                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2095-17T2

D.B., an infant minor by his
Guardian ad litem, C.B., and
C.B., individually,

          Plaintiffs-Appellants,

v.

JERSEY CITY BOARD OF EDUCATION,
JACKSON GRAY, individually,
SHANNON SPEED, individually,
DAWN REYNOLDS, individually, and
TYRONE BATES, individually,

     Defendants-Respondents.
________________________________________

                    Submitted November 7, 2018 – Decided December 7, 2018

                    Before Judges Fisher and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-3334-16.

                    Krumholz Dillon, PA, attorneys for appellants (Alan L.
                    Krumholz, on the brief).
            Adams, Gutierrez & Lattiboudere, LLC, attorneys for
            respondents (Cherie L. Adams, of counsel and on the
            brief; Kimberly Williams, on the brief).

PER CURIAM

      C.B.1 appeals the dismissal of her complaint with prejudice under Rule

4:6-2(e) on behalf of herself and her minor son D.B., against defendants: Jersey

City Board of Education, Jackson Gray, Shannon Speed, Dawn Reynolds, and

Tyrone Bates. We affirm the order dismissing the complaint but remand to allow

plaintiffs leave to file and serve an amended complaint.

                                        I.

      The following facts are alleged in the complaint, plaintiffs' answers to

interrogatories, and response to a notice to produce. D.B., born in June 2007,

was a third-grade student at Jersey City Public School #39. During the 2015-

2016 academic year, C.B. contends that her son was "subjected to bullying,

harassment and discriminatory treatment" by defendants. In October 2015,

Speed and Gray, who are teachers, refused to allow D.B. to participate in a field

trip to the sanitation department and other field trips, according to C.B.

Arguably, her son was prohibited from participating in the school's Halloween



1
  Pursuant to Rule 1:38-3(d), we use initials to protect the confidentiality of the
plaintiffs.
                                                                           A-2095-17T2
                                        2
festivities and had to remain in the classroom. A few months later, in January

2016, D.B. claimed that Speed "apparently became annoyed with [D.B.] and

dumped out all of [his] books from his book bag and onto his desk," causing the

child to cry. A month later, Speed and Gray allegedly accused D.B. of damaging

a textbook and confiscated it from him, advising him to use the online version

instead. The next day, he was given a replacement textbook after online access

was unsuccessful. Defendants forbade him from attending another field trip in

February 2016 for "being obstinate," and he was removed from the classroom

by a security guard after refusing to separate from his peers. Allegedly, D.B.

was "shoved" by the security guard, and the child's desk was separated from the

other students' desks.

      Throughout the year, C.B. contends that her son got detention for failing

to timely complete homework assignments, and he was deprived of lunch as part

of his punishment. After falling asleep at his desk in March 2016 for about

forty-five minutes, Gray took a picture of D.B. and emailed it to his mother,

Reynolds, the principal, and Bates, the vice-principal, without inquiring as to

whether the child felt ill. He also failed to wake D.B. up, according to C.B.'s

interrogatory answers.




                                                                       A-2095-17T2
                                      3
       During an oral hygiene demonstration in April 2016, D.B.'s gums bled.

Gray purportedly announced to the class that D.B. had "gingivitis," causing the

child to feel "embarrassed and humiliated."       That month, Speed and Gray

ostensibly told D.B. he "was going to be homeless," and that they would "give

him a cup so that he could stand outside the school, or go to Journal Square, and

people would put money in his cup." Also in April 2016, C.B. alleges that Speed

and Gray refused to provide D.B. with a suitable pencil during the Scantron test,2

and he had to complete the test with a highlighter. After his teacher claimed he

vandalized his test, D.B. retook the test in Bates' office. After further miscreant

behavior by Speed and Grey was complained of by C.B. to Reynolds, Bates, and

the Division of Child Protection and Permanency, 3 her son was transferred to

Public School #17, where he has been on the honor roll and has perfect

attendance.

       Count one of the complaint sought a judgment against defendants under

the Anti-Bullying Act (Act), N.J.S.A. 18A:37-18 and 17-46. Count two sought




2
  Scranton tests require the test taker to use a standard number two pencil in
order for a machine to scan the answers.
3
    No formal action was ever taken.
                                                                           A-2095-17T2
                                        4
a judgment against defendants for age discrimination under the New Jersey Law

Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49.

      The parties engaged in limited paper discovery. Defendants then moved

to dismiss the complaint, contending that the Act does not create a private cause

of action, and that the Legislature vested the Commissioner of the Department

of Education with the authority to decide disputes arising under Title 18A,

dealing with school laws. Because plaintiffs' claim was based upon general

assertions of harassment, intimidation, and bullying, defendants argued that

plaintiffs failed to allege a claim under the Act in any respect.

