J.L., on behalf of minor child, J.L. v. Board of Education of the Upper Freehold Regional School District, Monmouth County, 9/1/2021, (#181-21)

181-21
New Jersey Commissioner of Education
Final Decision
J.L., on behalf of minor child, J.L.,
Petitioner,
v.
Board of Education of the Upper Freehold
Regional School District, Monmouth County,
Respondent.
Synopsis
Pro se petitioner filed an appeal on behalf of his son, J.L., challenging the respondent Board’s
removal of J.L. from three national honor societies following a finding that J.L. had committed
plagiarism on a homework assignment in October 2020. Petitioner sought immediate reinstatement
via a motion for emergent relief, which was denied in April 2021. The underlying petition remained
pending before the OAL.
The ALJ found, inter alia, that: subsequent to the denial of emergent relief, both parties
participated in a telephone prehearing conference on May 6, 2021, during which the parties
agreed to a schedule for prehearing discovery; that schedule was subsequently adopted pursuant
to N.J.A.C. 1:1-10.4; under the schedule, the respondent was to serve discovery requests on the
petitioner no later than May 7, 2021, and the petitioner was to respond to those requests no later than
May 21, 2021, but failed to do so; in a subsequent telephone conference, petitioner indicated that he
no longer wished to pursue this matter and provide discovery to the Board, but he did not want to
withdraw either; the Board indicated that they would file a motion to dismiss based on petitioner’s
failure to provide discovery. The ALJ concluded that the petitioner effectively abandoned his claim
in this matter; further, petitioner’s refusal to provide discovery impaired the respondent’s ability to
properly prepare and present a defense to the petitioner’s claims, and such conduct justifies dismissal
of the petition due to these procedural deficiencies. Accordingly, the ALJ granted the Board’s
motion to dismiss with prejudice.
Upon review, the Commissioner concurred with the ALJ’s determination that the petition of appeal
should be dismissed due to petitioner’s failure to respond to the Board’s discovery requests.
Accordingly, the Board’s motion to dismiss was granted, and the petition of appeal was dismissed.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.

OAL Dkt. No. EDU 02939-21
Agency Dkt. No. 37-3/21
New Jersey Commissioner of Education
Final Decision
J.L., on behalf of minor child, J.L.,
Petitioner,
v.
Board of Education of the Upper Freehold
Regional School District, Monmouth County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative Law
(OAL) have been reviewed and considered. The parties did not file exceptions.
Upon review, the Commissioner concurs with the Administrative Law Judge that the
petition of appeal should be dismissed due to petitioner’s failure to respond to the Board’s discovery
requests.1 Accordingly, the Board’s motion to dismiss is granted, and the petition of appeal is hereby
dismissed.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 The Commissioner also notes that petitioner’s child turned 18 following the filing of the petition of appeal. Once
the child has reached the age of majority, any claim is his – and not petitioner’s – to pursue. See N.J.A.C. 6A:3-
1.3(a)(2). The record does not include any authorization from petitioner’s child permitting petitioner to pursue this
matter on the child’s behalf.
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A. 18A:6-9.1.
Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within 45 days from the date
of mailing of this decision.
181-21
September 1, 2021
September 1, 2021

New Jersey is an Equal Opportunity Employer
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
GRANTING 	RESPONDENT’S
MOTION TO DISMISS
OAL DKT. NO. EDU 02939-21
AGENCY DKT. NO. 37-3/21
J.L. ON BEHALF OF
MINOR CHILD J.L.,
Petitioner,
v.
BOARD OF EDUCATION OF THE
UPPER FREEHOLD REGIONAL SCHOOL
DISTRICT, MONMOUTH COUNTY,
Respondent.
J.L., petitioner, pro se
Patrick J. Madden, Esq., for respondent (Madden & Madden, P.C., attorneys)
Record Closed: June 29, 2021 	Decided: July 27, 2021
BEFORE DAVID M. FRITCH, ALJ:
STATEMENT OF THE CASE
The petitioner, on behalf of his son, J.L., initiated the present action by filing a
pro se petition of appeal with the State of New Jersey Department of Education,

