Sula v. Rowan University

MOTION to Dismiss for Lack of Jurisdiction pursuant to Fed.R.Civ.P. 12

D.N.J.April 5, 2017

1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendant, Rowan University By: Leonard S. Spinelli Deputy Attorney General NJ Bar ID #028042009 Ph: (609) 777-4889 leonard.spinelli@dol.lps.state.nj.us UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE MONICA SULA, Plaintiff, v. ROWAN UNIVERSITY, Defendant. Civil Action No.: 1:17-cv-00453-RBK-JS NOTICE OF MOTION THE COMPLAINT IN LIEU OF AN ANSWER PURSUANT TO FED.R.CIV.P. 12(b)(1) AND/OR 12(B)(2) To: Clerk of the Court Benjamin Friedman, Esq. Law Offices of Benjamin Friedman Attorneys for Plaintiff, Monica Sula One Greentree Centre 10000 Lincoln Drive East, Suite 201 Marlton, New Jersey 08503 Case 1:17-cv-00453-RBK-JS Document 4 Filed 04/05/17 Page 1 of 2 PageID: 15 2 PLEASE TAKE NOTICE that on Monday, May 1, 2017, or as soon thereafter as counsel may be heard, the undersigned, Christopher Porrino, Attorney General of New Jersey, by Leonard S. Spinelli, Deputy Attorney General, on behalf of Defendant, Rowan University shall move before the Honorable Robert B. Kugler, U.S.D.J., in the United States District Courthouse, Camden, New Jersey, for an Order dismissing Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(1). PLEASE TAKE NOTICE that the undersigned shall rely on the attached brief and all pleadings and papers on file in this matter. It is respectfully requested that the Court rule upon the moving papers submitted, without requiring appearance of counsel, pursuant to Fed.R.Civ.P. 78. A proposed form of order is attached hereto. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: /s/ Leonard S. Spinelli Leonard S. Spinelli Deputy Attorney General DATED: April 5, 2017 Case 1:17-cv-00453-RBK-JS Document 4 Filed 04/05/17 Page 2 of 2 PageID: 16 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendant, Rowan University By: Leonard S. Spinelli Deputy Attorney General NJ Bar ID #028042009 Ph: (609) 633-8399 leonard.spinelli@dol.lps.state.nj.us UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - CAMDEN VICINAGE MONICA SULA, Plaintiff, v. ROWAN UNIVERSITY, Defendants. Civil Action No.: 1:17-cv-00453-RBK-JS BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT IN LIEU OF AN ANSWER PURSUANT TO FED.R.CIV.P. 12(b)(1) AND/OR 12(b)(2) On the brief: Leonard S. Spinelli Deputy Attorney General N.J. Bar ID #: 02804-2009 Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 1 of 20 PageID: 17 ii TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 2 LEGAL ARGUMENT ............................................................................................... 2 I. ROWAN UNIVERSITY IS AN ARM OF THE STATE ENTITLED TO ELEVENTH AMENDMENT SOVEREIGN IMMUNITY. ..................... 2 II. PLAINTIFF’S CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT AND THE “SELF-CARE” PROVISION OF THE FAMILY AND MEDICAL LEAVE ACT IS PRECLUDED BY SOVEREIGN IMMUNITY. ....................................................................10 III. THIS COURT CAN NO LONGER EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S STATE LAW CLAIMS UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION. .................14 CONCLUSION ........................................................................................................ 15 Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 2 of 20 PageID: 18 iii TABLE OF AUTHORITIES Banks v. Court of Common Pleas FJD, 342 Fed.Appx. 818 (3d Cir. 2009) ........... 11 Benn v. First Judicial Dist. of Pa., 426 F.3d 233, (3d Cir. 2005) .............................. 5 Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) ... 10, 11 Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524 (3d Cir. 2007) .................. 4 Chittister v. Dep’t of Cmt. And Econ. Dev., 226 F.3d 223 (3d Cir. 2000) ............. 11 Coleman v. Ct. of Appeals of Md., 566 U.S. 30 (2012) ..................................... 11,12 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ................................................................................................... 3 Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296 (3d Cir. 2008) ................................. 4 Davis v. Wells Fargo, 824 F.3d 333 (3d Cir. 2016) .............................................. 3, 4 Edelman v. Jordan, 415 U.S. 651 (1974) ................................................................... 3 Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989)....................................................................... 4, 5, 6 Frank Briscoe Co. v. Rutgers, the State University, 130 N.J.Super. 493 (Law Div. 1974) ......................................................................... 7 Hans v. Louisiana, 134 U.S. 1 (1890) ........................................................................ 3 Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir. 1987) .................... 9 M.A. ex rel. E.S. v. State -Operated Sch. Dist., 344 F.3d 335 (3d Cir. 2003) ............................................................................... 10, 11 Maliandi v. Montclair State Univ., 845 F.3d 77 (3d Cir. 2016) ....3,4, 5, 6, 7, 8, 9,10 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) ................ 4 N.J. Educ. Facilities Auth., 125 N.J. 66 (1991) ......................................................... 7 Nannay v. Rowan College, 101 F.Supp. 2d 272 (D.N.J. 2000) ................................. 6 O’Connell v. State, 171 N.J. 484 (2002) ................................................................... 7 Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 3 of 20 PageID: 19 iv Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984) ........... 3, 14 Ravaor v. Regents of the Univ. of Minn., 534 U.S. 533 (2002) .............................. 