PER CURIAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8073-13. Richard E. Shapiro argued the cause for appellants. Asaad K. Siddiqi argued the cause for respondent (Pashman Stein Walder Hayden, P.A., attorneys; Mr. Siddiqi and Steven D. Grossman, of counsel and on the brief). PER CURIAM

Plaintiffs B.S. and N.B. individually and on behalf of their son, H.K., an eighth grade student at defendant Noor-Ul-Iman School, appeal from the Law Division's dismissal of their complaint for failure to state a claim upon which relief could be granted, R. 4:6-2(e). The complaint alleged plaintiffs suffered harm and emotional distress as a result of defendant taking disciplinary action against the child, failing to adhere to its established disciplinary procedures and to have fundamentally fair disciplinary procedures in place, and imposing discipline in an "arbitrary, discriminatory and unfair manner by treating H.K. differently than other students" accused of similar misconduct. The motion judge dismissed the action after considering plaintiffs' complaint and the documents referred to in the pleading, and concluding that H.K was not expelled and that defendant followed the process contained in its disciplinary policies in a fundamentally fair manner.

On appeal, plaintiffs contend that the motion judge erred by dismissing their complaint based on the court's "fact finding [that was] contrary to the allegations in the complaint . . . prior to any discovery." In doing so, plaintiffs argue the motion judge "fail[ed] to assume as true the allegations in the complaint." Defendant responds by arguing the motion judge was correct in his application of the Rule 4:6-2(e) standard and in concluding that defendant's disciplinary process was fundamentally fair. It also contends that plaintiffs' arguments about their need for discovery and their allegations of bias in the disciplinary process were "red herrings," and that the judge's decision was consistent with applicable case law.

We have considered the parties' contentions in light of our review of the record and the applicable legal principles. We reverse.

The facts derived from plaintiffs' complaint and the documents referred to in the pleading can be summarized as follows. On May 8, 2013, H.K., who had achieved great academic success in school, was questioned by defendant's staff regarding allegations that he violated the school's "Harassment, Intimidation, and Bullying Policy" (HIB policy). During the interrogation, defendant's staff "called [H.K.] a liar" and "repeatedly told [him] to admit that he was involved in [the] incidents" alleged by other students. The staff also "instructed H.K. to write a statement" in response to the allegations of misconduct without ever identifying the exact nature of the allegations, and questioned H.K. for two to three hours before calling his parents. When plaintiffs finally met with school officials later that day, they were instructed to keep H.K. home until defendant completed its investigation into the allegations.

Defendant's "Behavioral Code," contained in its Parent/Student Handbook (Handbook), incorporated the HIB policy (collectively, the "policies") and provided nearly identical provisions regarding what conduct is subject to discipline and how disciplinary matters were to be handled. The policies called for an escalating disciplinary process for the handling of student behavioral issues. The Handbook provided:

The teacher will handle most disciplinary actions within the classroom. The teacher will inform the parent verbally and/or in writing if a student's misbehavior needs to be addressed [at home]. . . . [If] the behavior of the student continues to be inappropriate, a conference may be requested with the parents and teacher(s) to determine how to rectify the situation. In unresolved or severe cases, a conference of the parents, teacher(s), and the Head of School or a School Administrative Council [(SAC)] Member will be requested.

In the event that the student's misbehavior is repeated or severe, (as determined by the [SAC], it may lead to any of the following:

1. After-school detention with parent notification

2. Out-of[-]school suspension with parent conference

3. Expulsion of student . . . .

The HIB policy further specified how complaints of harassment, intimidation, or bullying would be investigated:

[T]he teacher(s), principal or School Executive Committee will conduct a prompt, thorough and complete investigation of each alleged incident. . . . At the conclusion of an investigation, the [investigating party] will submit a confidential written report with the findings of the investigation. If a finding of harassment, intimidation or bullying is substantiated,

the [investigating party] will recommend appropriate corrective action.

According to plaintiffs, defendant's investigation was defective and inconsistent with the policies for several reasons: H.K. was never informed of the exact charges against him; the investigation was led by a "senior staff member" with relatives in H.K.'s grade, who "was very angry, aggressive and acted with contempt towards H.K. and his parents"; "members of the staff who had conflicts of interest also failed to recuse themselves from any discussion or decision relating to H.K."; and, significantly, defendant never gave plaintiffs a copy of its investigation report.

As a result of its investigation, defendant notified plaintiffs in May 2013 that it was barring their son from returning to school and requiring that he be evaluated by a mental health professional. Defendant agreed, however, to allow him to complete his assignments from home for the remainder of the school year, without in-home instruction, but reserved its right to allow him to return in the fall until it received the results of the evaluation. In response, plaintiffs disputed "that the investigation was conducted with complete thoroughness," and suggested the situation "require[d] a more thorough investigation to uncover the complete timeline and facts." They also complained that H.K. was not given "a fair opportunity to defend himself against the charges," that the school's HIB policy "had not been communicated to parents[,] and that [plaintiffs] did not have fair and proper notice of that policy." They proposed the school reopen the investigation to be "conducted by three independent and respected community members," who would have full access to the evidence and be permitted to question those involved.

