Shepard v. The State Education Department/The University of the State of New York et al
Filing
96
DECISION AND ORDER / REPORT AND RECOMMENDATIONS. School District's motion (Doc. No. 49), insofar as it seeks dismissal of the Amended Complaint for improper service, is DISMISSED as moot, and Plaintiff is GRANTED an extension of time to re-serve Defendant School District with the summons and Amended Complaint within 30 days of receipt of this Decision and Order and Report and Recommendation, and, alternatively, insofar as it seeks dismissal of the Amended Complaint as time-barred, should be DENIED; State Defendants' motion (Doc. No. 61), should be GRANTED. Objections due fourteen days from receipt. Signed by Hon. Leslie G. Foschio on 8/11/2011. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
B.J.S., Individually and on behalf of N.S., a child with
a disability,
Plaintiff,
v.
The State Education Department/The University
of the State of New York,
PAUL F. KELLY, State Review Officer,
RICHARD P. MILLS, Commissioner of Education, and
SPRINGVILLE-GRIFFITH INSTITUTE CENTRAL
SCHOOL DISTRICT BOARD OF EDUCATION,
DECISION
and
ORDER
-----------------------------REPORT
and
RECOMMENDATION
07-CV-456A(F)
Defendants.
APPEARANCES:
FRANK T. HOUSH, ESQ.
Attorney for Plaintiff
70 Niagara Street
Buffalo, New York 14202
ERIC T. SCHNEIDERMAN
Attorney General, State of New York
Attorney for Defendants State Education Department,
Paul F. Kelly, and Richard P. Mills
DARREN LONGO
Assistant Attorney General, of Counsel
Main Place Tower
Suite 300A
350 Main Street
Buffalo, New York 14202
HODGSON RUSS, LLP
Attorneys for Defendant Springville Griffith Central School District
RYAN L. EVERHART, of Counsel
The Guaranty Building
140 Pearl Street
Suite 100
Buffalo, New York 14202
JURISDICTION
This action was referred to the undersigned by Honorable Richard J. Arcara on
September 10, 2009, for all pretrial matters. The case is presently before the court on
Defendants’ motions to dismiss filed on April 5, 2010, by Springville-Griffith Institute
Central School District Board of Education’s motion to dismiss (Doc. No. 49), and on
October 20, 2010, by Kelly and Mills (Doc. No. 61).1
BACKGROUND and FACTS2
Plaintiff B.J.S. (“Plainitff” or “B.J.S.”), commenced this action on July 13, 2007,
by filing a complaint alleging on behalf of herself and her child, N.S. (“N.S.”), then
enrolled in Defendant Springville-Griffith Institute Central School District (“the School
District”), that Defendants New York State Department of Education (“NYSED”),
NYSED Commissioner Richard P. Mills (“Commissioner Mills” or “Mills”), and NYSED
appointed State Review Officer (“SRO”) Paul F. Kelly (“SRO Kelly” or “Kelly”) (together,
“State Defendants”), denied N.S. a free and appropriate public education (“FAPE”), for
the 2005-2006 school year in violation of the Individuals with Disabilities Education Act,
20 U.S.C. § 1400 et seq. (“the IDEA” or “the Act”). Plaintiff in this action specifically
seeks to have annulled the March 17, 2007 decision rendered by SRO Kelly (“SRO
Decision”), overruling the decision rendered by the School District’s appointed Impartial
Hearing Officer (“IHO”) James P. Walsh (“IHO Walsh” or “Walsh”), a nonparty to this
1
Although m otions to dism iss are dispositive, because the undersigned is sua sponte granting
Plaintiff an extension of tim e pursuant to Fed.R.Civ.P. 4(m ) to re-serve Defendant School District, the
m atters are discussed in this com bined Decision and Order and Report and Recom m endation.
2
The Facts are taken from the pleadings and m otion papers filed in this action.
2
action, on December 17, 2006, and amended on December 28, 2006 (“IHO Decision”).
The IHO Decision was favorable to Planitff, whereas the SRO Decision was not.
N.S. was first determined by the School District’s Committee on Special
Education (“CSE”), during the 2002-2003 school year to be Autistic and, thus, a student
in need of special education and related services. As such, the School District’s CSE
was required to develop for N.S. an Individualized Education Program (“I.E.P.”) which, if
correctly followed, would provide N.S. with the FAPE mandated by the IDEA. During
the 2002-2003 school year, N.S. was educated, pursuant to an Individualized Education
Program (“IEP”) in a School District Third Grade inclusion and made substantial
progress in all academic and social areas. The IEP for the 2005-2006 school year at
issue in this action was not in place until April 4, 2006. Throughout the period relevant
to this action, N.S. had been educated pursuant to a “Pendency Plan,” defined as the
most recent agreed upon IEP, specifically, the IEP for the 2003-2004, despite the fact
that such IEP was found by both an IHO and SRO to be both procedurally and
substantively inappropriate and, as a result, annulled.
Meanwhile, on April 4, 2006, Plaintiff commenced an administrative due process
proceeding with the School District, regarding the School District’s adoption of both the
January 19, 2006 and March 28, 2006 IEPs for the 2005-2006 school year, challenging
both the appropriate of the 2005-2006 IEP, as well as the School District’s failure to
provide N.S. with a Pendency Program consistent with an FAPE. The School District,
on April 4, 2006, appointed Walsh as the IHO to preside over administrative hearings in
connection with the matter. On September 12, 2006, Plaintiff filed another
administrative complaint requesting an Impartial Due Process Hearing alleging the
3
failure by the School District and the CSE to provide N.S. with an IEP for the 2006-2007
school year,3 and both matters were consolidated before IHO Walsh.
The impartial hearing lasted nine days, convening on June 2, 2006, and ending
on October 19, 2006. In his IHO Decision, issued on December 28, 2006, IHO Walsh
found the substantive portions of the 2005-2006 IEP rendered the IEP defective, and
ordered a number of steps to be taken by Plaintiff and the School District to ensure
N.S.’s rights under the IDEA to an FAPE were protected. The School District appealed
the IHO to the NYSED where it was reviewed by SRO Kelly who, on March 19, 2007,
issued the SRO Decision, annulling the IHO Decision, and remanding the matter to the
School District’s CSE to develop and implement an appropriate IEP for N.S.
Plaintiff challenged the SRO Decision by filing an administrative complaint with
the School District as required under the IDEA, and an impartial hearing regarding the
administrative complaint pursuant to 20 U.S.C. § 1415(f)(1)(A) was held on August 10,
2007 (“the impartial hearing”), at the School District’s offices before Impartial Hearing
Officer Paul T. Bumbalo (“IHO Bumbalo”). The School District was represented at the
hearing by Ryan L. Everhart, Esq. (“Everhart”), who also represents the School District
in this action. During the impartial hearing, Plaintiff advised that she had filed an action
in this court, United States District Court for the Western District of New York, appealing
the SRO Decision. Hearing Tr.4 at 357. Everhart inquired whether Plaintiff served the
3
The IEP for the 2006-2007 school year is the subject of a separate action filed in this court on
July 10, 2008, B.J.S. v. State Education Department/University of New York, 08-CV-00513A(F).
4
References to “Hearing Tr. __” are to the page of the transcript from the August 10, 2007
im partial hearing, attached as an exhibit to the School District’s m otion (Doc. No. 49).
4
School District in connection with the federal action, to which Plaintiff responded, “I’m
not required to. The action is only against the SRO.” Id. Everhart then advised, “If
you’re appealing an SRO decision, you need to serve the necessary parties, the School
District.” Id. Plaintiff replied, “No, I’ve already checked, researched and discussed it
with the Courts and they told me not to give it to the District. But I did bring proof that it
was filed in District Court.” Id.