14 Rehberg v. Glassboro State College, 745 F.Supp. 1113 (E.D. Pa. 1990) ................. 6 Royster v. N.J. State Police., 227 N.J. 482 (2017) ............................................ 11, 12 Royster v. N.J. State Police, 439 N.J.Super. 554 (App. Div. 2015) .................. 11, 12 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ........................................ 3 State of N.J. D.E.P. v. Gloucester EMS, 923 F.Supp. 651 (D.N.J. 1995) ................. 6 Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181 (3d Cir. 2006) ......................... 3 CONSTITUTION U.S. Const. Amed. XI ................................................................................................ 4 STATUTES 29 U.S.C. § 2612 ................................................................................................ 11, 12 43 N.J.Reg. § 1625(a) ................................................................................................ 8 N.J.S.A. § 10:5 ......................................................................................................... 14 N.J.S.A. § 18A:3B ............................................................................................. 7, 8, 9 N.J.S.A. § 18A:64 .......................................................................................... 5, 6, 7, 8 N.J.S.A. § 18A:64 ...................................................................................................... 9 N.J.S.A. 18A:64M ...................................................................................................... 6 N.J.S.A. § 18A:66 ...................................................................................................... 8 N.J.S.A. § 52:14B ...................................................................................................... 7 N.J.S.A. § 59:1 ........................................................................................................... 7 N.J.S.A. § 59:13 ................................................................................................. 7, 8, 9 Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 4 of 20 PageID: 20 v RULES Fed.R.Civ.P. 12(b)(1) ............................................................................................. 2, 3 Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 5 of 20 PageID: 21 1 PRELIMINARY STATEMENT This action is brought by Plaintiff Monica L. Sula (“Plaintiff”), a former employee of Defendant Rowan University (“Rowan”), for unlawful retaliation under the Americans with Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”), and the New Jersey Law Against Discrimination (“LAD”). Rowan is an arm of the State, entitled to sovereign immunity under the Eleventh Amendment of the U.S. Constitution. As such, Rowan is immune from suit under the “self-care” provision of the FMLA and from employment claims under the ADA. Moreover, as an arm of the State Rowan in immune from suit in federal court under the LAD. For all of these reasons, the Complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 6 of 20 PageID: 22 2 STATEMENT OF FACTS1 Plaintiff is a former employee of Rowan, employed by Rowan’s Geriatric Medical Department since December 19, 2013. See Certification of Leonard S. Spinelli, DAG in support of Defendant’s Motion to Dismiss in Lieu of an Answer (“Spinelli Cert.”), dated April 4, 2017, Ex. A (hereinafter, the “Complaint”), ¶ 5. In or about July 2016, Plaintiff was diagnosed with a medical condition known as uterine fibroids. See Complaint, ¶ 6. Subsequently, Plaintiff took an approved medical leave pursuant to the FMLA from about September 7, 2016, until about October 24, 2016. See Complaint, ¶¶ 8-9. On or about October 31, 2016, Plaintiff’s employment with Rowan was terminated. See Complaint, ¶ 10. Plaintiff further alleges that accusations made against Plaintiff served as a pretext for termination, and that the true impetus for Plaintiff’s termination was unlawful retaliation against Plaintiff for taking leave, and a “desire to terminate a disable employee for fear that she would not be dependable in the future.” See Complaint, ¶ 11. LEGAL ARGUMENT I. ROWAN UNIVERSITY IS AN ARM OF THE STATE ENTITLED TO ELEVENTH AMENDMENT SOVEREIGN IMMUNITY. 1 For purposes of the instant Motion to Dismiss only, Rowan assumes (without admitting or conceding), the truth of the allegations set forth in Plaintiff’s Complaint. In the event that Rowan’s Motion is denied, Rowan withdraws any and all assumptions set forth herein, and admits only those facts and allegations consistent with Rowan’s Answer and responses produced in discovery. Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 7 of 20 PageID: 23 3 In order for a federal court to be vested with subject matter jurisdiction, the Plaintiff must have Article III standing, or the claims shall be dismissed. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016); Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). The Federal Courts’ jurisdiction to hear claims against the State and arms of the State is restricted by the Eleventh Amendment – which provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State. U.S.Const. Amend. XI. Courts have interpreted the Eleventh Amendment to bar suits against a State by its own citizens, as well as citizens of other states. See Hans v. Louisianna, 134 U.S. 1, 10-11 (1890); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 97-98 (1984); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-670 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). The Supreme Court has also extended the Eleventh Amendment to protect “arms of the State” from suit – “entities that by their very nature, are so intertwined with the State that any suit against them renders the State the “real, substantial party in interest.” Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016); see also Edelman v. Jordan, 415 U.S. 651, 663, (1974); Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 8 of 20 PageID: 24 4 see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). When determining whether a state-affiliated entity is an arm of the State for Eleventh Amendment immunity purposes, courts employ a three-step balancing test, which weighs the following factors: (1) funding: whether the state treasury is legally responsible for an adverse judgment; (2) status under state law: whether the entity is treated as an arm of the State under state case law and statutes; and (3) autonomy: whether the entity retains significant autonomy from state control – known as the Fitchik test. See Maliandi, supra 845 F.3d at 84 (citing Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989); Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 546 (3d Cir. 2007)). All three factors are weighted evenly, and balanced to determine whether an entity amounts to an arm of the state. Ibid.; see also Cooper v. Se. Pa. Transp. Auth., 548 F.3d 296, 298 (3d Cir. 2008); Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239–40 (3d Cir. 2005); Fitchik, 873 F.2d at 664. Though the law was previously unsettled in this circuit as to the “arm of the State” status of State colleges, the question was recently addressed by the Third Circuit in Maliandi. In Maliandi the court conducted an in-depth factual analysis of the Fitchik factors in order to determine whether Montclair State University (“Montclair”) was an arm of the State for purposes of sovereign immunity Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 9 of 20 PageID: 25 5 protection. See Maliandi, supra 845 F.3d at 86. In determining that Montclair indeed was an arm of the State, the Maliandi court balanced each of the three Fitchik factors and determined that the “status under state law” and “autonomy” factors favored finding Montclair was an arm of the State, despite the “funding” factor supporting a contrary determination. Ibid. First, the Maliandi court determined that the “status under state law” balancing factor supported an “arm of the State” finding because Montclair had never invoked its authority to incorporate, “cannot sue and be sued in its own name, is immune from state taxes, can exercise the power of eminent domain, and generally is subject to New Jersey administrative procedure and civil service law.” Id.at 96. Next, the court turned to the autonomy factor, and concluded that Montclair was not autonomous, and relied heavily on the statutory structure that governs the affairs of most State colleges and universities in New Jersey. Maliandi, 845 F.3d at 97–98 (citing N.J.S.A. § 18A:64-1, et seq.). Despite other Fitchik factors supporting a contrary finding, such as the funding factor, ultimately the Maliandi court concluded that those factors that did support immunity were sufficient to carry the analysis and the finding that immunity extended to State colleges. Ibid. In this case, Rowan University is also an “arm of the State” for purposes of the sovereign immunity analysis. Similar to Montclair, Rowan is a Public Research University accredited by the Middle States Commission on Higher Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 10 of 20 PageID: 26 6 Education. See Office of the Secretary of Higher Education, NJ College & University Directory by Sector, NJ Colleges and Universities (March 24, 2017), http://www.nj.gov/highereducation/colleges/schools_sector.shtml. Rowan University operates under the laws of the State of New Jersey, and its Board of Trustees is appointed pursuant to N.J.S.A. 18A:64 et seq. See N.J.S.A. 18A:64M- 2(h) (“[Rowan] is a State university […] currently operating pursuant to the authority granted to State colleges by [N.J.S.A.18A:64-1 et seq].”) Like Montclair, under the Fitchik test two of the three factors – status under state law and autonomy – tip in favor of finding that Rowan is an arm of the state. Indeed, this district has previously come to the same conclusion. See Nannay v. Rowan College, 101 F.Supp. 2d 272, 284 (D.N.J. 2000); see also Rehberg v. Glassboro State College, 745 F.Supp.1113, 1116 (E.D. Pa. 1990) (finding Glassboro State College (now known as Rowan University) an arm of the State for Eleventh Amended immunity purposes); c.f. State of N.J. D.E.P. v. Gloucester EMS, 923 F.Supp. 651 (D.N.J. 1995) (where district court held that Trenton State College and Glasssboro State College (now known as The College of New Jersey and Rowan University, respectively) were not entitled to immunity based solely on the “funding factor,” but which cases were decided prior to jurisprudence holding that equal weight shall be accorded to all three Fitchik factors when determining arm of the State status). Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 11 of 20 PageID: 27 7 The “status under state law” analysis conducted by the Maliandi court applies equally to Rowan and supports the conclusion that Rowan is entitled to Eleventh Amendment immunity. First, a review of the New Jersey Secretary of State’s business records search results reflects that Rowan has not elected to incorporate as a separate entity. See Spinelli Cert., ¶ 3; c.f. Maliandi, supra 845 F.3d at 93-95. Second, “State colleges like [Montclair and Rowan] enjoy no explicit grant of [authority to sue]” and cannot be sued in their own right absent such a grant. Maliandi, 845 F.3d at 94 (citing Frank Briscoe Co. v. Rutgers, the State University, 130 N.J.Super. 