L.V. et al v. New York City Department of Education, No. 1:2019cv05451 - Document 118 (S.D.N.Y. 2020)
Court Description: ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND SCHEDULING ORDER: Ms. Mpi-Reynolds motion to withdraw as counsel is GRANTED as stated above. L.V. will have 30 days from the receipt of this Order, as determined by date on the below-req uested certificate of service, to inform the Court that J.V.2 has representation or to apply for such representationfailure to do so may result in the dismissal of the remaining claims, without prejudice. Discovery is extended to February 2 1, 2021. The DOE is directed to submit the requested letter by December 4, 2020. The Court will hold a telephonic conference on December 18, 2020 at 2:00 p.m. (dial-in to 866-434-5269; access code 4858267) at which it will hear from the DOE as to its proposed motion to dismiss for failure to prosecute (ECF No. 107) and at which L.V. may inform the Court as to her efforts to date to locate counsel as well as state her position with respect to the DOE's proposed motion. A representative from the DOE knowledgeable about the underlying facts pertaining to L.V.2's recent evaluations, the administrative hearing, and the efforts made to comply with the pendency order shall also attend the conference. Ms. Mpi-Reynolds is directed to serve a copy of this Order on L.V. as well as a copy of the Defendant's letter at ECF No. 107. Ms. Mpi-Reynolds is also directed to file an affidavit of service with the Court confirming service of th e Order and letter that also provides the Court with L.V.'s mailing address for receipt of Court notices. Finally, Ms. Mpi-Reynolds is directed to file a letter with the Court when the full terms of the settlement have been effectuated . Attorney Oroma Homa Mpi-Reynolds terminated. ( Discovery due by 2/21/2021., Telephone Conference set for 12/18/2020 at 02:00 PM before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 11/17/2020) (mro)
Download PDF
<![CDATA[
L.V. et al v. New York City Department of Education Doc. 118 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------X 11/17/2020 L.V., on behalf of herself and her minor child, J.V.2, Plaintiffs, -against- ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL AND SCHEDULING ORDER NEW YORK CITY DEPARTMENT OF EDUCATION, 19-CV-05451 (AT) (KHP) Defendant. -----------------------------------------------------------------X KATHARINE H. PARKER, United States Magistrate Judge: This ase a ises out of Defe da t’s alleged failu e to p o ide a f ee app op iate pu li edu atio J.V. ’s a FAPE to Plai tiff J.V. i the -18 and 2018-19 school years. L.V., Plaintiff othe , asse ts that the Ne Yo k City Depa t e t of Edu atio DOE o Defe da t iolated J.V. ’s a d/o he fede al ights u de the I di iduals ith Disa ilities Edu atio Improvement Act, 20 U.S.C. §§ 14001973, 29 U.S.C. § “e tio 42 U.S.C. §§ 12131-134, 12141- the IDEA , “e tio of the Reha ilitation Act of o the RA , the A e i a s ith Disa ilities A t of the ADA , a d U.“.C. § “e tio , y denying J.V.2 a FAPE and discriminating against him on the basis of his disability, which she asserts is autism. “he fu the alleges that Defe da t’s o du t iolated the Ne Yo k “tate Constitution and New York State Education Law §§ 3202, 3203, 4401, et seq. NYEL , a d caused her and her son extreme emotional distress in violation of New York State common law. 1 Dockets.Justia.com Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 2 of 10 Plaintiff initially was represented by Laura Barbieri. Ms. Barbieri drafted and filed three complaints in this case. The DOE moved to dismiss the second amended complaint, and Ms. Barbieri prepared an opposition to that motion. After that motion was fully briefed, Ms. Barbieri withdrew from representing Plaintiffs and Oroma Mpi-Reynolds entered an appearance for Plaintiffs. (ECF No. 63.) Prior to a decision on the motion to dismiss, Ms. Mpi-Reynolds filed a motion for e e ge y elief seeki g the DOE’s i also alled a stay-put o de ediate o plia e ith the pe de y o de (a PO, issued y the I depe de t Hea i g Offi e IHO i J.V. ’s underlying administrative proceeding concerni g his I di idual Edu atio Pla IEP . O July 17, 2020, the undersigned recommended that this motion be granted in part. (ECF No. 75.) Specifically, I recommended that the DOE be ordered to provide J.V.2 with in-person services as described in the September 2019 PO to the extent such can be done safely during the current COVID-19 pandemic and in compliance with guidance from health authorities. I further recommended the DOE immediately conduct an independent assistive technology evaluation to assess J.V. ’s i di idual eeds a d the soft a e e ui ed to deli e his e ui ed se i es remotely if they cannot be provided safely in person during the pandemic. Finally, I recommended denying the request for prospective funding of an account from which L.V. could ithd a fu ds to pay fo J.V. ’s se i es ithout ha i g to ait fo ei u se e t f o the DOE. (ECF No. 73.) The Honorable Analisa Torres adopted the Report and Recommendation in full. (ECF No. 75.) 