UNITED STATES OF AMERICA v. NOBEL LEARNING COMMUNITIES
OPINION FILED. Signed by Judge Noel L. Hillman on 10/19/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
NOBEL LEARNING COMMUNITIES
d/b/a CHESTERBROOK ACADEMY,
JORDAN MILOWE ANGER
DAVID V. SIMUNOVICH
OFFICE OF THE U.S. ATTORNEY
970 BROAD STREET, SUITE 700
NEWARK, NJ 07102
On behalf of Plaintiff
BONNIE M. HOFFMAN
ANDREW M. ERDLEN
HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER
20 BRACE ROAD
CHERRY HILL, NJ 08034-2634
On behalf of Defendant
HILLMAN, District Judge
This case concerns Defendant’s alleged violation of Title
III of the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. §§ 12151-89.
Presently before the Court is Defendant’s
Motion to Stay and, Alternatively, for Partial Dismissal.
the reasons that follow, Defendant’s Motion to Stay is denied,
as is Defendant’s Motion for Partial Dismissal.
The Court takes its facts from Plaintiff’s January 18, 2017
Defendant Nobel Learning Communities (NLC) is the
owner and operator of Chesterbrook Academy (“Chesterbrook”) in
Moorestown, New Jersey.
Chesterbrook offers daycare services
and an educational foundation program for young children.
born on July 11, 2011 with Down syndrome, enrolled at
Chesterbrook on January 5, 2012.
At Chesterbrook, diaper-changing services are provided to
children enrolled in its “Infants,” “Toddlers,” “and “Beginners”
Diaper-changing services are not provided to children
enrolled in its “Intermediates” or “Pre-K” programs.
In December 2014, Chesterbrook informed M.M.’s parents of
its intention to move M.M. into the “Intermediates” program.
that time, M.M. still required diapers.
M.M. was moved into the
“Intermediates” program on January 21, 2015.
worked with M.M. to try to get her toilet trained, setting a
deadline pursuant to corporate policy for M.M. to be toilet
trained by April 1, 2015.
On March 26, 2015, Chesterbrook informed M.M.’s parents
that M.M. was being expelled effective April 1, 2015 because she
This Court has federal question jurisdiction pursuant to 28
U.S.C. § 1331, as Plaintiff’s claims arise under Title III of
was not toilet trained.
M.M.’s last day at Chesterbrook was
March 31, 2015.
Plaintiff brought a claim under Title III of the ADA asking
for a declaration that Defendant violated Title III of the ADA,
for Defendant to be enjoined from engaging in discrimination
against individuals with disabilities and from failing to comply
with Title III of the ADA, for an award of compensatory damages
to M.M. and M.M.’s parents, and for a civil penalty against
Defendant to vindicate the public interest.
Defendant filed a
Motion to Stay or, Alternatively, for Partial Dismissal on March
Defendant asks the Court to stay this action under the
Colorado River abstention doctrine, arguing there is similar
litigation in state court.
In October 2016, the Director of the
New Jersey Division on Civil Rights filed a complaint against
NLC, alleging a violation of the New Jersey Law Against
Discrimination (NJLAD) based on Chesterbrook’s treatment of M.M.
This case and the state court case arise out of the same factual
Whether abstention is appropriate is a two-part inquiry.
The initial question is whether there is a parallel state
proceeding that raises “substantially identical claims
[and] nearly identical allegations and issues.” If the
proceedings are parallel, courts then look to a multifactor
circumstances” meriting abstention are present.
Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571
F.3d 299, 307-08 (3d Cir. 2009) (alteration in original) (first
quoting Yang v. Tsui, 416 F.3d 199, 204 n.5 (3d Cir. 2005); and
then quoting Spring City Corp. v. Am. Bldgs. Co., 193 F.3d 165,
171 (3d Cir. 1999)).
“The doctrine is to be narrowly applied in
light of the general principle that ‘federal courts have a
strict duty to exercise the jurisdiction that is conferred upon
them by Congress.’”
Id. at 307 (quoting Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 717 (1996)).
The Court first looks to whether the federal and state
cases are parallel.
See, e.g., Trent v. Dial Med., 33 F.3d 217,
223 (3d Cir. 1994).
“Generally, cases are parallel so as to
justify abstention under Colorado River when they involve the
same parties and claims.”
However, the Third Circuit has
applied Colorado River abstention even where the parties were
not “perfectly identical,” but were “substantially the same.”
