Larach-Cohen v. Banks

1

Linda Larach-Cohen, as Parent and Natural Guardian of M.C. et al., Plaintiffs, v. David C. Banks^[1] et al., Defendants.

No. 1:19-cv-07623 (LTS) (SDA)

United States District Court, S.D. New York

October 8, 2022

TO THE HONORABLE LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

STEWART D. AARON, United States Magistrate Judge.

Plaintiffs Linda Larach-Cohen and Rolando Cohen (collectively “Plaintiffs”) filed this action, as parents of M.C., against Defendants David C. Banks,^[2] in his official capacity as Chancellor of the New York City Department of Education, New York City Department of Education (“DOE”) and New York State Education Department (“SED”) (collectively “Defendants”) asserting claims pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the “IDEA”), 42 U.S.C. § 1983 and New York Education Law §§ 4404 and 4410. (Second Am. Compl. (“SAC”), ECF No. 29, ¶¶ 38-40.)

Now before the Court is a motion by Plaintiffs, pursuant to the fee-shifting provisions of the IDEA, 20 U.S.C. § 1415(i)(3), and Rule 54(d) of the Federal Rules of Civil Procedure, for attorneys' fees and costs. (See Pls.' Mot., ECF No. 89; see also Albert Aff ECF No. 90; Pls.' Mem., ECF No. 91.)

Defendants Banks and DOE^[3] oppose the motion, asserting that (1) Plaintiffs are not entitled to attorneys' fees and costs in connection with this action because they were not prevailing parties; and (2) Plaintiffs are not entitled in this action to attorneys' fees and costs in connection with the underlying administrative proceeding, since a claim for such costs and attorneys' fees was not pled in the SAC (and noting that the SAC was filed before Plaintiffs had secured a favorable decision at the conclusion of that proceeding). (See Defs.' Opp. Mem., ECF No. 96 at 2.)

For the reasons set forth below, I respectfully recommend that Plaintiffs' motion be DENIED WITH PREJUDICE insofar as it seeks fees and costs in connection with this action and DENIED WITHOUT PREJUDICE insofar as it seeks fees and costs in connection with the underlying administrative proceeding. I further recommend that Plaintiffs' remaining pendency claims be dismissed.

BACKGROUND^[4]

M.C. is a teenager who suffers from a brain injury and is classified as a student with a disability.

I. 2017-2018 School Year

For the 2017-2018 school year, M.C. attended a nonpublic school, the International Academy of Hope (“iHOPE”). Plaintiffs had placed M.C. at iHOPE and subsequently instituted a due process hearing at which Plaintiffs claimed that DOE had failed to offer M.C. a Free Appropriate Public Education (“FAPE”) for the 2017-2018 school year. The Impartial Hearing Officer (“IHO”) issued a decision, dated March 5, 2018, finding that the district had failed to offer M.C. a FAPE, that iHOPE was an appropriate unilateral placement for M.C. and that the equitable considerations weighed in favor of an award of the costs of M.C.'s tuition and related services at iHOPE for the 2017-2018 school year. DOE did not appeal the IHO's March 5, 2018, decision.

II. 2018-2019 School Year

For the 2018-2019 school year, the school district developed an Individualized Education Program (“IEP”) for M.C. that provided for M.C.'s placement in a public school. Rather than accept that placement, or have M.C. remain at iHOPE, Plaintiffs unilaterally moved M.C. to the International Institute for the Brain (“iBRAIN”). On July 9, 2018, Plaintiffs instituted a due process hearing, alleging that DOE did not provide M.C. with a FAPE for the 2018-2019 school year and requesting, among other things, an order requiring the DOE to fund M.C.'s placement at iBRAIN during the pendency of the due process hearing. On October 3, 2018, the IHO in that case directed DOE to fund M.C.'s placement at iBRAIN as a pendency placement on the ground that iBRAIN was substantially similar to iHOPE. DOE appealed the IHO's order. On December 31, 2018, the State Review Officer (“SRO”) issued its decision on DOE's appeal. The SRO applied the substantial similarity principle in reviewing the IHO's pendency placement decision, but reversed, on factual grounds, the IHO's determination that iBRAIN was a pendency placement.

On April 30, 2019, Plaintiffs commenced an action in this Court, Case Number 19-CV-03863, requesting an order requiring DOE to fund M.C.'s placement at iBRAIN for the 2018-2019 school year. Plaintiffs argued that DOE was required by 20 U.S.C. § 1415(j) (the IDEA's so-called “stay put” provision) to fund M.C.'s tuition at iBRAIN because its educational program was “substantially similar” to the “then-current educational placement” at iHOPE, and that the SRO had erred in finding that the two programs were not substantially similar.

