Jacobowitz et al v. YMCA of Greater Providence Bayside YMCA Branch et al

Filing 13

MEMORANDUM AND ORDER granting in part and denying in part 4 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 3/30/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
YMCA of GREATER PROVIDENCE
)
BAYSIDE YMCA BRANCH;
)
JOE MARTINO, Executive Director;
)
JOHN and JANE DOE,
)
)
Defendants.
)
___________________________________)
IRWIN JACOBOWITZ on behalf of,
MJ, and
DJ, and
AJ; and
PEARL H. JACOBOWITZ,

C.A. No. 15-345 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before

the

Court

is

Defendants’

Dismiss (“Defendants’ Motion”).

Partial

(ECF No. 4.)

Motion

to

Plaintiffs

filed an Opposition (ECF No. 10) and Defendants filed a Reply
(ECF No. 11.) 1

For the reasons that follow, the Court GRANTS

IN PART and DENIES IN PART Defendants’ Motion.

1

Plaintiffs’ Surreply (ECF No. 12) will not be
considered, as they failed to seek leave of Court pursuant to
Local Rule of Civil Procedure 7.
See LR Cv 7(b)(3) (“No
memorandum other than a memorandum in support of a motion, a
memorandum in opposition, and a reply memorandum may be filed
without prior leave of the Court.”); see also Bassi v.
Krochina, Civil No. 12-cv-39-JD, 2012 WL 1570836, at *1
(D.N.H. May 3, 2012) (“A pro se party . . . is required to
comply with applicable procedural rules.” (citing Eagle Eye

I.

Background
This case arises out of Defendants’ decision to suspend

the Jacobowitz family from using the Bayside Branch of the
YMCA after one of their children, A.J., who is autistic, threw
a tantrum and kicked a chair in which another child was
sitting.
allege

(See Compl. ¶¶ 13-21, ECF No. 1-1.)
disability

Americans

with

Constitution,

discrimination

Disability
and

the

in

Plaintiffs

violation

of

Act

(“ADA”),

the

Rhode

Civil

Rights

of

People

Disabilities Act (“CRPDA”).

(Id. ¶ 33.)

the

Island
with

They further claim

breach of contract based on Defendants’ alleged failure “to
fulfill the membership contract and mission statement.”

(Id.

¶ 34.) Defendants’ Motion seeks to dismiss all claims against
John and Jane Doe and the YMCA Bayside Branch; all claims
brought on behalf of Mr. and Mrs. Jacobowitz’s children; and
Plaintiffs’ CRPDA, constitutional, and breach of contract
(but not ADA) claims against the remaining Defendants, Joe
Martino and the YMCA of Greater Providence.
II.

Claims Made on Behalf of the Jacobowitz Children
“[I]t is well established that a non-lawyer parent . .

. cannot pursue a pro se lawsuit in Federal Court on behalf
of his or her child.”

Charette v. Martinez, C.A. No. 09-

Corp. v. U.S. Dep’t of Commerce, 20 F.3d 503, 506 (1st Cir.
1994)).
2

576S, 2010 U.S. Dist. LEXIS 116173, at *3 (D.R.I. Oct. 6,
2010) (citing Tindall v. Poultney High Sch. Dist., 414 F.3d
281, 284 (2nd Cir. 2005); Gallo v. United States, 331 F. Supp.
2d 446, 447 (E.D. Va. 2004)); see also Bleicken v. Perkins,
1993 U.S. App. LEXIS 33878, *5-6 (1st Cir. Dec. 29, 1993)
(“[T]his circuit ‘does not
allow

non-lawyers

to

represent

litigants

other

than

themselves.’” (quoting Amman v. Stow Sch. Sys., 982 F.2d 644,
648 (1st Cir. 1992)).
this

rule

in

Several courts have made exceptions to

cases

involving

the

Individuals

with

Disabilities Education Act (“IDEA”) and Supplemental Security
Income (“SSI”) Benefits.
Dist.,

346

F.3d

247,

See Maroni v. Pemi-Baker Reg’l Sch.