On July 10, 2008, Plaintiff commenced a similar action in this court, 08-CV00513A(F) (“the 2008 Action”), alleging her child, N.S., was denied an FAPE for the
2006-2007 school year in violation of the IDEA. Despite Plaintiff’s statements to
Everhart at the impartial hearing in the instant action that Plaintiff did not believe the
School District was a proper defendant to the instant action, Plaintiff sued, in the 2008
Action, the same State Defendants sued in the instant action, as well as the School
District.
On December 7, 2009, Plaintiff moved to file an amended complaint to join the
School District as a necessary and indispensable defendant to this action, attributing
the failure to earlier name the School District as a Defendant to the instant action to a
misinterpretation of an amended provision of the IDEA governing judicial review of an
SRO decision. By order filed February 25, 2010 (Doc. No. 40), the undersigned
granted Plaintiff’s motion to amend, directing Plaintiff to file and serve the amended
complaint within 20 days. Accordingly, on March 12, 2010, Plaintiff filed the Amended
Complaint (Doc. No. 43) (“Amended Complaint”), seeking relief from the SRO Decision
based on numerous alleged errors in procedure, fact, and law, and requesting the
School District comply with the IHO Decision.
5
On March 22, 2010, Plaintiff filed an Affirmation of Service (Doc. No. 44),
executed on March 16, 2010, by Sheila Barr (“Barr”), who affirmed she had served a
copy of the Amended Complaint on the School Board by hand-delivering the papers on
Board of Education member Jeremiah Kane (“Kane”). Another Affirmation of Service
(Doc. No. 45), also filed on March 22, 2010, establishes that on March 17, 2010, one
Paul Davidson served the State Defendants with a copy of the Amended Complaint by
mailing the papers to Assistant New York Attorney General Darren Longo (“Longo”).
On April 5, 2010, Defendant School District filed a motion to dismiss the
Amended Complaint (Doc. No. 49) (“School District’s motion”), supported by the
attached Affidavit of Ryan L. Everhart, Esq. (“Everhart Affidavit”), with Exhibit A
(“Everhart Affidavit Exh. A”),5 and the Affidavits of Jeremiah Kane (“Kane Affidavit”),
Kathy Tucker (“Tucker Affidavit”), and Rochelle Casselman (“Casselman Affidavit’).
Defendant School District also filed on April 5, 2010, the Memorandum of Law in
Support of Springville-Griffith Institute Cental School District Board of Education’s
Motion to Dismiss (Doc. No. 50) (“School District’s Memorandum”).
On April 9, 2010, Plaintiff moved to proceed in forma pauperis (Doc. No. 53). By
Text Order entered April 23, 2010 (Doc. No. 54), the undersigned granted Plaintiff’s
motion to proceed in forma pauperis, and appointed Mary E. Maloney, Esq.
(“Maloney”) to represent Plaintiff in this action.
On October 20, 2010, State Defendants filed a motion to dismiss the Amended
Complaint (Doc. No. 61) (“State Defendants’ motion”), for failure to state a claim, and
5
To correct an electronic signature error, the Everhart Affidavit and Exh. A were refiled on April 6,
2010 as Doc. No. 52.
6
the Memorandum of Law in Support of State Defendants’ Motion to Dismiss the
Amended Complaint (Doc. No. 62) (“State Defendants’ Memorandum”), with an
attached exhibit (“State Defendants’ Exhibit”).
On January 7, 2011, Maloney moved for permission to withdraw as Plaintiff’s
attorney (Doc. No. 66). On March 4, 2011, the undersigned granted Maloney’s request
to withdraw as Plaintiff’s counsel. On March 18, 2011, the undersigned appointed
Frank T. Housh, Esq. (“Housh”), as Plaintiff’s attorney.
Plaintiff, represented by Housh, filed several motions requesting extensions of
time to file responses to the School District and State Defendants’ pending motions to
dismiss, including on June 13, 2011 (Doc. No. 81), June 24, 2011 (Doc. No. 83), and
July 8, 2011 (Doc. No. 85), and the undersigned granted each request, finally extending
Plaintiff’s time to respond to July 15, 2011 (Doc. No. 89). On July 27, 2011, Plaintiff
filed in opposition to the School District’s motion, the Affirmation of Frank T. Housh in
Response to Defendant’s Motion to Dismiss (Doc. No. 91) (“Housh Affirmation”),
attached to which are the Affidavits of Plaintiff (Doc. No. 91-1) (“Plaintiff’s Affidavit’),
and Sheila J. Barr (Doc. No. 91-2) (“Barr Affidavit”).
By letter to the court dated July 28, 2011, Assistant New York Attorney General
Darren Longo (Doc. No. 92) (“Longo letter”), advised the undersigned that the Housh
Affirmation does not address any of the issues raised by State Defendants in support of
State Defendants’ motion, requesting State Defendants’ motion be treated as
unopposed, with all claims against State Defendants dismissed. On August 5, 2011,
the School District filed in further support of its motion the Reply Declaration of Ryan
L.Everhart, Esq. (Doc. No. 93) (“Everhart Reply Declaration”), and the Memorandum of
7
Law in Reply to Plaintiff’s Opposition to Defendants [sic] Motion to Dismiss (Doc. No.
94) (“School District’s Reply”). Oral argument was deemed unnecessary.
Based on the following, the School District’s motion, insofar as it seeks to
dismiss for improper service, is DISMISSED as moot, and Plaintiff is GRANTED an
extension of time to effect proper service on Defendant School District and,
alternatively, insofar as it seeks to dismiss the Amended Complaint as untimely, should
be DENIED; State Defendants’ motion should be GRANTED.
DISCUSSION
1.
IDEA
To assist in understanding how this matter is before the court, a brief description
of the IDEA is provided. The IDEA’s primary purpose is to ensure students with
disabilities receive a free and appropriate public education (“FAPE”), emphasizing
special education and related services designed to meet such students’ unique needs
and prepare them for further education, employment, and independent living. 20
U.S.C. § 1400(d)(1)(A); Frank G. v. Board of Education of Hyde Park, 459 F.3d 356,
371 (2d Cir. 2006). An FAPE includes both special education and related services
designed to meet the student’s unique needs according to a written individualized
education program (“IEP”). 20 U.S.C. § 1414(d). Each student’s IEP is to be
developed by the relevant School District’s Committee on Special Education (“CSE”),
and must be reasonably calculated to enable the student to receive educational
benefits. Id.
A party may commence an administrative proceeding challenging an IEP as
8
failing to provide an FAPE by filing a written complaint with the relevant school district,
which will require an administrative hearing before an Impartial Hearing Officer (“IHO”),
selected from a list of approved IHOs maintained by the school district. 20 U.S.C. §
1415(f). Any party wishing to seek relief from the IHO’s decision may appeal the IHO’s
findings and decision to the State educational agency, upon which a State Review
Officer (“SRO”) is required to conduct an impartial review of the IHO’s decision. 20
U.S.C. § 1415(g). If not appealed, the IHO’s decision is final. 20 U.S.C. §
1415(i)(1)(A). Further, the SRO’s decision is final unless a party to that decision
commences an action in federal district court pursuant to 20 U.S.C. § 1415(i)(2)(A). 20
U.S.C. § 1415(i)(1)(B). Because the instant action seeks review of the SRO’s Decision,
it is before the court pursuant to 20 U.S.C. § 1415(i)(2)(A) (“§ 1415(i)(2)(A)”).
2.
