R. et al v. HADDONFIELD FRIENDS SCHOOL, No. 1:2014cv05730 - Document 63 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 3/31/2016. (TH, )
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R. et al v. HADDONFIELD FRIENDS SCHOOL Doc. 63 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY SKY R., a m inor, by and through his parent & natural guardian, Angela R., and ANGELA R., individually, Plaintiffs, : Hon. J oseph H. Rodriguez : Civil Action No. 14-5730 : v. OPINION : HADDONFIELD FRIENDS SCHOOL, Defendant. : : This m atter is before the Court on Defendant’s m otion [Doc. 31] for partial sum m ary judgm ent pursuant to Fed. R. Civ. P. 56 seeking dism issal of Plaintiffs’ claim s under the ADA and NJ LAD. Oral argum ent was heard on the m otion on J anuary 14, 20 16 and the record of that proceeding is incorporated here. For the reasons placed on the record that day, and those set forth below, Defendant’s m otion will be granted. Background At the tim e this lawsuit was com menced, Plaintiff Sky R. was a ten year old boy diagnosed with attention dysfunction and dyslexia. (Com pl. at ¶¶ 1, 8.) He attended Defendant Haddonfield Friends School (“HFS”) from September 20 12 until February 13, 20 14, at which tim e he was in fourth grade. (Id. at ¶ 1.) Plaintiff Angela R. is Sky’s m other. (Id. at ¶ 5.) 1 Dockets.Justia.com Plaintiffs allege that HFS discrim inated against Sky by failing to allow appropriate, reasonable m odifications for his disabilities and by subjecting him to public hum iliation and sham ing due to his disabilities. (Id. at ¶ 2.) They further contend that HFS im properly retaliated against Sky and his parents in response to the vigorous advocacy of the parents in attem pt to secure appropriate, reasonable m odifications to allow Sky access to the education offered by HFS. (Id. at ¶ 3.) Plaintiffs assert that HFS expelled Sky for discrim inatory reasons and unlawfully term inated his enrollm ent on February 13, 20 14. (Id. at ¶¶ 4, 82.) Angela R. initiated this lawsuit on Septem ber 15, 20 14, individually and on Sky’s behalf. The Com plaint states claim s for discrim ination and retaliation under Section 50 4 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 1 (Counts I and IV), Title III of the Am ericans with Disabilities Act of 1990 , 42 U.S.C. § 12182 (“ADA”) (Counts II and V), and New J ersey’s Law Against Discrim ination, N.J . Stat. Ann. §10 :5-1 (“NJ LAD”) (Counts III and VI). 1 Section 50 4 prohibits program s that receive federal funds from discrim inating against an individual based on disability: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrim ination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a). 2 Motion to Am end After briefing and argum ent on HFS’s m otion to dism iss Plaintiffs’ ADA claim s, which was denied without prejudice on April 22, 20 15 subject to further discovery, [Doc. 15], HFS filed an Answer to the Com plaint on May 19, 20 15. HFS asserted no counterclaim s against Plaintiffs or third-party com plaints in the original Answer. [Doc. 20 .] On J uly 9, 20 15, HFS filed a m otion to am end its Answer to include a Counterclaim against Plaintiff Angela R. and to join Richard Londen as a Third-Party Defendant. [Doc. 26.] HFS alleges that Angela and Richard attended a town hall m eeting at HFS on J une 9, 20 15, and distributed a defam atory letter to attendees along with a copy of the Com plaint in this m atter. (Def. Br., Ex. A, Counterclaim at ¶¶ 5-6, 12; Ex. B, Third Party Com pl. at ¶¶ 5-6, 12.) According to HFS, the letter contained false statements about HFS, its adm inistration, staff, and Board of Trustees causing HFS to incur dam age to its reputation and character, as well as hum iliation and em barrassm ent. (Def. Br., Ex. A, Counterclaim at ¶¶ 1617; Ex. B., Third Party Com pl. at ¶¶ 16-17.) Plaintiffs have opposed allowing am endment of the Answer to assert the Counterclaim against Angela and Third Party Com plaint against Richard. The Court decides this issue on the papers pursuant to Fed. R. Civ. P. 78(b). 3 Defendant argues, relying prim arily on Federal Rule of Civil Procedure 15(a), that leave to am end should be liberally granted and none of the circum stances warranting denial of a m otion to am end are present here-undue delay, prejudice, bad faith or futility. Indeed, Defendant argues that this Motion was filed within the Court’s deadline to am end the pleadings and one m onth after the precipitating events. Thus, its Motion, which seeks to add a defam ation counterclaim against Angela and file a third-party complaint against Richard for the same, should be granted. To the contrary, Plaintiffs argue that Rule 15(d) governs Defendant’s Motion because it attem pts to supplement its pleading with an afteracquired counterclaim for defam ation. Plaintiffs argue that the defam ation claim governed by state law is a perm issive counterclaim unrelated to the original com plaint and Defendant fails to dem onstrate that this Court has jurisdiction over sam e. Moreover, Plaintiffs argue that the defam ation claim is asserted in bad faith, will increase expenses and delay proceedings on its federal civil rights claim s and the claim is futile. Thus, the Court should exercise its discretion and deny Defendant’s Motion. Federal Rule of Civil Procedure 