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December 8, 2011
EDDIE AND SHARON LESTER, ET AL.PLAINTIFFSv.GENE PERCUDANI, ET AL. DEFENDANTS PABLO ACRE, ET AL.,PLAINTIFFSv.CHASE MANHATTAN MORTGAGE CORP., ET AL. DEFENDANTS
(Judge Conner)
Presently before the court are cross-motions (Case No. 3:01-CV-1182, Docs. 515, 517; Case No. 1:04-CV-0832, Docs. 383, 385) to enforce a settlement agreement entered into between plaintiffs and the Percudani defendants, Gene Percudani, Chapel Creek Homes, Inc., Raintree Homes, Inc., Homes by Vintage, Inc., Y-Rent, Inc., and Chapel Creek Mortgage Banker, Inc. (hereinafter "defendants"). Plaintiffs move this court to order defendants to provide full and final payment of $300,000, in compliance with the terms of the settlement agreement. (See Case No. 3:01-CV-1182, Docs. 515, 516; Case No. 1:04-CV-0832, Docs. 383, 384). Defendants move the court to: 1) deny plaintiffs' motion to enforce settlement agreement; and 2) enforce the terms of the settlement agreement as written, wherein payment of the $300,000 settlement fund shall be remitted to plaintiffs' counsel to cover attorney's fees and costs, that no part of the settlement fund shall be paid to plaintiffs, and that such fund shall not be provided until plaintiffs' counsel obtains full and complete approval of plaintiffs and a general release of claims from all plaintiffs. (See Case No. 3:01-CV-1182, Docs. 517, 520; Case No. 1:04-CV-0832, Docs. 385, 388). For the reasons that follow, the court will grant plaintiffs' motion to enforce settlement agreement and deny defendants' cross-motion to enforce settlement agreement.
I. Background and Procedural History
Lead plaintiffs Eddie and Sharon Lester, on behalf of a plaintiff class, commenced a class action against real estate developer Gene Percudani and multiple defendants on June 28, 2001. (See Case No. 3:01-CV-1182, Doc. 1). After dismissal of the class action, on April 16, 2004, plaintiffs Pablo and Ivette Acre along with over 150 pursued a civil action against the defendants and Chase Manhattan Mortgage Corporation, William K. Spaner, and Dominick P. Stranieri. (Case No. 1:04-CV-0832, Doc. 1). On November 3, 2008, the court directed that the disputes be resolved through mediation. (See Case No. 3:01-CV-1182, Doc. 455; Case No. 1:04-CV-0832, Doc. 312). Concluding in February 2009, the mediation resulted in an oral settlement agreement between the parties, in which defendants agreed to pay plaintiffs a sum of $300,000 in return for a release of all claims by plaintiffs against defendants. On February 20, 2009, the court issued an order (Case No. 3:01-CV-1182, Doc. 474; Case No. 1:04-CV-0832, Doc. 331) staying the case and closing it for statistical purposes only in light of the agreement. After the February 20, 2009 Order, plaintiffs' counsel began obtaining written releases from plaintiffs regarding the settlement of claims against defendants. During this time, the parties exchanged drafts of a written settlement agreement. After considerable delay, plaintiffs provided a final draft of the settlement agreement to defendants' counsel on June 5, 2010. Unsuccessful in securing an executed written settlement agreement from defendants' counsel, plaintiffs filed a motion (Case No. 3:01-CV-1182, Doc. 506; Case No. 1:04-CV-0832, Doc. 374) to enforce settlement on August 6, 2010. Plaintiffs withdrew this motion when defendants executed the written settlement agreement on September 3, 2010. (Case No. 3:01-CV-1182, Doc. 511; Case No. 1:04-CV-0832, Doc. 380)
The written settlement agreement provides for a general release of all claims by plaintiffs against defendants, as provided in the first paragraph:
The parties jointly prepare this written settlement agreement stating the settlement terms in full ("Settlement Agreement"). This Settlement Agreement is executed by the Raintree Defendants counsel and by counsel for Plaintiffs. This Settlement agreement shall also include that plaintiffs' counsel provide an executed release, approved by these parties, to be signed by each Plaintiff, or in the case of plaintiff's [sic] who filed bankruptcy, an order approving settlement signed by the bankruptcy court judge, where applicable. Each release will provide a general release of claims against the Raintree Defendants and incorporate by reference the terms of this settlement agreement. (Case No. 3:01-CV-1182, Doc. 515, Ex. C; Case No. 1:04-CV-0832, Doc. 383, Ex. C).
The second paragraph of the settlement states the terms of payment, as conditioned upon the release of claims by plaintiffs against defendants:
Raintree Defendants shall pay $300,000.00 to plaintiffs' counsel at the same time that said releases or bankruptcy orders are provided to Gene Percudani, which represents payment of attorneys fees and costs towards plaintiffs' counsels' fees and costs associated with the prosecution of cases of Lester, et al. V. Percudani, et al., case no. 3:01-CV-1182 and Acre, et al. v. Chase, et al., case no. 1:04-CV-0832 and Crespo: James v. Chase, et al., case no. 2008-0752. (Id.)
Plaintiffs contend that they have provided all required releases and bankruptcy orders to defendants, in accordance with the terms of the settlement agreement. (See Case No. 3:01-CV-1182, Doc. 515, Ex. D; Doc. 516, at 2; Case No. 1:04-CV-0832, Doc. 383 Ex. D; Doc. 384, at 2). Claiming full compliance with the terms of the agreement in obtaining all releases and bankruptcy orders, plaintiffs allege that defendants have refused to tender the $300,000 in settlement funds to plaintiffs' counsel in bad faith and thus in violation of the terms of the settlement agreement. (Id.) In response, defendants argue that they are not obligated to provide the settlement funds until defense counsel is provided with copies of releases which have been approved by defendants, indicating that no part of the settlement funds will be remitted to plaintiffs. (Case No. 3:01-CV-1182, Doc. 517 ¶ 26; Case No. 1:04-CV-0832, Doc. 385 ¶ 26).
On June 9, 2011, plaintiffs filed a motion (Case No. 3:01-CV-1182, Doc. 515; Case No. 1:04-CV-0832, Doc. 383) to enforce settlement agreement. Defendants filed a cross-motion (Case No. 3:01-CV-1182, Doc. 517; Case No. 1:04-CV-0832, Doc. 385) to enforce settlement agreement on June 10, 2011, in opposition to plaintiff's motion. The motions have been fully briefed and are now ripe for disposition.
II. Standard of Review*fn1
Settlement agreements are governed by the ordinary principles of contract law. In re Cendant Corp. Prides Litig., 233 F.3d 188, 193 (3d Cir. 2000). In Pennsylvania, the formation of a settlement agreement, as with any contract, requires that "the minds of the parties should meet upon all terms, as well as the subject matter, of the [agreement]." Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999). "An agreement to settle a lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence of the court, and even in the absence of a writing." Green v. John H. Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1970).
The parties are bound by the obligations of a valid settlement agreement duly entered into by counsel with the authority of their clients. Pugh v. Super Fresh Food Markets, Inc., 640 F. Supp. 1306, 1307 (E.D. Pa. 1993). If the parties agree on the essential terms of an agreement and intend them to be binding, "a contract is formed even though they intend to adopt a formal document with additional terms at a later date." Capek v. Mendelson, 821 F. Supp. 351, 357 (E.D. Pa. 1993). The parties must mutually assent to the terms and conditions of the settlement agreement to create a valid agreement. Pugh, 640 F. Supp. at 1308 (citing Main Line Theatres, Inc. v. Paramount Film Distrib. Corp., 298 F.2d 801, 803 (3d Cir. 1962)).
Motions to enforce settlement agreements are treated like summary judgment motions, and thus the moving party must show that it is entitled to relief. See Leonard v. Univ. of Delaware, 204 F. Supp.2d 784, 786 (D. Del. 2002) (citing Tiernan v. Devoe, 923 F.2d 1024, 1031-32 (3d Cir. 1991)).