250

(1st

Cir.

2003)

(finding

that

“parents are ‘parties aggrieved’ within the meaning of IDEA,
20 U.S.C. § 1415(i)(2)(A), and thus may sue pro se”); id. at
249 n.3 (“Two circuits have created a similar exception in
cases contesting the denial of [SSI] benefits to children,
and have held that parents may sue pro se as next friends on
behalf of their child in such cases.” (citing Machadio v.
Apfel, 276 F.3d 103, 105 (2d Cir. 2002); Harris v. Apfel, 209
F.3d 413, 417 (5th Cir. 2000)).

3

All of the cases cited by Plaintiffs either support
Defendants’
exceptions. 3

argument 2

or

fall

into

one

of

these

two

Accordingly, Mr. and Mrs. Jacobowitz’s claims

on behalf of their children are dismissed.
III. Claims Against Jane and John Doe
The Complaint lists Jane and John Doe as Defendants;
however, as Defendants note, there are no allegations in the
Complaint concerning either individual.
7, ECF No. 4-1.)

(See Defs.’ Mot. 5-

Plaintiffs argue that:

2

Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 286
(2d Cir. 2005) (“[W]e conclude that our cases prohibiting
non-lawyer parents from representing their children apply to
appeals to this Court and are too broad and too clear to
permit us to hear Kyle’s appeal — irrespective of our judgment
as to whether his mother would be capable of doing so — unless
and until he is represented by counsel.”); Murphy v. Arlington
Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 201 (2d Cir.2002)
(“In this Circuit, a non-attorney parent is precluded from
representing his or her child in federal court.”); Cheung v.
Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d
Cir. 1990) (holding that “a non-attorney parent must be
represented by counsel in bringing an action on behalf of his
or her child”).
3

Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 535 (2007) (“Parents enjoy rights under IDEA;
and they are, as a result, entitled to prosecute IDEA claims
on their own behalf.”); Machadio v. Apfel, 276 F.3d 103, 107
(2d Cir. 2002) (“[W]here a district court, after appropriate
inquiry into the particular circumstances of the matter at
hand, determines that a non-attorney parent who brings an SSI
appeal on behalf [of] his or her children has a sufficient
interest in the case and meets basic standards of competence,
we hold that in such cases a non-attorney parent may bring an
action on behalf of his or her child without representation
by an attorney.” (emphasis added)).
4

The Plaintiffs clearly provides [sic] information
about John Doe in paragraph 26 of their complaint,
under heading “Allegations.” Plaintiffs state that
on August 30, 2013, Jim Berson, in his capacity as
Chief Executive Officer and President failed to
respond to Plaintiffs[’] requests for corrective
measures in the matter at hand.
The YMCA is a
member
organization.
The
YMCA
of
Greater
Providence is a member organization that consist of
council members (Collectively “Jane and John Doe”).
(Pls.’ Opp’n 3, ECF No. 10.)

With respect to Jim Berson,

Plaintiffs are clearly aware of his identity.

If they intend

to proceed against him as a defendant, they must amend their
Complaint to name him.

See Martinez-Rivera v. Sanchez Ramos,

498 F.3d 3, 8, n.5 (1st Cir. 2007) (“[A] plaintiff may bring
suit against a fictitious or unnamed party where a good-faith
investigation

has

failed

to

reveal

the

identity

of

the

relevant defendant and there is a reasonable likelihood that
discovery will provide that information. . . . Of course,
once those identities are revealed, the plaintiff should act
promptly to amend the complaint to substitute the correct
parties and to dismiss any baseless claims.”).

Regarding the

“council members,” Plaintiffs make no allegations in their
Complaint concerning such members.

Accordingly, the claims

against Jane and John Doe are dismissed.
IV.

