The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge
HONORABLE JOSEPH H. RODRIGUEZ
Presently before the Court is Plaintiffs' motion seeking leave to amend the complaint to add as a defendant the Division of Developmental Disabilities of the New Jersey Department of Human Services ("DDD"), and change the caption to reflect the appointment of Jonarlen's parents as his legal guardian.
Plaintiffs' motion for leave to amend the caption to reflect the Hallen's appointment as legal guardians was not opposed and is GRANTED, and for the reasons discussed below, Plaintiffs' motion to further amend the complaint to add DDD as a party is DENIED.
Plaintiffs filed their complaint on June 4, 1997, and amended it on January 28, 1998, seeking, among other things, enforcement of a consent order entered by an Administrative Law Judge against the Union Beach Board of Education, Barry Weiner, Director of Special Services, Union Beach Board of Education (collectively the "Union Beach Defendants"), the New Jersey Department of Education the ("DOE"), and Barbara Gantwerk, Director, Office of Special Education, Department of Education (collectively the "State Defendants"). See Plaintiffs' September 22, 1998 Letter Brief in Support of Motion for Leave to Amend the Complaint at 6.
Plaintiff Jonarlen Hallen is a nineteen-year-old autistic child with severe mental retardation. See id. at 2. In April, 1993, after Jonarlen's behavior became increasingly dangerous to himself and others, his parents, Plaintiffs John and Wendy Hallen, requested that the Union Beach Defendants place him in a residential education facility. See id. at 2-3. At the same time, the Hallens requested that DDD also place Jonarlen in a residential facility. See id. at 3. Union Beach agreed to fund the day school costs of Jonarlen's placement if the DDD funded the residential costs. See id.
DDD eventually placed Jonarlen in a residential facility, which did not include an educational component, known as a "skill development home." See id. Plaintiffs claim that this home is analogous to a foster home and does not address the majority of Jonarlen's developmental needs. See id. The Hallens administratively appealed Jonarlen's placement in the skill development home. See id. at 4. The appeal was settled in June, 1994 and DDD agreed to place Jonarlen in an educational residential facility. By January, 1995, Jonarlen had not yet been placed in the educational setting and the Hallens requested mediation through the DOE. See id. at 4-5. The mediation was unsuccessful and the Hallens initiated an administrative "due process" hearing. See id. at 5. Before the hearing took place, the case was settled among Plaintiffs and the Union Beach and State Defendants, and a consent order was entered by an Administrative Law Judge. See id.
As of September, 1996, Jonarlen was still residing in the DDD skill development home. See id. The Hallens petitioned the DOE to enforce the terms of the consent order against DDD. See id. The DOE declined, claiming that it had no authority to enforce the consent order against DDD, which was not a party to that administrative proceeding. See id. at 5-6. In their complaint, Plaintiffs seek, among other things, enforcement of that consent order or, in the alternative, to have the Court declare that Jonarlen is entitled to the terms of the consent order entered into among Plaintiffs, the Union Beach Defendants and the State Defendants.
Before and after Plaintiffs filed their complaint, the DDD has maintained that it will cooperate with the Hallens to place Jonarlen in an appropriate educational residential care facility. See id. at 8. To that end, a private company, New Horizons in Autism, Inc., is developing under contract with the DDD a residential treatment facility in which Jonarlen will be placed. See id.
On September 8, 1998, DDD adopted regulations that require it to impose costs on clients or their families if certain financial requirements are satisfied. See id. at 8-9 (citing N.J.A.C. 10:46-1.1, et seq.; 30 N.J.R. 3271). The regulation sets forth a complex financial formula that is used to determine if clients and/or their families are liable for costs incurred for the client's care. See id. In their proposed second amended complaint, Plaintiffs claim that the DDD has adopted these regulations and seek an injunction preventing enforcement of the regulation against them. See Proposed Second Amended Complaint at ¶ 36 and p. 21 ¶ E.
Plaintiffs moved this Court for leave to amend their complaint to add DDD as a defendant. In their initial moving papers, Plaintiffs made a two-fold argument. First, they claim that if they are successful in this action against the Union Beach and State Defendants and this Court declares that Jonarlen is entitled to the residential setting he seeks, they will have no means to enforce the judgment if DDD is the entity that actually is providing for Jonarlen's care. See Plaintiffs' September 22, 1998 Letter Brief at 12. Second, Plaintiffs claim that if DDD is the entity providing Jonarlen's care and it imposes the cost- sharing regulation on the Hallens, that action will deprive him of the free and appropriate public education to which he is entitled under federal law. See id. at 13.
In their initial opposition papers, Defendants first point out that amendments to pleadings were to be completed on or before January 23, 1998 pursuant to the scheduling order entered by Judge Hughes. See The State Defendants' October 8, 1998 Letter Brief in Opposition to Plaintiffs' Motion for Leave to Amend at 7. Defendants also claim that they would suffer prejudice if Plaintiffs are permitted to amend their pleading at this late stage of the litigation in that they would have conducted discovery differently had DDD been joined at an earlier date and, if DDD is now joined in this action, discovery will have to be extended. See id. at 9-10. Defendants devote the remainder of their opposition brief to a largely irrelevant argument that Plaintiffs' claim that DDD is a necessary party to this litigation is incorrect and that even if DDD is necessary, Plaintiffs should have joined it earlier. See id. at 11-12. Finally, Defendants argue that this is not the appropriate forum for a facial challenge to DDD's cost-sharing regulations. See id. at 13.
On October 23, 1998, the parties appeared before the Court for oral argument. Before Plaintiffs addressed the substance of their argument, The Court raised the issue of Plaintiffs' standing to bring a claim against DDD. On October 25, 1998, the Court ordered the parties to provide the Court with supplemental briefing on the issues of standing and jurisdiction.
Plaintiffs' supplemental brief focuses on the recently adopted DDD cost-sharing regulation. Plaintiffs state that "[o]ne of the primary goals of [their] seeking to add DDD as a party defendant in this matter is to prevent DDD from imposing fees upon Jonarlen in contravention of his rights under the IDEA." Plaintiffs' November 6, 1998 Supplemental brief at 5. The primary right that Plaintiffs assert is Jonarlen's right under federal law to a free and appropriate education. See id. at 4. Plaintiffs argue that the DDD cost-sharing regulation will be applied to Jonarlen because the language of the regulation compels the DDD to do so. See id. at 5. Relying on a decision from the Ninth Circuit Court of Appeals, Plaintiffs claim that they need not wait until the regulation is actually applied to them to have standing to challenge the its legality. See id. at 6. Plaintiffs argue that the "imminent action of DDD constitutes a sufficient injury-in-fact so as to confer standing upon the Plaintiffs to prevent DDD's imposition of fees against Jonarlen." See id. at 7 (internal quotations omitted).
The State Defendants argue that Plaintiffs have not demonstrated that they have suffered injury-in-fact at the hands of DDD and, thus, they cannot maintain a claim against it. See The State Defendants' November 5, 1998 Supplemental Brief at 3-4. The State Defendants claim that Plaintiffs' admission that they have not asserted any new legal claims against DDD in the second amended complaint is fatal to their petition for leave to amend. See id. at 4-5. Additionally, the State Defendants argue that Plaintiffs' claims ...