Case: 1:12-cv-00960-WMS-LGF As of: 01/23/2019 11:27 AM EST 1 of 7
CASREF,CLOSED_2015,MEDIATION
U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo) CIVIL DOCKET FOR CASE #: 1:12−cv−00960−WMS−LGF

R.A.G. by her parent, R.B., v. Buffalo City School District Board of Education et al Assigned to: Hon. William M. Skretny Referred to: Hon. Leslie G. Foschio Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff

Date Filed: 10/11/2012 Date Terminated: 03/25/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

R.A.G. by parent, R.B. individually and on behalf of all other (parents and students) similarly situated

represented by Bruce A. Goldstein Kenney, Shelton, Liptak & Nowak, LLP The Calumet Building 233 Franklin Street Buffalo, NY 14202 Email: bagoldstein@kslnlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur H. Ackerhalt Goldstein, Ackerhalt & Pletcher, LLP 70 Niagara Street Suite 200 Buffalo, NY 14202 (716) 362−1533 Fax: (716) 362−1534 Email: aackerhalt@gapattorneys.com ATTORNEY TO BE NOTICED

Jay Charles Pletcher Goldstein, Ackerhalt & Pletcher, LLP 70 Niagara Street Suite 200 Buffalo, NY 14202 (716) 362−1533 Fax: (716) 362−1534 Email: jpletcher@gapattorneys.com ATTORNEY TO BE NOTICED

V.
Defendant
Buffalo City School District Board of Education

represented by Jeffrey Joel Weiss Harris Beach LLP Larkin at Exchange 726 Exchange Street Suite 1000 Buffalo, NY 14210 716−200−5050 Fax: 716−200−5204 Email: jweiss@harrisbeach.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard T. Sullivan Harris Beach LLP Larkin at Exchange 726 Exchange Street Suite 1000

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Buffalo, NY 14210 716−200−5050 Fax: 716−200−5215 Email: rsullivan@harrisbeach.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly S. Foss Harris Beach LLP 99 Garnsey Road Pittsford, NY 14534 585−419−8717 Fax: 585−419−8812 Email: kfoss@harrisbeach.com ATTORNEY TO BE NOTICED

Defendant Pamela C. Brown

represented by Jeffrey Joel Weiss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard T. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly S. Foss (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/11/2012 10/11/2012 10/11/2012 10/12/2012 10/12/2012 10/17/2012
10/22/2012 11/07/2012
11/08/2012 11/08/2012

# Docket Text
1 COMPLAINT against All Defendants, filed by R.A.G. by her parent, R.B., R.B..(DLC) (Entered: 10/12/2012)
Notice of Right to Consent before a Magistrate Judge form. (DLC) (Entered: 10/12/2012)
Remark − Summons not issued. (DLC) (Entered: 10/12/2012)
2 MOTION to Seal by R.A.G. by parent, R.B.. (Attachments: # 1 Affidavit, # 2 Certificate of Service)(Goldstein, Bruce) (Entered: 10/12/2012)
Summons Issued as to Pamela C. Brown, Buffalo City School District Board of Education. (DLC) (Entered: 10/12/2012)
3 TEXT ORDER. IT HEREBY IS ORDERED THAT, the Plaintiff's 2 Motion for Leave to File under Seal an Addendum to the Complaint is GRANTED. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 10/17/2012. (MEAL) (Entered: 10/17/2012)
4 Sealed Document. (DLC) (Entered: 10/22/2012)
5 MOTION to Certify Class by R.A.G. by parent, R.B.. (Attachments: # 1 Motion for Class Certification, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Affidavit, # 8 Memorandum in Support, # 9 Supplement, # 10 Certificate of Service)(Goldstein, Bruce) (Entered: 11/07/2012)
6 AFFIDAVIT of Service , filed by R.A.G. by parent, R.B.. (Goldstein, Bruce) (Entered: 11/08/2012)
7 SUMMONS Returned Executed by R.A.G. by parent, R.B.. (Goldstein, Bruce) (Entered: 11/08/2012)

