lodge, K.B. began to touch and
grab K.H’s leg. K.H. repeatedly removed K.B.’s hand from her leg and tried to inch toward “D”,
who had his back to her and was facing the aisle.
36. K.B. grabbed K.H.’s leg another two or three times. After a brief pause, he intensified his
efforts and grabbed K.H. by the waist and tried to put her on his lap. K.H. moved away from him
and tried to get “L”s attention. “L” did not grasp at the time that K.H. needed help.
37. K.B. pulled his shorts down. He grabbed K.H.’s hand and tried to put it inside his
underwear. K.H. told K.B. to leave her alone but he kept pulling her arm towards his groin. K.H.
2
Twerking is defined by Meriram-Webster as “sexually suggestive dancing characterized by rapid, repeated hip
thrusts and shaking of the buttocks especially while squatting”. See https://www.merriam-
webster.com/dictionary/twerking; retrieved on June 1, 2018.
3
Upon information and belief, the students identified in this complaint are all minors so will be referred to by their
first initial (or full initials if known) pursuant to FRCP 5.2(a).
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tried to pull away and turn her body away towards “D”. Nobody seemed aware of the struggle
and K.H. was in too much shock to scream.
38. K.B. proceeded to pull out his penis. He grabbed K.H. by the back of her head, and
pushed her head down towards his penis. K.H. tried pulling her head away but K.B. forced her
head down again. Despite her resistance, he pushed her head down approximately five times. Her
lips made contact with K.B.’s penis before K.H. freed herself, just as the bus pulled into the
school’s parking lot.
39. At no point during the bus ride did any of the school officials leave their seats to monitor
the kids.
40. As soon as the bus stopped, K.H. hurried towards the front, got off the bus, and ran to her
grandmother’s car.
41. When she returned home, K.H. immediately went to her room and did not come out until
the next morning. That night she felt very strange and anxious. She was in shock by what had
occurred and was fearful of returning to school the next day.
The School’s Response
42. On the day following the school trip, June 2nd, 2016, K.H. arrived at her school bus stop
to be greeted by K.B., who lived in the same housing complex as K.H., and one of his friends.
The friend sarcastically remarked to K.H. “did you guys have fun on the bus yesterday?” K.H.,
humiliated by his words, told him to shut up and moved away from them. The bus came soon
after that and K.H. made sure she sat far away from K.B. and his friends.
43. When K.H. entered the school, K.B. and his friends began staring and leering at her. K.H.
made her way into one of the stalls in the girls’ bathroom and began to cry. A few of her friends
followed her.
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44. One friend alerted Cromatie. Meanwhile, K.B. and his friends menacingly stood outside
of the girls’ bathroom and called K.H. names such as “ho” and “dirty”.
45. Cromartie pulled K.H. out of her homeroom class and brought her to her office. K.H.
recounted details of the sexual assault on the bus the day before. While K.H. spoke with
Cromartie, Perry entered the office. Cromartie asked K.H. to repeat the story to Perry.
46. K.H. stayed in Cromartie’s office for most of the day, through six class periods. Finally,
the Assistant Principal, Dr. Orsolina Cetta (“Cetta”), entered the office and asked K.H. to again
recount what had occurred and to write everything down. She also asked K.H. to draw a diagram
of the bus depicting all of the seating arrangements. During the interview, Cetta said the
following to K.H.: “Why didn’t you just get up and walk away?”; “This wouldn’t have happened
if you had just moved.”; and, “You sat next to him so it’s kind of your fault.” (emphasis added.)
47. Cetta then sent K.H. to her last class of the day and told her she would speak to the other
students who had been on the bus during the time of the assault. Before class ended, Cetta
summoned K.H. back to her office and informed her that she had (somehow) spoken to “twelve
students” all of whom purportedly said that K.H. “was lying and wanted to do it again, and was
just embarrassed.” Despite claiming to have interviewed twelve students, Cetta could only give
K.H. two students’ names. One of the two students was “L”, K.H.’s friend. “L” would later tell
K.H. that she had told Cetta that K.H. had signaled for help on the bus but “L” had not
comprehended what K.H. was trying to signal. The other student, “E”, later recounted that Cetta
hadn’t really asked him any questions and that the only thing that he had said to Cetta was that
he hadn’t been paying attention.
48. After telling K.H. that these twelve other students had denied witnessing any
wrongdoing, Cetta sent K.H. back to class. By the time K.H. returned home that day, Cetta had
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called her mother to tell her that K.H. had been suspended from school for performing oral sex
on another student on the bus.
49. The following day, K.H.’s mother and grandmother went to T. Schor to meet with the
Principal, Richard Hueston (“Hueston”), Cetta, and another school administrator. K.H.’s
grandmother demanded to see video from the bus ride and asked if the school had contacted the
police. They had not. Strangely, Cetta informed K.H.’s mother that all of the other students on
the bus had reported being asleep during the alleged assault. This contradicted what she had told
K.H. the previous day. K.B, the perpetrator, had not been suspended from school as of yet. Upon
information and belief, it was only when K.H.’s mother and grandmother informed the school
that they would be filing a report with the police that the school took action to suspend K.B.
50. After their visit to the school, K.H.’s mother took K.H. to a local police station to report
what had occurred. The police confirmed that the school had not contacted them.
51. The police acquired the video footage (footage that the school had not bothered to review
prior to suspending K.H.) and saw proof of K.H.’s account of events.
52. Eventually, K.B. would be charged with assault. In September 2016, he pled guilty to
simple assault in juvenile court.
53. Prior to the sexual assault against K.H, it was known or should have been known that
K.B. had a history of disciplinary problems at T. Schor. Upon information and belief, he had
been disciplined a number of times for, among other infractions, pulling his pants down during
class, grabbing female students’ buttocks, and being disrespectful towards school staff. Despite
the fact that K.B.’s prior behavior was or should have been known by T.Schor, school officials
failed to take K.H.’s claims of sexual assault seriously and failed to undertake a meaningful
investigation.
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54. The school’s knee-jerk and patently unreasonable response was to instead suspend K.H.,
a student with no prior disciplinary record, who had reported a sexual assault.
55. K.H. was suspended for a total of ten school days. As a part of K.H.’s suspension, Cetta
also barred K.H. from attending an eighth grade school dance, an event that K.H. had been
looking forward to and that she had already bought a dress for. K.H. was forced to take her final
exams at home, but the school never collected them from her. This undoubtedly had a
substantial impact on her grades. While she was assigned tutors, it was still less instruction time
than she should have received.
56. K.B. received a shorter suspension than K.H.
57. K.H. returned from her suspension on the very last day of school, a day called “Field
Day”. Despite her suspension being over, Cetta told K.H. that she would not be allowed to
participate in Field Day. K.H.’s mother intervened, and Cetta begrudgingly agreed to include
K.H. And though she originally agreed she wouldn’t, Cetta also allowed K.B. to attend Field
Day, despite K.H. having expressed her deep discomfort at the idea of having K.B. around.
58. After the summer break, both K.H. and K.B. enrolled at Piscataway High School as ninth
graders. Defendants continued to show deliberate indifference towards K.H.’s right to a safe and
accessible education by forcing K.H. to ride the same bus as her offender and placing them in the
same classes despite K.H. and her representative’s requests that they be kept separate.
59. Upon information and belief, Kathryn Garcia (“Garcia”) was designated as T.Schor’s
Anti-Bullying Specialist during all times relevant to this proceeding.
60. Upon information and belief, Garcia was not involved in reviewing or investigating
K.H.’s report of sexual assault to school officials.
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61. Upon information and belief, the school officials who did respond to and/or
“investigated” K.H.’s report of sexual assault did not follow the investigation and reporting
procedures outlined in the Piscataway HIP Policy and described in part in paragraphs 17-19
above.
62. By immediately punishing and suspending K.H. within hours of her sexual assault report,
school officials violated provisions of the HIB Policy which specifically prohibit retaliatory
actions against victims who report incidents of sexual harassment.
KH’s Injuries
63. As a result of assault, and the school’s response, K.H. suffered extreme anxiety,
sleeplessness, depression and severe emotional distress.
64. After the assault, K.H. began to see a therapist and continues to attend therapy sessions
through this date.
65. She still experiences anxiety due to what happened and sometimes doesn’t want to go to
school. K.H. could not sleep for a long time, had nightmares, and often had to sleep in her
mother’s bed.
66. K.H. stopped socializing and no longer trusts people. To avoid seeing K.B. at her housing
complex, she spent many nights at her grandmother’s.
67. More than a year after the event, K.H. again started to having recurring nightmares.
These nightmares often depict someone coming after her, trying to hurt her. These nightmares
led to a panic attack which required K.H. to be hospitalized.
68. School officials failed to keep K.H. safe; they failed to investigate her claims of sexual
assault despite their obligations to do so; they irrationally and deliberately accused her of
wrongdoing; they reflexively punished her; and they continued to subject her to a hostile school
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environment, all in violation of her rights. These actions caused K.H. substantial physical,
emotional, and psychological harm.
AS AND FOR A FIRST CLAIM FOR RELIEF

(Defendants’ violation of K.H.’s rights under Title IX of the Educational Amendments of 1972)
69. Plaintiff re-alleges and herein incorporates by reference the allegations set forth in the
paragraphs above.
70. Title IX of the Educational Amendments of 1972 provides that, “no person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any educational program or activity receiving Federal
financial assistance.” 20 U.S.C. §1681
71. Sexual harassment is deemed a form of discrimination for Title IX purposes.
72. Defendant Piscataway Township School District is a recipient of Federal financial
assistance.
73. K.H., a student under Defendant Piscataway School District’s purview, was a victim to
sexual harassment by another student during a school-sponsored and chaperoned trip.
74. The sexual harassment endured by K.H. occurred under circumstances wherein
Defendants exercised substantial control over both the harasser and the context in which the
harassment occurred.
75. Defendants, and school officials under their control, had actual knowledge of the sexual
harassment perpetrated against K.H almost immediately following the incident of sexual
harassment, and otherwise should have or had actual knowledge of the risk of sexual harassment
based on prior acts committed by the harasser on school grounds.
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76. Defendants had the authority and obligation to address the severe sexual harassment and
discrimination perpetrated against K.H. and to institute remedial and corrective measures so as to
preserve K. M’s access to her education.
77. Instead, Defendants contributed to, condoned, and/or acquiesced in creating a hostile and
inaccessible educational environment by engaging in conduct that included, but is not limited to:
(1) failing to properly investigate the sexual harassment; (2) unreasonably and callously blaming
K.H. for the sexual assault perpetrated against her; and (3) unconscionably punishing K.H. by
suspending her from school and refusing to take measures to separate the known harasser from
K.H.
78. The sexual harassment perpetrated on K.H. was so severe, pervasive, and objectively
offensive that it barred her access to an educational opportunity or benefit.
79. Defendants’ actions and/or omissions in response to the assault, further barred K.H. from
equal access to an educational opportunity or benefit.
80. The acts and/or omissions described supra by school officials and the Defendants
violated K.H.’s right to be free from sexual harassment and sex discrimination within her school.
81. Defendants’ deliberate indifference, through their actions and/or omissions following the
report of the sexual assault, made K.H. liable and vulnerable to sexual harassment and subjected
her to a hostile and abusive school environment.
82. Defendants and school officials under their control exhibited deliberate indifference in
that their response to the discrimination against K.H. was clearly unreasonable in light of the
known circumstances.
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83. Defendants’ deliberate indifference to the severe, pervasive, and objectively offensive
sexual harassment suffered by K.H. violates Title IX of the Education Amendments of 1972, 20
U.S.C. §§1681-88.
84. As a result of Defendants’ violation of Title IX, Plaintiff has suffered physical,
emotional, and psychological damages in an amount to be determined at trial.
AS AND FOR A SECOND CLAIM FOR RELIEF

(Defendants’ retaliation in violation of K.H.’s rights under Title IX of the
Educational Amendments of 1972)
paragraphs above.
86. K.H. was engaging in a protected activity, learning through her attendance at school,
when she was attacked by a fellow student who sexually assaulted her on a school-supervised
and school-sponsored bus trip.
87. K.H. was engaging in a protected activity when she reported the sexual assault to school
officials the day following the assault, on June 2, 2016. K.H’s mother and grandmother were also
engaged in a protected activity on June 3, 2016 when they advocated on behalf of their daughter
and granddaughter in response to the school’s notice of suspension and confirmed to school
officials that K.H. had been victim to a nonconsensual sexual assault.
88. K.H., and her mother and grandmother, were seeking corrective and remedial measures in
response to sexual harassment perpetrated against K.M. This protected activity was taken in
response to discrimination that had been perpetrated against K.M. on the basis of her sex.
89. Defendants were aware of this protected activity and took adverse action against it by
wrongly and without justification treating K.H. as a perpetrator rather than the victim that she
was and by imposing an unconscionable and unreasonable punishment.
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90. Defendants’ actions and/or omissions were sufficiently adverse that they would have
dissuaded an individual of ordinary firmness from engaging in a protected activity.
91. Defendants retaliated against K.H. in violation of her rights under Title IX of the
Educational Amendments of 1972.
92. As a result of Defendants’ retaliation in violation of Title IX, K.H. suffered physical,
emotional, and psychological damages in an amount to be determined at trial.
AS AND FOR A THIRD CLAIM FOR RELIEF

(Defendants’ violation of K.H.’s rights under the New Jersey Law Against Discrimination)
paragraphs above.
94. T. Schor school officials failed to respond to K.H.’s complaints of sexual harassment in
any reasonable manner. They refused and/or failed to implement any remedial measures to
address the assault. Rather than protecting K.H., they punished her for being a victim to a sexual
assault.
95. School officials failed to undertake a proper investigation into K.H.’s allegations and did
nothing to reasonably address the harassment K.H. fell victim to.
96. Defendants did not engage in an appropriate or mandated investigation in violation of the
school district’s own policies.
97. Defendants retaliated against a victim who reported sexual harassment in violation of the
school district’s own policies.
98. Defendants’ HIB Policy lays out numerous factors that should govern school officials’
actions before issuing punishments. The policy states that, “the following factors, at a
minimum, shall be given full consideration by school administrators in the implementation of
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appropriate consequences and remedial measures for each act of harassment, intimidation, and
bullying by students”. (Emphasis added). See Policy HIB Policy at page 3.
99. Defendants failed to notify law enforcement despite it being an enumerated option for
addressing harassment, bullying and intimidation under their HIB Policy. See Id., at pp. 5-6,
subsection “Environment” listing “law enforcement (e.g. safe schools resource officers, juvenile
officer) involvement or other legal actions”.
100. The school’s decision to punish K.H., and to suspend her, was ruthless and cruel,
and utterly failed to address the alarming allegations raised by one of the female students under
their supervision and care.
101. The sexual assault and subsequent harassment perpetrated against K.H. would not
have occurred but for the fact that K.H. was female.
102. K.H. endured an assault, subsequent harassment, and an unconscionable school
response that was sufficiently severe and pervasive to create an intimidating, hostile, and/or
offensive school environment.
103. As a result of Defendants’ violation of the New Jersey Law Against
Discrimination, Plaintiff has suffered physical, emotional, and psychological damages in an
amount to be determined at trial.
AS AND FOR A FOURTH CLAIM FOR RELIEF

(Negligence: Defendants’ Breach of Duty to protect K.M.)
104. Plaintiff re-alleges and herein incorporates by reference the allegations set forth in
the paragraphs above.
105. Defendants owed a special duty of care to K.H.
106. T. Schor school officials act in loco parentis with respect to public school
students. They owe a “special duty” to the students themselves. As loco parentis schools are
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expected to act with the same care as a parent of ordinary prudence would observe in comparable
circumstances.
107. As a public school student under Defendants’ custody and control, K.H. was
entitled to that special duty.
108. Defendants had sufficient knowledge and/or notice of the assault that caused
injury to K.H. and school officials inflicted further injury on K.H. through their response to the
sexual assault.
109. Defendants did not respond as a reasonable person would have responded under
similar circumstances. And they certainly did not undertake the same care as “a parent of
ordinary prudence would observe in comparable circumstances”.
110. Defendants actions and/or omissions were a direct and proximate cause of the
injuries suffered by K.H.
111. T. Schor’s failure to reasonably monitor the school buses, by regularly
patrolling the school bus aisles, constitutes a breach of its duty to protect its students. Such
failure was a substantial factor in bringing about foreseeable harm to K.H.
112. Furthermore, Defendants’ actions and/or omissions in their response to the
sexual assault breached the duty of care they owed to K.H. and caused her further physical,
emotional, and psychological injuries.
113. Defendants were negligent and breached their duty to exercise reasonable care
in providing K.H. with a safe and nurturing environment at school.
114. As a result of Defendants’ negligence, K.H. suffered physical, emotional, and
psychological damages in an amount to be determined at trial.
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AS AND FOR A FIFTH CLAIM FOR RELIEF