Claims Against Bayside Branch
Plaintiffs name as Defendants both “the YMCA of Greater

Providence”

and

“the

YMCA

of

5

Greater

Providence

Bayside

Branch.”

(Compl. ¶¶ 4-5, ECF No. 1-1.)

Defendants argue in

their motion that the Bayside Branch “is only a branch (i.e.,
a location) at which the YMCA conducts operations” and “is
not a corporation or separate legal entity.”
ECF No. 4-1 (emphasis in original).)

(Defs.’ Mot. 7,

Under Federal Rule of

Civil Procedure 17(b),
[c]apacity to sue or be sued is determined . . . by
the law of the state where the court is located,
except
that:
(A)
a
partnership
or
other
unincorporated association with no such capacity
under that state’s law may sue or be sued in its
common name to enforce a substantive right existing
under the United States Constitution or laws.
The

Bayside

YMCA

branch

is

not

an

“unincorporated

association”; it is merely a division of a larger incorporated
association, the YMCA of Greater Providence. 4

See E.E.O.C.

v. St. Francis Xavier Parochial Sch., 77 F. Supp. 2d 71, 77
(D.D.C. 1999) aff’d sub nom. E.E.O.C. v. St. Francis Xavier
Sch., 254 F.3d 315 (D.C. Cir. 2000) (“Although the division
is not separately incorporated, it is still governed by the
terms of the corporate charter and still enjoys corporate
status because it is a unit of the larger corporation.

Thus,

the Court concludes that the federal law definition of an
unincorporated

association

does

4

not

encompass

an

Plaintiffs argue that, because the YMCA Bayside Branch
conducts fundraising efforts, it must be a separate entity;
however, they fail to cite any authority for this conclusion.
(See Pls.’ Opp’n 4-5, ECF No. 10.)
6

unincorporated division of a corporation.”).

It is well

established that a subdivision of a larger organization is
not a proper party to a suit.

See, e.g., Smartdoor Holdings,

Inc. v. Edmit Indus., Inc., 78 F. Supp. 3d 275, 277-78 (D.D.C.
2015) (finding that division of larger corporation lacked
capacity to be sued in federal court); Heaton v. Fillion, No.
PC/2002-1510, 2004 WL 1769683, at *2 (R.I. Super. July 30,
2004)

(“[A]s

the

Cranston

Police

Department

is

only

a

department or subdivision of the municipality, this Court
finds

that

the

Police

Department

is

not

a

proper

party

defendant in this suit, and the motion to dismiss filed on
its behalf should be granted.”).
The Court finds that the YMCA Bayside Branch is not
properly a party to this suit, as it is a division of
Defendant YMCA of Greater Providence; accordingly, the claims
against the YMCA Bayside Branch (but not the YMCA of Greater
Providence) are dismissed.
V.

CRPDA Claims
On April 23, 2015, the Commission for Human Rights issued

a notice of right to sue to Plaintiffs.

The notice provided

that “[i]f you intend to sue, YOU MUST DO SO WITHIN NINETY
(90) DAYS FROM THE DATE OF THIS NOTICE: OTHERWISE YOUR RIGHT
TO SUE IS LOST.”
original).)

(Notice, ECF No. 1-1 at 12 (emphasis in

Plaintiffs filed their Complaint on July 23,
7

2015, which Defendants contend was one day after the 90-day
limitations period had run. 5

The parties agree that pursuant

to Rule 6(a) of the Rhode Island Rules of Civil Procedure,
the

day

of

the

notice

letter

is

not

included

in

the

limitations period, and therefore, the first day of the 90day period was July 24, 2015.

However, “[t]he last day of

the period is to be included, unless it is a Saturday, Sunday,
or a legal holiday, in which event the period runs until the
end of the next day which is neither a Saturday, Sunday, nor
a holiday.”

McAninch v. State of R.I. Dep’t of Labor &

Training, 64 A.3d 84, 88 (R.I. 2013).

