R. et al v. Tajdar
Filing
67
MEMORANDUM OPINION Signed by Judge Theodore D. Chuang on 7/2/2020. (cags, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
M.R., by and through her parents, N.R. and
A.R.,
N.R. and
A.R.,
Plaintiffs,
Civil Action No. TDC-17-3836
v.
AZIN TAJDAR,
Defendant.
MEMORANDUM OPINION
Plaintiffs M.R, a minor child, and her parents, A.R. and N.R., have filed a civil action
against Defendant Azin Tajdar alleging that Tajdar discriminated against M.R. on the basis of
disability by failing to make a reasonable accommodation at Tajdar’s home day care center to
allow M.R. to receive one-on-one services relating to her autism. Plaintiffs assert a claim under
Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189 (2018).
Pending before the Court are Cross Motions for Summary Judgment, ECF Nos. 54 & 55, on which
the Court held a hearing on May 28, 2020. During the hearing, the Court invited the parties to
brief whether, based on the present record, the case is now moot. Tajdar responded by filing a
separate Motion to Dismiss Amended Complaint as Moot, ECF No. 65. All three Motions are
fully briefed. For the reasons set forth below, Tajdar’s Motion to Dismiss will be GRANTED, and
the Cross Motions for Summary Judgment will be DENIED AS MOOT.
BACKGROUND
Relevant background is set forth in this Court’s memorandum opinion on Tajdar’s first
Motion to Dismiss, in which the Court dismissed Plaintiffs’ claims for damages under the ADA
and their Maryland statutory and common law claims. M.R. ex rel. N.R. v. Tajdar, No. TDC-173836, 2018 WL 6050888, at *1-2, *7 (D. Md. Nov. 19, 2018). The Court sets forth below the facts
relevant to the resolution of the pending Motions.
I.
Factual Background
On January 5, 2015, when M.R. was nearly four months old, she began attending Kids and
Tots, a home day care center that Tajdar operates out of her residence in Potomac, Maryland. Kids
and Tots is licensed to accept a maximum of eight children at a time. Beginning in the summer of
2016, Tajdar began to notice certain developmental delays in M.R. and relayed her concerns to
M.R.’s parents. Among other behaviors, Tajdar discussed M.R.’s tendency to isolate herself rather
than play with the other children at the day care and raised the idea that M.R. might have autism.
At Tajdar’s suggestion, M.R.’s mother, A.R., contacted the Montgomery County Public Schools
(“MCPS”) Infants & Toddlers Program, which agreed to provide services to M.R. at the day care
twice a month, beginning in December 2016. In February 2017, M.R. was formally diagnosed
with autism by a doctor at the Kennedy Krieger Institute. In the same time frame, MCPS approved
M.R. for Applied Behavioral Analysis (“ABA”) therapy.
The MCPS services required private space in the day care center. Kids and Tots, which
operates out of Tajdar’s basement, consists of a large central area, a smaller activity room
sometimes used for arts and crafts, and a nap room for infants. Tajdar initially offered the use of
the activity room for these sessions. During an initial ABA session for M.R. in the activity room
for which the MCPS personnel had brought toys, the other children watched through the room’s
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French doors and tried to get in to play with the new toys. Nevertheless, Tajdar told A.R. that the
session had gone “fine.” Joint Record (“J.R.”) 23, ECF No. 58-1. Around March 17, 2017, Tajdar
told A.R. that M.R. would not be able to use the activity room for her ABA sessions, as the
classroom would be in use by the day care’s other children, but she offered the use of the nap
room, and M.R. had at least one session there.
Soon after March 23, 2017, Tajdar learned that the frequency of MCPS sessions was going
to increase from twice a month to every day. Tajdar states that A.R. told her that MCPS planned
to provide ABA services to M.R. in the day care for two to three hours a day, five days a week.
According to A.R., the required time was two hours per day, for a total of 10 hours per week.
According to A.R., on March 27, 2017, Tajdar told her that M.R. would not be able to use
either the activity room or the nap room for her ABA sessions. Tajdar, however, asserts that she
started the discussion by asking A.R. if, instead of having ABA services at Kids and Tots five days
a week, M.R. could have the private sessions at the day care three days a week and at her home
the other two days so as not to prevent the other children from using all of the facilities. A.R.
disagreed, and an argument ensued. According to Tajdar, she also suggested that the additional
two sessions could occur in an upstairs room at her house. After that meeting, Tajdar called the
state official responsible for licensing Kids and Tots to explore this option, but she was told that
ABA services could occur only in one of the rooms in the basement day care center.