(Gross Negligence: Defendants’ Breach of Duty with Reckless Indifference)
116. Defendants had a duty to exercise care as loco parentis over K.H., a student in
their custody and control.
117. Instead, Defendants engaged in actions and/or omissions that evinced a reckless
indifference to K.H.’s protected rights.
118. Defendants failed to exercise even the slightest care or diligence towards K.H., let
alone the special duty they owed to her as loco parentis.
119. Defendants evinced a reckless indifference to K.H. by failing to properly
investigate the sexual harassment and by cruelly and outrageously turning the tables on K.H. to
punish her for the sexual assault she fell victim to. School officials’ reckless actions towards
K.H. were untethered to any reason or fact.
120. As a result of Defendants’ unreasonably punitive actions, K.H. suffered and
continues to suffer from various emotional and psychological injuries.
121. Defendants’ failure to exercise even the slightest care or diligence towards K.H.
was the proximate cause of K.H.’s physical, emotional, and psychological deterioration.
122. As a result of Defendants’ gross negligence, K.H. suffered physical, emotional,
and psychological damages in an amount to be determined at trial.
AS AND FOR A SIXTH CLAIM FOR RELIEF

(Defendants’ Negligent Infliction of Emotional Distress)
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124. By breaching their duty as loco parentis Defendants put K.H.’s physical safety in
jeopardy.
125. Defendants had knowledge of the sexual assault perpetuated against K.H. while
she was on a school-sponsored and school-supervised trip.
126. Defendants’ own HIB Policy regarding harassment, intimidation and bullying
explicitly applies to incidents that take place, “on school property, at any school-sponsored
function, [or] on a school bus.” HIB Policy at p. 1.
127. School officials’ abdication of their responsibilities and duties to protect K.H.,
their negligent mishandling of the investigation, their utter failure to adopt appropriate remedial
measures, and their wanton, reckless, and irrational punitive actions against K.H., created a
hostile environment which unreasonably endangered K.H.’s physical, emotional, and
psychological well-being.
128. As a result of Defendants’ failure to exercise a reasonable degree of care over
K.H. and their failure to adequately supervise students, train their employees, enforce their own
policies, protect K.H, and provide K.H. with a safe and accessible educational environment,
school officials acted in a negligent manner.
129. Defendants’ negligence foreseeably caused injury to plaintiff K.H. Said injury
includes physical, emotional, and psychological harm resulting in damages in an amount to be
determined at trial.
AS AND FOR A SEVENTH CLAIM FOR RELIEF

(Defendants’ Negligent Supervision)
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131. Defendants, and those in their employ and/or control, owed K.H., a student in
their care, the duty to reasonably protect her and keep her safe.
132. Defendants, and those in their employ and/or control, unreasonably endangered
K.H. by absolutely failing to take on any measures or procedures to appropriately monitor
students during school-sponsored trips.
133. Despite having specific knowledge and notice of dangerous and harassing student
behavior during at least one previous school trip, school officials failed to appropriately and
reasonably monitor students during the bus rides to and from the 2016 school trip to Warren, NJ
and failed to monitor them during their stay at Forest Lodge.
134. As a result of Defendant's’ negligent and wanton breach of the duty they owed to
K.H., K.H. suffered severe emotional and psychological distress.
135. The harms perpetrated by Defendants are a proximate cause of the K.H.’s injuries
and damages.
136. As a result of Defendants’ negligent infliction of emotional distress, K.H. has
suffered emotional and psychological damages in an amount to be determined at trial.
NOTICE OF CLAIM
137. A Notice of Claim dated January 17, 2017 was sent via certified mail to
PISCATAWAY TOWNSHIP BOARD OF EDUCATION, PISCATAWAY TOWNSHIP
BOARD OF EDUCATION TRANSPORTATION DEPARTMENT, Elaine Flynn, Middlesex
County Clerk, and to David B. Rubin, Esq., attorney for PISCATAWAY TOWNSHIP SCHOOL
DISTRICT.
138. More than six months have elapsed since the Notice of Claim was presented, and
plaintiff’s claims have not been settled or adjusted.
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JURY DEMAND
139. Plaintiff demands a trial by jury on all issues pursuant to the Seventh Amendment
to the United States Constitution and Rule 38 of the Federal Rules of Civil Procedure.
ATTORNEYS FEES
140. It is respectfully requested that Plaintiff is entitled to an award of attorneys’ fees,
pursuant to 42 U.S.C. 1983 & 1988(b).
WHEREFORE, Plaintiff demands the following relief:
A. On the FIRST Claim, damages in an amount to be determined by the trier of fact
against Defendants for discrimination in violation of Title IX of the Educational
Amendments Act of 1972;
B. On the SECOND Claim, damages in an amount to be determined by the trier of fact
against Defendants for retaliation in violation of Title IX of the Educational
Amendments Act of 1972;
C. On the THIRD Claim, damages in an amount to be determined by the trier of fact
against Defendants for their violation of plaintiff’s rights in violation of the New Jersey
Law Against Discrimination;
D. On the FOURTH Claim, damages in an amount to be determined by the trier of fact
against Defendants for their negligence in breaching their duty to protect plaintiff;
E. On the FIFTH Claim, damages in an amount to be determined by the trier of fact
against Defendants for their breach of the duty owed to Plaintiff with reckless
indifference;
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F. On the SIXTH Claim, damages in an amount to be determined by the trier of fact
against Defendants for their negligent infliction of emotional distress;
G. On the SEVENTH Claim, damages in an amount to be determined by the trier of fact
against Defendants for their negligent supervision;
H. Attorneys fees pursuant to 42 U.S.C. 1988(b); 42 U.S.C. 1983;
I. Together with such and further relief that this Court may deem just and necessary.
Dated: Brooklyn, New York

June 1, 2018
Respectfully submitted,
By: S/ Adam Massey_____

Adam Massey (AM1320)
adam@cagoldberglaw.com
C.A. Goldberg PLLC
16 Court Street, Suite 2500
Brooklyn, NY 11241
Tel. (646) 666-8908
Fax. (718) 514-7436
Attorneys for Plaintiff
24
EXHIBIT B
AO 399 (01/09) Waiver of the Service of Summons

for the
State ofNew Jersey
S.P. on behalf of her minor daughter, K.H. )

Plaintiff
)
V. ) Civil Action No. 18-cv-10037
Piscataway Township School District, et. al. )
Defendant )
WAIVER OF THE SERVICE OF SUMMONS
To: Adam Massey

(Name of the plaintiffs attorney or unrepresented plaintijj)
I have received your request to waive service of a summons in this action along with a copy of the complaint,
two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's
jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within
60 days from 06/22/2018 , the date when this request was sent (or 90 days if it was sent outside the
United States). Ifl fail to do so, a default judgment will be entered against me or the entity I represent.
Date: 07/23/2018
Piscataway Township Board of Education (improperly
Signature of the attorney or unrepresented party
pleaded as "Piscataway Township School District") &
Teresa Rafferty, as Superintendent Dawn Attwood, Esq.
Printed name of party waiving service of summons Printed name
Pashman Stein Walder Hayden, P.C.
Court Plaza South, 21 Main St., Suite 200
Hackensack, NJ 07601
Address
_ ___da_ttw
_ o_ o_ d
_ __,@_pashmanstein.com
E-mail address
(201) 488-8200
Telephone number
Duty to Avoid Unnecessary Expenses of Serving a Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons
and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in
the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.
"Good cause" does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has
no jurisdiction over this matter or over the defendant or the defendant's property.
If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of
a summons or of service.
If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff
and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.
EXHIBIT C
B.F.Case 2:18-cv-10037-CCC-MF
v. Township of Hazlet, Not Reported inDocument
A.3d (2016) 7-2 Filed 08/21/18 Page 32 of 63 PageID: 90
2016 WL 7232370
Before Judges Messano, Espinosa and Suter.

2016 WL 7232370
Only the Westlaw citation is currently available. Opinion
UNPUBLISHED OPINION. CHECK PER CURIAM

COURT RULES BEFORE CITING.
*1 In 2009, plaintiff B.F. was a sixteen-year-old student
Superior Court of New Jersey, in the Hazlet school district. As part of plaintiff's
Appellate Division. independent educational plan (IEP), designed to address
his special needs, the Hazlet Board of Education (the
B.F., Plaintiff–Appellant, Board) placed plaintiff in The Rugby School at Woodfield
v. (the School), where defendant Brandi Shroyer was
Township of Hazlet, Hazlet Board of Education, employed as a teacher's aide and counselor. The IEP also
its members individually, The Rugby School at included the Board's obligation to provide transportation
Woodfield, Brandi Shroyer, individually and in of plaintiff to and from the School. Defendant R. Helfrich
her official capacity, Jaime Rogers, individually & Son's Bus Company, a privately-owned transportation
and in her official capacity, Glenn Helfrich, company, and its principal, defendant Glenn Helfrich,
individually and in his official capacity, and contracted with the Board to transport plaintiff and other
students to the School. Defendant Jaime Rogers worked
R. Helfrich & Son, Defendants–Respondents,
and as one of the company's bus drivers. 1
Ralph Russo, Third–Party Defendant/Respondent,
In May 2009, after weeks of inappropriate conversations
and
and text messages, plaintiff and Shroyer commenced
Delores Desanto, individually and in her official
a sexual relationship that continued for several
capacity, Anthony Acquilino, individually weeks. Eventually, Rogers became aware and told her
and in his official capacity, and Adam Avelis, supervisors, who in turn notified the School. Shroyer
individually and in his official capacity, Defendants. was eventually arrested and prosecuted. Plaintiff alleged
that as a result of the sexual abuse, he suffered extreme
Submitted September 27, 2016
anxiety, depression and behavioral changes that led to his
|
psychiatric hospitalization.
Decided December 14, 2016
On appeal from the Superior Court of New Jersey, Law In June 2012, plaintiff filed suit against the Board,
Division, Monmouth County, Docket No. L–2625–12. Shroyer, the School and three of its directors and
employees (collectively, the Rugby defendants). Plaintiff
Attorneys and Law Firms filed an amended complaint that added Helfrich as a
defendant, and, on December 20, 2013, plaintiff moved
The Maglione Firm, P.C., attorneys for appellant (Dean R. to file a second amended complaint alleging: assault
Maglione, of counsel; Lora B. Glick, on the brief). and battery by Shroyer (count one); negligence by
the Board (count two); age and gender discrimination
Margolis Edelstein, attorneys for respondent The Hazlet
pursuant to the New Jersey Law Against Discrimination
Board of Education (Peter S. Cuddihy, on the brief).
(LAD), N.J.S.A. 10:5–1 to –49, against the Board, the
Cruser, Mitchell & Sanchez, L.L.C., attorneys for Rugby defendants and Helfrich (Count Three); negligence
respondents Jaime Rogers, Glenn Helfrich and R. against the Rugby defendants and Helfrich, claiming they
Helfrich & Son (Douglas V. Sanchez, of counsel and on stood in loco parentis to plaintiff (count four); negligent
the brief; Michael S. Williams, on the brief). supervision and training against the Board and the
Rugby defendants as to Shroyer (count five); intentional
Respondents The Rugby School at Woodfield, Brandi infliction of emotional distress (IIED) (count six), and
Shroyer and Ralph Russo have not filed briefs. negligent infliction of emotional distress (NIED) (count
seven), against all defendants.
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1

2016 WL 7232370
argues the judge wrongly applied summary judgment

The Board filed an answer generally denying plaintiff's standards, and the record contained sufficient evidence
allegations, and asserting, among other things, that of Helfrich's negligence, because its drivers never received
plaintiff's negligence claims were barred by the Tort proper training and failed to report the sexual abuse
Claims Act (TCA), N.J.S.A. 59:1–1 to 12–3. In lieu of for more than two weeks. Plaintiff further contends the
filing an answer, Helfrich moved to dismiss the complaint Board was vicariously liable for Helfrich's negligence,
for failure to state a claim. 2 R. 4:6–2(e). In support, based on the Board's non-delegable duty to protect its
Helfrich furnished a copy of plaintiff's deposition. students, the doctrine of apparent authority and “master-
servant-subservant theory.” Lastly, plaintiff asserts the
*2 Plaintiff filed opposition, as did the Board, which judge wrongly dismissed his LAD claim against the Board,
essentially argued the motion was premature. During oral and his IIED claim against Helfrich and the Board. 6
argument, the judge recognized the motion had been
transformed into one seeking summary judgment. See R. We have considered these arguments in light of the record
4:6–2 (“If, on a motion to dismiss based on [subsection and applicable legal standards. We affirm in part, reverse
(e) ], matters outside the pleading are presented to and not in part, and remand for further proceedings consistent
excluded by the court, the motion shall be treated as one with this opinion.
for summary judgment and disposed of as provided by
[Rule] 4:46 ....”). The judge reserved decision.
I.
In a written statement of reasons that accompanied
his March 21, 2014 order (the 2014 order), the judge *3 We first consider whether plaintiff's cross-motion
concluded plaintiff failed to plead any facts demonstrating for reconsideration should have been granted, and if so,
Helfrich violated the LAD. 3 He also determined Helfrich whether the judge's interlocutory order dismissing all of
was not acting in loco parentis while transporting plaintiff. plaintiff's claims against Helfrich, except for the IIED
Nonetheless, the judge noted Helfrich may have had a and NIED counts, was appropriate. Although plaintiff's
statutory duty to report Shroyer's abuse, stating, “[g]iven application sought relief under Rule 4:49–2, that rule only
the possible statutory duty” to report child abuse or applies to final orders or judgments. Rusak v. Ryan Auto.,
neglect pursuant to N.J.S.A. 9:6–8.10, “failure to follow L.L.C., 418 N.J. Super. 107, 117 n.5 (App. Div. 2011).
said law could then be grounds for tortfeasor liability
under a common law negligence claim.” The judge denied The 2014 order did not dispose of all claims against
the motion as to plaintiff's NIED and IIED claims. 4 Helfrich, much less claims against other defendants. As a
result, it was “subject to revision at any time before the
Discovery ensued, and Helfrich subsequently moved for entry of final judgment in the sound discretion of the court
summary judgment, the Board cross-moved for summary in the interest of justice.” R. 4:42–2; see also Lombardi v.
judgment and plaintiff opposed the motions and cross- Masso, 207 N.J. 517, 535–36 (2011) (explaining that even
moved for reconsideration of the 2014 order as to orders granting complete summary judgment to a party
are interlocutory and subject to revision until the litigation
Helfrich. 5 The judge again considered oral argument
is final as to all parties). The evidence in support of such
and reserved decision. His May 8, 2015 orders (the 2015
a motion need not be “newly discovered,” nor is the judge
orders) granted summary judgment to the Board and
“constrained ... by the original record.” Id. at 537. We
Helfrich and denied plaintiff's motion for reconsideration.
briefly summarize the motion record that was before the
This appeal followed.
court in May 2015 in a light most favorable to plaintiff. R.
4:46–2(c); Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
Plaintiff argues the judge erroneously determined Helfrich
was not acting in loco parentis, and his motion
Plaintiff testified in deposition that he and Shroyer began
for reconsideration should have been granted because
to exchange personal text messages in April 2009, and
Helfrich's employees qualify as “school personnel” under
he would try to be assigned after-school detention, which
New Jersey law and on public policy grounds, and
Shroyer oversaw. Shroyer was also responsible for driving
the judge's decision was “premature.” Plaintiff further
student detainees home and did so in plaintiff's case. The

