Zell v. Ricci ( 2020 )

United States Court of Appeals
For the First Circuit
Nos. 18-1372
18-1608
BETH ZELL, individually and on behalf of K.Z., a minor;
MARK ZELL, individually and on behalf of K.Z., a minor,
Plaintiffs/Cross-Appellees,
KELSEY ZELL,
Plaintiff, Appellant/Cross-Appellee,
v.
BARRY RICCI, Superintendent of Chariho Regional School District,
in his official capacity; RYAN BRIDGHAM, Dean of Students,
Chariho High School, in his individual and official capacities;
LAURIE WEBER, former Principal of Chariho High School, in her
individual and official capacities; CRAIG LOUZON, former Chair
of the Chariho School Committee, in his individual and official
capacities,
Defendants, Appellees/Cross-Appellants,
CHARIHO REGIONAL SCHOOL DISTRICT, by and through its
Superintendent, Barry Ricci; JON ANDERSON, Chariho Regional
School District Attorney; CHARIHO SCHOOL COMMITTEE, by and
through its Chairperson, Sylvia Stanley, in her official
capacity; RACHEL MCGINLEY, in her individual capacity; RHODE
ISLAND DEPARTMENT OF EDUCATION, by and through its Commissioner,
Ken Wagner; KEN WAGNER, in his official and individual
capacities; RHODE ISLAND COUNCIL OF ELEMENTARY AND SECONDARY
EDUCATION, by and through its Chair, Daniel McConaghy; DANIEL P.
MCCONAGHY, in his individual and official capacities,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Paige A. Munro-Delotto, with whom Munro-Delotto Law, LLC was
on brief, for appellant/cross-appellee.
Mark T. Reynolds, with whom Reynolds, DeMarco & Boland, Ltd.,
Sara A. Rapport, and Whelan Corrente & Flanders were on brief, for
appellees/cross-appellants Ryan Bridgham, Laurie Weber, Craig
Louzon, and Barry Ricci.
Mark T. Reynolds, with whom Reynolds, DeMarco & Boland, Ltd.,
Sara A. Rapport, Whelan Corrente & Flanders, Jon M. Anderson, and
Brennan, Recupero, Cascione, Scungio, & McAllister, LLP were on
brief, for appellees Chariho Regional School District, Chariho
School Committee, and Jon M. Anderson.
Paul Sullivan, Sullivan Whitehead & DeLuca LLP, and Anthony
F. Cottone, Rhode Island Department of Education, on brief for
appellees Rhode Island Council on Elementary and Secondary
Education, by and through its Chair, Barbara Cottam, and Rhode
Island Department of Education, by and through its Commissioner,
Ken Wagner.
April 20, 2020
THOMPSON, Circuit Judge. High school is not without its
unique challenges, this much we know; we also know that the same
can be said for bringing a civil lawsuit and navigating the rigors
associated with contentious litigation. Each of these dynamics
comes together in the case now before us: Kelsey Zell ("Zell")
appeals the United States District Court for the District of Rhode
Island's dismissal of her case. Zell advanced a slew of claims
against the various defendants below,1 but of the many claims
1 Here's the lowdown on how we'll refer to the parties
involved. The lone appellant before us is Zell -- her parents
have not challenged the dismissal of their own claims. But as we
lay out what the complaint asserts and what happened below, we
sometimes refer to Zell, her father, Mark Zell ("Mr. Zell"), and
her mother, Beth Zell, collectively as "the Zells."
And as for the defendants, we identify all the players up
front since they appear as individuals throughout this tale. The
defendants and cross-appellants include: Barry Ricci,
Superintendent of Chariho Regional School District
("Superintendent Ricci") (Superintendent Ricci passed away after
Zell filed this appeal, and by virtue of a granted joint motion,
Zell is no longer pursuing her claims against him in his individual
capacity, and Superintendent Ricci's cross-appeal for sanctions
has been dismissed as well; as to the claims against Superintendent
Ricci in his official capacity, Jane L. Daly has been substituted
under Rule 43(c)(2) of the Federal Rules of Appellate Procedure as
the representative of Chariho Regional School District); Ryan
Bridgham, Dean of Students at Chariho High School ("Dean
Bridgham"); Laurie Weber, former Principal of Chariho High School
("Principal Weber"); and Craig Louzon, former Chair of the Chariho
School Committee ("Chairperson Louzon").
Appearing strictly as defendants (not cross-appealing
anything), we have: Chariho Regional School District ("CRSD");
Jon Anderson, Chariho Regional School District's attorney
("Attorney Anderson") (Zell is not pursuing claims against
Attorney Anderson on appeal, but he still has a role to play, hence
his inclusion in this list); Chariho School Committee ("the
Committee"); Rachel McGinley ("McGinley"); Rhode Island Department
of Education ("RIDE"); Ken Wagner, Commissioner of RIDE
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dismissed, she has whittled down her appellate challenges to a
select few (as we'll momentarily discuss). Also before us is the
cross-appeal by the defendants who take issue with the denial of
their motion for sanctions against Zell's counsel.
All told, after careful consideration of this dense
record and for the reasons we will explain, we affirm the dismissal
of the federal-law claims, the dismissal of the state-law negligent
training/supervision claim, the motion to amend as it relates to
those issues, and the denial of the motion for sanctions. But we
vacate the dismissal of the state-law negligence claim.
FACTS AND TRAVEL
Our factual narrative is crafted from the facts
presented in the complaint's allegations, which, for purposes of
our review, we accept as true and construe in the light most
flattering to Zell's cause (i.e., the account that follows is not
necessarily what actually happened, but rather it's what the
complaint says happened). See, e.g., AER Advisors, Inc. v. Fid.
Brokerage Servs., LLC, 921 F.3d 282, 283 (1st Cir. 2019) (citing
Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st
("Commissioner Wagner"); Rhode Island Council of Elementary and
Secondary Education ("the Council"); and Daniel P. McConaghy,
chair of the Council.
We sometimes refer to the "School Defendants," whom we've
lumped together based on the claims against them -- they include
Superintendent Ricci (in his official capacity), Principal Weber,
Dean Bridgham, Chairperson Louzon, and CRSD.
Keep this cheat-sheet handy in the pages to come.
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Cir. 2012)). Zell's complaint says a whole lot. However, given
the issues remaining on appeal, we only lay out the following
details which are relevant to and provide important context for
the claims now before us.
Incident, Suspension, and Immediate Aftermath
The event that served as the springboard for this
litigation took place at Rhode Island's Chariho2 High School (CHS)
on October 16, 2015, which was the Friday of CHS's "Spirit Week,"
a day historically marked by "mayhem," "increased risk for
students," and "school-sponsored bad decisions," as well as
"lighthearted and not-so-lighthearted bantering or even
aggression." The day began as it always did, with toga-clad
seniors processing into school through a shower of silly string,
sprayed both by the seniors themselves and the surrounding
underclassmen. Students were allegedly vandalizing lockers and
throwing streamers and litter around in the hallway. And in
addition to the aforementioned "lighthearted and some not-so-
lighthearted bantering," there were also "shows of aggressive
bantering."
