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P.V., A Minor, By and Through His Parents, Pedro Valentin and Yolanda Cruz, Individually v. the School District of Philadelphia

October 31, 2011

P.V., A MINOR, BY AND THROUGH HIS PARENTS, PEDRO VALENTIN AND YOLANDA CRUZ, INDIVIDUALLY,
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL., PLAINTIFFS,
v.
THE SCHOOL DISTRICT OF PHILADELPHIA, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

I. Factual Background and Procedural History

This lawsuit concerns the School District of Philadelphia's (the "District") treatment of, and policies governing, school children with autism. The four (4) named plaintiffs in the purported class action Complaint, P.V., M.M., J.V., and R.S., are all autistic second- or third-grade students at Richmond Elementary School, a Kindergarten through Grade 5 ("K-5") school in the District. (Doc. No. 1 ¶¶ 15-18). Plaintiffs contend that the District transfers students with autism automatically from one school to another, simply because they complete a certain grade, more frequently than the District transfers non-disabled students who therefore, unlike autistic children, enjoy continued, uninterrupted attendance in K-5 schools or K-8 schools. (Doc. No. 1 ¶ 1). This is particularly problematic because children with autism have difficulty transitioning from one environment to another. (Doc. No. 1 ¶ 1). Plaintiffs' Complaint alleges that the District transfers autistic students with little or no parental notice or involvement, and without the required consideration of the children's individualized circumstances. (Doc. No. 1 ¶ 2). Plaintiffs style these transfers as an "Automatic Autism Transfer Policy" (the "Policy"), a characterization that Defendants vigorously dispute. (Doc. No. 1 ¶ 1; Doc. No. 12, at 10 (arguing that the alleged "Automatic Autism Transfer Policy" does not exist)).

According to Plaintiffs, the District's Policy violates the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), Chapter 14 of the Pennsylvania Code, Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act ("ADA"). Plaintiffs seek relief on their own behalf, as well as class relief on behalf of all other students within the District who are or will be subject to the Policy. (Doc. No. 1 ¶ 3). The plights of the four (4) named plaintiffs are said to illustrate the effect of the District's Policy on children with autism.

P.V., a third grader with autism, attends Richmond Elementary School. At the end of the 2009-10 school year, the District announced to P.V.'s parents that P.V. would not be allowed to remain at Richmond to complete third grade during the 2010-11 school year. (Doc. No. 1 ¶ 15). P.V.'s family filed for an administrative hearing, requested "Stay Put" protection, and eventually secured a hearing officer's order which resulted in P.V.'s being allowed to attend Richmond for third grade. (Id.) On June 16, 2011, the District proposed transferring P.V. to McKinley Elementary School for fourth grade. In contrast, the District does not require non-disabled rising fourth graders to transfer from Richmond Elementary or other K-5 schools in the District. (Id.)

Like P.V., M.M. is a third grader with autism who attends Richmond Elementary School. (Doc. No. 1 ¶ 16). In late spring of 2010, the District advised M.M.'s mother via his home-school notebook that he would not be allowed to remain at Richmond for his third grade year during the 2010-11 school year. (Id.) In early September, 2010, M.M.'s family filed for an administrative hearing and secured a hearing officer's "Stay Put" order which resulted in M.M.'s being allowed to stay at Richmond to complete third grade. (Id.) At the time Plaintiffs filed their Complaint, M.M.'s mother did not know if M.M. would be allowed to return to Richmond for his fourth grade year. (Id.)

Plaintiff J.V. is a second grader with autism who attends Richmond Elementary School. (Doc. No. 1 ¶ 17). As of the filing of the Complaint in this matter, J.V.'s parents had received no Notice of Recommended Educational Placement / Prior Written Notice ("NOREP/PWN") that J.V. will be allowed to return to Richmond for the 2011-12 school year, absent their acceptance of a "settlement" offer made by the District in connection with a due process complaint that is currently pending. (Id.)

Finally, Plaintiff R.S., like Plaintiff J.V., is a second grader with autism who attends Richmond Elementary School. (Doc. No. 1 ¶ 18). Similar to J.V., as of the filing of the Complaint, R.S.'s parents had received no Notice of Recommended Educational Placement / Prior Written Notice ("NOREP/PWN") that R.S. will be allowed to return to Richmond, absent their acceptance of a "settlement" offer made by the District in connection with a due process complaint that is currently pending.*fn1 (Id.)

