United States District Court, S.D. New York
May 19, 2004.
MARILYN ARONS, Plaintiff
STATE OF NEW YORK, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, COMMISSION ON QUALITY OF CARE, METROPOLITAN PARENT CENTER OF SINERGIA, INC., DONALD LASH, FAMILY ADVOCATES, INC., ROSALEE CHARPENTIER, Defendants
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
Plaintiff pro se Marilyn Arons ("Arons") filed this action
on January 5, 2004, against the State of New York, Office of Mental Retardation and Developmental Disabilities*fn1 ("OMRDD")
and the Commission on Quality of Care*fn2 ("CQC") (collectively, "the
State"), the Metropolitan Parent Center of Sinergia, Inc.*fn3 and its
Executive Director, Donald Lash (collectively, "Sinergia"), and Family
Advocates, Inc.*fn4 and its Executive Director, RosaLee Charpentier
("Charpentier") (collectively, "Family Advocates"). In her complaint,
Arons alleges violations of 42 U.S.C. § 1983 ("Section 1983"), the
Developmental Disabilities Assistance and Bill of Rights Act,
42 U.S.C. § 6042 ("Section 6042"),*fn5 the Individuals with Disabilities Education Act, 20 U.S.C. § 1400
et seq. ("IDEA"), and various state laws.
The State, Sinergia and Family Advocates now separately move to dismiss
the complaint. For the reasons stated below, the motions are granted.
Unless otherwise indicated, the facts describing the background to this
litigation are taken from the complaint and plaintiff's submissions in
opposition to this motion. Arons, the mother of two handicapped children
and a New Jersey resident, has been described in connection with other
litigation she has filed as "a professional educator . . . [who]
specializes in curriculum development for exceptional children," and as
"a lay advocate [who] acts on behalf of parents of handicapped children
at administrative hearings" conducted pursuant to the IDEA. Arons v.
New Jersey State Board of Education, 842 F.2d 58, 60 (3d Cir. 1988).
Under the IDEA'S fee-shifting provisions, parents who prevail in a IDEA
suit can apply to the federal district court for an award of attorneys'
fees for the "costs" of the litigation. 20 U.S.C. § 1415 (i)(1)(3)
(b). There is precedent for the proposition that those costs may include
fees for experts such as Arons. See, e.g., Murphy v.
Arlington Central School Dist. Bd. of Educ., No. 99 Civ. 9294 (CHS),
2003 WL 21694398, at *8-9 (S.D.N.Y. July 22, 2003). Accordingly, although Arons is
precluded from charging fees in connection with her representation of
parents at hearings, she contends that she is entitled to bill for her
services as a consultant and expert. See also In Re Arons,
756 A.2d 867, 868 (Del. 2000) (Delaware's prohibition on lay advocate
representation at due process hearings not preempted by the IDEA).
In January 2000, Elizabeth Batchelder ("Batchelder"), the parent of a
disabled child, contracted with Arons on a contingency basis to assist in
an IDEA lawsuit against the City of New York. Pursuant to a contract
drafted by Arons, Batchelder agreed "to seek the fees of Mrs. Arons
through an application to the federal courts" in the event Batchelder
prevailed at the administrative hearing. Batchelder prevailed, but did
not institute an action in federal court. Arons requested that Batchelder
consult with an attorney regarding the procedure for instituting an
action for her fees. In an email dated February 13, 2002, Batchelder
informed Arons that she had been advised by an attorney that she did not
"have the right to recover [Arons's] fees in Federal Court" because Arons
had not worked under the supervision of counsel. The attorney had
informed Batchelder that "the procedure to recover non-attorney fees is
through the school district" via the administrative hearing. Batchelder
told Arons that she had reasonably relied on Arons's "knowledge of the system" and that Arons had never informed Batchelder to seek her
fees at the hearing. Batchelder disputed Arons's accusation that she had
"refused to recover" Arons's fees.
On March 4, 2002, Arons filed a complaint in the Civil Court of the
City of New York against Batchelder, alleging breach of contract. Arons
sought monetary damages and an order compelling Batchelder to institute
the federal action so that Arons could be paid for her services.
Batchelder filed an answer to Arons's complaint pro se, and
thereafter retained Sinergia to defend the case. Sinergia filed a
cross-motion to dismiss, which was denied. Thereafter, on October 21,
2003, Arons and Batchelder entered into a court-ordered stipulation
whereby Arons agreed to accept $1,000 in exchange for her services on
behalf of Batchelder.
Family Advocates Dispute
Arons's claims against Family Advocates also stem from the law firm's
alleged interference with a contractual relationship between Arons and a
former client. Thomas and Barbara Mackey (the "Mackeys"), parents of a
disabled son, entered into an oral agreement with Arons to assist them
with their IDEA lawsuit against the Arlington Central School District
("Arlington"). The Mackeys agreed to pursue Arons's fees in federal court
if their suit was successful. After the Mackeys lost at the initial
administrative level, Arons and the Mackeys severed their relationship.
