                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               _____________

                                No. 10-2013
                               _____________

                          CHRISTINE GILLESPIE,

                                           Appellant

                                      v.

    MR. CLIFFORD JANEY, Individually and in his capacity as State District
 Superintendent, N.P.S.; MR. RON HALE, Individually and in his capacity as Risk
 Manager, N.P.S.; MR. PERRY LATTEBOUDERE, Esq., Individually, and in his
capacity as counsel, N.P.S.; MS. CHERRIE ADAMS, Esq., Individually, and in her
                             capacity as counsel, N.P.S.
                                  _____________

                On Appeal from the United States District Court
                          for the District of New Jersey
                        (D.C. Civil No. 2-09-cv-00885)
                 District Judge: Honorable Susan D. Wigenton
                                  ____________

                   Submitted Under Third Circuit LAR 34.1
                               June 24, 2011

    Before: HARDIMAN, VANASKIE, AND GREENBERG, Circuit Judges

                       (Opinion Filed: August 16, 2011)
                               _____________

                         OPINION OF THE COURT
                             _____________
VANASKIE, Circuit Judge.

       Christine Gillespie appeals the District Court‟s dismissal of her original complaint

and denial of her request to file an amended complaint. Discerning no error in the

District Court‟s decision, we will affirm.1

                                              I.

       In 1987, the New Jersey legislature enacted a law authorizing the creation of State

operated school districts. See Gillespie v. Dep’t of Educ., 938 A.2d 184, 187 (N.J. Super.

Ct. App. Div. 2008), cert. denied, 949 A.2d 849 (N.J. 2008). The State Board of

Education (the “Board”) is authorized to issue an administrative order placing a school

district under partial or full State intervention. N.J. Stat. Ann §§ 18A:7A-14, 7A-15.

       On July 12, 1995, the Board placed the School District of the City of Newark (the

“District”) on full State intervention, taking over the “Newark public school system

pursuant to N.J.S.A. 18A:7A-34 to -52, . . . remov[ing] the Newark Board of Education . .

. , [thus] creat[ing] the State Operated School District of the City of Newark.”

Caponegro v. State Operated Sch. Dist. of the City of Newark, 748 A.2d 1208, 1209 (N.J.

Super. Ct. App. Div. 2000). The Board appointed a State School District Superintendent,

who assumed the responsibilities of the Board. See N.J. Stat. Ann. § 18A:7A-35.

       By letter dated December 30, 2002, Perry M. Latiboudere2 of the District‟s Office

of General Counsel issued a Notice of Proposed Action to Gillespie informing her that

       1
         As we write only for the parties, who are familiar with the facts and procedural
history of the case, we state the background of this case only to the extent that it is
necessary to our analysis. We will cite to the Appendix as “A.” and the Supplemental
Appendix as “S.A.”

                                              2
tenure charges had been filed against her pursuant to the New Jersey Employees‟ Tenure

Act (the “Tenure Act”), N.J. Stat. Ann. § 18A:6-11. The charges asserted that Gillespie

was absent without leave, abandoned her position, and/or was incapacitated. In January

2003, Gillespie submitted a 160-page response to the charges. A Certificate of

Determination, dated February 19, 2003 and bearing the signature of State District

Superintendent Marion Bolden (“Superintendent Bolden”), found that the charges were

supported by probable cause. On February 20, 2003, the District issued a Personnel

Action Notice informing Gillespie of the probable cause determination and that

Superintendent Bolden was certifying the charges to the Commissioner of Education.3

The Commissioner‟s office received the charges on February 27, 2003.

       At Gillespie‟s request, adjudication of the tenure charges was deferred pending

resolution of her workers‟ compensation claim.4 By letter dated February 12, 2009, the

Administrative Law Judge (“ALJ”) assigned to Gillespie‟s tenure charge proceeding was

informed that the workers‟ compensation claim had been dismissed. On February 26,

2009, Gillespie, proceeding pro se, initiated this action, asserting as her entire “Cause of

Action” the following:


       2
           Gillespie incorrectly spelled Latiboudere‟s name, which is reflected in our case
caption.
       3
        The record contains two Certificates of Determination, one dated February 19,
2003, the other February 25, 2003. Both were signed by Bolden. Gillespie asserts that
there was some impropriety in the issuance of the Certificates of Determination. This
contention is more properly presented in the pending tenure charge proceedings.
       4
        Plaintiff claims to have sustained a work related injury in 1998, for which she
pursued a workers‟ compensation claim. The workers‟ compensation claim was
dismissed on December 5, 2008. (S.A. 18-19.)