In the midst of this scene, then-junior Zell was on the
sidelines of the procession sporting her field hockey uniform as
2 Falling under the header of "you learn something new every
day": Chariho is "[a] district made up of the towns of
Charlestown, Richmond, and Hopkinton." See
https://www.quahog.org/factsfolklore/index.php?id=43.
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a display of school spirit -- like everyone else, she was
"indiscriminately" spraying silly string in the air at student
passers-by, and some of that silly string landed on then-senior
McGinley. Then, while chatting idly with friends and with her
back turned towards McGinley, Zell, out of the blue, was attacked.
Using her cell phone as a weapon, McGinley sprinted towards Zell
and with the "hard edge" of her phone, delivered several "hammer
blows" to Zell's head. Zell fell forward, and McGinley ran away
laughing.
Zell went to class in pain and confused, then was
summoned to Dean Bridgham's office. Once there, Zell had "trouble
comprehending" what Dean Bridgham was saying to her, but she did
register that McGinley had self-reported hitting Zell. Dean
Bridgham sent Zell back to class after asking her a few questions
-- not about her wellbeing, though -- then she was called back
down to Dean Bridgham's office a little while later, this time
with Principal Weber present. The two questioned Zell, after which
Dean Bridgham made an unexpected announcement. He informed Zell
that she would face a one-day suspension for "fighting (or
instigating a fight)" because the school had found out that she
supposedly called McGinley a bitch and sprayed McGinley in the
face with silly string. Same punishment to befall McGinley.
"[C]rying hysterically" due to the news of her
suspension, Zell called her father, who arrived at CHS around 11:00
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a.m. and immediately inquired whether anyone had evaluated his
daughter for a concussion. No teacher or school official, to that
point, had asked Zell about her head injury or suggested that she
be sent to the school nurse or otherwise medically evaluated, but
upon Mr. Zell's questioning, school officials agreed that it "would
be a good idea." Upon evaluating Zell, the school nurse quickly
determined she was likely concussed, a diagnosis confirmed at the
hospital later that day.
That night, Zell's parents went to the Richmond Police
Department intending to file charges against McGinley for assault
and battery of their daughter. An officer initially told them
that McGinley would be arrested promptly that evening, but later
(it's unclear when, exactly), he twice switched gears (both times
without explanation): first, he said McGinley would be arrested
at school by the School Resource Officer the following Monday;
then, he reported that McGinley would not be arrested at all unless
Zell also was arrested for disorderly conduct. The Zells were not
given a satisfactory explanation for this flip, but they didn't
want their daughter facing "unjustified" criminal charges, so they
abandoned the criminal-charges approach and formulated a new game
plan.
The Suspension Appeals
So began the Zells' challenge to the school's suspension
decision. With Zell at home recovering for six days, her father
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first appealed to Superintendent Ricci, providing to him a detailed
account of the events as told by Zell and her friends, and
corroborated by the surveillance video of the incident. At first,
Superintendent Ricci asked to speak with Zell, but ended up
upholding the suspension without talking to her directly.
The Zells appealed Superintendent Ricci's decision to
the Committee, which held a hearing (roughly four months after the
incident took place), during which Attorney Anderson represented
CRSD (the school district, remember) and Superintendent Ricci. In
the course of the hearing, the Committee played only portions of
the video of the incident and refused to consider footage of
McGinley striking another student on the head with her cell phone
while on a school bus. As Zell tells it, Chairperson Louzon signed
the Committee's decision to uphold the suspension "without review
or input," and so the suspension stood.
Still aggrieved, the Zells, now represented by counsel,
appealed that decision to RIDE, where a two-day hearing ensued
with over ten witnesses (all of whom were subjected to direct and
cross examination), and which yielded "nearly a foot of
transcripts." During that proceeding, Dean Bridgham acknowledged
"there was a lack of some needed policy or some related failure by
the school district to handle the situation, including [Zell]'s
concussion." As for Zell's presentation, amongst her extensive
submittals was "an expert witness in investigation" who gave his
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take on the surveillance video. Ultimately, RIDE issued a decision
with "two-and-half pages" of analysis upholding the suspension,
causing the Zells to take issue with such a "shockingly short"
decision, which cited "to literally none of [their] evidence."
Undeterred, the Zells pressed on, appealing RIDE's
decision to the Council. In so doing, the Zells submitted the
full record to that point, which included the hefty transcripts,
their single-spaced forty-five-page brief, CRSD's eighteen-page
opposition brief, and the Zells' thirty-six-page reply. The
hearing saw twenty minutes of argument by the Zells, followed by
comments from CRSD's attorney. After listening to both sides, the
Council deliberated and ultimately rendered an oral decision.
Siding with Chariho, the Council upheld the suspension, and later
followed up with a May 9, 2017 written five-page decision rejecting
the Zells' claims of error and affirming the suspension with, as
the Zells tell it, "no reasoning whatsoever."
Federal District Court Proceedings
About a year and a half after the "Spirit Week" incident,
the Zells filed an eleven-count, 363-paragraph, forty-nine-page
complaint in district court -- more on the specific counts later.3
Motions to dismiss (under Rules 12(b)(6) (for failure to state a
3 The complaint was amended twice for small errors or
omissions. When we refer to the complaint, we are talking about
the second amended complaint.
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claim) and 12(b)(1) (for lack of subject matter jurisdiction) of
the Federal Rules of Civil Procedure) from all defendants swiftly
followed. The Zells objected to each. Upping the ante, a couple
of months later, Principal Weber, Dean Bridgham, and Chairperson
Louzon filed a motion for sanctions against the Zells' counsel
based on what they characterized as excessive and frivolous
filings. The district court heard oral arguments on all motions
on February 2, 2018.4
In a thorough Memorandum and Order issued on March 30,
2019, and pertinent here, the district court, citing failure to
state a claim, dismissed Count I (against RIDE and the Council
alleging procedural due process violations pursuant to 42 U.S.C.
§ 1983) and Count II (against the School Defendants alleging equal
protection violations pursuant to 42 U.S.C. § 1983). Zell v.
Ricci, 321 F. Supp. 3d 285, 296-97 (D.R.I. 2018). And, after first
exercising supplemental jurisdiction over the counts of state-law
negligence and negligent training/supervision (Counts VIII and
4
In addition to the counts before us on appeal, the complaint
contained civil conspiracy claims (Counts III and IV), an
administrative appeal of the Council's decision (Count V), assault
and battery claims against McGinley (Count VI), a claim for the
intentional infliction of emotional distress (Count VII), a
defamation claim against all defendants (Count X), and an ADA claim
for failure to reasonably accommodate (Count XI). Each of these
counts was dismissed -- or supplemental jurisdiction over them was
not granted -- and those decisions are not challenged on appeal.
