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United States District Court, S.D. New York

September 15, 2005.

LV, et al., Plaintiffs,

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Presently before the Court is plaintiffs' renewed motion for class certification on behalf of a putative class of persons who have obtained favorable orders or stipulated settlements (collectively "orders"), relating to a child's statutory entitlement to free appropriate public education as provided by the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., but who have failed to obtain or may not obtain the timely implementation by defendants of the terms of such order or settlement. Specifically, plaintiffs allege that defendants' failure to implement policies or practices to enforce such orders in a timely fashion constitutes a systematic denial of their due process rights in contravention of 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief in attaining system-wide reform in defendants' provision of free appropriate public education to disabled students. For the reasons set forth below, the Court grants plaintiffs' motion for class certification. BACKGROUND

A. IDEA's Statutory Framework

  The IDEA seeks to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). In effect, Congress sought to incorporate disabled students into the public education system by requiring school officials and parents of a disabled child to design an Individualized Education Program ("IEP") for each year of the child's education. Polera v. Board of Education of the Newburgh Enlarged School District, 288 F.3d 478, 482 (2d Cir. 2002) (stating that the IEP is "the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education."); 20 U.S.C. §§ 1401(11), 1414(d). Under the statute, the IEP is a written statement that sets forth, inter alia, the child's present levels of educational performance, measurable annual goals, special education and related services and supplementary aids and services to be provided to the child, and program modifications or support for school personnel, as well as projected dates for the beginning of such services and modifications. See 20 U.S.C. § 1414(d)(1)(A).

  Yet the IDEA's current statutory scheme also reflects a concern that "parental input into the creation of the IEP would not be sufficient to safeguard a child's right to a free and appropriate education," in that Congress also requires states to offer parents and disabled students procedural safeguards to challenge the decisions of local educational agencies. Murphy v. Arlington Central School District Board of Education, 297 F.3d 195, 197 (2d Cir. 2002). In accordance with this mandate, New York law provides a two-tier system of administrative review. Id.; N.Y. Educ. Law § 4404 (McKinney 1999). Parents may first challenge the IEP determination through an impartial due process hearing, in which the decision of the presiding impartial hearing officer ("IHO") is binding on all parties unless appealed to a State Reviewing Officer ("SRO"). N.Y. Educ. Law § 4404(1); see also 8 N.Y.C.R.R. § 200.5(i)(1) (enabling a parent or school district to "initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to a child.").*fn1 Upon appeal to the SRO, the SRO is empowered to review and modify "any determination of the impartial hearing officer relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and failure to produce such program." N.Y. Educ. Law § 4404(2); N.Y.C.R.R. 200.5(j)(1) ("Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer . . . may appeal to a State review officer of the State Education department").*fn2

  B. Procedural Posture of the Action

  Plaintiffs filed the initial complaint in this action on December 12, 2003 and subsequently amended the complaint on January 14, 2004. On February 2, 2004, plaintiffs LV, VSG, RC, AD, NA, ADJ, YG, LO, AP, RLB, RD, JYQ and HR moved for class certification with HR as a representative plaintiff. On March 15, 2004, defendants cross-moved to dismiss HR's claims on the basis of standing issues. Shortly thereafter, plaintiffs and proposed intervenors CW, SS, MG, MS, ST, RZ, MC and JP moved to intervene and to amend the first amended complaint on March 26, 2004. The parties executed a stipulation on April 21, 2004, thereby enabling plaintiffs to file a second amended complaint. Defendants then moved to dismiss the claims asserted in the second amended complaint on May 5, 2004.