Motions to Dismiss
Defendant School District moves to dismiss the Amended Complaint pursuant to
Fed.R.Civ.P. 12(b)(5) for improper service, and, pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim. State Defendants move to dismiss the Amended Complaint
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and pursuant to Rules
12(b)(6) and 21 on the basis that State Defendants are not proper parties to this action,
id. at 7-20.
A.
School District’s Motion
The School District seeks dismissal of the Amended Complaint because Plaintiff
herself attempted to effectuate service of the Amended Compliant in violation of
9
Fed.R.Civ.P. 4(c)(2), and Plaintiff failed to serve a Summons along with the Amended
Complaint. School District’s Memorandum at 3-5. The School District alternatively
argues for dismissal of the Amended Complaint as time-barred because it was not
commenced within four months of the March 19, 2007 SRO Decision, id. at 5-6, and the
Amended Complaint’s claims asserted against the School District do not, under
Fed.R.Civ.P. 15(c), relate back to the original Complaint, in which the School District
was not named as a Defendant, id. at 6-10.
1.
Service of Process
The School District argues the Amended Complaint should be dismissed based
on defective service of process, including that Plaintiff personally served the Amended
Complaint on School Board member Jeremiah Kane (“Kane”), in violation of
Fed.R.Civ.P. 4(c)(2), permitting only non-parties to serve process. School District’s
Memorandum at 3-4. The School District further maintains that even assuming,
arguendo, that Barr, rather than Plaintiff, served the, Amended Complaint on Kane, as
Plaintiff maintains, such service was nevertheless defective because Kane was not
provided with the Summons as required. Id. at 4. As such, the School District urges
the court to dismiss the Amended Complaint based on Plaintiff’s failure to effect proper
service.6 Plaintiff argues in opposition that whether the School District was properly
served is a question of fact that cannot be decided by the court absent an evidentiary
6
As relevant to this action, N.Y. Civ.Prac.L.&R. (“N.Y. C.P.L.R.”) § 311(a)[7] (McKinney’s 2010),
provides that service on the School District is properly effected by delivering the sum m ons upon a school
officer as defined under N.Y. Education Law § 2, defining “school officer” to include, inter alia, “a m em ber
of a board of education . . . in control of the schools by whatever nam e known in a . . . central school
district. . . .” N.Y. Educ. Law § 2[13] (McKinney’s 2009).
10
hearing on the matter. Housh Affirmation ¶¶ 4-8. Alternatively, Plaintiff maintains the
School District had constructive notice of the instant action and has failed to
demonstrate any prejudice if required to defend the action on the merits. Id. ¶¶ 9-12.
As relevant, Rule 4(c), governing service of process, provides
(1) In General. A summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint served within the
time allowed by Rule 4(m) and must furnish the necessary copies to the person
who makes service.
(2) By Whom. Any person who is at least 18 years old and not a party may
serve a summons and complaint.
Fed.R.Civ.P. 4(c)(1) and (2) (italics added).
Similarly, Fed.R.Civ.P. 4(e)(1) provides service is considered proper if the person
effecting service follows the law of the state where the district court is located or service
is made, here, New York. As relevant, N.Y. C.P.L.R. § 2103 provides that “[e]xcept
where otherwise prescribed by law or order of the court, papers may be served by any
person not a party of the age of eighteen years or over.” N.Y. C.P.L.R. § 2103(a) (italics
added). Accordingly, service on the School District was defective if either Plaintiff
served Kane, or Kane was served with only the Amended Complaint, unaccompanied
by the Summons.
Absent timely and proper service in accordance with Rule 4, the court is without
personal jurisdiction over the defendant and the complaint must be dismissed pursuant
to Rule 12(b)(2). See Stoianoff v. Commissioner of Motor Vehicles, 208 F.3d 204, at *
1 (2d Cir. 2000) (“We agree with the district court that process was not properly served
on the defendant Commissioner and that the court therefore lacked personal jurisdiction
over him.”); Sims v. Wegmans Food Markets, 674 F.Supp.2d 429, 431 (W.D.N.Y.
11
2009). When the method of service is challenged, it is the plaintiff’s burden to prove, by
a preponderance of the evidence, that jurisdiction was, in fact, obtained over the
defendant by timely and proper service of the summons and complaint. Old Republic
Insurance Company v. Pacific Financial Services of America, Inc., (“Old Republic”) 301
F.3d 54, 57 (2d Cir. 2002) (citing NYCTL 1997-1 Trust v. Nillas, 732 N.Y.S.2d 872, 873
(2d Dep’t. 2001)). “A defendant’s sworn denial of receipt of service, however, rebuts
the presumption of proper service established by the process server’s affidavit and
necessitates an evidentiary hearing.” Old Republic, 301 F.3d at 57-58 (citing Skyline
Agency, Inc. v. Ambrose Coppotelli, Inc., 502 N.Y.S.2d 479, 483-84 (2d Dep’t. 1986)).
Where, however, “the defendant fails to ‘swear to specific facts to rebut the statements
in the process server’s affidavits,’” no evidentiary hearing is required. Id. (quoting
Simonds v.Grobman, 716 N.Y.S.2d 692, 693 (2d Dep’t. 2000)). Furthermore,
Fed.R.Civ.P. 4(m) requires service of the summons and complaint be made upon the
defendant within 120 days after the filing of the complaint, unless the plaintiff
demonstrates good cause for failing to effect service.
In the instant case, according to an Affirmation of Service filed on March 22,
2011 (Doc. No. 44) (“Affirmation of Service”), on March 16, 2010, Barr hand-delivered
a copy of the Amended Complaint to Kane at a School Board meeting, thereby serving
the School District. The Affirmation of Service does not indicate whether Barr also
served Kane with a Summons. Furthermore, as discussed, infra, at 12-19, the parties
dispute whether Plaintiff or Barr effected service on Kane on March 16, 2010. As such,
there exists a disputed issue of fact as to whether Plaintiff effected proper service on
Defendant School District within 120 days after filing the Amended Complaint on March
12
12, 2010.
In support of its assertion that Plaintiff, and not Barr, personally served Kane, the
School District submits the Affidavits of Kane (“Kane Affidavit”), Kathy Tucker
(“Tucker”), Secretary and District Clerk to the School District’s Superintendent (“Tucker
Affidavit”) and the Affidavit of Rochelle Casselman (“Casselman”), Director of Special
Education for the School District (“Casselman Affidavit”).7 Kane explains that as a
member of the School District’s Board of Education (“School Board”), he was present at
a School Board meeting on March 16, 2010, when, during a brief recess, two women
approached him, neither of whom Kane knew by name. Kane Affidavit ¶¶ 1-3. Kane
states “[t]he taller of the two women handed me a yellow envelope,” and then
immediately exited the room. Id. ¶ 5. Kane, without opening the envelope, immediately
handed the envelope to Tucker who “opened the envelope and reviewed the
documents contained therein.” Id. ¶ 6. Kane maintains, “[u]pon information and belief,
the envelope contained the Amended Complaint,” and, also “[u]pon information and
belief, the woman who handed [Kane] the envelope was Brenda J. Shepard, the
Plaintiff in this matter.” Id. ¶ 7.
Tucker states that, as a School District employee, Tucker is “familiar” with both
Plaintiff and Barr, and each woman’s respective “physical appearance,” such that Barr
can distinguish between Plaintiff and Barr. Tucker Affidavit ¶¶ 1-4. Tucker maintains
that, in her capacity as the School District’s Clerk, Tucker attended the School Board’s
March 16, 2010 meeting, where she was seated “at the Clerk’s table situated
7
The Affidavits of Kane, Tucker, and Casselm an are attached as part of Exhibit A to the School
District’s m otion.
