A. et al v. Hartford Board of Education et al
RULING ON MOTION TO AMEND COUNTERCLAIM AND SCHEDULING ORDER denying as moot 33 Motion to Amend/Correct. Plaintiffs are ordered to file, no later than September 27, 2012, an Amended Answer replacing their Answer of November 7, 2011 [Doc. 25], which must establish clearly the identity of the defendant or defendants in both counts of the Amended Counterclaim, as described more fully in the attached Ruling and Order. In other respects the Proposed Answer of May 22, 2012 (the "Proposed Answe r") [Doc. 33-2] is accepted as an amendment as a matter of course under Fed. R. Civ. P. 15(a). The Court exercises its discretion to establish that, as of the date of this Ruling and Order, the time for amendment as a matter of course of Plaint iffs' Answer has ended. Consequently, if Plaintiffs seek to include in the Amended Answer any changes to the Proposed Answer other than those necessary to comply with this Ruling and Order, they must file a motion for leave to do so. The attached Ruling and Order contains further instructions to the parties. The Motion to Amend Counterclaim [Doc. 33] is moot in light of the foregoing order. Signed by Judge Charles S. Haight, Jr on September 6, 2012. (Caldwell, M.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
A., by his Parent & Next Friend, Mr. A.
and Mr. A.,
HARTFORD BOARD OF EDUCATION
and NEW BRITAIN BOARD OF
RULING ON MOTION TO AMEND COUNTERCLAIM
AND SCHEDULING ORDER
HAIGHT, Senior District Judge:
The present consolidated action consists of the above-captioned action (“the First Action”)
and New Britain Board of Education v. J.A., No. 2:11-CV-1431 (the “Second Action”). Both actions
arise out of challenges made by plaintiffs A. and Mr. A.1 to the appropriateness of the educational
programs offered to A., a student entitled to special education, by the Hartford Board of Education
(the “Hartford Board”), which operates the magnet school that A. attended until recently, and by the
New Britain Board of Education (the “New Britain Board”), the school board for A.’s home district.
Specifically, this action2 arises from the Final Decision and Order (No. 11-0154) issued by Hearing
Officer Justino Rosado in the administrative matter Student v. New Britain Board of Education (the
Although A. and Mr. A are defendants in the Second Action, they are referred to herein
as “Plaintiffs,” reflecting their status in the First Action.
In this Ruling and Order, the term “this action” or “the present action” refers to the
consolidated action, including both the First Action and the Second Action.
“Hearing Officer’s Decision”).3 Plaintiffs seek money damages, an award for attorney’s fees and
costs incurred in the administrative proceeding, reversal of the Hearing Officer’s Decision on one
issue, and court orders directing the Boards to take certain actions with respect to A.’s education.
In the Second Action, the New Britain Board filed an administrative appeal against Plaintiffs.
In their Answer to the Complaint in the Second Action (the “Answer”) [Doc. 25], filed after the
actions were consolidated, Plaintiffs included a Counterclaim seeking damages and court orders
under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 et seq., and “§ 504,”
presumably meaning Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. As discussed more
fully infra, the identity of the defendant(s) in the Counterclaim is unclear.
Plaintiffs filed the present Motion to Amend Counterclaim (the “Motion”) [Doc. 33] seeking
to add an additional count to the Counterclaim. They filed therewith a proposed new version of the
Answer (the “Proposed Answer”) [Doc. 33-2], which differs from the previous Answer only in the
replacement of the Counterclaim with the Amended Counterclaim. The new claim, Count 2 of the
Amended Counterclaim, seeks damages and court orders under three additional federal statutes. As
with Count 1, Count 2 is unclear about the identity of the defendant(s). According to Plaintiffs, the
purpose of the amendment is to seek a remedy for the alleged failure of the Boards to implement the
Hearing Officer’s Decision. Memorandum in Support of Motion to Amend Counterclaim (“Pl.
Memo.”) [Doc. 33-1] at 2.
The Hartford Board filed an Objection to the Motion (the “Objection”) [Doc. 34]. The New
Britain Board has not objected or otherwise responded to it.
A copy of the Hearing Officer’s Decision constitutes Exhibit A to the Second Amended
Complaint [Doc. 19-1].