493 (Law Div. 1974); N.J.S.A. §§59:1-3, :13-2, and N.J.S.A. § 18A:3B-6(h) (where Tort Claims Act and Contractual Liability Act, which generally do not apply to entities that can be sued and be sued, are applicable to State colleges.). Moreover, state colleges incorporated under the same statutory scheme as Montclair and Rowan are immune from state taxes and from municipal and county ordinances, can exercise eminent domain, and “are subject to the strictures of the New Jersey Administrative Procedure Act, [N.J.S.A. § 52:14B-1 to -31]” and New Jersey’s civil service laws. Ibid. at 96 (citing O’Connell v. State, 171 N.J. 484 (2002); N.J. Educ. Facilities Auth., 125 N.J. 66, 74 (1991) (supporting immunity from taxes and regulations); N.J.S.A. §§ 18A:64- 6(l) (supporting the authority to exercise eminent domain), 18A:3B-6(f) (where State colleges are subject to administrative law when carrying our disciplinary or Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 12 of 20 PageID: 28 8 employment proceedings), 18:64-6(i) (subjecting State colleges to New Jersey’s civil service laws for a significant subset of employees), 18A:66-170 (where employees of State colleges benefit from state health care and pension programs). Next, the “autonomy” factor also favors finding that Rowan is an arm of the State immune from suit. In Maliandi, the court relied on the statutory scheme governing State colleges and universities in order to conclude that Montclair was not autonomous, and thus favoring immunity; the court noted: The Governor looms large in the affairs of New Jersey state colleges. All members of the Board of Trustees are appointed by the Governor and confirmed by the state senate for six-year terms, from which they are removable for cause. [N.J.S.A. § 18A:64-3]. In addition, the Governor is statutorily designated as the public “employer” of all college employees, which vests him with the sole power to collectively bargain on their behalf. [N.J.S.A. § 18A:64-12.1]. [T]he Secretary of Higher Education, a member of member of the Governor's cabinet, has authority to issue master plans for higher education in the State, license and accredit the institutions, impose ethics rules for them, approve certain new academic programs, review budget requests, and issue regulations relating to licensure, outside employment, tuition, personnel, tenure, and retirement programs. Id. §§ 18A:3B-14, -15; see also 43 N.J. Reg. *98 § 1625(a). The Secretary may also, “with the concurrence of the Governor,” visit a school at any time to review its financials and compliance with all appropriate laws and regulations and may issue subpoenas to investigate suspected wrongdoing. N.J. Stat. Ann. § 18A:3B–34. The colleges also are required to spend their budgets in accordance with the general provisions of the state budget and appropriations, and may be subject to audit at any time to ensure such conformance. Id. § 18A:64–6(f). New Jersey law further constrains state colleges like MSU by subjecting them to the Administrative Procedure Act, the State Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 13 of 20 PageID: 29 9 College Contracts Law, and the civil service laws.23 Id. §§ 18A:3B– 6(f), :64-6(h), (k), (w), (x), :64-52 to - 93. In addition, they must comply with certain limitations on their ability to make deposits in financial institutions absent security from the institution, id. § 18A:64- 18.5; restrict their government relations and lobbying activities according to statutory bounds, id. § 18A:3B-54; and have their contractual obligations tied to the state coffers under the Contractual Liability Act, id. § 59:13-1 to -10; Stony Brook Constr. Co., 2008 N.J. Super. Unpub. LEXIS, at *38-39. These colleges are also subject to significant reporting requirements and rules for internal governance. For example, they must hire an independent auditor and prepare a publicly available audit, prepare an annual report on their general operations, prepare a long-range facilities plan that includes a description of the source of non-state funds, and present the Governor and legislature with an annual budget report. N.J. Stat. Ann. §§ 18A:3B–6(l), - 35, -39, -48 to -51, :64-6(d). Moreover, each college's board of trustees is required to hold a September meeting every year, and the presidents of each college (who are, themselves, selected by the gubernatorial-appointed board, id. § 18A:64–6(g)) are required by law to sit on the Presidents' Council. Id. §§ 18A:3B-7, :64-4. Maliandi, 845 F.3d at 97–98. Here, the statutory scheme, and therefore the autonomy analysis, is equally applicable to Rowan. Though the Maliandi decision does not necessarily support the blanketed conclusion that all State colleges are subject to sovereign immunity, the court does suggest that it would take some exigent circumstances to tip the balance away from finding a State college immune. By way of example, in Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir. 1987), the Third Circuit declined to apply Eleventh Amendment immunity to Rutgers. The Maliandi court distinguished Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 14 of 20 PageID: 30 10 Rutgers from other State colleges such as Montclair, noting that Rutgers’ corporate seal and independent corporate status were expressly preserved from its time as a private institution. Maliandi, supra 845 F.3d at 93-94 (citing N.J.S.A. §§ 18A:65- 2, -11). Rutgers, unlike Rowan or Montclair, is also not subject to New Jersey civil service laws or administrative proceeding requirements. Ibid. at 95. Lastly, Rutgers enjoys a significant amount of autonomy beyond that of Montclair or Rowan. Ibid. (“In short, the Governor and state legislature had little power over the inner workings of Rutgers aside from a small number of appointments and overall spending parameters for state funds.”) Conversely, in instances in which these or other factors are not applicable to tip the balance in favor of finding against immunity, such as the case of Rowan or Montclair, a finding of immunity is appropriate. For these reasons, this Court should find that the Eleventh Amendment extends to Rowan University, as an arm of the State of New Jersey. II. PLAINTIFF’S CLAIMS UNDER THE “SELF-CARE” PROVISION OF THE FAMILY AND MEDICAL LEAVE ACT AND THE AMERICANS WITH DISABILITIES ACT IS PRECLUDED BY SOVEREIGN IMMUNITY. The federal courts recognize only three exceptions to Eleventh Amendment immunity: “(i) abrogation by an Act of Congress, (ii) waiver by state consent to suit; and (iii) suits against individual state officials for prospective relief to remedy an ongoing violation of federal law.” M.A. ex rel. E.S. v. State -Operated Sch. Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 15 of 20 PageID: 31 11 Dist., 344 F.3d 335, 345 (3d Cir. 2003). None of these exceptions are applicable in this case. A. Abrogation by an Act of Congress. The United States Supreme Court has previously determined that, when enacting the “self-care” provision of the FMLA, 29 U.S.C. § 2612(a)(1)(D), Congress failed to validly abrogate States’ sovereign immunity. See Coleman v. Ct. of Appeals of Md., 566 U.S. 30 (2012) (plurality opinion); Chittister v. Dep’t of Cmt. And Econ. Dev., 226 F.3d 223, 229 (3d Cir. 2000); Banks v. Court of Common Pleas FJD, 342 Fed.Appx. 818, 821 (3d Cir. 2009). Similarly, the Court has held that the Eleventh Amendment bars employment-related suits against the states under the ADA. See Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001); see also Royster v. N.J. State Police., 227 N.J. 482 (2017) (modifying Royster v. N.J. State Police, 439 N.J.Super. 554 (App. Div. 2015); Koslow v. Pennsylvania, 302 F.3d 161, 165 (3d Cir. 2002). Under the FMLA, an employee may be entitled to take up to 12 weeks unpaid leave in a year for one of the following purposes: (A) care of a newborn child; (B) adoption of a child; (C) care of a family member with a serious medical condition; (D) the employee's own medical condition; or (E) service member family leave. 29 U.S.C. § 2612(a)(1). The Coleman Court referred to Subsection D, which provides for leave “[b]ecause of a serious health condition that makes the Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 16 of 20 PageID: 32 12 employee unable to perform the functions of the position of such employee,” as the “self-care” provision of the FMLA. Coleman, supra, 566 U.S. at 32. Here, the allegations in the Complaint plainly demonstrate that Plaintiff's FMLA claims arise only under the self-care provision of FMLA. Plaintiff alleges that she requested and received approval for medical leave from September 7, 2016 through October 24, 2016, in connection with the diagnosis and treatment of uterine fibroids. See Complaint, ¶¶ 6-9. Plaintiff further alleges that Rowan took adverse employment action against her on October 31, 2016, by terminating her employment upon returning from medical leave. See Complaint ¶ 9. Thus, the Complaint avers that Plaintiff's use of medical leave in September 2016 is a protected activity under the FMLA, but only under the “self-care” provision. See 29 U.S.C. §2612(a)(1)(D). Similarly, in Garrett, supra, the United States Supreme Court held that Congress does not have the constitutional authority to abrogate sovereign immunity in federal court as to employment claims under the ADA. See Garrett, supra 531 U.S. at 374. Also, in Royster, supra the New Jersey State Appellate Division acknowledged the holding in Garrett limiting Plaintiff’s ability to bring employment based ADA claims against the State or arms of the State. See Royster, supra 439 N.J.Super. at 571 (modified by Royster v. N.J. State Police, 227 N.J. 482). Here, Plaintiff argues that her uterine fibroid condition qualified her as disabled under the ADA, and as a result Rowan created a hostile work Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 17 of 20 PageID: 33 13 environment, failed to provide reasonable accommodation to Plaintiff, and terminated her, unlawfully. See Complaint, ¶¶ 21-22. All of these claims arose during the course and in connection with her employment as a LPN at Rowan’s Geriatric Medical Department. See Complaint ¶ 5. Based on the foregoing, Plaintiff’s FMLA and ADA claims cannot survive dismissal pursuant to the Eleventh Amendment under a theory that Congress abrogated Rowan’s sovereign immunity. B. Waiver by Consent to Suit or Suits Against State Officials. The second and third exemptions to immunity, (ii) waiver by consent to suit and (iii) suits against state official for prospective relief to remedy an ongoing wrong, are also not applicable under either the FMLA or ADA claims. First, in Royster, the Appellate Division noted that the State retained its sovereign immunity against ADA claims. See Royster, supra 439 N.J.Super. at 571 (modified by Royster v. N.J. State Police, 227 N.J. 482). Similarly, Plaintiff cannot point to any waiver or consent to suit under the “self-care” provisions of the FMLA. Lastly, Plaintiff’s Complaint does not name any individual state officials for prospective relief to remedy an ongoing violation of federal law.” M.A., supra 344 F.3d at 345. For these reasons, Plaintiff’s FMLA and ADA claims must be dismissed. Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 18 of 20 PageID: 34 14 III. ROWAN IS IMMUNE FROM SUIT IN FEDERAL COURT FOR PLAINTIFF’S STATE LAW CLAIMS UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION. In addition to her federal claims, Plaintiff asserts a claim against Rowan under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the “NJLAD”). Because Rowan, as an arm of the State, is immune from suit on Plaintiff's federal law claims, this Court lacks jurisdiction to hear and decide Plaintiff's pendent state law claim. States and arms of the State are immune from the adjudication of pendent state law claims in federal court. See Ravaor v. Regents of the Univ. of Minn., 534 U.S. 533, 540-41 (2002) (“[T]he Eleventh Amendment bars the adjudication of pendent state law claims against non- consenting state defendants in federal court.”); see also Pennhurst State School and Hospital, 465 U.S. at 97-98 (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.”) Accordingly, because Rowan is entitled to Eleventh Amendment immunity, all claims for relief set forth in the Complaint must be dismissed. Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 19 of 20 PageID: 35 15 CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that this Court dismiss Plaintiff’s Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1), lack of subject matter jurisdiction, and/or 12(b)(2), lack of personal jurisdiction, with prejudice. Respectfully submitted, CHRISTOPER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: /s/ Leonard S. Spinelli Leonard S. Spinelli Deputy Attorney General Attorney for Defendant, Rowan University Dated: April 3, 2017 Case 1:17-cv-00453-RBK-JS Document 4-1 Filed 04/05/17 Page 20 of 20 PageID: 36 1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendant, Rowan University By: Leonard S. Spinelli Deputy Attorney General NJ Bar ID #028042009 Ph: (609) 633-8399 leonard.spinelli@dol.lps.state.nj.us UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - CAMDEN VICINAGE MONICA SULA, Plaintiff, v. ROWAN UNIVERSITY, Defendants. Civil Action No.: 1:17-cv-00453-RBK-JS CERTIFICATION OF LEONARD S. SPINELLI, DAG IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT IN LIEU OF AN ANSWER PURSUANT TO FED.R.CIV.P. 12(b)(1) AND/OR 12(b)(2) I, Leonard S. Spinelli, hereby certify as follows: 1. I am Deputy Attorney General employed by the Office of the Attorney General of New Jersey, and I am fully familiar with facts contained herein. Case 1:17-cv-00453-RBK-JS Document 4-2 Filed 04/05/17 Page 1 of 2 PageID: 37 2. On or about January 24, 2017, Plaintiff Monica Sula commenced this action by filing a Complaint in the United States District Court, in and for the District of New Jersey, Camden Vicinage (the “Complaint”). A true and correct copy of the Complaint is attached hereto as Exhibit A. 3. On or about April 4, 2017, I conducted a Business Name Search of the records of the Secretary of State of New Jersey for business records with the name “Rowan” associated with the Defendant Rowan University (“Rowan”), which confirmed that Rowan is not a separately incorporated entity under the laws of the State of New Jersey. A true and correct copy of the Business Name Search results are attached hereto as Exhibit B. I certify that the foregoing statements made by me are true and correct to the best of my knowledge, information and belief. I understanding that if any of the foregoing statements are willfully false, that I am subject to punishment. /s/ Leonard S. Spinelli Leonard S. Spinelli Deputy Attorney General Attorney for Defendant, Rowan University Dated: April 4, 2017 Case 1:17-cv-00453-RBK-JS Document 4-2 Filed 04/05/17 Page 2 of 2 PageID: 38 3 Exhibit A Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 1 of 8 PageID: 39 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 2 of 8 PageID: 40 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 3 of 8 PageID: 41 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 4 of 8 PageID: 42 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 5 of 8 PageID: 43 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 6 of 8 PageID: 44 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 7 of 8 PageID: 45 Case 1:17-cv-00453-RBK-JS Document 4-3 Filed 04/05/17 Page 8 of 8 PageID: 46 4 Exhibit B Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 1 of 13 PageID: 47 Menu x Cancel (/DOR/BusinessNameSearch/) Business Name Search Required Fields [ * ] Search Criteria Business Name * Rowan Use "%" as a wildcard Search → Show 10 entries Business Name Entity Id Type ROWAN & ASSOCIATES, LLC 0600148675 LLC (Domestic Limited Liability Company) ROWAN & ROWAN, INC. 0100267946 DP (Domestic Profit Corporation) ROWAN A TAXI LLC 0450111509 LLC (Domestic Limited Liability Company) ROWAN ADVISORS, LLC 0600142744 FLC (Foreign Limited Liability Company) ROWAN ASSOCIATES 0600029855 LP (Limited Partnership) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 2 of 13 PageID: 48 Division of Revenue & Enterprise Services PO (Post Office) Box 450 Trenton, NJ (New Jersey) 086460303 Support Division of Revenue & Enterprise Services Web Site (http://www.state.nj.us/treasury/revenue/) Search Help (/DOR/BusinessNameSearch/Home/Help) Contact Us (https://www.njportal.com/ErrorPages/Contact.aspx) Polices & Procedures Privacy Policy (https://www.njportal.com/ErrorPages/Privacy.aspx) Accessibility Policy (https://www.njportal.com/ErrorPages/Accessibility.aspx) Security Policy (https://www.njportal.com/ErrorPages/Security.aspx) Legal Statements & Disclaimers (https://www.njportal.com/ErrorPages/Disclaimer.aspx) Showing 1 to 10 of 55 entries « Previous Next » Business Name Entity Id Type ROWAN AUDIO LIMITED LIABILITY COMPANY 0400419722 LLC (Domestic Limited Liability Company) ROWAN BUILDING CO. INC. 7747382000 DP (Domestic Profit Corporation) ROWAN C. PEARCE, JR., M.D. AND ASSOCIATES, P.A. 0000003034 PA (Professional Corporation) ROWAN CAPITAL MANAGEMENT, L.P. 0600026915 LF (Foreign Limited Partnership) ROWAN COLLEGE AT BURLINGTON COUNTY SUPPORT STAFF ASSOCIATION 0100068414 NP (Domestic NonProfit Corporation) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 3 of 13 PageID: 49 Menu x Cancel (/DOR/BusinessNameSearch/) Business Name Search Required Fields [ * ] Search Criteria Business Name * Rowan Use "%" as a wildcard Search → Show 10 entries Business Name Entity Id Type ROWAN COLLEGE AT GLOUCESTER COUNTY ADMINISTRATORS ASSOCIATION 0100908640 NP (Domestic NonProfit Corporation) ROWAN