III. Discussion
The gravamen of the parties dispute relates to the terms of payment. Defendants argue that the settlement agreement expressly provides for payment of $300,000 to plaintiffs' counsel only and that no part of the settlement payment may inure to plaintiffs themselves. (Case No. 3:01-CV-1182, Doc. 517 ¶¶ 8-10; Case No. 1:04-CV-0832, Doc. 385 ¶¶ 8-10). Plaintiffs assert that there was never any agreement to restrict all settlement funds to plaintiffs' counsel, and the written agreement does not inhibit the payment of settlement monies to plaintiffs. (Case No. 3:01-CV-1182, Doc. 519 ¶ 8; Case No. 1:04-CV-1182, Doc. 387 ¶ 8). In light of counsels' fee agreements, plaintiffs argue that restricting payment of settlement funds to plaintiffs' counsel would violate Pennsylvania Rule of Professional Conduct 1.5. (Case No. 3:01-CV-1182, Doc. 515 ¶ 10; Case No. 1:04-CV-0832, Doc. 383 ¶ 10). The dispute over the interpretation of the settlement agreement arises from language in the general release of claims form that plaintiffs' counsel provided to plaintiffs. Defendants allege that the parties' counsel agreed to a form release of claims*fn2 but that plaintiffs' counsel distributed to their clients release forms containing additional language to which defendants' counsel did not agree. (Case No. 1:04-CV-1182, Doc. 517 ¶ 11-13; Case No. 3:01-CV-0832, Doc. 385 ¶ 11-13). The additional language states the following: "In return for this release I will be provided a pro rata share of the $300,000.00 settlement. My attorneys' fees and other case costs will be deducted out of that pro rata share of the $300,000 settlement." (Id., Ex. C). Defendants claim that the additional language in the release form contradicts the written settlement agreement to which both parties assented. (Id. at ¶ 14).
A. The Settlement Agreement
On February 10, 2009, the parties reached an oral settlement agreement, the essential terms of which were that defendants would pay plaintiffs' counsel a sum of $300,000, once plaintiffs provided copies of all releases or bankruptcy court orders approving settlement and release of claims. The parties reduced their oral settlement to a writing signed by both parties on September 3, 2010.
Pursuant to principles of contract law, the court looks to the writing itself to ascertain the parties' intent. Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 613 (3d Cir. 1995); Samuel Rappaport Family P'ship v. Meridian Bank, 657 A.2d 17, 21 (Pa. Super. Ct. 1995) ('It is firmly settled that the intent of the parties to a written contract is contained in the writing itself.' (quoting Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa. Super. Ct. 1993))). When the writing is clear on its face, the court will not consider extrinsic or parole evidence regarding the parties' intent, such as, in this case, what occurred during settlement discussions or prior drafts of the ultimate written agreement. See Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1010 & n.9 (3d Cir. 1980). "Only where the writing is ambiguous may the factfinder examine all the relevant extrinsic evidence to determine the parties' mutual intent." Duquesne Light Co., 66 F.3d at 613 (citing Allegheny Int'l, Inc. V. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1424 (3d Cir. 1994)).
Accordingly, the court must first determine wether the settlement agreement is clear or ambiguous. The pertinent language of the settlement agreement in dispute, is as follows: "Raintree Defendants shall pay $300,000.00 to plaintiffs' counsel at the same time that said releases or bankruptcy orders are provided to Gene Percudani, which represents payment of attorneys fees and costs towards plaintiffs' counsels' fees and costs associated with the prosecution of cases. . . ." (Case No. 3:01-CV-1182, Doc. 515, Ex. C; Case No. 1:04-CV-0832, Doc. 383, Ex. C). Importantly, the settlement agreement provides that "[t]he parties jointly prepare this written settlement agreement stating the settlement terms in full." (Id.) Thus, no assertion can be made that the parties intended the written settlement agreement to represent only part of the settlement entered into, with other provisions to be reduced to writing at a later date.
The court finds the disputed language to be clear on its face. The language does not exclude or in any way prohibit payment of some amount of the settlement monies to plaintiffs. The written settlement agreement language clearly provides that no additional monies above the $300,000 will be provided for attorney's fees and costs, but the settlement agreement language in no way limits whether or how plaintiffs' counsel distributes those funds. The court finds that defendants are bound by the settlement agreement according to the terms reduced to writing and that the terms do not prevent distribution of settlement funds to plaintiffs.
B. The Release of Claims
Defendants dispute the form release drafted by plaintiffs' counsel and signed by plaintiffs. Where the scope of a release is disputed, courts have held that release clauses are not necessarily essential terms of settlement agreements. See Mastroni- Muckler v. Allstate Ins. Co., 976 A.2d 510, 522 (Pa. Super. Ct. 2009) (citing Nicholas v. Wyndham Int'l, Inc., No. 2001-147, 2007 WL 4811566, at *4 (D.V.I. Nov. 20, 2007)). Courts routinely enforce settlement agreements even where the precise wording of a release has not been finalized. Id.; see also Allapattah Servs. v. Exxon Corp., Nos. 90-0986 and 05-21338, 2007 U.S. Dist. LEXIS 71379, at *18 (S.D. Fla. Sept. 26, 2007) ("The release is not an essential term of the agreement as it merely reflects the binding and conclusive effect of the agreement in the claims process."); Thomas v. Delta Family-Care Disability & Survivorship Plan, No. 05-74900-DT, 2007 WL 1806201, at *1 (E.D. Mich. June 21, 2007) ("The only 'essential term' in the present case was the amount defendant was to pay, as the release is a standard term of all settlement agreements . . . .") (applying Michigan law).
In the instant matter, the September 3, 2010, settlement agreement stated that plaintiffs' counsel would provide an "executed release," approved by both parties, to be signed by each plaintiff. Plaintiffs's counsel avers that he provided drafts of the release language to defendants, to which defendants' counsel failed to respond until they received the releases and bankruptcy orders. (See Case No. 3:01-CV-1182, Doc. 519 ¶ 11; Case No. 1:04-CV-0832, Doc. 387 ¶ 11).
The releases signed by plaintiffs include all of the release language the defendants requested. (See Case No. 3:01-CV-1182, Doc. 515, Ex. D; 517, Ex. B; Case No. 1:04-CV-0832, Doc. 383, Ex. D; Doc. 385, Ex. B). The additional language added by plaintiffs' counsel-two sentences regarding the distribution of settlement funds-in no way limits or alters the scope of the general release signed by each plaintiff or obtained through bankruptcy orders. Moreover, as explained above, the language does not violate the express written payment terms of the settlement agreement assented to by the parties.
The disagreement over approved release drafts will not render the settlement agreement unenforceable. The court will not permit the defendants to avoid compliance with the settlement agreement on the basis of the two additional sentences in the executed releases that neither violate the payment term of the express written agreement, nor alter the scope of the general release provided. Therefore, the court finds that plaintiffs have complied with the terms of the settlement agreement.
C. Miscellaneous Issues
Defendants assert that plaintiffs violated the express terms of the settlement agreement when plaintiffs' counsel asked the individual parties to sign releases during the time when negotiations of the settlement agreement were ongoing. (See Case No. 3:01-CV-1182, Doc. 520, at 7-8; Case No. 1:04-CV-0832, Doc. 388, at 7-8). This argument is unavailing. Plaintiffs' counsel initiated the process of obtaining signed releases from plaintiffs after the oral settlement agreement had been reached on February 10, 2009. (See Case No. 3:01-CV-1182, Doc. 520, Exs. A-C; Case No. 1:04-CV-0832, Doc. 388, Exs. A-C) (noting date each plaintiff signed the written release). It is of no moment that a written agreement was not yet executed. Green, 436 F.2d at 390 (agreement to settle is binding even in absence of a writing); see also Capek, 821 F. Supp. at 357 Next, defendants aver that plaintiffs' counsel lacked the proper written authority from plaintiffs to negotiate settlement. (Case No. 3:01-CV-1182, Doc. 520, at 14; Case No. 1:04-CV-0832, Doc. 388, at 14). In Pennsylvania, an attorney must have express authority from a client to settle a case. Archbishop v. Karlak, 450 Pa. 535, 540 (1973). "The necessity of special authority . . . not only denies the existence of implied authority, but also of apparent authority of an attorney to bind his client to such obligations by virtue of his office." Id. at 540-41 (quoting Starling, Exr. v. West Erie Ave. Bldg. & Loan Ass'n, 333 Pa. 124, 127 (1939)).