      As to the NJLAD claim, defendants relied on the language that provides

it is unlawful "[f]or an employer, because of the . . . age . . . of any individual .

. . to discriminate against such individual . . . in terms, conditions or privileges

of employment." N.J.S.A. 10:5-12(a). Because no case law supports a cause of

action for age discrimination in a public school setting for a minor student, and

plaintiffs failed to show a prima facie claim that he was treated differently from

his fellow classmates, defendants argued there was no NJLAD violation.

      Plaintiffs relied upon the Jersey City Public Schools' Code of Conduct as

well as the legislative findings and declarations of the Act to assert there is

concurrent jurisdiction between the Superior Court and Commissioner of


                                                                             A-2095-17T2
                                         5
Education in the handling of claims brought under the Act. As to the allegation

of age discrimination, plaintiffs admitted it is "unconventional," however, they

argued that the complained of conduct would not have occurred but for the fact

a minor was involved, citing T.L. v. Toys 'R' Us, Inc., 255 N.J. Super. 616 (App.

Div. 1992).

       The motion judge dismissed both counts of the complaint with prejudice

under Rule 4:6-2(e). As to the first count, he found there is no private right of

action under the Act, N.J.S.A. 18A:37-13. The judge held that "complaints for

violations of any of the provisions of the Act are to go through a formal

procedure to be outlined by the Commissioner of Education. N.J.S.A. 18A:37-

25."

       As to the second count, the judge determined the "complaint does not

provide any facts which could reasonably somehow implicate age as a factor[,]"

and that plaintiffs were advancing a "novel theory." The judge also found that

plaintiffs' proffer that "the allegedly discriminatory conduct was enabled by

[D.B.'s] age, and that alone is insufficient to support a claim under the [NJ]LAD"

and "[n]o support [was] cited for such a proposition."

       After the order was entered on October 27, 2017, plaintiffs filed a motion

for reconsideration. On December 1, 2017, the judge denied the motion because


                                                                          A-2095-17T2
                                        6
plaintiffs "failed to show that [the] decision was irrational or palpably

incorrect." However, the judge inadvertently failed to strike the second ordinal

paragraph in the form of the order submitted by plaintiffs' counsel that provided:

"the [c]omplaint filed in the within matter be and is reinstated, with plaintiff[s]

being entitled to move to [a]mend the [c]omplaint within ten (10) days from the

date of this [o]rder." In reliance upon that language, plaintiffs moved to file and

serve an amended complaint to assert causes of action based upon negligence,

aiding and abetting illegal discrimination, negligence under Title 18A, and

gender discrimination. In an order entered on January 5, 2018, denying the

motion, the judge stated:

            Plaintiff[s] filed the instant motion, essentially relying
            on the [c]ourt's error in not striking a paragraph
            submitted as part of [p]laintiff[s'] proposed form of
            order reinstating [p]laintiff[s'] case and permitting
            [p]laintiff[s] to file an amended complaint.
            Nevertheless, it is clear that reconsideration was
            [denied] and the [c]ourt gave its reasons for doing so.
            For those reasons, the motion to file an amended
            complaint is denied.

      Plaintiffs appeal, arguing the following:

            POINT I:

            PLAINTIFFS' ALLEGATIONS OF BULLYING,
            HARRASSMENT     AND    DISCRIMINATION
            AGAINST A MINOR STUDENT BY PUBLIC
            SCHOOL TEACHERS AND STAFF SET FORTH A

                                                                           A-2095-17T2
                                        7
            CAUSE   OF   ACTION  WHICH   ENTITLED
            PLAINTIFFS TO PRESENT THEIR CASE IN A
            COURT OF LAW.

      Defendants urge us to affirm.

                                       II.

      "We review a grant of a motion to dismiss a complaint for failure to state

a cause of action de novo, applying the same standard under Rule 4:6-2(e) that

governed the motion court." Wreden v. Township of Lafayette, 436 N.J. Super.

117, 124 (App. Div. 2014). We must adhere to that standard of review.

      We are "limited to examining the legal sufficiency of the facts alleged on

the face of the complaint . . . ." Nostrame v. Santiago, 213 N.J. 109, 127 (2013)

(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989)). The test to be applied is "whether a cause of action is 'suggested' by

the facts." Printing Mart, 116 N.J. at 746 (citation omitted). "[A] reviewing

court 'searches the complaint in depth and with liberality to ascertain whether

the fundament of a cause of action may be gleaned even from an obscure

statement of claim, opportunity being given to amend if necessary.'"        Ibid.

(citation omitted). "[P]laintiffs are entitled to every reasonable inference of

fact," and our examination of the complaint should be one "that is at once

painstaking and undertaken with a generous and hospitable approach." Ibid.