  On September 16, 2004, plaintiffs withdrew their motion for class certification without prejudice and with leave to refile the motion to include claims asserted by CW, SS, MG, MS, ST, RZ, MC and JP, whose motion to intervene had been granted by the Court. Plaintiffs renewed their motion for class certification on October 25, 2004. Plaintiffs proposed the following class definition:

all persons (1) who have obtained, or will in the future obtain, for the benefit of a child with disability, a favorable order by an IHO against, or stipulation of settlement placed on the record at an impartial due process hearing with, the New York City Department of Education, or who are children with disabilities who are the beneficiaries of such order or stipulation of settlement, and (2) who fail to obtain, or are at risk of failing to obtain, full and timely implementation of such order or settlement.
  On January 6, 2005, the Court denied from the bench defendants' cross-motion to dismiss claims asserted by HR, as well as defendants' motion to dismiss the claims asserted by LV, ADJ, MG, RZ, VSG, AD, NA, YG, LO, RD, AP, RLB, ST, MC and JP on the record.


  Plaintiffs seeking to certify a class pursuant to Rule 23 of the Federal Rules of Civil Procedure bear the burden of establishing the four requirements of Rule 23(a) — numerosity, commonality, typicality and adequacy — as well as showing that the class fits into one of three categories set forth in Rule 23(b). Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999); Boyland v. Wing, No. 92 Civ. 10002 (DGT), 2001 U.S. Dist. LEXIS 7496, at *14 (E.D.N.Y. Apr. 6, 2001) (internal citations omitted); Becher v. Long Island Lighting Co., 164 F.R.D. 144, 148 (E.D.N.Y. 1996). While plaintiffs "are not obliged to make an extensive evidentiary showing in support of their motion," they are required to set forth, at the very least, "sufficient factual information to enable the Court reasonably to permit the action to continue as a class action under Rule 23." Boyland, 2001 U.S. Dist. LEXIS 7496, at *14 (internal citations omitted). The Court shall accept the allegations set forth in the complaint as true, see Sharif by Salahuddin v. New York State Education Department, 127 F.R.D. 84, 87 (S.D.N.Y. 1989), and examine whether the general requirements of Rule 23 are satisfied without delving into the merits of the action. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974) ("We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action."); Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968) (remarking that "Rule 23 now emphasizes the flexibility which a trial court exercises in the management of the action . . . [in focusing] the attention of the courts on the need to conduct the litigation without undue complication or repetition.")

  A. Rule 23(a) Requirements

  1. Numerosity. Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). While plaintiffs need not show the exact size or identity of class members, nor that joinder would be "impossible," courts should examine considerations such as "judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members." Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).

  Defendants have not contested that plaintiffs have satisfied the numerosity requirement in this action. Indeed, plaintiffs have alleged that system-wide defects cripple defendants' implementation of IHO orders and settlements, potentially affecting hundreds, if not thousands, of disabled children. (Declaration of Randee J. Waldman ("Waldman Decl.") ¶ 4 (noting that defendants provided plaintiffs with approximately 2,700 written IHO decisions between July 2002 and September 2004); Declaration of Irene Hwang ("Hwang Decl.") ¶ 5.) Moreover, plaintiffs have adduced evidence of at least fifty examples in which defendants allegedly failed to timely enforce IHO orders. (Decl. of Matthew Lenaghan ("Lenaghan Decl.") ¶¶ 7-34; Waldman Decl. ¶¶ 5, 11.) See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) ("numerosity is presumed at a level of 40 members.") Since the precise number of persons affected is within defendants' control, plaintiffs may reasonably rely on the "reasonable inferences drawn from the available facts" in establishing the impracticability of joining hundreds of potential claims of class members. German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 552-53 (S.D.N.Y. 1995); McNeill v. New York City Housing Authority, 719 F. Supp. 233, 252 (S.D.N.Y. 1989) (remarking that "the lack of knowledge as to the exact number of affected persons is not a bar to maintaining a class action where the defendants alone have access to such data.") Accordingly, the Court concludes that plaintiffs have satisfied the numerosity requirement of Rule 23(a)(1).