COLLEGE AT GLOUCESTER COUNTY DIRECTORS'ASSOCIATION 0101037191 NP (Domestic NonProfit Corporation) ROWAN COLLEGE AT GLOUCESTER COUNTY EDUCATION ASSOCIATION SUPPORT STAFF GROUP, INC. 0100893306 NP (Domestic NonProfit Corporation) ROWAN COLLEGE AT GLOUCESTER COUNTY FACULTY ASSOCIATION 0100962786 NP (Domestic NonProfit Corporation) ROWAN COLLEGE AT GLOUCESTER COUNTY TECHNICAL/ACADEMIS PROFESSIONAL STAFF ASSOCATION 0100965850 NP (Domestic NonProfit Corporation) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 4 of 13 PageID: 50 Division of Revenue & Enterprise Services PO (Post Office) Box 450 Trenton, NJ (New Jersey) 086460303 Support Division of Revenue & Enterprise Services Web Site (http://www.state.nj.us/treasury/revenue/) Search Help (/DOR/BusinessNameSearch/Home/Help) Contact Us (https://www.njportal.com/ErrorPages/Contact.aspx) Polices & Procedures Privacy Policy (https://www.njportal.com/ErrorPages/Privacy.aspx) Accessibility Policy (https://www.njportal.com/ErrorPages/Accessibility.aspx) Security Policy (https://www.njportal.com/ErrorPages/Security.aspx) Legal Statements & Disclaimers (https://www.njportal.com/ErrorPages/Disclaimer.aspx) Showing 11 to 20 of 55 entries « Previous Next » Business Name Entity Id Type ROWAN COLLEGE BOOK STORE, INC. 0900023031 NP (Domestic NonProfit Corporation) ROWAN COLLEGE FOUNDATION AT GLOUCESTER COUNTY 0900023257 NP (Domestic NonProfit Corporation) ROWAN COLLEGE INSTITUTE FOR URBAN AND PUBLIC POLICY, INC. 0100638479 NP (Domestic NonProfit Corporation) ROWAN COMPUTING LLC 0400603682 LLC (Domestic Limited Liability Company) ROWAN CONSTRUCTION CORPORATION 0400215773 FR (Foreign ForProfit Corporation) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 5 of 13 PageID: 51 Menu x Cancel (/DOR/BusinessNameSearch/) Business Name Search Required Fields [ * ] Search Criteria Business Name * Rowan Use "%" as a wildcard Search → Show 10 entries Business Name Entity Id Type ROWAN COURIER, L.L.C. 0600119160 LLC (Domestic Limited Liability Company) ROWAN DEVELOPMENT CORPORATION 0100287234 DP (Domestic Profit Corporation) ROWAN DIGITAL LLC 0400296859 LLC (Domestic Limited Liability Company) ROWAN ENTERPRISES, INC. 0100629859 DP (Domestic Profit Corporation) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 6 of 13 PageID: 52 Division of Revenue & Enterprise Services PO (Post Office) Box 450 Trenton, NJ (New Jersey) 086460303 Support Division of Revenue & Enterprise Services Web Site (http://www.state.nj.us/treasury/revenue/) Search Help (/DOR/BusinessNameSearch/Home/Help) Contact Us (https://www.njportal.com/ErrorPages/Contact.aspx) Polices & Procedures Privacy Policy (https://www.njportal.com/ErrorPages/Privacy.aspx) Accessibility Policy (https://www.njportal.com/ErrorPages/Accessibility.aspx) Security Policy (https://www.njportal.com/ErrorPages/Security.aspx) Legal Statements & Disclaimers (https://www.njportal.com/ErrorPages/Disclaimer.aspx) Showing 21 to 30 of 55 entries « Previous Next » Business Name Entity Id Type ROWAN FAMILY ENTERPRISES, LLC 0600316077 LLC (Domestic Limited Liability Company) ROWAN HOTEL, LLC 0600312569 LLC (Domestic Limited Liability Company) ROWAN INNOVATION VENTURE FUND, LLC 0600413110 LLC (Domestic Limited Liability Company) ROWAN INTERNATIONAL, INC. 0100174277 DP (Domestic Profit Corporation) ROWAN JOHNSON ASSOCIATES, INC. 0100127927 DP (Domestic Profit Corporation) ROWAN LANDSCAPING & HARDSCAPING LLC 0400467819 LLC (Domestic Limited Liability Company) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 7 of 13 PageID: 53 Menu x Cancel (/DOR/BusinessNameSearch/) Business Name Search Required Fields [ * ] Search Criteria Business Name * Rowan Use "%" as a wildcard Search → Show 10 entries Business Name Entity Id Type ROWAN REALTY, INC. 7747390200 DP (Domestic Profit Corporation) ROWAN REALTY, L.L.C. 0600069879 LLC (Domestic Limited Liability Company) ROWAN SNOW OWLS LIMITED LIABILITY COMPANY 0400547611 LLC (Domestic Limited Liability Company) ROWAN TECHNOLOGIES, INC. 0100899203 FR (Foreign ForProfit Corporation) ROWAN TOWER, INCORPORATED 0900037445 NP (Domestic NonProfit Corporation) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 8 of 13 PageID: 54 Division of Revenue & Enterprise Services PO (Post Office) Box 450 Trenton, NJ (New Jersey) 086460303 Support Division of Revenue & Enterprise Services Web Site (http://www.state.nj.us/treasury/revenue/) Search Help (/DOR/BusinessNameSearch/Home/Help) Contact Us (https://www.njportal.com/ErrorPages/Contact.aspx) Polices & Procedures Privacy Policy (https://www.njportal.com/ErrorPages/Privacy.aspx) Accessibility Policy (https://www.njportal.com/ErrorPages/Accessibility.aspx) Security Policy (https://www.njportal.com/ErrorPages/Security.aspx) Legal Statements & Disclaimers (https://www.njportal.com/ErrorPages/Disclaimer.aspx) Showing 31 to 40 of 55 entries « Previous Next » Business Name Entity Id Type ROWAN TRADE AND MARKETING INCORPORATED 0400291178 DP (Domestic Profit Corporation) ROWAN TRUCKING CORP. 0100097155 DP (Domestic Profit Corporation) ROWAN UNIVERSITY FOUNDATION, INC. 0100201292 NP (Domestic NonProfit Corporation) ROWAN UNIVERSITY RUGBY BOOSTERS, INC. 0101030614 NP (Domestic NonProfit Corporation) ROWAN'S CREEK CONSTRUCTION, LLC 0600111665 LLC (Domestic Limited Liability Company) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 9 of 13 PageID: 55 Menu x Cancel (/DOR/BusinessNameSearch/) Business Name Search Required Fields [ * ] Search Criteria Business Name * Rowan Use "%" as a wildcard Search → Show 10 entries Business Name Entity Id Type ROWAN'S EXTERMINATING AND CLEANING SERVICE, INC. 7747390100 DP (Domestic Profit Corporation) ROWAN'S HEATING & COOLING LLC 0400257893 LLC (Domestic Limited Liability Company) ROWAN'S RENOVATION & RESTORATION, L.L.C. 0600049229 LLC (Domestic Limited Liability