Barron v. Caterpillar, Inc., No. 95-5149, 1996 WL 368335, at *2
n.2 (E.D. Pa. June 26, 1996); accord Mamouzette v. Jerome, No.
13-117, 2017 WL 3083628, at *8 (D.V.I. July 19, 2017)
(“[C]omplete identity of parties is not required to satisfy the
Courts look past the names and number of parties
in determining whether there is an identity of parties for
purposes of the abstention doctrine.”); Glades Pharm., LLC v.
Call, Inc., No. 04-4259, 2005 WL 563726, at *7 (E.D. Pa. Mar. 9,
2005) (“Two actions may involve different parties and still be
parallel so long as there is a substantial similarity between
the two actions.”).
In this action, Plaintiff is the United States of America
and Defendant is NLC.
In the state court action, the plaintiff
is the Director of the New Jersey Division on Civil Rights, and
the defendant is also NLC.
Accordingly, the defendants are the
same, but the plaintiffs are different – one a state entity and
one a federal entity.
Defendant argues that, while the two
cases “are nominally brought by different parties,” that “the
real party in interest is indisputably M.M.”
that it is not a party to the state litigation, and this action
was filed on behalf of the United States of America, not on
behalf of M.M. or her parents.
This Court agrees that this is
The plaintiffs in the state and federal actions are
different, representing separate and distinct government
While the discrimination alleged was directed toward
the same individual, this does not affect the parties listed on
the complaint in the sense their interests are broader.
neither are actions where a party is bringing suit on behalf of
While the Third Circuit has not required complete
identity of parties, this Court’s purview of the case law
reveals that this leniency is adopted largely for where the
parties are switched, such that a plaintiff in the federal
action is a defendant in the state action (and vice versa) 2 and
where there are additional parties to one action that are not
included in the other, but where the parties are otherwise
This is not such a case.
This Court has not found a
case where circumstances similar to these warranted a finding
that the parties were “essentially identical,” and this Court is
not convinced that such a finding would be appropriate.
Further, this Court does not find the federal and state
actions concern the same claims.
“The courts have been cautious
in finding actions that are merely similar to be duplicative.”
Certain Underwriters at Lloyds, London v. Ross, No. 98-1037,
For instance, in Laboon v. Goldberg, No. 06-1429, 2007 WL
543007 (W.D. Pa. Feb. 18, 2007), the court found “[t]he parties
[were] substantially the same” where the plaintiff in the
federal action was the defendant in the state action and the
defendant in the federal action was the plaintiff in the state
action. Id. at *2.
For instance, the Third Circuit in Trent found the
defendants were “essentially identical” where the federal action
included the same defendant as the state action, but the state
action included two additional defendants. 33 F.3d at 224. The
Third Circuit also found the plaintiffs were “effectively the
same” where the federal plaintiff was part of a class in the
state action. Id. In Mamouzette, the parties were identical
except additional defendants were included in the federal action
that were not named in the state action, which the court found
to be “of no import,” particularly where the only parties
relevant to the pending motion were parties to both actions.
2017 WL 3083628, at *8.
1998 WL 372304, at *2 (E.D. Pa. 1998).
“[W]hile certain issues
to be litigated in the . . . federal claim may be identical to
issues that have been or will be raised . . . in state court,
the lack of identity of all issues necessarily precludes
Colorado River abstention.”
Univ. of Md. v. Peat Marwick Main &
Co., 923 F.2d 265, 276 (3d Cir. 1991).
The federal complaint alleges a violation of the ADA,
whereas the state complaint alleges a violation of the NJLAD.
There is no doubt the federal and state actions involve common
facts, and that the legal analyses will have much overlap.
However, “[t]he Colorado River analysis . . . turns on the
claims brought, rather than upon whether or not those claims can
trace their origin to a common nucleus of operative facts.”
Oliver v. Sid Bernstein, Ltd., No. 96-4471, 1997 WL 135751, at
*4 (E.D. Pa. Mar. 11, 1997).
Where two cases “employ
substantially different ‘approaches’ and might ‘achieve
potentially different results,’” Colorado River abstention is
See Trent, 33 F.3d at 224.
This is such a case.
Plaintiff’s claim in the federal action falls under an entirely
different statute than the state action.
While the state
statute often borrows from the federal statute, that does not
make them identical, and relief under one statute does not
require relief under the other. 4
Nor does it appear the remedies
are the same. 5
In any event, a full analysis of the Colorado River factors
fails to convince this Court that extraordinary circumstances
are present here, meriting abstention.