15 governs amendments to pleadings and provides that leave to am end shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). However, here, Defendant seeks to 4 supplem ent its pleading. Thus, Rule 15(d) governs this dispute. The Rule provides: On m otion and reasonable notice, the court m ay, on just term s, perm it a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court m ay perm it supplem entation even though the original pleading is defective in stating a claim or defense. The court m ay order that the opposing party plead to the supplemental pleading within a specified tim e. Fed. R. Civ. P. 15(d). Courts within the Third Circuit have found that leave to supplement a pleading is within the sound discretion of the court and should be granted “if it will prom ote the just disposition of the case, will not cause undue prejudice or delay and will not prejudice the rights of any parties.” Medeva Pharm a Ltd. v. American Hom e Products Corp., 20 1 F.R.D. 10 3, 10 4 (D. Del. 20 0 1) (citing The Proctor & Gamble Co. v. McNeilPPC, Inc., No. 98-361, 1998 WL 1745118 (D. Del Dec. 7, 1998)); see also United States v. Local 560 (I.B.T.), 694 F. Supp. 1158, 1187 (D.N.J . 1998). Moreover, because Defendant is seeking to include a counterclaim with its proposed am ended answer, Rule 13 is also im plicated and provides that “[t]he court may perm it a party to file a supplemental pleading asserting a counterclaim that m atured or was acquired by the party after serving an earlier pleading.” Fed. R. Civ. P. 13(e). “Courts have found that ‘Rule 13(e) is to be read in conjunction with Rule 15(d), which governs the 5 filing of supplemental pleadings.’” Board of Trustees of Nat. Elevator Indus. Health Ben. Plan v. McLaughlin, No. 12-4322, 20 13 WL 4788190 , at *3 (D.N.J . Sept. 6, 20 13). Finally, with regard to the proposed third-party com plaint, Rule 14 states, in pertinent part, that a third-party plaintiff m ust “by m otion, obtain the court's leave if it files the third-party com plaint m ore than 10 days after serving its original answer.” Fed. R. Civ. P. 14(a)(1). The decision to perm it the filing of a third-party complaint is within the discretion of the court. See Spencer v. Cannon Equipm ent Co., No. 0 7– 2437, 20 0 9 WL 1883929, *2 (D.N.J . J une 29, 20 0 9); United States v. SB Building Associates, Lim ited Partnership, No. 0 8-5298, 20 0 9 WL 23920 98, *1 (D.N.J . August 3, 20 0 9). Courts have considered the following factors in determ ining whether to perm it filing of the third-party complaint: “(1) the tim eliness of the m otion; (2) the probability of trial delay; (3) the potential for complication of issues at trial; and (4) prejudice to the original plaintiff.” Spencer, 20 0 9 WL 188390 9 at *2 (citing Ronson v. Talesnick, 33 F. Supp. 2d 347, 356 (D.N.J . 1999)). As an initial m atter, based on the facts before the Court, Defendant’s request to am end its Answer to include a counterclaim would not cause undue prejudice or delay. This Motion was filed within the Court’s deadline 6 to am end the pleadings or add new parties, discovery is ongoing, and this Motion was filed within one m onth of the events giving rise to the proposed counterclaim . For the sam e reasons, based on the current posture of this case, Defendant’s request to file a third-party com plaint is tim ely and will not cause any appreciable trial delay as the parties are still engaged in pretrial discovery. Moreover, based on the foregoing and the largely unsupported assertions of increased expense and delay, the Court cannot find that Plaintiff will be unduly prejudiced by the inclusion of this claim . However, these findings do not end the Court’s inquiry because Plaintiffs also raise futility argum ents. 5 First, Plaintiffs argue that Defendant’s proposed counterclaim and third-party complaint would be futile because the Court lacks jurisdiction over sam e. The Court finds, based on review of the proposed pleadings, that the Court would have The Court m ay deny leave to am end if the am endm ent would be futile. Fom an v. Davis, 371 U.S. 178, 182 (1962); Stallings v. IBM Corp., No. 0 83121, 20 0 9 WL 290 5471, at *15 (D.N.J . Sept. 8, 20 0 9). In determ ining whether a proposed am endment would be futile, the Court applies the sam e standard of legal sufficiency that applies to a m otion to dism iss filed under Rule 12(b)(6). Travelers Indem nity Co. v. Damm ann & Co., 594 F.3d 238, 243 (3d Cir. 20 10 ). When deciding a 12(b)(6) m otion to dism iss, “courts accept all factual allegations as true, construe the com plaint in the light m ost favorable to the plaintiff, and determ ine whether, under any reasonable reading of the com plaint, the plaintiff m ay be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 20 3, 210 (3d Cir. 20 0 9) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 20 0 8)); Fed. R. Civ. P. 12(b)(6). 