Therefore, we recap the disposition specifics only as to the issues
that have made their way to us on appeal, fleshing things out as
needed along the way.
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IX),5 except for those against McGinley (more on this later), the
district court dismissed those counts too, for failure to state
claims. Id. at 302. Then, finding futility, the district court
denied Zell's motion to amend her complaint. Id. at 304. Finally,
turning to the motion for sanctions, the district court called it
a "close call," but in the end denied them. Id. at 304 n.21.
Now before us, Zell claims as error the district court's
dismissal of Counts I and II, as well as its exercise of
supplemental jurisdiction over and dismissal of Counts VIII and
IX. For their part, as noted earlier, Dean Bridgham, Principal
Weber, and Chairperson Louzon cross-appeal the denial of their
motion for sanctions.
DISCUSSION
Before turning to the merits of Zell's challenges, we
revisit our familiar parameters for reviewing Rule 12(b)(6)
motions to dismiss, the mechanism by which most of her claims
ultimately were rejected.6
For starters, it is axiomatic that "[w]e give de novo
review to a Rule 12(b)(6) [failure to state a claim] dismissal,
using the same criteria as the district judge." Schatz, 669 F.3d
5On appeal, Zell is chasing down only the negligent training
and supervision aspects of Count IX, not the hiring and retention
also mentioned in that count as it reads in the complaint.
6 Certain of the appellate contentions in this appeal merit
abuse-of-discretion review, but we'll flag the application of that
standard when, down the road, we encounter the need for it.
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at 55 (citing Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7,
11–13 (1st Cir. 2011)). As we've already noted (but it bears
repeating), we take as true the allegations of the complaint, as
well as any inferences we can draw from them in Zell's favor. See
Ocasio-Hernández, 640 F.3d at 7. In undertaking our review of the
adequacy of the complaint before us,
our circuit has instructed that the review should be
handled like this: first, "isolate and ignore
statements in the complaint that simply offer legal
labels and conclusions or merely rehash cause-of-action
elements[,]" then "take the complaint's well-pled (i.e.,
non-conclusory, non-speculative) facts as true, drawing
all reasonable inferences in the pleader's favor, and
see if they plausibly narrate a claim for relief."
Zenon v. Guzman, 924 F.3d 611, 615–16 (1st Cir. 2019) (alteration
in original) (quoting Schatz, 669 F.3d at 55) (discussing, among
other cases, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)); see also Ocasio–Hernández,
640 F.3d at 12. "Plausible, of course, means something more than
merely possible, and gauging a pleaded situation's plausibility is
a 'context-specific' job that compels us 'to draw on' our 'judicial
experience and common sense.'" Schatz, 669 F.3d at 55 (quoting
Iqbal, 556 U.S. at 679).7
7 We pause here to acknowledge and reject Zell's assertions
that a pre-Twombly standard applies to the complaint because
Twombly didn't actually change the pleading standard, an assertion
on which she doubles down in her reply brief. She insists that
the pleading standard did not change with Twombly -- in her view,
Twombly simply redefined the existing standard set out in Conley
v. Gibson, 355 U.S. 41 (1957). But she's incorrect. Her framing
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This framework in place, we turn to the dismissals of
the federal-law claims. We then consider the intertwined matters
of supplemental jurisdiction and dismissal of the state-law
negligence claims before concluding with our take on the denial of
the motion for sanctions.
Count I: Procedural Due Process
On appeal, Zell challenges the dismissal of her
procedural due process claims against RIDE and the Council. Before
we lay out the particulars of her challenge, we spell out some due
process basics. "The threshold question in any claim for denial
of procedural due process is whether [a plaintiff was] deprived of
a liberty or property interest protected by the United States
Constitution." Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 9 (1st
Cir. 2010) (citing Lowe v. Scott, 959 F.2d 323, 334 (1st Cir.
1992)). And when a protected interest exists, the analysis turns
to a determination of "what process was due." Id. (citing Goss v.
López, 419 U.S. 565, 577 (1975) (explaining that "[n]either the
property interest in educational benefits temporarily denied nor
the liberty interest in reputation, which is also implicated, is
so insubstantial that suspensions may constitutionally be imposed
by any procedure the school chooses, no matter how arbitrary")).
does not accurately track the evolution of the pleading standard,
and we decline her invitation to apply outdated tests in our review
of the sufficiency of her pleadings.
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As we make that determination, we observe that "due process is
flexible and calls for such procedural protections as the
particular situation demands." Morrissey v. Brewer, 408 U.S. 471,
481 (1972).
Homing in on Zell's claims, her complaint describes her
protected interests as the "right and liberty interest in not being
deprived of her reputation" as well as a "right to not endure
'stigma' plus a right to not be deprived of present or future
educational, scholarship, and job opportunities" because of the
blight on her record (the mention of educational opportunity loss
smacks of an alleged property interest, though Zell never
explicitly says as much). As for Zell's denial of due process
allegations, she contends, in Count I, that she was deprived of
her protected liberty interests as a result of the actions of RIDE
and the Council, particularly when they did not afford her proper
notice, opportunity to be heard, and a fair hearing with an
impartial decisionmaker. These assertions culminate in the
allegation that RIDE and the Council "deprived [Zell] of her
liberty interests without due process of law."
Clearly viewing Zell's contentions as failing to state
a cognizable claim, defendants filed 12(b)(6) motions to dismiss
before the district court. In opposition to defendants' motions,
Zell argued that the "[a]llegations in the complaint factually
describe the acts and omission that support constitutional due
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process violations," and then stated that these defendants
"violated [her] Due Process rights to a fair hearing, to an
impartial decision maker, a determination based solely on the
evidence presented at the hearing, and a reasoned decision stating
the evidence upon which the decision relies, and a decision based
on precedent."
In its consideration of Zell's claims, the district
court determined RIDE and the Council had the better argument and
explained why. Understanding her procedural due process argument
to be focused primarily on notice, opportunity to be heard, and an
impartial decision maker -- unsurprisingly since the district
court's analysis tracked Zell's Count I assertions -- the district
court applied the Gorman v. University of Rhode Island, 837 F.2d
7, 16 (1st Cir. 1988), factors in explicating its ruling: due
process requires "not an 'elaborate hearing before' a neutral
party, but simply 'an informal give-and-take between student and
disciplinarian' which gives the student 'an opportunity to explain
his version of the facts.'" Zell, 321 F. Supp. 3d at 296.
Accordingly, Zell, as the district court put it, "received more
process than the Constitution dictates." Id.
