Avaras v. Clarkstown Central School District et al

Filing 104

ORDER: The Court now directs Plaintiff to file a third amended complaint, which will completely replace, not supplement, the operative complaint. While leave to amend is to be freely given, "piecemeal pleading" is impermissible. See, e.g ., Zito v. Leasecomm Corp., No. 02 CIV.8074 GEL, 2004 WL 2211650, at *26 (S.D.N.Y. Sept. 30, 2004). Rule 8 of the Federal Rules of Civil Procedure requires that a complaint make "a short and plain statement of the claim showing that the plea der is entitled to relief." To that end, the third amended complaint shall reiterate, without amending, all claims raised in the case number 19-cv-05355. The only new claims to be added are those regarding the issue remanded to the IHO and app ealed to the SRO. The third amended complaint shall be filed on or before December 19 2019. The remaining briefing schedule as indicated in the Stipulation remains in effect and further set forth in this Order and further set forth in this Order. (Amended Pleadings due by 12/19/2019.) (Signed by Judge Nelson Stephen Roman on 12/17/2019) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONNIE A VARAS, individually and as parent ofN.A.,
Plaintiffs,
-against-

No. 15 CV 9679 (NSR)

CLARKSTOWN CENTRAL SCHOOL DISTRICT,
BOARD OF EDUCATION FOR THE CLARKSTOWN
CENTRAL SCHOOL DISTRICT, and NEW YORK
STATE DEPARTMENT OF EDUCATION,

ORDER

Defendants.
NELSONS. ROMÁN, United States District Judge:
Plaintiff Connie Avaras ("Plaintiff), individually and as parent of N.A., commenced this
action against the Clarkstown Central School District (the "District"), the Board of Education for
the District (the "Board") (collectively the "District Defendants"), the New York State Department
of Education (the "Depmiment"), and the following Department officials: Mary Ellen Elia, the
State Commissioner of Education ("Elia"), Christopher Suriano, the Assistant Commissioner of
Special Education ("Suriano"), Joanne LaCrosse, Coordinator of Special Education Policy and
Professional Development ("LaCross"), Noel Granger, Supervisor of Program Development and
Support Services ("Granger"), and Jackie Bumbalo, Coordinator of Upstate Regional Special
Education Quality Assurance ("Bumbalo") (collectively, the "Depmiment Officials" and with the
Department, "Department Defendants") 1 pursuant to the Individuals with Disabilities Education

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The Department Officials were not parties to Plaintiffs original complaint, but were added on February 8, 2017,
when Plaintiff filed the SAC. By Opinion and Order dated October 15, 2018, the Court dismissed all claims asse1ted
against the Department Defendants. (ECF No. 79.)

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Improvement Act ("IDEA" or "IDEIA"), 20 U.S.C. § 1400 et seq., Title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., Section 504 of the Rehabilitation Act of 1973
("RA"), 29 U.S.C. § 794, and 42 U.S.C. § 1983 ("Section 1983").
Plaintiff initiated this case pro se, but has since retained counsel.

At a pre-motion

conference held on October 30, 2019, Plaintiff was granted leave to file a third amended complaint
pursuant to certain conditions that were deemed mutually agreeable to Plaintiff and the District
Defendants. (See ECF Minute Entry dated October 30, 2019.) At the conference, the Court
advised that all claims asserted in the matter bearing the case number 19-cv-5355 will be
considered under the instant case bearing the case number 15-cv-9679, and that any new claims to
be asse1ied in the amended complaint would be limited to the most recent Independent Hearing
Officer's ("IHO") and State Review Officer's ("SRO") decisions.
Plaintiff and the District Defendants submitted a Proposed Stipulation memorializing the
agreement reached at the October 30, 2019 conference, which was signed by the Court and "so
ordered" on November 18, 2019. ("Stipulation," ECF No. 99.) The Stipulation provides, inter
alia, that "all claims in 19-cv-05355 shall be deemed raised in 15-cv-09679"

(1 6) and that

"Plaintiff will file . . . a supplemental Complaint in this action which is limited to the issue
remanded to the IHO and appealed to the SRO." (12). Plaintiff subsequently attempted to file a
"Supplemental Complaint" on December 16, 2019. (ECF No. 103.)
The Court now directs Plaintiff to file a third amended complaint, which will completely
replace, not supplement, the operative complaint. While leave to amend is to be freely given,
"piecemeal pleading" is impermissible. See, e.g., Zito v. Leasecomm Corp., No. 02 CIV.8074
GEL, 2004 WL 2211650, at *26 (S.D.N.Y. Sept. 30, 2004). Rule 8 of the Federal Rules of Civil
Procedure requires that a complaint make "a short and plain statement of the claim showing that

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the pleader is entitled to relief." To that end, the third amended complaint shall reiterate, without
amending, all claims raised in the case number 19-cv-05355. The only new claims to be added
are those regarding the issue remanded to the IHO and appealed to the SRO. The third amended
complaint shall be filed on or before December 1t 2019. The remaining briefing schedule as
indicated in the Stipulation remains in effect.

Dated:

SO ORDERED:

December 17, 2019
White Plains, New York

NELSON S. ROMAN
United States District Judge

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