5 7 jurisdiction over the defam ation claim . Defendant’s proposed counterclaim in its Answer and its proposed third-party com plaint both allege supplem ental jurisdiction based on 28 U.S.C. § 1367(a) which provides: Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claim s that are so related to claim s in the action within such original jurisdiction that they form part of the sam e case or controversy under Article III of the United States Constitution. Such supplem ental jurisdiction shall include claim s that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367. Courts will exercise supplemental jurisdiction over claim s lacking an independent jurisdictional basis if same are so related to the claim s conferring original jurisdiction that they form part of the same case or controversy. Troncone v. Velahos, No. 10 -2961, 20 12 WL 30 180 61, at *7 (D.N.J . J uly 23, 20 12) (citing HB General Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1197 (3d Cir. 1996)) “Courts generally construe § 1367 to indicate that a claim is part of the same case or controversy if they share significant factual elem ents.” Id. In this regard, the Third Circuit has held that supplemental jurisdiction is proper if the claim s derive from a comm on nucleus of operative facts and if the claim s are such that one would expect that all claim s would be tried in a single proceeding. Lyon v. Whism an, 45 F.3d 8 758, 760 (3d Cir. 1995); Troncone, 20 12 WL 30 180 61, at *7. Determ ining whether claims derive from a comm on nucleus of operative fact test is highly fact-sensitive. Lyon, 45 F.3d at 760 . As noted by Plaintiffs, the Third Circuit has addressed the issue of supplem ental jurisdiction and the nucleus of operative fact test in relation to state-based slander/ defam ation claim s in at least two instances: Nanavati v. Burdette Tomlin Mem ’l Hosp., 857 F.2d 96 (3d Cir. 1988) and PAAC v. Rizzo, 50 2 F.2d 30 6, 30 9 (3d Cir. 1974). Notably, in Lyon v. Whism an, 45 F.3d 758, 760 (3d Cir. 1995), the Third Circuit distinguished these two cases while highlighting the factsensitive nature of supplem ental jurisdiction determ inations. The Third Circuit provided: In Nanavati, we found that the district court had the power to adjudicate a slander claim asserted by an antitrust defendant, noting that “a critic al background fact (the enm ity between the two physicians) is com m on to all claim s.” We concluded that the alleged slanders naturally would becom e part of the antitrust trial since the slander victim m ight use the slanderer's allegedly wrongful behavior to justify the victim 's conduct which the other party contended was actionable under the antitrust laws. In PAAC, however, we ruled that the district court lacked jurisdiction over a state defam ation claim in a suit brought under the Econom ic Opportunity Act charging the defendant with unlawfully interfering with the agency established under that law. In PAAC we recited the operative language of Gibbs and found that the state claim s were not related sufficiently to the federal claim to perm it the exercise of pendent jurisdiction. Id. at 760 -61 (internal citations om itted). 9 Here, because the circum stances presented are m ore sim ilar to those presented in Nanavati than in PAAC, the Court finds that the proposed defam ation claim derives from the same nucleus of operative facts, therefore, the Court’s exercise of supplem ental jurisdiction is proper. While Plaintiffs’ claim s are federal civil rights claim s and Defendant’s proposed claim is a state defam ation claim , the claim s share the same factual underpinnings: the environment at HFS while Sky was a student, the treatment of Sky while a student at HFS and his ultim ate expulsion. The letter distributed by Angela and Richard contained statem ents that flow largely from the allegations in the Com plaint, and, additionally, they attached a copy of the Com plaint to the letter. Indeed, in proving the defam ation claim , Defendant would need evidence establishing the falsity of the statements by Angela and Richard, statem ents which are directly related to the factual allegations in this litigation. Thus, while it is true, as argued by Plaintiffs, that there are additional elem ents of the defam ation claim and, as a result, additional facts necessary to establish, for instance, harm to HFS’s reputation, the Third Circuit does not require total congruity between the operative facts, just m ore than a m ere tangential overlap. Nanavati, 857 F.2d at 10 5. It is this Court’s conclusion that a state claim that is derived entirely and exists solely because of the underlying federal 10 litigation dem onstrates m ore than a mere tangential overlap and, thus, not only does the defam ation claim derive from the same nucleus of operative facts but the claim is such that a party would expect sam e to be tried in one judicial proceeding. Next, however, Plaintiffs argue that allowing the proposed am endment would be futile because it fails to state a claim for defamation. A m otion for leave to am end will be denied for futility if the proposed am ended com plaint “would fail to state a claim upon which relief could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 20 0 0 ). Thus, “[i]n assessing ‘futility’ the District Court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” Id. To survive dism issal under Federal Rule of Civil Procedure 12(b)(6), a com plaint “m ust contain sufficient factual m atter accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7)). “Whether [a] statem ent is susceptible of a defam atory meaning is a question of law for the court.” DeAngelis v. Hill, 847 A.2d 1261, 1268 (N.J . 20 0 4) (quoting Ward v. Zelikovsky, 643 A.2d 972, 978 (N.J . 