13
approximately five or six feet away from the Board member table.” Id. ¶ 5. Tucker’s
location provided her with “an unobstructed view of the members of the Board.” Id.
According to Tucker, “[d]uring a brief recess in the meeting, I witnessed the woman I
know to be [Plaintiff] hand a yellow envelope to Board member Jeremiah Kane,” id. ¶ 7,
who immediately handed the envelope to Tucker, who “opened the envelope and
reviewed the documents. They purported to be an Amended Complaint in the abovecaptioned matter.” Id. ¶ 8. Tucker continues that “[t]he documents provided to Mr.
Kane by the Plaintiff did not include a Summons or any document purporting to be a
Summons.” Id. ¶ 9. Tucker maintains that Plaintiff left the meeting “moments after she
handed the envelope to Mr. Kane,” and that Barr, whom Tucker observed was also
present at the meeting, did not hand any items or documents to Kane or any other
School Board member. Id. ¶¶ 10-11. Tucker also states she “later witnessed the
Plaintiff speaking to Board member Peter Sobota[, but] did not see Plaintiff hand any
documents and/or items to Mr. Sobata.” Id. ¶ 12.
Similarly, Casselman states that during her tenure with the School District,
including in her current position as Director of Special Education, and her previous
positions as Committee on Special Education Chairperson, Assistant Principal of
Springville Elementary School, and a classroom teacher, Casselman is familiar with
Plaintiff, having met Plaintiff “on a number of occasions” and is aware of Plaintiff’s
physical appearance. Casselman Affidavit ¶¶ 1-3. Casselman is also familiar with Barr
and her physical appearance, explaining Barr works with Plaintiff as “co-director of an
advocacy organization known as Western New York Family Advocacy for Children’s
Educational Services, Inc.” Id. ¶ 4. Casselman was present at the March 16, 2010
14
School Board meeting, and, from her seat in the back of the room, was able to observe
the table around which the School Board members were seated. Id. ¶ 5. Casselman
maintains that during the meeting, she witnessed “the woman I know to be [Plaintiff]”
hand to Kane a large yellow envelope which, “[u]pon information and belief, . . .
contained the Amended Complaint.” Id. ¶ 6. According to Casselman, Barr, who was
also present at the meeting, did not give any items or documents to Kane or any other
School Board member. Id. ¶ 7. Casselman asserts that Plaintiff and Barr left the
meeting “moments after Plaintiff handed the envelope to Mr. Kane. They remained in
the hallway until the conclusion of the meeting.” Id. ¶ 8. Casselman concludes that
“[u]pon receipt, Kane immediately handed the envelope to the District Clerk, Kathy
Tucker.” Id. ¶ 9.
In contrast, Plaintiff submits her own affidavit (Doc. No. 90-1) (“Plaintiff’s
Affidavit”), in which Plaintiff describes Barr as “a personal friend” who took leave from
her job to accompany Plaintiff to the March 16, 2010 School Board meeting to
“personally serve a Board of Education member my amended complaint and
summons.” Plaintiff’s Affidavit ¶ 3. According to Plaintiff, the School Board meeting
was contentious, becoming hostile between School Board members, causing School
Board president Michael Connors (“Connors”) to abruptly leave the meeting, resulting in
a recess. Id. ¶¶ 5-6. Plaintiff maintains that during the recess, Kane and Tucker
remained seated, but Casselman left the board room through the rear door to an office.
Id. ¶ 6-7. During the recess, “Barr approached J. Kane and personally served him with
an envelop [sic] that contained my amended complaint, and summons.” Id. ¶ 8. While
Barr was serving Kane, Plaintiff left her seat in the front row of the School Board
15
meeting room, and proceeded to the back of the room where Plaintiff attempted to exit
through a rear door, but was unable to do so because School Board member Sobota
was speaking with “a man named ‘Joe’ who had just finished addressing the Board as a
dissatisfied member of the community. . . “ and Plaintiff’s path to the rear door was
blocked. Id. ¶ 9. Plaintiff states that Sobota and Joe were arguing over how difficult it
is to be a School Board member, and Sobota stated he would sign the petition of
anyone who wanted to run for the School Board. Id. Sobota then walked from the rear
of the School Board meeting room back to his seat, with Plaintiff following him. Id.
Plaintiff maintains she then introduced herself to Sobota, whom Plaintiff advised
she was running for a seat on the School Board and asked Sobota to sign her
nominating petition, and Sobota obliged. Plaintiff’s Affidavit ¶ 10. Plaintiff states she
then exited the School Board meeting room through a door near the table where Tucker
was seated, and proceeded to the room’s back door where Plaintiff stood with other,
unidentified members of the community and watched the rest of the meeting. Id. ¶ 11.
Plaintiff denies serving any papers on any School Board member or school official
either on March 16, 2010, or any other date. Id. ¶ 12. Plaintiff also maintains that prior
to March 16, 2010, she had never met Kane. Id. ¶ 13. Plaintiff emphasizes that she
brought Barr with her to the School Board meeting solely for the purpose of having Barr
serve the Amended Complaint and summons on a School Board member. Id. ¶ 16.
Plaintiff further asserts that she did not witness Kane hand the envelope containing the
Amended Complaint and summons to Tucker but, rather, observed the envelope,
unopened, placed on the table in front of Kane prior to the executive session. Id. ¶ 24.
According to Plaintiff, she and Barr left the meeting when the Board Members went into
16
executive session. Id. ¶ 25. Plaintiff further maintains that “[i]n the past, Rochelle
Casselman has often confused me for Sheila Barr.” Id. ¶ 26.
According to a hand-drawn schematic of the School Board meeting room (“the
meeting room”) (“schematic”)8 as it appeared for the March 16, 2010 meeting,
submitted by Plaintiff in opposition to the School Board’s motion, the School Board
members were seated around a U-shaped table near the front or north end of the room,
with the legs of the “U” extending toward the audience. Sobota was seated at the end
of the left leg of the “U”, closest to the audience, directly across from Kane who was
seated at the end of the “U”’s right leg, also closest to the audience. There is a door on
the right or east wall of the meeting room. If one were to stand looking at the door on
the meeting room’s east wall, Kane’s seat at the U-shaped table would be to the left of
the door, and the table at which Tucker sat would be to the right of the door. The
audience seating was located behind Tucker’s table, and was split into two sections by
an aisle down the middle of the meeting room. The table at which Casselman sat is
located behind the audience, in the southwest corner of the meeting room. The
meeting room’s rear door is located on the south wall.
Plaintiff also submits a copy of her Petition seeking to be nominated as a
candidate for the School Board (“nominating petition”),9 bearing Sobota’s signature.
Although the nominating petition does not indicate when Sobota signed it, nowhere in
the record is Plaintiff’s account that Sobota signed it during the recess of the March 16,
8
Attached as an unnum bered exhibit to Plaintiff’s Affidavit. No dim ensions for the room are
provided or estim ated, but the accuracy of the drawing has not been challenged.
9
Attached as an unnum bered exhibit to Plaintiff’s Affidavit.
17
2010 School Board meeting disputed.
In further support of Plaintiff’s opposition to the School District’s motion, Plaintiff
also submits the affidavit of Sheila Barr (Doc. No. 90-2) (“Barr Affidavit”), who explains
that because her work schedule requires her to work Tuesday evenings from 5:00 P.M.
to 11:00 P.M., she is unable to attend School Board meetings, which are held on
Tuesdays. Barr Affidavit ¶ 2. Barr, at Plaintiff’s request, took Tuesday, March 16,
2010, off from work to attend the School Board’s meeting “for the sole purpose of
‘serving’ the Amended Complaint on behalf of the Plaintiff to the board of education”
because she is aware that personal service of legal papers on a party to litigation
cannot be made by a party to that same litigation. Id. ¶ 3. Barr maintains that during
the School Board meeting, an unscheduled recess was called when School Board
president Mike Connors (“Connors”), became upset and angry and left the meeting
room, followed by several School Board members. Id. ¶ 4. During the recess, Barr,
alone and unaccompanied by Plaintiff who remained seated in the audience,
approached Kane, who remained at his seat at the U-shaped table, and handed Kane
the envelope containing the Amended Complaint, advising “Mr. Kane, this is for you.”
