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E. H. v. School District of Philadelphia

December 21, 2009


The opinion of the court was delivered by: Goldberg, J.


Before the Court is Plaintiffs' Motion for Leave to Amend their Complaint, which seeks to add two additional defendants, Assessment Treatment Alternatives ("ATA") and ATA's employee, Ifeaniyui Azubike. Plaintiffs' motion requests permission to bring numerous causes of action pled in the original Complaint against ATA and Azubike and to add a negligence claim against ATA, Azubike and existing Defendant, Wilson Ayerro.Because we find that the claims against ATA and Azubike are time barred and do not meet the relation back requirements pursuant to Fed. R. Civ. P. 15(c), Plaintiffs' motion will be denied. Plaintiffs' motion to add a negligence claim against Ayerro is, however, granted.


This case involves a law suit brought by Plaintiffs E.H., a minor, and his mother, against the School District of Philadelphia, Karen White, a special education teacher employed by the school district, and Wilson Ayerro, a therapeutic support staff worker (collectively "Defendants"). E.H. was six (6) years old at the time of the alleged incident and has been diagnosed with Down Syndrome, autism, and significant developmental delays.

The Complaint stems from an event occurring at E.H.'s school on June 1, 2006. As a part of his Individualized Education Program, E.H. was provided with a therapeutic staff support worker throughout the day. Plaintiffs have alleged that his support worker, Ayerro, who was supervised by White, struck E.H., causing his head to slam into the table at which he was sitting. Plaintiffs also claim that Ayerro forcefully smacked E.H. in the back of the head later that same day. E.H.'s mother reported the incident to the police and a police report was filed on June 13, 2006 with the Special Victims Unit of the Philadelphia Police Department. (Compl., ¶¶ 10-34.)

This action was originally brought pursuant to 42 U.S.C. §1983; §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794; and the Americans with Disabilities Act, 42 U.S.C §12131. Plaintiffs have also pled certain state law claims. In its Answer filed on July 21, 2008, the school district denied that Ayerro was its employee, or that any school district employee supervised Ayerro. (Def. SDP's Answer, ¶ 9 .) Defendant White's Answer, filed on September 26, 2009, also denied that Ayerro was an employee of the school district. (Def. White's Answer, ¶ 9.)*fn1

On January 20, 2009, February 2, 2009 and February 18, 2009, Plaintiff requested documents from the school district regarding the identity of Ayerro's employer. On February 20, 2009, Plaintiffs received documentation indicating that Ayerro's employer was ATA, a non-profit, forensic mental health clinic that specializes in the assessment and treatment formulation for children with severe emotional and behavioral problems. (Mot. to Amend, ¶ 16; Assessment & Treatment Alternatives, Plaintiffs claim to have subpoenaed employment records from ATA without response. (Mot. to Amend, ¶ 16.)

Defendant White was deposed, after several delays, on April 13, 2009, at which point Plaintiffs also learned the identity and role of Ifeaniyui Azubike, an ATA behavior specialist assigned by ATA to supervise Ayerro onsite. (Mot. to Amend, ¶¶ 20-22.)

On April 24, 2009, Plaintiffs filed the motion at issue, seeking leave to include ATA and Azubike as Defendants, raising a number of claims pled in the original Complaint. This motion also seeks to include a negligence count against ATA, Azubike and existing Defendant, Ayerro. Defendants oppose the motion claiming that the statute of limitations has run. They argue that because the claim does not satisfy the relation back requirements under Fed. R. Civ. P. 15(c), amendment is futile and the motion should be denied. Defendants also assert that the motion should be denied because Plaintiffs unduly delayed in filing and because amendment would be prejudicial.


Pursuant to Fed. R. Civ. P. 15(a)(2), a party is entitled to amend its complaint after the filing of responsive pleadings "only with the opposing party's written consent or the court's leave" and a court is to "freely give leave when justice so requires." The Third Circuit has taken a liberal approach to granting leave, noting that leave should be granted freely to ensure that a particular claim is decided on "the merits rather than on technicalities."Dole v. Arco Chem. Co., 921 F.2d 484, 486- 87 (3d Cir. 1990).

While the standard is a liberal one, a court is not required to grant leave to amend in every instance where it is sought. A district court has discretion in granting or denying the opportunity to amend the pleadings. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). A court may deny a motion for leave to amend if a plaintiff's delay in seeking amendment is undue, motivated by bad faith, prejudicial to the opposing party, or where amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). The party seeking leave to amend "has the burden of showing that justice requires the amendment." Katzenmoyer v. City of Reading, 158 F.Supp.2d 491, 497 (E.D.Pa. 2001).

Here, it is undisputed that the statute of limitations has run on the claims raised in the amended complaint. Generally, when a party seeks leave to amend a complaint to add a new claim or party after the statute of limitations has run, the new claim or party must "relate back" to the filing date of the original complaint. Estate of Tony Grier v. Univ. of Penn. Health Sys., 2009 WL 1652168 at * 2 (E.D.Pa. June 11, 2009); Fed. R. Civ. P. 15(c).

Where the statute of limitations is implicated and a plaintiff seeks to add an additional defendant, each of the three requirements under Rule 15(c)(1)(C) must be satisfied. Estate of Tony Grier, 2009 WL 1652168 at * 3 (citing Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175-75 (3d Cir. 1977)). These requirements are: (1) the claim in the amended complaint must have arisen out of the same occurrence as set forth in the original complaint; (2) within the period provided by Rule 4(m), the party to be added must have received notice of the action so as not to be prejudiced; and (3) the party to be brought in ...

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