1994). To state a claim for defam ation under New J ersey law, a plaintiff m ust show: “(1) the assertion of a false and defam atory statement concerning another; (2) 11 the unprivileged publication of that statem ent to a third party; and (3) fault am ounting at least to negligence by the publisher.” DeAngelis, 847 A.2d at 1267-68 (internal citation om itted). A defam atory statem ent tends to harm the reputation of another as to lower him in the estim ation of the com m unity or to deter third persons from associating or dealing with him . Lynch v. New J ersey Educ. Ass’n, 735 A.2d 1129, 1135 (N.J . 1999). To determ ine whether a statement is defam atory, a court m ust exam ine three factors: (1) content, (2) verifiability, and (3) context. DeAngelis, 847 A.2d at 1267-68 (citing Ward, 643 A.2d at 978). In analyzing the content, courts should “consider the fair and natural m eaning that will be given [to the statem ent] by reasonable persons of ordinary intelligence.” DeAngelis, 847 A.2d at 1268 (alteration in original) (quotation m arks om itted). Verifiability requires the determ ination of “whether the statem ent is one of fact or opinion.” Id. at 1269. “A factual statement can be proved or disproved objectively while an opinion statement generally cannot. Id. That is, “[o]pinion statements . . . are generally not capable of proof of truth or falsity because they reflect a person’s state of m ind. Hence, opinion statements generally have received substantial protection under the law.” Ward, 643 A.2d at 979. However, a plaintiff has a cause of action for harm from a defam atory opinion 12 statement “when the statem ent im plies underlying objective facts that are false.” Id. (citing Milkovich v. Lorain J ournal Co., 497 U.S. 1, 18-20 (1990 )). Where the statement contains “[l]oose, figurative or hyperbolic language,” it is m ore likely to be non-actionable. DeAngelis, 847 A.2d at 1269 (quoting Ward, 643 A.2d at 980 (alteration in original)). With regard to context, courts m ust consider, in addition to the language used, “[t]he listener’s reasonable interpretation . . . [within] the context in which the statement appears[.]” Id. As described in HFS’s proposed Counterclaim and Third Party Com plaint, the alleged factual assertions of concern are: (1) “[t]he letter accuses HFS and its Board of Trustees of abusing a child and/ or not taking action to stop the alleged abuse he was receiving,” (2) “[t]he letter also accuses HFS of “sabotaging Sky R.’s efforts to gain adm ittance to another school,” “straying from its values and not being Quakerly.” (Def.’s Br., Ex. A, Counterclaim at ¶¶ 8-9; Def.’s Br., Ex. B, Third Party Com plaint at §§ 89.) HFS asserts that as a result of the com plained about actions, it suffered “dam age to its reputation and character” and will continue to suffer “hum iliation and em barrassment.” (Def.’s Br., Ex. A, Counterclaim at ¶¶ 1617; Def.’s Br., Ex. B, Third Party Com plaint at §§ 16-17.) In fact, the letter in question begins: “Hello Parents! We believe you 13 are here tonight because we the parents of Sky R. a former HFS student sued the school.” It continues: We could not sit by and allow what we believe HFS did to our child to be forgotten. We are suing because someone had to take a stand and effect change. Our suit brought to the forefront alleged discrim ination, m ismanagem ent, substandard teachers and parent com plaints that have existed for m any years. We believe the suit finally forced som eone to take action. Defendant specifically objects to a subsequent line: “We believe that HFS has strayed from the values that brought you to this school . . . HFS has been anything but ‘Quakerly.’” Angela and Richard followed that line with “It is our position that the board has known about Sky and m any other issues over the years but chose to ‘not get involved.’” Next, the letter outlines Sky’s alleged learning disabilities, states “[w]e believed that Sky m ight need to attend a special school,” and explains that he was expelled from HFS within two weeks of their raising a request for “m inor accom modations” in the interim . The authors concluded: “We believe that HFS purposely sabotaged the process [of finding a new school], making our search m ore difficult.” The last page of the letter contains a list of eight “suggestions” for im provem ent. Fifth was “Replace the entire board.” It is followed by the following elaboration: 14 Most are there in nam e only and do little to nothing. Every new board member m ust have im portant responsibilities and be on com m ittees. Many larger condo associations require this and will not accept “nam e only” board mem bers. There are two board members, one a child psychiatrist and the other a Quaker who knew Sky and what a fine and upstanding boy he is. We believe they chose to sit by while he was being abused and then expelled. We were told that the board does not know which children are asked to leave or why. Do you want a board like that? Board m em bers should be an integral part of the school. The Court finds that these statements constitute opinion and are not actionable as defamation. The letter was accompanied by a copy of the Com plaint filed in this m atter (which was the subject of the m eeting at HFS) and is replete with sentences that begin, “We believe.” Further, Defendant has alleged no facts that would lead a factfinder to conclude that Angela and Richard acted with actual m alice. See Leang v. J ersey City Bd. Of Educ., 969 A.2d 10 97, 1114 (N.J . 