  2. Commonality. Rule 23(a)(2) requires that plaintiffs assert claims that contain "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). In this instance, plaintiffs have identified two distinct common issues of fact: (1) whether defendants have failed to timely enforce IHO orders obtained by plaintiffs; and (2) whether defendants have failed to adopt policies and procedures to ensure that IHO orders are enforced in a timely manner. (Pls.' Mem. in Supp. of Mot. for Class Cert. ("Pls.' Mem.") at 17.) Plaintiffs have also articulated a common issue of law — namely, whether defendants have "systematically denied Plaintiffs their right to an adequate due process system under § 1983 by failing to have in place procedures and policies to implement and enforce IHOs' orders." (Id. at 17-18.)

  Plaintiffs' proposed class action effectively challenges defendants' purported practices and policies in failing to timely implement disabled students' IHO orders on a system-wide basis. Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (affirming class certification where plaintiffs alleged that defendants violated a complicated scheme of constitutional, regulatory and statutory provisions designed to provide child welfare services by failing to operate and maintain a functioning child welfare system); D.D. v. New York City Board of Education, No. 03 Civ. 2489 (DGT), 2004 U.S. Dist. LEXIS 5189, at *26 (E.D.N.Y. March 30, 2004) (certifying class where plaintiffs focused on the defendants' alleged failure to provide services listed on their IEPs in a timely manner in violation of the IDEA, ADA, and 42 U.S.C. §§ 1983 and 1988); Louis M. by Velma M. v. Ambach, 113 F.R.D. 133, 136 (N.D.N.Y. 1986) (commonality established where plaintiffs challenged inadequate state appellate review by which disabled students contested their educational placements); Andre H. by Lula H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (commonality established where plaintiffs asserted that defendants failed to develop and implement policies and procedures ensuring that disabled children at juvenile centers would be provided free appropriate public education); Upper Valley Assoc. for Handicapped Citizens v. Mills, 168 F.R.D. 167, 170 (D. Vt. 1996) (commonality satisfied where plaintiffs challenged defendants' implementation of procedures mandated by the IDEA). Significantly, resolution of such issues of law and fact does not require a determination of the appropriateness of individual IHO orders but simply the procedures for implementation. See Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D. Ind. 1993) (commonality satisfied where defendants allegedly engaged in lengthy delays in implementing IEPs).*fn3 Accordingly, the Court concludes that plaintiffs have established the commonality requirement of Rule 23(a)(2).

  3. Typicality. Plaintiffs must show that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). While typicality and commonality overlap, see Louis M., 113 F.R.D. at 136, typicality "requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Marisol A. by Forbes, 126 F.3d at 376 (internal quotations omitted). In other words, the "typicality requirement does not dictate that each named plaintiff claim that he or she has suffered every type of harm alleged by the class." Ray M. v. New York Board of Education, 884 F. Supp. 696, 706 (E.D.N.Y. 1995).

  Plaintiffs contend, and defendants have not contested, that the named plaintiffs will articulate the same legal argument — namely, "that Defendants' failure to have policies and procedures in place [to implement the IHO orders] resulted in a denial of their rights." (Pls.' Mem. at 20). Since the named plaintiffs "in the aggregate, assert all of the claims asserted on behalf of class members," the Court finds that the typicality requirement is satisfied. Ray M., 884 F. Supp. at 706 (citing Kenavan v. Empire Blue Cross and Blue Shield, No. 91 Civ. 2393 (KMW), 1993 U.S. Dist. 4977, at *4 (S.D.N.Y. Apr. 19, 1993)).