The factors which govern a district court’s exercise of
discretion in deciding whether to abstain under Colorado
Which court first assumed jurisdiction
over property involved, if any;
This Court is not persuaded by Bacot v. N.Y. State Dep’t of
Soc. Servs., 746 F. Supp. 388 (S.D.N.Y. 1990), which Defendant
argues is analogous to this case. In Bacot, the plaintiff filed
a complaint in New York state court alleging violations of the
New York Human Rights Law. Id. at 390. The plaintiff then
filed suit in federal court, alleging violations of Title VII of
the Civil Rights Act of 1964. Id. Both cases rested on the
same factual allegations. Id. The Southern District of New
York noted that “federal and state courts have concurrent
jurisdiction over Title VII cases.” Id. It decided:
“[P]laintiff may now press this Title VII claim . . . in the
action in the New York State Supreme Court,” unless “the state
court has decided not to hear plaintiff’s cause of action
arising under Title VII.” Id. Unlike this case, however, Bacot
involved the same plaintiff, in which case it was not
unreasonable for the Southern District of New York to note the
availability of the federal claim in state court. The plaintiff
in this case is not the plaintiff in state court and therefore
does not have the same option.
On July 18, 2017, the state court granted the defendant’s
motion for partial dismissal of the plaintiff’s complaint. The
decision dismissed “all counts as they relate to compensatory
damages, penalties, and punitive damages,” finding those counts
were beyond the authority conferred on the Director of the New
Jersey Division on Civil Rights. The counts requesting
injunctive relief remained. A larger range of potential
remedies in this action undermines the argument for abstention.
The desirability of avoiding piecemeal
The order in which the respective courts
Whether federal or state law applies; and
Whether the state court proceeding would
Id. at 225. 6
“No one factor is necessarily determinative; a
carefully considered judgment taking into account both the
obligation to exercise jurisdiction and the combination of
factors counselling against that exercise is required.”
River Water Conservation Dist. v. United States, 424 U.S. 800,
As this action does not involve a property dispute, factor
one is inapplicable.
Defendant also concedes factor two is
neutral because both cases are pending in New Jersey. 7
factor three, all parallel litigation involves some level of
“Only the first four of these factors were delineated in
Colorado River, the other two are drawn from Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23 . . .
(1983) . . . .” Nationwide Mut. Fire Ins. Co., 571 F.3d at 308
Plaintiff argues the second factor weighs against a stay
because NLC has facilities in New Jersey and many witnesses are
located in New Jersey. However, as both forums are in the State
of New Jersey, this Court does not find the factor tilts in any
For that reason, “the mere possibility of
piecemeal litigation [does not] justif[y] Colorado River
abstention; rather, there must be a strongly articulated
congressional policy against piecemeal litigation in the
specific context of the case under review.”
Ryan v. Johnson,
115 F.3d 193, 198 (3d Cir. 1997); accord Spring City Corp., 193
F.3d at 171-72 (“Colorado River abstention must be grounded on
more than just the interest in avoiding duplicative
Plaintiff argues that, because state courts have
concurrent jurisdiction over ADA claims, see, e.g., Krouse v.
Am. Sterilizer Co., 872 F. Supp. 203, 205-06 (W.D. Pa. 1994),
this demonstrates Congress’s desire to avoid piecemeal
The Court does not find this equates to “a strongly
articulated congressional policy against piecemeal litigation.”
While the state action was filed first, federal law applies
to the federal action, and state law applies to the state
And while the causes of action are similar, the laws
As to whether the state court proceeding would
adequately protect the federal plaintiff’s rights, the United
States Attorney has a vested interest in litigating this case,
as “the Attorney General has the primary responsibility for
enforcing the ADA.”
Caruso v. Blockbuster-Sony Music Entm’t
Ctr., 968 F. Supp. 210, 215 (D.N.J. 1997); accord United States
v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094, 1099 (C.D. Cal. 2003)
(“The Department of Justice . . . , through the Attorney
General, is charged with enforcing Title III.”); Hoepfl v.
Barlow, 906 F. Supp. 317, 324 (E.D. Va. 1995) (“[T]he scheme
Congress enacted to enforce the ADA envisions action by the
Attorney General to obtain relief to benefit the disabled
community at large.”); see 42 U.S.C. § 12188(b)(1)(B).