20 0 9) (reiterating that “speech relating to teachers in their role as educators im plicates a m atter of public concern, thus calling for the highest level of protection”). Finally, these statem ents occurred in the context of a litigant characterizing the opposing party’s case. “[T]hese statem ents are exam ples of absolutely routine, com m onplace public statements m ade by litigants about their opponents and their opponents’ cases. Characterizing such statements as actionable defam ation would create serious problem s.” J ewett v. IDT Corp., No. 0 41454, 20 0 7 WL 2688932, *9 (D.N.J . Sept. 11, 20 0 7). 15 In concluding on this issue, this Court finds instructive dicta from a case in which the Supreme Court of New J ersey found that reputational or pecuniary harm could be presumed absent actual m alice in a defam ation case brought by a teacher, as such was a m atter of public concern. Rocci v. Ecole Secondaire MacDonald– Cartier, 755 A.2d 583 (N.J . 20 0 0 ). There, a teacher brought a defam ation action against her school and a school trip chaperone, who also was a teacher, alleging that the chaperone’s letter to the teacher’s principal, which criticized the teacher’s behavior around her students, was defam atory. Id. at 584. The Court found “a strong public interest in the behavior of teachers, especially concerning their conduct with and around their students” and noted that the plaintiff acknowledged her role “as a fiduciary charged with the care of her students.” Id. at 587. The Court wrote: In view of that fiduciary role and the public interest, we believe that there m ust be free discourse, comm entary, and criticism regarding a teacher’s professionalism and behavior during a school-sponsored event. That principle, which is at the heart of this case, tips the scale in favor of requiring plaintiff to allege m ore than mere embarrassm ent. Id. This Court’s decision to deny Defendant’s m otion com ports with the Rocci Court’s concern that “we m ust ensure that our jurisprudence does not act to chill com plaints about a teacher’s behavior in the presence of students or sim ilar m atters involving the public interest.” Id. 16 Motion for Partial Sum m ary J udgment In addition, the Court previously denied without prejudice Defendant’s m otion to dism iss the Complaint or, in the alternative, for sum m ary judgment [Doc. 9], which argued that the Defendant is exem pt from the Am ericans with Disabilities Act and New J ersey Law Against Discrim ination invoked by Plaintiff. Rather, the Court allowed lim ited discovery to explore whether the exemption based upon control by a religious organization applies. With that discovery com plete, Defendant has filed a m otion for partial sum m ary judgm ent [Doc. 31] based on the religious exem ption. Defendant seeks dism issal of Counts II, III, V, and VI. Plaintiffs oppose the m otion. Federal Rule of Civil Procedure 56(c) provides that sum m ary judgm ent should be granted if “pleadings, depositions, answers to interrogatories, and adm issions on file, together with affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to a judgm ent as a m atter of law.” See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a m otion for sum m ary judgment, the court m ust construe all facts and inferences in the light m ost favorable to the nonm oving party. See Boyle v. Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The m oving party bears the burden of 17 establishing that no genuine issue of material fact rem ains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is m aterial only if it will affect the outcom e of a lawsuit under the applicable law, and a dispute of a m aterial fact is genuine if the evidence is such that a reasonable fact finder could return a verdict for the nonm oving party. See Anderson, 477 U.S. at 252. The nonm oving party m ust present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 20 0 5). “If the evidence is merely colorable . . . or is not significantly probative . . . sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249-50 (internal citations om itted). The court’s role in deciding the m erits of a sum m ary judgm ent m otion is to determ ine whether there is a genuine issue for trial, not to determ ine the credibility of the evidence or the truth of the m atter. Id. at 249. As a private school with a religious affiliation with the Religious Society of Friends (“Quakers”) and under the control of the Haddonfield Monthly Meeting (“HMM”), HFS is excluded from the ADA and NJ LAD. The ADA provides: “No individual shall be discrim inated against on the basis of disability in the full and equal enjoym ent of the goods, services, facilities, privileges, advantages, or accom m odations of any place of public 18 accom m odation by any person who owns, leases (or leases to), or operates a place of public accom m odation.” 42 U.S.C. § 12182(a). Title III of the ADA contains an exem ption for “religious organizations or entities controlled by religious organizations.” 