                                               3
                     The defendants [sic] breach of contract between
              Newark Public Schools and the Newark Teachers Union, as
              well as their violations of Plaintiff‟s substantive and
              procedural due process rights under the 14th Amendment;
              violations of Plaintiff‟s 1st Amendment rights; violations of
              her rights under the A.D.A. and A.D.E.A.; the denial of
              Plaintiff‟s legislatively promised statutory tenure rights as
              well as the discriminatory and disparate treatment Plaintiff
              has endured are the bases for the cause of action of this
              complain [sic].5

Further, under a section titled “Demand,” Gillespie claimed that she was “denied light

duty assignment,” that tenure charges were “wrongfully filed,” and that she was “illegally

suspended without pay” in 2003.

       Appellees moved to dismiss in lieu of filing an answer to the complaint.6 On

October 14, 2009, Gillespie filed a motion to amend the complaint and attached a fifty-

one page, twelve-count amended complaint as an exhibit. All counts in the proposed

amended complaint are couched in terms of § 1983 violations. On March 5, 2010, the

District Court granted Appellees‟ motion to dismiss for failure to state a viable claim for

relief and denied Gillespie‟s motion for leave to file an amended complaint. This appeal

followed.

                                             II.



       5
         Neither party submitted Gillespie‟s complaint or amended complaint as part of
the record on this appeal. We have, however, obtained the documents for our review. In
her amended complaint, Gillespie attempts to add as defendants the District, Ann Marie
McGoldrick, Marion Bolden, Kathleen Duncan, Lucille Davy, and Josephine Hernandez.
       6
         Adjudication of the tenure charges by the ALJ was again deferred pending
resolution of the Appellees‟ motion to dismiss in this matter.

                                             4
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

We have appellate jurisdiction under 28 U.S.C. § 1291. “[W]e review de novo a district

court‟s grant of a motion to dismiss for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6).” Ballentine v. United States, 486 F.3d 806, 808 (3d Cir. 2007).

We review a denial of leave to amend the complaint for abuse of discretion. Lake v.

Arnold, 232 F.3d 360, 373 (3d Cir. 2000). We also “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. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation

marks omitted).

                                             A.

       Central to Gillespie‟s appeal is her assertion that Superintendent Bolden acted

without authority in finding that the tenure charges were supported by probable cause and

in certifying the charges to the State Commissioner of Education. Citing N.J. Stat. Ann.

§ 18A:6-10, she asserts that the tenure charges should have been certified by the local

school board of education, rather than Superintendent Bolden. To the extent that

Gillespie advances this premise in support of a § 1983 cause of action for denial of

substantive due process, her claim is unsustainable.7 First, as the District Court


       7
         Gillespie did not raise any arguments in her opening brief pertaining to her Age
Discrimination in Employment Act (“ADEA”) and American with Disabilities Act
(“ADA”) claims. Therefore, they are waived. See Laborers’ Int’l Union of N. Am., AFL-
CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived
unless a party raises it in its opening brief, and for those purposes „a passing reference to
an issue . . . will not suffice to bring that issue before this court.‟”) (quoting Simmons v.
                                              5
recognized, the statute of limitations on any substantive due process claim arising out of

Superintendent Bolden‟s actions in early 2003 expired well before this action was

brought in 2009. See O’Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006)

(New Jersey two-year statute of limitations for personal injury actions, N.J. Stat. Ann. §

2A:14-2, applies to civil rights claims). Second, Gillespie‟s challenge to the authority of

Superintendent Bolden to make a probable cause determination and certify the tenure

charges to the Commissioner of Education is foreclosed by her unsuccessful attempt to

amend the administrative regulation that explicitly authorized Superintendent Bolden‟s

actions. See Gillespie, 938 A.2d at 187-92. The Appellate Division of the New Jersey

Superior Court rejected Gillespie‟s contentions that the regulation (a) was ultra vires as

inconsistent with N.J. Stat. Ann. § 18A:6-11; (b) was adopted in violation of the New

Jersey Administrative Procedures Act, N.J. Stat. Ann. § 52:14B-1 to -15; and (c) denied

Gillespie due process. Under these circumstances, Gillespie cannot show that the

conduct of any named defendant was arbitrary, capricious, or so egregious as to shock the

conscience, which is the liability standard for a substantive due process claim. See Fagan

v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en banc) (“conclud[ing] that the

substantive component of the Due Process Clause can only be violated by governmental

employees when their conduct amounts to an abuse of official power that „shocks the

conscience‟”).