Before us Zell narrows her focus. Her procedural due
process contention solely takes aim at the written decisions issued
by RIDE and the Council which she seems to be arguing are
unconstitutionally reasoned. The decisions, she posits, are so
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deficient in character and content as to constitute insufficient
due process. She says that because the RIDE hearing lasted two
days, involved ten witnesses, and generated a foot-high pile of
transcripts, "the written decision should have been comprehensive
and balanced, more in sync with the hearing it was based on." But
alas, she bemoans, the analysis in the decision is too short,
"cited to virtually no evidence, and only cited to evidence
presented by the school district." Further trampling her due
process rights, the Council, as Zell tells it, also erred in
affirming RIDE's decision with similarly legally insufficient
analysis and reasoning to support its adverse ruling. And Zell
continues, the district court doubly erred in its own ruling. Had
it reviewed her complaint more comprehensively, it would have seen
that her due process allegation had been adequately pled. Then,
maintaining her fixation on the purported deficiency of the written
decisions, Zell argues that the district court applied the wrong
legal framework to its scrutiny of her arguments.
As an initial observation, Zell, on appeal, does not
precisely point to where any of her purported written-decision-
based allegations, as they relate to due process, are borne out in
her complaint. Count I never delves into (or even specifically
mentions) the written decisions as a basis for the procedural due
process violation (contrast this with the clear references to
challenging, as a matter of law, proper notice, opportunity to be
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heard, and a fair hearing). And although Count I generally
incorporates the paragraphs that precede it, several of which
mention the perceived faultiness of the written decisions relative
to her administrative appeal claim (Count V, the dismissal of which
is not challenged on appeal),8 Zell does not flesh out in her
8 The incorporated paragraphs which reference the written
decisions read as follows:
198. After the hearing, the RIDE decision was shockingly
short citing to virtually no evidence, citing to
literally none of Plaintiffs' evidence, ignoring
significant evidence counter to the findings, and relied
solely on A. Doe's contradicted and impeached testimony,
provided no credibility weighing or reasoning, and
justified upholding the suspension after a two day
hearing using only approximately two-and-a-half pages
discussing the merits of that decision.
199. Plaintiffs felt that due to the undisclosed ex
parte meeting between the Hearing Officer and Defendant
Ricci, due to the misrepresentations of facts by
Defendant Attorney Anderson, due to the Hearing Officer
barring relevant Plaintiffs' evidence and writing a
decision not supported by law and facts, that they were
deprived of an opportunity to be heard and deprived of
an impartial decision maker.
200. For the reasons above, K.Z., by and through her
parents Mark and Beth Zell, then appealed to the Council
of Primary and Secondary Education ("Council") assigning
a number of errors by RIDE described in Count V.
. . .
214. On or about May 9, 2017, the Council's Decision
was released affirming the discipline; the decision was
only five pages long and found against Plaintiffs on all
five groups of errors assigned, but provided no
reasoning whatsoever.
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complaint how those paragraphs support a procedural due process
challenge.
But even giving Zell the benefit of the doubt that her
complaint should be read as she now contends, we conclude, as RIDE
and the Council argue, that Zell's Count I "insufficiently-
reasoned-decision" theory was properly dismissed.9 We so conclude
because Zell primarily advances only one legal argument in support
of her claim -- one which widely misses the mark. Specifically,
says Zell, the district court's reliance on Gorman, 837 F.2d at
16, in its dismissal of her case was misplaced. Rather (as she
explains it on appeal), because her fundamental challenge is to
the adequacy of the written decisions provided by RIDE and the
Council, to answer the question of whether due process required
215. The May 9, 2017 Council decision simply decided
against all five alleged groups of errors, summarily
dismissing any error without any explanation.
216. As such, Plaintiffs judicially appeal the
Council's decision as arbitrary, capricious, and unfair
and violates the standard required by the Administrative
Procedures Act (APA) as alleged in Count V.
9RIDE and the Council also encourage rejection of Zell's
appellate contentions because, in their view, Zell's argument on
appeal sounds an awful lot like an administrative appeal since it
is based solely on the adequacy of the written decisions issued by
RIDE and the Council. Zell can't pull off this switcheroo, RIDE
and the Council argue, because the administrative claim had another
life as Count V of the complaint, but supplemental jurisdiction
was not extended to it, and its dismissal from the federal case
was not appealed. As will become apparent, though, we don't need
to contend with this argument.
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from each of them a more fulsome rendering, Zell points to Goldberg
v. Kelly, 397 U.S. 254, 271 (1970), the Supreme Court's landmark
case setting forth the fundamental requisites of procedural due
process law. According to Zell, Goldberg explains that "the
decision maker should state the reasons for his determination and
indicate the evidence he relied on," and, importantly, she has
received neither. Id. But here's the rub: even using Zell's
preferred case to review her contention, it must be noted that the
Goldberg language she emphasizes is only a snippet of the guidance
offered by the Court, which went on to add "though his statement
need not amount to a full opinion or even formal findings of fact
and conclusions of law." Id.
With the complete Goldberg standard in mind, we look at
the RIDE and Council decisions about which Zell complains (too
short, not enough evidence cited, lack of reasoning) and consider
whether she has sufficiently alleged in her complaint that they
were so inadequate as to constitute a deprivation of her due
process rights.
To begin, we reiterate: Zell's procedural due process
count itself, Count I, charges no specific fault with the written
decisions. But to the extent Zell is arguing that her complaint
more globally asserts that the written decisions form the basis
for her procedural due process challenge -- perhaps thinking of
paragraphs 198 through 216, as we laid out in footnote 8 -- even
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a generous reading of the complaint cannot breathe life into that
position. Because what is telling here is this: even if these
assertions weren't made only with an eye towards the administrative
law claims as they clearly appear to be, the allegations still
focus primarily on the opportunity to be heard and the decision
makers' partiality. Although Zell does gripe about the written
decisions in three of the Count V paragraphs, she makes no
allegation that the written decisions themselves were legally
deficient, nor does she asseverate how the decisions themselves
fall short of what due process demands.
And even applying Goldberg to the information we have,
we know that the written decision by RIDE included two-and-a-half
pages of analysis and the Council's decision was a five-pager;
both decisions provide reasoning, and both cite evidence. Zell
fails to explain why the length of these administrative opinions
should matter. Nor is it apparent to us how the decisions' failure
to address every plausible reason for upholding the suspension
decision, or failure to reference every bit of evidence submitted
by Zell, makes these opinions constitutionally infirm when,
according to Goldberg, the decision maker's decision, though it
need be reasoned and make reference to the evidence, nonetheless,
"need not amount to a full opinion or even formal findings of fact
and conclusions of law." Id.
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Moreover, the Supreme Court has specifically addressed
what fundamentally fair procedures are generally required for
school suspensions of less than ten days. Goss, 419 U.S. at 581-
82.10 It has indicated that the student must first "be told what
[s]he is accused of doing and what the basis of the accusation
is." Id. at 582. Then, she must be given "an opportunity to
explain [her] version of the facts" at an informal hearing. Id.