In October 2000, the Mackeys retained Family Advocates to prepare and submit a petition challenging the
unfavorable administrative decision. The appeal was successful and the
Mackeys were granted their requested relief.*fn6
Family Advocates asked the Mackeys to submit itemized bills for the
various individuals who had testified at the hearings on their behalf. In
a letter dated July 19, 2002, the Mackeys asked Arons to forward them an
itemized bill for her services, and informed her that Charpentier, the
Executive Director at Family Advocates, "will be submitting all bills
from the people who have assisted us . . . when we are finished at the
Federal level, provided we prevail." On October 18, Arons submitted her
bill to the Mackeys in the amount of $20,050. Having not heard from the
Mackeys by early December, Arons served them with notice of her intent to
sue for breach of contract.
On February 11, 2003, Arons received a letter from Charpentier stating
that she would not represent Arons "in any aspect of an action for fees
in this matter. . . . You are free to retain your own counsel." On
February 28, Arons filed a state court action against Charpentier and the
Mackeys for breach of contract and for an injunction compelling them to
seek Arons's consultation fees in federal court. According to Arons,
Charpentier was named in that action "because of her interference with
the oral contract," among other reasons. In the fall of 2003, the Mackeys filed for bankruptcy. Arons's bill is listed as a
debt and a loan in the Mackey bankruptcy action.*fn7 Family Advocates do
not represent the Mackeys in that proceeding.
Arons alleges that the State, Sinergia, and Family Advocates have
"engaged in harassment and systemic action to conspire against plaintiff,
a nonlawyer [sic], because she is permitted to charge parents for her
services relating to representation in special education due process
hearings." According to Arons, Sinergia and Family Advocates misused
federal funds doled out by the State in order to conduct frivolous and
malicious litigation against Arons in order to deprive her of her legal
right to collect "consultation fees" pursuant to the IDEA. Arons also
charges the State with violating the IDEA'S "Protection and Advocacy
mandate" for the developmentally disabled by, inter alia, failing to
provide free or low cost legal services to parents of disabled children,
failing to develop "state-of-the-art, cutting edge policies" in special
education, and for being complicit in Family Advocates and Sinergia's use
of public funds to file "malicious and libelous action[s] and frivolous
litigation" against Arons.
Arons seeks (1) sanctions against Sinergia and Family Advocates for the
"inappropriate use of federal funds and unethical behavior"; (2) an order
compelling Sinergia and Family Advocates to pay Arons the balance of the
bill allegedly owed by Batchelder and the Mackeys, respectively; (3) a series of orders
against the State, with the intent of "restructuring New York's
protection and advocacy system," and compelling the "recognition of and
payment for those with special knowledge in special education who assist
or present parents in special education hearings"; and (4) unspecified
A. The State Defendants
On January 20, 2004, Arons served a copy of the complaint on the Albany
office of the State Attorney General. Arons did not separately serve the
OMRDD and CQC.*fn8 The State contends that Arons's failure to serve the
State properly deprives this Court of personal jurisdiction over it in
Pursuant to Rule 4(j)(2), Fed.R. Civ. P., service upon a State or
other governmental organization "shall be effected by delivering a copy
of the summons and of the complaint to its chief executive officer or by
serving the summons and complaint in the manner prescribed by the law of
that state." New York law provides generally that personal service on the
State "shall be made by delivering the summons to an assistant attorney-general at
an office of the attorney-general or to the attorney-general within the
state." CPLR § 307(1) (McKinney 2004). This general rule is qualified
by CPLR § 307(2), which, among other things, governs civil actions in
which a state agency has been sued. See CPLR § 307(2)
(McKinney 2004) ("Section 307(2)"). Under New York law, personal service
on a state agency shall be made by:
(1) delivering the summons to . . . the chief
executive officer of such agency or to a person
designated by such chief executive officer to
receive service, or (2) by mailing the summons by
certified mail, return receipt requested, to
. . . the chief executive officer of such
agency, and by personal service upon the state in
the manner provided by [CPLR § 307(1)]., For
purposes of this subdivision the term state agency
shall be deemed to refer to any agency, board,
bureau, commission, division, tribunal or other
entity which constitutes the state for purposes of
service under subdivision one of this section.
Thus, service on the Attorney General is
insufficient to confer personal jurisdiction over the State in a case
against one of its agencies or subdivisions. See Shuster v. Nassau
County, No. 96 Civ. 3635 (JGK), 1999 WL 9847, at *3 (S.D.N.Y. Jan.