Id. ¶¶ 4-5. Barr maintains that Kane accepted the envelope, responding, “okay.” Id.
Barr denies having previously meet Kane, stating she identified Kane only by the name
plate on the table in front of Kane.10 Id. ¶ 6. Barr then exited the meeting room through
the door between Kane’s seat and Tucker’s seat, then turned to see where Plaintiff
was, observing Plaintiff had left her seat in the audience and made her way to the back
10
The School District does not dispute the use of such nam e plates to identify School Board
m em bers at this m eeting.
18
of the meeting room where Plaintiff was speaking with other members of the audience.
Id. ¶ 5, 7. Still outside the meeting room, Barr traveled through the hallway around the
meeting room to the door located in the back of the meeting room and waited for
Plaintiff. Id. ¶ 7. From her vantage point near the meeting room’s rear door, Barr
observed Sobota speak with a man in the audience, and then return to his seat at the
meeting room table. Id. Barr also observed Plaintiff approach Sobota at the meeting
room table, and Sobota comply with Plaintiff’s request that to sign her School Board
nominating petition. Id.
Barr disputes Kane’s assertions that during the School Board meeting’s recess,
he was approached by “‘both women,’” insisting that “[a]t no time during the meeting did
[Plaintiff] and I approach Mr. Kane together.” Barr Affidavit ¶ 9. Barr particularly
challenges Kane’s identification of her given that Barr did not introduce herself to Kane,
nor had Barr previosuly met Kane. Id. ¶ 10. Barr comments on Tucker’s asserting that
both Barr and Plaintiff were in attendance at the March 16, 2010 School Board meeting,
but does not mention that Barr and Plaintiff approached Kane together. Id. ¶ 13. Barr
also challenges Casselman’s assertions that she observed Plaintiff serving Kane with
legal papers at the March 16, 2010 School Board meeting because Casselman was
seated in the rear of the meeting room at a table stacked with audio equipment. Id. ¶
15. Barr again comments on the absence of any assertion by Casselman that she
observed both Barr and Plaintiff approach Kane, as Kane asserts, id. ¶ 16, and that
Casselman fails to acknowledge that Plaintiff spoke with Sobota prior to leaving the
meeting room. Id. ¶ 17.
Although generally, the School District’s sworn denial of proper service, thereby
19
rebutting the presumption of proper service established by the process server’s affidavit
necessitates an evidentiary hearing, Old Republic, 301 F.3d at 57-58, here, assuming,
arguendo, that the March 16, 2010 service was defective, either because service of the
Amended Complaint was by Plaintiff, rather than Barr, or because the Amended
Compliant was not accompanied by the required summons, the court finds no such
hearing is necessary because the undisputed facts support granting an extension of
time in which to effect proper service of the summons and Amended Complaint.
An extension of time in which to serve the summons and complaint must be
granted upon a showing of good cause. Fed.R.Civ.P. 4(m)[2] (“if the plaintiff shows
good cause for failure [to timely effect proper service], the court shall extend the time
for service for an appropriate period.”(bracketed material added)); Zapata v. City of
New York, 502 F.3d 192, 197 (2d Cir. 2007) (“It is clear under the second clause of
Rule 4(m) that an extension is always warranted upon a showing of ‘good cause,’
because the rule commands that an ‘appropriate’ extension ‘shall’ be granted upon
such a showing.”). “Factors demonstrating good cause can include, among others, a
plaintiff’s reasonable diligence in seeking to effect service, the absence of prejudice to
defendants as a result of the delay, and whether the plaintiff could timely reassert his
claims in the event of dismissal.” Sims, 674 F.Supp.2d at 434 (citing cases).
Nevertheless, while an extension of time to serve must be granted upon a showing of
good cause, the Second Circuit has made clear that “district courts have discretion to
grant extensions even in the absence of good cause.” Zapata, 502 F.3d at 196-97.
Significantly, in Zapata, the Second Circuit stated that it would not be an abuse
of discretion for the district court, even in the absence of good cause, to grant an
20
extension of time to serve where “the dismissal without prejudice in combination with
the applicable statute of limitations would result in a dismissal with prejudice. . . so long
as there are sufficient indications on the record that the district court weighed the
impact that a dismissal or extension would have on the parties.” Zapata, 502 F.3d at
197 (italics in original). Although an extension of time is mandatory upon demonstrating
good cause for failing to timely effect proper service, absent good cause, the court is
not required to grant an extension of time to serve despite lack of prejudice to the
defendant, and resulting great prejudice to the plaintiff posed by an expired statute of
limitations. Id. at 197. Rather, district courts have discretion “to decide on the facts of
each case how to weigh the prejudice to the defendant that arises from the necessity of
defending an action after both the original service period and the statute of limitations
have passed before service.” Id. at 198 (citing Coleman v. Milwaukee Board of School
Directors, 290 F.3d 932, 934 (7th Cir. 2002)).
In Zapata, the plaintiff, an inmate, failed to timely effect proper service of his
§ 1983 action on the defendant municipal correctional facility officer by whom Plaintiff
alleged he was assaulted, serving the defendant officer four days beyond the 120-day
service period, and 94 days after the expiration of the limitations period. Zapata, 502
F.3d at 194. The district court granted the defendants’ motion to, inter alia, dismiss as
time-barred the claims against the defendant officer for untimely service on the basis
that because the relevant statute of limitations had expired, prejudice to the untimely
served defendant officer was presumed. Id. at 195. On appeal, the Second Circuit
stated that the district court’s presumption that granting an extension of time to serve
where the applicable statute of limitations had expired would be prejudicial to the
21
defendant, without weighing the impact of a dismissal or extension on the parties was
erroneous. Id. at 197. Despite such error, the Second Circuit affirmed the district
court’s decision denying the plaintiff an extension in which to serve because the record
failed to establish the defendant officer had any notice the action was forthcoming,
much less already pending, albeit against other defendants, the plaintiff had made no
effort to timely effect proper service, and advanced no excuse for the delay. Id. at 19899.
In contrast, in the instant action, the School District most certainly knew of the
action prior to the alleged improper service given that the instant action, which was
commenced on July 13, 2007, was discussed at an Impartial Hearing held on August
10, 2007, at the School District Offices, at which the School District was represented by
Everhart, who also represents the School District in the instant action, and who advised
Plaintiff that her instant action appealing an SRO was required to be served on the
School District. Impartial Hearing Transcript11 at 357. As such, any prejudice to the
School District should Plaintiff be granted an extension of time to re-serve to correct any
of the alleged errors with the March 16, 2010 service is negligible. Even if the eventual
service of the Amended Complaint on March 16, 2010 was improper, either because
Plaintiff, rather than Barr, served Kane with the Amended Complaint, or the Amended
Complaint was not accompanied by a summons, both scenarios Plaintiff vehemently
denies, Plaintiff’s attempted service on Kane on March 16, 2010, four days after filing
the Amended Complaint on March 12, 2010, was undeniably prompt. Further, under
11
Exhibit A to School District’s m otion.
