United States District Court, W.D. New York
J.H., individually and on behalf of her son, D.W., a minor, and Plaintiff,
WILLIAMSVILLE CENTRAL SCHOOL DISTRICT, Defendant. J.H., individually and on behalf of her son, D.W., a minor, Plaintiff,
WILLIAMSVILLE CENTRAL SCHOOL DISTRICT, Defendant.
GOLDSTEIN, ACKERHALT & PLETCHER, LLP, BRUCE A. GOLDSTEIN, of Counsel Buffalo, New York, Attorneys for Plaintiffs.
HODGSON RUSS LLP, CATHERINE G. COOLEY, ANDREW J. FREEDMAN, of Counsel Buffalo, New York, Attorneys for Defendant.
DECISION and ORDER
LESLIE G. FOSCHIO, Magistrate Judge.
In these actions Plaintiffs challenge Defendant's refusal to provide for transportation for D.W., Plaintiff JH's severely disabled child, between a special education center, located within Defendant's geographic boundaries, and a center-based after-school program located outside Defendant's district boundaries.
Defendant's refusal was based on the Defendant's school transportation policy which limits Defendant's after-school transportation to programs located within Defendant's boundaries. In Plaintiff's first action, 14-CV-348S(F) ("First Action"), filed May 8, 2014, Plaintiff asserts Defendant's refusal to provide such transportation as well as Defendant's refusal to provide a 1:1 aide that would enable Plaintiff D.W. to be enrolled in an after-school program located within Defendant's boundaries, Complaint ¶¶ 17, 22, 49, discriminates against Plaintiffs in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-34, deprives Plaintiffs of their rights to equal access to benefits and services - transportation from D.W.'s special education program to an after-school program - provided by Defendant, and discriminates against Plaintiffs based on D.W.'s disabilities in connection with Defendant's education program activities receiving federal financial assistance in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Plaintiffs' ADA and § 504 action"). Plaintiffs also allege Defendant's § 504 grievance procedure with respect to selection of an independent hearing officer violates impartiality requirements applicable under § 504 ("Plaintiff's due process claim").
In Plaintiffs' second action, filed August 20, 2014, 14-CV-679S(F) ("Second Action"), Plaintiffs assert a claim under the Individual with Disabilities Education Act ("IDEA"), 42 U.S.C. § 1400 et seq., alleging that Defendant's refusal to provide D.W. with transportation to D.W.'s center-based after-school program located outside Defendant's district boundaries, in which D.W. is presently enrolled, or to provide a 1:1 aide that would enable D.W. to enroll in the only in-district center-based after-school program, suitable for D.W., located within Defendant's boundaries in which D.W. could enroll but for the lack of sufficient professional support, i.e., a 1:1 aide, violates Plaintiffs' rights to a free and appropriate public education ("FAPE") in violation of the IDEA.
By motions filed January 6, 2015 (Doc. Nos. 23-First Action, and 15 Second Action) ("Plaintiffs' motions"), Plaintiffs, pursuant to Fed.R.Civ.P. 42(a) ("Rule 42(a)"), which permits consolidation for trial for cases which "involve common questions of fact or law, " request consolidation of both actions for purposes of discovery and trial. According to Plaintiffs, but for the obligation to file timely Plaintiffs' ADA and § 504 claims upon completion of Plaintiffs' § 504 grievance proceedings, prerequisite to Plaintiffs' IDEA action, an assertion not contradicted by Defendant, at which time Plaintiffs' IDEA grievance proceedings were then incomplete, all of Plaintiffs' claims would have been filed in a single action making Plaintiffs' motions unnecessary.
In support, Plaintiffs argue that the common facts and related legal issues arising on Plaintiffs' ADA and § 504 claims in the First Action and Plaintiffs' IDEA claim in the Second Action, warrant consolidation to avoid unnecessary duplication of discovery and presentation of evidence at separate trials thereby promoting convenience of witnesses and judicial economy. Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Motion To Consolidate (Doc. No. 15-2) ("Plaintiffs' Memorandum") at 3. Plaintiffs also request that the Scheduling Orders previously entered, Doc. Nos. 22 and 14, respectively, be amended to accommodate the diversion of counsels' attention to Plaintiffs' motions. Id.
Defendant does not oppose Plaintiffs' motion insofar as it seeks to consolidate both actions for the purposes of discovery; however, Defendant opposes Plaintiffs' motions seeking consolidation for both discovery and trial contending that as Plaintiffs' ADA and § 504 and due process claims in the First Action and Plaintiffs' IDEA claim in the Second Action are legally distinct, Plaintiffs have failed to demonstrate the necessary degree of commonality between the actions, a prerequisite for consolidation pursuant to Rule 42(a). Defendant's Memorandum of Law, Doc. No. 25, at 1-2. Specifically, Defendant contends the standards for liability applicable to Plaintiffs' ADA, § 504, and due process claims are significantly different from Plaintiffs' IDEA claim involving distinctly separate statutes, grievance procedures, and administrative proceedings, including hearings and the dissimilar decisions of different hearing officers. For example, in the First Action asserting ADA and § 504 claims, the hearing officer ruled in Defendant's favor; in the Second Action pursuant to the IDEA, the hearing officer granted Plaintiffs limited relief of reimbursement for Plaintiff J.H.'s past transportation expenses incurred in transporting D.W. from D.W.'s special education center, located outside the district, to the after-school activity center, also outside the district, and remanded the matter to Defendant's special education committee ("Defendant's CSE") for further consideration of whether Plaintiffs' request for a center-based after-school program was essential to D.W.'s IEP (independent education plan) required by IDEA. 14-CV-679S(F) Compl. ¶¶ 59-63. Thereafter, Defendant's CSE determined that D.W. did not require such after-school services, including a 1:1 aide to assist D.W. while attending a center-based after-school program, to provide D.W. with a FAPE (free and appropriate public education) required by IDEA. Id. ¶ 66. At oral argument, conducted March 23, 2015 (Doc. Nos. 29, 21, respectively), Defendant also contended, without explanation, that consideration of the merits of Plaintiffs' claims in a consolidated trial would prejudice Defendant's ability to defend on the merits. As noted, Defendant does not object to consolidation of the two cases limited to discovery reserving questions of admissibility. Defendant's Memorandum of Law at 4-5.