Company) ROWAN, INC. 0100363269 DP (Domestic Profit Corporation) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 10 of 13 PageID: 56 Division of Revenue & Enterprise Services PO (Post Office) Box 450 Trenton, NJ (New Jersey) 086460303 Support Division of Revenue & Enterprise Services Web Site (http://www.state.nj.us/treasury/revenue/) Search Help (/DOR/BusinessNameSearch/Home/Help) Contact Us (https://www.njportal.com/ErrorPages/Contact.aspx) Polices & Procedures Privacy Policy (https://www.njportal.com/ErrorPages/Privacy.aspx) Accessibility Policy (https://www.njportal.com/ErrorPages/Accessibility.aspx) Security Policy (https://www.njportal.com/ErrorPages/Security.aspx) Legal Statements & Disclaimers (https://www.njportal.com/ErrorPages/Disclaimer.aspx) Showing 41 to 50 of 55 entries « Previous Next » Business Name Entity Id Type ROWANBERRY CONSULTING LLC 0400397178 LLC (Domestic Limited Liability Company) ROWAND CONSULTING SERVICES CORP 0400458411 DP (Domestic Profit Corporation) ROWAND CONTRACTING, LLC 0400388963 LLC (Domestic Limited Liability Company) ROWAND ELECTRIC LIMITED LIABILITY COMPANY 0400231123 LLC (Domestic Limited Liability Company) ROWAND FOODS LLC 0400109935 LLC (Domestic Limited Liability Company) ROWAND PIKE URBAN RENEWAL, LLC 0600390310 LLC (Domestic Limited Liability Company) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 11 of 13 PageID: 57 Menu x Cancel (/DOR/BusinessNameSearch/) Business Name Search Required Fields [ * ] Search Criteria Business Name * Rowan Use "%" as a wildcard Search → Show 10 entries Business Name Entity Id Type ROWAND'S EXPRESS INC 0100456483 DP (Domestic Profit Corporation) ROWANOAK CORPORATION 0100571666 DP (Domestic Profit Corporation) ROWANOAK RENOVATIONS LIMITED LIABILITY COMPANY 0400130483 LLC (Domestic Limited Liability Company) ROWANTREE ESTATES (FORMERLY TOWACO INDUSTRIAL PARK, INC.) 7747390500 DP (Domestic Profit Corporation) THE ROWAN COLLECTION, LLC 0600083563 LLC (Domestic Limited Liability Company) Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 12 of 13 PageID: 58 Division of Revenue & Enterprise Services PO (Post Office) Box 450 Trenton, NJ (New Jersey) 086460303 Support Division of Revenue & Enterprise Services Web Site (http://www.state.nj.us/treasury/revenue/) Search Help (/DOR/BusinessNameSearch/Home/Help) Contact Us (https://www.njportal.com/ErrorPages/Contact.aspx) Polices & Procedures Privacy Policy (https://www.njportal.com/ErrorPages/Privacy.aspx) Accessibility Policy (https://www.njportal.com/ErrorPages/Accessibility.aspx) Security Policy (https://www.njportal.com/ErrorPages/Security.aspx) Legal Statements & Disclaimers (https://www.njportal.com/ErrorPages/Disclaimer.aspx) Showing 51 to 55 of 55 entries « Previous Next »Case 1:17-cv-00453-RBK-JS Document 4-4 Filed 04/05/17 Page 13 of 13 PageID: 59 1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendant, Rowan University By: Leonard S. Spinelli Deputy Attorney General NJ Bar ID #028042009 Ph: (609) 777-4889 leonard.spinelli@dol.lps.state.nj.us UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - CAMDEN VICINAGE MONICA SULA, Plaintiff, v. ROWAN UNIVERSITY, Defendant. Civil Action No.: 1:17-cv-00453-RBK-JS PROPOSED ORDER This matter having been opened to the Court on application of Christopher S. Porrino, Attorney General of New Jersey, by Leonard S. Spinelli, Deputy Attorney General, appearing on behalf of Defendant, Rowan University, for an Order dismissing Plaintiff’s Complaint, and the Court having considered the moving papers and for good cause shown, Case 1:17-cv-00453-RBK-JS Document 4-5 Filed 04/05/17 Page 1 of 2 PageID: 60 2 It is on this ____________ day of _________, 2017: ORDERED that the Complaint filed by Plaintiff Monica Sula is hereby DISMISSED as to Defendant Rowan University in its entirety, with prejudice; IT IS FURTHER ORDERED that a copy of this Order shall be served upon all counsel of record within 7 days of receipt hereof. By:______________________________ Hon. Robert B. Kugler, U.S.D.J. _____ Opposed _____ Unopposed Case 1:17-cv-00453-RBK-JS Document 4-5 Filed 04/05/17 Page 2 of 2 PageID: 61 1 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendant, Rowan University By: Leonard S. Spinelli Deputy Attorney General NJ Bar ID #028042009 Ph: (609) 633-8399 leonard.spinelli@dol.lps.state.nj.us UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - CAMDEN VICINAGE MONICA SULA, Plaintiff, v. ROWAN UNIVERSITY, Defendants. Civil Action No.: 1:17-cv-00453-RBK-JS CERTIFICATION OF SERVICE I, Leonard S. Spinelli, hereby certify as follows: 1. I am Deputy Attorney General employed by the Office of the Attorney General of New Jersey, and I am fully familiar with facts contained herein. Case 1:17-cv-00453-RBK-JS Document 4-6 Filed 04/05/17 Page 1 of 2 PageID: 62 2. On April 5, 2017, I caused to be served the foregoing Notice of Defendant’s Motion to Dismiss the Complaint in Lieu of an Answer Pursuant to Fed.R.Civ.P. 12(b)(1) and/or 12(b)(2), Brief in support thereof, Certification of Leonard S. Spinelli, DAG in support, a Proposed Order and this Certification of Service upon the following parties’ counsel in this matter via ECF Filing and UPS Regular Mail: Benjamin Friedman, Esq. Law Offices of Benjamin Friedman Attorney for Plaintiff, Monica Sula One Greentree Centre 10000 Lincoln Drive East, Suite 201 Marlton, New Jersey 08503 I certify that the foregoing statements made by me are true and correct to the best of my knowledge, information and belief. I understanding that if any of the foregoing statements are willfully false, that I am subject to punishment. /s/ Leonard S. Spinelli Leonard S. Spinelli Deputy Attorney General Attorney for Defendant, Rowan University Dated: April 4, 2017 Case 1:17-cv-00453-RBK-JS Document 4-6 Filed 04/05/17 Page 2 of 2 PageID: 63