  4. Adequacy. Finally, plaintiffs must demonstrate that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). This determination rests on two factors: "(1) the adequacy of the representative and (2) the adequacy of his counsel." Andre H., 104 F.R.D. at 612. Defendants attacked the adequacy of certain class representatives based on their motion to dismiss plaintiffs' claims for lack of standing and mootness. Given the Court's prior ruling denying the motion to dismiss in all respects, the attack on the adequacy of individual class representatives must also fail. See Transcript of hearing held on January 6, 2005 at 33-38.*fn4

  One issue remains regarding the adequacy of SS as a class representative. SS's son, AR, may be a member of a related class in Jose P. v. Ambach, 557 F. Supp. 1230 (D.C.N.Y. 1980). Defendants contend that the doctrine of res judicata operates to bar SS's claims, on behalf of AR, because Jose P. already addresses her requested relief — namely, the provision of private related service providers in the area of occupational therapy at defendants' expense. (Defs.' Mem. in Opp. to Mot. for Class Certification ("Defs.' Opp. Mem." at 6; Declaration of SS in Supp. of Pls.' Mot. for a Temporary Restraining Order ¶ 3.) Plaintiffs respond that the claims asserted in these actions are distinct from one another, such that res judicata is inapplicable. (Pls.' Reply Mem. at 4.)

  The preclusive effect of Jose P. on certain claims asserted now in this action depends on "whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first." Monahan v. New York City Department of Correction, 214 F.3d 275, 289 (2d Cir. 2000) (internal citations omitted). By definition, the Jose P. class includes:

all handicapped children between the ages of five and twenty-one living in New York City who the Board has notified, pursuant to 8 NYCRR Section 200.5(d), may be handicapped and who have not been evaluated within thirty days or placed within sixty days of such notification.
(Pls.' Reply Mem. in Supp. of Mot. for Class Certification ("Pls.' Reply Mem.") at 5.) Jose P. involved three related actions that each alleged, in substance, that defendants had not promptly evaluated or placed disabled students in accordance with their statutory duties. Jose P., 557 F. Supp. at 1232-33. During the course of litigating Jose P., both the defendants and the Jose P. court characterized the action as "one to ensure prompt evaluation and placement." Id. at 1239-40. Significantly, the Jose P. court explicitly excused plaintiffs from exhausting their administrative remedies in determining that it was appropriate to exercise subject matter jurisdiction over the class action. Id. at 1236.

  Following judgment for the plaintiffs,*fn5 the parties entered into several post-judgment stipulations regarding the provision of related services, including occupational therapy. (See Declaration of Janice L. Birnbaum ("Birnbaum Decl.") and attached exhibits.) However, these stipulations focus on ensuring that students will be provided the services designated by their IEPs in a timely fashion without regard to the relief sought here — i.e., the timely provision of services guaranteed by IHO orders through New York's administrative process. (Birnbaum Decl. ¶ 32.) To be sure, the July 28, 1988 Stipulation requires the City defendants to "create a registry of related services providers to be sent to parents of handicapped children who are not receiving related services in order to facilitate the ability of the parent to obtain these services for his or her child at Board expense." (Id., Ex. C ¶ 30(h).) Yet nothing in this stipulation indicates that it extends beyond the individual placement process or, more importantly, provides the exclusive remedies regarding any deficiencies in the appellate process by which such placements are to be contested. See Louis M., 113 F.R.D. at 138 (certifying class of disabled children challenging the adequacy of New York's appellate process by which they could contest their removal from the public school system and construing Jose P. to be limited to the individual placement process). Indeed, informational guides and materials sent by defendants informing parents of their rights clearly indicate that, notwithstanding any relief provided by Jose P., "parents have the right to pursue impartial hearings and seek relief without limitation." (Pls.' Reply Mem. at 6; Birnbaum Decl., Ex. A ¶ 22; Declaration of Elisa Hyman ("Hyman Decl."), Ex E.) Accordingly, the Court concludes that SS's claims on behalf of AR are not barred by res judicata. Based on the foregoing, the Court finds that each of the named plaintiffs*fn6 is an adequate class representative in seeking system-wide relief regarding the timely enforcement of their IHO orders. Since defendants have not contested the adequacy of plaintiffs' counsel — Advocates for Children of New York, Inc. ("Advocates for Children") and Milbank, Tweed, Hadley and McCloy LLP ("Milbank"). The Court concludes that plaintiffs have satisfied the adequacy component of Rule 23(a)(4).