The basis for defendants' assertion that plaintiffs' counsel lacked authority from his clients to enter the settlement agreement is defendants' argument that no portion of the settlement funds would be distributed to plaintiffs, which would conflict with the written fee agreement between plaintiffs and plaintiffs' counsel. (Case No. 3:01-CV-1182, Doc. 520, at 14-15; Case No. 1:04-CV-0832, Doc. 388, at 14-15). The court has rejected defendants' contention that the written settlement agreement prohibits plaintiffs from receiving any of the settlement monies. Thus, the argument fails. There is no evidence that plaintiffs' counsel lacked authority to enter the settlement. To the contrary, the signed releases indicate that all plaintiffs were aware of the settlement offer and gave counsel the appropriate authority to enter into such agreement.
Defendants also assert that plaintiffs' counsel has yet to provide releases or bankruptcy court orders for all plaintiffs, and therefore the terms of the settlement agreement have not been satisfied for the transfer of the $300,000 to plaintiffs' counsel. (Case No. 3:01-CV-1182, Doc. 518 ¶ 5, Ex. A; Doc. 520, at 8, Ex. 8; Case No. 1:04-CV-0832, Doc. 386 ¶ 5, Ex. A; 388, at 8, Ex. E). A comparison of defendants list of missing bankruptcy orders with the releases and bankruptcy orders provided to the court by plaintiffs establishes that all releases are present. (Case No. 3:01-CV-1182, Doc. 515, Ex. D; Doc. 518, Ex. A; Doc. 520, at 8, Ex. 8; Case No. 1:04-CV-0832, Doc. 383, Ex. D; Doc. 386, Ex. A; 388, at 8, Ex. E). The allegedly missing releases have been provided to defendants. (Case No. 3:01-CV-1182, Doc. 518 ¶ 5; Doc. 522 ¶ 4; Case No. 1:04-CV-0832, Doc. 386 ¶ 5; Doc. 390 ¶ 4). Plaintiffs have complied with the terms of the settlement agreement and defendants must do the same.*fn3
D. Attorney's Fees
Finally, plaintiffs move the court to award plaintiffs attorneys' fees and costs incurred from their motion to enforce settlement due to defendants' alleged bad faith attempt to avoid settlement payment obligations. (Case No. 3:01-CV-1182, Doc. 516, at 7; Case No. 1:04-CV-0832, Doc. 384, at 7). In response, defendants request attorney's fees and costs for their motion, asserting instead that plaintiffs acted in bad faith based on their alleged violations of the settlement agreement and willful delay of the pending matter. (Case No. 3:01-CV-1182, Doc. 520, at 16; Case No. 1:04-CV-0832, Doc. 388, at 16).
Generally, attorneys' fees and costs are not recoverable, and unless specifically permitted by statute are awarded only in extraordinary cases. Hobbs v. American Investors Mgmt., Inc., 576 F.2d 29, 35 n.18 (3d Cir. 1978). However, a court has the power to assess attorneys' fees when the losing party has acted "in bad faith, vexatiously, wantonly, or for oppressive reasons." Id.
Plaintiffs have not met their burden of showing bad faith because they have only shown delay on the part of defendants. Mere delay is insufficient to show bad faith. See Walther & Cie v. U.S. Fidelity & Guar. Co., 397 F. Supp. 937, 946 (M.D. Pa. 1975). Defendants' failure to turn over settlement funds in a timely manner, causing plaintiff to seek enforcement of the settlement, does not amount to bad faith. Similarly, defendants' contention that plaintiffs never intended to use the approved releases is without merit and therefore does not constitute bad faith. Accordingly, an award of attorneys' fees and costs to either party would be inappropriate in this situation.
III. Conclusion
The court finds that plaintiffs are entitled to full and final payment of $300,000 by defendants as provided in the written settlement agreement between the parties. The court will therefore grant plaintiffs' motion (Case No. 3:01-CV-1182, Doc. 515; Case No. 1:04-CV-0832, Doc. 383) to enforce settlement agreement and deny defendants' cross-motion (Case No. 3:01-CV-1182, Doc. 517; Case No. 1:04-CV-0832, Doc. 385) to enforce settlement agreement.
CHRISTOPHER C. CONNER United States District Judge
PABLO and IVETTE ACRE, et al. Plaintiffs v. : CHASE MANHATTAN MORTGAGE CORP., et al. Defendants -EDDIE and SHARON LESTER, et al., Plaintiffs v. : GENE PERCUDANI, et al. Defendants
: (Judge Conner) : (Judge Conner)
AND NOW, this 8th day of December, 2011, upon consideration of the motion (Case No. 3:01-CV-1182, Doc. 515; Case No. 1:04-CV-0832, Doc. 383) to enforce settlement agreement, filed by plaintiffs, and the cross-motion (Case No. 3:01-CV-1182, Doc. 517; Case No. 1:04-Cv-0832, Doc. 385) to enforce settlement agreement, filed by Gene Percudani and the Raintree defendants, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. Plaintiffs' motion (Case No. 3:01-CV-1182, Doc. 515; Case No. 1:04-CV-0832, Doc. 383) to enforce settlement agreement is GRANTED.
2. Defendants' cross-motion (Case No. 3:01-CV-1182, Doc. 517; Case No. 1:04-CV-0832, Doc. 385) to enforce settlement agreement is DENIED.
3. Within fourteen (14) days of the date of this order defendants shall tender $300,000.00 to plaintiffs' counsel in accordance with the terms of the parties' settlement agreement.
4. Within fourteen (14) days of the date of this order plaintiffs shall file a letter with the court informing the court whether there are any outstanding matters, or whether the above-captioned matter may be closed.
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text:
Bachelor of Criminal and Community Justice / Bachelor of Laws
Western Sydney University
Bachelor Degree (Pass)
|ATAR Cutoff
|Mid Year Intake?
|Study Mode
|Entry Requirements
|Full-time internal, Part-time internal
Year 12 or equivalent; any 2 units of HSC English; inherent requirements apply
|Full-time internal, Part-time internal
Course Description
This program offers multi-skilling and highly marketable career paths in criminal justice and law. It equips students with professional legal skills and knowledge, which are required by the Legal Profession Admission Board (LPAB). Applied study of criminal justice, criminology, psychology, social work and welfare provides a foundation for working with offenders in institutions and in areas such as rehabilitation, through-care and resettlement in the community and will enable students to develop and evaluate practice with a view to enhancing working with offenders.
Subjects you can Study
Criminal and community justice; Law
^ Shows the minimum tertiary entrance ranking needed by Australian school leavers to get into each CSP-based course. Cut-offs are not determined in advance. Course data and cut-off scores published on Good Universities Guide are indicative of the 2016 academic year.
About Western Sydney UniversityFounded in 1989, Western Sydney University is ranked in the top 3 per cent of universities in the world. Over 70 per cent of the University's assessed research has been ranked at world class or better.
The University is home to several research institutes, including the Hawkesbury Institute for the Environment, the Institute for Culture and Society, the MARCS Institute for Brain, Behaviour and Development, Australia-China Institute for Arts and Culture and the Translational Health Research Institute. Each institute enhances the University's research strengths and expertise in areas such as climate change, water conservation, smart engineering, the changing social landscape and human-machine communication.
