United States District Court, D. New Jersey
MILOWE ANGER DAVID V. SIMUNOVICH OFFICE OF THE U.S. ATTORNEY
On behalf of Plaintiff
CHARLOTTE L. LANVERS U.S. DEPARTMENT OF JUSTICE On behalf of
M. HOFFMAN, HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER,
ONE LOGAN SQUARE On behalf of Defendant
M. ERDLEN, HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER On
behalf of Defendant
L. HILLMAN, U.S.D.J.
case concerns Defendant Nobel Learning Communities
(NLC)'s alleged violation of Title III of the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. §§
12151-89. On October 19, 2017, the Court entered an Order
denying Defendant's Motion to Stay, or Alternatively, for
Partial Dismissal in its entirety. Before the Court is
Defendant's Motion for Reconsideration, Defendant's
Alternative Motion for Certification of Appeal, and
Defendant's Motion for Leave to File Reply. For the
reasons that follow, the Court will grant Defendant's
Motion for Leave to File Reply, deny Defendant's Motion
for Reconsideration, and deny Defendant's Alternative
Motion for Certification of Appeal.
Court takes its facts from its October 19, 2017 Opinion in
this matter. Defendant is the owner and operator of
Chesterbrook Academy (“Chesterbrook”) in
Moorestown, New Jersey. Chesterbrook offers daycare services
and an educational foundation program for young children.
M.M., born in July 2011 with Down syndrome enrolled at
Chesterbrook on January 5, 2012.
Chesterbrook, diaper-changing services are provided to
children enrolled in its “Infants, ”
“Toddlers, ” “and “Beginners”
programs. Diaper-changing services are not provided to
children enrolled in its “Intermediates” or
December 2014, Chesterbrook informed M.M.'s parents of
its intention to move M.M. into the
“Intermediates” program. At that time, M.M. still
required diapers. M.M. was moved into the
“Intermediates” program on January 21, 2015.
Chesterbrook worked with M.M. to try to get her toilet
trained, setting a deadline pursuant to corporate policy for
M.M. to be toilet trained by April 1, 2015.
March 26, 2015, Chesterbrook informed M.M.'s parents that
M.M. was being expelled effective April 1, 2015 because she
was not toilet trained. M.M.'s last day at Chesterbrook
was March 31, 2015.
filed its Complaint in federal court on January 18,
2017. Plaintiff brought a claim under Title III
of the ADA asking for a declaration that Defendant violated
Title III of the ADA, for Defendant to be enjoined from
engaging in discrimination against individuals with
disabilities and from failing to comply with Title III of the
ADA, for an award of compensatory damages to M.M. and
M.M.'s parents, and for a civil penalty against Defendant
to vindicate the public interest. Defendant filed a Motion to
Stay or, Alternatively, for Partial Dismissal on March 24,
2017, which this Court denied on October 19, 2017.
Court briefly summarizes it October 19, 2017 Opinion. After
denying Defendant's request to stay this action under
Colorado River abstention,  the Court considered
Defendant's arguments in support of partial dismissal.
Defendant argued collateral estoppel applied to
Plaintiff's associational discrimination claim based on
two Eastern District of Pennsylvania decisions in 2009 and
2010. In the 2009 decision, a judge in the Eastern District
of Pennsylvania considered a motion to dismiss the complaint
brought by the defendant, NLC, against the plaintiff, the
United States. United States v. Nobel Learning Cmtys.,
Inc., 676 F.Supp.2d 379, 380 (E.D. Pa. 2009). In its
complaint, the United States claimed NLC discriminated
against disabled children in violation of the ADA.
Id. Part of its complaint consisted of a claim of
associational discrimination suffered by the families of the
disabled children. Id. The court in the Eastern
District of Pennsylvania found Title III of the ADA did not
allow a family to recover “for indirect consequences
associated with a child's exclusion from an NLC
school.” Id. at 386. Accordingly, the court
granted NLC's motion to dismiss as to the plaintiff's
allegation of associational discrimination. Id. at
2010 decision, same court again considered this issue after
the United States moved to amend its complaint. United
States v. Nobel Learning Cmtys., Inc., No. 09-1818, 2010
WL 1047730, at *1 (E.D. Pa. Mar. 19, 2010). The proposed
amended complaint “include[d] new factual allegations
about the parents of the . . . children with disabilities,
” asserting that the parents “sought to contract
with [the defendant] for daycare services that [were]
marketed to them for their own benefit, and that the parents
were denied the ability to contract for these services
because of the parents' association with their disabled
children.” Id. at *2. The court denied the
motion to amend the complaint, finding an amendment would be
futile as to the associational discrimination claim.