2016 WL 7232370
texts became more intimate, and in late May, plaintiff sent School reported the incident to law enforcement on June
a message that he wanted to visit Shroyer at her home. 11.
She picked him up at the train station, brought him to her
home, and they had sexual intercourse. Plaintiff said that *4 Plaintiff's liability expert, Bruce Rothenberg, an
Rogers asked about his relationship with Shroyer, and “[e]ducational [c]onsultant,” opined in his report that the
plaintiff told her that he and Shroyer were “seeing each Board, the School and Helfrich were palpably negligent in
other.” About two weeks later, Rogers notified school their obligation to “provide a safe and secure environment
authorities. which would have prevented multiple sexual assaults of
[plaintiff], by ... [Shroyer], from occurring.” Rothenberg
Rogers stated that she began working for Helfrich in determined the Board was palpably negligent: (1) in its
October 2008 and had no prior experience transporting failure to meet its responsibility to provide transportation
students. She received no training other than that required to plaintiff; and (2) in failing to ensure that Helfrich, as
to operate the bus and obtain a commercial driver's the Board's contracted agent, was in compliance with all
license. On May 28, 2009, Rogers witnessed plaintiff regulations, including the appropriate training of their
having a conversation with Shroyer, and heard her tell drivers. Rothenberg stated that Helfrich was palpably
plaintiff, “I'll text you.” Rogers overheard plaintiff's negligent in its failure to train their drivers to recognize,
conversation with a fellow student, essentially bragging document and report evidence of child abuse.
about his relationship with Shroyer. On June 2, she
observed a “hickey” on plaintiff's neck, which plaintiff Richard L. Farber, the School's liability expert, opined
said Shroyer had given to him the night before at her in his report that Helfrich, the Board and plaintiff's
house. The next day, Rogers spoke directly to Glenn step-father, who admittedly was told by plaintiff about
Helfrich, who indicated he was unsure what to do. On the relationship, but chose not to believe his stepson,
June 5, Helfrich told Rogers he was waiting for the School were grossly negligent. Farber stated the Board failed to
to return his call. According to Rogers, on Monday, June “inform and guide” Helfrich about “the nature of special
8, plaintiff said he had spent the weekend with Shroyer. needs children, harassment, bullying and intimidation ...
state mandates/procedures” and failed to convey this
Rogers never received any policies or procedures from the information to its drivers. As to Helfrich, Farber
Board or Helfrich regarding the use of cell phones between concluded the company and its drivers were untrained and
students and teachers, nor did she receive any specific failed to act in a timely manner when they became aware
training regarding the reporting of incidents of violence or of plaintiff's relationship with Shroyer.
abuse against children.
Plaintiff's motion for reconsideration of the 2014
Glenn Helfrich testified at deposition that his company order confusingly sought review of the judge's earlier
contracted directly with the Board. Neither the Board determination that Helfrich could not, as a matter of
nor the School provided any information pertaining to law, be in loco parentis to plaintiff. However, during
the transport of special needs children, or any training oral argument, plaintiff's counsel made clear that she was
“regarding witnessing and/or reporting of incidents of asking the judge to review his earlier ruling dismissing all
violence, abuse, bullying, intimidation, harassment, or claims of negligence against Helfrich, except for the NIED
sexual harassment against students [.]” Each school claim.
district, however, provided Helfrich with its specific anti-
bullying policy. Contrary to Rogers' testimony, Helfrich The judge should have reconsidered plaintiff's claim for
stated that he trained his employees to file an incident common law negligence against Helfrich. When the judge
report any time they witnessed harassment or misbehavior entered the 2014 order, the record only included plaintiff's
by students, or “anything to do with safety or violence ....” deposition. When the motions for summary judgment
Helfrich further testified he never spoke to anyone from were filed, and plaintiff cross-moved for reconsideration,
the Board about the incident, but he contacted the School the record, as noted, was extensive. In his written
within twenty-four hours of speaking with Rogers. He was statement of reasons that accompanied the 2015 orders,
told by the School's director that law enforcement had the judge only stated that plaintiff “cited no new case
been contacted, and an investigation was underway. The law to question” the prior “legal determination” that

2016 WL 7232370
Helfrich did not stand in loco parentis to plaintiff. The private companies to provide all necessary transportation,
judge failed to address his earlier recognition that Helfrich N.J.A.C. 6A:27–9.1(a), and every employer is required to
might have owed a duty pursuant to N.J.S.A. 9:6–8.10 to “ensure that all school bus drivers ... are properly trained
report Shroyer's conduct, and a breach of that duty might for the functions of their positions.” N.J.A.C. 6A:27–
support plaintiff's common law negligence claim. 11.3(a). “At a minimum, the training shall include ...
[s]tudent management and discipline.” N.J.A.C. 6A:27–
In reviewing a grant of summary judgment, we apply 11.3(b)(1).
the same standard as the trial court. Bhagat, supra,
217 N.J. at 38. We first determine whether the moving N.J.S.A. 9:6–8.10 requires “[a]ny person having
party demonstrated there were no genuine disputes as to reasonable cause to believe that a child has been subjected
material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., to child abuse or acts of child abuse [to] report the
387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 same immediately to the Division of Child Protection
N.J. 104 (2006). and Permanency by telephone or otherwise.” The failure
to make a timely report under N.J.S.A. 9:6–8.10 could
[A] determination whether there exists a “genuine issue” constitute evidence of negligence. J.S. v. R.T.H., 155 N.J.
of material fact that precludes summary judgment 330, 349 (1998).
requires the motion judge to consider whether the
competent evidential materials presented, when viewed Viewed through the appropriate summary judgment
in the light most favorable to the non-moving party, are prism, the motion record revealed that Helfrich failed
sufficient to permit a rational factfinder to resolve the to train its employees regarding the obligations imposed
alleged disputed issue in favor of the non-moving party. by regulation upon all school bus drivers in New Jersey,
as well as the statutory duty to report child abuse.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
Its employee, Rogers, was arguably aware of Shroyer's
(1995).]
sexual abuse of plaintiff for several days or weeks before
We then decide “whether the motion judge's application reporting it to her superiors. Despite that knowledge,
of the law was correct.” Atl. Mut., supra, 387 N.J. Super. the company collectively failed to immediately report
at 231. We review issues of law de novo and accord no Shroyer's conduct to school officials and the appropriate
deference to the trial judge's legal conclusions. Nicholas v. authorities. Without commenting on the ultimate merits
Mynster, 213 N.J. 463, 478 (2013). of the claim, we are constrained to reverse the grant of
summary judgment to Helfrich on count four of plaintiff's
We are constrained to reverse the orders that collectively complaint alleging negligence.
dismissed plaintiff's common law negligence claim against
Helfrich. Plaintiff contends that Helfrich breached a For the sake of completeness, we note our agreement
duty to timely report Stroyer's sexual abuse. He cites as with the judge's conclusion that Helfrich was never in loco
evidence of this duty various regulatory and statutory parentis to plaintiff and reject plaintiff's reassertion of this
provisions. Indeed, violations of legislative and regulatory argument on appeal. The Court has said,
standards of conduct intended to protect certain members
In loco parentis literally translated means “in the place
of the public may not necessarily give rise to private
of a parent.” Black's Law Dictionary 803 (8th ed. 2004).
causes of action, but such a violation might be evidence
Black's Law Dictionary further describes the phrase
of negligence. Steinberg v. Sahara Sam's Oasis, LLC, 226
as “relating to, or acting as a temporary guardian
N.J. 344, 361 (2016).
or caregiver of a child, taking on all or some of the
responsibilities of a parent.” Ibid. Typically, the in loco
*5 Relevant to this case, transportation to and from
parentis relationship is temporary in nature, Miller v.
school is a “related service” required to be provided by the
Miller, 97 N.J. 154, 162 (1984) (quoting A.S. v. B.S.,
Individuals with Disabilities Education Act (the IDEA),
139 N.J. Super. 366, 369–70 (Ch. Div. 1976), aff'd, 150
20 U.S.C.A. § 1401. 34 C.F.R. § 300.34(c)(16). New
N.J. Super. 122 (App. Div. 1977)), and “is reserved
Jersey requires school districts to provide transportation
for individuals who function as a parent.” Dale v. Boy
services to their special needs students. N.J.A.C. 6A:27–
Scouts of Am., 160 N.J. 562, 602 (1999), rev'd on other
5.1(a). Local districts are permitted to contract with
grounds, 530 U.S. 640, 120 S. Ct. 2446, 147 L.Ed. 2d

2016 WL 7232370
554 (2000). “Characteristics of that relationship include methodology are reliable.’ ” Townsend v. Pierre, 221 N.J.
‘the responsibility to maintain, rear and educate the 36, 55 (2015) (quoting Landrigan v. Celotex Corp., 127
child,’ as well as the duties of ‘supervision, care and N.J. 404, 417 (1992)).
rehabilitation.’ ” Ibid. (citations omitted).
Rothenberg explained the relevant statutory and
[Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 91 regulatory provisions, and his report adequately set
(2006).] forth the numerous factual reports and depositions he
reviewed. He expressed two bases for his opinion that the
Helfrich undertook none of the responsibilities of a
Board was negligent. First, Rothenberg said the Board
surrogate parent, Frugis v. Bracigliano, 177 N.J. 250,
failed to provide transportation as required by plaintiff's
268 (2003), but rather only accepted the responsibility
IEP, because it provided no bus service after plaintiff's
to safely transport students to and from school. More
detention. As a result, plaintiff found himself in Shroyer's
importantly, even when a defendant is in loco parentis to a
car as opposed to Helfrich's bus. We fail to see how that
plaintiff, the Court has rejected some heightened standard
violates any of the Board's statutory or regulatory duties.
of care and applied “traditional principles of due care and
“A party's burden of proof on an element of a claim may
foreseeability.” Davis v. Devereux Found., 209 N.J. 269,
not be satisfied by an expert opinion that is unsupported
289 (2012).
by the factual record or by an expert's speculation that
contradicts that record.” Ibid. To the extent the judge saw
this allegation of negligence as an issue of foreseeability,
II. we would agree. In other words, the Board's duty to
provide transportation was not breached when alternate
In granting summary judgment to the Board, the transportation was arranged by the school.
judge never squarely addressed the second count of the
complaint alleging negligence. Instead, in the context However, Rothenberg also opined the Board was
of plaintiff's NIED claim, the judge rejected plaintiff's negligent for “failing to insure that Helfrich ... was in
assertions of negligent training and statutory and compliance with all regulations, including the appropriate
regulatory violations and said “[p]laintiff's sexual assault training of their drivers ... as per IDEA guidelines” to
was not reasonably foreseeable ....” identify “evidence of abuse, to document that evidence
and to report those incidents to law enforcement
*6 Before us, citing the same legislative and regulatory authorities.” He cited Rogers' testimony that she was
provisions already noted, plaintiff contends the Board never trained and did not know how or to whom she
violated his IEP because it failed to provide transportation should make a report.
when he was assigned after school detention, thereby
leading to the inappropriate relationship he struck up with During her argument in the Law Division, plaintiff's
Shroyer, who, on occasion, drove him home. Plaintiff counsel never claimed that Helfrich was the Board's
also argues the Board had a non-delegable duty to ensure servant or acted with apparent authority. We therefore
that Helfrich personnel were properly trained to transport do not consider these points on appeal. Nieder v. Royal
special needs children and contends that the Board may Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
be held liable under the doctrine of “apparent authority”
or “master-servant-subservant theory.” The Board argues Although she did not describe the duty as “nondelegable,”
the judge correctly decided Shroyer's criminal conduct was plaintiff's counsel did contend that the Board had a duty
unforeseeable; these alternative theories of liability were to provide transportation pursuant to the IDEA and New
never presented to the trial court; and Rothenberg's report Jersey statutes and regulation, and that duty included
was a net opinion. an obligation to ensure that Helfrich's employees were
properly trained. The Board argued it met its obligation
Initially, we reject the Board's assertion that the expert's to provide transportation by hiring Helfrich, and, citing
report was a net opinion. “The net opinion rule ... material not in the record, the Board claimed it and
mandates that experts ‘be able to identify the factual Helfrich had policies and procedures in place to address
bases for their conclusions, explain their methodology, issues of violence and student behavior. The judge did
and demonstrate that both the factual bases and the

2016 WL 7232370
not specifically decide the argument, since he concluded, we held that the defendant health care entity owed a
apparently, that the Board could not be liable because non-delegable duty to its patient, and the engagement
Shroyer's conduct was not foreseeable. of an independent contractor to read the patient's x-
ray “created no insulation against liability for that
Before us, plaintiff recognizes the general proposition that independent contractor's negligence.” Id. at 435. The
one who hires an independent contractor is not liable for result was particularly appropriate since “[t]he very work”
the contractor's own negligence in the performance of its the plaintiff contracted for “was negligently performed,”
duties. “The immunity granted to a principal who hires an and he neither knew of the subcontractor nor “had any
independent contractor rests on the distinction between an choice in selecting” him. Id. at 441.
independent contractor and an employee.” Basil v. Wolf,
193 N.J. 38, 62 (2007). As already noted, the regulations regarding the
transportation of students, including special needs
*7 “Liability may be imputed to a principal for the students, anticipate adequate training on the part of
actions of independent contractors: (1) where the principal bus drivers to be alert to and report instances of
retains control of the manner and means of doing the possible abuse. These obligations are imposed regardless
work that is the subject of the contract; (2) where the of whether the school board or an independent contractor
principal engages an incompetent contractor; or (3) where is the driver's “employer.” In addition, the Court has
the activity constitutes a nuisance per se.” Id. at 63 (citing recognized the pervasive responsibility shared by all
Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 citizens to prevent child abuse and the duty imposed by
N.J. 425, 431 (1959)). Plaintiff contends a variation of this statute to make a report upon reasonable cause to believe
last exception applies, i.e., the Board's duty to plaintiff abuse has occurred. J.S., supra, 155 N.J. at 342–346;
was non-delegable because transportation of special needs N.J.S.A. 9:6–8.10.
children “presents a significant risk of grave harm.” See,
e.g., Baboghlian v. Swift Elec. Supply Co., 197 N.J. 509, Our independent research reveals at least one circuit has
519 (2009) (“Our courts have imposed nondelegable duties rejected a claim that, because the public entity retains
in other instances in which the potential for grave harm ultimate responsibility to provide ancillary transportation
was involved.”) (citations omitted). 7 services under the IDEA, it was liable under 42 U.S.C.A.
§ 1983 for the negligence of its independent contractor.
We have also recognized that “[t]he primary reason for Santiago v. Puerto Rico, 655 F.3d 61, 71–72 (1st Cir. 2011).
imposing a nondelegable duty on the principal is that To the contrary however, in Seiwert v. Spencer–Owen
the duty is of extraordinary importance to the public.” Community School Corp., 497 F. Supp. 2d 942, 956 (S.D.
Great N. Ins. Co. v. Leontarakis, 387 N.J. Super. 583, Ind. 2007), the court found a school board may be liable
592 (App. Div. 2006) (citations omitted). The overriding for common law negligent supervision where the state
public policy supporting imposition of a non-delegable statute “placed transportation of school children within
duty may be expressed in applicable legislation. Id. at 591. the hands of the School Corporation.” The court reasoned
the “legislature must have intended for transportation to
For example, in Great Northern, we concluded that, be a non-delegable duty ‘so important to the community
pursuant to statute, when conducting excavation on his that the principal should not be permitted to transfer these
property, a landowner owed a non-delegable duty to an duties to another.’ ” Ibid.
adjacent property owner to support a wall previously
constructed on the property line. Id. at 592–94. In DeMary *8 Based upon the motion record at the time, there were
v. Rieker, 302 N.J. Super. 208, 221–22 (App. Div. 1997), disputed facts as to whether Helfrich trained its personnel,
we concluded that a finance company had a non-delegable and whether the Board took any action to ensure that
duty pursuant to statute to repossess a car without a Helfrich's drivers were properly trained. As noted above,
breach of the peace. those disputed facts foreclosed summary judgment as to
Helfrich. Whether the Board is liable for Helfrich's failure
In Marek v. Professional Health Services, Inc., 179 depends upon whether it could delegate its statutory and
N.J. Super. 433 (App. Div. 1981), we found a non- regulatory duties to an independent contractor to fulfill,
delegable duty, even in the absence of a statute. There, or whether those duties were nondelegable.