The University boasts unique campuses across Western Sydney including Bankstown, Campbelltown, Hawkesbury, Parramatta and Penrith. Western Sydney University, The College, owned by the University, offers university pathway courses and VET courses at Bankstown, Nirimba and Lithgow.
With a student population in excess of 44,000 and more than 3,000 staff members, Western Sydney University has grown to be one of the largest universities in Australia.
The University is closely linked to Western Sydney, one of the nation's economic powerhouses where ten per cent of all Australians live, and has a teaching and research structure designed to meet the challenges of today's economy.
Western Sydney University offers students a wide range of traditional disciplines combined with the latest in innovative thinking. Courses are delivered through innovative, relevant, engaging and flexible study options.
Provider CRICOS: 00917K; 02851G (WS, The College)
Bachelor Degree (Pass)
- Full-time internal = 5 years
- Part-time internal = 10 years
- Full-time internal = 5 years
- Part-time internal = 10 years
400 credit points.
Entry Requirements
Year 12 or equivalent; any 2 units of HSC English; inherent requirements apply
How does this course perform?
How do study fields for Bachelor of Criminal and Community Justice / Bachelor of Laws at Western Sydney University perform?
Life after Study
Where are graduates that studied Law at Western Sydney University?
|Public sector
|Private practice
|Private industry
|Working overseas
Para-legal studies
Where are graduates that studied Para-legal studies at Western Sydney University?
|Public sector
|Private practice
|Private industry
|Working overseas
Related Careers
Correctional Officer
Correctional officers are responsible for the custody, care, supervision, welfare and rehabilitation of prisoners in prisons and correctional centres.
Lawyers provide advice, write documents and conduct negotiations on legal matters, and may represent clients in court and tribunal proceedings. They are described as solicitors or barristers, depending on the work they do.
Probation and Parole Officer
Probation and parole officers supervise offenders who have been placed on community-based orders by the courts, as well as offenders released on parole from prison.


text:
Here and then [electronic resource]. Linda Lael Miller.
Electronic resources
Record details
- ISBN: 9781460309285 (electronic bk)
- Physical Description: 1 online resource
- Date Published: 2012.
Content descriptions
|Summary, etc.:
| Rue Claridge's cousin Elisabeth had disappeared, and Rue was determined to find her. But she never dreamed that when she followed Elisabeth's footsteps, she would find herself more than one hundred years in the past...and in jail, courtesy of Marshal Farley Haynes.She knew Farley was baffled but intrigued by her modern ways--and Rue was just as fascinated by the rugged marshal. Enough to dream that maybe he could live in her modern world and find a place with her on her Montana ranch. But could she ask him to choose between everything he had ever known...and a future with her?
|Reproduction Note:
| Electronic reproduction. Toronto, Ontario : Harlequin HQN, 2012. Requires OverDrive Read (file size: N/A KB) or Adobe Digital Editions (file size: 1077 KB) or Adobe Digital Editions (file size: 492 KB) or Amazon Kindle (file size: N/A KB).
Search for related items by subject
Electronic books.


text:
Weekender: Turkey
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text:
Occasional Overnight petsitting in our home - Myrtle Beach, SC
Posted by Vicki B. on 10/11/2016
Start date: This job does not have a set start date
- 380 miles away (Myrtle Beach, SC)
- $30.00 per night
- 2 pets
Would like a VERY responsible,( preferably someone at least 30+ years old), to stay in our home when we go out of town. We have 2 very sweet cats and do not like to just leave alone in the care of a petsitter when we are gone for an entire week. We live in a nice, gated community off of 707 In Myrtle Beach. We will be going out of town for Christmas and another vacation in January.
Care Needed for
- Cats
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text:
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United States District Court, District of Columbia
November 5, 2012
Bruno K. MPOY, Plaintiff,v.Adrian FENTY, et al., Defendants.
Page 145
[Copyrighted Material Omitted]
Page 146
Stewart S. Manela, Jason Moore, Rachel M. Witriol, Arent Fox LLP, Washington, DC, for Plaintiff.
David A. Jackson, District of Columbia Office of the Attorney General, William L. Drake, Steptoe & Johnson, LLP, James Anthony Towns, Sr., Office of the Attorney General for DC, Washington, DC, for Defendants.
JAMES E. BOASBERG, District Judge.
In 2007, Plaintiff Bruno Mpoy was hired by the District of Columbia to work as a special-education teacher at Ludlow Elementary School through the DC Teaching Fellows Program. At the end of his first year of teaching, his employment was terminated
Page 147
in what he claims was retaliation for complaints he had lodged with then-District of Columbia Public Schools Chancellor Michelle Rhee. Mpoy's complaints to Rhee concerned challenges he had encountered as a teacher at Ludlow, as well as an allegation that the school's principal, Donald Presswood, had instructed him to falsify test results of his students.
Mpoy initially brought this suit against the District and Presswood (the " District Defendants" ), Rhee, and The New Teacher Project alleging a violation of his First Amendment rights under 42 U.S.C. § 1983 and also asserting five non-federal causes of action. In an earlier decision, this Court dismissed the case against the New Teacher Project. See Mpoy v. Fenty, 870 F.Supp.2d 173 (D.D.C.2012)( Mpoy I ). The remaining Defendants now separately move for judgment on the pleadings, arguing that Mpoy's First Amendment claim fails as a matter of law because his statements were made pursuant to his official duties as a public employee and thus does not constitute protected speech. They also contend that even if Mpoy's speech were protected, Presswood and Rhee are entitled to qualified immunity. The Court agrees with both arguments and thus will grant Defendants' Motions as to Count I. Having done so, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state-law claims, which he may refile in the appropriate local court.
I. Background
According to Plaintiff's Second Amended Complaint, which must be presumed true for purposes of these Motions, Mpoy was recruited in 2007 to serve as a special-education teacher in the D.C. Public Schools through the DC Teaching Fellows (DCTF) program. See Second Amended Complaint, ¶¶ 28-29. By joining the DCTF program, Mpoy committed to teach in DCPS for a minimum of four years in exchange for receiving tuition support for working towards and receiving his teaching certification at George Washington University. See id., ¶¶ 31-32. Accordingly, he began attending classes at GWU's Graduate School of Education and Human Development in the summer of 2007. See id., ¶ 37.
Mpoy started teaching special-education students at Ludlow Elementary School at the beginning of the 2007 school year. See id., ¶ 34. He faced a number of challenges at Ludlow, including:
• a dirty classroom, see id., ¶ 39;
• insufficient teaching materials (including books), see id., ¶ 40;
• a lack of feedback from Presswood following his formal classroom observation, see id., ¶¶ 42-45;
• " hostile, unprofessional, and unwilling," and " disruptive" teaching assistants, id., ¶¶ 46-50; and
• a failure by the administration to respond to Mpoy's concerns about classroom facilities, supplies, and the teaching assistants.
See id., ¶¶ 40, 51-62, 76-78. Additionally, Mpoy claims that Presswood ordered him to falsify student scores and records. See id., ¶¶ 63-75. " Presswood instructed Plaintiff to falsify the [assessments of his special-education students] and other records of his special-education students to make it seem that his students had demonstrated acceptable progress in accordance with [D.C. and national requirements]." Id., ¶ 70. When Mpoy would not follow Presswood's instructions, the principal enlisted other teachers to falsify the records of Mpoy's students. See id., ¶¶ 72-74.
Rather than working to resolve Mpoy's concerns, Presswood " harass[ed] and threaten[ed] Plaintiff and hindered his
Page 148
ability to teach." Id., ¶ 79. In January and February 2008, Mpoy received unwarranted warnings from Presswood accusing him of " excessive tardiness and failure to follow lesson plans" and " accusing him of not monitoring students, failure to escort students and failure to follow fire drill procedures." See id., ¶¶ 80-81. Additionally, on May 7, 2008, Mpoy was issued a five-day suspension, at Presswood's recommendation, for " insubordination" and failure " to follow instructions issued by your supervisor to conduct a classroom observation." Id., ¶¶ 82-83. Presswood also made allegations of corporal punishment against Mpoy. See id., ¶ 85.