Absent an unusual situation, school officials are not obligated to
generate any written opinion, much less hold a trial-like
proceeding followed by a multi-page refutation of arguments and
evidence. Id. at 583 (remarking that "hearings in connection with
short [ten-day] suspensions" need not "afford the student the
opportunity to secure counsel, to confront and cross-examine
witnesses supporting the charge, or to call his own witnesses,"
and cautioning against "further formalizing the suspension process
and escalating its formality and adversary nature"). Accordingly,
10
Surprisingly, on appeal, RIDE and the Council do not mention
Goss, which, for a controversy like Zell's, is still the go-to
school-suspension case after forty years. On the other hand, Zell
quotes an uncontroversial statement from Goss -- "In school
suspension cases, 'it disserves both [the student's] interest and
the interest of the State if [the student's] suspension is, in
fact, unwarranted' and unfortunately the disciplinary process is
not an 'accurate, unerring process, never mistaken and never
unfair,'" Brief of Plaintiff–Appellant/Cross–Appellee Kelsey Zell
at 24 (quoting Goss, 419 U.S. at 579–80) -- and uses it to then
conclude that a student facing a ten-days-or-less suspension has
an interest that merits due-process protection. This is the extent
of Zell's Goss discussion.
- 21 -
we note our agreement with the district court that Zell "received
[from these defendants] significantly more process than she was
due."11 As such, Zell failed to "plausibly narrate a claim for
relief," Schatz, 669 F.3d at 55, and the district court did not
err when it dismissed her complaint.12
Count II: Equal Protection
Zell next takes aim at the dismissal of her complaint's
equal protection count. But what, exactly, she's arguing (and
whether she's argued it before) depends on who you're asking.
As the School Defendants point out, Zell's arguments
below were trained on multiple equal protection violations as
described in her complaint and multiple similarly-situated
comparator groups -- different groups for different violations of
her rights, she explained. For example, with respect to the
"initial discipline event," Zell described the similarly-situated
comparator group as a group of students that also participated in
"Spirit Week" by spraying silly string, but who, unlike Zell, were
not disciplined. In fact, as the district court observed, such "a
11 It may well be that this meritless procedural due process
claim was a frivolous one, but its lack of merit is not targeted
by the Rule 11 sanctions motion filed by the cross-appellants,
which we discuss further down the line.
12 As we mentioned before, RIDE and the Council urge that Zell
is trying to resurrect her administrative law claim through this
procedural due process claim, but there is no need for us to weigh
in on this since we affirm the dismissal of this claim on the
merits.
- 22 -
wide swath of students" were pled as comparators that none appeared
to be sufficiently similar to Zell. Yet in pleading so broadly,
the district court did view her complaint as necessarily alleging
-- even if inadequately -- a class-of-one theory. Zell, 321 F.
Supp. 3d at 297.
Notwithstanding her multiplicity of arguments to the
district court, before us, we understand Zell to be advancing a
class-of-one equal protection claim solely. Specifically, her
theory is that she was singled out and subjected to disparate
treatment by the School Defendants, who withheld information
during the administrative appeals and misrepresented what happened
to administrative decisionmakers, such conduct being a clear
departure from standard protocol and, therefore, a violation of
her rights.13 Zell does not identify the "standard protocol" from
which these defendants departed in not providing her a "normal,
fair hearing," but she explains that the comparator group for this
alleged violation is "other similarly-situated students that were
disciplined (for any reason) and this discipline was appealed to
the school committee, but these students were given a fair hearing,
13Zell says instances of withholding of information and
misrepresentations include, for example, that the School
Defendants withheld a video showing McGinley using her cell phone
as a weapon against a different student on another occasion, and
also the School Defendants -- incontrovertibly knowing that
McGinley had used her cell phone to strike both Zell and another
student -- nonetheless asserted that a teenage girl would never
use her cell phone as a weapon.
- 23 -
unlike Zell." While Zell concedes that her contentions may have
been "inelegantly" described -- "clumsily pleaded," even -- and
acknowledges "that she could have alleged the similarly-situated
comparators more clearly," she still maintains that she
sufficiently pled her class-of-one theory such that her equal
protection claim should have survived dismissal, especially with
the benefit of every reasonable inference tipping the scales in
her favor.
Conversely, the School Defendants say Zell's class-of-
one theory is not just inelegantly pled -- she never presented
this theory to the district court at all, and it's not discernible
in the complaint, so it's waived. And even if not waived, they
argue, it is still not a winner because, assuming her pleading
could be charitably viewed as stating a basic class-of-one theory,
Zell still has not adequately pled comparators to show her
differential treatment.14 Bypassing waiver, we agree.
The Supreme Court has written that "[t]he purpose of the
equal protection clause of the Fourteenth Amendment is to secure
every person within the State's jurisdiction against intentional
and arbitrary discrimination, whether occasioned by express terms
of a statute or by its improper execution through duly constituted
14 The School Defendants also argue that Superintendent
Ricci, Principal Weber, and Dean Bridgham are qualifiedly immune
from suit, but we have no need to reach that issue.
- 24 -
agents." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(per curiam) (alteration in original) (internal quotations and
citations omitted). As for a "class of one" equal protection
claim, such a claim exists "where the plaintiff alleges that she
has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment." Id. (collecting cases); see also Gianfrancesco v.
Town of Wrentham, 712 F.3d 634, 639-40 (1st Cir. 2013). Specific
to this class-of-one arena, we've said the "plaintiff bears the
burden of showing that [her] comparators are similarly situated in
all respects relevant to the challenged government action."
Gianfrancesco, 712 F.3d at 640 (citations omitted). In light of
Zell's claim, she also needed to allege "that the different
treatment was based on a malicious or bad faith intent to injure."
Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (citing
Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004)).
With these guiding principles in mind, we conclude that
Zell's complaint does not pass muster. Again, Zell is clear in
her briefing that she is pursuing the sole equal protection theory
that, as a class of one, she was treated differently than "other
similarly-situated students that were disciplined (for any reason)
and this discipline was appealed to the school committee, but these
students were given a fair hearing, unlike Zell." But here's how
her equal protection count actually reads in relevant part.
- 25 -
249. Plaintiff K.Z. was singled out by the government
and state actors, becoming the specter of arbitrary
classification and differential treatment
250. Upon information and belief, similarly situated
students at Chariho High School were not singled out by
CRSD and the CSC, as Plaintiff K.Z. was, for adverse and
differential treatment.
251. Upon information and belief, similarly situated
students before RIDE and the Council were not singled
out for adverse and differential treatment.
252. Accordingly, Plaintiff K.Z. falls within a
protected class.
253. Defendants, by the aforesaid actions and/or
omissions, have deprived Plaintiff K.Z. of her equal
protection of rights guaranteed under Article 1, Section
2 of the State Constitution and the Fifth and Fourteenth
Amendments of the federal Constitution.15
Problem is, even assuming favorably that the students
referenced above were intended to be her comparators, Zell's
complaint falls short of sufficiently pleading that those
comparators were "similarly situated [to Zell] in all respects."