OAL DKT. NO EDU 02939-21
2
seeking relief on an emergent basis against respondent, the Board of Education of
Upper Freehold Regional School (BOEUFRS), seeking immediate reinstatement of his
son into three national honor societies following the respondent’s removal of J.L. from
these 	honor 	societies 	upon 	finding 	J.L. 	committed 	plagiarism 	on 	a 	homework
assignment he submitted in October 2020.
PROCEDURAL HISTORY
The petition for emergent relief was received by the New Jersey Department of
Education on March 4, 2021. The matter was transferred to the Office of Administrative
Law (OAL), where it was filed on March 30, 2021. N.J.S.A. 52:14F-5(e), (f), and (g) and
N.J.A.C. 1:6A-1 through 18.5. 	The emergent relief motion was heard on April 5, 2021,
and the motion was denied in a recommended order dated April 6, 2021. 	That
recommended 	order 	denying 	emergent 	relief 	was 	adopted 	by 	the 	New 	Jersey
Commissioner of Education in an order dated April 27, 2021.
Following 	the 	denial 	of 	emergent 	relief, 	the 	underlying 	petition 	to 	appeal
BOEUFRS’ 	action 	remained 	pending 	before 	the 	OAL. 	A 	telephone 	prehearing
conference was held with the parties on May 6, 2021, where the parties agreed to a
schedule for prehearing discovery which required the respondent to serve discovery
requests on the petitioner by May 7, 2021, and for the petitioner to provide responses to
the 	respondent’s 	discovery 	requests 	by 	May 	21, 	2021. 	At 	the 	request 	of 	the
respondent, a subsequent telephone prehearing conference was held with the parties
on June 4, 2021, to address discovery issues. 	At that conference, the respondent
indicated that it had not received discovery responses from 	the petitioner. 	The
petitioner did not deny failing to respond to the respondent’s discovery requests and
indicated that he may not wish to proceed further with the matter but did not wish to
withdraw his petition at that time. The respondent indicated that, if the petitioner did not
withdraw his petition, it would be filing the present motion to dismiss the petition. 	On
June 9, 2021, the respondent filed the present motion to dismiss the petition for failure
to respond to discovery. The motion was served on the petitioner via mail and email on
June 9, 2021. 	The petitioner filed opposition to the respondent’s motion on June 23,

OAL DKT. NO EDU 02939-21
3
2021. 	The respondent filed a reply brief in further support of their motion on June 29,
2021, and the record on the motion closed on that date.1
FACTUAL DISCUSSION
A summary of the pertinent facts is undisputed and largely procedural, and I
FIND the following FACTS:
1. 	The 	petitioner’s 	motion 	for 	emergent 	relief 	was 	denied 	on 	April 	6, 	2021.
Following 	denial 	of 	his 	emergent 	relief 	motion, 	both 	parties 	to 	this 	matter
participated in a telephone prehearing conference with the undersigned on May 6,
2021.
2. 	During the telephone prehearing conference on May 6, 2021, the parties agreed
to a schedule for prehearing discovery which was subsequently established by the
undersigned pursuant to N.J.A.C. 1:1-10.4.
a. 	Under that schedule, the respondent was to serve discovery requests on
the petitioner no later than May 7, 2021, and the petitioner was to respond to
those requests no later than May 21, 2021. (Madden Cert. at ¶ 3.)
b. 	Consistent with this schedule, the respondent served discovery requests
on the petitioner on May 7, 2021. (Id. at ¶ 4. See also id. at Ex. 2.)
3. 	The respondent did not receive a response to its discovery requests from the
petitioner. 	(Id. at ¶ 5.) 	Counsel for the respondent contacted the petitioner on May
25, 2021, to address the petitioner’s failure to respond to the outstanding discovery
requests. (Id. at ¶ 6. See also id. at Ex. 3.)
4. 	The respondent is not delinquent in any of its discovery obligations. (Id. at ¶ 15.)
1 Although, pursuant to the provisions of N.J.A.C. 1:1-12.2(b), the petitioner’s response was due no later
than ten days after receipt of the moving papers, which would have been June 21, 2021, the respondent
did not object to receipt of the petitioner’s untimely response to their motion, and filed a reply brief in
further support of their motion on June 29, 2021.

OAL DKT. NO EDU 02939-21
4
5. 	On May 25, 2021, the respondent contacted the undersigned to request a
telephone conference to address the discovery issues pursuant to N.J.A.C. 1:1-
10.4(d). (Id. at Ex. 1.)
6. 	On June 4, 2021, a telephonic status conference was held with the parties. 	(Id.
at ¶ 10.) During that conference, the petitioner did not contest the claim that he had
not responded to the respondent’s discovery requests nor did he file any timely
objections to the respondent’s discovery requests with the OAL pursuant to N.J.A.C.
1:1-10.4(d). 	The petitioner indicated that he did not wish to further pursue this
matter and provide discovery responses to the respondent, however, he did not
want to withdraw the matter either. 	(See Pet. Resp. (stating “at this time there is
really no point in moving forward with this matter”).) 	On that conference, the
respondent indicated that it wanted to file a motion to dismiss the petition due to the
petitioner’s failure to respond to discovery. (Madden Cert. at ¶ 11.)
LEGAL DISCUSSION
Discovery requests must be responded to within fifteen days of notice and
service, and discovery must be completed no later than ten days before the first
scheduled evidentiary hearing or by such date ordered by the judge. N.J.A.C. 1:1-10.4.
Here, the respondent served discovery requests on the petitioner on May 7, 2021.
(Madden Cert. at ¶ 4. 	See also id. at Ex. 2.) 	It is factually undisputed that these
requests were not responded to in a timely manner, which is the basis for the present
motion. 	While the petitioner, in his response brief, attempts to characterize the
respondent’s discovery requests as “a mountain of discovery which had nothing at all to
do with proving or denying whether [the respondent was] right or wrong” (Pet. Resp.
Br.), it is undisputed that the petitioner did not file any timely objections to the
respondent’s discovery requests within ten days of receiving them as required by
N.J.A.C. 1:1-10.4(d). 	To raise such vague objections in their response to the present
motion is untimely and justifies denying the petitioner’s present objections to the
respondent’s discovery requests. Id.