While Plaintiffs titled their filing a “Motion to Amend Counterclaim,” it is really an
amendment as of right. Both the Motion itself and Plaintiffs’ briefs make it absolutely clear that they
consider their filing to be an amendment as of right. Motion at 3-4; Pl. Memo. at 3-4; Reply to
Hartford Board of Education’s Objection to Plaintiffs’ Motion to Amend Counterclaim (the “Reply”)
[Doc. 37] at 1-3. The decision to file it as a “motion” was very likely a gesture of politeness and
deference to the Court. The amendment was timely: a party may amend a pleading as of right,
though only once, if it files the amendment no later than twenty-one days after the service of a
responsive pleading or a Rule 12 motion. Fed. R. Civ. P. 15(a)(1)(B). Neither Board has filed a
pleading or motion responsive to the Counterclaim.
Because Plaintiffs so clearly established that the Motion is actually an amendment of right,
it would be unreasonable to deprive them of their right to amend their pleading simply because they
labeled the filing a “motion.” In fact, under the caselaw in this circuit, it is not clear that it would
be proper to take the filing as a motion for leave to amend even if Plaintiffs had not made it so clear
that it is an amendment as of right. In one case, the Second Circuit held that it was “error” for a
district court to reject a motion for leave to amend filed by a plaintiff who was entitled to file an
amended pleading as a matter of right, though it found that the error was “harmless” and affirmed.
Gosain v. State Bank of India, 414 Fed. Appx. 311, 315 (2d Cir. 2011). In another case, the Second
Circuit affirmed a district court’s decision to treat a filing as a motion for leave to amend though the
filer could have amended as of right. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125
(2d Cir. 2011). In Johnson, however, the filing was clearly defined as a motion for leave to amend
throughout, leaving the district court no means of “divining,” as the circuit court put it, that the filer
intended it to be an amendment as of right. Id. at 125-26.
At the very least, the Court has discretion to treat the Motion as an amendment as of right.
See Grace v. Plank, No. 3:07-CV-738, 2007 WL 4224221, at *5 (D.Conn. Nov. 27, 2007) (granting
motion for leave to amend the complaint because the plaintiff was entitled to amend his complaint
as of right). Even in Johnson the Second Circuit treated the district court’s decision on that issue
as a matter “within the court’s discretion.” Johnson at 125.
A party ought not to be denied its opportunity to amend as of right simply because of the
label on the filing, when the party makes it absolutely clear that an amendment as of right was
intended. Therefore, the Court treats the Motion as an amendment as of right.
The Hartford Board makes two objections to this amendment. The simpler objection is that
Plaintiffs “clearly stated in the Rule 26(f) statement, which was approved by the Court, that no
amended pleadings would occur.” Objection at 1. That is not correct. The relevant sentence in the
Rule 26(f) Statement says that “[t]he Parties do not anticipate that the Complaints will be amended
or that additional parties will be joined.” Report of Parties’ Planning Meeting [Doc. 27], at 7
(emphasis added). No promise was made.
The second objection is that Count 2 would be futile as to the Hartford Board because it fails
to state a claim on which relief can be granted against the Hartford Board. Objection at 1. In this
case, the objection applies only to the extent that Count 2 is directed to the Hartford Board. Thus,
the amendment of Plaintiffs’ claim against the New Britain Board was certainly proper, and the New
Britain Board has not objected to it.
The question of whether the Counterclaim may be amended as it applies to the Hartford
Board is complicated by the fact that Plaintiffs have not established whether the Counterclaim is
brought against the Hartford Board in the first place. If not, the Hartford Board’s second objection
is moot. The Counterclaim was filed five days after the two actions were consolidated, so the
Hartford Board was a possible defendant at that time. But as the Counterclaim is worded, it is
impossible to say for certain if it is brought against both Boards, or only the New Britain Board.
In both the original and amended versions of the Counterclaim, the heading of the first count
reads “Count 1: Liability of the Board for Violating the ADA and § 504” (underlining and bolding
omitted). Answer at 14; Proposed Answer at 19. Plaintiffs never explicitly define the term “the
Board,” but in the previous paragraph that term clearly denotes the New Britain Board. The second
paragraph of the Counterclaim supports the idea that the New Britain Board is the only defendant.