Despite their objections, plaintiffs permitted their son to be evaluated by a psychologist selected by defendant. The doctor evaluated H.K. in May 2013, and issued an initial report with his findings and an updated report for "clarification" in July 2013. According to the psychologist, while H.K. admitted to some of the misconduct of which he was accused, he "denied misbehavior of a sexual nature," and, although the psychologist concluded the boy violated the school's code of conduct, he "did not see signs of significant psychopathology or significant risks for violent behavior." The doctor recommended counseling through the school, professional therapy, and "open discussions" between H.K. and his parents regarding acceptable behavior. In his follow-up report, the doctor clarified that his recommendations were not intended as punishment, and observed that, while defendant had not provided the recommended counseling, plaintiffs had followed his recommendations, engaged their son in therapy, and provided him the suggested guidance. After speaking with the child again, the psychologist concluded the boy did "not warrant a mood disorder diagnosis and has shown an ability to effectively utilize help from his parents and myself."

On May 29, 2013, defendant responded to plaintiffs' concerns regarding the investigation by stating that it "was conducted in a fair, objective, and thorough manner in accordance with" the school's policies, but did not give any details as to the process it followed or what information was obtained in the investigation. It also advised plaintiffs that "a final decision on [H.K.'s] status . . . [would] be made in accordance with the school's written administrative procedures, and will abide by the evidence gathered during [its] extensive investigation."

On June 5, 2013, plaintiffs expressed their "extreme[] disappoint[ment] that [defendant] did not address [their] valid concerns," and proposed that, before classes ended the following week, the school create "a teachers' task force . . . to review the propriety of the investigation and . . . the parents' complaints." When defendant failed to respond, plaintiffs' counsel sent a written demand for "clarification as to the status of [H.K.'s] enrollment" and the details of the purported violation — the specific conduct H.K. engaged in and the provisions of the HIB policy violated thereby — as well as a copy of the investigation report, "an opportunity to discuss what will be included in [H.K.'s] permanent record," and that H.K. be allowed to participate in the upcoming school trip and eighth grade graduation ceremony. The letter noted that, although the school had been given the psychologist's report and recommendations — which it characterized as "consistent with a 'final decision' that will restore [H.K.] to the School's student body" — the school had "failed to do so."

Defendant responded on June 13, 2013, indicating that it had conducted a "further evaluation of [H.K.'s] situation," informed by its previous investigation, the psychologist's report, and "the continued lack of acceptance of responsibility despite the specific conclusions and recommendations included in [the doctor]'s report," and citing several portions of the report that it found "particularly troubl[ing]." The school explained that, "[a]fter extensive deliberation," it had determined H.K. would not permitted to return to school or participate in school events for the remainder of the year, but would be permitted "to complete the current school year under the existing special arrangements." It also noted it could "have suspended and/or expelled [H.K.] and expressly reserve[d] the right to do so."

The following week, plaintiffs' counsel wrote to defendant's attorney and requested clarification as to why H.K.'s name, awards, and honors had not been included in the program for the graduation ceremony. On July 3, 2013, when defendant did not respond, plaintiffs informed it that H.K. would not be attending the following year. They alleged that, by omitting H.K. and his achievements from the graduation program, defendant "had unfairly placed H.K. in a negative false light." Plaintiffs also enclosed the psychologist's follow-up report, which they claimed indicated defendant misconstrued his prior report and took his statements out of context.

Plaintiffs filed their complaint alleging defendant's disciplinary procedure was fundamentally unfair because

H.K. was not provided a fair opportunity to respond to the charges; he was presumed guilty and told to acknowledge and admit what he did; the School's determinations are inconsistent with the psychological evaluation required by the School; the investigation was conducted by people who had a personal and biased interest in the outcome of instead of neutral and unbiased decision makers without any conflict of interest that could hamper their judgment; H.K. was also detained for excessive periods

of time and interrogated; and the same people who conducted the original investigation made the decision as to whether the investigation was conducted in a proper manner.

The motion judge granted defendant's application on June 6, 2014, after considering counsels' oral arguments. In his oral decision, the judge cited to the complaint and the documents referenced therein, and found that defendant followed its established disciplinary procedures, that the procedures followed were fundamentally fair, and that the discipline imposed was not a final determination but a temporary suspension pending a final decision regarding expulsion.

In so finding, the judge rejected plaintiffs' argument that they were entitled "to go into the details of the [school's] investigation," explaining that "at this point in time, before an expulsion occurs[,] the issue is [only] whether or not, in my mind, . . . you can determine from the record, from the complaint, whether the process was fundamentally fair and whether they followed it." He concluded that "the fact that [plaintiffs] were not provided with a copy of the investigative report . . . is not dispositive of whether [defendant's] process is fundamentally fair." He further stated:

The fact that you think [the investigation] may have been carried out by some biased individuals, that [it] may have been not sufficient or not adequate, or not even[-]handed is not an issue at this point in time. Had there been an expulsion then you may have had a different issue.

[(Emphasis added).]

The judge entered an order granting defendant's motion. This appeal followed.

