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Castellaw v. Excelsior College

United States District Court, E.D. New York

September 26, 2019

CAROLINE CASTELLAW, et al., Plaintiffs,
v.
EXCELSIOR COLLEGE, Defendant.

          REPORT AND RECOMMENDATION

          ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs brought this class action, on behalf of themselves and all others similarly situated, seeking damages and injunctive relief arising out of plaintiffs' enrollment in defendant Excelsior College's Associate Degree in Nursing Program (the “Nursing Program”). See Third Amended Complaint (Oct. 31, 2014) (“TAC”), Electronic Case Filing Docket Entry (“DE”) #82. Although the action was settled in 2015, plaintiffs recently alleged that defendant was violating the settlement agreement, a dispute that the parties subsequently resolved. Currently before the Court, on referral from the Honorable Jack B. Weinstein, are pro se submissions filed by two named plaintiffs, Maketa Jolly and Mary Elizabeth Williams, who were represented by class counsel during the pendency of the case. For the reasons set forth below, this Court respectfully recommends that the motions filed by Maketa Jolly and Mary Elizabeth Williams be denied.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs in the underlying action alleged that defendant Excelsior College (“defendant”) withheld material information regarding the Nursing Program and made misrepresentations as to its nature and quality. Specifically, plaintiffs alleged in their pleading that defendant failed to inform them of graduation rates from the Nursing Program and failed to accurately disclose the pass rates for the Clinical Performance in Nursing Examination (the “CPNE”), for which each plaintiff paid over $2, 000 each time he or she took the exam. See TAC ¶¶ 14, 16, 18, 20. Plaintiffs further alleged that delays in completing the Nursing Program caused them to incur additional annual fees and that defendant misled them as to the costs required for retaking the CPNE. See id. ¶¶ 107, 112. In addition, plaintiffs complained that defendant failed to inform them of the Nursing Program's deficiencies and the potential lack of transferability of credits earned in the Nursing Program. See id. ¶¶ 17, 22.

         Following a settlement conference held before the undersigned magistrate judge on January 21, 2015, the parties agreed to settle plaintiffs' claims based on the terms of this Court's settlement recommendation. See Minute Entry (Jan. 21, 2015), DE #141; Minute Entry (Jan. 30, 2015), DE #145. The settlement agreement provided that plaintiffs would participate in the modification of the challenged disclosures made by defendant, that each named plaintiff would receive an incentive award of $2, 500 for participating in the prosecution of the case, and that the named plaintiffs and putative class members would receive $200 for each time they had failed the CPNE. See Stipulation of Settlement (Feb. 20, 2015) (the “2015 Settlement Agreement”), DE #151-1. The settlement class was defined as all current or former students of defendant's Associate in Science and Associate in Applied Science in Nursing Degree Program, who had taken the CPNE at any time, failed the exam, paid for and taken the CPNE again during the class period, and failed the CPNE at least one other time during the class period. See id. § VII. On July 17, 2015, Judge Weinstein granted the parties' motion for final approval of the settlement. See Final Approval Order (July 17, 2015), DE #166.

         On November 13, 2018, plaintiffs moved to set aside the 2015 Settlement Agreement, on the ground that defendant had breached the settlement agreement by continuing to provide inaccurate information to students regarding the passage rates for the CPNE. See Motion to Set Aside Settlement and for Equitable and Legal Relief (Nov. 13, 2018), DE #178. After conducting some discovery, the parties agreed to resolve their dispute and, by letter dated March 11, 2019, plaintiffs withdrew their motion to set aside the class settlement. See Motion to Withdraw (Mar. 11, 2019), DE #201.

         Pro se Maketa Jolly

         Meanwhile, in a letter dated March 11, 2019, plaintiff Maketa Jolly, proceeding pro se, requested that Judge Weinstein assist her in connection with the impending suspension of her nursing license by the Board of Nursing of the State of New Jersey. See Letter Motion for Injunction (received on Mar. 14, 2019) (“Jolly Motion”), DE #203. Although it is unclear why the New Jersey Board of Nursing is suspending Ms. Jolly's nursing license, Ms. Jolly blames defendant Excelsior College for denying that Ms. Jolly graduated from the Nursing Program, in retaliation for her participation in this action. See id. at 2-3. Ms. Jolly claims that she “never passed [herself] off ‘EVER' as an Excelsior graduate.”[1] Id. at 2. However, Ms. Jolly's denial is belied by the email correspondence attached to her submission, in which she clearly communicated to the Maine and Pennsylvania licensing boards that she had completed Excelsior's Nursing Program. See Email from Keta Jolly to Virginia Delorimier dated March 20, 2018, DE #203 at 7; Email from Keta Jolly to Ashley Fox dated June 18, 2018, DE #203 at 14.