OAL DKT. NO EDU 02939-21
5
An ALJ may dismiss a petition for a party’s failure to comply with procedural
requirements under N.J.A.C. 1:1-14.14(a)(1). 	J.G. v. Paramus Bd. of Educ., 2008 U.S.
Dist. LEXIS 30030, *9 (D.N.J. April 11, 2008). 	While dismissal should be imposed
sparingly in the case of discovery rule violations, it is nonetheless appropriate where a
party’s “ability to defend his case is seriously impaired.” 	Zaccardi v. Becker, 88 N.J.
245, 253 (1982). 	In his petition seeking emergent relief on this matter, the petitioner
made a number of factual assertions including a claim that there were other students in
J.L.’s class who committed offenses “much more severe and worse” but were allowed
to join the school’s honor societies. 	(Id.) 	The petition further asserted that the
respondent’s actions placed J.L.’s “total academic future in peril,” as J.L. was seeking
“to go to an Ivy League School or other prestigious university next year” and that if the
respondent’s actions were not reversed, the outcome would “affect that as well as
future scholarships, internships, jobs, etc.” (Pet. Statement of Facts to Accompany Pro
Se Petition of Appeal. 	See also Madden Cert. at ¶ 18.) 	The petition also assures that
the petitioner “can supply documentation to back up” the claims made in the petition.
(Id.) 	Among the discovery sought by the respondent was information regarding the
petitioner’s college admissions and scholarships applied to. (Id.) In the absence of the
petitioner’s discovery responses, the respondent claims that it “cannot adequately
address the factual bases of the [petitioner’s p]etition.” 	(Id. at ¶ 19.) 	The respondent
further avers that it is “prejudiced by [the p]etitioner’s failure to respond to discovery.
(Id. at ¶ 17.)
As the underlying charges of plagiarism and violation of the school’s Code of
Conduct and Honor Code are not factually disputed in this matter (see April 6, 2021,
Order Dismissing Petition for Emergent Relief at 5), the crux of the petitioner’s case is
that 	the 	respondent’s 	actions 	in 	response 	to 	these 	violations 	were 	“inconsistent,
discriminatory, and FAR TOO EXCESSIVE.” 	(Pet. Statement of Facts to Accompany
Pro Se Petition of Appeal (emphasis in original).) 	The discovery being sought in this
matter is directly relevant to the petitioner’s claims and the respondent’s ability to form a
defense to those claims. 	It is uncontested that the petitioner failed to answer the
respondent’s 	discovery requests 	and, 	based 	upon the petitioner’s representations
during the June 4, 2021, telephonic status conference, and in his subsequent response

OAL DKT. NO EDU 02939-21
6
to the respondent’s motion, it is clear that the petitioner’s failure to respond to the
respondent’s discovery requests is not a mere oversight or neglect. 	Savoia v. F.W.
Woolworth Co., 88 N.J. Super. 153, 160 (App. Div. 1965). 	(See Pet. Response Br.
(acknowledging failure to respond to “a mountain of discovery” from respondent and
that “a dismissal may be warranted” but seeking dismissal of matter without prejudice).)
I CONCLUDE, therefore, that the petitioner has effectively abandoned his claim in this
matter. 	Such dilatory conduct from the party who initiated the claim as an emergent
matter constitutes behavior that “thwarts persistent efforts to obtain the necessary facts”
and justifies a claim’s dismissal with prejudice. 	Abtrax Pharmaceuticals, Inc. v. Elkins-
Sinn, Inc., 139 N.J. 499, 515-16 (1995). 	I FURTHER CONCLUDE that the petitioner’s
refusal to provide discovery in this matter impairs the respondent’s ability to properly
prepare and present a defense to the petitioner’s claims, and such conduct justifies
dismissal of the petition due to these procedural deficiencies. 	J.G., 2008 U.S. Dist.
LEXIS 30030 at *11. 	See also H.F. obo Minor Child D.F. v. Bd. of Educ. of Teaneck,
Bergen 	County, 	EDU 	20234-15, 	Initial 	Decision, 	(September 	28, 	2016)
http://lawlibrary.rutgers.edu/oal/search.html.
ORDER
Based on the foregoing, the respondent’s motion to dismiss the petition is
GRANTED WITH PREJUDICE.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may be adopted, modified or rejected by the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and
unless such time limit is otherwise extended, this recommended decision shall become
a final decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO EDU 02939-21
7
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER
OF THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES
AND DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey
08625-0500, marked “Attention: 	Exceptions.” 	A copy of any exceptions must be sent
to the judge and to the other parties.
July 27, 2021
DATE 	DAVID M. FRITCH, ALJ
Date Received at Agency: 	July 27, 2021
Date Mailed to Parties: 	July 27, 2021
/dw