Defendants are thus

correct that the ninetieth day was Wednesday, July 22, 2015
– the day before Plaintiffs filed their Complaint.
The First Circuit strictly enforces these types of time
limitations.

See Rice v. New England Coll., 676 F.2d 9, 11

(1st Cir. 1982) (“In the absence of a recognized equitable
consideration, the court cannot extend the [Title VII 90-day]
limitations period by even one day.”).

It appears Plaintiffs

simply calculated the time period incorrectly.

5

However, “pro

Mr. Jacobowitz filed a Notice of Reconsideration with
respect to the Commission’s partial finding of no probable
cause.
The Commission continued its investigation with
respect to this one portion of the Charge and ultimately
issued a finding of probable cause, and then a Notice of Right
to Sue on August 11, 2015.
Plaintiffs have not filed a
Complaint based on this letter.
8

se status does not provide an independent basis for the Court
to toll the statute of limitations. ‘[I]t is well established
that

ignorance

[plaintiff],

of

the

law,

even

generally

does

not

for

a[]

excuse

.

.

prompt

.

pro

se

filing.’”

Correia v. Mass. Bay Commuter R.R., Civil Action No. 1212048-DJC, 2013 U.S. Dist. LEXIS 170899, at *9 (D. Mass. Dec.
4, 2013) (quoting Stonier v. United States, No. 03-10146-JLT,
2011 U.S. Dist. LEXIS 52780, 2011 WL 1877670, at *4 (D. Mass.
Apr. 7, 2011).

Thus, the Court finds that Plaintiffs’ CRPDA

claims were not timely filed.
Plaintiffs further argue that “any delays in filing said
complaint would be due to the defendants[’] misconduct or
alleged

fraud

(false

representation

of

the

Bayside

YMCA

branch or Bayside Family YMCA (and other branches) by citing
the YMCA branches as a location, a nonprofit, or nonexistent
when the situation suits its purpose.”
No. 10.)

(Pls.’ Opp’n 6, ECF

Even assuming arguendo that there was some false

representation on behalf of the Bayside YMCA branch – which,
to be clear, the Court does not find – Plaintiffs fail to
explain how this relates to their failure to file on time.
The CRPDA claims are thus dismissed.
VI.

Rhode Island Constitutional Claims
To state a claim for a violation of the Rhode Island

Constitution, Plaintiffs must allege that the state took some
9

action to cause them harm.

See Tomaiolo v. Mallinoff, 281

F.3d 1, 11-12 (1st Cir. 2002) (“The district court therefore
correctly concluded that without state action by the escrow
defendants, Tomaiolo’s state constitutional claim against
them could not succeed.”).

Here, the only alleged state

action Plaintiffs point to is the fact that a “Notice of Right
to Sue” was issued by a state agency.
ECF No. 10.)
that

this

They do not, however, allege (nor could they)

action

Constitution.

(See Pls.’ Opp’n 6-7,

was

in

violation

of

the

Rhode

Island

Accordingly, the Rhode Island constitutional

claims are dismissed.
VII. Breach of Contract Claims
Plaintiffs allege that “defendants breached their duty
to fulfill the membership and mission statement contract.”
(Compl. ¶ 34, ECF No. 1-1.)

Defendants are correct that the

“mission statement” is not a contract.

See, e.g., Vurimindi

v. Fuqua Sch. of Bus., 435 F. App’x 129, 133-134 (3d Cir.
2011) (holding that the plaintiff could not recover on his
breach of contract claim because the portion of the mission
statement that he presented provided no specific terms that
could be considered binding); Minehan v. United States, 75
Fed. Cl. 249, 260 (Fed. Cl. 2007) (“[P]laintiff’s allegations
regarding

a

quasi-contract

with

the

government

are

insufficient even to survive a motion to dismiss. . . . [T]he
10

IRS’s mission statement is aspirational, and it makes no
specific promise or offer which could be deemed the basis for
a contract.” (internal citations omitted)).