2016 WL 7232370
certif. denied, 200 N.J. 207 (2009). We therefore affirm the

grant of summary judgment to the Board.
It is common knowledge that public entities use private
contractors to transport school students, and the practice
in New Jersey is pervasive. The record before the
motion judge was sparse, and plaintiff's articulation of III.
the argument was obtuse. The failure on appeal to
have included participation of affected non-governmental Lastly, we affirm the judge's decision granting the Board
organizations intimately involved with public education in summary judgment on plaintiff's LAD claim, and the
New Jersey further heightens our reluctance to hold that Board and Helfrich summary judgment on plaintiff's IIED
school boards have a nondelegable duty in this regard. As claim. Simply put, the arguments plaintiff makes lack
a court of intermediate appellate jurisdiction, we do not sufficient merit to warrant discussion in a written opinion.
presume to impose significant fiscal responsibility upon R. 2:11–3(e)(1)(E).
public bodies in the absence of direction from the Supreme
Court or the Legislature. See, e.g., Riley v. Keenan, 406 Affirmed in part; reversed in part and remanded. We do
N.J. Super. 281, 297 (App. Div.) (noting an appellate court not retain jurisdiction.
“should normally defer to the Supreme Court ... with
respect to the creation of a new cause of action”) (citing
All Citations
Tynan v. Curzi, 332 N.J. Super. 267, 277 (App. Div. 2000)),
Not Reported in A.3d, 2016 WL 7232370
Footnotes
1 For the balance of our opinion, except as necessary to identify individual defendants, we refer to the company, Glenn
Helfrich and Rogers collectively as “Helfrich.”
2 We need not set out the procedural history which led to the judge's consideration of Helfrich's motion without first granting
plaintiff's motion to file an amended complaint. The judge clearly articulated that, for purposes of deciding the motion to
dismiss, he was treating the second amended complaint as having already been filed.
3 Although count five, alleging negligent supervision and training, only named the Board and the Rugby School as
defendants, the judge also determined Helfrich had no duty to properly train or supervise Shroyer.
4 The judge's order did not specify the particular counts that were dismissed, although the written statement of reasons
clearly indicated only counts six and seven remained extant.
5 Because plaintiff settled his claims against Shroyer and the Rugby defendants, we do not address any issues raised by
their motion for summary judgment.
6 Plaintiff has not challenged dismissal of the separately-pled NIED count against the Board and Helfrich. An issue not
briefed is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
7 Plaintiff has not asserted and the record does not support a conclusion that the Board either knew or should have known
that Helfrich was “incompetent.”
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.

EXHIBIT D
Case Riverkeeper
Delaware 2:18-cv-10037-CCC-MF
Network v. DelawareDocument 7-2 Filed
River Basin Com'n, 08/21/18
Not Reported in... Page 40 of 63 PageID: 98
2011 WL 3882503
This case involves Plaintiffs' 2 appeal of the Delaware

2011 WL 3882503 River Basin Commission's (“DRBC” or “Commission”)
Only the Westlaw citation is currently available. decision authorizing Stone Energy Corporation to
NOT FOR PUBLICATION withdraw up to 0.7 million gallons of water per day from
United States District Court, D. New Jersey. the West Branch of the Lackawaxen River (WBLR).
DELAWARE RIVERKEEPER NETWORK, The DRBC is a federal-interstate compact agency that

and the Delaware Riverkeeper, Plaintiffs, was created pursuant to the 1961 Delaware River
v. Basin Compact (“Compact”), in order to coordinate
DELAWARE RIVER BASIN COMMISSION, the management of water resources among private
and Carol Collier, in her official capacity enterprise and federal, state, and local governments. See
Pub.L. 87–328, 75 Stat. 588 (1961); see also Compact,
as Executive Director of the Delaware
available at http://www.state.nj.us/drbc/regs/compa.pdf.
River Basin Commission, Defendants.
The DRBC implements the Compact's directives through
Civil No. 10–5639 (AET). the Delaware River Basin Water Code (“WC”), 18 C.F.R.
| § 410, and the Administrative Manual: Rules of Practice
Sept. 2, 2011. and Procedure (“RPP”), see 18 C.F.R. §§ 401.81–90; see
also RPP, available at http://www.state.nj.us/drbc/regs/
Attorneys and Law Firms rules.pdf.
Jane P. Davenport–Mcclintock, Delaware Riverkeeper The Water Code states that “[a]ll projects involving
Network, Bristol, PA, Joseph Francis Kampherstein, a transfer of water into or out of the Delaware
Curtin & Heefner LLP, Morrisville, PA, for Plaintiffs. Basin must be submitted to the Commission for review
and determination” under the Compact. (Compl.¶ 17.)
Bonnie M. Hoffman, Hangley Aronchick Segal & Pudlin,
It is “the policy of the Commission to discourage
Philadelphia, PA, for Defendants.
the exportation of water from the Delaware River
Basin.” (Compl. ¶ 20 (citing WC § 2.30.2).) Section
2.30.3 of the Code states that the Commission's “review
OPINION
and consideration of any public or private project
THOMPSON, District Judge. involving the importation or exportation of water shall
be conducted pursuant to this policy and shall include
assessments of the water resource and economic impacts
I. INTRODUCTION of the project and of all alternatives to any water
exportation or wastewater importation project.” (WC §
*1 This matter has come before the Court upon
2.30.3.) Accordingly, project applicants must address the
the Motion to Join and/or Dismiss [docket # 9]
economic, social, and water-resource impacts of each
filed by Defendants Delaware River Basin Commission
alternative; the amount, timing and duration of the
(“DRBC”) and Carol Collier. Plaintiffs Delaware
transfer and its relation to flow requirements; the volume
Riverkeeper Network (“DRN”) and the Delaware
of the transfer and its relationship to other Commission
Riverkeeper oppose the motion [15]. The Court has
decisions as well as the quantity of other diversions; and
decided the motion upon the submissions of both parties
any significant benefits or impairment to the Delaware
and without oral argument, pursuant to Fed.R.Civ.P.
River Basin as a result of the transfer. (WC § 2.30.4.) In
78(b). For the reasons stated below, Defendants' motion
reviewing projects, the Commission must also ensure that
to join is granted and Defendants' motion to dismiss
“no measurable change” to existing water quality occurs
Collier as a defendant is granted.
at “Boundary and Interstate Control Points” with respect
to Special Protection Waters such as the Delaware River.
(Id. at ¶ 24 (quoting WC § 3.10.3.A.2.b.1).) Additionally,
II. BACKGROUND 1 applicants pursuing projects located in the drainage area
of Special Protection Waters must submit a “Non–Point

Case Riverkeeper
Delaware 2:18-cv-10037-CCC-MF
Network v. DelawareDocument 7-2 Filed
River Basin Com'n, 08/21/18
2011 WL 3882503
Source Pollution Control Plan.” (Id. at ¶ 25 (citing WC § point source pollution control plan” prior to approval.
3.10.3A.2.e).) (Id. at ¶¶ 42–45.) Plaintiffs seek declaratory judgment
that Defendants' actions were arbitrary and capricious;
*2 Under the RPP, a party may request a hearing to an injunction prohibiting Defendants from permitting
review a decision made by the Commission within thirty Stone Energy to proceed with water withdrawals until
days of the decision. (Id. § 2.6.1C.) The Commission will Defendants have complied with statutory and regulatory
grant a hearing if it determines that an adequate record requirements; and attorneys' fees and costs. (Id. at 11.)
regarding the decision is unavailable, the case involves an
Executive Director determination requiring further action On April 1, Defendants filed a motion to join Stone
by the Commission, or a hearing is necessary or desirable. Energy as an indispensable party under Federal Rule
(Id. § 2.6.2A.) Any “final Commission action” is subject to of Civil Procedure 19, or otherwise dismiss for failure
judicial review, as long as the appeal is filed within forty- to join under Federal Rule of Civil Procedure 12(b)(7).
five days of final Commission action. (Id. § 2.6.10.) (Br. in Supp. 7–18)[9]. Defendants also move to dismiss
Defendant Collier under Rule 12(b)(6) on the ground
On March 5, 2009, Stone Energy Corporation (“Stone that she is incapable of granting the requested relief and
Energy”) submitted to the DRBC a docket application therefore is not a proper party. (Id. at 18–20.) Plaintiffs
requesting approval to withdraw up to 0.7 million gallons oppose the motion, arguing that Stone Energy is not a
of water per day from the WBLR for the purposes of necessary party, but that, in the alternative, it may feasibly
extracting natural gas from shale formations within the be joined. (Br. in Opp'n 14–21.) Plaintiffs further argue
Delaware River Basin's drainage area. (Compl.¶ 27.) On that the claims against Collier are to be treated as claims
February 24, 2010, the DRBC held a public hearing, against the Commission. (Id. at 21.)
in which Plaintiff DRN participated, regarding Stone
Energy's application. (Id. at ¶ 30.) The DRBC approved
the docket on July 14. (Id. at ¶ 31.) Plaintiff DRN
III. ANALYSIS
submitted a request for a hearing regarding the DRBC's
decision on August 13, which was subsequently denied on A. Rule 12(b)(7) Motion to Dismiss for Failure to Join
September 15. (Id. at ¶ 32–33.) Indispensable Party
*3 Federal Rule of Civil Procedure 12(b)(7) provides that
Plaintiffs timely filed the Complaint [1] on November 1, an action may be dismissed due to a plaintiff's failure to
2010. Plaintiffs' Complaint alleges that the diminution join a party under Rule 19. In considering such claims,
of the total flow of the WBLR resulting from Stone courts employ a three-part analysis that examines: “(1)
Energy's water withdrawal could cause harm to the whether it is necessary that the absent party be joined;
aquatic community and jeopardize water quality in the (2) whether it is possible for the absent necessary party
WBLR. (Id. at ¶ 29.) The Complaint also highlights to be joined; and (3) if joinder of the absent party is not
a “Determination” issued by the DRBC's Executive feasible, whether ‘in equity and good conscience the action
Director on May 19, 2009, that stated: “[A]s a result should proceed among the parties before it, or should
of water withdrawals, wastewater disposal and other be dismissed, the absent person being thus regarded as
activities, natural gas extraction projects in these shale indispensable.’ ” GenScript Corp. v. AA PEPTIDES,
formations may individually or cumulatively affect the LLC, No. 09–4889, 2010 WL 2950294, at *2 (D.N.J. July
water quality of Special Protection Waters by altering 21, 2010) (quoting Fiscus v. Combus Fin. AG, No. 03–
their physical, biological, chemical or hydrological 1328, 2007 WL 4164388, at *12 (D.N.J. Nov.20, 2007) and
characteristics.” (Id. at ¶ 28.) Plaintiffs claim that Fed.R.Civ.P. 19).
Defendants approved the docket without properly
applying the standards detailed in the Water Code
or requiring Stone Energy to submit information and 1. Necessity of Joinder
exhibits required under the RPP. (Id. at ¶¶ 36–40.) Rule 19(a) requires joinder of parties “subject to
Plaintiffs further claim that Defendants failed to ensure service of process and whose joinder will not deprive
that the docket would not cause any “measurable change” the court of subject-matter jurisdiction” under one of
in water quality and also failed to require a “non- three circumstances: (1) where the court “cannot afford

Case 2:18-cv-10037-CCC-MF
Delaware Document
Riverkeeper Network v. Delaware River Basin 7-2
Com'n,Filed 08/21/18
2011 WL 3882503
complete relief among existing parties;” (2) where the Environmental Coalition v. Bulen, in which a coalition
absent party “claims an interest relating to the subject of of environmental groups challenged the Army Corps of
the action” and that party's absence may “as a practical Engineers' issuance of a particular type of general permit
matter impair or impede the person's ability to protect allowing discharge of dredged material. 429 F.3d 493,
the interest;” or (3) where the absence of the party 495 (4th Cir.2005). There, the Fourth Circuit affirmed the
claiming an interest may “leave an existing party subject district court's holding that the absent permit holders did
to a substantial risk of incurring double, multiple, or not need to be joined as necessary parties because the
otherwise inconsistent obligations because of the interest.” existing parties to the action included coal associations
Fed.R.Civ.P. 19(a)(1). whose members had operations similarly dependent on
the validity of the permit type. Id. at 504–05. Here, by
We note as an initial matter that joinder of Stone contrast, the Defendants' interests do not so neatly align
Energy will not deprive the Court of jurisdiction, given with Stone Energy's. True, the Commission will likely seek
that Plaintiffs' Complaint is based on federal question to uphold the actions it took which incidentally favored
jurisdiction. See Princeton Biochem., Inc. v. Beckman Stone Energy, but it does not have the same interest in
Coulter, Inc., 223 F.R.D. 326, 330 (D.N.J.2004) (stating vigorously defending Stone Energy's pecuniary interests in
that party's “joinder will not deprive the Court of water withdrawal for its natural gas exploration activities.
jurisdiction, as jurisdiction in this action is premised on 28
U.S.C. § 1331 (federal question), not 28 U.S.C. § 1332”); Therefore, we find that Stone Energy is a necessary party.
see also L.K. ex rel. Henderson v. N.C. State Bd. of Educ..,
No. 08–0085, 2009 WL 3172129, at * 8 (E.D.N.C. Oct.1,
2009) (stating that joinder would not deprive the court 2. Feasibility of Joinder
of jurisdiction based on federal question); Crawley v. Having determined that Stone Energy is a necessary party
Bragg, No. 07–0054, 2008 WL 743972, at *5 (M.D.Tenn. under the second prong of 19(a), we need not discuss the
Mar.19, 2008) (same). Furthermore, as Stone Energy is first or third prongs, and we instead proceed to consider
incorporated and headquartered in the United States, (see whether it is feasible to join Stone Energy in this action.
Br. in Supp. 12–13), it is subject to service of process under Specifically, even though joinder would not defeat subject-
Federal Rule of Civil Procedure 4(h). matter jurisdiction, we must address whether the Court
has personal jurisdiction over Stone Energy. See Graco,
Defendants assert that Stone Energy is a necessary party Inc. v. PM Global, Inc., No. 08–1304, 2009 WL 904010,
under the second prong of Rule 19(a)(1). (Br. in Supp. at *8 (D.N.J. Mar.31, 2009) (stating that joinder is not be
14.) We agree. To begin with, Stone Energy has an feasible if “it would destroy diversity, or the court lacks
interest relating to the subject of this action. The Prayer personal jurisdiction over the absentee”); Sch. Dist. of City
for Relief in Plaintiffs' Complaint requests “injunctive of Pontiac v. Sec. of U.S. Dep't of Educ., 584 F.3d 253, 301
relief enjoining Defendants from permitting Stone Energy (6th Cir.2009); Askew v. Sheriff of Cook Cnty., Ill., 568
Corporation to proceed with water withdrawals as F.3d 632, 634–35 (7th Cir.2009). We conclude that it does.
described in Docket 2009–13–1 until such times [sic]
as Defendants have fully complied with all statutory New Jersey's long-arm statute allows the exercise of
and regulatory requirements under the Delaware River personal jurisdiction to the limits set by the Fourteenth
Basin Compact, Water Code, and Delaware River Amendment's Due Process Clause. IMO Indus., Inc.
Basin Administrative Manual: Rules of Practice and v. Kiekert AG, 155 F.3d 254, 259 (3d Cir.1998). The
Procedure.” (Compl.11.) We find that such an order by due process clause requires that nonresident defendants
the Commission would impact Stone Energy's interest in have sufficient “minimum contacts” with the forum state
proceeding with the authorized water withdrawals. so that the exercise of personal jurisdiction “does not
offend traditional notions of fair play and substantial
*4 The question, then, is whether Stone Energy's absence justice.” Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290,
would impair or impede its ability to protect its interests. 299 (3d Cir.2008) (quoting Int'l Shoe Co. v. Washington,
Plaintiffs maintain that Stone Energy's interests are 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
adequately protected by the existing Defendants. (Br. in “Having minimum contacts with a forum provides ‘fair
Opp'n 17–18.) Specifically, Plaintiffs rely on Ohio Valley warning’ to a defendant that he or she may be subject
to suit in that state.” Id. (citing Burger King Corp. v.