This Court reiterates that the Colorado River abstention
doctrine “is to be narrowly applied.”
Nationwide Mut. Fire Ins.
Co., 571 F.3d at 307 (quoting Quackenbush, 517 U.S. 706).
determining whether a stay is appropriate, this Court’s “task in
cases such as this is not to find some substantial reason for
the exercise of federal jurisdiction by the district court;
rather the task is to ascertain whether there exist
‘exceptional’ circumstances, the ‘clearest of justifications,’
that can suffice under Colorado River to justify the surrender
of that jurisdiction.”
Moses H. Cone Mem’l Hosp., 460 U.S. at
This is not such an exceptional case.
The Court similarly declines to exercise its “inherent
authority” to stay this proceeding.
“In determining whether to
grant a stay, courts in the Third Circuit have taken into
account a number of factors, including (1) the length of the
stay; (2) the balance of harm to the parties; (3) the interests
of the public; and (4) the interests of judicial economy.”
United States v. $1,879,991.64 Previously Contained in Sberbank
of Russia’s Interbank, 185 F. Supp. 3d 493, 500 (D.N.J. 2016).
This Court is not so convinced that consideration of these
factors requires a stay of this proceeding.
Court denies Defendant’s Motion to Stay.
Having determined that a stay of the federal action is
inappropriate, this Court now considers Defendant’s alternate
argument for partial dismissal.
Defendant argues collateral
estoppel applies to Plaintiff’s associational discrimination
claim based on two Eastern District of Pennsylvania decisions in
2009 and 2010.
In the 2009 decision, the Eastern District of
Pennsylvania considered a motion to dismiss the complaint
brought by the defendant, NLC, against the plaintiff, the United
United States v. Nobel Learning Cmtys., Inc., 676 F.
Supp. 2d 379, 380 (E.D. Pa. 2009).
In its complaint, the United
States claimed NLC discriminated against disabled children in
violation of the ADA.
Part of its complaint consisted of a
claim of associational discrimination suffered by the families
of the disabled children.
The Eastern District of
Pennsylvania found Title III of the ADA did not allow a family
to recover “for indirect consequences associated with a child’s
exclusion from an NLC school.”
Id. at 386.
court granted NLC’s motion to dismiss as to the plaintiff’s
allegation of associational discrimination.
Id. at 388.
In the 2010 decision, the Eastern District of Pennsylvania
again considered this issue after the United States moved to
amend its complaint.
United States v. Nobel Learning Cmtys.,
Inc., No. 09-1818, 2010 WL 1047730, at *1 (E.D. Pa. Mar. 19,
The proposed amended complaint “include[d] new factual
allegations about the parents of the . . . children with
disabilities,” asserting that the parents “sought to contract
with [the defendant] for daycare services that [were] marketed
to them for their own benefit, and that the parents were denied
the ability to contract for these services because of the
parents’ association with their disabled children.”
Id. at *2.
The court denied the motion to amend the complaint, finding an
amendment would be futile as to the associational discrimination
Id. at *4.
The Eastern District of Pennsylvania reasoned as follows:
[T]o assert a claim of associational discrimination, a
plaintiff must allege that he or she experienced direct
discrimination because of his or her association with a
Such discrimination requires a
separate and distinct denial of a benefit or service to
a non-disabled person; it may not be premised on a
derivative benefit or harm based on treatment towards a
Id. (citations omitted).
The court found “[a]ny benefit to
parents premised on time free from their children is not a
benefit that is separate and distinct from the benefit to the
child in attending daycare.”
Id. at *5.
enjoy a derivative benefit in sending their children to daycare,
and suffer a derivative harm due to the attendant consequences
of a child’s disenrollment or unenrollment, daycare is not a
service for parents because children, not parents, partake in
the daycare activities.”
For collateral estoppel to apply, four elements must be
satisfied: “(1) the issue sought to be precluded [is] the same
as that involved in the prior action; (2) that issue [was]
actually litigated; (3) it [was] determined by a final and valid
judgment; and (4) the determination [was] essential to the prior
Burlington N. R.R. v. Hyundai Merchant Marine Co.,
63 F.3d 1227, 1231-32 (3d Cir. 1995) (alterations in original)
(quoting In re Graham, 973 F.3d 1089, 1097 (3d Cir. 1992)).