2 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 3 of 10 Then, on July 17, 2020, the undersigned recommended that the motion to dismiss be granted in part and denied in part. (ECF No. 76.) Specifically, I recommended that: • Claim 1 (IDEA) be dismissed, in part, without prejudice, regarding claims pertaining to the substance and formation of the IEPs, for failure to exhaust; • Claims 2 and 5 (ADA and RA discrimination) be dismissed, without prejudice, for failure to exhaust; • • Claim 4 (Section 1983) be dismissed without prejudice for failure to state a claim; Claims 6 and 7 (NY State Law) be dismissed, without prejudice, for failure to comply with Ne Yo k “tate’s oti e of lai • e ui e e t; and Claim 8 (Declaratory Judgment) be dismissed as an inappropriate form of a claim. I recommended that the motion to dismiss be denied with respect to the allegations in Claim 1 pertaining to compliance with the pendency orders and the stay-put provision and with respect to Claim 3 (RA retaliation against L.V.). (ECF No. 76.) Judge Torres adopted the Report and Recommendation in full. (ECF No. 80.) After participating in several Court-facilitated settlement conferences, the parties ea hed a settle e t of Plai tiffs’ lai s fo remainder of moneta y aspe t of Clai o eta y da ages agai st the DOE (i.e. the a d Clai , i ludi g atto eys’ fees. That settlement was submitted to and approved by the Court. (ECF Nos. 111 & 113.) The o ly issues e ai i g i the ase a e L.V.’s o te tio that the DOE has ot complied with the IHO’s September 2019 PO and the emergency injunctive relief ordered by this Court at ECF No. 75—given the parties settlements at ECF Nos. 111 & 113, it appears these 3 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 4 of 10 two issues are coextensive as the remainder of the non- o eta y aspe t of Plai tiffs’ IDEA claim (Claim 1). The parties have conducted some discovery, but L.V. has not fully complied ith he ou sel’s e uest fo i fo atio a d do u e ts. Additionally, this Court has held numerous conferences with the parties regarding implementation of the pendency order, but L.V. has failed to cooperate with her counsel and the DOE in this process. As a result, the DOE has requested permission to file a motion for failure to prosecute (ECF No. 107) and Ms. MpiReynolds has filed a motion to withdraw as counsel, citing fundamental disagreements with her client (ECF No. 108). In order to protect client confidences, Ms. Mpi-Reynolds submitted a declaration in camera setting forth in detail the nature of the disagreement and why it cannot be resolved. This Court held an ex parte conference with L.V. and her attorney in connection with the motion to withd a . L.V. o je ted to he ou sel’s ithd a o the g ound that she is unfamiliar with the process and does not want to proceed pro se. Additionally, she disagreed with certain facts that her counsel relayed to the Court that form the basis for the fundamental disagreement. For the reasons set forth below, the motion to withdraw is granted. DISCUSSION A ou t i this Dist i t ay g a t ou sel lea e to ithd a o ly upo a sho i g y affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its positio , if a y, o the ale da . . . . S.D.N.Y. L. Civ. R. 1.4. The Court therefore looks at two factors in determining whether to grant a motion to withdraw as counsel of record: (1) the reasons for withdrawal and (2) the impact of the withdrawal on the timing of 4 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 5 of 10 the proceeding. See Callaway Golf Co. v. Corporate Trade Inc., No. 10-cv-1676 (GBD) (JCF), 2011 WL 2899192, at *2 (S.D.N.Y. July 6, 2011). With respect to the first factor, Plaintiffs’ counsel contends that withdrawal is appropriate based on New York Rule of Professional Conduct 1.16(c)(4) and Comment [2] under Rule 1.2. Rule . p o ides that a la