The membership

contract, however, is a different story.
Defendants argue that they cannot, as a matter of law,
be liable for breach of the membership contract because it
had the following Membership Termination Policy:
I agree that the YMCA has the right to terminate my
YMCA privileges anytime if:
a) it appears to the YMCA in its sole discretion
and judgment that I (and/or my children and/or
wards who are under the age of 18 years) are taking
actions or doing things that are contrary to the
Y’s Mission, 6 or;
b) it appears to the YMCA in its sole discretion
and judgment that I (and/or my children and/or
wards who are under the age of 18 years) are
involved in criminal acts, or that;
c) I (and/or my children and/or wards who are under
the age of 18 years) are acting in ways that
disrupts the YMCA’s operations.
d) I (and/or my children and/or wards who are under
the age of 18 years) are in direct violation of the
Member Code of Conduct.

6

Contrary to Plaintiff’s argument, the mere mention of
the Y’s Mission does not incorporate it into the contract.
(Pls.’ Opp’n 7, ECF No. 10.) As Defendants point out, the
Mission Statement – which states that “[t]he mission of the
YMCA of Greater Providence is to build health spirit, mind
and
body
for
all,
through
programs,
services
and
relationships that are based upon our core values of caring,
honesty, respect and responsibility” – “does not create
specific promises or offers to Defendants’ members, but
serves an aspirational statement that Defendants use to guide
their organization.” (Defs.’ Reply 5, n.3, ECF No. 11.)
11

(Ex. D to Defs.’ Mot. [Membership Contract] 4, ECF No. 4-5;
see

Defs.’ Mot. 14-15, ECF No. 4-1.)

The Member Code of

Conduct states that:
[t]he YMCA of Greater Providence is committed to
providing a safe and welcoming environment for our
members and guests.
To ensure the safety and
comfort of all, we ask individuals to act
appropriately at all times when they are in our
facility or participating in YMCA programs.
We
expect persons using the YMCA to behave in a mature
and responsible way and to respect the rights and
dignity of others. Our Code of Conduct does not
permit language or action that can hurt or frighten
another person. . . . This includes . . . physical
contact with another person in an angry or
threatening way[.]
(Defs.’ Mot. 15, ECF No. 4-1.)

Defendants thus argue that

“the Membership Agreement expressly authorized Defendants to
terminate Plaintiffs and their family’s membership for the
listed reasons.

Defendants did not even actually terminate

Plaintiffs’ membership. Defendants merely prohibited family
use of one of Defendant YMCA’s branches. They had every right
to do this.”

(Id. (emphasis in original).)

However, this

assumes that A.J.’s conduct was, as a matter of law, a breach
of the Member Code of Conduct.

Taking the allegations in the

Complaint as true and drawing all inferences in Plaintiffs’
favor, the Court is not convinced.
“Plaintiff

AJ

had

difficulty

The Complaint states that

awaiting

his

turn

for

the

computer and tantrumed kicking the chair in which the patron
was sitting and using the computer. The patron was not harmed
12

and continued using the computer.”
1-1.)

(Compl. ¶¶ 15-16, ECF No.

The facts may well reveal that Defendants are correct

that this conduct violated the Member Code of Conduct, but
the Court is not ready to make that determination at this
stage.

Consequently, the breach of contract claim will go

forward.
VIII. Conclusion
For the foregoing reasons, Defendants’ Motion is hereby
GRANTED

IN

PART

and

DENIED

IN

PART.

The

Court

hereby

DISMISSES all claims against John and Jane Doe and the YMCA
Bayside Branch; all claims brought on behalf of Jacobowitz’s
children;

and

Plaintiffs’

CRPDA

and

Rhode

Island

constitutional claims against the remaining Defendants, Joe
Martino and the YMCA of Greater Providence.

Plaintiffs’

breach of contract and ADA claims will go forward against
those Defendants.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: March 30, 2016

13