Plaintiff concedes the first two prongs have been
However, Plaintiff argues collateral estoppel is
inappropriate because (1) the 2009 and 2010 decisions were not
sufficiently firm to have preclusive effect and (2) the parties
settled the Eastern District of Pennsylvania case and expressly
allowed Plaintiff to sue Defendant for violations of the ADA.
The Court first considers the two Eastern District of
A “’final judgment’ includes any prior adjudication of an
issue in another action that is determined to be sufficiently
firm to be accorded conclusive effect.”
In re Brown, 951 F.2d
564, 569 (3d Cir. 1991) (quoting 1 Restatement (Second) of
Judgments § 13 (1982)).
“In determining whether the resolution
was sufficiently firm, the second court should consider whether
the parties were fully heard, whether a reasoned opinion was
filed, and whether that decision could have been, or actually
Finality for purposes of collateral
estoppel is a “’pliant’ concept” which “may mean little more
than that the litigation of a particular issue has reached such
a stage that a court sees no really good reason for permitting
it to be litigated again.”
Id. (quoting Dyndul v. Dyndul, 620
F.2d 409, 412 n.8 (3d Cir. 1980)).
“Ordinarily, an order granting a motion to dismiss is an
appealable final order . . . .” Nationwide Ins. Co. v.
Patterson, 953 F.2d 44, 45 (3d Cir. 1991).
The District of New
Jersey has previously stated that “[w]hen a court grants a
motion to dismiss and expresses its reasons for doing so in a
written opinion, . . . the decision is considered final for
purposes of collateral estoppel.”
Rose v. Schultz, No. 03-1684,
2007 WL 1160348, at *5 (D.N.J. Apr. 17, 2007).
However, in Rose
v. Schultz, the grant of a motion to dismiss disposed of the
Here, while the Eastern District of
Pennsylvania disposed of the associational discrimination claim,
other claims remained, and thus the litigation was ongoing.
Thus, these decisions do not constitute final judgments.
v. Manheim Twp. Sch. Dist., 540 F. Supp. 2d 603, 608 (E.D. Pa.
2008) (“A partial grant of a motion to dismiss is not a final
judgment, and thus is generally not appealable except by an
interlocutory appeal under 28 U.S.C. § 1292.”).
they are not sufficiently firm to allow for collateral estoppel.
Following the Eastern District of Pennsylvania decisions,
in January 2011, the United States and NLC entered into a
Settlement Agreement, which provided that NLC would implement a
non-discrimination policy, publicize that policy to its
employees, and provide appropriate training, with mandatory
reporting to the United States.
It also provided NLC would pay
$215,000 to the named individuals in the complaint.
Settlement Agreement resolved all of the allegations in the
complaint and was to remain in effect for two years.
The Settlement Agreement does not provide for collateral
estoppel to apply to the Eastern District of Pennsylvania
Rather, the Settlement Agreement provided:
In consideration of, and consistent with all the terms
of the Settlement Agreement, the United States agrees to
refrain from . . . pursuing further legal proceedings
regarding . . . legal theories raised or that could have
been asserted based on the facts set forth in the First
The Settlement Agreement was to remain in effect for two
years, and thus this bar on pursuing further legal proceedings
has long since ended.
The Settlement Agreement also provided,
in pertinent part: “Nothing in this Settlement Agreement shall
prevent the United States from seeking redress of violations of
this Settlement Agreement or exercising its enforcement
authority pursuant to 42 U.S.C. § 12188 with respect to
violations of the ADA that occur after the Effective Date of
this Settlement Agreement.”
Accordingly, the Settlement
Agreement not only did not express an intent for collateral
estoppel to apply to the earlier Eastern District of
Pennsylvania decisions, but explicitly allowed Plaintiff to
bring new claims after the two year period of the Settlement
Accordingly, the Settlement Agreement allowed
for Plaintiff to bring an associational discrimination claim in
Having determined that collateral estoppel does not apply,
the Court now considers the merits of Defendant’s motion to
dismiss the associational discrimination claim.
provides: “It shall be discriminatory to exclude or otherwise
deny equal goods, services, facilities, privileges, advantages,
accommodations, or other opportunities to an individual or
entity because of the known disability of an individual with
whom the individual or entity is known to have a relationship or
association.” 42 U.S.C. § 12182(b)(1)(E); accord 28 C.F.R.