On March 30, 2017, Tajdar met with A.R. and M.R.’s father, N.R., and told them that she
could not provide either private room for the ABA sessions because it would not be fair to the
other children. The same day, at N.R.’s request, Tajdar sent them an email confirming her position,
which stated:
Unfortunately as of April 17 I will not have a private room available for [M.R.’s]
ABA. I will have a new infant coming to my day care starting April 17 and as you
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know the private room used at present for her private session is our nap room for
infants and younger kids. I am so sorry I will not be able to meet [M.R.’s] needs
due to limited space and resources. Hope you will find a suitable child care for
[M.R.] that could meet her needs.
J.R. 165. Prior to March 27, 2017, Tajdar had committed to accepting the infant, who was the
sister of a child already enrolled at Kids and Tots.
At that point, even though Tajdar was willing to provide a private room for the ABA
services until April 17, A.R. and N.R. immediately stopped bringing M.R. to Kids and Tots. In
her deposition, A.R. explained this decision by stating that they considered M.R. to have been
“kicked . . . out,” that going forward “it was an unsafe space for [M.R.],” and that “[w]e didn’t feel
comfortable putting [M.R.] into a space where she was being discriminated against.” J.R. 75. On
April 17, 2017, M.R. began attending day care at Potomac Valley Academy (“PVA”). From that
point until her birthday in August 2017, she received ABA services for ten hours per week at PVA.
After her birthday, however, M.R. aged out of the ten-hour-a-week ABA services provided by
MCPS. M.R. then began a full-day autism program referred to as Comprehensive Autism
Preschool Program (“CAPP”) at an MCPS building and received ABA services through that
program, but continued to have before- and after-care at PVA. As of A.R.’s deposition on July 9,
2019, M.R.’s parents planned to continue with CAPP for another year and have M.R. begin
kindergarten in Fall 2020. During the May 28, 2020 hearing on the Motions, counsel for Plaintiffs
represented that although M.R. will begin kindergarten this fall, her parents still wish to reenroll
M.R. at Kids and Tots for child care in the mornings before school begins and in the afternoons
after school ends.
Counsel acknowledged, however, during the hearing and in Plaintiffs’
memorandum in opposition to Tajdar’s Motion to Dismiss, that “M.R. no longer requires ABA
services.” Opp’n Mot. Dismiss at 5, ECF No. 66.
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On March 13, 2020, Tajdar closed Kids and Tots in response to the ongoing COVID-19
pandemic. She has notified the parents of the children attending her day care of this closure and
asked them to arrange to retrieve their belongings from her home. She has not, however,
represented that she will not reopen her day care once the pandemic subsides, and Plaintiffs have
submitted a June 12, 2020 screenshot of the website of the Maryland Department of Education,
Division of Early Childhood, that lists Tajdar’s day care as open.
II.
Procedural History
On December 29, 2017, Plaintiffs filed suit against Tajdar in this Court. Their Amended
Complaint, filed on March 26, 2018, alleged that Tajdar’s refusal to make a private room at Kids
and Tots available for M.R.’s daily ABA sessions constituted a refusal to provide M.R. a
reasonable accommodation for her disability and intentional discrimination on the basis of
disability, in violation of both the ADA and Maryland state law. They also asserted a separate
claim of negligence. As relief, Plaintiffs sought (1) a declaratory judgment that Tajdar had
discriminated against M.R. on the basis of her disability in violation of the ADA and Maryland
state law; (2) compensatory and punitive damages; and (3) an injunction requiring Tajdar “to make
reasonable accommodations to ensure M.R.’s return to the home-based day care.” Am. Compl. at
13, ECF No. 13. Tajdar filed a Motion to Dismiss, which the Court granted in part and denied in
part on November 19, 2019. M.R. ex rel. N.R., 2018 WL 6050888, at *7. The Court dismissed
Plaintiffs’ claims under Maryland’s anti-discrimination laws because those laws do not provide a
private right of action, id. at *5-6, and Plaintiffs’ negligence claim because the ADA’s provisions
do not create a duty of care the violation of which would create tort liability, id. at *6-7. Although
the Court dismissed the ADA claim for damages and concluded that the only remedy available
under the relevant provision of the ADA is injunctive relief, the Court rejected Tajdar’s argument
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that Plaintiffs lacked standing because they had alleged that they still wanted to return M.R. to
Tajdar’s day care and thus had plausibly alleged a real threat of future injury. Id. at *3-4. For the
same reasons, the Court declined to dismiss Plaintiffs’ claim for declaratory relief. Id. at *4.