On June 2, 2008, Mpoy sent an email to Chancellor Rhee describing his concerns about classroom facilities, supplies, and the teaching assistants, as well as his distress that Presswood had ordered him to falsify student records. See id., ¶ 86. In the email to Rhee, Mpoy requested an investigation into these problems. See id., ¶ 93. Two days later, Mpoy was summoned to a meeting in Presswood's office, along with the director for DCTF and the DCPS Assistant Director for Special Education. See id., ¶ 87. Presswood threatened to recommend that Mpoy not be reappointed to his teaching position for the following year. See id., ¶ 88. Shortly thereafter, Presswood issued Mpoy's evaluation, indicating that Mpoy was either ineffective or needed improvement in every area of evaluation. See id., ¶ 90. Plaintiff believed that this evaluation " was baseless, as it is contradicted by the numerous statements of Plaintiff's colleagues and parents of his students that demonstrate Plaintiff was a hardworking teacher who was effective in improving his students' abilities and was consistently trying to improve his teaching skills." Id., ¶ 91.
On July 9, 2008, Mpoy met with a representative from the Chancellor's office and the director for DCTF. See id., ¶¶ 94-95. During the meeting, Mpoy was informed that Presswood had in fact recommended nonrenewal of his teaching position at Ludlow. See id., ¶ 95. Mpoy returned to Ludlow for the first day of school on August 19, 2008, and was informed by the school's new principal that he had been terminated. See id., ¶¶ 98-99. That day he received a copy of his termination letter (dated July 15, 2008), stating that " based on input from your principal and your status as a probationary employee, your position as teacher with District of Columbia Schools is terminated effective August 1, 2008." See id., ¶¶ 100-103. Because he was not continuing in his teaching role, Mpoy was no longer able to take courses at GWU. See id., ¶¶ 105-06.
Mpoy filed this suit on June 22, 2009. See ECF No. 1. He later filed a Second Amended Complaint on June 15, 2011, setting forth six counts: deprivation of his rights under 42 U.S.C. § 1983, retaliation in violation of the D.C. Whistleblower Act, retaliation in violation of the D.C. Human Rights Act, breach of contract for wrongful termination, breach of contract for failure to pay tuition as promised, and civil conspiracy to wrongfully terminate Plaintiff. All counts were asserted against the District Defendants and Rhee, and the last two also name The New Teacher Project (TNTP). See ECF No. 77.
On July 2, 2012, this Court issued a Memorandum Opinion granting TNTP's Motion to Dismiss and granting in part and denying in part the District Defendants' Motion to Dismiss. See Mpoy I, 870 F.Supp.2d 173. The Court dismissed Count I (§ 1983) as to the District, but allowed it to proceed against Defendants Rhee and Presswood in their individual capacities. The Court also struck Plaintiff's claim for punitive damages against the District, but allowed all other claims
Page 149
against the District Defendants and Rhee to proceed. See id. Defendant Rhee and the District Defendants have now separately filed the instant Motions for Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c).
II. Legal Standard
This Court evaluates a Rule 12(c) motion for judgment on the pleadings under the same standard as a Rule 12(b)(6) motion to dismiss. See Robinson-Reeder v. Am. Council on Educ., 532 F.Supp.2d 6, 12 (D.D.C.2008). The factual allegations presented in the Complaint must thus be presumed true and should be liberally construed in Plaintiff's favor. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164-68, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). The notice-pleading rules are " not meant to impose a great burden upon a plaintiff." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Although " detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), " a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). Plaintiff must put forth " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a Rule 12(b)(6) motion even if " recovery is very remote and unlikely," Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955.
A motion for judgment on the pleadings under Rule 12(c) must rely solely on matters within the pleadings, see Fed.R.Civ.P. 12(d), which include statements adopted by reference as well as copies of written instruments joined as exhibits. Fed.R.Civ.P. 10(c). Where the Court must consider " matters outside the pleadings" to reach its conclusion, a motion for judgment on the pleadings " must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C.Cir.2003).
III. Analysis
Among the myriad challenges they raise to the causes of action in Plaintiff's Second Amended Complaint, Defendants principally argue that Plaintiff receives no First Amendment protection for his email to Rhee because his statements therein were made pursuant to his official duties as a public employee and thus do not constitute protected speech. Alternatively, they argue that even if the speech were protected, Plaintiff's claim would nonetheless be barred by qualified immunity because his constitutional right to such speech was not clearly established at the time of his email. Without this federal hook, Defendants urge the Court to decline to exercise supplemental jurisdiction over the remaining common-law and statutory claims.
Plaintiff initially responds that the Court has already rejected the First Amendment arguments Defendants now advance, thus barring their reassertion under the law-of-the-case doctrine. Even if the Court were to entertain Defendants' arguments, Plaintiff maintains that his speech was protected as he was speaking on a matter of public concern, and no qualified immunity exists. Finally, Plaintiff argues that the Court need not exercise supplemental jurisdiction
Page 150
over the remaining claims as diversity jurisdiction is also proper here.
The Court will look at these issues separately, beginning with the law of the case, moving to an analysis of the First Amendment issues at play, and then finishing with discussions of qualified immunity and supplemental jurisdiction.
A. Law of the Case
Plaintiff first argues that the Court need not address Defendants' First Amendment arguments as they are an " inappropriate attempt to get a second bite at the apple" and are barred under the " law of the case" doctrine. Pl.'s Opp. at 10. Defendants counter that the Court has never ruled on these issues, and, even if it had, the " law of the case" doctrine would not apply because the decisions were not final. See Rhee Reply at 2-3; District Reply at 2-5.
Under the law-of-the-case doctrine, " a court involved in later phases of a lawsuit should not re-open questions decided ... by that court or a higher one in earlier phases." Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995); see also LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) ( en banc ) (describing law-of-the-case doctrine as proposition that " the same issue presented a second time in the same case in the same court should lead to the same result" ). The Court's July 2, 2012, Memorandum Opinion, however, did not reach the issues now raised, thus precluding any application of the doctrine. See Mpoy I, 870 F.Supp.2d 173.
In its Memorandum Opinion, the Court determined that Mpoy's § 1983 claim (Count I) could proceed against Defendants Rhee and Presswood in their individual capacities, but not against the District of Columbia or Rhee and Presswood in their official capacities. See id. at 178-79. Contrary to Plaintiff's assertions, the Court's did not " sub silentio " rule upon the substance of this count. See Pl.'s Opp. at 9. While the District's Motion to Dismiss did include an alternate argument that Mpoy had not engaged in protected speech, see ECF No. 82-1 at 6-8, the Court dismissed Count I against the District under a municipal-liability theory and never reached this separate argument. See Mpoy I, 870 F.Supp.2d at 177-79. Nor did the Court analyze such argument with respect to Defendants Rhee and Presswood; instead, it merely determined that Count I could proceed to the extent Plaintiff was suing them in their individual capacities. See id. at 178-79.
As neither this Court— nor any appellate court— has reached the § 1983 issues raised here, the law-of-the-case doctrine does not bar the Court's evaluation of them.
B. First Amendment Protections for Public Employees
Until 2006, Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), provided the framework for analyzing the scope of protections for speech made by public employees. In Pickering, the Supreme Court held that a high school teacher's letter to a local newspaper criticizing the school's athletics budget was a matter of public concern and was thus protected speech. See 391 U.S. at 574, 88 S.Ct. 1731. In doing so, it affirmed that public school teachers do not relinquish their First Amendment right to speak on matters of public concern simply because they are public employees. Id. at 563, 88 S.Ct. 1731. The Court articulated a balancing test to assist in resolving public-employee free-speech issues: " [T]he problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in
Page 151
commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568, 88 S.Ct. 1731.