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11/08/2012 11/16/2012 11/16/2012 11/28/2012 12/04/2012 12/17/2012 12/18/2012 12/21/2012
01/07/2013 02/15/2013 02/19/2013 02/20/2013
03/11/2013 03/14/2013

8 SUMMONS Returned Executed by R.A.G. by parent, R.B.. (Goldstein, Bruce) (Entered: 11/08/2012)
9 NOTICE of Appearance by Jeffrey Joel Weiss on behalf of Pamela C. Brown, Buffalo City School District Board of Education (Weiss, Jeffrey) (Entered: 11/16/2012)
10 NOTICE of Appearance by Richard T. Sullivan on behalf of Pamela C. Brown, Buffalo City School District Board of Education (Sullivan, Richard) (Entered: 11/16/2012)
11 STIPULATION Extending Defendants' Time to Answer by Pamela C. Brown, Buffalo City School District Board of Education. (Sullivan, Richard) (Entered: 11/28/2012)
12 TEXT ORDER. The 11 Stipulation for Extension of Time to Answer is HEREBY APPROVED. The Defendants' time to answer or otherwise make motions with respect to the Summons and Complaint is extended to 12/15/2012. Issued by William M. Skretny, Chief Judge U.S.D.C. on 12/4/2012. (CMD) (Entered: 12/04/2012)
13 ANSWER to 1 Complaint by Pamela C. Brown, Buffalo City School District Board of Education.(Sullivan, Richard) (Entered: 12/17/2012)
14 AUTOMATIC REFERRAL to Mediation. (DLC) (Entered: 12/18/2012)
15 TEXT REFERRAL ORDER − Hon. Leslie G. Foschio, United States Magistrate Judge, is hereby designated to act in this case as follows: Pursuant to 28 U.S.C. § 636(b)(1)(A), all pre−trial matters in this case are referred to the above−named United States Magistrate Judge, including but not limited to: (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non−dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge. The Magistrate Judge shall not hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), unless further ordered by this Court. All motions or applications shall be filed with the Clerk and made returnable before the Magistrate Judge. The parties are encouraged to consider the provisions of 28 U.S.C. § 636(c) governing consent to either partial or complete disposition of the case, including trial if necessary, by the Magistrate Judge. Consent forms are available from the office of the Magistrate Judge or the office of the Clerk of Court. IT IS SO ORDERED. Issued by Chief Judge William M. Skretny on 12/21/2012. (JCD) (Entered: 12/21/2012)
16 ORDER. Scheduling Conference set for 2/19/2013 11:00 AM before Hon. Leslie G. Foschio. Signed by Hon. Leslie G. Foschio on 1/7/2013. (SDW) (Entered: 01/07/2013)
17 Proposed Pretrial Order by Pamela C. Brown, Buffalo City School District Board of Education. (Attachments: # 1 Certificate of Service)(Sullivan, Richard) (Entered: 02/15/2013)
18 Minute Entry for proceedings held before Hon. Leslie G. Foschio: Scheduling Conference held on 2/19/2013. Case management order discussed, same to be filed by the court. Appearances: Pltf−Bruce Goldstein, Esq., Jay Pletcher, Esq., Dft: Richard Sullivan, Esq., Nathanial Kuzma, Asst Legal Cnsl Board of Education. (Court Reporter FTR Gold.) (SDW) (Entered: 02/20/2013)
19 SCHEDULING ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Stipulation of Selection of Mediator due by 3/21/2013. First Mediation Session due by 5/6/2013. Further Pretrial Conference set for 5/15/2013 11:00 AM before Hon. Leslie G. Foschio.. Signed by Hon. Leslie G. Foschio on 2/20/2013. (SDW) (Entered: 02/20/2013)
20 SCHEDULING NOTICE on 5 Motion to Certify Class. Response due by 3/28/2013. Reply due by 4/8/2013. Oral Argument will be scheduled by the Court as necessary. (MEAL) (Entered: 03/11/2013)
21 MOTION for Extension of Time to File Response/Reply as to 20 Order, Set/Reset Motion and R&R Deadlines/Hearings by R.A.G. by parent, R.B.. (Attachments: # 1