Delaware Document
2011 WL 3882503
Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d

528 (1985)). A federal court may have either specific or B. Rule 12(b)(6) Motion to Dismiss Defendant Collier
general personal jurisdiction over a defendant. General in her Official Capacity
personal jurisdiction exists if the defendant has systematic Defendants move to dismiss Collier from this action
and continuous contacts with the forum state. Id. (citing because she did not provide the DRBC approval and
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 does not have the authority to provide Plaintiffs the relief
U.S. 408, 414–16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). they request. (Br. in Supp. 18.) Specifically, Defendants
Where the defendant's contacts do not rise to that level, point out that it is the Commission and not the Executive
specific personal jurisdiction may still exist where the Director that holds the authority to review and approve
defendant has purposefully directed his or her activities at project applications. (Id. at 19); (see Compact § 2.1.4.)
the forum state. Burger King Corp., 471 U.S. at 471; see Furthermore, the Appeals provision of the Compact
also Kehm Oil, 537 F.3d at 299. provides that parties may appeal “any final Commission
action[,]” as opposed to any Executive Director action.
*5 The parties appear to agree that Stone Energy (Compact § 2.6.10.) Plaintiffs assert that they named
submitted itself to the exercise of specific jurisdiction in Collier in her official capacity in order to bring suit against
New Jersey by negotiating a settlement agreement with the entity on behalf of which she acted—namely, the
the DRBC in New Jersey and subsequently submitting DRBC. (Br. in Opp'n 21.) However, Plaintiffs' argument
a docket application to the DRBC. See (Br. in Supp. begs the question of why they would need to name Collier
13); (Br. in Opp'n 20). We note here the difficulty in her official capacity when they have already named the
of undertaking a traditional “purposeful direction” DRBC as a Defendant. At best, inclusion of Collier in her
analysis given that the allegations in Plaintiffs' Complaint official capacity would be redundant. Accordingly, we will
primarily concern the actions taken by the Commission dismiss Executive Director Carol Collier from this action.
rather than Stone Energy, which is not named as a
defendant. Applying a more flexible approach in light
of this unusual posture, we find that Stone Energy's
settlement negotiations with DRBC and its submission IV. CONCLUSION
of a docket application provided fair warning that it
For the reasons stated above, and for good cause shown,
might have to further defend its interests in a New Jersey
Defendants' motion to join is granted, and Defendants'
federal court. This conclusion is buttressed by the fact that
motion to dismiss Defendant Collier from this action is
the RPP states that appeals of final Commission actions
granted. An appropriate order will follow.
may be “filed with an appropriate federal court,” (RPP §
2.6.10), and the Compact provides federal district courts
with “original jurisdiction of all cases or controversies All Citations
arising under the Compact[,]” (see Compact § 15.1(p)).
Not Reported in F.Supp.2d, 2011 WL 3882503
Thus, Stone Energy may feasibly be joined under Rule 19,
and we need not dismiss this action pursuant to Rule 12(b)
(7).
Footnotes
1 The facts in this section are taken from the Complaint as well as matters of public record such as the Delaware River Basin
Compact and the Rules of Practice and Procedure, both of which also happen to form the basis of Plaintiffs' claims. See
Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.2004) (stating that courts deciding Rule 12(b)(6) motions to dismiss
may consider “allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents
that form the basis of a claim.”).
2 Plaintiff DRN is a non-profit organization dedicated to protecting and restoring the Delaware River through environmental
advocacy and law enforcement efforts. (Compl.¶ 2.) Plaintiff the Delaware Riverkeeper, Maya van Rossum, is a privately
funded ombudsman who advocates on behalf of the DRN. (Id. at ¶ 3.)

Delaware Document
2011 WL 3882503

EXHIBIT E
Case
Ray 2:18-cv-10037-CCC-MF
v. Township of Warren, Not Reported Document 7-2 Filed
in F.Supp.2d (2009) 08/21/18 Page 46 of 63 PageID: 104
2009 WL 3074776
2009 WL 3074776
Only the Westlaw citation is currently available. OPINION
NOT FOR PUBLICATION
PISANO, District Judge.
United States District Court, D. New Jersey.
*1 This is an action by plaintiff, Lawrence Ray (“Ray”
Lawrence V. RAY, Plaintiff,
or “Plaintiff”), seeking damages under 42 U.S.C. §
v.
1983 and state law alleging that several officers of the
TOWNSHIP OF WARREN, et al., Defendants. Warren Township Police Department engaged in an
unlawful search of Plaintiff's residence. Presently before
Civil Action No. 07–2812 (JAP).
the Court is a motion by Defendants, Township of
|
Warren, Warren Township Police Department, Police
Sept. 23, 2009.
Officers Russell Leffert, Angelo Paolella, Joseph Cohen,
and Donald Calabrese (the “Defendant Officers”), and
West KeySummary Chief of Police William Stahl, for summary judgment
based upon qualified immunity and New Jersey's Tort
Claims Act. For the reasons set forth below, Defendants
1 Civil Rights
motion is granted as to Plaintiff's § 1983 claim insofar as
Sheriffs, police, and other peace officers
the Defendant Officers are sued their individual capacities,
Police officers, who entered a home due to and is granted as to Plaintiff's state law claims.
their concern for the welfare of a young
child, were entitled to qualified immunity
from the homeowner's § 1983 claim asserting I. Background
the unlawful search of his residence. Before As Plaintiff states in his complaint, at all relevant times
entering the residence, officers knocked on “Plaintiff and Theresa Ray, his then wife, were in the
doors, windows, placed a phone call to process of a very contentious divorce.” Compl. ¶ 23.
the phone number at the home, contacted On June 17, 2005, Defendant police officers Angelo
a judge and were told that the entry Paolella, 1 Donald Calabrese, Larry Frank 2 and Joseph
of the premises was reasonable under the Cohen (collectively, the “Responding Officers”) of the
circumstances. Furthermore, the officers Warren Township Police Department were called to
knew the homeowner was in the middle Plaintiff's residence. See Police Report at Def. Ex. B; Pl. R.
of a contentious child custody dispute, and 56.1 Statement at 6. On that evening, Theresa Ray, went
had reason to believe the child may have to Plaintiff's home to pick up their five-year-old daughter,
been endangered in the homeowner's custody.
allegedly pursuant to a visitation order. 3 Ms. Ray rang
U.S.C.A. Const.Amend. 4; 42 U.S.C.A. §
the doorbell and observed a man inside the house that
1983.
she believed to be Plaintiff “completely ignoring” her
3 Cases that cite this headnote presence at the door. Deposition of Theresa Ray (“T.
Ray Dep.”) at 106, attached Ex. 9 to Declaration of Paul
Levinson. Ms. Ray continued to ring the doorbell and
knock, and waited several minutes. Id. at 110. Finally,
after receiving no response, she called the police when she
Attorneys and Law Firms
became “concern[ed] for her child.” Id. at 111.
Michael V. Gilberti, Epstein & Gilberti, LLC, Red Bank,
NJ, for Plaintiff. Officer Paolella testified that when he arrived at the
scene, Ms. Ray “seemed upset” and “concerned for her
Dawn M. Sullivan, Juan Carlos Fernandez, O'Toole daughters well being.” Deposition of Officer Paolella
Fernandez Weiner Van Lieu, Verona, NJ, for Defendants. (“Paolella Dep.”) at 89, attached as Exhibit B to
Certification of Juan Fernandez. He stated that the

Case
2009 WL 3074776
officers “[k]nocked and beat on every door and ... sliding and that he did not know where he was. Id. at 47. The
glass door of the home” and but received no response. police searched the house for Plaintiff and the child. Id.
Id. at 94. Officer Paolella then had the dispatcher call the They were in the house approximately 20 minutes, and did
home phone of the residence but no one inside answered. not find Plaintiff or his daughter in the home.
Id. at 95. The police then walked around the house to
investigate. T. Ray Dep. at 128.
II. Analysis
According the police report filed by defendant Officer Plaintiff brought this action against the Township of
Calabrese, Officer Calabrese had a “heightened sense Warren, Warren Township Police Department, Police
of awareness ... that a dangerous situation might be Officers Russell Leffert, Angelo Paolella, Joseph Cohen,
present” because of the “acrimonious nature of the and Donald Calabrese in their individual and official
Ray's divorce proceedings and child custody disputes.” capacities, and Chief of Police William Stahl in his
See Police Reports at Ex. 14 (original handwritten official capacity alleging that the June 17 incident violated
version), 15 (corrected/altered version) to Declaration of his Constitutional right against unreasonable searches
protected by the Fourteenth Amendment. See New Jersey
Paul Levinson. 4 As a result, Paolella told Calabrese to
v. T.L. O., 469 U.S. 325, 334, 105 S.Ct. 733, 738, 83
consult municipal court Judge Richard Sasso regarding
L.Ed.2d 720 (1985) (“the Federal Constitution, by virtue
the situation. Paolella Dep. at 104. Officer Calabrese
of the Fourteenth Amendment, prohibits unreasonable
advised Judge Sasso of his concerns, and asked whether
searches and seizures by state officers.”) quoting Elkins
the officers “have the ability to go into the house”
v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437,
to look for the child. Calabrese Dep. at 128. Officer
1442, 4 L.Ed.2d 1669 (1960). Section 1983 provides
Calabrese testified that he did not regard his phone call
for a private cause of action to be brought by those
as an application for a warrant of any kind. Id. at 129.
individuals deprived of rights secured under the United
Officer Paolella, the commanding officer at the scene,
States Constitution. “To establish a section 1983 civil
similarly testified that he it was his understanding that
rights claim, a plaintiff must demonstrate that the conduct
Calabrese did not seek either a telephonic arrest warrant
complained of was committed by a person acting under
or search warrant from Judge Sasso. Paolella Dep. at
state law and that the conduct deprived him of rights,
104. According to Officer Calabrese, Judge Sasso advised
privileges or immunities secured by the Constitution.”
Officer Calabrese that under the circumstances the police
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
could enter the home. Calabrese Dep. at 129.
Cir.1994) (internal quotation marks omitted). Plaintiff
also has asserted several state law claims: Count II
*2 According to Judge Sasso, the authorization given
—“Violation of New Jersey Tort Claims Act,” Count III
to the officers was an arrest warrant. Sasso Dep. at 52,
—Invasion of Privacy, Count IV—Trespass, and Count V
59. Subsequently, Judge Sasso entered a written arrest
—Intentional Infliction of Emotional Distress.
warrant for Plaintiff, which was later voided. Pl.Ex. 17.
Defendants move for summary judgment asserting that

The police officers entered Plaintiff's home through an
the Defendant Officers are entitled to qualified immunity
unlocked but obstructed door on the side of the house.
and Plaintiff's state law claims are barred by New Jersey's
Deposition of Larry Frank (“Frank Dep.”) at 55–56. The
Tort Claims Act, 59:9–2(d).
unlocked door was secured by a plank of wood that was
intended to secure the door from opening. T. Ray Dep.
at 53. Officer Paolella used a ‘slim jim’ to clear the wood A. Summary Judgment Standard
beam that was obstructing the door and the officers gained A court shall grant summary judgment under Rule 56(c)
entry. Frank Dep. at 73–74. of the Federal Rules of Civil Procedure “if the pleadings,
the discovery and disclosure materials on file, and any
Inside the home, Officer Paolella encountered Plaintiff's affidavits show that there is no genuine issue as to any
father, Larry Grecco. Paolella Dep. at 162. Grecco material fact and that the movant is entitled to judgment
testified that he was sleeping on the couch and woke up as a matter of law.” Fed.R.Civ.P. 56(c). The substantive
to see police standing in the kitchen. Grecco Dep. at 34– law identifies which facts are critical or “material.”
35. Grecco advised the officers that Plaintiff was not home Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

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2009 WL 3074776
S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact raises a law to be decided by the Court. See Carswell v. Borough of
“genuine” issue “if the evidence is such that a reasonable Homestead, 381 F.3d 235, 242 (3d Cir.2004) (“The court
jury could return a verdict” for the non-moving party. must make the ultimate determination on the availability
Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d of qualified immunity as a matter of law.”).
Cir.1988).
In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
*3 On a summary judgment motion, the moving party L.Ed.2d 272 (2001), the United States Supreme Court
must show, first, that no genuine issue of material fact held that a claim of qualified immunity must be analyzed
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 using a two-step inquiry. In the first step, the court
S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party examines whether, taken in the light most favorable to
makes this showing, the burden shifts to the non-moving the party asserting the injury, the facts alleged show
party to present evidence that a genuine fact issue compels that the officer's conduct violated a constitutional right.
a trial. Id. at 324. In so presenting, the non-moving Saucier, 533 U.S. at 201. In the second step, the court
party may not simply rest on its pleadings, but must then examines whether the right violated was “clearly
offer admissible evidence that establishes a genuine issue established.” Saucier, 533 U.S. at 201. More specifically,
of material fact, id., not just “some metaphysical doubt “the right the official is alleged to have violated must
as to the material facts.” Matsushita Elec. Indus. Co. v. have been ‘clearly established’ in a more particularized,
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 and hence more relevant sense: the contours of the right
L.Ed.2d 538 (1986). The Court must consider all facts and must be sufficiently clear that a reasonable official would
their logical inferences in the light most favorable to the understand that what he is doing violates that right.”
non-moving party. Pollock v. American Tel. & Tel. Long Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
Lines, 794 F.2d 860, 864 (3d Cir.1986). The Court shall 97 L.Ed.2d 523 (1987).
not “weigh the evidence and determine the truth of the
matter,” but need determine only whether a genuine issue *4 In Pearson v. Callahan, 555 U.S. ––––, 129 S.Ct.
necessitates a trial. Anderson, 477 U.S. at 249. If the non- 808, 172 L.Ed.2d 565 (2009), the Supreme Court revisited
moving party fails to demonstrate proof beyond a “mere Saucier's two-step analysis. In that decision, the Court
scintilla” of evidence that a genuine issue of material fact held that the two-step Saucier analysis is no longer
exists, then the Court must grant summary judgment. Big mandatory in that courts need not first determine whether
Apple BMW v. BMW of North America, 974 F.2d 1358, the facts alleged by the plaintiff make out a violation of a
1363 (3d Cir.1992). constitutional right. Rather, courts “should be permitted
to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should
B. Qualified Immunity be addressed first in light of the circumstances in the
Qualified immunity is an affirmative defense intended particular case at hand.” Id. at 818. Consequently, if
to shield government officials performing discretionary a court first determines that the right at issue was not
functions from liability for civil damages, provided their clearly established at the time of the offense, it need not
conduct “does not violate clearly established statutory explore the factual support for the plaintiff's allegations
or constitutional rights of which a reasonable person of a constitutional violation, and may grant qualified
would have known.” Kopec v. Tate, 361 F.3d 772, 776 (3d immunity.
Cir.2004) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Municipalities Government officials are shielded from liability if they
and individuals sued in their official capacity are not act “reasonably but mistakenly.” Anderson, 483 U.S.
accorded qualified immunity; only police officers sued in at 641. “[T]he Supreme Court has emphasized that the
their individual capacities may assert this defense. See inquiry is whether a reasonable officer could have believed
Owen v. City of Independence, 445 U.S. 622, 650, 100 that his or her conduct was lawful, in light of the
S.Ct. 1398, 63 L.Ed.2d 673 (1980) (rejecting the claim that clearly established law and the information in the officer's
municipalities are afforded qualified immunity); W.B. v. possession.” Sharrar v. Felsing, 128 F.3d 810, 826 (3d
Matula, 67 F.3d 484, 499 (3d Cir.1995) (“the doctrine of Cir.1997) (abrogated on other grounds by Curley v. Klem,
qualified immunity shields officials acting only in their 499 F.3d 199 (3d Cir.2007)). A court must therefore
individual capacities”). Qualified immunity is a matter of

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2009 WL 3074776
objectively evaluate whether a reasonable officer would

comprehend that his actions at the time violated clearly The community caretaking exception recognizes that
established law. See Anderson, 483 U.S. at 639 (“Whether the police perform a multitude of community functions
an official protected by qualified immunity may be held apart from investigating crime. In performing this
personally liable for an allegedly unlawful official action community caretaking role, police are ‘expected to
generally turns on the ‘objective legal reasonableness' of aid those in distress, combat actual hazards, prevent
the action ... assessed in light of the legal rules that were potential hazards from materializing and provide an
‘clearly established’ at the time [the action] was taken.”). infinite variety of services to preserve and protect public
In other words, a court must judge the reasonableness of safety.’
the action “from the perspective of a reasonable officer on
U.S. v. Smith, 522 F.3d 305, 313 (3d. Cir.2008) (quoting
the scene, rather than with the 20/20 vision of hindsight.”
United States v. Coccia, 446 F.3d 233, 238 (1st Cir.2006).
Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989) (citing Terry v. Ohio, 392 U.S.
This exception was first recognized by the Supreme Court
1, 20–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Thus,
in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523,
“[t]his immunity is broad in scope and protects all but the
37 L.Ed.2d 706 (1973). In Dombrowski, the local police
plainly incompetent or those who knowingly violate the
searched the defendant's disabled and towed vehicle after
law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092,
an automobile accident. The owner of the vehicle was a
89 L.Ed.2d 271 (1986). The Third Circuit clarified that,
police officer who the local police believed was required
“[a]t the risk of understating the challenges inherent in
to carry a service weapon at all times, and it was the
a qualified immunity analysis, we think the most helpful
local department's standard procedure to remove weapons
approach is to consider the constitutional question as
from vehicles in order “to protect the public from the
being whether the officer made a reasonable mistake of
possibility that a revolver would fall into untrained or
fact, while the qualified immunity question is whether the
perhaps malicious hands.” Id. at 443, 413 U.S. 433, 93
officer was reasonably mistaken about the state of the
S.Ct. 2523, 37 L.Ed.2d 706. Because the search undertaken
law.” Curley, 499 F.3d at 214.
was a result of a function “totally divorced from the
detection, investigation, or acquisition of evidence relating
At issue in this case is Plaintiff's rights under the Fourth
to the violation of a criminal statute,” the Court found it
Amendment, which protects “[t]he right of the people to
to be permissible. Id. at 441, 413 U.S. 433, 93 S.Ct. 2523,
be secure in their persons, houses, papers, and effects,
37 L.Ed.2d 706.
against unreasonable searches and seizures.” U.S. Const.
amend. IV. In particular, “physical entry of the home is
Since Cady, many courts have extended the community
the chief evil against which the wording of the Fourth
caretaking rationale in upholding warrantless searches of
Amendment is directed.” United States v. U.S. Dist. Ct.,
homes in addition to vehicles, although not all courts are
407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).
in agreement on the issue. See United States v. Quezada,
Thus, “[i]t is a basic principle of Fourth Amendment law
448 F.3d 1005, 1007 (8th Cir.2006) (“A police officer
that searches and seizures inside a home without a warrant
may enter a residence without a warrant as a community
are presumptively unreasonable.” Payton v. New York,
caretaker where the officer has a reasonable belief that
445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)
an emergency exists requiring his or her attention.”);
(internal quotations omitted).
United States v. Rohrig, 98 F.3d 1506, 1521–22 (6th
Cir.1996) (holding that an officer's warrantless entry into
*5 This presumption of unreasonableness, however,
a home was reasonable and motivated by a community
can be overcome. “[B]ecause the ultimate touchstone of
caretaking interest in quelling loud music that constituted
the Fourth Amendment is ‘reasonableness,’ the warrant
a nuisance); but see United States v. Bute, 43 F.3d 531,
requirement is subject to certain exceptions.” Brigham
535 (10th Cir.1994) (holding that community caretaking
City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943,
exception applies only to automobile searches); United
164 L.Ed.2d 650 (2006). Defendants argue that one of
States v. Pichany, 687 F.2d 204, 208–09 (7th Cir.1982)
these exceptions, the “community caretaking” doctrine, is
(same). The Court of Appeals for the Third Circuit has not
applicable here.
yet spoken on this issue in a published opinion.

