Doe v. Zucker

520 F.Supp.3d 217

Jane DOE on behalf of herself and her minor child; Jane Boe, Sr. on behalf of herself and her minor child; John Coe, Sr. and Jane Coe, Sr. on behalf of themselves and their minor children; John Foe, Sr. on behalf of himself and his minor child; Jane Goe, Sr. on behalf of herself and her minor child; Jane Loe on behalf of herself and her medically fragile child; Jane Joe on behalf of herself and her medically fragile child; Children's Health Defense, and all others similarly situated, Plaintiffs,

v.Howard ZUCKER, in his official capacity as Commissioner of Health for the State of New York; Elizabeth Rausch-Phung, M.D., in her official capacity as Director of the Bureau of Immunizations at the New York State Department of Health; the New York State Department of Health ; Three Village Central School District; Cheryl Pedisich, acting in her official capacity as Superintendent, Three Village Central School District; Corinne Keane, acting in her official capacity as Principal Paul J. Gelinas Jr. High School, Three Village Central School District; Lansing Central School District; Chris Pettograsso, acting in her official capacity as Superintendent, Lansing Central School District; Christine Rebera, acting in her official capacity as Principal, Lansing Middle School, Lansing Central School District; Lorri Whiteman, acting in her official capacity as Principal, Lansing Elementary School, Lansing Central School District; Penfield Central School District; Dr. Thomas Putnam, acting in his official capacity as Superintendent, Penfield Central School District; South Huntington School District; Dr. David P. Bennardo, acting in his official capacity as Superintendent, South Huntington School District ; Br. David Migliorino, acting in his official capacity as Principal, St. Anthony's High School, South Huntington School District; Ithaca City School District; Dr. Luvelle Brown, acting in his official capacity as Superintendent, Ithaca City School District; Susan Eschbach, acting in her official capacity as Principal, Beverly J. Martin Elementary School, Ithaca City School District; Coxsackie-Athens School District; Randall Squier, Superintendent, acting in his official capacity as Superintendent, Coxsackie-Athens School District ; Freya Mercer, acting in her official capacity as Principal, Coxsackie Athens High School, Coxsackie-Athens School District; Albany City School District; Kaweeda G. Adams, acting in her official capacity as Superintendent, Albany City School District; Michael Paolino, acting in his official capacity as Principal, William S. Hackett Middle School, Albany City School District; and all others similarly situated, Defendants.¹

1:20-cv-840 (BKS/CFH)

United States District Court, N.D. New York.

Signed February 17, 2021

For Plaintiffs: Sujata S. Gibson, The Gibson Law Firm, PLLC, 407 N. Cayuga Street, Suite 201, Ithaca, NY 14850, Michael Sussman, Sussman & Associates, 1 Railroad Ave, Suite 3, P.O. Box 1005, Goshen, NY 10924.

For Defendants New York State Department of Health, Zucker, and Rausch-Phung: Letitia James, Attorney General of the State of New York, Michael G. McCartin, Assistant Attorney General, Andrew W. Koster, Assistant Attorney General, The Capitol, Albany, New York 12224.

For Defendants Albany City School District, Adams, Paolino; Three Village Central School District, Pedisich, Keane; South Huntington Central School District, Bennardo; and Ithaca City School District, Brown and Eschbach: Gregg T. Johnson, Loraine C. Jelinek, Johnson & Laws, LLC, 646 Plank Road, Suite 205, Clifton Park, NY 12065, Adam I. Kleinberg, Chelsea Weisbord, Sokoloff Stern LLP, 179 Westbury Ave., Carle Place, NY 11514.

For Defendants Coxsackie-Athens School District, Squier, Mercer; Penfield Central School District, Putnam; Lansing Central School District, Pettograsso, Rebera, and Whiteman: James G. Ryan, Roxanne L. Tashjian, Cullen and Dykman LLP, 100 Quentin Roosevelt Boulevard, Garden City, NY 11530.