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03/18/2013 03/21/2013 03/28/2013 04/01/2013 04/01/2013 04/05/2013 04/15/2013 04/15/2013 04/22/2013 04/22/2013
04/24/2013 04/24/2013 04/24/2013 04/25/2013
04/26/2013

Affidavit, # 2 Certificate of Service)(Goldstein, Bruce) (Entered: 03/14/2013)
22 TEXT ORDER. IT HEREBY IS ORDERED THAT, Plaintiffs' 21 Motion for Extension of Time to File Reply as to 5 Motion to Certify Class is GRANTED. Plaintiffs' reply is now due by 4/15/2013. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 3/16/2013. (CMD) (Entered: 03/18/2013)
23 Stipulation−Selection of Mediator by Pamela C. Brown, Buffalo City School District Board of Education. (Sullivan, Richard) (Entered: 03/21/2013)
24 Cross MOTION to Stay Decision on Class Certification by Pamela C. Brown, Buffalo City School District Board of Education. (Attachments: # 1 Affirmation of Jeffrey J. Weiss, Esq., with exhibits, # 2 Affidavit of Kim H. Curtin, # 3 Memorandum in Support, # 4 Certificate of Service)(Sullivan, Richard) (Entered: 03/28/2013)
25 SCHEDULING NOTICE on Defendants' Cross Motion to Stay Decision on Class Certification. Response due by 4/15/2013. Reply due by 4/25/2013. Oral Argument will be scheduled by the Court as necessary. (MEAL) (Entered: 04/01/2013)
26 MOTION for Leave to File Excess Pages to reply to Defendant's Opposition to Plaintiff's Motion for Class Certification by R.A.G. by parent, R.B.. (Attachments: # 1 Certificate of Service)(Goldstein, Bruce) (Entered: 04/01/2013)
27 TEXT ORDER. IT HEREBY IS ORDERED THAT, Plaintiff's 26 Motion to file a Reply of 17 pages in further support of the 5 Motion to Certify Class is GRANTED. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 4/5/2013. (MEAL) (Entered: 04/05/2013)
28 REPLY to Response to Motion re 5 MOTION to Certify Class filed by R.A.G. by parent, R.B.. (Attachments: # 1 Memorandum in Support, # 2 Certificate of Service)(Goldstein, Bruce) (Entered: 04/15/2013)
29 RESPONSE to Motion re 24 Cross MOTION to Stay Decision on Class Certification filed by R.A.G. by parent, R.B.. (Attachments: # 1 Memorandum in Support, # 2 Certificate of Service)(Goldstein, Bruce) (Entered: 04/15/2013)
30 MOTION for Leave to File Sur−Reply in Further Opposition to Plaintiff's Motion for Class Certification by Pamela C. Brown, Buffalo City School District Board of Education. (Attachments: # 1 Certificate of Service)(Sullivan, Richard) (Entered: 04/22/2013)
31 AFFIDAVIT of Bruce Goldstein in Opposition re 30 MOTION for Leave to File Sur−Reply in Further Opposition to Plaintiff's Motion for Class Certification ; or in the Alternative, in Support of Leave to Submit a Reply to Defendants' Sur−Reply filed by R.A.G. by parent, R.B.. (Attachments: # 1 Certificate of Service)(Goldstein, Bruce) (Entered: 04/22/2013)
32 Mediation Certification by Michael A. Brady(Brady, Michael) (Entered: 04/24/2013)
33 REPLY/RESPONSE to re 31 Affidavit in Opposition to Motion, filed by Pamela C. Brown, Buffalo City School District Board of Education. (Weiss, Jeffrey) (Entered: 04/24/2013)
34 TEXT ORDER. IT HEREBY IS ORDERED THAT, Defendants' 30 Motion for Leave to Submit Sur−Reply in Further Opposition to Plaintiff's 5 Motion for Class Certification, is GRANTED. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 4/23/2013. (CMD) (Entered: 04/24/2013)
35 MEMORANDUM OF LAW re 29 Response to Motion, 28 Reply to Response to Motion Memorandum of Law in Further Support of Motion to Stay and in Further Opposition to Plaintiff's Motion for Class Certification by Pamela C. Brown, Buffalo City School District Board of Education. (Attachments: # 1 Certificate of Service)(Sullivan, Richard) Modified on 4/26/2013 (DLC). (Entered: 04/25/2013)
E−Filing Notification: Incorrect event used to electronically file document. For future reference, use (Memorandum) event. No action required. Terminated 35 document as a MOTION and re−titled it as a MEMORANDUM. (DLC) (Entered: 04/26/2013)