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2009 WL 3074776
Some guidance in the instant case can be found in the enter a home ‘to make sure everything was okay.’ ” Burr,
Eight Circuit's decision in United States v. Quezada, 131 Fed. Appx. at 802. Recognizing that the Burr decision
448 F.3d 1005, 1007 (8th Cir.2006). In that case, a law is unpublished and not precedential, the Court nonetheless
enforcement officer serving papers in a civil matter at finds its reasoning persuasive.
a residence knocked on a door that turned out to be
unlatched. The door opened upon the officer's knock, As in Burr and permitted by Pearson, this Court need
and the officer observed the lights and television in side not resolve the issue of whether the facts establish that
the residence on. No one responded to the knock or a constitution violation occurred here, i.e., whether the
the announcements by the officer of his presence, and “community caretaking” doctrine created an exception to
he entered the residence to ascertain whether there was the warrant requirement in this case. Even if the Court
someone inside who may be in need of assistance. He were to decide that the officers' entry into the home
found the defendant inside and a shotgun in plain view. was unreasonable and violated Plaintiff's rights under
The Eight Circuit affirmed the trial court's determination the Constitution, the Defendant officers are nevertheless
that the officer's entry and search of the residence was entitled to qualified immunity. Moving directly to the
reasonable under the community caretaking doctrine second prong of the Saucier analysis, the Court finds that
and therefore did not constitute a Fourth Amendment under the circumstances of this case, Plaintiff's right to be
violation. Id. at 1008. free from a warrantless search was not clearly established.
*6 Athough not binding on this Court, Defendant “Qualified immunity shields an officer from suit when
officers rely upon the Third Circuit's unpublished decision she makes a decision that, even if constitutionally
in Burr v. Hasbrouck Heights, 131 Fed. Appx. 799 (3d deficient, reasonably misapprehends the law governing
Cir.2005) (not precedential). In that case, a police officer the circumstances she confronted.” Brosseau v. Haugen,
responding to a complaint that loud music was coming 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed.2d 583
from plaintiff's residence entered the residence without (2004). The “focus is on whether the officer had fair
a warrant when Burr failed to respond to his knocks notice that her conduct was unlawful, reasonableness is
on the door. After knocking for about a minute and judged against the backdrop of the law at the time of
receiving no response, the officer entered through the the conduct.” Id. The relevant inquiry considers not just
unlocked door and followed the sound of the music to a whether the officer's actions were reasonable in light of
second floor bedroom. There he found the plaintiff alone clearly established law but also the information possessed
and acting somewhat bizzare. Smelling alcohol, he and by the officer. See Anderson v. Creighton, 483 U.S. 635,
another officer had the plaintiff removed to a medical 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (We consider
facility. The plaintiff filed a complaint alleging, inter alia, whether “a reasonable officer could have believed [his
Fourth Amendment violations based on the warrantless conduct] was lawful, in light of clearly established law
entry. and the information the [officer] possessed.”). The Court
concludes that, under the circumstances, it would not have
The Third Circuit in Burr found the officers were entitled been apparent to an objectively reasonable officer that
to qualified immunity. The court, however, found the entering Plaintiff's home on June 17, 2005 was unlawful.
trial court's application of the “community caretaking”
doctrine as set out in United States v. Rohrig, supra, *7 The undisputed facts show that Ms. Ray was at
inappropriate because the nuisance at issue in Burr did Plaintiff's home with the intention of picking up her
not rise to the same level as that of the nuisance in five-year-old daughter. After she rang the doorbell, she
Rohrig. The court therefore assumed the warrantless observed a man she believed to Plaintiff inside the house,
entry was unreasonable and violated the plaintiff's but no one answered the door. She called the police and
Fourth Amendment rights. However, the court found advised them of these facts. The responding police officers
that, under the circumstances, Burr's right to be free similarly knocked on doors and windows in an attempt to
from a warrantless search of her home was not clearly get an answer from someone inside, to no avail. The police
established. In particular, the court noted that Burr did also received no response when a phone call was placed to
not cite to any law stating that “an officer, responding to the phone number at the home. There is no dispute that
a complaint and knowing of recent disturbances, cannot the officers were told by Ms. Ray that she saw Plaintiff

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2009 WL 3074776
inside and that on that date Plaintiff had physical custody the recovery of damages for pain
of the five-year-old girl. and suffering shall not apply in
cases of permanent loss of a bodily
Both parties in this case admit the Ray's divorce was function, permanent disfigurement
“contentious.” Indeed, a restraining order prohibited the or dismemberment where the
Plaintiff and Ms. Ray from, for example, speaking to one medical treatment expenses are in
another. Deposition of Lawrence Ray, (“L. Ray Dep.”) excess of $3,600.00.
Vol. 2, at 39, attached as Ex. 1 to Levinson Cert. Certain
of the police officers were familiar with the Ray's situation *8 Defendants assert that Plaintiff has not met the
as they had responded to other calls involving the couple. statutory threshold necessary to recover for his alleged
Given these facts, it is reasonable that the officers, upon psychological damages. Plaintiff has not responded at all
receiving no response to their knocks and phone call, and to Defendants arguments on this motion with regard to
having been advised by Ms. Ray that she has seen Plaintiff his state law claims.
in the house, had concern for the welfare of the young
child who could be inside. Under the Tort Claims Act, a plaintiff alleging a
psychological injury, such as intentional infliction of
As such, a reasonable officer could have believed entry emotional distress, must show that the injury is
was permitted under the community caretaking doctrine. both permanent and substantial. Willis v. Ashby, 353
See State v. Bogan, 200 N.J. 61, 75, 975 A.2d 377 N.J.Super. 104, 112–13, 801 A.2d 442 (App.Div.2002).
(N.J.2009) (“The community caretaking role of the police Plaintiff has not met this threshold. Additionally, the
also extends to protecting the welfare of children. Indeed, Tort Claims Act also precludes an award of punitive
that community caretaking responsibility is a reflection damages against a public entity. N.J.S.A. 59:9–2(c). As
of the State's general parens patriae duty to safeguard such, Plaintiff's state law claims are dismissed.
children from harm.”). However, given the uncertainty in
the applicable law at the time, the police officers sought
legal guidance from the municipal court judge before III. Conclusion
entering the residence. They received authorization from For the reasons above, Defendants Russell Leffert,
the judge to enter. Because under those circumstances Angelo Paolella, Joseph Cohen, and Donald Calabrese are
a reasonable officer could have concluded that entering entitled to qualified immunity. To the extent that they are
the house to look for the child was not a violation of sued in their individual capacities, the complaint against
the Fourth Amendment, the Court finds the Defendant them is dismissed. Additionally, Plaintiff's state law claims
officers are entitled to qualified immunity. To the extent are dismissed.
the Defendant officers are sued in their individual
capacity, their motion for summary judgment is granted. The remaining claims in this matter are against the
Township of Warren and the Police Department, and
Leffert, Paolella, Cohen, Calabrese, and Stahl in their
C. State Court Claims official capacities. The Court shall dismiss the claims
Plaintiff asserts state law claims for invasion of privacy, against Leffert, Paolella, Cohen, Calabrese, and Stahl in
intentional infliction of emotional distress and trespass. their official capacities because a lawsuit against public
He seeks damages for “emotional distress” and “mental officers in their official capacities is functionally a suit
suffering” as well as punitive damages See, e.g., Amended against the public entity that employs them. McMillian
Compl at ¶ 61. Defendants allege that these state law tort v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 138
claims are barred by the New Jersey Tort Claims Act. L.Ed.2d 1 (1997). Because Plaintiff is suing the Township
Pursuant to N.J. S.A. 59:9–2(d), of Warren, the suit against the officers in their official
capacities redundant. Id. Likewise, the claims against the
No damages shall be awarded
Warren Township Police Department shall be dismissed.
against a public entity or public
See Pahle v. Colebrookdale Township, 227 F.Supp.2d 361,
employee for pain and suffering
367 (E.D.Pa.2002) (“In § 1983 actions, police departments
resulting from any injury; provided,
cannot be sued in conjunction with municipalities, because
however, that this limitation on

Case
2009 WL 3074776
the police departments are merely administrative agencies motion on the remaining issues in the case, it must do so
within 30 days of the date of the accompanying Order.
of the municipalities-not separate judicial entities.”).
An appropriate Order accompanies this Opinion.

Because qualified immunity is not available to a
municipality and, therefore, the Township of Warren
was not the subject of the instant motion for qualified All Citations
immunity, Plaintiff's § 1983 claim against it remains. To
the extent that this Defendant will seek to file a dispositive Not Reported in F.Supp.2d, 2009 WL 3074776
Footnotes
1 Paolella was the commanding officer on the scene. Paolella Dep. at 98.
2 Larry Frank is not a party to this case.
3 Plaintiff alleges that a question of fact exists as to whether Ms. Ray was entitled to visitation that evening. Pl. Brf. at 3.
However, to the extent that this fact may be disputed, it is not material.
4 Officer Calabrese initially filed a report of the June 17th incident that included a reference to him having called Judge
Sasso prior to the police entering the house. See Report at Ex. 14. A few days later, Officer Calabrese was called into a
meeting with the Chief of Police and Lieutenant Leffert, in which Officer Calabrese was advised to remove the reference
in the report to Judge Sasso. Calabrese Dep. at 164, 168–169. A new report was omitting the reference to Judge Sasso
was filed. See Report at Ex. 15. Plaintiff alleges this was done to cover-up Sasso's involvement, but admits the improper
alteration of a police report in this case does not itself rise to a constitutional violation. Pl. Br. at 5. “[M]ere allegations
of a police cover-up, without allegations of “actual deprivation [of] or damage [to]” constitutional rights, fails to “state an
adequate claim for relief under section 1983.” Green v. New Jersey State Police, 2006 WL 2289528, *4 (D.N.J.2006)
(citing Landrigan v. City of Warwick, 628 F.2d 736, 742–43 (1st Cir.1980).

EXHIBIT F
CaseNetworks
TEMPO 2:18-cv-10037-CCC-MF Document
LLC v. Government of NIA, 7-2in Filed
Not Reported 08/21/18
F.Supp.3d (2015) Page 54 of 63 PageID: 112
2015 WL 4757911
production and entertainment company that specializes in

the production and dissemination of Caribbean cultural
2015 WL 4757911
media. Compl. ¶ 7, ECF No. 4. Defendant NIA is a
Only the Westlaw citation is currently available.
governmental body for the island of Nevis—one of two
United States District Court, D. New Jersey.
islands in the Federation of St. Kitts and Nevis. Id. ¶¶ 2–
TEMPO NETWORKS LLC, Plaintiff, 3. Defendant Minster Mark Brantley is the Deputy Prime
v. Minister for NIA, the Minister of Tourism, and the leader
GOVERNMENT OF NIA, et al., Defendants. of the opposition party in Nevis. Id. ¶ 3. Minister Brantley
also hosts a radio show on Defendant VON Radio, a
Civ. No. 2:14–6334 (WJM). broadcast radio station in Nevis which is accessible over
| the air and worldwide on the internet. Id.
Signed Aug. 12, 2015.
In 2008, NIA and TEMPO entered into a five-year
Attorneys and Law Firms contract to produce an annual event for NIA's Culturama
festival (the “Agreement”). Compl. ¶ 7. Specifically,
Eric S. Pennington, Newark, NJ, for Plaintiff.
TEMPO would provide marketing and promotion for
Bruce S. Rosen, Robert E. Bartkus, McCusker, Anselmi, Nevis and Culturama. Id. In return, NIA agreed to
Rosen & Carvelli, PC, Florham Park, NJ, for Defendants. pay TEMPO $75,000 annually to produce the event. Id.
TEMPO would also receive additional fees from gate
receipts from the event. Id. The Agreement contains a
choice of law provision, which states as follows:
OPINION
The validity, interpretation and
WILLIAM J. MARTINI, District Judge.
construction of this Agreement,
*1 Plaintiff TEMPO Networks LLC (“TEMPO”) filed and all other matters related to
this Agreement, shall be interpreted
this case against Defendants the Government of Nevis, 1
and governed by the laws of
Nevis Island Administration (“NIA”), and Ministry of
the State of New Jersey. Any
Culture, (collectively, the “NIA Defendants”), as well as
action or proceeding commenced
Minister Mark Brantley and VON Radio. Plaintiff asserts
by either party in connection with
breach of contract and defamation claims arising from a
this Agreement shall be commenced
five-year contract to produce events during NIA's annual
exclusively in the state or federal
“Culturama” festival.
courts situated in the County of
Essex, State of New Jersey.
This matter comes before the Court on (1) a motion to
dismiss by the NIA Defendants and Minister Brantley Agreement, Ex. A at ¶ 10, ECF No. 16–1. The Agreement
(together, the “Moving Defendants”) (ECF No. 12), also contained a confidentiality provision. Id., Ex. A at ¶
(2) Plaintiff's motion to amend (ECF No. 16), and (3) 15.
Plaintiff's motion for default judgment against VON
Radio (ECF No. 20). There was no oral argument. The parties each performed their obligations under the
Fed.R.Civ.P. 78(b). For the reasons explained below, Agreement in 2008. Compl. ¶¶ 9, 12. Following that first
NIA Defendants' motion to dismiss is GRANTED in year, Defendants did not make any payments or “fulfill
part and DENIED in part, Plaintiff's motion to amend is any of [their] obligations under the Agreement.” Id. ¶ 13.
GRANTED, and Plaintiff's motion for default judgment The FAC contains no allegations that Culturama took
is DENIED. place or that any event was held after the first year.
*2 On October 17, 2014, Minister Brantley was served

I. BACKGROUND
with a copy of the Complaint first filed in this action.
The following facts are alleged in the First Amended
Compl. ¶ 44. On October 21, 2014, Minister Brantley
Complaint (“FAC”). Plaintiff TEMPO is a media
allegedly posted defamatory statements about TEMPO