After discovery, the parties filed the pending Cross Motions for Summary Judgment.
Based on its review of the record, the Court asked the parties to address at the hearing whether the
case is now moot. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“Article III
generally requires a federal court to satisfy itself of its jurisdiction over the subject matter . . . .”);
United States v. Springer, 715 F.3d 535, 540 (4th Cir. 2013) (“Mootness is a jurisdictional question
and thus may be raised sua sponte by a federal court at any stage of proceedings.”). Following the
hearing, with leave of the Court, Tajdar filed the pending second Motion to Dismiss the Amended
Complaint as Moot.
DISCUSSION
In the Cross Motions for Summary Judgment, the parties separately argue that the evidence
in the record establishes that they are entitled to judgment as a matter of law on Plaintiffs’ ADA
claim. In the Motion to Dismiss, Tajdar argues that the case is now moot because (1) Tajdar has
closed Kids and Tots; and (2) the applicable relief, a requirement that M.R. receive ABA services
in a private room at Kids and Tots, is no longer needed or appropriate for M.R.
I.
Legal Standard
Article III of the United States Constitution limits the judicial power of the federal courts
to actual “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “When a case or controversy
ceases to exist, the litigation is moot, and the court’s subject matter jurisdiction ceases to exist
also.” S.C. Coastal Conservation League v. U.S. Army Corps of Eng’rs, 789 F.3d 475, 482 (4th
Cir. 2015). Accordingly, the Motion to Dismiss is a motion under Federal Rule of Civil Procedure
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12(b)(1). In assessing such a motion, when a defendant asserts that facts outside of the complaint
deprive the court of jurisdiction, the Court “may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d
392, 398 (4th Cir. 2004); see Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). The court
should grant a Rule 12(b)(1) motion based on a factual challenge to subject matter jurisdiction
“only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail
as a matter of law.” Evans v. B.F. Perkins Co., Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th
Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991)).
II.
Mootness
Tajdar advances two arguments for dismissing this case as moot. First, she argues that
M.R.’s progression out of ABA sessions, entry into CAPP, and impending enrollment in
kindergarten demonstrates that she no longer needs the reasonable accommodation the denial of
which forms the basis of her claim. In response, Plaintiffs argue that even though M.R. no longer
requires private ABA sessions, her parents still wish to reenroll her at Kids and Tots for childcare
before and after the full-day CAPP program or kindergarten, and that she may require some
different accommodations there. Second, Tajdar argues that the closure of her home day care
center establishes that there is no longer any potential for future injury to M.R. Plaintiffs, however,
argue that the temporary closure of Kids and Tots during a pandemic, without evidence that the
day care will not reopen, does not moot their case. Because the Court accepts the first argument,
it need not address the second.
“[A] case ‘becomes moot only when it is impossible for a court to grant any effectual relief
whatever to the prevailing party.’” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v.
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Serv. Emps., 567 U.S. 298, 307 (2012)). Voluntary cessation of a challenged practice does not
necessarily render a case moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167,
189 (2000). “In seeking to have a case dismissed as moot . . . the defendant’s burden ‘is a heavy
one.’” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987)
(quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)). “The defendant must
demonstrate that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur.’” Id. (quoting United States v. Phosphate Export Assn., Inc., 393 U.S. 199,
203 (1968)).
A change in circumstances that prevents plaintiffs from benefiting from injunctive relief
can render an ADA claim moot. See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862, 86465 (9th Cir. 2017) (“Because Bayer has neither shown that he is reasonably likely to be subjected
once again to the conduct alleged as the basis for his claim nor shown that he can reasonably be
expected to benefit from the injunctive relief he seeks, we conclude his claim for injunctive relief
is moot.”); see also Johnson v. Cala Stevens Creek/Monroe, LLC, 401 F. Supp. 3d 904, 909-10
(N.D. Cal. 2019) (finding an ADA claim that facilities at a spa were not ADA-compliant to be
moot after the permanent closure of the spa). In analogous contexts, courts have found claims for
injunctive relief by individuals with disabilities to be moot when the need for disability-related
services changed to the point that the originally requested relief was no longer needed.
