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In IDEA Litigation Against NYC Board of Ed Et Al On COVID Closures Many Claims Dismissed

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Nov 16 –    A number of parents and children sued the NYC Board of Education under the Individuals with Disabilities Education Improvement Act (IDEA) for denying that a free appropriate public education.  

  On November 6, 2020 U.S. District Court for the Southern District of New York Magistrate Judge Sarah Netburn held a proceeding. Inner City Press covered it, below.

 Now on November 16 in a larger and more "unwieldy" IDEA case concerning school shutdowns amid the COVID-19 pandemic, SDNY Chief Judge McMahon has issued a series of orders:

"Plaintiffs allege that, when schools were shut down due to the public health emergency  created by the COVID-19 pandemic, every school district in the United States that went from in- person to remote learning (1) automatically altered the pendency placement of every special  education student in the United States; and (2) ceased providing every one of those students with a FAPE, in violation of IDEA’s substantive and procedural safeguards. Approximately one month after filing this lawsuit, Plaintiffs’ counsel moved before the Part I judge for a temporary restraining order (“TRO”) and a preliminary injunction. The application for an immediate TRO was denied, with the Part I judge expressing grave doubt about the ability of this case to go forward in the posture proposed by Plaintiffs.

At about the same time, some of the defendants around the country who had received service of process (or at least attempted service of process) began filing motions to dismiss the case, or indicated by letter their intent to do so. In an effort to manage so unwieldy a lawsuit, this Court issued a number of orders to show cause, which were designed to tease out some of the many defects that seemed apparent, first to my colleague in Part I and then to me, from the face of the Complaint. The Court allowed Plaintiffs’ motion for a preliminary injunction to proceed only against the only defendants named in the actual caption of the complaint – the NYC Defendants – who not only opposed the motion but promptly moved to dismiss the Complaint as against them. The action as to all other defendants was stayed until the Court could address the potential pleading deficiencies that were immediately apparent. This opinion explains the reasons for the Court’s entry of the following orders: 

(1) An order dismissing the Complaint without prejudice as against all defendants located outside the State of New York – 49 State Departments of Education, D.C. State Board of Educations, Departamento De Educatión Gobierno De Puerto Rico, and the over 13,000 school districts in states other than New York – for myriad reasons: (1) the Court lacks personal jurisdiction over any of those defendants, (2) venue does not lie against those defendants in this district; and (3) even if (1) and (2) were not the case, permissive joinder pursuant to Fed. R. Civ. P. 20 – the only applicable form of joinder, by Plaintiffs’ admission – is so grossly inappropriate that severance and dismissal is the appropriate remedy. See Nassau Cnty. Ass’n of Ins. Agents, Inc. v. Aetna Life & Cas. Co., 497 F.2d 1151, 1153–54 (2d Cir. 1974) (“The misjoinder here, resting on thousands of unrelated transactions, is such a gross abuse of procedure that dismissal under F[ed.] R. Civ. P. 41(b) for failure to comply with the federal rules is warranted.”).

(2) An order dismissing the Complaint as against all defendants except the NYC Defendants and the New York State Department of Education, on the ground that permissive joinder is not appropriate and that dismissal rather than severance is the appropriate remedy. See Nassau Cnty. 497 F.2d at 1153–54.

 (3) An order dismissing as plaintiffs all parents who do not have children enrolled in the New York City public schools (non-New York City Plaintiffs), on the ground that they lack standing to assert any claims against the NYC Defendants.

(4) An order denying the New York City Plaintiffs’ motion for a preliminary injunction and dismissing the Complaint as against the NYC Defendants without prejudice;

 and (5) An order sua sponte dismissing the claims against the only remaining Defendant in this case, which is the New York State Department of Education."

This case is J.T., et al., vs. Bill De Blasio, et al. 20-cv-5878 (McMahon)

 In the more local case on November 6, SDNY Magistrate Judge Netburn asked one of the parties to not use the name of a child - which was given - but instead the initials, Y.G.. 

She asked the court reporter to change the transcript, or to let her know and she would redacted it. Inner City Press was covering the proceeding and heard it, but is going with Y.G.. The point is the case.

It is M.G. et al v. NYC Department of Education et al., 17-cv-7612 (Abrams / Netburn)


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