11, 1999) (delivering the summons and complaint to a regional office of
the State Attorney General does not by itself constitute effective service on a state agency); Yoon Kim v. New York
State Health Dept., 691 N.Y.S.2d 499, 500 (1st Dep't 1999) (default
judgment properly denied as against defendants because plaintiff failed
to effect service properly in accordance with CPLR § 307).
In Arons's opposition to the State's motion, she does not dispute that
OMRDD and CQC are State agencies subject to Section 307(2). Arons also
does not dispute that she failed to comply with the service provisions in
Section 307(2). For example, she does not contend that she made personal
delivery to the chief executive officers of the OMRDD and CQC, or that
she sent them a copy of the summons and complaint by certified mail.
Arons claims instead that she properly effected service because the OMRDD
and CQC are "state agencies" that "constitute the State of New York."
Arons was required to sue OMRDD and CQC in the manner described in
Section 307(2). Because Arons failed to obtain personal jurisdiction over
these agencies, her claims against the State are dismissed. It is
therefore unnecessary to analyze Arons's claims against the State for
violating Section 1983, Section 6042, and the IDEA.
B. Claims Against Sinergia and Family Advocates
I. Violation of the IDEA
Construing Arons's complaint liberally, she appears to allege claims
against Sinergia and Family Advocates for violating the IDEA. Arons
claims that Sinergia and Family Advocates tortiously interfered with her
right to compensation under the IDEA, and thus deprived her of a federal right.
The defendants move to dismiss the IDEA claims against them pursuant to
Rule 12(b)(6), Fed.R.Civ.P. When considering a motion to dismiss, a
court must take all facts alleged in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. Securities Investor
Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir.
2000); Jaghory v. New York State Department of Education,
131 F.3d 326, 329 (2d Cir. 1997). "Dismissal is inappropriate unless it
appears beyond doubt that the plaintiff can prove no set of facts which
would entitle him to relief." Raila v. United States,
355 F.3d 118, 119 (2d Cir. 2004); Securities Investor Protection Corp.,
LLP, 222 F.3d at 68. Where, as here, a plaintiff is proceeding
pro se, the court has an obligation to "construe [the]
pleadings broadly, and interpret them to raise the strongest arguments
they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)
(citation omitted); see also Cucco. v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000).
Arons's claims are governed by the pleading standard set forth in
Rule 8(a), Fed.R.Civ.P. Under Rule 8(a) a complaint adequately states a
claim when it contains "a short and plain statement of the claim showing
that the pleader is entitled to relief." Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002) (citing Rule 8(a)(2), Fed.R. Civ.
P). Thus, under Rule 8(a)'s liberal pleading standard, a complaint is
sufficient if it gives "fair notice of what the plaintiff's claim is and
the grounds upon which it rests." Id. (citation omitted).
See also Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002).
"The IDEA was enacted to assist states in providing special education
and related services to children with disabilities." Taylor v.
Vermont Dept. of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (citing
20 U.S.C. § 1411 (a)(1)). Under the IDEA, a participating "state
educational agency, state agency, or local educational agency" is
entitled to receive federal funding if it has in effect policies and
procedures designed to "ensure that children with disabilities and their
parents are guaranteed procedural safeguards with respect to the
provision of free appropriate public education." 20 U.S.C. § 1415(a).
Those procedures include "an opportunity to present complaints with
respect to any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free
appropriate public education to such child." Id. at §
1415(b)(6). When such a complaint is made, the parents "shall have an
opportunity for an impartial due process hearing." Id. at §
1415(f)(1). At any such hearing, the parents must be accorded certain
rights, including "the right to be accompanied and advised by counsel and
by individuals with special knowledge or training with respect to the
problems of children with disabilities." Id. at §
1415(h)(1). The parents of a disabled child "who is a prevailing party"
may be awarded attorneys' fees "as part of the costs to the parents."
Id. § 1415(i)(1)(3)(b).
Arons cannot state an IDEA claim against Sinergia and Family Advocates.
The IDEA imposes duties and obligations only on participating states and their subdivisions. It does not create a
cause of action against private citizens or non-profit corporations
engaged in representing the disabled. Moreover, Arons lacks standing to
sue under the IDEA, as the statute appears to provide only the parents of
a disabled child with a private cause of action. See Taylor,
313 F.3d at 776 (whether a plaintiff may avail herself of the IDEA'S
procedural protections depends upon whether she is considered a "parent"
within the meaning of the statute). Arons does not allege that she meets
the definition of "parent" for purposes of the IDEA. Accordingly, Arons
cannot sustain a claim against Sinergia and Family Advocates for
violating the IDEA.