For example, in Malkentzos v. DeBuono, 102 F.3d 50 (2d Cir. 1996), the plaintiff filed suit
under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400–1482 (2018),
seeking, among other relief, an order that the state provide to his autistic two-year-old son 40 hours
per week of ABA services. Id. at 53-54. Although the district court granted a preliminary
injunction requiring that the state provide or pay for the 40 hours of ABA services going forward,
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the appeals court vacated that part of the order as moot because by that time, it was undisputed
that the child had “‘aged out’ of his eligibility to receive early intervention services” from the New
York State Department of Health, which provided such services only to children under three years
old. Id. at 55.
In Brown v. Bartholomew Consolidated School Corp., 442 F.3d 588 (7th Cir. 2006), an
autistic child’s parents filed an IDEA challenge to the individualized educational program (“IEP”)
proposed for the child’s kindergarten school year, which consisted of a full-day placement in
mainstream kindergarten with specialized assistance, instruction, and therapy, as opposed to the
parents’ proposal of at-home, one-on-one instruction. Id. at 593-94. The court held that the IDEA
challenge was moot where the child was presently in third grade, had moved to a different but
affiliated school district, and no longer had the same educational needs. Id. at 599. Noting that
“[n]ow, as a nine-year old, [the child’s] readiness for mainstream education presents a different
question calling for reassessment of his educational development,” the court explained that
because “what was right for [the child] in kindergarten may not be the proper education program
when he enters the third grade,” a determination whether it was legally permissible to have placed
the child in a mainstream class in kindergarten “would be issuing, in effect, an advisory opinion”
on the correctness of an “outdated IEP.” Id.
Likewise, in Ostby v. Manhattan School District No. 114, 851 F.3d 677 (7th Cir. 2017),
the court held that an IDEA challenge to a school district’s decision to place a first grade student
with various disabilities into a non-mainstream class known as the SELF program over his parents’
objections was moot where the child had progressed to third grade at a different school in the same
school district, and it was undisputed that there was no further need for the child to be sent to the
SELF program. Id. at 680-82. The court held that “there is no longer an injury that can be
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redressed by a favorable decision” because the child “is no longer in first grade and is no longer
subject to the challenged IEP.” Id. at 682. The court further rejected the argument that a ruling
that the SELF program placement was unlawful could prevent further injury from later decisions
by the school district because where the parties agreed that there was no further need for the SELF
program, a future violation was “not reasonably likely to occur.” Id. at 684.
As these decisions illustrate, M.R.’s case is moot because “it is impossible for a court to
grant [her] any effectual relief whatever.’” Chafin, 568 U.S. at 172 (quoting Knox, 567 U.S. at
307). In the Amended Complaint, M.R. asked this Court to “[r]equire [Tajdar] to make reasonable
accommodations to ensure M.R.’s return to the home-based day care.” Am. Compl. at 13. The
reasonable accommodation that M.R. has sought throughout this litigation is the provision of a
private room for M.R.’s daily, two-hour-long ABA sessions in a day care setting. See id. ¶ 52
(“The requested reasonable accommodation by the Rs for M.R. was the use of the classroom or
nap room for use for ABA therapy.”). As in Malkentzos, however, M.R. “aged out” of the ABA
program. Malkentzos, 102 F.3d at 55. Since August 2017, M.R. has neither needed nor received
daily ABA sessions in a day care center. As A.R. stated in her deposition, A.R. and N.R. “knew
that [ABA treatment] would only be from April [2017] through August [2017] because county
services was going to end on [M.R.’s] birthday.” J.R. 76. A.R. testified that M.R. “received ten
hours of ABA services [per week] at [PVA] up until her birthday of 2017, and then she moved to
the CAPP autism program, which was a full-day autism program through the county.” J.R. 78.