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04/26/2013 04/30/2013 05/02/2013
05/14/2013 07/03/2013
07/17/2013 08/14/2013 09/04/2013
09/24/2013 10/02/2013
10/02/2013 10/02/2013 07/10/2014 07/14/2014 07/16/2014

36 MOTION for Leave to File a Reply in Further Support of Plaintiffs' Motion for Class Certification by R.A.G. by parent, R.B.. (Attachments: # 1 Affidavit in Support, # 2 Certificate of Service)(Goldstein, Bruce) (Entered: 04/26/2013)
37 TEXT ORDER. IT HEREBY IS ORDERED THAT, Plaintiffs' 36 Motion for Leave to Submit a Reply to Defendants' 35 Sur−Reply and in Further Support of Plaintiff's 5 Motion for Class Certification, is GRANTED. SO ORDERED. Issued by William M. Skretny, Chief Judge U.S.D.C. on 4/29/2013. (CMD) (Entered: 04/30/2013)
38 REPLY/RESPONSE to re 35 MOTION to Stay re 29 Response to Motion, 28 Reply to Response to Motion Memorandum of Law in Further Support of Motion to Stay and in Further Opposition to Plaintiff's Motion for Class Certification , in Reply to Defendants' Sur−Reply and in Support of Motion for Class Certification filed by R.A.G. by parent, R.B.. (Attachments: # 1 Certificate of Service)(Goldstein, Bruce) (Entered: 05/02/2013)
39 TEXT ORDER. Status conference scheduled for 5/15/2013 at 11:00 a.m. is cancelled pending disposition of the pending motions.. Issued by Hon. Leslie G. Foschio on 5/14/2013. (SDW) (Entered: 05/14/2013)
40 DECISION AND ORDER GRANTING Plaintiffs' 5 Motion for Class Certification; DENYING Defendants' 24 Cross−Motion for a Stay of the Class Certification Determination; CERTIFYING the proposed class pursuant to Rule23(b)(2), consistent with the foregoing decision; APPOINTING the firm of Goldstein, Ackerhalt & Pletcher, LLP class counsel pursuant to Fed. R. Civ. P. 23(c)(1)(B). Signed by William M. Skretny, Chief Judge U.S.D.C. on 6/30/2013. (MEAL) (Entered: 07/03/2013)
41 ORDER. Scheduling Conference set for 9/4/2013 10:00 AM before Hon. Leslie G. Foschio. Signed by Hon. Leslie G. Foschio on 7/17/2013. (SDW) (Entered: 07/17/2013)
42 NOTICE by Pamela C. Brown, Buffalo City School District Board of Education, R.A.G. by parent, R.B. of Proposed Scheduling Order (Sullivan, Richard) (Entered: 08/14/2013)
43 Minute Entry for proceedings held before Hon. Leslie G. Foschio: Scheduling Conference held on 9/4/2013. Defendant granted adjournment as they are seeking appeal of a Judge Skretny decision. Further Scheduling Conference set for 10/2/2013 11:00 AM before Hon. Leslie G. Foschio. Appearances: Pltf−Arthur Ackerhalt, Esq., Jay Fletcher, Esq. Dft−Jeffrey Weiss, Esq., Nathaniel Kuzma, legal counsel Buffalo Board of Ed. (Court Reporter FTR Gold.) (SDW) (Entered: 09/09/2013)
44 NOTICE of Appearance by Kelly S. Foss on behalf of All Defendants (Attachments: # 1 Certificate of Service)(Foss, Kelly) (Entered: 09/24/2013)
45 Minute Entry for proceedings held before Hon. Leslie G. Foschio: Scheduling Conference held on 10/2/2013. The Rule 16(b) hearing is adjourned generally until such time the 2d Circuit decides the intermediate appeal re: class certification. The court interpreted the Circuit's decision as granting Defendants' request for a stay. Appearances: Pltf: Bruce Goldstein, Arthur Ackerhalt, Esq.; Dft: Jeffrey Weiss, Esq. (Court Reporter FTR Gold.) (SDW) (Entered: 10/02/2013)
Petition that was filed with the Second Circuit by defendants pursuant to FRAP5(d)(2) to file an Appeal fee paid: $455.00, receipt number BUF037079. (DLC) (Entered: 10/02/2013)
46 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals (Attachments: #(1) Index). (DLC) (Additional attachment(s) added on 10/2/2013: # 2 Docket Sheet) (DLC). (Entered: 10/02/2013)
47 MANDATE the decision and order of the district court hereby is AFFIRMED. (DLC) (Entered: 07/10/2014)
48 ORDER affirming the Mandate and that it is made the Judgment of this Court. Signed by Hon. William M. Skretny on 7/13/2014. (DLC) (Entered: 07/14/2014)
49 MANDATE Petitioners, petition for leaveto appeal the district courts order granting Respondents motion for class certification is hereby ORDERED that the petition is GRANTED. The Petitioners are directed to file a scheduling notification within 14