II. Section 1983
Arons asserts that Sinergia and Family Advocates violated her rights
under Section 1983*fn10 by conspiring with the State to harass her and
to deprive her of her right to compensation for assisting parents in IDEA
due process hearings. According to Arons, the State permitted Sinergia
and Family Advocates to use federal funds distributed to the
organizations pursuant to the IDEA to deprive Arons of her rights under
the statute. The defendants have moved to dismiss the Section 1983 claims pursuant
to Rule 12(c), Fed.R. Civ. P., and Sinergia moved in the alternative
for an award of summary judgment. The defendants and the plaintiff
submitted evidence in connection the motion. A court can convert a motion
to dismiss into a motion for summary judgment under such circumstances,
see Rule 12(c), Fed.R. Civ. P., at least where the non-movant
"should reasonably have recognized the possibility that the motion might
be converted into one for summary judgment [and was not] taken by
surprise and deprived of reasonable opportunity to meet facts outside the
pleadings." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999)
(citation omitted); see also Groden v. Random House, Inc.,
61 F.3d 1045, 1052-53 (2d Cir. 1995). Given Sinergia's explicit request for
summary judgment and all parties' reliance on evidentiary submissions, it
is appropriate to consider the motion as one for summary judgment.*fn11
Summary judgment may not be granted unless the submissions of the
parties taken together "show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the
burden of demonstrating the absence of a material factual question, and
in making this determination the Court must view all facts in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). When the moving party has asserted facts
showing that the non-movant's claims cannot be sustained, the opposing
party must "set forth specific facts showing that there is a genuine
issue for trial," and cannot rest on the "mere allegations or denials" of
his pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box.
Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir.
In order to prevail on a Section 1983 claim, a plaintiff must show that
she was injured by "either a state actor or a private party acting under
color of state law," Ciambriello v. County of Nassau,
292 F.3d 307, 323 (2d Cir. 2002), and that such conduct deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States, Dwares v. City of New York,
985 F.2d 94, 98 (2d Cir. 1993). Where the defendant is a private entity, the
"under color of state law" requirement is satisfied only if the
allegedly unconstitutional conduct can be "fairly attributable" to
the state. Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312-13
(2d Cir. 2003) (citing American Manufacturers Mutual Insurance Co.
v. Sullivan, 526 U.S. 40, 50 (1999)). Such conduct can be fairly
attributed to the state "only if there is such a close nexus between the
State and the challenged action that seemingly private behavior may be
fairly treated as that of the State itself." Id. (citing
Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001)). A close nexus may be found
[W]here the State exercises "coercive power" over,
is "entwined in [the] management or control" of,
or provides "significant encouragement, either
overt or covert" to, a private actor, or where the
private actor "operates as a willful participant
in joint activity with the State or its agents,"
is "controlled by an agency of the State," has
been delegated a "public function" by the state,
or is "entwined with governmental policies."
Tancredi, 316 F.3d at 313 (quoting Brentwood, 531
U.S. at 296).
Arons argues that Sinergia and Family Advocates receive public
funds,*fn12 and that the receipt of those funds creates a close nexus
between their conduct and the State such that the organizations' actions
can be fairly attributable to the State. The receipt of public funds by a
private entity, no matter how extensive, is insufficient in and of itself
to establish state action. The acts of "private contractors do not become
acts of the government by reason of their significant or even total
engagement in performing public contracts." Rendell-Baker,
457 U.S. 830, 841 (1992) (private school receiving 90% of its operating
budget from public funds not state actor); see also Slum v.
Yaretsky, 457 U.S. 991, 1011 (1982) (no state action even though
state paid the medical expenses of more than 90% of the patients and
subsidized the operating and capital costs of the nursing homes). Arons does not present any other evidence or make any other
argument that would support a Section 1983 action. For example, she does
not argue that the State exercises "coercive power" over Sinergia or
Family Advocates, that it is "entwined" in the management of the
organizations, or that it "controlled" the organizations.
Tancredi, 316 F.3d at 313 (citation omitted). Accordingly,
Arons's Section 1983 claim against Sinergia and Family Advocates must
C. Supplemental State Law Claims
Arons asserts common law claims against Sinergia and Family Advocates
for, inter alia, tortious interference with contract, libel,
entrapment, and conspiracy. Arons has not filed this action pursuant to
this Court's diversity jurisdiction; rather, Arons relied on her now
dismissed federal law claims as the basis of jurisdiction in the federal
court.*fn13 Where no federal claims remain in an action and the
requirements for diversity jurisdiction are lacking, a district court is
not required to retain jurisdiction over remaining state law claims.
28 U.S.C. § 1367(c)(3); see also Valencia ex rel. Franco. v. Lee,
316 F.3d 299, 304-06 (2d Cir. 2003). Since this litigation is in its initial
stages, this Court declines to exercise supplemental jurisdiction over it
and the state law claims are dismissed without prejudice to refiling them
in state court.
For the reasons stated above, the defendants' motions to dismiss the
federal law claims are granted with prejudice. The defendants' motions to
dismiss the state law claims are granted without prejudice to the
plaintiff refiling them in state court.