22
the present circumstances, Plaintiff’s provision of an excuse for the alleged improper
service would be inconsistent with Plaintiff’s denial that the service was improper.
Moreover, dismissal without prejudice of the action for improper service, however, “in
combination with the applicable statute of limitations would result in a dismissal with
prejudice.” Zapata, 502 F.3d at 197.
Should the court, upon holding an evidentiary hearing, determine Plaintiff’s
service on March 16, 2010 was improper, the undersigned would also find, under the
circumstances, that the impact on Plaintiff of dismissal would outweigh any prejudice to
the School Board in defending this action, such that an extension of time in which to reserve Defendant School District, to correct whatever errors occurred with the March 16,
2010, is warranted. As such, in the interests of judicial economy and efficiency, rather
than holding an evidentiary hearing which, if the undersigned determined service on the
School District was improper, followed by granting Plaintiff an extension of time to reserve, the court grants an extension of time, and directs Plaintiff to re-serve the School
District, within 30 days of receipt of this Decision and Order and Report and
Recommendation, to correct any errors, should they exist, with the March 16, 2010
service of process. The School District’s motion to dismiss based on improper service
thus is DISMISSED as moot.
2.
Relation Back
The School District alternatively seeks to dismiss the Amended Complaint as
time-barred because it was filed more than four months after the March 17, 2007 SRO
decision, for which Plaintiff seeks judicial review, became final and binding, arguing
23
Plaintiff’s claims asserted in the Amended Complaint do not relate back to the original
Complaint filed on July 13, 2007. School District’s Memorandum at 5-6. According to
the School District, because Plaintiff knew the identity of the School District when the
original Complaint was filed, any assertion by Plaintiff that she failed to name the
School District as a defendant in the original Complaint based on a mistake of identity,
as required for the relation back doctrine set forth in Fed.R.Civ.P. 15(c)(1)(C) to apply,
must fail. Id. at 6-9. The School District further contends that Plaintiff’s attempt to add
the School District as a defendant more than 2 ½ years after the action was
commenced is “highly prejudicial” to the School District. Id. at 9-10.
Plaintiff does not dispute that the SRO decision challenged in the instant action
became final on March 17, 2007, and that any action in district court was required to be
filed within four months of such date, or July 17, 2007. Rather, Plaintiff maintains that
the failure to name the School District as a Defendant in the original Complaint was a
mistake of identity, rather than a choice between parties to sue, such that the claims
contained in the Amended Complaint relate back to the original Complaint, which was
filed on July 13, 2007, within the applicable four-month limitations period, rendering the
Amended Complaint timely. Housh Affirmation ¶¶ 13-14.
Fed.R.Civ.P. 15(c) governs when an amended pleading will relate back to the
filing of the original pleading for statute of limitations purposes. As relevant to the
instant case,
An amendment to a pleading relates back to the date of the original
pleading when:
****
(b) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out - - or attempted to be set out 24
- in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period previously provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in by
the amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party’s identity.
Fed.R.Civ.P. 15(c)(1)(B) and (C) (italics added)
In the instant case, the School District neither contests nor concedes that Plaintiff’s
belatedly asserted claims against it arise out of the same conduct pleaded in the
original Complaint, in satisfaction of Rule 15(c)(1)(B). Rather, the School District seeks
to dismiss the Amended Complaint on the basis that the filing of the Amended
Complaint on March 12, 2010, more than 2 ½ years after filing the original Complaint, is
highly prejudicial to the School District given that the applicable statute of limitations for
such claims is four months from the date the SRO decision became final on March 17,
2007. The School District further maintains the Amended Complaint does not comply
with the requirement under Rule 15(c)(1)(C)(ii), i.e., that, but for a mistake concerning
the proper party’s identity, the proposed defendants knew or should have known the
action would have been brought against them, and, as such, the claims against the
proposed defendants are time-barred.
In support of its argument that Plaintiff’s claims against the School District must
be dismissed as untimely, the School District relies on Barrow v. Weathersfield Police
Dep’t., 66 F.3d 466 (2d Cir. 1996), and Cornwell v. Robinson, 23 F.3d 694 (2d Cir.
1994). In Cornwell, the Second Circuit held that Rule 15(c)(1)’s requirement “that a
25
defendant ‘knew’ he was not named due to a mistake concerning identity presupposes
that in fact the reason for his not being named was a mistake in identity.” Cornwell, 23
F.3d at 705. Specifically,
Rule 15(c) does not allow an amended complaint adding new defendants to
relate back if the newly-added defendants were not named originally because
the plaintiff did not know their identities. Rule 15(c) explicitly allows the relation
back of an amendment due to a ‘mistake’ concerning the identity of the parties
(under certain circumstances), but the failure to identify individual defendants
when the plaintiff knows that such defendants must be named cannot be
characterized as a mistake.
Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2d Cir. 1996) (italics added)
It is significant that in Barrow, the Second Circuit held that Rule 15(c)’s requirements for
relation back were not met where the plaintiff sought to substitute named defendants
for “John Doe” defendants because the plaintiff was seeking to correct a lack of
knowledge, rather than to correct a mistake regarding the defendants’ identities. Id.
Put another way, where an amendment is sought to add new defendants, the
amendment will not relate back to the filing date of the Complaint, and thus avoid being
time-barred, “if the newly-added defendants were not named originally because the
plaintiff did not know their identities.” Barrow, 66 F.3d at 470. Instead, where a plaintiff
seeks to add a defendant whom the plaintiff, although aware of the purported unlawful
misconduct, was not required to sue, the plaintiff’s failure to name the person as a
defendant “must be a matter of choice, not mistake.” Robinson, 23 F.3d at 705.
Recently, however, the Supreme Court granted certiorari “to resolve tension
among the Circuits over the breadth of Rule 15(c)(1)(C)(ii).” Krupski v. Costa Crociere,
S.p.A., __ U.S. __, 130 S.Ct. 2485, 2492 & n. 2 (2010) (citing cases, including
Cornwell, 23 F.3d 694, to demonstrate varying interpretations of Rule 15(c)(1)(C)(ii)
26
among the circuits). In Krupski, the plaintiff, a cruise ship passenger, brought an action
seeking to recover for personal injuries sustained while aboard a cruise ship. Krupski,
130 S.Ct. at 2490. Although the back of plaintiff’s ticket identified the correct carrier to
be notified and sued in the event of a personal injury while on board one of its ships,
the plaintiff sued the sales and marketing agent, listed on the front of the ticket and
bearing a name very similar to the carrier who was the proper party to the action. Id. at
2490-91. After the applicable statute of limitations had expired, the incorrectly sued
defendant advised the plaintiff of the identity of the correct defendant, moving for
summary judgment on that same ground, causing the Plaintiff, in opposing summary
judgment, to move to amend the complaint to name the carrier as the defendant. Id. at
2491. The district court denied summary judgment and granted the plaintiff’s motion to
amend. After the plaintiff filed the amended complaint correctly naming the carrier as
the defendant, the defendant carrier moved to dismiss the amended complaint as
untimely, contending the amended complaint could not relate back under Rule 15(c)
because the plaintiff had delayed in moving to amend to name the correct defendant for
months after being informed by the defendant agent that the carrier was the correct
defendant. Id. at 2491-92. The Eleventh Circuit Court of Appeals concluded that,
having been informed by the agent that the carrier was the proper defendant in the
agent’s answer, corporate disclosure statement listing the carrier as an interested party
to the action, and the summary judgment motion papers, plaintiff knew of the proper
defendant, yet delayed months in moving to file an amended complaint, thereby
indicating the plaintiff knew the proper defendant, yet chose to sue another party. Id. at
2492.