ye ay ithd a f o ep ese ti g a lie t he . . . the client insists upon taking action with which the lawyer has a fundamental disag ee e t. U de this Rule, the la ye ay ot ithd a ithout pe issio f o the Court when, as here, such permission is required. Comment [2] to Rule 1.2 addresses how a lawyer should address disagreements with a client. It indicates that clients normally defer to the knowledge and skill of the lawyer with respect to technical, legal and tactical matters, whereas lawyers normally defer to the client with regard to expenses to be incurred and concern for third persons who might be adversely affected. When a disagreement arises, Comment [2] advises the lawyer to consult legal authorities and discuss possible resolutions with the client; but, if such efforts at resolution fail, the lawyer may withdraw due to a fundamental disagreement with the client. N.Y. Code of Prof. Conduct 1.2, Comment [2]. I suppo t of the otio , Plai tiffs’ ou sel has p o ided a De la atio u de seal a d i camera describing the nature of a fundamental disagreement that has arisen between her and Plaintiff L.V. about how to proceed with the remainder of the federal litigation, which involves L.V.’s o te tio that Defe da t has ot o plied ith this Cou t’s O de partially granting emergency relief (pursuant to the IDEA claim asserted) requiring compliance with the pendency order (ECF No. 75), and the administrative proceedings, as they remain ongoing before the IHO 5 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 6 of 10 and the DOE continues to challenge J.V. ’s asse ted disa ility a d edu atio al eeds. Having reviewed Plaintiffs’ ou sel’s su issio , and after having spoken with L.V. and her counsel, the Court is satisfied that a fundamental disagreement exists between counsel and L.V. that is not able to be resolved and that withdrawal is justified. The Court next must consider whether the prosecution of the action is likely to be disrupted by the withdrawal of counsel. See Callaway Golf Co., 2011 WL 2899192 at *3. Discovery in this case is ongoing. The present deadline for completion of discovery is December 31, 2020. This deadline, however, can be moved to allow Plaintiff time to seek alternate representation for herself and J.V.2. Furthermore, all but one of the claims asserted in the operative complaint have been dismissed, and the only issue remaining in this litigation i ol es the e fo e e t of the Cou t’s e e ge y elief. The prosecution and resolution of this action will not be disrupted by an extension of the schedule for this purpose. Accordingly, the Court finds that the second factor too favors withdrawal. As such, Plaintiffs’ ou sel’s motion to withdraw is GRANTED, except that Ms. MpiReynolds shall continue to assist L.V. with implementation of the settlement to ensure that the DOE akes the settle e t pay e ts a d that J.V.2’s pay e t is deposited i a appropriate account consistent with the Infant Compromise Order. REPRESENTATION OF J.V.2 While L.V. may represent herself pro se, see Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007), the same is not true for J.V.2. See Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990) (a non-attorney parent must be represented by counsel in 6 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 7 of 10 bringing an action on behalf of his or her child); Wenger v. Canastota Central School Dist., 146 F.3d 123, 125 (2d Cir. 1998), overruled on other grounds by Winkelman, 550 U.S. 516 (2007) (noting that a case involving a party unable to represent themselves (i.e. minors and incompetents) cannot go forward if they are unrepresented by counsel); see also Berrios v. New York City Hous. Auth., 564 F.3d 130, 133-35 (2d Cir. 2009) (citing Cheung approvingly, noting it is a a ie t p e ept of A glo-American jurisprudence that infant and other incompetent pa ties a e ot pe itted to ha dle thei o affai s . Therefore, Plaintiff L.V. is directed to either obtain counsel for J.V.2 or to move for the appointment of counsel for J.V.2 within 30 days from this Order, or the remaining lai asse ted o J.V. ’s ehalf ill e dis issed without prejudice. See B.D.S. v. Southold Union Free School Distr., No. 08-cv-1319, 2009 WL 1875942 (E.D.N.Y. June 24, 2009) (recognizing that although a parent has a right to pursue a claim under the IDEA pro se, to the extent the claim relates to parent rights, a non-attorney parent cannot represent a child in an IDEA claim in court). With espe t to the