42 U.S.C. § 12187. The ADA’s exem ption of religious organizations and religious entities controlled by religious organizations is very broad, encom passing a wide variety of situations. Religious organizations and entities controlled by religious organizations have no obligations under the ADA. Even when a religious organization carries out activities that would otherwise make it a public accom m odation, the religious organization is exem pt from ADA coverage. Thus, if a church itself operates a day care center, a nursing hom e, a private school, or a diocesan school system, the operations of the center, hom e, school, or schools would not be subject to the requirem ents of the ADA or this part. The religious entity would not lose its exem ption merely because the services provided were open to the general public. The test is whether the church or other religious organization operates the public accom m odation, not which individuals receive the public accom m odation’s services. Religious entities that are controlled by religious organizations are also exem pt from the ADA’s requirem ents. Many religious organizations in the United States use lay boards and other secular or corporate m echanisms to operate schools and an array of social services. The use of a lay board or other m echanism does not itself rem ove the ADA’s religious exem ption. Thus, a parochial school, having religious doctrine in its curriculum and sponsored by a religious order, could be exem pt either as a religious organization or as an entity controlled by a religious organization, even if it has a lay board. The test rem ains a factual one—whether the church or other religious organization controls the operations of the school or of the service or whether the school or service is itself a religious organization. 19 28 C.F.R. § Pt. 36, App. C. Sim ilar to the plaintiffs in Doe v. Abington Friends School, 480 F.3d 252, 254 (3d Cir. 20 0 7), Plaintiffs here argue that HFS has strayed from its religious foundation and, therefore, is not eligible for the ADA exemption. Plaintiffs urge the Court to apply the factors set forth by the Third Circuit to determ ine whether an entity has a purpose and character that is prim arily religious so as to be exempt from Title VII’s anti-discrim ination provisions. They are: (1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entity's articles of incorporation or other pertinent docum ents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a form ally religious entity such as a church or synagogue, (5) whether a form ally religious entity participates in the m anagement, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum , to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists. LeBoon v. Lancaster J ewish Cm ty. Ctr. Ass’n, 50 3 F.3d 217, 226 (3d Cir. 20 0 7). The Circuit cautioned, “not all factors will be relevant in all cases, and the weight given each factor m ay vary from case to case.” Id. at 227. Further, “whether an organization is ‘religious’ for purposes of the [Title VII] exem ption cannot be based on its conform ity to some preconceived 20 notion of what a religious organization should do, but m ust be measured with reference to the particular religion identified by the organization.” Id. at 226-27. The Court finds that HFS is controlled by a religious organization, sim ilar to the example provided in the ADA regulations, “a parochial school, having religious doctrine in its curriculum and sponsored by a religious order, could be exem pt either as a religious organization or as an entity controlled by a religious order, even if it has a lay board.” 28 C.F.R. § Pt. 36, App. C. The governing docum ents of HFS establish HFS as a non-profit entity “[t]o establish and m aintain a Friends School in accordance with the principles of the Society of Friends including m eetings for worship in the m anner of Friends” . . . and [t]o prom ote the principles, testim onies and concerns of the Religious Society of Friends.” (Doc. 31, Def. Br. at Ex. 3, HFS Cert. of Inc.) The property leased to HFS by HMM is to be occupied “exclusively as an independent Quaker school, as Quaker schools are defined by the Friends Council on Education.” (Doc. 31, Def. Br. at Ex. 4, Lease Agm t.) These docum ents cede control to HMM, specifically to distribute all assets to HMM upon dissolution of HFS, (Doc. 31, Def. Br. at Ex. 3, HFS Cert. of Inc.), and to term inate the lease agreem ent with HFS 21 but retain the name Haddonfield Friends School if HFS is not operated as a Quaker school, (Doc. 31, Def. Br. at Ex. 4, Lease Agm t.). 