United States District Court, E.D. New York
REPORT AND RECOMMENDATION
L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
se Maketa Jolly
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.” 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.
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
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.
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.
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
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. 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.
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