These four (4) plaintiffs brought this suit against the School District of Philadelphia; the School Reform Commission; Arlene Ackerman, Superintendent of the School District of Philadelphia, in her official capacity; and Linda Williams, Interim Deputy Chief of Special Education for the School District of Philadelphia, in her official capacity, seeking various forms of relief from the allegedly illegal "Automatic Autism Transfer Policy." (Doc. No. 1, at 21-23). Most broadly, Plaintiffs ask the Court to declare that the Policy violates IDEA, Section 504, and the ADA, and may no longer be used. (Doc. No. 1, at 21). Plaintiffs emphasize that they cannot obtain this structural relief through an administrative hearing, so judicial intervention is necessary. Specifically, Brian Jason Ford, the hearing officer presiding over P.V.'s and M.M.'s administrative hearings, concluded that "the District violated the Parent's right to participation by reassigning the Student [P.V. and M.M.] to a different school building without sending IDEA-compliant prior written notice." (Doc. No. 1-4, at 15; Doc. No. 1-5, at 15). However, Ford noted that he "lacks authority to order wholesale changes to the District's procedures," so he merely encouraged the District "to alter its procedures on a broader scope, if only to avoid a plethora of identical claims from similarly situated students." (Doc. No. 1-4, at 15; Doc. No. 1-5, at 15).

Also on a broad scale, Plaintiffs request that we order the District to (1) create, maintain, and publicly disseminate a list of all the schools within the District that house any autistic support classroom; (2) develop a new policy, with parental involvement, to provide continuity of programming for students with autism; and (3) conduct Individualized Education Program ("IEP") meetings, again with parental involvement, before reassigning a child with autism to another school (Doc. No. 1, at 22). More narrowly, Plaintiffs additionally request that we order the District to permit them to remain at Richmond Elementary unless otherwise agreed by the Plaintiffs' parents and the District. (Doc. No. 1, at 21).

Procedurally, this matter remains in its infancy. Defendants have not yet filed an answer to Plaintiffs' Complaint, we have not issued a scheduling order, discovery has not yet begun, and neither party has moved for class certification under Rule 23.*fn2 At this early stage of the proceedings, Defendants have moved to strike Plaintiffs' class action allegations (Doc. No. 12), and to dismiss Plaintiffs' claims against all defendants pursuant to Federal Rule of Civil Procedure 12(b)(1) and the claims against the individual, official capacity defendants pursuant to Rule 12(b)(6). (Doc. No. 11). Plaintiffs oppose the motions, which are now ripe for disposition. For the reasons discussed below, we deny Defendants' motion to strike and motion to dismiss.

II. Legal Analysis

A. Motion to Strike Class Action Allegations According to Federal Rule of Civil Procedure 23(d)(1)(D), formerly Rule 23(d)(4), a court may "require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly" in conducting a class action. One leading treatise describes the close interaction of this provision with the class certification decision:

Subdivision (d)(4) [now (d)(1)(D)] is procedurally inseparable from subdivision (c)(1)(A), which provides that "when a person sues or is sued as a representative of a class, the court must-at an early practicable time-determine by order whether to certify the action as a class action." After a determination has been made that a class action is not proper under Rule 23(c)(1), courts typically issue an order requiring that the pleadings be amended to reflect that decision, although this often is done without reference to Rule 23(d)(4) [now (d)(1)(D)]. 7B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice & Procedure § 1795 (3d ed. 2011) (emphasis added). This description of Rule 23(d)(1)(D) suggests that, in general, a court should wait to resolve a motion to strike class allegations until someone moves for class certification. Another well-respected treatise agrees, noting that, while a "motion to strike class action allegations may properly be filed before plaintiffs have filed a motion for class certification," "[i]f the viability of a class depends on factual matters that must be developed through discovery, a motion to strike will be denied pending the full-blown certification motion." 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3:4 (7th ed. 2010).

While the Third Circuit Court of Appeals has not yet directly addressed this issue, district courts in the Third Circuit typically deny as premature motions to strike class action allegations filed before the plaintiff moves for class certification. For example, in Korman v. Walking Co., 503 F. Supp. 2d 755 (E.D. Pa. 2007), the Eastern District of Pennsylvania observed that a "motion to strike class allegations under Rule 23(d)(4) seems, for all practical purposes, identical to an opposition to a motion for class certification." Id. at 762. The Korman court denied the defendant's motion to strike class allegations as premature, concluding that there was "no good reason for this case not to proceed down the normal path, i.e., with the Court setting a deadline for Plaintiff to file a motion for class certification and the parties litigating the propriety of maintaining the action as a class under the traditional Rule 23(c) rubric." Id. at 763.

Similarly, in NBL Flooring, Inc. v. Trumball Ins. Co., Civil Action No. 10--4398, 2011 WL 4481918 (E.D. Pa. Sept. 27, 2011), the Eastern District of Pennsylvania denied the defendants' motion to strike class allegations "because Defendants have not established that this case is among 'the rare few where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.'" Id., at *1-2 (quoting Landsman & Funk PC, 640 F.3d at 93 n.30). In analyzing the issue, the NBL Flooring court cautioned that "[a] motion to strike should not be granted when it is in the nature of ...


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