Gianfrancesco, 712 F.3d at 640. "It is true that an exact
correlation need not exist between a plaintiff's situation and
that of others in order to make a 'similarly situated' comparison,"
but as pled, this "claim is far from adequate." Buchanan, 469
F.3d at 178 (internal citation omitted). Her complaint makes
mention of other students not being "singled out" as Zell believes
15 Paragraph 248 incorporates by reference all of the
preceding paragraphs. But nothing that comes before paragraph 248
-- or after paragraph 259, where her equal protection count ends
-- serves to sharpen Zell's class-of-one theory.
- 26 -
she was, but it says nothing about similarly situated students
having been disciplined, nor does it allege that they, unlike Zell,
got a fair hearing or a more robust written decision after
appealing their discipline.
Moreover, even supposing the comparators had been
clearly pled, the complaint fails to allege that there was no
rational basis for "the adverse and differential treatment" the
complaint mentions and, further, that such treatment was based on
a malicious or bad faith intent to injure. An equal protection
claimant "may not prevail [against a Rule 12(b)(6) motion] simply
by asserting an inequity and tacking on the self-serving conclusion
that the defendant was motivated by a discriminatory animus."
Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)
(citations omitted). In essence, and at most, that's all we have
here.
What's more, undermining her class-of-one angle is that
aspect of Zell's pleading wherein she asserts she "falls within a
protected class." SBT Holdings, LLC v. Town of Westminster, 547
F.3d 28, 33 (1st Cir. 2008) (citing Olech, 528 U.S. at 564)
(observing that a "class of one" claim is "a claim in which the
plaintiffs do not claim membership in a class or group" (emphasis
added)). Because a class-of-one contention necessarily means she
was "singled out for reasons unique to [her], not because of [her]
membership in a particular group," Najas Realty, LLC v. Seekonk
- 27 -
Water Dist., 821 F.3d 134, 144 (1st Cir. 2016) (citing Snyder v.
Gaudet, 756 F.3d 30, 34 (1st Cir. 2014)), to also have the
complaint allege that she is a member of a protected class, and
where she makes clear on appeal that she is not pleading in the
alternative, rather undercuts the class-of-one angle she's now
arguing.
In the end, the class-of-one theory Zell says she stated
in her complaint is deficiently pled. As such, the equal
protection count was properly dismissed.
Supplemental Jurisdiction and the State-Law Negligence Claims
The next piece of this puzzle concerns the state-law
negligence claims, the supplemental jurisdiction extended to them,
and the ultimate dismissal of those claims. Before we tackle the
interplay between these issues, we recap the procedural backdrop.
In the district court, various defendants responded to
Zell's state-law claims by moving for dismissal for lack of subject
matter jurisdiction as well as failure to state a claim. As part
of her opposition to those dispositive motions, Zell filed a motion
requesting that the district court "Take Supplemental Jurisdiction
of Count V [(the administrative appeal)] and All State Law Claims."
Some defendants objected to that motion, calling it premature and
unnecessary since the district court would automatically deal with
the jurisdictional component of the state-law claims depending on
how the motions to dismiss fared. In fielding all of these motions
- 28 -
and various objections to them, the district court exercised
supplemental jurisdiction over some, but not all, of Zell's state-
law claims.16 Specifically, the district court declined to
exercise supplemental jurisdiction over her administrative appeal
and all state-law claims as they pertain to McGinley (the
cellphone-wielding actor in the "Spirit Day" altercation, you'll
recall, who's named in Counts VI, VII, VIII, and X), dismissing
them without prejudice as better brought and decided in state
court. Zell, 321 F. Supp. 3d at 299-300, 304. But, as to the
state-law claims relating to the other defendants (Counts VIII and
IX, the negligence and negligent training and supervision claims,
respectively), the district court took a different route. It found
that those claims were entangled with the federal constitutional
claims, and "concerns for 'comity, judicial economy, and
fairness'" merited the exercise of supplemental jurisdiction. Id.
at 300 (citing 28 U.S.C. § 1367). After exercising supplemental
jurisdiction, the district court proceeded to dismiss those claims
for failure to state a claim. Id. at 302.
16
It is implicit in the district court's reasoning that there
was no independent basis for subject matter jurisdiction -- that's
why supplemental jurisdiction would be necessary to keep the claims
in federal court. On appeal, none of the many parties jump into
the Rule 12(b)(1) arena, likely because of the way the district
court's analysis and supplemental jurisdiction rulings shook out.
- 29 -
On appeal, of all those dismissed state-law claims, Zell
focuses her challenge on the dismissal of her negligence claims
(Counts VIII and IX) only.
This context laid out, bear with us as we explain how we
will navigate the issues presented.
As we've already mentioned, Zell's two state-law
negligence claims are in federal court solely as a result of the
district court's exercise of supplemental jurisdiction. See 28
U.S.C. § 1367. Given our earlier decision to affirm the dismissals
of the federal-law claims, however, there are no federal claims
remaining in this case. This is important because the Supreme
Court has instructed that "in 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
(1988); see also 28 U.S.C. § 1367(c)(3).
What's more, "we have held that, when all federal claims
have been dismissed, it is an abuse of discretion for a district
court to retain jurisdiction over the remaining pendent state law
claims unless doing so would serve 'the interests of fairness,
judicial economy, convenience, and comity.'" Wilber v. Curtis,
872 F.3d 15, 23 (1st Cir. 2017) (quoting Desjardins v. Willard,
- 30 -
777 F.3d 43, 45-46 (1st Cir. 2015)); see Rivera-Díaz v. Humana
Ins. of P.R., Inc., 748 F.3d 387, 392 (1st Cir. 2014).
Furthermore, under this standard, we've gone on to say that it can
constitute an abuse of discretion -- if no federal claim remains
to which the state-law claims can be tethered -- "for a district
court to retain jurisdiction over a pendent state law claim when
that state law claim presents a substantial question of state law
that is better addressed by the state courts." Wilber, 872 F.3d
at 23 (citing Desjardins, 777 F.3d at 45-46).
All of that said, however, Zell does not argue on appeal
that, once the federal claims were dismissed for failure to state
a claim (as we have determined that the district court rightly
held), that the district court's decision to retain jurisdiction
is at odds with principles of comity, judicial economy, fairness,
and the like, and thus that the dismissals of her pendent state-
law claims should be vacated per Desjardins.17 In fact, with
17
Zell takes a different approach in attempting to challenge
the way in which the district court exercised supplemental
jurisdiction over her state-law claims. Specifically, she argues
that the district court abused its discretion by exercising
supplemental jurisdiction over some state-law claims but not all
since, as she sees it, all the state-law claims are bound up in a
common nucleus of operative facts. As such, to her thinking, the
district court's decision was an all-or-nothing proposition, and
her state-law claims therefore should have all been kept in federal
court, or all of them should have been dismissed without prejudice
so she could file in state court.