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08/04/2014 08/04/2014
08/12/2014 09/12/2014 09/24/2014
11/25/2014
01/27/2015
03/13/2015 03/24/2015 03/24/2015 04/12/2018

days of the date of entry of this order pursuant to Second Circuit Local Rule 31.2. (DLC) (Entered: 07/16/2014)
50 CORRECTED MANDATE re 49 Mandate. Petitioner filed a petition for leaveto appeal the district courts order granting Respondents motion for class certification. Upon due consideration, it is hereby ORDERED that the petition is GRANTED. The Petitioners are directed to file a scheduling notification within 14 days of the date of entry of this order. (DLC) (Entered: 08/05/2014)
51 SECOND AMENDED MANDATE re 50 Corrected Mandate. The Appeal Court conclude that the district court did not abuse its discretion in determining that Plaintiffs class claims satisfied the commonality requirement under Rule 23(a)(2) of the Federal Rules of Civil Procedure. Plaintiffs entire case is predicated on a policy that is applied uniformly to all students thatqualify for supplemental services under the IDEA. We therefore affirm the district court on this ground as well. We have considered the remainder of Buffalo's arguments and find them to be without merit. Accordingly, the decision and order of the district court hereby is AFFIRMED. (DLC) (Entered: 08/05/2014)
52 ORDER that the 51 SECOND AMENDED MANDATE is made the Judgment of this Court. Signed by Hon. William M. Skretny on 8/12/2014. (DLC) (Entered: 08/12/2014)
53 TEXT ORDER. Status Conference set for 9/24/2014 11:00 AM before Hon. Leslie G. Foschio. Issued by Hon. Leslie G. Foschio on 9/12/2014. (SDW) (Entered: 09/12/2014)
54 Minute Entry for proceedings held before Hon. Leslie G. Foschio: Status Conference held on 9/24/2014. The parties have had settlement discussions and request 60 day adjournment to follow through with those discussions. Granted. Status / Scheduling Conference set for 11/25/2014 11:00 AM before Hon. Leslie G. Foschio. Appearances: Pltf: Bruce Goldstein, Esq., Dft: Jeffrey Weiss, Esq. (Court Reporter FTR Gold.) (SDW) (Entered: 09/24/2014)
55 Minute Entry for proceedings held before Hon. Leslie G. Foschio: Status Conference held on 11/25/2014. Parties report settlement in principle. Further Status Conference set for 1/27/2015 11:30 AM before Hon. Leslie G. Foschio and the parties are directed to report whether a fairness hearing will be required and if Judge Foschio will be conducting the hearing. Appearances: Pltf: Bruce Goldstein, Esq.; Dft: Jeffrey Weiss, Esq.; Buffalo City School District Law Dept: Nate Kuzma, Esq. (Court Reporter FTR Gold.) (SDW) (Entered: 11/25/2014)
56 Minute Entry for proceedings held before Hon. Leslie G. Foschio: Status Conference held on 1/27/2015. The parties have a written settlement agreement subject to the Buffalo Board of Education approval then the settement would be subject to the court's approval. Deft agrees. This may be possible at the 2/25/2015 Board of Education meeting. Further Status Conference set for 3/19/2015 11:30 AM before Hon. Leslie G. Foschio. Appearances: Pltf−Bruce Goldstein, Esq., Dft−Jeffrey Weiss, Esq. (Court Reporter FTR Gold.) (SDW) (Entered: 01/27/2015)