CaseNetworks
2015 WL 4757911
and its CEO on his personal Facebook page. Id. ¶ 50. He et seq. Moving Defendants contend that, under the
also announced and posted portions of the Agreement on FSIA, the Court lacks subject matter jurisdiction over
his Facebook page. Id. ¶ 51. And On October 22, 2014, the tort-based claims in Count Six against the NIA
Minister Brantley allegedly made defamatory statements Defendants. Plaintiff argues that the NIA Defendants
about TEMPO and its CEO on his weekly radio show, implicitly waived their right to immunity under the FSIA.
which was broadcast on VON Radio's network. Id. ¶¶
45, 50. Plaintiff subsequently filed the FAC, which seeks Under the FSIA, “a foreign state is presumptively immune
damages for the defamatory statements. from the jurisdiction of United States courts,” and “unless
a specified exception applies, a federal court lacks subject-
matter jurisdiction over a claim against a foreign state.”
II. DISCUSSION Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct.
Moving Defendants move to dismiss all claims against 1471, 123 L.Ed.2d 47 (1993). Section 1605(a)(1) of the
them. Plaintiff seeks leave to file a proposed second FSIA provides that a foreign state may waive its sovereign
amended complaint (the “SAC”). Plaintiff also requests immunity “either explicitly or by implication.” Here, there
default judgment against VON Radio. The Court will first are no express waivers of immunity. Rather, Plaintiff
consider the motion to dismiss and will then move to the argues that the NIA Defendants implicitly waived their
motion to amend and the motion for default judgment. immunity by entering into the Agreement, which contains
a choice of law clause.
A. MOTION TO DISMISS
*3 Federal courts construe the implied waiver provision
The FAC asserts claims for breach of contract (Counts
of Section 1605(a)(1) narrowly. Shapiro v. Republic of
One, Two, and Five), unjust enrichment (Count Three),
Bolivia, 930 F.2d 1013, 1017 (2d Cir.1991). The legislative
breach of the implied covenant of good faith and fair
history of FSIA gives three examples of circumstances
dealing (Count Four), and defamation and false light
in which courts have found implied waiver: (a) where
(Count Six). Plaintiff requests specific performance and
a foreign state has agreed to arbitration in another
attorney's fees for its breach of contract claim.
country, (b) where a foreign state has agreed that the
law of a particular country should govern a contract,
Moving Defendants move to dismiss the FAC for lack
and (c) where a foreign state has filed a responsive
of subject matter jurisdiction under Federal Rule of
pleading in an action without raising the defense of
Civil Procedure 12(b)(1), lack of personal jurisdiction
sovereign immunity. See Aquamar, S.A. v. Del Monte
under Federal Rule of Civil Procedure 12(b)(2), improper
Fresh Produce N.A., Inc., 179 F.3d 1279, 1291, n. 24 (11th
process and service of process under Federal Rules of Civil
Cir.1999) (citing H.R.Rep. No. 94–1487, at 18 (1976),
Procedure 12(b)(4) and (5), and failure to state a claim
reprinted in 1976 U.S.C.C.A.N. 6604, 6617); Shapiro,
under Federal Rule of Civil Procedure 12(b)(6).
930 F.2d at 1017. Courts “have been reluctant to find
an implied waiver where the circumstances [are] not
i. Subject Matter Jurisdiction similarly unambiguous” or “unmistakable.” Shapiro, 930
Count Six asserts claims for defamation and false light F.2d at 1017. Accordingly, “strong evidence” that the
against all Defendants. Moving Defendants argue that the foreign state intended to waive its immunity is generally
Court lacks subject matter jurisdiction over the claims required. Rodriguez v. Transnave Inc., 8 F.3d 284, 287 (5th
against the NIA Defendants and Mark Brantley in Count Cir.1993).
Six. Moving Defendants further argue that the FAC fails
to allege subject matter jurisdiction over all claims against The Agreement states that “[t]he validity, interpretation
Minister Brantley in his individual capacity and VON and construction of this Agreement, and all other matters
Radio. The Court agrees. related to this Agreement, shall be interpreted and
governed by the laws of the State of New Jersey.”
Agreement, Ex. A at ¶ 10. Plaintiff argues that by agreeing
1. The NIA Defendants to this choice of law clause, the NIA Defendants waived
The NIA Defendants are subject to the Foreign Sovereign their sovereign immunity for the defamation claim. The
Immunities Act (“FSIA”), 28 U.S.C. §§ 1330 & 1602, Court disagrees. Minister Brantley's allegedly defamatory

CaseNetworks
2015 WL 4757911
statements, which were made during a private radio show jurisdictional allegations in the FAC do not demonstrate
years after the alleged breach of the Agreement, are complete diversity. The Court agrees. Plaintiff is a limited
not sufficiently “related to the Agreement” so as to be liability company, and the FAC fails to identify and set
unambiguously and unmistakably covered by the choice forth the citizenship of each of its members. See Zambelli
of law clause. Because the language in the choice of law Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d
clause is not clearly applicable to the claims in Count Cir.2010) (” [T]he citizenship of an LLC is determined
Six, it does not constitute strong evidence that the NIA by the citizenship of its members.); S. Freedman & Co. v.
Defendants intended to waive their sovereign immunity as Raab, 180 F. App'x 316, 320 (3d Cir.2006) (citations and
to those claims. The Court thus lacks jurisdiction over the quotations omitted) (stating that “the basis upon which
claims against the NIA Defendants in Count Six. jurisdiction depends must be alleged affirmatively and
distinctly....”). Further, there are no allegations regarding
the citizenship of Defendant VON Radio. The Court will
2. Minister Brantley in his official capacity thus dismiss the claims against Minister Brantley in his
Minister Brantley is sued in both his individual and official individual capacity and VON Radio for lack of subject
capacities. The Court will first consider the claims against matter jurisdiction.
him in his official capacity.
Because the Court finds that it lacks subject matter
The FSIA does not apply to suits against foreign officials jurisdiction over Count Six, it will not reach Defendants'
unless the “state is the real party in interest.” See argument that Defendants have insufficient contacts with
Samantar v. Yousuf, 560 U.S. 305, 325, 130 S.Ct. 2278, New Jersey to establish personal jurisdiction for Count Six
176 L.Ed.2d 1047 (2010). Here, the state is the real party or that Count Six fails to state a claim under Federal Rule
in interest as to the claims in Count Six against Minister of Civil Procedure 12(b)(6).
Brantley in his official capacity. See Smith Rocke Ltd.
v. Republica Bolivariana de Venezuela, No. 127316, 2014
WL 288705, at *11 (S.D.N.Y. Jan.27, 2014) (dismissing, ii. Insufficient Process and Service of Process
under the FSIA, claims against employees of a Venezuelan Moving Defendants move to dismiss the FAC as
governmental regulatory body, who were sued in their against the NIA Defendants for insufficient process and
official capacities). The Complaint itself supports this insufficient service of process. Defendants argue that the
conclusion. In Count Six, the FAC asserts claims based on NIA Defendants were not properly served under the
“[t]he actions of Brantley, on behalf of the NIA ...” and FSIA. The Court declines to dismiss the FAC on this
alleges that “[t]he continuing actions of Mark Brantley basis.
have increased the potential liability of the [NIA].”
Compl. ¶¶ 56, 58; see Mohammadi v. Islamic Republic of Federal Rule of Civil Procedure 4(j)(1) states that
Iran, 947 F.Supp.2d 48, 72 (D.D.C.2013), reconsideration “[s]ervice of process upon a foreign state or a political
denied (July 12, 2013), aff'd, 782 F.3d 9 (D.C.Cir.2015) subdivision, agency, or instrumentality thereof shall be
(dismissing claims against Iranian government officials effected pursuant to 28 U.S.C. § 1608 [the FSIA].” Section
where it was apparent, based on the complaint and other 1608(a) of the FSIA provides that service of process on a
filings, that plaintiffs' theory of the case was that the foreign state or political subdivision of a foreign state may
actions taken by the officials were the actions of the be effected several ways, including:
Iranian regime). Thus, as with the claims in Count Six
against the NIA Defendants, the Court lacks subject (1) by delivery of a copy of the summons and complaint
matter jurisdiction over the claims in Count Six against in accordance with any special arrangement for service
Minister Brantley in his official capacity. between the plaintiff and the foreign state or political
subdivision; or
3. Minister Brantley in his individual capacity and VON (2) if no special arrangement exists, by delivery of a
Radio copy of the summons and complaint in accordance with
*4 Moving Defendants argue that the Court lacks an applicable international convention on service of
subject matter jurisdiction over all claims against Minister judicial documents; or
Brantley, individually, and VON Radio, because the

CaseNetworks
2015 WL 4757911
Plaintiff to effect proper service on the NIA Defendants

(3) if service cannot be made under paragraphs (1) or within 30 days.
(2), by sending a copy of the summons and complaint
and a notice of suit, together with a translation of each
into the official language of the foreign state, by any iii. Failure to State a Claim
form of mail requiring a signed receipt, to be addressed Moving Defendants argue that because the FAC fails to
and dispatched by the clerk of the court to the head allege any contract claims against Minister Brantley, the
of the ministry of foreign affairs of the foreign state Court should dismiss all remaining claims against him.
concerned, or Moving Defendants also argue that Counts Three, Four,
and Five fail to state a claim. The Court will dismiss the
(4) if service cannot be made within 30 days under remaining claims against Minister Brantley, as well as
paragraph (3), by sending two copies of the summons Counts Three and Four. The Court will deny the motion
and complaint and a notice of suit, together with a to dismiss Count Five.
translation of each into the official language of the
foreign state, by any form of mail requiring a signed
receipt, to be addressed and dispatched by the clerk 1. Claims against Minister Brantley
of the court to the Secretary of State in Washington, Counts One through Five assert breach of contract, unjust
District of Columbia, to the attention of the Director of enrichment, and breach of the implied covenant of good
Special Consular Services ..... faith and fair dealing against Minister Brantley. It is
unclear whether Plaintiff seeks recovery from Minister
*5 28 U.S.C. § 1608(a). Brantley in his official capacity or individual capacity
on these claims. However, because the Court has found
Plaintiff argues that it served the NIA Defendants that the FAC fails to adequately allege subject matter
pursuant to the Hague Convention of 15 November jurisdiction as to Minister Brantley in his individual
1965 on the Service Abroad of Judicial and Extrajudicial capacity, this discussion will focus on the claims in Count
Documents in Civil or Commercial Matters (the “Hague One through Five against him in his official capacity.
Convention”). But because Nevis and St. Kitts are not
listed as current members or signatories of the Hague The Court finds that the FAC fails to allege any breach
2
Convention, the Hague Convention does not apply. of contract or related claim against Minister Brantley.
Additionally, no special arrangement exists in this case, Minister Brantley is not alleged to have signed the
and Plaintiff admits that it has not served the NIA Agreement or to have been a party to the Agreement.
Defendants under Section 1608(a)(3) or (4). Pl.'s Opp'n Br. Further, the claims against Minister Brantley in his
19, ECF No. 15. Thus, the record indicates that Plaintiffs official capacity are redundant, given that Plaintiff has
have not yet properly served the NIA Defendants. also filed suit against the NIA Defendants. Cf. Cuvo v.
De Biasi, 169 F. App'x 688, 693 (3d Cir.2006) (citing
However, in the interests of justice, this Court finds McMillian v. Monroe Cnty., 520 U.S. 781, 785, 117 S.Ct.
it unnecessary to dismiss the claims against the NIA 1734, 138 L.Ed.2d 1 (1997) (affirming a district court's
Defendants for insufficient process or insufficient service dismissal of claims against public officials in their official
of process at this time. Cf. Vorhees v. Fischer & Krecke, capacities where plaintiff had also filed claims against
697 F.2d 574 (4th Cir.1983) (holding that the district the township, rendering the plaintiff's suit against the
court should not have dismissed the action for invalid officers redundant). Accordingly the claims in Counts
service of process under the Hague Convention until One through Five against Minister Brantley in his official
the plaintiffs were given a reasonable opportunity to capacity are dismissed with prejudice.
attempt to effect valid service of process on the defendant).
The NIA Defendants received actual notice of the suit,
and there is no showing of prejudice to Defendants. 2. Count Three—Unjust Enrichment
See Lippus v. Dahlgren Mfg. Co., 644 F.Supp. 1473, *6 In Count Three, Plaintiff asserts a claim for unjust
1479 (E.D.N.Y.1986). Further, the service defects appear enrichment. To establish unjust enrichment under New
readily curable. Id. The Court will thus deny the motion Jersey law, “a plaintiff must show both that defendant
to dismiss under Rules 12(b)(4) and (5), but will require received a benefit and that retention of that benefit

CaseNetworks
2015 WL 4757911
without payment would be unjust.” VRG Corp. v. GKN

Realty Corp., 135 N.J. 539, 641 A.2d 519, 526 (1994). “The iv. Jury Demand
unjust enrichment doctrine requires that plaintiff show Finally, Moving Defendants ask the Court to strike the
that it expected remuneration from the defendant at the jury demand. A jury trial is unavailable against a foreign
time it performed or conferred a benefit on defendant state, even where a foreign state is subject to suit under the
and that the failure of remuneration enriched defendant FSIA. See 28 U.S.C. § 1603; Bailey v. Grand Trunk Lines
beyond its contractual rights.” Id. at 554, 641 A.2d 519. New England, 805 F.2d 1097, 1100 (2d Cir.1986). Because
the Court has dismissed all claims besides those against
Here, the FAC fails to state a claim for unjust enrichment. the NIA Defendants in Counts One, Two, and Five, the
According to the Complaint, Plaintiff received payment Court will strike the jury demand from the FAC.
for preforming its obligations under the Agreement during
the first year. Compl. ¶¶ 9, 12. And the allegations contain
B. MOTION TO AMEND
no showing that Plaintiff conferred any benefit upon
*7 The Court next turns to Plaintiffs' motion to
Defendants following that first year. The Court will thus
amend. Plaintiff's motion includes a proposed Second
dismiss Count Three without prejudice.
Amended Complaint (the “SAC”). The Court finds
that the proposed SAC does not cure the deficiencies
3. Count Four–Implied Covenant of Good Faith and described above. For instance, the SAC still fails to
Fair Dealing identify and set forth the citizenship of Plaintiff's
In Count Four, Plaintiff seeks recovery for breach of the members. Additionally, Plaintiff attempts to cure the
implied covenant of good faith and fair dealing. Under defects in Count Three by adding allegations that the
New Jersey law, all contracts include an implied covenant NIA Defendants “benefited from the enhanced exposure
that parties will act in good faith. Urbino v. Ambit Energy generated from the event” and that, by producing the
Holdings, LLC, No. 14–5184, 2015 WL 4510201, at *6 first event, Plaintiff increased “the cultural and economic
(D.N.J. July 24, 2015) (citing Sons of Thunder, Inc. v. development of [Nevis].” Compl. ¶¶ 40, 41. Plaintiff
Borden, Inc., 148 N.J. 396, 690 A.2d 575, 587 (N.J.1997). also alleges that the parties had a “partnership” that
It follows that a claim for breach of that covenant requires contemplated the first year as “foundational” from which
malice or bad faith. See id.; Wilson v. Ameriada Hess “more lucrative profits” would flow in later years.
Corp., 168 N.J. 236, 773 A.2d 1121, 1126–27 (N.J.2001). Compl. ¶ 12. However, Plaintiff's allegations remain too
speculative to state a claim in Count Three. The SAC still
Count Four fails because the FAC fails to allege facts fails to sufficiently allege that Plaintiff conferred a tangible
supporting the theory that Defendants have exercised benefit upon the NIA Defendants without receiving
their contractual rights in bad faith. The Court will thus payment. Additionally, while the SAC adds “Quantum
dismiss Count Four without prejudice. Meruit” to the title for Count Three, it provides no
explanation as to why Plaintiff believes it has such a claim.
4. Count Five—Request for Attorney's Fees The SAC also fails to cure the deficiencies in Count Four.
In Count Five, Plaintiff seeks attorney's fees in connection Plaintiff adds an allegation that the allegedly defamatory
with his breach of contract claim. Moving Defendants comments by Minister Brantley destroyed Plaintiff's
argue that the Court should dismiss Count Five, because ability to benefit from the good will and development
there is no cause of action for contractual attorney's of its name recognition in Nevis. Compl. ¶ 45. But
fees. The Court agrees that the request for attorney's defamatory comments made years after the Agreement
fees is technically a contractual remedy, not a cause of was allegedly breached are not sufficiently connected to
action. However, Plaintiff adequately alleges that it has the parties' obligations under the Agreement to violate the
a contractual right to its attorney's fees upon a breach implied covenant of good faith and fair dealing. The SAC
of the Agreement. The Court sees no value in dismissing still lacks any indication that Defendants exercised their
Count Five just so Plaintiff can move those allegations to a contractual rights in bad faith.
different section of its complaint. Accordingly, the Court
will deny the motion to dismiss Count Five. Because the SAC fails to cure the deficiencies described
above, the Court will not allow Plaintiff to file the

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2015 WL 4757911
proposed SAC. However, given the Third Circuit's WITHOUT PREJUDICE for failure to allege
subject matter jurisdiction.
demonstrated liberality toward amendments under
Federal Rule of Civil Procedure 15(a), the Court will *8 • All claims against Minister Brantley in his official
grant Plaintiff thirty days to file an amended complaint capacity are DISMISSED WITH PREJUDICE.
consistent with this Opinion. Counts One, Two, Three, Four, and Five are
dismissed for failure to state a claim. Count Six is
dismissed for lack of subject matter jurisdiction.
C. Motion for Default Judgment
Plaintiff moves for default judgment against VON Radio. • The claims against the NIA Defendants in Count Six
Because the Court has dismissed all claims against VON are DISMISSED WITH PREJUDICE for lack of
Radio, the motion for default judgment is DENIED as subject matter jurisdiction.
moot.
• The request to strike the jury demand from the FAC
is GRANTED.
III. CONCLUSION
For the reasons stated above, Defendants' motion to Additionally, Plaintiff's motion to amend is GRANTED.
dismiss is GRANTED in part and DENIED in part, as Plaintiff shall have thirty days to file an amended
follows: complaint consistent with this Opinion. Finally, Plaintiff's
motion for default judgment against VON Radio is
• Moving Defendants motion to dismiss this action in
DENIED as moot. An appropriate order follows.
its entirety for insufficient process and insufficient
service of process is DENIED. If Plaintiff fails to
effect proper service within thirty days from the date All Citations
of this Opinion, Moving Defendants may file another
request for dismissal on these grounds. Not Reported in F.Supp.3d, 2015 WL 4757911
• All claims against Minister Brantley in his individual

capacity and VON Radio are DISMISSED
Footnotes
1 Incorrectly pleaded as “Government of NIA.”
2 See Hague Conference on Private International Law, http:// www.hcch.net/index_en.php?act=conventions.status &
cid=17 (the list of contracting states to the Hague Convention on Service Abroad does not include St. Kitts or Nevis as
signatories) (last visited Aug. 6, 2015).