But Zell does not direct us to any authority demonstrating
the viability of her package-deal theory (that because the district
court exercised jurisdiction over some state-law claims, it should
- 31 -
respect to the state-law claims, Zell focuses her appellate attack
on the merits-dispositions, asking that we overturn the dismissals
of her pendent state-law claims on the ground that the district
court erred in concluding that she had not plausibly stated those
claims.
That is the challenge we now confront -- whether Zell
plausibly stated these state-law negligence claims -- and given
that she does not develop a viable argument that the district court
abused its discretion by exercising supplemental jurisdiction over
those claims, we can "affirm at least those portions of the ruling
granting [dismissal] that are so plainly correct that no
substantial question of state law is presented." Wilber, 872 F.3d
at 23. At the same time, when such unanchored state-law claims
are not obvious duds, but instead present substantial issues of
state law that are best resolved in state court, we have -- on our
have exercised jurisdiction over all of them -- or vice versa).
Just because that is what Zell desired when she asked the district
court to exercise supplemental jurisdiction does not make it so as
a matter of law, and her failure to develop this point with the
support of authority is enough to doom it. See, e.g., Dialysis
Access Ctr., LLC v. RMS Lifeline, Inc., 932 F.3d 1, 12 (1st Cir.
2019); see also Holloway v. United States, 845 F.3d 487, 491 n.4
(1st Cir. 2017) (refusing to consider an argument due to its lack
of development when the party did not make any legal citations
supporting its argument); Rodríguez v. Municipality of San Juan,
659 F.3d 168, 176 (1st Cir. 2011) (refusing to consider arguments
when appellant failed to provide necessary case law and any
reasoned analysis to prove his point); United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (stating that litigants must develop
their own arguments rather than "leaving the court to do counsel's
work").
- 32 -
own initiative -- declined to decide their merits and instead
remanded them to state court, see id. at 24–25, or directed their
dismissal without prejudice, see also Robinson v. Town of
Marshfield, 950 F.3d 21, 31 (1st Cir. 2020) (noting that, because
state-law claims were in federal court strictly because of an
exercise of supplemental jurisdiction, the court still had to
grapple with the question of whether to "address their merits or
direct their dismissal without prejudice in the interests of
comity").
This blueprint for review makes good sense, especially
in a case such as this one. As framed before us now, this
intertwined supplemental jurisdiction and merits-dismissal matter
is less about an abuse-of-discretion review of the district court's
decision to exercise supplemental jurisdiction; it's more about
exercising our own discretion not to render decisions that would
inappropriately pass on the merits of substantial state-law
questions. See, e.g., id. (reiterating that "this course best
serves 'the interests of fairness, judicial economy, convenience,
and comity'" (quoting Wilber, 872 F.3d at 23)); see also
Desjardins, 777 F.3d at 46 (declining to decide "whether the
district court abused its discretion in resolving the state claims
when it did"). This methodology allows us to abstain from
imprudent appellate decisions on the merits.
- 33 -
So the fact that Zell did not ask us to consider comity,
fairness, or judicial economy does not prevent us from undertaking
this approach. As our just-discussed case law makes clear, we
can, under certain circumstances, vacate a state-law claims
merits-dismissal and direct dismissal without prejudice if we
think comity concerns counsel against wading into a substantial
state-law issue on appeal. Indeed, that's just what happened in
Desjardins, Wilber, and particularly Robinson, which extended this
rationale to direct dismissal in a case more closely resembling
Zell's, i.e., a non-removed case where the plaintiff actually chose
the federal forum. It makes sense for us to implement this
approach because comity, which of course is about relations between
the state and federal systems, is a unique beast -- unlike other
issues we normally would not review (except, perhaps, for plain
error) when the parties fail to argue them, the parties generally
do not have an incentive to argue for or against enforcement of
those independent, system-focused comity interests. Truth be
told, it wouldn't make sense to rely on them to do so since it
isn't an element that directly or necessarily involves a personal
interest.
Now, with all of this in mind, we turn to the two state-
law negligence claims Zell has beseeched us to resurrect in the
wake of the district court's dismissals.
- 34 -
We begin with Zell's negligent training and supervision
count (Count IX), the dismissal of which we have no difficulty
affirming. In that claim, Zell alleges that the School "Defendants
are vicariously responsible and responsible for the acts and
omissions of the Defendants' agents under the theory of respondeat
superior." This count does not offer this allegation as something
she pleads in the alternative -- it is the sole theory of recovery
in this count for the School Defendants' alleged breach of their
duty to train and supervise its employees. But the allegation
suffers a fatal flaw, which the district court appropriately
flagged: Rhode Island law instructs that "liability for the
harmful acts of employees is not premised on the doctrine of
respondeat superior, but on a separate affirmative duty owed by
the employer." Liu v. Striuli, 36 F. Supp. 2d 452, 467 (D.R.I.
1999). And because the Rhode Island Supreme Court has clearly
explained that "the liability of an employer in the negligent
supervision or hiring of an unfit employee is an entirely separate
and distinct basis from the liability of an employer under the
doctrine of respondeat superior," Mainella v. Staff Builders
Indus. Servs., Inc., 608 A.2d 1141, 1145 (R.I. 1992), the district
court was correct in its conclusion that Zell's Count IX fails to
state a claim as a matter of law.18
18 And while Zell attempts to write off her "respondeat
superior" language as a "typographical error," we remind her that
- 35 -
That leaves us with Zell's general negligence claim,
which is a bit more complicated. Count VIII, a general state-law
negligence count, zeroes in on the School Defendants' perceived
breach of their duty to adequately supervise Chariho's hallways on
a known day of mayhem and to properly evaluate Zell after she
suffered a head injury. The district court dismissed it for
failing to plausibly plead causation, finding that the attempt at
pleading that element was too conclusory.
We do not affirm the dismissal of this claim, and that
is because whether Zell has plausibly stated her claim turns on
questions of Rhode Island state law regarding duty, breach,
causation, and damages in Rhode Island schools, and these are
issues, we conclude, that are "best resolved in state court."
Desjardins, 777 F.3d at 46 (quoting Camelio v. Am. Fed'n, 137 F.3d
666, 672 (1st Cir. 1998) (cautioning that "[n]eedless decisions of
state law should be avoided both as a matter of comity and to
promote justice between the parties, by procuring for them a surer-
footed reading of applicable law")); see also Robinson, 950 F.3d
at 32 (again, taking a similar approach as we are taking); Wilber,
872 F.3d at 25 (same). Indeed, in our view, whether Zell has done
enough to "nudge[]" her claim "across the line from conceivable to
the complaint is the basis of our review, and we must assess the
language presented in it -- typos and all. This is particularly
true since Zell never filed a motion to amend accompanied by a
proposed amended complaint without the "typos."
- 36 -
plausible," Twombly, 550 U.S. at 570, poses a close question and
implicates sensitive, down-home local interests, i.e., Rhode
Island's schools and the interpretation of Rhode Island law
governing schools' liability.