                                                                         A-2095-17T2
                                       8
      Thus, a motion to dismiss under Rule 4:6-2(e) "must be based on the

pleadings themselves." Roa v. Roa, 200 N.J. 555, 562 (2010). For purposes of

such a motion, the complaint includes the "exhibits attached to the complaint,

matters of public record, and documents that form the basis of a claim." Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of

Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004)). However,

                [i]f . . . matters outside the pleading are presented to
                and not excluded by the court, the motion shall be
                treated as one for summary judgment and disposed of
                as provided by R[ule] 4:46, and all parties shall be
                given reasonable opportunity to present all material
                pertinent to such a motion.

                [R. 4:6-2.]

      The judge expressly looked outside the pleadings and went beyond the

four corners of the complaint when it considered plaintiffs' discovery responses.

The judge expressly found dismissal was "mandated" because "the factual

allegations are palpably insufficient to support a claim upon which relief can be

granted[,]" citing Rieder v. The State of New Jersey Dep't of Transp., 221 N.J.

Super. 547, 552 (App. Div. 1987). That said, because the judge dismissed

plaintiffs' complaint pursuant to Rule 4:6-2(e), we consider whether the

complaint is capable of withstanding dismissal pursuant to a proper application

of that rule.

                                                                           A-2095-17T2
                                           9
                                       III.

      We first address the jurisdictional issue applicable to the Act, which was

intended "to strengthen the standards and procedures for preventing, reporting,

investigating, and responding to incidents of harassment, intimidation, and

bullying of students that occur in school and off school premises[.]" N.J.S.A.

18A:37-13.1(f). The goal of the Act is to reduce "the risk of suicide among

students and avert not only the needless loss of a young life, but also the tragedy

that such loss represents to the student's family and community at large[.]"

N.J.S.A. 18A:37-13.1(i). Upon the Act becoming effective on September 1,

2011, school officials were instructed to implement safeguards, including: the

appointment of an anti-bullying specialist or coordinator; the formation of a

school safety team; required training on harassment, intimidation, and bullying

prevention in order to receive a teaching or supervisory certification; and

development of a guidance document to assist in resolving complaints. N.J.S.A.

18A:37-20 to -24.

      There is a compelling reason to affirm dismissal of count one. Our

Legislature has enacted an extensive scheme for enforcement of our public

education laws. N.J.S.A. 18A:6-9 provides that "[t]he commissioner shall have

jurisdiction to hear and determine . . . all controversies and disputes arising


                                                                           A-2095-17T2
                                       10
under the school laws . . . ." Chapter 37 of Title 18A, in turn, provides a

comprehensive scheme for the discipline of children attending public schools.

This includes a non-exhaustive list of the grounds for suspending or expelling a

student, N.J.S.A. 18A:37-2; procedures for discipline involving assaultive

conduct by a student, N.J.S.A. 18A:37-2.1 to -2.5; procedures for the immediate

suspension of a student, N.J.S.A. 18A:37-4; procedures for disciplinary action

against students found with firearms, N.J.S.A. 18A:37-7 to -12; and procedures

for disciplinary action based upon "bullying." N.J.S.A. 18A:37-13 to -15.

      In a previous decision, we addressed the jurisdictional issue after

enactment of the Act holding that "[t]he Commissioner of Education has primary

jurisdiction to hear and determine all controversies arising under the school

laws." G.D.M. v. Board of Educ. of the Ramapo Indian Hills Reg'l High Sch.

Dist., 427 N.J. Super. 246, 259 (App. Div. 2012) (citation omitted). In G.D.M.,

we held that the Act "allows a school district to respond to harassment,

intimidation or bullying that occurs off school grounds[,]" recognizing the broad

remedial intent of the statute. Id. at 266. Since plaintiffs' allegations fall

squarely under the Act, the judge's analysis was correct and we agree that count

one should be dismissed because the Commissioner has jurisdiction to hear and

determine the controversy.


                                                                         A-2095-17T2
                                      11
                                        IV.

      Turning now to the dismissal of plaintiffs' NJLAD claim in count two, we

recognize that in order to establish a prima facie age discrimination case, a

plaintiff must satisfy the four-prong test set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1971), which has been adopted by our Court. Viscik v.

Equip. Co., 173 N.J. 1, 13-14 (2002); Goodman v. London Metal Exch. Inc., 86

N.J. 19, 31 (1981); Peper v. Princeton Univ. Bd. of Tr., 77 N.J. 55, 82 (1978).

      A cause of action has been recognized under the NJLAD in the educational

context "against a school district for a student-on-student harassment . . . ." L.W.

ex rel. L.G. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 402 (2007).