By Memorandum Opinion and Order in Case Number 19-CV-03863, dated March 30, 2021, Chief Judge Swain denied Plaintiffs' motion for summary judgment and granted DOE's motion for summary judgment, holding that Plaintiffs were not entitled to pendency payment for their unilateral placement of M.C. at iBRAIN for the 2018-2019 school year. Applying recent Second Circuit precedent, the Court found that, regardless of whether the programs were substantially similar, “M.C.'s pendency placement remain[ed] at iHOPE because parents may not override the discretion of DOE to determine where pendency services are provided.” Cohen, 2021 WL 1198565, at *5 (citing Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 534 (2d Cir. 2020)).

Although Plaintiffs were unsuccessful in seeking payment on the grounds that iBRAIN was M.C.'s pendency, pursuant to § 1415(j), Plaintiffs eventually did succeed on the underlying due process complaint. On April 23, 2021, an SRO affirmed the underlying findings and conclusions involving the merits of the Plaintiffs' claims and award for the 2018-2019 school year. (See 1/7/22 Status Rpt., ECF No. 69, at 1-2.)

III. 2019-2020 School Year

For the 2019-2020 school year, M.C. remained enrolled at iBRAIN. On July 8, 2019, Plaintiffs instituted a due process hearing, alleging that DOE did not provide M.C. with a FAPE for the 2019-2020 school year and requesting, among other things, an order requiring DOE to fund M.C.'s placement at iBRAIN, as a pendency placement, during the pendency of the due process hearing pursuant to the IDEA's stay-put provision, 20 U.S.C. § 1415(j). Plaintiffs requested that the due process hearings for the 2018-2019 and 2019-2020 school years be consolidated, but that request was denied on July 23, 2019. Six IHOs subsequently recused themselves from presiding over the 2019-2020 due process hearing.

On August 14, 2019, Plaintiffs commenced the instant action against DOE and then-Chancellor, Richard Carranza. (See Compl.) As of that date, DOE had been unable to secure the services of an IHO for the hearing for the 2019-2020 school year. In the original Complaint in this action, Plaintiffs alleged that DOE failed to provide M.C. with a pendency placement in violation of the IDEA's “stay put” provision and New York law and sought equitable relief and damages. (See Compl. at PDF p. 7.) Plaintiff also filed a motion for a preliminary injunction seeking an order requiring Defendants to fund M.C.'s pendency placement at iBRAIN for the 2019-2020 school year until the substance of Plaintiffs' administrative due process claims regarding the 2019-2020 school year had been adjudicated. (Mot. Prelim. Inj., ECF No. 3.)

Plaintiffs filed an Amended Complaint on August 20, 2019, adding SED as a defendant. (Am. Compl., ECF No. 9.) After SED filed a motion to dismiss, Plaintiffs filed the SAC adding a cause of action against SED alleging that SED failed to properly oversee and supervise the appointment of an IHO and failed to enforce the statutory timelines and regulations governing IHOs and due process proceedings. (SAC ¶ 40.) On September 26, 2019, SED moved to dismiss the SAC.

On March 30, 2021, the same day that the Court denied Plaintiffs' motion for summary judgment and granted DOE's motion for summary judgment in the related action, the Court denied Plaintiffs' motion for a preliminary injunction in this action finding that Plaintiffs could not demonstrate that iBRAIN was M.C.'s pendency placement. (3/30/21 Mem. Order.) The Court held that, for the reasons stated in the related action, Plaintiffs' argument that iBRAIN was M.C.'s pendency placement based on its purported substantial similarity to the established pendency placement at iHOPE was foreclosed by the Second Circuit's decision in Ventura de Paulino. The Court also granted SED's motion to dismiss. See Larach-Cohen v. Porter, No. 19-CV-07623 (LTS) (SDA), 2021 WL 1203686, at *3 (S.D.N.Y. Mar. 30, 2021).^[5] The Court directed the parties to file a status report addressing whether an IHO has been appointed, whether the underlying due process proceeding has concluded, and whether the SAC should be dismissed as against the remaining defendants in light of the Court's Memorandum Order denying Plaintiffs' request for a preliminary injunction and the Court's decision granting Defendant DOE's motion for summary judgment in the related case. (See id.)

On April 13, 2021, the parties filed a joint status report. (4/13/21 Status Rpt., ECF No. 58.) Plaintiffs stated that an IHO had been appointed in the underlying administrative proceeding and that the parties expected a decision within 30 days of the close of briefing. (Id.) Plaintiffs asserted that this action should not be dismissed based on the Court's prior decisions because the SAC “seeks remedies that go beyond the issuance of a preliminary injunction and such remedies remain viable.” (Id.) DOE indicated its position was that the SAC should be dismissed. (Id.) Nonetheless, Defendants...