2 The Bylaws of HFS state that “the School exists under the spiritual and nurturing care of Haddonfield Monthly Meeting of the Religious Society of Friends, Inc.” (Doc. 31, Def. Br. at Ex. 5, Bylaws.) “The m ission of the School is to provide a strong academ ic program rooted in Quaker values and the belief that there is ‘that of God in everyone.’” (Id.) The Bylaws also m andate that HFS is governed by a Board of Trustees com posed of at least 60 % m embers of the Religious Society of Friends. The circum stance that the New J ersey Association of Independent Schools (“NJ AIS”) required a change in HFS by-laws to m ake the HFS board self-perpetuating for HFS to obtain re-accreditation did not deprive HFS of its religious control. Rather, the change was required to have been approved by HMM. (Doc. 31, Def. Br. at Ex. 4, Addendum to Lease Agm t.) Further, while HMM was deprived of authority to appoint Meeting m embers or other Quakers to the HFS board when their num bers fall below m inim um requirements specified by the by-laws, (Doc. 31, Def. Br. at Ex. 4, Addendum to Lease Agm t.), the board m embership still was required to com ply with the By-Laws as far as m inim um num ber of Quakers, (id.). Further, the Am endm ent to the Lease Agreement between HFS and HMM gave HMM m ore power to term inate should HFS not com port with HMM’s requirements. (Id.) HFS also notes, as to the NJ AIS visit, that the resulting report concluded that HFS m aintained a culture infused with the values and tenets of Quakerism throughout the school day. (Doc. 37, Def. Reply at Ex. 18, NJ AIS Report of HFS Visiting Team , April 17-20 , 20 11, p. 11 (“Teachers address the Quaker testim onies and the Mission of the school, although with a less structured/ academ ic approach, throughout the school day.”); 12 (“Tenets of Quakerism , although not taught in any form al way, are threaded through the Middle School program.”); 26-27.) 2 22 (Id.) 3 The Bylaws further provide for a Quaker Life Com m ittee to handle the School’s Religious Education curriculum and its im plem entation in the classroom . (Id.) That com m ittee is responsible to arrange for second graders and up to attend “a full half-hour Meeting for Worship on a weekly basis instead of the m onthly shortened version.” (Id.) The Board of Trustees of HFS hires the Head of School and develops the budget for HFS. The Clerk of the Board of Trustees of HFS, a member of the HMM, testified, as to Quaker decision-m aking, “decisions are determ ined by the sense of the meeting, which is a form of consensus, but it’s spirit-led. If any one person disagrees with the decision, then the decision won’t be made that day.” (Doc. 31, Def. Br. at Ex. 7, Senopoulus Dep., p. 12.) This m ethod of collaborative decision-m aking is practiced by the Board of Trustees. HFS requires two days per year of professional development for every adm inistrator and every teacher. (Doc. 31, Def. Br. at Ex. 8, Dreese Dep., p. 30 .) “[T]hat professional developm ent could be in any area. It could be During the 20 12-13 school year, 10 of the 18 board mem bers (55%) were Quaker with 7 of them being from Haddonfield Monthly Meeting (“HMM”). (Doc. 31, Def. Br. at Ex. 6.) During the 20 13-14 school year, 6 of the 13 Trustees (46%) were Quaker, with 5 from the HMM. (Id.) For the 20 14-15 term , 8 of the 15 Trustees (53%) were Quaker, with 6 being from HMM. (Id.) 3 23 having to do with Quaker education, Quaker testim onies, it could also . . . be workshops in finance and leadership and adm issions. (Id.) “Teachers who com e in and are not Quaker attend a [two-day] workshop at Pendle Hill called [Educators] New to Quakerism .” (Doc. 31, Def. Br. at Ex. 7, Senopoulus Dep., p. 38; accord Ex. 8, Dreese Dep., p. 30 .) The Head of School, along with other “Heads,” attends a three-day gathering run by the Friends Council on Education twice per year. (Doc. 31, Def. Br. at Ex. 8, Dreese Dep., p. 16-17.) She also regularly has attended workshops and sem inars run by the Friends Council on Education, part of the Religious Society of Friends, at Friends Center. (Id., p. 17-18.) Again, the school has weekly forty-five m inute Meetings for Worship, always attended by the Head of School. (Doc. 31, Def. Br. at Ex. 8, Dreese Dep., p. 60 , 149.) When questioned whether these are m erely forty-five m inutes of silence, the Head of School testified, “The way we do it is one of the m iddle school kids presents a query. A query could be how do you build your com m unity in your classroom or in your school, and it gives kids something to reflect on, and if they are m oved to speak, they can speak to that. Usually they speak to the query. Other kids will just talk about something that’s personal to them. . . . There’s no set program, but there certainly is protocol.” (Id., p. 73-74.) 24 The Head of School also m akes a State of School presentation annually at the Haddonfield Monthly Meeting, where students have perform ed. (Id., p. 61.) Further, students have silence before their meals to allow for reflection. (Id., p. 62.) The Head of School has characterized HFS as a faith-based school: “Quakerism is a spiritual underpinning of the school and all that is included in that, all that is woven in that. It’s a faith that there is that of God in every person, and on that basis, kids are taught to respect, to listen, to em brace diversity.” (Id., p. 67.) The Quaker Testimonies are sim plicity, peace, integrity, which is telling the truth, com m unity, which is shown in their service projects, equality, which I think is very clear with the diversity we have at the school, and stewardship, which is stewardship of the earth, and I think which is very clear in the environmental projects that the school does. (Doc. 31, Def. Br. at Ex. 7, Senopoulus Dep., p. 44.) As explained by the Clerk of the Board of Trustees of HFS, a m ember of the HMM, “Quaker education is a method of teaching. We’re not trying to create Quakers. Quakerism was founded on the acceptance of all religions.” (Doc. 31, Def. Br. at Ex. 7, Senopoulus Dep., p. 44.) The Head of