EXHIBIT G
Case
Y.G. 2:18-cv-10037-CCC-MF
v. Board of Educ. for Tp. of Teaneck, Document
Not Reported7-2 Filed
in A.3d (2011)08/21/18 Page 61 of 63 PageID: 119
2011 WL 1466277
appeals from the orders granting summary judgment in

favor of defendants Board of Education for the Township
2011 WL 1466277
of Teaneck (Board), Lennox Small, and Charles Clark.
Only the Westlaw citation is currently available.
Because we are not persuaded the CSAA includes public
UNPUBLISHED OPINION. CHECK day schools within its ambit, we affirm.
COURT RULES BEFORE CITING.
The underlying facts of this appeal are largely undisputed.
Superior Court of New Jersey, In 2000, Y.G. was a student at a middle school under
Appellate Division. the control of the Board. Under the guise of tutoring and
detention, defendant James Darden, an English teacher,
Y.G. using fictitious initials for a
engaged in an improper sexual relationship with Y.G.
minor girl, Plaintiff–Appellant, She was thirteen years old at the commencement of
v. the relationship. Y.G. alleged approximately 300 acts
BOARD OF EDUCATION FOR THE TOWNSHIP of sexual intercourse, along with other acts of a sexual
OF TEANECK, James Darden, Lennox Small nature, until the end of her sophomore year in high
and Charles Clark, Defendants–Respondents. school. Y.G. contends Small, another teacher at the
school, walked in on them after one such sexual encounter,
Submitted March 23, 2011. saw evidence of the encounter on Darden's clothing, and
| warned Darden “to be careful.” Plaintiff alleges Clark, the
Decided April 19, 2011. Dean of Discipline at the school, Small, and the Board
allowed this abuse to occur and continue.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L–2124–08.
Several years after the relationship ended, Y.G.
Attorneys and Law Firms encountered Darden who, upon noticing plaintiff's two-
year-old daughter, commented that she “did good.” As
D. Gayle Loftis, attorney for appellant. a result of this encounter, plaintiff began to worry
incessantly about the safety of her child. She also
Schenck, Price, Smith & King, LLP, attorneys for experienced headaches and other physical symptoms that
respondent Board of Education for the Township of she came to realize stemmed from the inappropriate
Teaneck (Roy J. Evans, of counsel; James Eric Andrews, relationship she had with Darden while she was only a
on the brief). teenager. Y.G. contacted the Bergen County Prosecutor's
Office and Darden eventually pled guilty to official
Krovatin Klingeman LLC, attorneys for respondent
misconduct and aggravated sexual assault. Darden is
Lennox Small (Helen A. Nau, on the brief).
currently incarcerated. Plaintiff is in therapy and on
Hack, Piro, O'Day, Merklinger, Wallace & McKenna, medication.
attorneys for respondent Charles Clark (Robert G.
Alencewicz and Jonathan Testa, on the brief). Plaintiff filed a one-count complaint on July 11, 2008,
alleging defendants are liable under the CSAA for active
Before Judges CUFF, SAPP–PETERSON and and passive sexual abuse. Judge Hansbury entered a
FASCIALE. default judgment against Darden, but granted summary
judgment to the Board, Small, and Clark because he
Opinion concluded they did not fit the CSAA's definition of
“within the household.”
PER CURIAM.
*1 Plaintiff Y.G., filed a complaint seeking damages On appeal, we are called upon to determine whether the
pursuant to the Child Sexual Abuse Act (CSAA), CSAA applies to sexual abuse that takes place at a public
N.J.S.A. 2A:61B–1, against a former middle school day school. We review de novo the interpretation of a
teacher who sexually abused her, another teacher, a school statute on a motion for summary judgment. Manalapan
administrator, and the local board of education. She Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

Case
Y.G. 2:18-cv-10037-CCC-MF
2011 WL 1466277
378 (1995); Wells Reit II–80 Park Plaza, LLC v. Dir., Div. housing with the amenities characteristic of both a
of Taxation, 414 N.J.Super. 453, 462 (App.Div.2010). school and a home.
The CSAA defines sexual abuse as [Id. at 94.]
an act of sexual contact or sexual penetration between The Court thus concluded “the School is a ‘person’
a child under the age of 18 years and an adult. standing ‘in loco parentis ’ within a ‘household.’ “ Ibid.
A parent, resource family parent, guardian or other
person standing in loco parentis within the household In D.M. v. River Dell Regional High School, 373
who knowingly permits or acquiesces in sexual abuse by N.J.Super. 639, 649 (App.Div.2004), certif. denied, 188
any other person also commits sexual abuse.... N.J. 356 (2006), we affirmed the grant of summary
judgment to a public high school because it was not
*2 [N.J.S.A. 2A:61B–1a(1).] subject to the CSAA. We held the school “did not stand
in a relationship to plaintiffs of ‘in loco parentis within
Thus, the statute imposes liability on both “active” and the household’ [because of] a peculiar requirement of
“passive” sexual abusers. Hardwicke v. Am. Boychoir Sch., the statute that can be traced back to the case causing
188 N.J. 69, 86 (2006). its enactment, Jones v. Jones [, 242 N.J.Super. 195
(App.Div.), certif. denied, 122 N.J. 418 (1990) ].” Ibid .
In Hardwicke, the Supreme Court held that a private
boarding school could be liable as a passive abuser under In Jones, the plaintiff alleged her father, “with the
the CSAA. Id. at 94. There, the plaintiff alleged the connivance of her mother,” sexually abused her for several
Musical Director of the school abused him over the course years. Jones, supra, 242 N.J.Super. at 197. We reversed
of two years, and the school itself knew or should have the trial court's order granting the defendants summary
known of the abuse. Id. at 74. The Court noted that in judgment, and held that this pattern of incestuous sexual
order to hold a passive sexual abuser liable under the abuse could serve to toll the statute of limitations on
statute, a plaintiff must demonstrate the defendant is: both insanity and duress grounds. Id. at 205, 209. The
“(1) a person (2) standing in loco parentis (3) within the Legislature subsequently enacted the CSAA to “codif[y]
household.” Id. at 86. The Court first found the boarding and amplif [y] the holding in Jones by tailoring the
school was a “person” under the statute. Id. at 91. It next context within which tolling is permitted to the special
determined the school satisfied the role of “in loco parentis circumstances of the sexual abuse victim.” Hardwicke,
” because it supra, 188 N.J. at 86.
regulated the students' personal hygiene, monitored

*3 Plaintiff contends the motion judge erred when he
the cleanliness of their rooms, dictated the amount of
held that a public day school and its teachers cannot
money each student could have on campus, required
be subject to liability for passive abuse under the CSAA
students to write two weekly letters to friends or family,
because they are not within the “household.” Plaintiff
expected students to attend religious services when on
urges us not to adopt a “mechanistic” formulation of
campus during the weekend, provided transportation
the word, and argues there need not be a “residential”
for recreational activities off school grounds, and
component of the term for the CSAA to apply.
disciplined students who violated those policies.
[Id. at 91–92.] We are not persuaded. We are satisfied that the

term “within the household” includes some aspect of
Finally, the Court considered whether the boarding school “residential” custody not present in this case. The Court
was a “household” under the statute. Id. at 93. The Court in Hardwicke was clearly concerned not only with the role
stated: of the school as a parental substitute, but also with its
role as the provider of amenities normally associated with
[T]he School provides food, shelter, educational a home environment for its students who lived there full
instruction, recreational activities and emotional time. Id. at 94; see also J.H. v. Mercer Cnty. Youth Det.
support to its full-time boarders—in other words, Ctr., 396 N.J.Super. 1, 14–15 (App.Div.2007) (finding a

Case
Y.G. 2:18-cv-10037-CCC-MF
2011 WL 1466277
youth detention center a household for the purposes of the the very least remanded the case for further proceedings
consistent with that decision. Compare River Dell, supra,
CSAA).
188 N.J. at 356 (certification denied) with Starzynski
v. Seton Hall Univ., 188 N.J. 344 (2006) (summarily
We reject plaintiff's invitation to consider the Hardwicke
remanded to the trial court for further proceedings in light
Court's reliance on Frugis v. Bracigliano, 177 N.J. 250, 268
of Hardwicke ).
(2003), as evidence that a public day school falls within
the CSAA's definition of a “household.” Frugis was a
At its core, plaintiff's argument is a policy argument:
common law negligent supervision case, id. at 257, and the
that the CSAA should apply to boards of education
Hardwicke Court relied on it to support the proposition
and teachers who may have knowledge of sexual
that educators play a unique role in the care of their
abuse committed against our State's many public school
students, Hardwicke, supra, 188 N.J. at 92. The Court's
children. See, e.g., N.J.S.A. 9:6–8.10 (“Any person having
discussion of Frugis was limited to its analysis of the in loco
reasonable cause to believe that a child has been subjected
parentis prong of the CSAA. Ibid.; accord J.H., supra, 396
to child abuse or acts of child abuse shall report the same
N.J.Super. at 12–13. It does not demand the conclusion
immediately to the Division of Youth and Family Services
that a public day school can be considered a household for
by telephone or otherwise.”). However, we decline to
purposes of the CSAA.
ascribe such an interpretation to the statute in the face
of the limiting language it contains. Plaintiff's policy
We concur with the motion judge that the Board was in
argument is best suited for the Legislature.
loco parentis within the meaning of the CSAA. However,
more is required to impose passive abuser liability under
*4 We, therefore, affirm the orders granting summary
the CSAA. As such, we hold that a public day school is
judgment to defendants Small, Clark, and the Board and
not a household for purposes of the CSAA.
dismissing the complaint.
Furthermore, although a denial of certification is not of
Affirmed.
precedential value, we cannot ignore the fact that the
Court denied certification in River Dell only six weeks
after it filed Hardwicke. If there were any question that All Citations
the decision in Hardwicke would have changed the result
in River Dell, we have no doubt the Court would have at Not Reported in A.3d, 2011 WL 1466277


Court Plaza South
(201) 488-8200


Plaintiff,
v. [PROPOSED] ORDER

SCHOOL DISTRICT,
Defendants.
THIS MATTER having been opened to the Court by Defendants
Piscataway Township Board of Education (improperly pleaded as
“Piscataway Township School District”) and Teresa Rafferty, as
Superintendent (collectively “Defendants”), by and through their
attorneys, Pashman Stein Walder Hayden, P.C., seeking an order
dismissing portions of Plaintiff’s Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), and the Court having
considered the parties’ submissions, in support of and in
opposition to Defendants’ motion, as well as the arguments of
counsel, if any; and for good cause having been shown:
IT IS on this ____ day of __________, 2018,
ORDERED that Defendants’ Motion to Dismiss portions of
Plaintiff’s Complaint is hereby GRANTED; and it is further
ORDERED that all counts of Plaintiff’s Complaint are
dismissed with prejudice in their entirety as to defendant
Teresa Rafferty; and it is further
ORDERED that the Fourth Count of Plaintiff’s Complaint is
dismissed with prejudice in its entirety as to defendant
Piscataway Township Board of Education; and it is further
ORDERED that all references to 42 U.S.C. §§ 1983 and 1988
are stricken from Plaintiff’s Complaint.
__________________________________
HON. CLAIRE C. CECCHI, U.S.D.J.

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Case 2:18-cv-10037-CCC-MF Document 7 Filed 08/21/18 Page 1 of 3 PageID: 43

Maxiel L. Gomez, Esq.

UNITED STATES DISTRICT COURT

S.P. on behalf of her minor

PLEASE TAKE NOTICE that on September 17, 2018, or on a date

and time to be set by the Court, Defendants Piscataway Township

Board of Education (improperly pleaded as “Piscataway Township

School District”) and Teresa Rafferty, as Superintendent,

(collectively “Defendants”), by and through their attorneys,

States District Court for the District of New Jersey, at the

Martin Luther King Building & U.S. Courthouse, 50 Walnut Street,

Newark, New Jersey 07102, for an order pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure dismissing portions of

PLEASE TAKE FURTHER NOTICE that in support of their Motion,

Defendants will rely upon the accompanying Memorandum of Law,

Certification of Counsel, and all other pleadings on file in

PLEASE TAKE FURTHER NOTICE that oral argument is requested.

PLEASE TAKE FURTHER NOTICE that a proposed form of Order is

PLEASE TAKE FURTHER NOTICE that a Certification attesting

to the date and manner of service is also submitted herewith.

PASHMAN STEIN WALDER HAYDEN

By: _/s/ Maxiel Gomez

Dated: August 21, 2018

I hereby certify that on August 21, 2018, I served the

foregoing Notice of Motion to Dismiss, along with all supporting

documents, upon all parties to the action by causing it to be

filed on the Court’s ECF system.

Executed on August 21, 2018 at Hackensack, New Jersey.

By: /s/Maxiel Gomez

UNITED STATES DISTRICT COURT

S.P. on behalf of her minor daughter,

PISCATAWAY TOWNSHIP SCHOOL

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS

PASHMAN STEIN WALDER HAYDEN, P.C.

Maxiel L. Gomez, Esq.

PRELIMINARY STATEMENT .....................................................................................................1

PROCEDURAL HISTORY AND STATEMENT OF FACTS.......................................................2

STANDARD OF REVIEW .............................................................................................................4

I. ALL CLAIMS AGAINST RAFFERTY AS SUPERINTENDENT

B.F. v. Township of Hazlet,

Bell Atl. Corp. v. Twombly,

Davis v. Devereux Found.,

Delaware Riverkeeper Network v. Delaware River Basin Comm'n,

Fitzgerald v. Barnstable Sch. Comm.,

Hardwicke v. Am. Boychoir Sch.,

McMillian v. Monroe Cty., Ala.,

Phillips v. County of Allegheny,

Ray v. Twp. of Warren,

TEMPO Networks LLC v. Gov't of NIA,

Y.G. v. Bd. of Educ. for Twp. of Teaneck,

20 U.S.C. § 1681 ......................................................................................................................... 1, 6

42 U.S.C. § 1988 ............................................................................................................................. 8

42 U.S.C. §§ 1983 and 1988 ....................................................................................................... 1, 8

Fed. R. Civ. P. 12(b)(6)............................................................................................................... 1, 4

Defendants Piscataway Township Board of Education (improperly pleaded as

to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

allegations that Defendants violated either statute.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

Docket No. 2:18-cv-10037-CCC-MF, a copy of which is attached to the Declaration of Maxiel L.

Service of Summons, an executed copy of which is attached to the Declaration of Maxiel L.

Gomez, Esq. as Exhibit B.

Cromartie (“Cromartie”), was informed of the incident. Compl. ¶ 44.

received a shorter suspension than K.H. Compl. ¶ 56.