The opinion of the court was delivered by: McLaughlin, J.
The United States of America moves to amend its complaint against Nobel Learning Communities, Inc. ("NLC"), a private, for-profit corporation that operates a private school network throughout the country. The United States claims that NLC is engaged in discriminatory practices in violation of the Americans with Disabilities Act ("Title III or "ADA"). The government filed its original complaint on April 29, 2009, and on November 2, 2009, the Court granted in part and denied in part NLC's motion to dismiss. The government now seeks to replead certain claims dismissed by the Court's memorandum and order. For the reasons stated below, the Court will grant in part and deny in part the government's motion to amend.
The government brought suit against NLC to enforce Title III of the ADA, alleging that NLC discriminates against children with disabilities and their families in the operation of NLC's daycare, preschool, elementary, and secondary school programs. The complaint stated that twelve students with disabilities were either disenrolled or denied enrollment from an NLC school between 2005 and 2008. The twelve students were associated with seven NLC schools located in six states across the nation. Eleven of the twelve students were under age six. Compl. ¶¶ 5-17.
Based on the disenrollments and denials of enrollment alleged in the complaint, the government asserted that all NLC schools engaged in a pattern or practice of discrimination, used standards or criteria of administration that have the effect of discriminating, imposed or applied eligibility criteria that screen out or tend to screen out individuals with disabilities, and failed to make reasonable modifications in policies, practices, and procedures to avoid disability discrimination. The government further alleged that parents, guardians, and siblings were discriminated against because of their association with a child with a disability, and that other children and families may be discriminated against if NLC continues its practices. Compl. ¶¶ 1, 6-17, 18-21.
NLC moved to dismiss all claims in the complaint except for any claim of individual discrimination against the twelve identified children. On October 6, 2009, the Court held oral argument on the defendant's motion. In a memorandum and order, the Court granted in part and denied in part the defendant's motion to dismiss.
The Court held that allegations of discrimination, including a pattern or practice of discrimination, use of standards and eligibility criteria, and a lack of reasonable modifications, could go forward solely with respect to preschool children because eleven of the twelve children identified in the complaint were preschool students at the time of the alleged discrimination. The Court dismissed any allegations of discrimination to the extent that they related to NLC's daycare, elementary, and secondary settings. The Court also dismissed all allegations of associational discrimination because the government premised its allegations on indirect consequences that families suffered due to their association with a disabled child. The Court held that Title III's prohibition of associational discrimination does not encompass indirect consequences.
The Court told the parties to report to the Court with how they would like to proceed in this matter. In view of the parties' submissions, the Court issued an order on December 10, 2009, setting the parameters and timetable for discovery, which is to conclude on February 15, 2011.
On December 14, 2009, the government moved to amend its complaint to address pleading deficiencies that the Court identified in its memorandum. The government attached a redacted version of the proposed amended complaint as Exhibit A to its motion ("PAC").*fn1 The PAC contains several new allegations. First, it includes allegations that NLC discriminated against a thirteenth child with a disability, A.O.R., and his family. The PAC alleges that A.O.R.'s parents enrolled A.O.R. in a daycare program at an NLC school. Months after A.O.R. was diagnosed with autism, NLC disenrolled A.O.R., and A.O.R.'s parents found a replacement daycare program fifteen miles away. PAC ¶ 27.
Second, the PAC states that NLC's daycare programs are not distinct from its preschool programs, and discrimination occurs at both the preschool and daycare level. The new factual allegations concerning the thirteen children who were disenrolled or denied enrollment from NLC schools note that the children are daycare or daycare-preschool students. Id. ¶¶ 8-9, 19-32.
Third, the PAC includes new factual allegations about the parents of the thirteen children with disabilities who were disenrolled or denied enrollment from an NLC school. It asserts that these parents sought to contract with NLC for daycare services that NLC marketed to them for their own benefit, and that the parents were denied the ability to contract for these services because of the parents' association with their disabled children. It alleges discrimination against parents or guardians of children with disabilities who seek to purchase NLC daycare programs. Id. ¶¶ 8, 11, 15-16, 19-32, 34-38.
Fourth, the proposed amended complaint includes new factual allegations about siblings of children with disabilities who were disenrolled or denied enrollment from an NLC school. Specifically, it alleges that the siblings of A.M., T.C., A.R., and M.E. were enrolled in NLC schools, and that these non-disabled students were effectively disenrolled when NLC disenrolled A.M., T.C., A.R., and M.E. Three of the siblings, those of A.M., T.C., and A.R., attended an NLC daycare-preschool, and the sister of M.E. attended an NLC elementary school. The complaint states that NLC knows or should know that parents want their children to attend the same facility and that disenrolling one child effectively disenrolls that child's sibling who attends the same school. It alleges discrimination on behalf of siblings who were effectively disenrolled from daycare-preschool settings and on behalf of M.E. at the elementary school setting. It does not seek to reallege associational discrimination by NLC in the elementary school context outside of the alleged discrimination experienced by M.E.'s sister. Id. ¶¶ 20, 22, 24, 32, 39-44.
The defendant opposes the government's motion to amend and argues that the PAC would be futile. It asserts that the addition of A.O.R. does not alter the focus of the case because the allegations concerning A.O.R. are similar to those for the other identified students. NLC also argues that the addition of daycare in the PAC is an attempt to replead associational ...