In Connick, the Supreme Court built on Pickering's analysis, clarifying that a public employee's speech must pertain to matters of genuine public concern if it is to enjoy constitutional protection. See 461 U.S. at 138, 103 S.Ct. 1684. There, the Court held that an Assistant District Attorney's circulation of a questionnaire to other attorneys in her office concerning a number of issues, including office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns, only presented matters of public concern with respect to the issue of political pressure, and the Court ultimately concluded that the " limited First Amendment interest" did not outweigh the government's interest in effectively administering the office. Id. at 154, 103 S.Ct. 1684.
Under the Pickering - Connick framework, courts first determine whether an employee spoke as a citizen on a matter of public concern. See Connick, 461 U.S. at 138-39, 103 S.Ct. 1684. If not, the employee has no cause of action for retaliation, and the court does not consider the second part of the test, which requires balancing the employee's interest as a citizen in commenting on public matters and the employer's responsibility to promote efficient public services. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
The Supreme Court's 2006 decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), altered this analysis, requiring a court to first consider whether the public employee's speech was pursuant to his official duties; only if it finds that the employee is speaking as a private citizen and not pursuant to his official duties will a court proceed to review the content of the speech. Id. at 421-22, 126 S.Ct. 1951. Garcetti involved a deputy district attorney's memorandum to his supervisor expressing his view that an affidavit used to obtain a search warrant contained serious misrepresentations. Id. at 414, 126 S.Ct. 1951. The Court explained that " [u]nderlying [the Supreme Court's employee-speech jurisprudence] has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to ' constitutionalize the employee grievance.' " Id. at 420, 126 S.Ct. 1951 (quoting Connick, 461 U.S. at 154, 103 S.Ct. 1684). Specifically, Garcetti " h[e]ld that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951. Garcetti thus imposed a threshold inquiry into whether the public employee was speaking pursuant to official duties before engaging in the Pickering - Connick balancing. See Leverington v. City of Colorado Springs, 643 F.3d 719, 724 (10th Cir.2011); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. School Dist., 624 F.3d 332, 343 (6th Cir.2010).
Plaintiff, however, argues that this threshold inquiry is not necessary here because Garcetti is " not applicable to cases related to scholarship or teaching, including speech in a public school setting." See Pl.'s Opp. at 12. Plaintiff's broad contention stems from language within Garcetti alluding to the intersection between the public-employee speech doctrine and academic freedom. In a dissenting opinion, Justice Souter— joined by Justices Stevens and Ginsburg— raised concerns about the
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impact of the majority's opinion on academic freedom, where the
ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write " pursuant to ... official duties."
547 U.S. at 438-39, 126 S.Ct. 1951 (Souter, J., dissenting). The majority acknowledged these concerns; however, it ultimately declined to address them under the facts of the case:
Justice Souter suggests today's decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.
Id. at 425, 126 S.Ct. 1951.
Neither the Supreme Court nor this Circuit has issued a subsequent opinion providing guidance on the applicability of Garcetti to a case involving speech related to scholarship or teaching. Indeed, the continued lack of clarity on the issue was recognized by this Circuit in Emergency Coal. to Defend Educ. Travel v. U.S. Dept. of the Treasury, 545 F.3d 4 (D.C.Cir.2008). In a concurrence, Judge Edwards declined to delve into the contours of the academic-freedom concept, acknowledging:
The Court in Garcetti neither refutes the existence of academic freedom as a part of the First Amendment, nor rejects the suggestion that academic freedom may extend beyond the Court's " customary employee-speech jurisprudence." Rather, the Court simply leaves undecided the many questions relating to the concept and breadth of academic freedom. Prudence commands that we do the same, for the dispute in this case does not raise any serious questions about the contours of academic freedom.
Id. at 18 (Edwards, J., concurring).
Similarly, this Court need not decide the scope of any academic-freedom exception to Garcetti, as the speech at issue here does not involve scholarship, curricula, or pedagogy. On the contrary, Plaintiff's email to Rhee— the speech he claims is protected here— related to classroom facilities, supplies, teaching assistants, and test scores. None of this pertains to academic freedom or the expression of particular ideas. Plaintiff nonetheless attempts to extend the " academic freedom" doctrine to anything related to school, teachers, or education. See Pl.'s Opp. at 12-13 (contending that Garcetti should not apply " when deciding cases involving speech by public school teachers" or to cases " in an academic setting" ). Such a reading, however, is unprecedented in its breadth.
First, there is substantial doubt that the Garcetti exception would even apply to elementary-school teachers. The Sixth Circuit noted as much in Evans-Marshall, where it rejected a high school teacher's argument that " academic freedom" should apply to in-class curricular speech:
As a cultural and a legal principle, academic freedom " was conceived and implemented in the university" out of concern for " teachers who are also researchers
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or scholars-work not generally expected of elementary and secondary school teachers." J. Peter Byrne, Academic Freedom: A " Special Concern of the First Amendment" , 99 Yale L.J. 251, 288 n. 137 (1989). " [U]niversities occupy a special niche in our constitutional tradition" and the constitutional rules applicable in higher education do not necessarily apply in primary and secondary schools, where students generally do not choose whether or where they will attend school. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 724-25, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).
624 F.3d at 343-44.
Second, even if the exception applied outside the university context, it surely would not apply in a case involving speech that does not relate to either scholarship or material taught. A close parallel is found in Kelly v. Huntington Union Free School Dist., 2012 WL 1077677 (E.D.N.Y. March 30, 2012), where an elementary school teacher claimed her First Amendment rights were violated when her employer retaliated against her for complaints regarding " (1) [her supervisor's] alleged improper support of a specific Board candidate by giving out parents' addresses, (2) [her supervisor's] alleged improper tutoring of a student in violation of school policy, and (3) allegedly unsafe boating conditions on a school trip." Id. at *12. The court's inquiry focused on the substance of the speech and determined that the academic-freedom concerns of Garcetti were not implicated where
[t]he speech at issue here, in an elementary school, related not to academic freedom or the substance of classroom instruction, but rather issues of safety, teacher staffing, misuse of school information, and violation of school policy. Thus, any potential exception to Garcetti for cases centered on academic freedom has no applicability here.
Id. at *15 n. 18.
Just as in Kelly, Plaintiff's complaints here had nothing to do with academic freedom. Cf. Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550 (4th Cir.2011) (academic-freedom exception applied to public-university professor's academic scholarship published in columns, books, and commentaries). With no authority supporting Plaintiff's expansive reading of the academic-freedom doctrine, this Court declines his invitation to extend the doctrine to cover speech that involves neither curricula nor scholarship, merely because it was made by a teacher. The Court, accordingly, will review Mpoy's speech pursuant to the normal framework set forth in Garcetti.
C. Public Employee vs. Private Citizen
Having found that Garcetti applies, the Court must next determine whether— as a matter of law— the statements at issue were made by Mpoy pursuant to his official duties or as a private citizen. Courts have recognized that the inquiry into whether speech was made pursuant to an employee's " official duties is ' a practical one,' " focused on whether the speech " was part-and-parcel of [the employee's] concerns about his ability to properly execute his duties." Weintraub v. Bd. of Educ. of City Sch. Dist. of the City of New York, 593 F.3d 196, 202 (2d Cir.2010) (citations and internal quotation marks omitted). " The inquiry into whether a public employee is speaking pursuant to her official duties is not susceptible to a brightline rule." Ross v. Breslin, 693 F.3d 300, 306 (2d Cir.2012). Courts must examine the nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship
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between the two. See Weintraub, 593 F.3d at 201-02. Context, such as whether the complaint was also conveyed to the public, may properly influence a court's decision. See id. at 205.