Following oral argument, the court requested the parties submit supplemental briefing specifying the common questions of fact or law in the respective cases. Plaintiffs' Supplemental Memorandum was filed April 9, 2015 (Doc. Nos. 31 First Action, 23 Second Action) ("Plaintiffs' Supplemental Memorandum"); Defendant's Supplemental Memorandum was filed April 13, 2015 (Doc. Nos. 32 First Action, 24 Second Action) ("Defendant's Supplemental Memorandum"). Further oral argument was deemed unnecessary.
In deciding questions of consolidation pursuant to Rule 42(a), courts have broad discretion to consider judicial economy, the risk of prejudice and inconsistent verdicts, the potential for confusion by the trier of fact, the burden on the parties and witnesses, and the time and expense entailed by separate as opposed to a single proceeding. Malcolm v. National Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993) (citing caselaw). However, courts must always be mindful not to sacrifice fairness at the altar of efficiency. Id.
Here, Plaintiffs' ADA and § 504 claims turn primarily on whether Defendant discriminated against D.W. based on his disabilities in refusing a reasonable accommodation to its transportation policy's restriction on providing transportation to an out-of-district after-school program, or in failing to provide a 1:1 aide to enable D.W.'s enrollment in such a program located within the district. Plaintiffs' due process claim, assuming it is cognizable under either the ADA or Rehabilitation Act § 504 (an issue not directly addressed by the parties on Plaintiffs' motion) as Plaintiff asserts, turns on consideration of the impartiality of Defendant's selection procedure for independent hearing officers, allegedly required by § 504, to hear Plaintiffs' ADA and § 504 claims.
As to Plaintiffs' IDEA claim, the court will review de novo, with due respect to Defendant's determination, see Scarsdale Union Free School District v. R.C., 2013 WL 563377, at *7 (S.D.N.Y. Feb. 4, 2013) ("The standard of review of IDEA cases has been characterized as modified de novo. '" (quoting M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *6 (N.D.N.Y. Dec. 6, 2011))), whether an after-school program suitable for D.W. is essential to D.W.'s entitlement to a FAPE and, if so, whether Defendant's refusal to provide transportation for D.W. to participate in such a program located outside the district in which D.W. is presently enrolled, or an 1:1 aide to enable D.W.'s enrollment in a similar program located within the district, violates Plaintiffs' rights to a FAPE under the IDEA. Although a jury trial is available in a § 504 case, see Hernandez v. City of Hartford, 959 F.Supp. 125, 134 (D.Conn. 1997), and not in an IDEA case, see Loren F. v. Atlanta Independent School System, 349 F.3d 1309, 1313 (11th Cir. 2003), neither side has requested one. Thus, there is no potential for jury confusion if consolidation for both discovery and trial is permitted. With respect to witness and judicial convenience, Defendant does not contend that consolidation would not promote such convenience. In short, other than Defendant's contention that there is insufficient commonality in the facts or law relevant to the two cases and Defendant's assertion at oral argument that in a consolidated trial Defendant's ability to defend against each of Plaintiffs' claims would be unfairly impaired, Defendant does not point to other relevant factors that would argue against consolidation.
As to Defendant's contention that the underlying facts relevant to each case are insufficiently similar to support Rule 42(a) consolidation, such contention overlooks that a complete identicality between the cases is not a prerequisite for consolidation under Rule 42(a). Rather, Rule 42(a) requires only that the actions to be consolidated "involve a common question of law or fact" for consolidation to be available. Fed.R.Civ.P. 42(a) (underlining added); see Saudi Basic Industries Corporation v. Exxonmobil Corporation, 194 F.Supp.2d 378, 415 (D.N.J. 2002) (citing 8 Moore's Federal Practice, § 42.10 at 42-8 (Matthew Bender, 3d. ed. 1997) ("Moore")). "Moreover, [c]ommon questions of law and fact do not have to predominate...." Id. (quoting Moore, supra, at § 42.10). Here, the parties do not dispute that key facts, such as Plaintiff D.W.'s disability, Defendant's transportation policy denying transportation to out-of-district after school activities, J.H.'s expenses and inconvenience in transporting D.W. to a suitable after-school program, Defendant's refusal to make an exception for Plaintiffs, Defendant's CSE decision that D.W. does not require after-school activities with or without a 1:1 aide which would permit D.W. to enroll in an in-district ...