27
The Supreme Court, in reversing the appellate court’s decision, stated
That a plaintiff knows of a party’s existence does not preclude her from making a
mistake with respect to that party’s identity. A plaintiff may know that a
prospective defendant – call him party A – exists, while erroneously believing him
to have the status of party B. Similarly, a plaintiff may know generally what party
A does while misunderstanding the roles that party A and party B played in the
“conduct, transaction, or occurrence” giving rise to her claim. If the plaintiff sues
party B instead of party A under these circumstances, she has made a ‘mistake
concerning the proper party’s identity,’ notwithstanding her knowledge of the
existence of both parties. The only question under Rule 15(c)(1)(C)(ii) is whether
party A knew or should have known that, absent some mistake, the action would
have been brought against him.
Krupski, 130 S.Ct. at 2494.
Further, the Court specifically rejected the notion that the fact that a plaintiff is aware of
the existence of two parties, yet sues the wrong party, should be construed as
demonstrating the plaintiff chose to sue the wrong party, explaining that “[t]he
reasonableness of the mistake is not itself at issue. As noted, a plaintiff might know
that the prospective defendant exists, but nonetheless harbor a misunderstanding
about his status or role in the events giving rise to the claim at issue, and she may
mistakenly choose to sue a different defendant based on that misconception. That kind
of deliberate but mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii)
has been satisfied.” Id.
Similarly, in the instant case, that Plaintiff’s failure to originally sue the School
District was a mistake is evident by her response to Everhart’s statement to Plaintiff at
the August 10, 2007 Impartial Hearing that “If you’re appealing an SRO decision, you
need to serve the necessary parties, the School District.” Impartial Hearing Transcript
at 357. Specifically, Plaintiff responded, “No, I’ve already checked, and researched and
discussed it with the Courts and they told me not to give it to the District. But I did bring
28
proof that it [the original complaint in this action] was filed in District Court.” Id.
(bracketed text added). The August 10, 2007 Impartial Hearing was held within the 120
days Plaintiff had to serve the original complaint, filed on July 13, 2007, such that the
School District, through Everhart’s presence at the impartial hearing, had constructive
notice of the action as required by Rule 15(c)(1)(C)(i) (requiring that the party to be
brought in by amendment must have, within the 120-day period for service provided by
Rule 4(m), received such notice of the action). See Krupski, 130 S.Ct. at 2492 (finding
Rule 15(c)(1)(C)(i)’s requirement of notice within the time to serve satisfied where party
plaintiff sought to add as defendant had, based on service on agent of both parent and
subsidiary, “constructive notice of the action and had not shown that any unfair
prejudice would result from relation back.”), and 2497, n. 5 (noting “[t]he Advisory
Committee Notes to the 1966 Amendment [to Rule 15] clarify that ‘the notice need not
be formal.’” (quoting Advisory Committee’s 1966 Notes 122)). Significantly, Everhart,
as the School District’s attorney, should have suspected, based on the exchange
between Plaintiff and Everhart during the August 10, 2007 impartial hearing, that
Plaintiff had made a mistake in failing to name the School District as a defendant when
Everhart knew the School District was the only proper defendant to this action and
Plaintiff insisted, albeit mistakenly, a fact known to Everhart, otherwise. See Krupski,
130 S.Ct. at 2498 (observing that party the plaintiff sought to add as a defendant should
have suspected the plaintiff had made a mistake when its own activities were described
in the complaint that named another party as the defendant). See also Abdell v. City of
New York, 2006 WL 2620927, at * 3 (S.D.N.Y. Sept. 12, 2006) (holding, in context of
relation back under Rule 15, corporation counsel had notice of the unnamed
29
defendant’s identity because it was representing the unnamed defendant on related
state claims of false imprisonment stemming from the same incident); and Muhammad
v. Pico, 2003 WL 21792158, at * 20 (S.D.N.Y. Aug. 5, 2003) (“Under the constructive
notice doctrine, ‘the court can impute knowledge of a lawsuit to a new defendant
government official through his attorney, when the attorney also represented the
officials originally sued, so long as there is some showing that the attorney[s] knew the
additional defendants would be added to the existing suit.’” (quoting Scott v. Coughlin,
944 F.Supp. 266, 270 (S.D.N.Y. 1996))).
Nor can Plaintiff be faulted for waiting until December 7, 2009, to move to file the
Amended Complaint bringing in the School District as a Defendant. Rather, the
Supreme Court has held that a plaintiff’s conduct during the Rule 4(m) period
subsequent to filing a complaint, here, 120 days, is relevant only to the prospective
defendant’s understanding as to whether the plaintiff initially made a “mistake
concerning the proper party’s identity.” Krupski, 130 S.Ct. at 2496-97. According to the
Court, Rule 15(c)(1)(C) “plainly sets forth an exclusive list of requirements for relation
back, and the amending party’s diligence is not among them. Moreover, the Rule
mandates relation back once the Rule’s requirements are satisfied; it does not leave the
decision whether to grant relation back to the district court’s equitable discretion.” Id. at
2496 (citing Rule 15(c)(1) (“An amendment . . . relates back . . . when” the three listed
requirements are met)” (emphasis in original)).
Accordingly, the record establishes that Plaintiff’s failure to name the School
District as a defendant in the Complaint was a mistake, and that the School District had,
by August 10, 2007, i.e., within 120 days of filing of the Amended Complaint, received
30
notice of the instant action such that it will not be prejudiced by defending the action on
its merits, and knew or should have known that, but for a mistake in the proper party’s
identity, Plaintiff would have sued the School District. The School District’s motion,
insofar as it seeks to dismiss the Amended Complaint as time-barred based on the
statutes of limitations grounds, should be DENIED.
B.
State Defendants’ Motion
State Defendants seek to dismiss the Amended Complaint for failing to state a
claim and on the basis that none of the State Defendants are proper parties to this
action. State Defendants’ Memorandum at 3. State Defendants maintain the Amended
Complaint contains no factual allegations against Commissioner Mills and NYSED, that
there is no factual basis for any claim against Mills or NYSED, no legal basis for any
claim against NYSED, and that although the Amended Complaint asserts factual
allegations against SRO Kelly, including that Kelly erred in his ruling and in the
administrative appellate review that is the subject of this action, such conduct forms no
basis for any claim. Id. at 5-6. State Defendants further maintain they are not proper
parties to this action because the SRO Decision involves a dispute between Plaintiff
and the School District regarding the provision of a proper IEP to N.S., Plaintiff’s child.
Id. at 7. Plaintiff has not responded in opposition to State Defendants’ motion and, by
letter to the court dated July 28, 2011 (Doc. No. 92), State Defendants requested the
court treat its motion as unopposed and dismiss all claims against State Defendants.
Preliminarily, the court observes that the arguments State Defendants proffer in
support of their instant motion to dismiss are essentially identical to those proffered in
31
support of State Defendants’ motion to dismiss in the 2008 Action, 08-CV-000513A(F).
Compare State Defendants’ Memorandum, passim, with State Defendants’
Memorandum of Law filed in 2008 Action on June 12, 2009 (Doc. No. 21). Significantly,
in a Report and Recommendation filed by the undersigned on February 9, 2010 (2008
Action, Doc. No. 40), dismissal of all claims asserted against State Defendants was
recommended. The Report and Recommendation was adopted by Judge Arcara on
March 23, 2010 (2008 Action, Doc. No. 46) (reported at B.J.S. v. State Education
Department/University of State of New York, (“B.J.S.”), 699 F.Supp.2d 586 (W.D.N.Y.
2010)). As such, State Defendants have already been dismissed from the 2008 Action
for the same reasons State Defendants seek dismissal from the instant action.