  B. Rule 23(b).

  Having met the requirements of Rule 23(a), plaintiffs seek to maintain the class under Rule 23(b)(2). Defendants do not contest the applicability of Rule 23(b)(2) which provides that class actions are appropriate where:

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b)(2). In this instance, plaintiffs are challenging defendants' alleged systematic failure to enforce IHO orders in a timely fashion in providing free appropriate public education to class members. The attendant remedy, therefore, is injunctive relief, such that these claims fall within the scope of Rule 23(b)(2). Andre H., 104 F.R.D. at 612; Louis M., 113 F.3d at 137-38; Marisol A., 126 F.3d at 378. C. Scope of the Class
  Defendants nevertheless contend that plaintiffs' proposed class definition is overly broad and vague. (Defs.' Opp. Mem. at 10-12.) Specifically, defendants argue that the class should be limited to exclude claims by plaintiffs whose IHO orders were not implemented due to their own inaction or who were otherwise not injured by lack of implementation. (Id.) To a certain extent, this argument is a reiteration of defendants' motion to dismiss for lack of standing. As noted above, a failure to timely implement IHO orders may itself establish injury justifying injunctive relief. Blackman, 277 F.Supp.2d at 80. To the extent that defendants are simply arguing that they cannot be liable to class members for a parent's own inaction, this bespeaks the obvious. Moreover, plaintiffs' proposed class definition does not cast so broad a net as to include any such claim. By its terms, the class only includes those who may be denied "timely implementation." The Court is satisfied that this unambiguously refers only to failure by the Department of Education to undertake its obligations to implement IHOs.

  Defendants also seek to exclude from the class all persons who are also members of the class certified in Jose P. See Def. Opp. Mem. at 11. Certainly, at the most abstract level, the classes in Jose P. and LV are similar to the extent that each seeks to ensure the timely provision of free appropriate public education to disabled students. However, both the IDEA and New York's statutory regime make clear that disabled children are entitled to a multi-tiered system of evaluation, placement and review in protecting their rights to free appropriate public education. Indeed, Congress saw fit to require states to provide expansive due process mechanisms allowing parents to contest inadequate IEPs in an adversarial setting. See Murphy, 297 F.3d at 197. To force plaintiffs to rely solely on remedies fashioned with an eye towards improving the initial placement process would be tantamount to eroding the due process mechanisms afforded to parents in the appellate process. That certain plaintiffs may be entitled to the timely implementation of their IEPs under Jose P. does not mean, ipso facto, that they are precluded from demanding the timely implementation of their IHO orders. In light of the prior decisions and stipulations in Jose P., the Court therefore concludes that the "thrust" of the two actions are quite distinct from each other, in that Jose P. addresses the initial placement process while this case addresses the first tier of administrative review. Louis M., 113 F.R.D. at 138; see also Evans, 238 F. Supp. at 218 (certifying class where plaintiffs sought to enjoin the defendant district's policy of authorizing nonsurgical procedures on them without medical consent despite prior certified class which sought to shut down a particular mental institution and effect broad reform in the district's care of the mentally retarded).


  The Court grants plaintiffs' renewed motion [60] for class certification pursuant to Rule 23(a) and Rule 23(b)(2) and hereby certifies the class as follows:

  all persons (1) who have obtained, or will in the future obtain, for the benefit of a child with disability, a favorable order by an IHO against, or stipulation of settlement placed on the record at an impartial due process hearing with, the New York City Department of Education, or who are children with disabilities who are the beneficiaries of such order or stipulation of settlement, and (2) who fail to obtain, or are at risk of failing to obtain, full and timely implementation of such order or settlement. The Court further appoints Advocates for Children and Milbank as class counsel pursuant to Rule 23(g)(1)(A).



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