36.205 (“A public accommodation shall not exclude or otherwise
deny equal goods, services, facilities, privileges, advantages,
accommodations, or other opportunities to an individual or
entity because of the known disability of an individual with
whom the individual or entity is known to have a relationship or
The Eastern District of Pennsylvania held that, “to assert
a claim of associational discrimination, a plaintiff must allege
that he or she experienced direct discrimination because of his
or her association with a disabled person.”
Cmtys., Inc., 2010 WL 1047730, at *4.
requires a separate and distinct denial of a benefit or service
to a non-disabled person; it may not be premised on a derivative
benefit or harm based on treatment towards a disabled person.”
Even outside of the Eastern District of Pennsylvania,
“[c]ourts have interpreted the ADA and its prohibition on
associational discrimination to require that the plaintiff
bringing an associational discrimination claim suffer some
specific, separate, and direct injury as a result of his
association with the disabled individual.”
Micek v. City of
Chicago, No. 98 C 6757, 1999 WL 966970, at *3 (N.D. Ill. Oct. 4,
In Micek, a father, mother, and son brought a claim
under the ADA after the mother and son, who had significant
hearing loss, were denied certain coverage related to their
Id. at *1.
The court found the father, “who was
himself denied no benefit, suffered no cognizable separate
injury sufficient to gain standing to sue.” Id. at *4.
Similarly, in Simenson v. Hoffman, a child’s parents
brought suit against a medical center which refused to treat the
child for a respiratory infection, allegedly on the basis of his
No. 95 C 1401, 1995 WL 631804, at *1 (N.D. Ill.
Oct. 24, 1995).
The court found the parents “were not at the
medical center for any purpose other than to seek treatment for
[The child]’s ejection, and that of his parents,
was merely the final act in the decision to deny him medical
Id. at *6.
Accordingly, the court found there
could be no claim of associational discrimination.
While the Court agrees with the Eastern District of
Pennsylvania’s reasoning that a plaintiff must experience direct
discrimination, and that the benefit must be separate and
distinct and not merely derivative of the benefit to a disabled
person, the Court disagrees with the Eastern District of
Pennsylvania’s determination that daycare services are merely a
derivative benefit for parents.
Daycare services, while
centered around the child, are as much a benefit to parents.
is a service, agreed to between the parents and the institution,
which provides parents with otherwise unavailable time apart
from their children.
One can argue in a sense that the disabled
child’s benefit from daycare services is derivative of the
In making this determination, the Court finds persuasive
the court’s reasoning in S.K. v. North Allegheny School
District, 146 F. Supp. 3d 700 (W.D. Pa. 2015).
In S.K., a
school district provided transportation for students from their
respective schools to daycare facilities within the district’s
Id. at 704.
The only daycare facility with the
ability to care for the severely disabled child’s needs was
outside the district.
transport the child.
Accordingly, the district refused to
The court distinguished the Eastern District of
Pennsylvania decisions, stating “the only reason [the child] was
in daycare was so that [the mother] could work.
Based upon that
allegation, the court . . . would have to infer plausibly that
there was a direct benefit to [the mother] provided by the
Id. at 713 n.4.
court found associational discrimination applicable.
While Plaintiff did not plead that the only reason M.M. was
in daycare was so that M.M.’s parents could work, and while the
factual allegations of the harm to the parents are admittedly
barebones, it is axiomatic that daycare services exist for
parents to have temporary relief from providing constant care
for a young child, regardless of what a parent might use that
Given the broad statutory language creating an
associational cause of action and the remedial purpose of the
statute, the Court deems the denial of this type of service
sufficient to state a valid claim asserted by a parent or other
Plaintiff cites Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173 (11th Cir. 2007), Rothschild v. Grottenthaler, 907
F.2d 286 (7th Cir. 1990), and Bravin v. Mount Sinai Medical
Center, 58 F. Supp. 2d 269 (S.D.N.Y. 1999).
The Court finds all
these cases analogous to the instant action.
In Sheely, a mother with a service dog was denied the
opportunity to accompany her child into the room where the
child’s MRI would be administered.
505 F.3d at 1178.
Eleventh Circuit held that the parent’s “benefit” of
accompanying the child could be cognizable under the
Rehabilitation Act of 1973, 29 U.S.C. § 794.
Id. at 1187 n.14.
In Rothschild, deaf parents were frequently invited to
their children’s school for back to school night, meetings with
teachers and counselors, and orientation meetings, designed for
parents of schoolchildren.