Accordingly, the court’s discussion of State Defendants’ motion in the instant action
largely tracks the February 9, 2010 Report and Recommendation in the 2008 Action.
1.
Immunity of SRO Kelly
In both the instant action and the 2008 action, State Defendants moved to have
all claims dismissed as against SRO Kelly for lack of subject matter jurisdiction
contending that SRO Kelly, as a quasi-judicial review decision-maker, was entitled to
absolute immunity. State Defendants’ Memorandum at 13-15; 2008 Action, Doc. No.
21, at 9-11. In the 2008 Action, the undersigned found that Plaintiff request for “judicial
review and nullification of SRO Kelly’s determination of Plaintiff’s administrative appeal
directed to the IEP for N.S. for the 2006-2007 school year, established by the School
District, and modified by the IHO,” sought “a retroactive form of relief” from SRO Kelly’s
“past conduct as a quasi judicial officer . . . .” B.J.S., 699 F.Supp.2d at 595. As such,
32
SRO Kelly was entitled to absolute immunity from all claims asserted against him in the
2008 Action. Id.
Similarly, in the instant action, Plaintiff’s claims against SRO Kelly essentially
seek judicial review and nullification of SRO Kelly’s determination of the School
District’s appeal of the IHO Decision directed to the IEP for N.S. for the 2005-2006
school year. Plaintiff thus is requesting “judicial review and nullification” of SRO Kelly’s
determination of Plaintiff’s administrative appeal directed to the 2005-2006 school year
IEP developed for N.S. by the School District, as modified by the IHO, and thereby
seeks “a retroactive form of relief” from SRO Kelly’s “past conduct as a quasi judicial
officer . . . ,” and SRO Kelly is absolutely immune from all claims asserted against him
in the instant action. B.J.S., 699 F.Supp.2d at 595.
State Defendants’ motion requesting the action be dismissed as against SRO
Kelly on the basis that Kelly is absolutely immune from liability in this case should be
GRANTED. The court thus addresses whether the action should be dismissed for
failure to state a claim against not only NYSED and Commissioner Mills, but also
against SRO Kelly in the alternative should the District Judge disagree with the
recommendation that SRO Kelly is absolutely immune from liability in the instant action.
2.
Failure to State a Claim
On a motion to dismiss under Rule 12(b)(6), the court looks to the four corners of
the complaint and is required to accept the plaintiff's allegations as true and to construe
those allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974); Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (court is
33
required to liberally construe the complaint, accept as true all factual allegations in the
complaint, and draw all reasonable inferences in the plaintiff’s favor). Two recent
Supreme Court cases require application of “a ‘plausibility standard,’ which is guided by
‘[t]wo working principles.’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and quoting Ashcroft v. Iqbal, __ U.S.
__, 129 S.Ct. 1937, 1949 (2009)). “First, although ‘a court must accept as true all of the
allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’
and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’” Harris, 572 F.3d at 72 (quoting Iqbal, 129 S.Ct.
at 1949). “‘Second, only a complaint that states a plausible claim for relief survives a
motion to dismiss,’ and ‘[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the review court to draw on its
judicial experience and common sense.’” Id. (quoting Iqbal, 129 S.Ct. at 1950).
Despite Twombly, courts remain obligated to liberally construe a pro se complaint.
Harris, 572 F.3d at 72 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 570). The factual allegations of the complaint “must be enough
to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.” Twombly, 550 U.S. at 570.
In both the instant action and the 2008 action, State Defendants move to have all
claims dismissed as against Commissioner Mills and NYSED because the respective
pleadings are devoid of any factual allegations against Mills or NYSED, State
34
Defendants’ Memorandum at 5; 2008 Action, Doc. No. 21 at 13-14. State Defendants
further assert neither Mills nor NYSED is a proper party to either action because there
is no justiciable issue between Plaintiff and Mills or NYSED given that the IDEA’s
statutory structure provides that neither Mills nor NYSED is a party to the proceedings
before the IHO or the SRO, nor involved in any review that is subject to the instant
litigation, and the relief Plaintiff seeks cannot be obtained from Mills or NYSED. State
Defendants’ Memorandum at 8-9 (Mills) and16-20 (NYSED); 2008 Action, Doc. No. 21,
at 11-13. In the 2008 Action, the undersigned found that the IDEA’s statutory scheme
establishing the right to an FAPE and a proper IEP to effectuate such FAPE are to be
implemented by a local educational agency, unless the disabled student is to be
enrolled in a school program designed for certain disabilities which is directly operated
by a state educational agency. B.J.S., 699 F.Supp.2d at 599. Because nothing in the
IDEA either directly or indirectly suggests that by complying with the IDEA’s
requirement to provide impartial review of an administrative complaint challenging an
IEP, State Defendants do not thereby become parties to such disputes. Id.
Further, this court, as well as other district courts within New York, have
concluded that NYSED may not be sued as a defendant to an IDEA action brought
pursuant to § 1415(i)(2)(A) challenging the failure to provide an eligible student with a
proper IEP to effectuate an FAPE. Id. at 600-01 (citing, inter alia, Kramer v. SpringvilleGriffith Institute Central School District Board of Education, 02-CV-765S, Slip. Op. at
21-23 (W.D.N.Y. July 31, 2003) (attached as exhibit to Defendants’ Memorandum),
Adrian R. v. New York City Board of Education, 2001 WL 1175103, at * 1 (S.D.N.Y.
Oct. 2, 2001); and Mr. & Mrs. “B”, individually and on behalf of “C.B.” v. Board of
35
Education of the Syosset School System, 1998 WL 273025, at * 4 (E.D.N.Y. Jan. 15,
1998)). Additionally, the NYSED Commissioner’s exercise of general supervisory
authority over the administration of public education within New York, including New
York’s general obligation to comply with the IDEA, does not alter the court’s finding that
neither Commissioner Mills, SRO Kelly, nor NYSED, headed by the Commissioner, is a
proper party to an action pursuant to § 1415(i)(2)(A) to review a local school board’s
decision regarding a disabled student’s IEP. B.J.S., 699 F.Supp.2d at 601. Nor does
the Commissioner’s promulgation of regulations under which local school boards are
required to provide special education to disabled students, as well as procedural
safeguards to such students and their parents in compliance with the IDEA, subject the
Commissioner, SRO Kelly, or NYSED to liability under the IDEA. Id. at 603-09.
In light of the plethora of law contrary, including this court’s decision in the 2008
Action on essentially similar claims, Plaintiff cannot state a plausible claim against
Commissioner Mills, SRO Kelly, or NYSED for violations of the IDEA for failing to
provide N.S. with a proper IEP to effectuate an FAPE during the 2005-2006 school
year. As such, insofar as State Defendants move to dismiss all the claims asserted
against them, the motion should be GRANTED.
36
CONCLUSION
Based on the foregoing, School District’s motion (Doc. No. 49), insofar as it
seeks dismissal of the Amended Complaint for improper service, is DISMISSED as
moot, and Plaintiff is GRANTED an extension of time to re-serve Defendant School
District with the summons and Amended Complaint within 30 days of receipt of this
Decision and Order and Report and Recommendation, and, alternatively, insofar as
it seeks dismissal of the Amended Complaint as time-barred, should be DENIED; State
Defendants’ motion (Doc. No. 61), should be GRANTED.
SO ORDERED, as to Defendant
School District’s motion to dismiss insofar
as it seeks to dismiss for failure to effect
proper service.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, as to State
Defendants’ motion to dismiss, and
School District’s motion to dismiss as
time-barred,
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
August 11, 2011
Buffalo, New York
37
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
August 11, 2011
Buffalo, New York
38
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