City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991) (plurality opinion) (Becker, J.)),
cert. denied, 503 U.S. 985 (1992).

                                             6
       To the extent that Gillespie seeks to advance a procedural due process claim,

dismissal without leave to amend was warranted because, as of the time of the District

Court‟s ruling, the tenure charge proceedings were still pending. Because it is undisputed

that Gillespie was on leave without pay status when the tenure charges were filed and

remains on that status to date, any Fourteenth Amendment procedural due process claim

is premature.8 See Wilson v. MVM, Inc., 475 F.3d 166, 176 (3d Cir. 2007).

       The District Court also properly dismissed as time-barred Gillespie‟s remaining

claims for fraud, retaliation and discrimination in violation of § 1983, and breach of

contract.

       Under New Jersey law, fraud claims are subject to a six-year statute of limitations,

see N.J. Stat. Ann. § 2A:14-1, S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping

Group, 181 F.3d 410, 425 (3d Cir. 1999), “and a cause of action accrues when a plaintiff

       8
        We note that the delayed and protracted handling of the tenure charges appears to
be Gillespie‟s own doing. Pursuant to N.J. Stat. Ann. § 18A:6-16, the tenure charges
were referred to the New Jersey Office of Administrative Law on April 2, 2003. (S.A.
14.) “The matter was scheduled for hearing on several occasions but adjourned because
[Gillespie] requested that the matter be placed on the inactive list pending the disposition
of a pending Worker‟s Compensation case.” (Id.) Accordingly, on January 26, 2004, the
ALJ issued an order placing Gillespie‟s tenure matter on the inactive list. (Id.) In a letter
dated June 24, 2005 to the ALJ, counsel for Gillespie stated that the workers‟
compensation case was ongoing and that “its conclusion w[ould] be essentially a material
and relevant factor in the tenure case.” (Id. at 34.) Therefore, counsel for Gillespie
requested that the tenure “matter be put on the inactive list until the compensation case is
concluded.” (Id.) On February 12, 2009, counsel for the District requested that the
tenure charge proceeding be reactivated because the workers‟ compensation claim had
been concluded. (Id. at 17.) Shortly thereafter, Gillespie filed this lawsuit, and at a July
14, 2009 hearing in front of the ALJ, the parties agreed to adjourn the tenure matter until
the Appellees‟ motion to dismiss was decided. According to Appellees, the tenure
proceeding was relisted following the District Court‟s order dismissing this action.
(Appellees‟ Br. at 5.)

                                             7
knows or should know of its existence.” Id. “The plaintiff must be aware of an injury

and a causal relationship between the injury and an actor, but need not know that the

conduct is tortious or legally wrongful.” Id. The limitations period “begins to run on

discovery of the wrong or of facts that reasonably should lead the plaintiff to inquire into

the fraud.” Id.

       Gillespie alleged fraud solely in her amended complaint. Specifically, she claimed

that Latiboudere committed fraud with his actions relating to the December 30, 2002

Notice of Proposed Action, that other Appellees falsely claimed that a pre-termination

hearing was held, and that the two Certificates of Determination containing different

dates in February 2003 are evidence of fraud. All of these matters were known to

Gillespie in early 2003. Gillespie did not seek leave to amend her complaint until

October 2009, approximately six and one-half years after she had knowledge of facts

supporting her fraud claim.

       As the District Court properly noted, to be timely, the fraud claim in her amended

complaint must relate back to her original complaint filed on February 26, 2009. Federal

Rule of Civil Procedure 15(c) provides for relation back of certain amended pleadings.9



       9
           Federal Rule of Civil Procedure 15(c)(1) (2008) states, in pertinent part:

                An amendment to a pleading relates back to the date of the
                original pleading when:
                (A) the law that provides the applicable statute of limitations
                allows relation back;
                (B) the amendment asserts a claim or defense that arose out of
                the conduct, transaction, or occurrence set out—or attempted
                to be set out—in the original pleading; or
                                               8
“Rule 15(c) is premised on the notion that a party is not entitled to the protection of the

statute of limitations based upon the later assertion by amendment of a claim or defense

that arises out of the same conduct, transaction, or occurrence set forth in the timely filed

original pleading.” Bensel v. Allied Pilots Assoc., 387 F.3d 298, 310 (3d Cir. 2004). “In

essence, application of Rule 15(c) involves a search for a common core of operative facts

in the two pleadings. As such, the court looks to whether the opposing party has had fair

notice of the general fact situation and legal theory upon which the amending party

proceeds.” Id. The District Court correctly found that Gillespie‟s original complaint

failed to provide any notice of a fraud claim.