907 F.2d at 288.
The deaf parents
frequently did not attend these meetings because the school did
not provide a sign language interpreter.
argued “public schools are for children, not their parents.”
Id. at 290.
The court disagreed and found the parents were
unfairly excluded from these “parent-oriented activities.”
In Bravin, a deaf father moved for a preliminary injunction
to compel the defendant to make available a sign language
interpreter for meetings between the father and the doctors
while his son was a patient at defendant’s facility.
Supp. 2d at 271.
The defendant was providing a service to
expecting mothers and their partners in the form of Lamaze
Id. at 272.
Regardless of whether an expecting mother
could attend the class by itself, the court found “the
fundamental fact” remained that the service was being provided
to the mothers and their partners.
In all three cases cited by Plaintiff, the primary
beneficiary was the non-disabled individual, as is the case
In Sheely, the parent was denied the opportunity to
accompany the child, while the child was the individual
receiving treatment at the facility.
In Rothschild, the parents
were precluded from attending parent-oriented activities at the
school, while the child was the individual enrolled in the
In Bravin, while the mother was the focal point of the
class, the class was designed for inclusion with the partner.
These cases all persuade the Court that, while a service can be
provided to a child, an at least co-equal benefit – separate and
distinct from any benefit to the disabled child – can be
recognized for the parent. 8
At this stage of the proceedings,
Plaintiff has alleged sufficient facts to make out a plausible
claim for associational discrimination.
Accordingly, that claim
will not be dismissed at this time.
Finally, Defendant argues Plaintiff’s request for
injunctive relief is overbroad, as Plaintiff “alleges a
discrete, isolated violation of the ADA relating to only M.M.
and her parents, and yet seeks to enjoin Chesterbrook Academy
and all of its officers, agents, and employees from violating
Defendant’s argument is twofold: (1) Plaintiff
alleges discrimination against only M.M. and her parents and (2)
there is no allegation Plaintiff will be subject to a future
“Because the remedy for a private ADA Title III violation
is injunctive relief, courts look beyond the alleged past
violation and consider the possibility of future violations.”
Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 538 (W.D. Pa.
“Plaintiffs seeking prospective injunctive relief ‘must
demonstrate a “real and immediate threat” of injury in order to
satisfy the “injury in fact” requirement.’”
Id. (quoting Access
These cases differ greatly from Micek and Simenson. In
Micek, coverage was denied to the mother and son; the father was
not denied anything. 1999 WL 966970, at *1. In Simenson, the
disabled child, who was the patient, was removed from the
medical center and consequently so were his parents – this was
merely derivative. 1995 WL 631804, at *1, *6.
4 All, Inc. v. Absecon Hosp. Corp., No. 04-6060, 2006 WL
3109966, at *5 (D.N.J. Oct. 30, 2006)).
“Past exposure to
illegal conduct does not itself show a present case or
controversy regarding injunctive relief, however, if
unaccompanied by any continuing, present adverse effects.”
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).
While the complaint does not make any allegations with
regard to future violations of Title III of the ADA, either
directed at M.M., her parents, or at others, the Court views the
determination of this issue to be premature.
Injunctions in any
form are a form of remedy, and remedies only follow a successful
Accordingly, this issue is not ripe for adjudication in
a matter still in the pleading stages.
There is no question that the statute includes injunctive
relief as a possible remedy, 42 U.S.C. § 12188(b)(2)(A), and
here the claim is brought not by an individual plaintiff but by
the United States under a statute in which Congress gave the
Attorney General a broad mandate to investigate violations,
undertake periodic reviews of covered entities, certify
compliance, and bring civil actions to remedy violations.
This case is in essence an enforcement action
suggesting, at least in the view of Plaintiff, “an issue of
general public importance.”
Id. § 12188(b)(1)(B).
The Court has no occasion to assess whether that viewpoint
is correct or any other aspect of the merits of Plaintiff’s
case, but the earlier skirmish in the Eastern District of
Pennsylvania, the resulting settlement agreement, and this
action taken together suggest Plaintiff’s concerns over the
operations of Defendant and its ongoing compliance with the
relevant statute are not new.
The Court is simply unable to say
that injunctive relief should be precluded under such
circumstances and certainly not before full discovery and the
adjudication of the claims the Court has allowed to proceed.
An appropriate Order will be entered.
Date: October 19, 2017
At Camden, New Jersey
s/ Noel L. Hillman_______
NOEL L. HILLMAN, U.S.D.J.
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