In order to state a claim under the NJLAD against a school,

            an aggrieved student must allege discriminatory
            conduct that would not have occurred "but for" the
            student's protected characteristic, that a reasonable
            student of the same age, maturity level, and protected
            characteristic would consider sufficiently severe or
            pervasive enough to create an intimidating, hostile, or
            offensive school environment, and that the school
            district failed to reasonably address such conduct.

            [Id. at 402-03.]

"Common sense dictates that there is no [NJ]LAD violation if the same conduct

would have occurred regardless of plaintiff's [age]." Lehmann v. Toys 'R' Us,

Inc., 132 N.J. 587, 604 (1993).

                                                                            A-2095-17T2
                                        12
      Plaintiffs reference several pre-Act cases to establish support for their

position that schools are liable to harm faced by their students. 4 These cases,

however, are based upon negligence theories and not claims arising under the

NJLAD. Plaintiffs argue:

            [i]t would seem to follow that actions conducted
            intentionally by teachers and staff against a student,
            which are or may be deemed to constitute acts of
            intimidation, harassment, or bullying, should be subject
            to liability at least equal to those acts conducted
            negligently which result in injury to a student.

            [(emphasis in original).]


We disagree because L.W. rejected the United States Supreme Court's

"deliberate indifference" standard required for Title IX claims established by

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 641 (1999), and instead chose

to adopt the Lehmann standard. L.W., 189 N.J. at 404, 405. The Court held that



4
   D.B. relies on Titus v. Lindberg, 49 N.J. 66 (1967) (holding that the school
was liable for injuries sustained by a student, which were inflicted by another
student while the children were unsupervised); Jackson v. Hankinson, 51 N.J.
230 (1968) (upholding a duty of care to exercise "reasonable supervisory care"
for a student injured on a school bus by another student, recognizing "ordinary
principles of negligence"); and Caltavuturo v. City of Passaic, 124 N.J. Super.
361 (App. Div. 1973) (upholding the standard of care for a student injured by
stepping through a chain-link fence partially surrounding a public school). We
are not persuaded by these cases because they deal with imposition of duty and
standard of care on school personnel that is not germane to our analysis here.
                                                                        A-2095-17T2
                                        13
"a school district is liable for such harassment when the school district knew or

should have known of the harassment but failed to take any actions reasonably

calculated to end the mistreatment and offensive conduct." Id. at 390.

      In support of this position, plaintiffs argue that Remphrey v. Cherry Hill

Twp. Bd. of Educ., No. 16-3084, 2017 U.S. Dist. LEXIS 7882 (D.N.J. Jan. 20,

2017) is controlling. In Remphrey, the student's NJLAD complaint survived

defendant's motion to dismiss because it outlined the student's symptoms and

reaction to a teacher's behavior; that the school failed to reasonably address the

student's complaints; violated its own protocols; and failed to fully inv estigate

the matter. We are cognizant of the holding in D.V. v. Pennsauken Sch. Dist.,

247 F. Supp. 3d 464 (D.N.J. 2017), that permitted an aggrieved student have her

NJLAD claim considered on its merits. In this case, count two was not dismissed

because the judge found that there is no remedy under NJLAD, but because

plaintiffs failed to state any facts to support that the treatment D.B. received was

due to his young age.

      We find no basis for liability on defendants' part under the NJLAD.

Accordingly, dismissal of count two of the complaint was appropriate.

      Finally, we address the denial of plaintiffs' request for leave to amend

their complaint. When, as here, amendment is sought after an answer has been


                                                                            A-2095-17T2
                                        14
filed, plaintiffs must obtain "leave of court which shall be freely given in the

interest of justice." R. 4:9-1.

      "'Rule 4:9-1 requires that motions for leave to amend be granted liberally'

and that 'the granting of a motion to file an amended complaint always rests in

the court's sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501

(2006) (citation omitted). Here, the judge abused his discretion by denying

plaintiffs' motion for leave to file and serve an amended complaint because

substantive changes and different causes of action are alleged. Further, the

judge did not find that the proposed counts were not sustainable as a matter of

law as he was required to do. Ibid. Therefore, we reverse the January 5, 2018

order insofar as it denied plaintiffs' motion for leave to file and serve an amended

complaint and we remand to permit plaintiffs an opportunity to re-file same. We

vacate the orders under review and remand for entry of an order that dismisses

the second count without prejudice and allows plaintiffs an opportunity to file

an amended complaint under the NJLAD.

      Plaintiffs' remaining arguments were either not made to the judge or lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

For all the reasons previously expressed, we remand the matter to the trial court

to permit plaintiffs leave to file and serve an amended complaint.


                                                                            A-2095-17T2
                                        15
      Affirmed in part, vacated in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                      A-2095-17T2
                                      16