Furthermore, this issue of state-law negligence in the
school is not one that shares any analytical nexus with the federal
claims we inspected earlier. Indeed, it's one thing when the
lingering state-law claims are subject to the same analysis or
analysis that flows from the disposition of the federal-law claims
such that the outcome of the state-law issue was essentially a
foregone conclusion. See, e.g., Robinson, 950 F.3d at 31-32
(resolving state-law claims that were tied to earlier federal-law
analysis but directing dismissal without prejudice of state-law
claims to which there was "no analogue" in the federal issues
already handled).
All told, the viability of this particular state-law
negligence claim will turn on the extent, under Rhode Island law,
of the School Defendants' duty to supervise school hallways during
a day of "known mayhem" and to evaluate student head injuries that
take place on school grounds. The legal determinations that would
need to be made for us to resolve the merits of this claim implicate
- 37 -
Rhode Island law, school policies, and localized concerns -- on
the facts of this case, this is no place for the federal court.19
We thus will vacate the dismissal of the state-law
general negligence claim and remand to the district court so it
can be dismissed without prejudice.20
19 We pause here to note that, before the district court and
now on appeal, these defendants raise the Coverdell Teacher
Protection Act as an affirmative defense. See 20 U.S.C. § 7946(a).
Given our disposition of the state-law negligence claim, this
affirmative defense remains to be adjudicated in state court. (The
defendants do not argue that the federal defense creates federal
jurisdiction. See, e.g., Rivet v. Regions Bank of La., 522 U.S.
470, 475 (1998) (discussing the "well-pleaded complaint rule")).
20 One last thing with respect to Zell's various appellate
contentions. Zell also says she should have been allowed to amend
her complaint to address any perceived deficiencies. In the normal
course, we review the denial of a motion to amend for abuse of
discretion, deferring to the district court's "hands-on judgment"
and for any adequate reason apparent from this record. Najas
Realty, LLC, 821 F.3d at 144 (citing Aponte–Torres v. Univ. of
P.R., 445 F.3d 50, 58 (1st Cir. 2006)).
But as we noted earlier, Zell did not actually file a motion
to amend. Instead, as an alternative to outright dismissal, she
perfunctorily requested leave to amend at the close of each
opposition submission below. We've said before that requesting
amendment as a fallback position, without more, is not sufficient
to constitute a motion to amend. See, e.g., Gray v. Evercore
Restructuring L.L.C., 544 F.3d 320, 327 (1st Cir. 2008).
That said, the district court concluded Zell would not be
allowed to amend her complaint, citing futility to support that
conclusion. Zell, 321 F. Supp. 3d at 304. As to the federal
claims and the state-law negligent supervision/training claim,
there was no abuse of discretion in so concluding, see, e.g.,
Aponte-Torres, 445 F.3d at 58, especially when Zell has not
demonstrated that any hypothetical amendment (she hasn't floated
a proposed amended complaint delineating the alterations she'd
make to rectify the deficiencies) would not have been futile.
As to the state-law general negligence claim (Count VIII),
though, our just-explained outcome on the dismissal of that claim
renders moot the denial of the motion to amend as to that claim.
- 38 -
The Cross-Appeal -- Motion for Sanctions
Finally, we confront the cross-appeal regarding the
denial of the motion for sanctions. Recall that before the
district court, Dean Bridgham, Chairperson Louzon, and Principal
Weber moved for sanctions to be imposed on Zell's counsel pursuant
to Rule 11 of the Federal Rules of Civil Procedure.21 More
particularly, they argued that the civil conspiracy allegations
contained in her operative complaint (not pursued on appeal) were
utterly frivolous. Further, they posited that Rule 11 sanctions
were warranted as to the arguments against Chairperson Louzon,
Dean Bridgham, and Principal Weber because Chairperson Louzon was
barely involved in the whole saga, and Dean Bridgham and Principal
Weber stand accused of "misrepresentations" and "mistruths"
without any factual support for those claims even being alleged.
The district court, terming it a "close call," denied
the motion for sanctions, and these defendants say that was in
error. Zell's counsel, to no one's surprise, agrees with the
denial of said motion. We review for abuse of discretion. See,
e.g., Silva v. Witschen, 19 F.3d 725, 727 (1st Cir. 1994) ("All
aspects of the Rule 11 sanctions decision are reviewed for abuse
21
Recall that Superintendent Ricci cross-appealed his own
sanctions-motion denial, but as we explained above, he has since
passed away and his cross-appeal was voluntarily dismissed by his
estate.
- 39 -
of discretion."); see also Lichtenstein v. Consol. Servs. Grp.,
Inc., 173 F.3d 17, 22 (1st Cir. 1999).
Rule 11(b) instructs that an attorney certifies that
what he or she presents to the court is formed from an inquiry
that is reasonable under the circumstances. Fed. R. Civ. P. 11(b).
Rule 11 goes on to say that sanctions "imposed under this rule
must be limited to what suffices to deter repetition of the conduct
or comparable conduct by others similarly situated." Fed. R. Civ.
P. 11(c)(4). In this circuit, we have explained that the district
court "is accorded 'extraordinary deference' when it has decided
to deny sanctions" because "trial courts are in the best position
to evaluate the intricacies of a case and to reach conclusions
about the motives of the parties and their counsel." Lichtenstein,
173 F.3d at 22–23 (quoting Salois v. Dime Sav. Bank of N.Y., 128
F.3d 20, 28 (1st Cir. 1997)). Indeed, to warrant sanctions, "it
is not enough that the filer's 'claim lacked merit' -- it must be
'so plainly unmeritorious as to warrant the imposition of
sanctions.'" Eldridge v. Gordon Bros. Grp., L.L.C., 863 F.3d 66,
88 (1st Cir. 2017) (quoting Protective Life Ins. Co. v. Dignity
Viatical Settlement Partners, L.P., 171 F.3d 52, 58 (1st Cir.
1999)).
We conclude the district court did not abuse its
discretion when it denied the motion for sanctions. These
defendants decry the lack of factual basis for the complaint's
- 40 -
allegations, alongside a gripe about the district court's
"erroneous" assessment of the evidence proffered to support the
need for sanctions, but none of their arguments persuade us that
the district court abused its discretion in determining that Zell's
filings didn't rise to the "so plainly unmeritorious" level
described in our precedent. We are unaware of -- and defendants
did not point us to -- any case law to support the notion that,
extraordinary deference owed notwithstanding, we should reverse
the district court's supportable decision not to impose sanctions.
On this record, we decline to do so.
CONCLUSION
We affirm the district court's dismissal of Zell's
federal claims (Counts I and II), the dismissal of the state-law
negligent training/supervision claim (Count IX), the denial of the
motion to amend as to those claims, and the denial of the motion
for sanctions. We vacate the district court's dismissal of Count
VIII and direct the dismissal of that claim without prejudice.
Each party shall bear its own costs.
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