57 TEXT ORDER. Based on representations from the parties that the case has settled, the Status Conference scheduled for 3/19/2015 is cancelled. Issued by Hon. Leslie G. Foschio on 3/13/2015. (SDW) (Entered: 03/13/2015)
58 STIPULATION AND ORDER OF SETTLEMENT. Signed by William M. Skretny, Senior United States District Judge. (CLERK TO FOLLOW UP). (CMD) Modified to add language for followup on 3/24/2015 (CMD). (Entered: 03/24/2015)
59 Sealed Document. (CMD) (Entered: 03/24/2015)
File is archived at the Federal Records Center. Location information:
Accession RG 21 FY 18 Number 0060 Box 12
To obtain copies of documents for a fee, you may contact the Federal Records Center directly at their website: http://www.archives.gov/frc/. They will require the location information contained in this entry. You may also contact the Clerks office to have the

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file shipped to the Court for your review or for copies of documents. Please refer to the current fee schedule to determine the cost to obtain documents or order the file for review. The fee schedule is located on our Public Web Site: http://www.nywd.uscourts.gov/fee−schedule. (edwards, melvin) (Entered: 04/12/2018)

 
 Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 1 of 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

RA-G. by her parent, R.B., individually and on behalf of all others (parents and

12 cv

0960

\
·--..... ~----~

students) similarly situated

Plaintiffs

COMPLAINT

v.

CLASS ACTION

BUFFALO CITY SCHOOL DISTRICT BOARD OF EDUCATION and PAMELA C. Defendants BROWN, Superintendent

PRELIMINARY STATEMENT 1. This is a class action to remedy the Defendant's practices, customs, policies and/or
procedures which deny the provision of a free appropriate public education ("FAPE") to, and which violate other federal statutory rights of, educationally disabled children who attend public school in the Buffalo City School District (hereinafter "District") and/or who are entitled to services from the District, and which deny parents of such children their legal rights under the Individuals with Disabilities Education
Improvement Act (IDEIA), 20 U.S.C. § 1400, et. seq ..
2. Plaintiff RA-G., hereinafter "Student," attends school in the Buffalo City School District and brings this action by her parent and Plaintiff herein, RB. (hereinafter "Parent"), who is a resident of the District. Said student and numerous similarly situated students (present and future) are educationally disabled and classified as such by the District's Committee(s) on Special Education ("CSE")(s).
3. Defendants have failed to meet their statutory and regulatory obligations to Student and numerous similarly situated children attending the District, or who are entitled to