Id. at *4.
court reasoned as follows:
[T]o assert a claim of associational discrimination, a
plaintiff must allege that he or she experienced direct
discrimination because of his or her association with a
disabled person. Such discrimination requires a separate and
distinct denial of a benefit or service to a non-disabled
person; it may not be premised on a derivative benefit or
harm based on treatment towards a disabled person.
Id. (citations omitted). The court found
“[a]ny benefit to parents premised on time free from
their children is not a benefit that is separate and distinct
from the benefit to the child in attending daycare.”
Id. at *5. “Although parents enjoy a
derivative benefit in sending their children to daycare, and
suffer a derivative harm due to the attendant consequences of
a child's disenrollment or unenrollment, daycare is not a
service for parents because children, not parents, partake in
the daycare activities.” Id.
Court applied the following test in deciding whether
collateral estoppel applied: “(1) the issue sought to
be precluded [is] the same as that involved in the prior
action; (2) that issue [was] actually litigated; (3) it [was]
determined by a final and valid judgment; and (4) the
determination [was] essential to the prior judgment.”
Burlington N. R.R. v. Hyundai Merchant Marine Co.,
63 F.3d 1227, 1231-32 (3d Cir. 1995) (alterations in
original) (quoting In re Graham, 973 F.3d 1089, 1097
(3d Cir. 1992)). Noting that Plaintiff conceded the first two
prongs were satisfied, the Court found the Eastern District
of Pennsylvania decisions did not constitute final judgments.
The Court thus found those decisions, standing alone,
insufficiently firm to allow for collateral estoppel.
Court further addressed a January 2011 Settlement Agreement
entered between the United States and NLC, which provided
that NLC would implement a non-discrimination policy,
publicize that policy to its employees, and provide
appropriate training, with mandatory reporting to the United
States. It also provided NLC would pay $215, 000 to the named
individuals in the complaint. The Settlement Agreement
resolved all of the allegations in the complaint and was to
remain in effect for two years.
Court determined the Settlement Agreement also did not bar
Plaintiff's associational discrimination claim. The Court
found the Settlement Agreement did not express an intent for
collateral estoppel to apply to the earlier Eastern District
of Pennsylvania decisions, and that it explicitly allowed
Plaintiff to bring new claims after the two-year period of
the Settlement Agreement ended.
Court then considered the merits of Plaintiff's
associational discrimination claim. The Court began by
recognizing that an associational discrimination claim
requires a separate and distinct denial of a benefit or
service to the non-disabled person. Simply being denied a
derivative benefit or service is insufficient. The Court
determined that, while daycare services center around the
child, they are as much a benefit to parents. The Court
reasoned: “It is a service, agreed to between the
parents and the institution, which provides parents with
otherwise unavailable time apart from their children. One can
argue in a sense that the disabled child's benefit from
daycare services is derivative of the parents'
the Court determined that Plaintiff's request for
injunctive relief was not ripe for adjudication at the
pleading stage. The Court thus denied the motion in its
entirety. On November 2, 2017, Defendant filed a Motion for
Reconsideration and an Alternative Motion for Certification
of Appeal. Plaintiff filed its opposition on November 20,
2017. On November 27, 2017, Defendant filed a Motion for
Leave to File Reply to the Motion for Reconsideration, along
with a reply to the Alternative Motion for Certification of
Motion for Leave to File Reply
Court begins by briefly addressing Defendant's Motion for
Leave to File Reply. Reply briefs are not permitted in
support of a motion for reconsideration unless the Court
grants leave to file such a reply. Local Civil Rule 7.1(d)(3)
(“No reply papers shall be filed, unless permitted by
the Court, relating to the following motions: . . .
Reconsideration under L.Civ.R. 7.1(i) . . . .”).
Defendant filed such a request for leave to file a reply on
November 27, 2017.
motion argues Plaintiff's opposition
“mischaracterizes the positions taken by Chesterbrook
in its Moving Brief and presents new arguments to which
Chesterbrook respectfully requests an opportunity to
respond.” The Court finds Defendant's request was
advanced in good faith and sought to respond to
Plaintiff's opposition and not impermissibly advance new
arguments or repeat its initial arguments. See Bayer AG
v. Schein Pharm., 129 F.Supp.2d 705, 716 (D.N.J. 2001)
(“It is axiomatic that reply briefs should respond to
the respondent's arguments or explain a position in the
initial brief that the respondent has refuted.”
(quoting Elizabethtown Water Co. v. Hartford Cas. Ins.
Co., 998 F.Supp. 447, 458 (D.N.J. 1998))); accord
Dana Transp., Inc. v. Ableco Fin., LLC, No. 04-2781,
2005 U.S. Dist. LEXIS 18086, at *16 (D.N.J. Aug. 17, 2005)
(“The purpose of the reply brief is to respond to the
opposition brief or explain a position that the ...