School testified, “[The students] are taught Quaker principles and expected to abide by those Quaker principles at the school.” And those principles are sim plicity, peace, integrity, com m unity, equality, and stewardship. (Doc. 31, Def. Br. at Ex. 8, Dreese Dep., p. 64.) Further, HFS “teaches them about 25 Quakerism. . . . Quakers are pacifistic, so they teach kids in that context . . . skills for conflict resolution, peacefully, . . . . you know, that’s im bedded in every academ ic discussion that they have, whether it’s within the context of social studies or any other areas of hum anities, literature. (Id.) Again, the Head of School testified to her belief, “absolutely,” that HFS is a “religious” school and part of the Religious Society of Friends, (Doc. 31, Def. Br. at Ex. 8, Dreese Dep., p. 62-64): I’ve been working with Friends schools for 25 years, and in every aspect, those testim onies are integrated into every aspect of the curriculum . It is a Friends school in every – every constituency from our m embership at Friends Council [on Education 4 ] and the workshops and the professional developm ent, we have opportunities to em brace, from the board of directors, Meeting members, our relationship with Meeting members and our Quaker life is a huge piece of that school, our outreach – student outreach, com m unity outreach, social action. . . . Those Quaker testim onies are em bedded in every aspect of school life including the academ ics. . . . Quaker schools, Friends schools are religious schools. (Id., p. 62-63.) In addition, even before a written Quaker curriculum was im plem ented at HFS, Quaker beliefs were identified when they appeared within academ ia, whatever they were studying. For exam ple, if m iddle school kids were studying World War II, that was always m eshed with questions like how would you reconcile Quaker testim ony of peace with what was going on in the world. An there would be a question The Friends Council on Education restricts its m embers to schools that are com prised only of religious schools based on the faith and practice of the Religious Society of Friends. (Doc. 31, Def. Br. at Ex. 12.) 4 26 for discussion or debate, questions around building com munity, how do you create a com m unity within your classroom, how do you create that in the school, where does it start, does it start with your fam ily. . . . And everything that the kids write, study, read reflects Quaker testim onies and they are extracted and discussed and focused on. (Id., p. 150 .) Moreover, the Chair of Haddonfield Monthly Meeting testified that HMM takes steps to ensure that HFS includes Quakerism in its curriculum . (Doc. 31, Def. Br. at Ex. 14, Owens Dep., p. 10 .) The status and health of the school is of interest to everyone in the Meeting. To those of us who are particularly dealing with the worshipfulness of the com m unity, the school has particular concern. . . . We have annual reports on the school. We have m embers, I’m one, who are adopted by the school, and we attend worship with the children. Our m embers who are on the school board also let us know how things are going. We ask them . . . . [T]he Head of School com es and speaks to us, as a com m unity. . . . She lets us know what kind of Quaker education is going on, she lets us know how the Testim onies are being taught. (Id.) The Court is satisfied under these circum stances that HFS is a religious organization or controlled by a religious organization. See also Marshall v. Sisters of the Holy Fam ily of Nazareth, 399 F. Supp. 2d 597, 60 5-0 7 (E.D. Pa. 20 0 5); Woods v. Wills, 40 0 F. Supp. 2d 1145, 1159-62 (E.D. Mo. 20 0 5); White v. Denver Sem inary, 157 F. Supp. 2d 1171, 1173-74 (D. Colo. 20 0 1). Counts II and V will therefore be dism issed. 27 The Court has carefully considered Plaintiffs’ argum ents but finds that they either simply disagree with the record evidence produced during discovery or take issue with whether the Quaker teachings are, basically, religious enough. For example, Plaintiffs do not agree that a m om ent of silence, by itself, could be construed as keeping with a “religion.” See Tr. of J an. 14, 20 16 Oral Arg. at p. 36. Yet both the United States Suprem e Court and the Third Circuit Court of Appeals have found that a m om ent of silence in school has religious connotations. See Wallace v. J affree, 472 U.S. 38, 56 (1985) (holding that Alabam a’s m oment of silence statute lacked any secular purpose and therefore was unconstitutional); May v. Cooperm an, 780 F.2d 240 , 242 (3d Cir. 1985) (New J ersey m om ent of silence law likewise violated the Establishm ent Clause). It is not the Court’s role in this m atter to question the beliefs or practices of any religion. While the Court appreciates Plaintiffs’ position, it is not persuaded to deny HFS the religious exem ption provided for by the ADA. 28 Finally, the NJ LAD also exem pts organizations that are 0 perated or m aintained by a bona fide religious or sectarian institution. N.J . Stat. Ann. § 10 :5-5(l). See also Rom eo v. Seton Hall Univ., 875 A.2d 10 43 (N.J . Super. Ct. App. Div. 20 0 5). As such, Counts III and VI will be dism issed. Counts I and IV survive this Motion. An Order will be entered. Dated: March 31, 20 16 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 29