       All of the events giving rise to Gillespie‟s discrimination and retaliation claims

also occurred in 2002 and early 2003. By way of example, Gillespie was given notice of

the tenure charges on December 30, 2002, and she indicated to the District Court that she

received the letter on December 31, 2002. Further, Gillespie responded to the charges in

January 2003, and the Commissioner received the Certificate of Determination on

February 27, 2003. Thus, her claims of discrimination and retaliation also accrued no

later than early 2003 and are barred by the two-year limitations period.


              (C) the amendment changes the party or the naming of the
              party against whom a claim is asserted, if Rule 15(c)(1)(B) is
              satisfied and if, within the period provided by Rule 4(m) for
              serving the summons and complaint, the party to be brought
              in by amendment:
                      (i) received such notice of the action that it will not be
                      prejudiced in defending on the merits; and
                      (ii) knew or should have known that the action would
                      have been brought against it, but for a mistake
                      concerning the proper party‟s identity.
                                              9
       Gillespie contends that New Jersey recognizes the continuing violation exception.

(See Appellant‟s Br. at 61.) As the District Court accurately noted, however, Gillespie

“does not allege a pattern or practice of intentional discrimination” in her complaint or

amended complaint. (A. 11.) See Jewett v. Int’l Tel. & Tel. Corp., 653 F.2d 89, 91 (3d

Cir. 1981). Therefore, dismissal of her § 1983 claims as untimely was appropriate.

       Nor is Gillespie‟s breach of contract claim timely. 10 The District Court

appropriately found that the statute of limitations began to run in December 2002 when

she was notified of the tenure charges via the Notice of Proposed Action letter. The

complaint, filed on February 26, 2009, was not filed within the limitations period. We

find Gillespie‟s claims that she did not discover her contract claim until October 2007,

while she “was preparing arguments challenging rules in the Appellate Division of

Superior Court,” and that the breach occurred on February 27, 2003, unavailing.

(Appellant‟s Br. at 58.) Accordingly, the District Court correctly found that Gillespie‟s

contract claim was time-barred.11


       10
        Although Gillespie claims that the District breached the collective bargaining
agreement, she has failed to provide this Court with a copy of the alleged contract.
       11
          Gillespie also claims that the District Court erroneously resolved factual
disputes when rendering its decision to grant the Appellees‟ motion to dismiss because it
considered the Gillespie opinion. Specifically, she reiterates that the Gillespie appellate
court “erred in granting agency deference[,]” and that the “promulgated rules” constitute
an “ultra vires action[.]” (Appellant‟s Br. at 35.) These arguments are frivolous.
Further, Gillespie claims that the District Court “misstated the facts in this case to have it
appear that Appellant was provided a hearing.” (Id. at 39.) To the contrary, the District
Court observed: “The Personnel Action Notice actually states that the State District
Superintendent of the State Operated School District of the City of Newark „considered‟
the charges but does not explicitly state that a hearing was conducted.” (A. 11 n.5)
(emphasis added).

                                              10
                                             B.

       Gillespie maintains that she was entitled to amend her complaint under Federal

Rule of Civil Procedure 15(a) as a matter of right. It is, of course, true that under the

version of Rule 15(a) in effect in October of 2009 a party could amend its complaint once

as a matter of course “20 days before being served with a responsive pleading; or . . .

within 20 days after serving the pleading if a responsive pleading is not allowed.” The

Appellees moved to dismiss Gillespie‟s complaint on July 31, 2009. Although Gillespie

had the right to amend her complaint as a matter of course, she did not do so. Instead,

she requested leave to file an amended complaint. Significantly, in addressing Appellees‟

Rule 12(b)(6) motion, the District Court assessed the claims presented in the proposed

amended complaint and found them to be without arguable merit, concluding that they

“would not survive a motion to dismiss.” (A. 13.) We concur with the District Court‟s

finding and, accordingly, sustain the decision to deny leave to amend the complaint. 12

                                             III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




       12
          Our review of the record lends no credence to Gillespie‟s unsubstantiated claim
that the District Court was biased.

                                             11