In Adams v. New York State Educ. Dep't, 752 F.Supp.2d 420 (S.D.N.Y.2010), a court in the Southern District of New York rejected claims by teachers that the complaints they had filed with school authorities alleging a principal's falsification of attendance and grade records was not related to their responsibilities as public school teachers. Id. at 429. The court determined that this speech was within the scope of their professional duties as teachers:
Only in an odd Wonderland world could a court of law find it plausible that a public school principal's explicit order to a teacher directing her to falsify her own students' grades " has no bearing" on the teacher's official responsibilities as a teacher.... Under Iqbal's " common sense" counsel, as well as under Garcetti's " practical" test, that proposition cannot hold. Plaintiffs cannot plausibly establish that their complaining about a principal's falsification of student grades or attendance records is not " part-and-parcel" of their concerns as school teachers.
Id. at 430.
The complaints raised by Mpoy are similarly " part-and-parcel" of his concerns as a school teacher. In the June 2, 2008, " Request for Investigation" email sent to Rhee, Mpoy frames his concerns as those of an employee of the District: " I am a special education teacher at Ludlow Taylor ES. As a teacher, my primary duty is to ensure student achievement. I strive to create and maintain a safe and appropriate environment conducive to learning." Rhee Mot., William L. Drake Declaration, Exh. 1 (June Email).[1]
The email continues, with Mpoy focusing his concerns on specific issues personal to his work at the school:
1) I was suspended without pay and without due process; 2) my DCPS e-mails containing documentation and evidence of wrong doing were illegally deleted and compromised; 3) Dr. Presswood, the principal of Ludlow Taylor, misrepresented students' performance and results on the DCCAS Alternative; 4) the paraprofessionals and possibly Dr. Presswood induced students to lie and to disrupt the educational process; 5) the paraprofessionals engaged in a campaign to disrupt the educational process; 6) I apprised Dr. Presswood of the paraprofessionals' conduct with more than twenty emails; and he failed to respond to any of them or take action of any kind; 7) I asked Dr. Presswood to grant me permission to request consent from parents for me to install a video camera in my classroom; he never responded; 7) [ sic ] and I stated in one of my e-mails to Dr. Presswood that if the paraprofessionals continued to disrupt the educational process, I would write directly to Chancellor Rhee and request permission to install a video camera in my classroom.
Id. Of the eight enumerated grounds for investigation, seven pertain to actions that
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exclusively involve Mpoy's classroom. Id. Only his third claim alleging that the school's principal " misrepresented students' performance and results on the DCCAS Alternative" can be understood to raise broader claims about the functioning of the school. Id. Beyond this mention, however, the lengthy email detailing the challenges Mpoy claims to have experienced contains no discussion of this issue. See id.
Mpoy's email sets forth eight complete paragraphs detailing the events surrounding his complaint, including:
• the school's failure to provide Mpoy with books for his students, see id., ¶ 1;
• concerns about the conduct and attire of Mr. Walker, a paraprofessional assigned to work in Mpoy's classroom, which ultimately resulted in his removal from the classroom, see id., ¶¶ 2-3;
• " unprofessional conduct" by the remaining paraprofessional (Mrs. Lacey) in Mpoy's classroom, id., ¶ 4;
• refusal by principal to provide Mpoy with feedback from his classroom performance observation, see id.;
• failure to distribute work Mpoy had left for students to complete when he took leave, see id., ¶ 5;
• verbal abuse by paraprofessionals (including referring to Mpoy as a " liar, backstabbing snitch" ), id., ¶ 6;
• an ongoing " campaign to disrupt the educational process" by paraprofessionals, which included: showing non-educational movies during instructional time, taking additional recess during instructional time, playing non-educational games with students during instructional time, " inciting students to disrupt the educational process," " inducing students to lie," " allowing the cell phone to ring to rap music which students sing when the cell phone rings," etc., id., ¶¶ 6-7; and
• Presswood's failure to respond to the conduct discussed above and general inaction in response to above claims.
See id., ¶ 8. The email also includes a paragraph detailing Mpoy's pursuit of personal grievances with his direct supervisor— the school's principal— and his dissatisfaction with this process. See id.
The " form and context" in which Mpoy's complaints were made " are indicative of the fact that they intended to address only matters connected with" his job at Ludlow. See Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir.2007). In Boyce, the Eleventh Circuit rejected a claim by caseworkers at a county Department of Family and Children Services that their complaints about working conditions were protected by the First Amendment:
A " public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run." " [T]he relevant inquiry is not whether the public would be interested in the topic of the speech at issue but rather is ' whether the purpose of the [the plaintiff's] speech was to raise issues of public concern.' " ... The record in this case reveals that the speech of [plaintiffs], while ostensibly intermingled with issues of child safety and DeKalb DFCS mismanagement, was not intended to address matters of public concern from the perspective of a citizen. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.1993) (recognizing that " [e]ven as to an issue that could arguably be viewed as a matter of public concern, if the employee has raised the issue solely in order to further his own employment interest, his
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First Amendment right to comment on that issue is entitled to little weight" ).
510 F.3d at 1344-45 (some internal citations omitted).
In Weintraub, moreover, the Second Circuit found that a teacher's grievance concerning the handling of a student who had thrown books at him in his classroom related to the teacher's ability to maintain the classroom discipline necessary for effective teaching and was thus " part-and-parcel of his concerns about his ability to properly execute his duties" ; as a result, the complaint was uttered by the teacher as an employee, rather than as a private citizen. 593 F.3d at 202-04 (citations and internal quotation marks omitted). Similarly, in Dorcely v. Wyandanch Union Free School Dist., 665 F.Supp.2d 178 (E.D.N.Y.2009), the court held that " [t]he substance of Plaintiff's complaints concerning the lack of sufficient educational and instructional resources and the appropriateness of the counseling curriculum are matters relating to Dorcely's own job responsibilities as an educator and school psychologist, and therefore is unprotected speech." Id. at 207; see also Ankney v. Wakefield, No. 10-1290, 2012 WL 2339683, at *6-7 (W.D.Pa. June 19, 2012) (finding teacher's duties encompassed reporting unsafe conditions at school in order to have them remedied, such that reporting of these issues was not entitled to private-citizen First Amendment protection); Kelly, 2012 WL 1077677, at *12-14 (" internal complaints by teachers about student/teacher issues based upon information learned through their jobs— whether it be safety issues, staffing/service issues, violation of school policy, or misuse of school property/information— constitute speech as a public employee, rather than a private citizen, and are not protected by the First Amendment" (emphasis in original) (collecting cases)); Massaro v. Dep't of Educ. of the City of New York, No. 08-10678, 2011 WL 2207556, at *3 (S.D.N.Y. June 3, 2011) (" Plaintiff's complaints regarding the sanitary conditions in her classroom and the health concerns that arose from them were made pursuant to her duties as an employee.... Communications of concerns about such matters are, thus, part and parcel of a teacher's duties as a public employee...." ); Medina v. Dep't of Educ. of City of New York, No. 10-1180, 2011 WL 280800, at *3-4 (S.D.N.Y. Jan. 14, 2011) (guidance counselor's complaints about school's policy on suspension and inadequate supervision of students were within scope of his official duties for First Amendment purposes); Felton v. Katonah Lewisboro Sch. Dist., No. 08-9340, 2009 WL 2223853, at *5 (S.D.N.Y. July 27, 2009) (teachers' complaints regarding " school supplies for their kindergarten class, the physical state of the classroom in which they taught, the appropriateness of the curriculum, the inadequacy of their student profiles, and the safety implications ... of those inadequate student profiles" were made pursuant to their duties as educators to ensure " that a classroom is well supplied, safe, and conducive to learning" ); Shums v. New York City Dep't of Educ., No. 04-4589, 2009 WL 750126, at *14 (E.D.N.Y. March 17, 2009) (teacher's speech regarding adequacy of state-mandated instruction provided to students was not entitled to constitutional protection); Smith v. Beaufort Cnty. Sch. Dist., No. 06-185, 2008 WL 821809, at *9 (D.S.C. March 25, 2008) (teacher's complaints about her coworkers, working environment, and alleged mistreatment of students were made pursuant to her duties as a teacher and were not protected by the First Amendment); Renken v. Gregory, 541 F.3d 769, 774-75 (7th Cir.2008) (professor's claim of retaliation for lodging complaints about dean over budget dispute was barred by Garcetti, as professor was
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speaking as an employee, rather than as a private citizen).