For Defendant Br. David Anthony Migliorino: Joseph Kim, Elaine Nancy Chou, Meishin Riccardulli, Biedermann Hoenig Semprevivo a Professional Corporation, One Grand Central Place, 60 East 42nd Street, 36th Floor, New York, NY 10165.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

Plaintiffs, seven families on behalf of their minor children who are "medically fragile" with impairments in the functioning of their immune systems, and the Children's Health Defense ("CHD"), filed this proposed class action challenging New York's allegedly burdensome and narrow medical exemptions to mandatory school immunization requirements. (Dkt. No. 1). Plaintiffs allege that Defendants, including the New York State Department of Health ("DOH"), New York Commissioner of Health Howard Zucker, the DOH Director of the Bureau of Immunizations Elizabeth Rausch-Phung, M.D., seven school districts and their administrators (collectively the "School District Defendants"), and the Principal of St. Anthony's High School Brother David Anthony Migliorino, have violated their Fourteenth Amendment substantive due process and equal protection rights, liberty interest in parenting and informed consent, and right to free public education under 42 U.S.C. § 1983, as well as § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). (Id. ). Presently before the Court are: Defendants’ motions to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ; a request by the Three Village, South Huntington, and Brother Migliorino Defendants to transfer venue to the Eastern District of New York; and Plaintiffs’ motion to amend the Complaint, (Dkt. Nos. 28, 54, 78, 91, 93).² The parties have briefed these motions fully and on January 6, 2021, the Court held oral argument. For the reasons that follow, Defendants’ motions to dismiss are granted, the motion to transfer venue is denied as moot, and Plaintiffs’ motion to amend is denied.

II. MOTION TO AMEND

With their motion to amend, (Dkt. No. 93), Plaintiffs have submitted a proposed First Amended Complaint. (Dkt. Nos. 93-1, 99-2).³ Plaintiffs assert that under Rule 15(a)(1)(B), they may file an amended pleading as to Defendant Migliorino as a matter of course because they filed their motion to amend within 21 days of his motion to dismiss. (Dkt. No. 93, at 1). Plaintiffs seek the Court's leave under Fed. R. Civ. P. 15(a)(2) to file the First Amended Complaint with respect to all other Defendants. (Id. ). Defendants oppose Plaintiffs’ motion to amend in its entirety on the ground that amendment is futile. (Dkt. Nos. 108 to 111).

Federal Rule of Civil Procedure 15(a)(1) provides that: "A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b) ... whichever is earlier." Plaintiffs filed their proposed First Amended Complaint on October 22, 2020, six days after Defendant Migliorino filed his motion to dismiss, (Dkt. No. 93 (motion to amend filed Oct. 22, 2020); Dkt. No. 91 (Defendant Migliorino's motion to dismiss filed Oct. 16, 2020)), and thus may amend as to Defendant Migliorino as a matter of course. As to the remaining Defendants, however, Plaintiffs "may amend [their] pleading only with the ... court's leave." Fed. R. Civ. P. 15(a)(2).

In general, leave to amend should be freely given "when justice so requires."

Fed. R. Civ. P. 15(a)(2). "Where plaintiffs seek to amend their complaint while a motion to dismiss is pending, a court ‘has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint.’ " Haag v. MVP Health Care , 866 F. Supp. 2d 137, 140 (N.D.N.Y. 2012) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc. , 570 F. Supp. 2d 376, 384 (D. Conn. 2008) ); see also Pettaway v. Nat'l Recovery Sols., LLC , 955 F.3d 299, 303–04 (2d Cir. 2020) (adopting the rule that "when a plaintiff properly amends her complaint after a defendant has filed a motion to dismiss that is still pending, the district court has the option of either denying the pending motion as moot or evaluating the motion in light of the facts alleged in the amended complaint," explaining that "[t]his is a sound approach that promotes judicial economy by obviating the need for multiple rounds of briefing addressing complaints that are legally insufficient").

Since Defendants have had an opportunity to respond to the proposed amendments, and argue that the amendments are futile, the Court considers the merits of the motions to dismiss in light of the proposed First Amended Complaint. If the claims in the proposed First Amended Complaint cannot survive the motions to dismiss, then Plaintiffs’ motion to amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 88 (2d Cir. 2002) ("An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).").

III. MATERIALS OUTSIDE THE COMPLAINT

Because Defendants have submitted exhibits in support of their motions to dismiss, (see generally Dkt. Nos. 28, 54, 78, 91), before setting forth the facts, the Court must determine which exhibits, if any, it may consider in deciding their motions. "Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself." Faulkner v. Beer , 463 F.3d 130, 134 (2d Cir. 2006). However, considering "materials outside the complaint is not entirely foreclosed on a 12(b)(6) motion." Id. A complaint "is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 230 (2d Cir. 2016) (quoting ...