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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 ...

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