It states that “[t]he Plaintiff Board of Education,” which must mean the New Britain Board, the only
Board that is a plaintiff in the Second Action, is a “public entity” under 28 C.F.R. § 35.104. It does
not make an equivalent assertion about the Hartford Board. Answer at 15 ¶ 2. From that point
forward, however, it makes allegations against both Boards. Id. at 16-17 ¶¶ 7-11. The request for
relief does not identify the party against which Plaintiffs seek damages, but it seeks court orders
directed to both Boards. Id. at 17.
The identity of the defendant(s) in the new count in the Amended Counterclaim is equally
unclear. The count is labeled “Count II: Liability of the New Britain Board of Education for Failing
to Implement the Final Decision and Order of the Hearing Officer.” Proposed Answer at 22. That
appears to establish that the New Britain Board is the sole defendant. The new count makes
allegations about “the Defendant Board,” in the singular. Id. at 19 ¶ 3. However, it proceeds to
allege that both Boards failed to implement the Hearing Officer’s decision, Proposed Answer at 2325 ¶¶ 7-11, and its request for relief asks for court orders against both Boards. Id. at 25-26.
In the Reply, Plaintiffs assert that the Counterclaim is brought against both Boards. Reply
at 2. A brief, however, is not a pleading. It is unreasonable to expect the Hartford Board to defend
itself against a claim when the pleading does not plainly identify it as a defendant. Plaintiffs must
file a new version of the Answer that identifies the defendant(s) clearly, a requirement that is
discussed further infra.
If Count 2 is brought against the Hartford Board, that Board argues that it is futile. Objection
at 6-8. When a motion for leave to amend is filed under Rule 15(a)(2), the court may deny the
amendment on the grounds that it would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Here,
however, we have a different question: whether futility analysis is appropriate when an amendment
is filed as of right under Rule 15(a)(1).
The Second Circuit has not ruled consistently on that question. On the one hand, in Gosain
it held that it was “error” for a district court to reject a motion for leave to amend on grounds of
futility when the plaintiff still had the right to file an amended pleading as a matter of right. Gosain
v. State Bank of India, 414 Fed. Appx. 311, 315 (2d Cir. 2011). Although, as noted above, the court
stated that this error was “harmless” and affirmed on that issue, the implication is that an amendment
as of right is not subject to futility analysis.
On the other hand, in Johnson the Second Circuit upheld a district court’s decision to deny
a motion to amend on grounds of futility, where the plaintiff was entitled to amend as of right, as
within its discretion. Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011).
However, the court noted that the plaintiff had not asserted his entitlement to amend as of right, but
instead had advanced arguments that implied that he considered his filing to be a motion for leave
to amend. Id. at 124-25. The Johnson court did not establish whether the district court would have
been justified in engaging in futility analysis if the plaintiff had made it clear that the filing was an
amendment as of right, as in the present case.4
The district courts within this circuit have likewise ruled inconsistently on this subject. Some
courts have held that the right to amend a pleading once as of right is “absolute.” Gaming Mktg.
Solutions, Inc. v. Cross, 528 F.Supp.2d 403, 406 (S.D.N.Y. 2007); Frawley v. Gen. Elec. Co., No.
06 Civ. 15395, 2007 WL 656857, at *2 (S.D.N.Y. Mar. 1, 2007). However, one court denied
amendment as of right on grounds of futility even though the plaintiffs had made it clear that they
were filing an amendment as of right. Mikhlin v. HSBC, No. 08-CV1302, 2009 WL 485667, at *9
(E.D.N.Y. Feb. 26, 2009).
Even if futility analysis is appropriate here, the Hartford Board’s objection could not support
a finding that the amendment would be futile. Its futility argument relies heavily on factual findings,
which the Court could not consider at this point even if it were deciding a motion for leave to amend.
“An amendment to a pleading will be futile if a proposed claim could not withstand a motion to
dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 88 (2d Cir. 2002). In deciding a Rule 12(b)(6) motion, a court accepts all factual allegations
in the pleading as true and draws all reasonable inferences in favor of the pleader. Bank of N.Y. v.