Despite this substantial body of caselaw, Mpoy nonetheless contends that he was speaking as a public citizen when he made disclosures regarding " waste, abuse, fraud, unethical conduct, and ineffective and/or illegal use of funds in the public education system" because he had " no administrative, managerial, operational, investigative, or compliance-related responsibilities" in his role as a special-education teacher. Pl.'s Opp. at 18. The Court finds this understanding of his duties to be too formalistic, ignoring the realities of the responsibilities of public school teachers, as set forth in the authorities cited above.
Additionally, while not dispositive, the fact that Mpoy raised his complaints up the chain of command supports the Court's conclusion that the speech was undertaken pursuant to his job. See Fox v. Traverse City Area Public Schools Bd. of Educ., 605 F.3d 345, 349-50 (6th Cir.2010) (" ' Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job.' " ) (quoting Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008)). Mpoy claims that he was not reporting up the chain of command when he contacted Rhee as " DCPS is a sophisticated modern bureaucracy with many layers of management, and it may be surmised that Defendant Rhee was not an immediate or intermediate supervisor of Mpoy or Presswood.... Mpoy reported outside his chain of command to an official several levels above his supervisor." Pl.'s Opp. at 18 n. 4. The Court, however, finds this distinction unhelpful. As the Second Circuit held in Ross, where a plaintiff decides to " tak[e] a complaint up the chain of command to find someone who will take it seriously[, it] ' does not, without more, transform [her] speech into protected speech made as a private citizen.' " 693 F.3d at 307 (internal citations omitted).
As Chancellor, Rhee was responsible for the administration of the District's school system, and Mpoy's decision to raise internal complaints with her, as opposed to the media, further supports the conclusion that his speech was made pursuant to his duties as teacher. See, e.g., Kelly, 2012 WL 1077677, at *12-14 (teacher's complaints regarding her supervisor's improper conduct were made as public employee where such complaints were pursuant to her general duties as a teacher, were directed at school administration (rather than news media or third parties outside of school), and " resulted from special knowledge gained through plaintiff's employment" ).
Although the Court is not unsympathetic to what Plaintiff alleges occurred here— indeed, his allegations are quite troubling, particularly in the realm of falsification of test scores— it nonetheless cannot find that Plaintiff has alleged a violation of the First Amendment. His other claims— e.g., for wrongful termination or as a whistleblower— may ultimately fare better, although the Court offers no opinion here on their merits.
D. Qualified Immunity
Even if this Court were to find Plaintiff's speech to be protected, his § 1983 claim against Presswood and Rhee— the District having been dismissed earlier— would nonetheless be barred by qualified immunity. To determine whether an official is entitled to qualified immunity, the Court must consider whether the facts, viewed in the light most favorable to the plaintiff, establish a violation of a constitutional right and, if so, whether that right was clearly established at the time of the alleged violation.
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See Pearson v. Callahan, 555 U.S. 223, 231-43, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Court has the discretion to decide " which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808.
In this case, the Court's analysis begins and ends with the second prong of the qualified-immunity inquiry. For the reasons set forth in Sections III.B-C, supra, the Court finds that the contours of the right at issue in this case were not sufficiently clear such that Defendants Rhee and Presswood would have reasonably understood that their actions violated Mpoy's rights. " An official enjoys protection from a lawsuit where [his] conduct is objectively reasonable in light of existing law. Conversely, an officer is not shielded where he could be expected to know that certain conduct would violate statutory or constitutional rights." Brown v. Fogle, 819 F.Supp.2d 23, 28-29 (D.D.C.2011) (quoting Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C.Cir.1998) (internal quotation marks omitted)).
Even if this Court had employed the pre- Garcetti standard and determined that Mpoy was " speaking on a matter of public concern," as Plaintiff urged it to do, the Court cannot find that this right was clearly established at the time of the violation. Indeed, Plaintiff's Opposition acknowledges the uncertainty of the public-employee-speech jurisprudence as it applies to teachers in different settings. See, e.g., Pl.'s Opp. at 12-13 (noting lack of guidance from Supreme Court or D.C. Circuit on Garcetti's application to public school teachers); see also Butera v. Dist. of Columbia, 235 F.3d 637, 654 (D.C.Cir.2001) (constitutional right not clearly established where there was " lack of clarity in the law of the circuits" ). Plaintiff thus cannot plausibly claim that Rhee or Presswood could have been expected to know that their conduct violated Mpoy's rights. Mpoy's § 1983 claim against Defendant Presswood and Rhee, accordingly, would be barred by qualified immunity even if the Court found it was legally sufficient.
E. Supplemental Jurisdiction
Having dismissed the sole federal claim, the Court must determine whether to retain jurisdiction over the remaining state-law claims (Counts II, III, IV, V & VI). Plaintiff argues that the Court need not address the question of supplemental jurisdiction, as " even without [his federal claim], the Court still has diversity jurisdiction over Mr. Mpoy's statutory and common law claims." See Pl.'s Opp. at 41. Plaintiff's argument is flawed, however, because " the District, like the fifty states, is not subject to diversity jurisdiction." Long v. Dist. of Columbia, 820 F.2d 409, 414 (D.C.Cir.1987). The Court must, consequently, determine whether to exercise supplemental jurisdiction here.
Federal district courts are given supplemental (or " pendent" ) jurisdiction over state claims that " form part of the same case or controversy" as federal claims over which they have original jurisdiction. 28 U.S.C. § 1367(a). By the same token, they " may decline to exercise supplemental jurisdiction over [such] claim[s] ... if ... the district court has dismissed all claims over which it has original jurisdiction[.]" § 1367(c)(3). The decision of whether to exercise supplemental jurisdiction where a court has dismissed all federal claims is left to the court's discretion as " pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). When deciding whether to exercise supplemental jurisdiction over state claims, federal courts
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should consider " judicial economy, convenience and fairness to litigants." Id. " [I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine— judicial economy, convenience, fairness, and comity— will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); see also Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 48 F.3d 1260, 1267 (D.C.Cir.1995) (finding the discretion set out in Carnegie-Mellon Univ. " unaffected by the subsequent enactment of 28 U.S.C. § 1367(d), in the Judicial Improvements Act of 1990" ).
Here the factors weigh against retention of the case. All federal claims against Defendants have been dismissed. The case has not progressed in federal court past motions for judgment on the pleadings, discovery has just commenced, and the Court has developed little familiarity with the issues presented. Cf. Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C.Cir.2010) (finding district court appropriately retained pendent jurisdiction over state claims where it had " invested time and resources" in case). The Court can thus conceive of no undue inconvenience or unfairness to the litigants that would result from such a decision. Finally, Plaintiff will not be prejudiced because 28 U.S.C. § 1367(d) provides for a tolling of the statute of limitations during the period the case was here and for at least 30 days thereafter. See Shekoyan v. Sibley International, 409 F.3d 414, 419 (D.C.Cir.2005) (affirming district court finding that because of tolling, dismissal of pendent state claims " will not adversely impact plaintiff's ability to pursue his District of Columbia claims in the local court system" ) (internal citation omitted). Therefore, to the extent the statute of limitations had not already run on Plaintiff's state-law claims at the time he filed this suit, this Court's decision to decline supplemental jurisdiction over such claims will not prejudice him. The Court, therefore, will dismiss Mpoy's remaining claims without prejudice, and Plaintiff may bring such claims, if not barred, in the appropriate state or local court.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting Defendant Rhee and Defendants District of Columbia and Presswood's Motions for Judgment on the Pleadings.
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