We review de novo the challenged order dismissing plaintiffs' complaint for failure to state a claim upon which relief can be granted, applying the same legal standard as the trial court. See NL Indus., Inc. v. State, 442 N.J. Super. 403, 405 (App. Div. 2015). The motion must be denied if, giving plaintiff the benefit of all allegations and all favorable inferences, a cause of action has been alleged in the complaint. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). On a motion to dismiss pursuant to Rule 4:6-2(e), a court must treat all factual allegations as true and must carefully examine those allegations "to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). "Nonetheless, . . . the essential facts supporting plaintiff's cause of action must be presented in order for the claim to survive; conclusory allegations are insufficient in that regard," Scheidt v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012), as are assertions that "essential facts that the court may find lacking can be dredged up in discovery." Printing Mart, supra, 116 N.J. at 768; see also Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div.), certif. denied, 176 N.J. 278 (2003). After a thorough examination, should the court determine that such allegations fail to state a claim upon which relief can be granted, the court must dismiss the claim. Printing Mart, supra, 116 N.J. at 746.

In its review, a court may consider documents specifically referenced in the complaint "without converting the motion into one for summary judgment." E. Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n.1 (App. Div. 2003), aff'd, 179 N.J. 500 (2004). "In evaluating motions to dismiss, courts consider 'allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.'" Banco Popular N.

Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir.), cert. denied, 543 U.S. 918, 125 S. Ct. 271, 160 L. Ed. 2d 203 (2004)). "It is the existence of the fundament of a cause of action in those documents that is pivotal; the ability of the plaintiff to prove its allegations is not at issue." Ibid.

[Myska v. N.J. Mfrs. Ins., 440 N.J. Super. 458, 482 (App. Div.), certif. granted, 223 N.J. 554 (2015), certif. dismissed as improvidently granted, 224 N.J. 523 (2016).]

In order to state a claim against a private school for improperly exercising a disciplinary policy, a plaintiff must allege the school either failed to "adhere to its own established [disciplinary] procedures" or, in carrying out the discipline, failed to "follow a procedure that is fundamentally fair." Hernandez v. Don Bosco Preparatory High, 322 N.J. Super. 1, 21 (App. Div.), certif. denied, 162 N.J. 196 (1999). However, not all failures to abide by internal procedures violate fundamental fairness. See id. at 21-22. When a private association fails to adhere to its own procedures, the court will "balance the organization's interest in autonomy and its reason for straying from its rules against the magnitude of interference with the member's interest in the organization and the likelihood that the established procedures would safeguard that interest." Hernandez, supra, 322 N.J. Super. at 19 (quoting Rutledge v. Gulian, 93 N.J. 113, 123 (1983)). Ultimately, "[w]hether the procedure is fundamentally fair will depend on the circumstances." Id. at 22.

The motion judge here limited Hernandez's two-pronged analysis to cases in which a private secondary school student has been expelled, which he found did not occur. This narrow application of the Hernandez standard undermined the court's overriding concern about fairness, even in situations short of expulsion. See Rutledge, supra, 93 N.J. at 122 ("In the private sector, the courts have weighed the competing interests of the parties to determine what procedures fundamental fairness required."). While Hernandez was factually limited to a private school's expulsion of a high school student, we believe it is equally applicable under the circumstances presented in this case, even though a formal expulsion did not occur. We view a child's removal from school without home instruction, pending a lengthy investigation that continued to the end of the school year, to be just as harmful as an expulsion, as the nature of such a removal places the child in academic limbo, during which his or her education may be jeopardized. See Hernandez, supra, 322 N.J. Super. at 20-21 (addressing the expulsion of a high school student who "will not lose credit for the semester . . . [and] may complete the semester at the public school, and receive a high school diploma from the public school"). Thus, in order to state a valid claim against defendant, plaintiffs' complaint had to have alleged facts that, if true, satisfied the Hernandez standard. See id. at 21.

Despite his rejection of the standard, the motion judge made findings about defendant's procedures. He found that defendant had not yet made a final determination regarding H.K.'s discipline, that it followed its own procedures, and that the procedures were fundamentally fair. In doing so, he failed to accept plaintiffs' allegations as true and to limit his inquiry to their legal sufficiency, and instead improperly "concerned [himself] with the ability of plaintiffs to prove the allegation[s]." Printing Mart, supra, 116 N.J. at 746. He found that defendant's investigation and disciplinary process was fundamentally fair and comported with the policies' requirements even though there was no information in the complaint describing what defendant did in carrying out the investigation. The referenced documents also did not establish defendant's actions because defendant refused to disclose the source of the allegations against H.K., the exact nature of the violations, and the manner in which it conducted its investigation.

We conclude from our review that plaintiffs' allegations pertaining to bias, the manner in which H.K. was questioned, the lack of a fair opportunity to respond to the charges, and the failure of defendant to disclose any information about its investigation, if true, suggest defendant's process was fundamentally unfair. Moreover, in light of the somewhat vague nature of the procedures set forth in the HIB policy, defendant's failures to provide a copy of the investigation report and to specify the offending conduct suggest defendant failed to follow its established procedures when disciplining H.K. and acted in an unfair manner.

Reversed and remanded for entry of an order reinstating plaintiffs' complaint. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION