The opinion of the court was delivered by: DENISE COTE, District Judge
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.
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 ...