W et al v. The City Of New York , et al

Filing 392

MEMORANDUM OPINION AND ORDER: re: 297 MOTION for Summary Judgment on Grounds of Mootness filed by City of New York. Accordingly, because the Court has not yet made a final determination as to whether this case will proceed as a class action, Defen dants' motion for partial summary judgment dismissing the six Plaintiffs' claims on the grounds of mootness is denied. This Memorandum Opinion and Order resolves docket entry no. 297. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/01/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
ELISA W., by her next friend Elizabeth
Barricelli, et al.,
Plaintiffs,
-v-

No. 15 CV 5273-LTS-HBP

THE CITY OF NEW YORK, et al.,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
On July 8, 2015, the named plaintiff children (“Named Plaintiff Children”) and
New York City Public Advocate Letitia James (“James” and, together with the Named Plaintiff
Children, “Plaintiffs”) filed the instant action, on behalf of themselves and a purported class of
plaintiffs, asserting claims under the First, Ninth, and Fourteenth Amendments to the United
States Constitution, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et
seq. (the “AACWA”) (pursuant to 42 U.S.C. § 1983), New York State Social Services Law and
the common law of contracts against the City of New York (the “City”), the New York City
Administration for Children’s Services (“ACS”), ACS Commissioner Gladys Carrion (“Carrion”
and, together with the City and ACS, the “City Defendants”),1 the New York State Office of
Children and Family Services (“OCFS”) and OCFS Acting Commissioner Sheila J. Poole

1

Carrion is sued in her official capacity as ACS Commissioner only. (See Docket Entry
Nos. 1 (“Complaint”) and 91 (“Amended Complaint”).)

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(“Poole” and, together with OCFS, the “State Defendants”),2 stemming from alleged deficiencies
in New York City’s foster care system. (See generally Complaint; Amended Complaint.)
Plaintiffs filed the Amended Complaint on December 29, 2015. The Court has jurisdiction of
this action pursuant to 28 U.S.C. §§ 1331 and 1367.
The City Defendants now move for partial summary judgment, seeking dismissal
of six of the Named Plaintiff Children from this action on the grounds that their claims have
become moot. (Docket entry no. 297.) The Court has carefully considered the submissions of
both parties in connection with the instant motion. For the following reasons, Defendants’
motion is denied.
BACKGROUND
The Court assumes the parties’ familiarity with the claims in this long-running
and complex litigation, which have been set forth with particularity in prior opinions of the
Court. For the purposes of this summary judgment motion, the only relevant fact—which is not
disputed by the Plaintiffs—is that six of the Named Plaintiff Children, namely Alexandria R.,
Oliva R., Ana-Maria R., Dameon C., Xavion M., and Elisa W., are no longer in the custody of
ACS. (See generally docket entry no. 310, Named Plaintiff Children’s Responses to City
Defendant’s Statement of Facts Not in Dispute.)
DISCUSSION
When it comes to standing, “in essence the question . . . is whether the litigant is
entitled to have the court decide the merits of the dispute” by invoking its jurisdiction. Crist v.
Commission on Presidential Debates, 262 F.3d 193, 194 (2d Cir. 2001). To demonstrate

2

Poole is sued in her official capacity as OCFS Acting Commissioner only. (See
Complaint; Amended Complaint.)

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constitutional standing, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). While the
standing doctrine evaluates the litigant’s personal stake at the outset of a case, “the mootness
doctrine ensures that the litigant's interest in the outcome continues throughout the life of the
lawsuit.” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (citing United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 396–97 (1980); Etuk v. Slattery, 936 F.2d 1433, 1441 (2d
Cir. 1991)). In general, “a case is moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Cnty. of Los Angeles v. Davis, 440
U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969) (internal
quotation marks omitted)).
The mootness doctrine is not, however, absolute. Among the exceptions to the
mootness doctrine is one for claims that are “capable of repetition, yet evading review.” Roe v.
Wade, 410 U.S. 113, 125 (1973). Moreover, the application of the mootness doctrine in class
action cases is complex, and hinges on the timing of certification of the class. “[I]n general, if
the claims of the named plaintiffs become moot prior to class certification, the entire action
becomes moot. In contrast, class certification will preserve an otherwise moot claim.” Comer v.
Cisneros, 37 F.3d 775, 798 (2d Cir. 1994) (internal citation omitted).
Comer is instructive here. In that case, the putative plaintiff class was comprised
of minority residents of public housing projects. Id. at 779. The district court granted motions to
dismiss the complaint, and denied class certification. Id. at 786. On appeal, the United States
Court of Appeals for the Second Circuit reversed, ordering the district court to certify the classes.
Id. at 797. Having done so, the Second Circuit turned to evaluation of the plaintiffs’ argument

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that the claims could not be mooted by a particular named plaintiff’s departure from the public
housing at issue, because the population of public housing projects is inherently transitory. Id. at
798-99. The Second Circuit noted that “under the appropriate circumstances, class certification
may relate back to the filing of the complaint.” Id. at 799 (citing Cnty. of Riverside v.
McLaughlin, 500 U.S. 44, 51–52 (1991)). Given the nature of the population at issue, the
Second Circuit in that case held that class certification appropriately related back to the date of
the original complaint. Id. (“But what if the claims are transitory in some sense, like the nature
of the population of a public housing market? And, what result if, after an extended delay while
a motion for class certification is pending, a suit is dismissed on standing and mootness grounds,
without class certification? Given the circumstances of this case, in particular, the transitory
nature of the public housing market and the court’s failure to pass upon the plaintiffs’ motion for
class certification for over two years, we now hold that this class certification relates back to the
original filing.”).
Turning to the present case, the putative class of children in ACS custody has
every hallmark of an inherently transitory population. Every member of the class will
necessarily leave it, as ACS oversight terminates when a child reaches 21 years of age. Some
children will enter and leave ACS custody multiple times during their lives because of factors
entirely outside of their control. While the Court denied the plaintiffs’ first motion for class
certification, that denial was without prejudice to renewal. As Comer and McLaughlin make
clear, the Court has the power upon certification of the class to relate that certification back to
the date of the original compliant, when all of the Named Plaintiff Children were in ACS
custody. That determination is appropriately litigated in the context of class certification, not by
piecemeal consideration of mootness arguments attacking the standing of individual plaintiffs as

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of particular points in the course of the pretrial proceedings. See, e.g., Sosna v. Iowa, 419 U.S.
393, 402 n.11 (1975) (“[W]hether the certification can be said to ‘relate back’ to the filing of the
complaint may depend upon the circumstances of the particular case and especially the reality of
the claim that otherwise the issue would evade review.”); Crisci v. Shalala, 169 F.R.D. 563, 567
(S.D.N.Y. 1996) (“Relation back is also appropriate where, as here, the claims of the named
plaintiff have become moot before a motion for class certification is filed so long as a justiciable
controversy existed some time prior to class certification.” (internal quotation marks omitted)).

CONCLUSION
Accordingly, because the Court has not yet made a final determination as to
whether this case will proceed as a class action, Defendants’ motion for partial summary
judgment dismissing the six Plaintiffs’ claims on the grounds of mootness is denied. This
Memorandum Opinion and Order resolves docket entry no. 297.
SO ORDERED.
Dated: New York, New York
September 1, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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