First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Thus, the Court cannot consider facts
outside the pleadings in considering the futility of an amendment. “It would . . . be improper for the
Court to consider facts beyond the scope of the pleading” on a motion for leave to amend. Polycast
The Seventh Circuit stated, in dictum, that a court may conduct futility analysis against
an amendment as of right. Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133
F.3d 1054, 1057 n. 4 (7th Cir. 1998). Duda suggests that futility analysis would be permissible in
the Seventh Circuit even if the filing was clearly defined by the filer as an amendment as of right,
but in that case it was apparently not so defined, and the court ultimately reversed the district
court’s decision not to accept the amended pleading.
Tech. Corp. v. Uniroyal, Inc., 728 F.Supp. 926, 943 n. 2 (S.D.N.Y. 1989).
The Hartford Board’s argument is based on a series of assertions about matters of fact that
are outside the pleadings. It asserts, for example, that the Connecticut State Department of
Education (CSDE) did not make any finding that the Hartford Board was not out of compliance for
failing to provide the required services. Objection at 7. The Amended Counterclaim alleges the
reverse. Proposed Answer at 21 ¶ 10. The Hartford Board appears to cite, for this and other factual
assertions, exhibits filed by Plaintiffs along with the present Motion, though they do not identify
explicitly the document to which the referenced exhibits are attached. Even if the Court could
consider facts contained in exhibits to the Motion, the Hartford Board has supplied no reason for the
Court to assume that the cited exhibits represent a complete factual record on each point. The Court
cannot conclude that the CSDE has never found that the Hartford Board is out of compliance with
the Hearing Officer’s orders simply because the CSDE did not make such a finding in a particular
The Hartford Board also calls on the Court to rely on the factual assertion that “[t]he only
order from the hearing officer relative to the HBOE was that it was to share equally in the cost of
providing 180 hours of speech and language services to the Student.” Objection at 7. Assuming,
for the sake of argument only, that the Court may consider the Hearing Officer’s Decision at this
time, not only does that Decision not establish that proposition, but it directly contradicts it. For
example, it states that the Hartford Board (there called the “Magnet School”), along with the New
Britain Board, must provide A. with “transportation to and from the speech and language pathologist
they have chosen.” Hearing Officer’s Decision at 20.
Clearly, Plaintiffs’ amendment cannot be rejected on grounds of futility, whether because
futility analysis is not appropriate or because the futility argument is meritless on its face. However,
the Court’s rejection of the futility argument raised in the Objection does not constitute a ruling or
commentary on any motion to dismiss that the Boards may later file under Rule 12(b)(6), except to
the extent that such a motion makes the same argument rejected here.
That leaves, however, the real problem: the Counterclaim and Amended Counterclaim do not
establish whether the Hartford Board is a counterclaim defendant. That problem must be corrected.
The Court orders Plaintiffs to file, no later than September 27, 2012, an Amended Answer which
establishes clearly the identity of the defendant or defendants in both counts in the Amended
Counterclaim. Such a filing need not take the form of a Motion, but may be filed as an Answer.
At this stage of the proceedings, however, it would not serve judicial economy to reopen the
Answer to new pleading in general. “[A]mendment of a pleading as a matter of course pursuant to
Rule 15(a) is subject to the district court’s discretion to limit the time for amendment of the
pleadings in a scheduling order issued under Rule 16(b).” Kassner v. 2nd Ave. Delicatessen, Inc., 496
F.3d 229, 243-44 (2d Cir. 2007). The Court now exercises that discretion to establish that, as of the
date of this Ruling and Order, the time for amendment as a matter of course of Plaintiffs’ Answer
has ended. Consequently, if Plaintiffs seek to include in the Amended Answer any changes to the
Proposed Answer other than those necessary to comply with this Ruling and Order, they must file
a motion for leave to do so.
Under Rule 15(a)(2), the Boards will have fourteen days from the date of service of the
Amended Answer to file responsive pleadings. Nothing in this Ruling and Order deprives them of
their right to file motions to dismiss under Rule 12(b)(6).
The Court’s order requiring Plaintiffs to file an Amended Answer renders the present Motion
moot. Therefore, the Motion to Amend Counterclaim [Doc. 33] is DENIED AS MOOT in light of
the foregoing order.
Dated: New Haven, Connecticut
September 6, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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