Cou t’s o ligatio to appoi t ou sel, the ou t otes that it ay properly decline to appoint counsel for a minor when it is clear that no substantial claim might be brought on behalf of such a party. See Schoon v. Berlin, No. 07-cv-2900 (JGK), 2011 WL 1085274 (S.D.N.Y. Mar. 23, 2011) (dismissing claim brought by parent on behalf of minor child and declining to appoint counsel because remainder of claims were without merit); A.M. ex rel. J.M. v. NYC Dept. of Educ., 840 F.Supp.2d 660 (E.D.N.Y. 2012) (in case brought by parents under IDEA, granting motion for summary judgment and declining to appoint representative for infant because underlying claims were without merit). It is important to also note that J.V.2 had the 7 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 8 of 10 e efit of ou sel i opposi g the DOE’s otio to dis iss a d i se u i g the e e ge y relief, and thus, the Court does not transgress the dangers surrounding the dismissal of a minor o i o pete t’s lai s o the e its ithout the e efit of ep esentation by counsel. See Berrios, 564 F.3d at 134. In light of the foregoing, the Court reserves judgment as to whether appointment of counsel for J.V.2 will be necessary, and directs the DOE to submit a letter regarding its position as to the need for appointment of a representative for J.V.2 prior to addressing its proposed motion to dismiss for lack of prosecution. DISCOVERY AND SCHEDULING Discovery is extended to February 26, 2021 to allow L.V. time to search for an retain alternate counsel for herself and J.V.2. In the meantime, to the extent there are any issues remaining in which L.V. has he o i te est, sepa ate a d apa t f o J.V. ’s i te ests, she will be treated as a pro se plaintiff. L.V. may wish to consult with staff from the New York Lawyers Assistance Group, a free legal clinic available to pro se litigants. L.V. should call 212-659-6190 to make a phone appointment. L.V. may elect to receive email notifications from the Court. “he should o ta t the Cou t’s P o “e I take U it fo uestions on court procedures and filing papers. ALL PRO SE SUBMISSIONS TO THE COURT MUST BE MADE THROUGH THE PRO SE INTAKE UNIT. The phone number for the Pro Se Intake Unit is 212-805-0175. The email for submissions is Temporary Pro Se Filing@nysd.uscourts.gov. However, before email submissions are accepted, L.V. must consent to receiving electronic notices from the Court (that 8 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 9 of 10 is, email notices) by submitting a Consent to Electronic Service Form. That form can be found at https://nysd.uscourts.gov/forms/consent-electronic-service-pro-se-cases. CONCLUSION Ms. Mpi-Reynolds motion to withdraw as counsel is GRANTED as stated above. L.V. will have 30 days from the receipt of this Order, as determined by date on the below-requested certificate of service, to inform the Court that J.V.2 has representation or to apply for such representation—failure to do so may result in the dismissal of the remaining claims, without prejudice. Discovery is extended to February 21, 2021. The DOE is directed to submit the requested letter by December 4, 2020. The Court will hold a telephonic conference on December 18, 2020 at 2:00 p.m. (dial-in to 866-434-5269; access code 4858267) at which it will hear from the DOE as to its proposed motion to dismiss for failure to prosecute (ECF No. 107) and at which L.V. may inform the Court as to her efforts to date to locate counsel as well as state her position with respect to the DOE’s p oposed motion. A representative from the DOE knowledgeable about the underlying facts pertaining to L.V.2’s recent evaluations, the administrative hearing, and the efforts made to comply with the pendency order shall also attend the conference. Ms. Mpi-Reynolds is directed to serve a copy of this Order on L.V. as well as a copy of the Defe da t’s lette at ECF No. . Ms. Mpi-Reynolds is also directed to file an affidavit of service with the Court confirming service of the Order and letter that also provides the Court ith L.V.’s aili g add ess fo e eipt of Cou t oti es. Finally, Ms. Mpi-Reynolds is directed to file a letter with the Court when the full terms of the settlement have been effectuated. 9 Case 1:19-cv-05451-AT-KHP Document 118 Filed 11/17/20 Page 10 of 10 SO ORDERED. DATED: New York, New York November 17, 2020 ______________________________ KATHARINE H. PARKER United States Magistrate Judge 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