It is therefore undisputed that as of August 2017, M.R. was no longer eligible for, or
needed, the private, two-hour ABA sessions within a day care facility, and that from that point
forward, she has instead needed the full-day autism program that takes place at a local public
school building. At this point, where M.R. no longer needs the accommodation sought when she
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was two years old because the ABA services are no longer “the proper education program” for
M.R., a ruling on whether Tajdar’s failure to accommodate the ABA services would be, “in effect,
an advisory opinion” on an “outdated” request for a reasonable accommodation. Brown, 442 F.3d
at 599. Even if M.R. were to reenroll in Tajdar’s day care now for the limited hours of before- and
after-school care, where it is undisputed that M.R. no longer needs the particular services that
warranted the requested accommodation of a private room for autism therapy, and at the hearing
plaintiff’s counsel acknowledged that M.R. would not need a specialist during before- or afterschool care, there is no basis to issue such an opinion. See Ostby, 851 F.3d at 684 (finding that a
future violation was “not reasonably likely to occur” where the parties agreed there was no further
need for the educational program at issue). Thus, as of August 2017, this case was moot.
The Court’s prior determination in denying the first Motion to Dismiss that Plaintiffs had
“alleged sufficient facts to establish standing to seek injunctive relief,” M.R. ex rel. N.R., 2018 WL
6050888, at *4, does not preclude this ruling even though mootness and standing are closely
related. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (“Mootness has
been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that
must exist at the commencement of the litigation (standing) must continue throughout its existence
(mootness).” (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980))). Here, at the
pleading stage, Plaintiffs alleged that they wanted to reenroll M.R. at Kids and Tots, as it was more
affordable and conveniently located than PVA. Where nothing in the Amended Complaint
suggested that M.R.’s ABA therapy had ended, the Court properly construed Plaintiffs’ allegations
as stating that M.R.’s need for daily ABA services—and the concomitant reasonable
accommodation—persisted. M.R. ex rel. N.R., 2018 WL 6050888, at *4; see also Cooksey v.
Futrell, 721 F.3d 226, 234 (4th Cir. 2013) (stating that a court considering a motion to dismiss
11
must “draw all reasonable inferences in favor of the plaintiff”). The Court therefore found that
Plaintiffs had plausibly alleged that without an injunction they would suffer a future injury. M.R.
ex rel. N.R., 2018 WL 6050888, at *3-4.
Now that this case has proceeded through discovery and to the motion for summary
judgment stage, the Court has the benefit, and indeed the duty, of considering the specific factual
record. See Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). That
evidence includes A.R.’s deposition, conducted on July 9, 2019, several months after the Court
issued its memorandum opinion on the first Motion to Dismiss.
In her deposition, A.R.
contradicted the prior claim that Plaintiffs wanted to return M.R. to Kids and Tots by testifying
that as of April 2017, Plaintiffs no longer had an interest in having M.R. return because they
considered it “an unsafe space” at that point. J.R. 75. Most significantly, she also testified that
M.R. stopped receiving ABA services at a day care center when she turned three years old in
August 2017 and from that point forward was enrolled in the full-day autism CAPP program at an
MCPS building. J.R. 77-78. Based on these specific facts not previously available to the Court,
the Court must conclude that this case is now moot.
Finally, although Plaintiffs seek not only injunctive relief, but also a declaratory judgment
that Tajdar discriminated against M.R., the latter request does not provide a basis to maintain the
case, because the test for whether Article III’s requirement of a case or controversy has been
satisfied is the same for both claims. See Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991)
(assessing Article III standing challenges to claims for injunctive and declaratory relief under the
same standard). Where a plaintiff is seeking “prospective declaratory and injunctive relief rather
than damages,” allegations of past injuries do not “show a present case or controversy . . . if
unaccompanied by any continuing, present adverse effects.” Nanni v. Aberdeen Marketplace, Inc.,
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878 F.3d 447, 454 (4th Cir. 2017) (while addressing standing, noting that “standing, mootness,
and ripeness are simply subsets of [the Constitution’s] command that the courts resolve disputes,
rather than emit random advice”); Bryant, 924 F.2d at 529. Accordingly, the Court must find that
this case is moot. Where the case must dismissed on that basis, the Cross Motions for Summary
Judgment must be denied as moot.
CONCLUSION
For the foregoing reasons, Tajdar’s Motion to Dismiss Amended Complaint as Moot will
be GRANTED, and the Cross Motions for Summary Judgment will be DENIED AS MOOT. A
separate Order shall issue.
Date: July 2, 2020
/s/ Theodore D. Chuang
THEODORE D. CHUANG
United States District Judge
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