         Following Judge Weinstein's referral of the Jolly Motion, see Order Referring Motion (Mar. 18, 2019), this Court requested that plaintiffs' counsel, John Hermina, Esq., ascertain from Ms. Jolly whether her request for relief was properly before this Court and whether the problem complained of could be resolved with plaintiffs' counsel's assistance, see Order (Mar. 27, 2019), DE #204. By letter dated April 3, 2019, Mr. Hermina advised that he had conferred with Ms. Jolly, who “determined that her request for relief is not properly before this Court” and “wishe[d] to withdraw” the Jolly Motion. See Letter (Apr. 3, 2019), DE #206. Mr. Hermina attached a letter from Ms. Jolly confirming her intention to withdraw the Jolly Motion. See id. at 2.[2]

         Thereafter, by letter dated April 8, 2019, Ms. Jolly sought to “retract” her withdrawal of the Jolly Motion, claiming that she had been “intimidate[ed] and bull[ied]” by Mr. Hermina into withdrawing her motion. See Letter 4/8/19 from Maketa S. Jolly to USMJ Mann (Apr. 10, 2019) at 2, DE #208. In his response, Mr. Hermina denied Ms. Jolly's allegations against him but stated that he was otherwise unable to address the allegations in detail without implicating the attorney-client privilege. See Letter to the Honorable Judge Mann Regarding Filing by Ms. Maketa Jolly (Apr. 16, 2019), DE #209.

         At the Court's invitation, defendant responded to the Jolly Motion. See Letter in response to Plaintiff Maketa Jolly's pro se submissions (Apr. 19, 2019), DE #210. Defendant explained that Ms. Jolly had enrolled in the Nursing Program in 2011 and was dismissed from the program in 2014 after failing to pass the Focused Clinical Competencies Assessment (“FCCA”) despite three attempts. Passing the FCCA is a prerequisite to taking the CPNE, the exam that was a focus of the instant lawsuit. As a result, Ms. Jolly did not graduate from defendant's Nursing Program. According to defendant, “Ms. Jolly has engaged in a troubling pattern of misrepresentation regarding her educational background in order to obtain a license as a Registered Nurse (‘RN') in several states.” Id. at 1. In response to inquiries from several state licensure agencies, Excelsior has confirmed to them that Ms. Jolly did not graduate from Excelsior's Nursing Program. See id. at 3. Moreover, Excelsior has requested that Ms. Jolly cease and desist from falsely representing herself as a graduate of the Nursing Program. See id.

         In a further submission dated June 7, 2019, titled “Motion for Summary Judgment/Permanent Injunction, ” Ms. Jolly alleges that defendant, its Dean of Nursing (Mary Lee Pollard), defense counsel, and various state boards of nursing conspired to deny her state licensure in Vermont, Pennsylvania and Missouri, and to have her New Jersey license suspended. See Letter dated 6/7/2019 from Maketa Jolly to the Hon. Judge Roxanne [sic] Mann (June 13, 2019), DE #213. Ms. Jolly further notes that she commenced an action in the Eastern District of Pennsylvania, based on the above facts, against Phyllis Mitchell of the State of Vermont Board of Nursing, Joanne Leone of the State of New Jersey Board of Nursing, and Mary Lee Pound, Dean of Nursing at Excelsior College.[3]

         On July 22, 2019, Ms. Jolly filed yet another document, titled “Defendant's Motion Requesting Mediation, ” wherein she requests that this Court “set this case for mediation and extend” defendant's deadline to respond to dispositive motions until the mediation has been completed. See Motion for Mediation (July 22, 2019), DE #214; see also Memorandum in Support (July 24, 2019) (“Jolly Mem.”) at 1, DE #215.[4] Ms. Jolly attaches to her Motion for Mediation (DE #214) a document styled as “Violation of Stipulation #10, ” in which she alleges that the New Jersey Board of Nursing conducted a “fraudulent investigation . . . under the express direction of Mary Lee Pollard ‘Excelsior College.'” Memorandum-Violation of Stipulation #10 (July 22, 2019), DE #214-1.

         Faced with Ms. Jolly's July submissions, defendant counters that Ms. Jolly has commenced two federal actions that appear to encompass the allegations contained in her submissions to this Court: Jolly v. State of Vermont Board of Nursing, 19-cv-2208, filed on May 21, 2019 in the Eastern District of Pennsylvania (the “Pennsylvania case”); and Jolly v. New Jersey Board of Nursing, 19-cv-13889, filed on July 17, 2019 in the District of New Jersey (the “New Jersey case”). See Letter regarding Pro Se submissions (Aug. 2, 2019), DE #216. In the Pennsylvania case, on May 24, 2019, the District Court construed Ms. Jolly's complaint as naming as defendants the State of Vermont Board of Nursing and Phyllis Mitchell; the State of New Jersey Board of Nursing and Joanne Leone; and Excelsior College and Mary Lee Pound. See Memorandum and/or Opinion (May 24, 2019) at 1-2 & n.1, DE #4 in the Pennsylvania case. The Pennsylvania District Court dismissed the claims brought against Vermont and New Jersey, along with the official capacity claims against Vermont and New Jersey officials, on the ground of Eleventh Amendment immunity, see id. at 5-6, and transferred the remaining claims to the Northern ...


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