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services from the District, and to Parent and similarly situated parents of such children. 4. Defendants' practices, customs, policies and/or procedures fail to comply with the applicable statutes and regulations requiring that children with disabilities timely and promptly receive related services (e.g.- speech and language therapy, occupational therapy, physical therapy) to be provided pursuant to their respective Individual Educational Programs (IEPs) as determined on an individual basis (rather than based on policy, practice, custom and/or procedure), and requiring that parents of such children be afforded meaningful participation in the educational decision-making process. 5. Defendants maintain and implement a policy by which the District does not provide the related services to be provided via students' IEPs during the first two weeks of the school year (or longer), irrespective of any individual student's need for such related services at the inception of the school year. 6. Defendants, consistent with their policy, did not implement the related services (i.e. speech and language therapy) to be provided via the Student's IEP until September 23, 2011, more than two weeks after the inception of the 2011-12 school year. Defendants delayed providing such services despite the absence of the Parent's approval, consent, or input into such decision. 7. Plaintiffs challenged Defendants' unlawful policy and exhausted their administrative remedies by filing a due process complaint, participating in an impartial hearing, and appealing to the New York State Review Officer (SRO). This action is, in part, an appeal of the SRO's erroneous decision that Defendants' application of their unlawful

---------------------------
Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 3 of 14
policy to R.A-G. did not deny the Student a FAPE. 8. The specific relief Plaintiffs request is as follows:
a. a judgment declaring that Defendants' practices, customs, policies and/or procedures, deprive Plaintiff (Parent and Student) and similarly situated parents and students their statutory rights, are illegal and/or invalid, and are in contravention of Defendants' statutory duty to assure that Student and similarly situated students (1) promptly receive services at the start of the school year; and (2) receive services based on an individual assessment of the child, rather than based on general policy or practice; and that Parent and similarly situated parents are afforded their right to meaningfully participate in the decision-making process;
b. a preliminary and permanent injunction requiring Defendants to cease their unlawful practices and activities, to rescind their unlawful policy, and to provide students with disabilities the related services determined appropriate by the CSE, at the start of the school year based on individual assessment;
c. an order directing the provision of additional related services for the Student to compensate for Defendants' implementation of its unlawful policy and practice, which resulted in Defendants' failure to provide the Student with related services at the start of the school year;
d. an order directing Defendants to pay the costs and disbursements incurred by Plaintiffs in commencing and maintaining this action, and reasonable attorneys' fees pursuant to 20 U.S.C. § 1415(e)(4) and/or this Court's general equity powers;

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e. such other and further relief as to this Court may deem just and proper. JURISDICTION
9. Jurisdiction is conferred on this Court by 20 U.S.C. § 1415(e) and 29 U.S.C. § 794 which provide this Court with jurisdiction over any action brought pursuant to said section without regard to the amount in controversy. The declaratory relief is sought pursuant to 28 U.S.C. § 2201 and § 2202.
10. This complaint also sets forth causes of action arising under the laws of the State of New York, which are incorporated into the standards applicable under 20 U.S.C. § 1401, et. seq.
11. This complaint also sets forth a cause of action arising under Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794.
12. Plaintiffs herein, and the class they seek to represent, have no adequate remedy at law and have suffered and will continue to suffer irreparable harm unless the District, including its agents, representatives and/or employees, are restrained from continuing their unlawful practices. PLAINTIFFS
13. R.A-G. ("Student") was born in 1999, resides in the Buffalo City School District and most recently attended Math, Science and Technology School #197 as a seventh grade student.
14. R.B. ("Parent"), resides in the Buffalo City School District and brings this action individually and on behalf of her daughter, the Student, and on behalf of all other similarly situated parents and students. DEFENDANTS

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 5 of 14
15. The Buffalo City School District is a "local educational agency" within the meaning of 20 U.S.C. § 1401 (8).
16. The District receives substantial state and federal funds earmarked for the provision of special education programs and services for educationally disabled children.
17. The District is obligated to comply with all federal and state laws and regulations relating to the education of students with disabilities.
18. The District's Board of Education is responsible for the overall operation of the District's schools in compliance with state and federal law.
19. Defendant, Pamela C. Brown, Ed.D. is the Superintendent and Chief Administrator of the Buffalo City School District and is responsible for the overall operation of the District's schools in compliance with state and federal law. FACTUAL ALLEGATIONS
20. Student is classified by the defendant District's CSE as learning disabled. 21.An Individualized Education Program (IEP) was developed by a District CSE for the
Student on or about May 19, 2011. 22. Such IEP, dated May 19, 2011, recommended that the Student receive related
services, including speech and language therapy. 23. The Student's IEP, dated May 19, 2011, recommended the Student receive speech
and language therapy three times per six day cycle. 24. The Student's IEP, dated May 19, 2011, identified September 7, 2011, as the
projected date for the beginning of the Student's related services. 25. There is no indication within the IEP that any alternative projected date for the
beginning of services was in effect for any special education, related service, and/or

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supplementary aid and service identified on the IEP (pursuant to District policy, CSE determination, or otherwise). 26. There is no indication that the Student's CSE made a determination that the Student's individual needs called for a projected start date different than September 7, 2011. 27. The District issued a policy memorandum mandating that related services for all students in the District were not to start until the third week of the school year. Such policy memorandum was issued at some point prior to the 2011-12 school year. 28.A prior written notice document entitled "Proposed Amendment to IEP without a Committee Meeting" was sent to the Parent prior to the 2011-12 school year. 29. Such "Proposed Amendment to IEP without a Committee Meeting" proposed to amend the Student's IEP so that "Speech/Language therapy ... start date to follow district policy- start date 9/21/2011." 30. Such "Proposed Amendment to IEP without a Committee Meeting" was sent to the Parent again after the school year began but prior to the implementation of the related services identified on the Student's IEP. 31. The proposed amendment to the Student's IEP, namely the change of the start date of related services, was based on the District's policy exclusively, and not as a result of any meeting and discussion by the CSE, including the parent, nor individual assessment of the needs of the Student, nor any recommendation by the CSE of the appropriateness of delaying the implementation of related services of the Student. 32. The District did not convene, nor request the convening of, a CSE meeting to discuss the appropriateness of an amendment to the Student's IEP. 33. The Parent did not sign any "Proposed Amendment to IEP without a Committee

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 7 of 14
Meeting," and did not approve nor consent to any modification of the Student's May 19, 2011 IEP (including the proposed starting date of related services). 34. Notwithstanding the absence of the Parent's approval or consent to amend the Student's IEP, the District, consistent with its policy, did not implement the related services recommended in the Student's IEP until September 23, 2011. 35.As a result of the District's across the board policy, the Parent was denied her right to meaningfully participate in the development and implementation of the Student's IEP, and the child was denied provision of services based on an individual assessment of appropriateness. 36.1n addition, as a result of Defendants' practices, customs, policies and/or procedures, the Student was denied her right to a FAPE. 37. On or about October 3, 2011, the Parent, through her attorneys, requested an administrative hearing to address the District's violations of the Student's right to a FAPE. 38.1n his decision, the impartial hearing officer (IHO) determined that the District failed to commence speech and language therapy on September 7, 2011. 39. Notwithstanding such determination, the IHO determined that such failure to commence speech and language therapy did not rise to the level of a denial of a FAPE. 40. The Parent appealed such determination to the State Review Officer (SRO) and the SRO rendered his decision (fifty-six (56) days late). 41. The SRO erroneously determined that the delay in commencement of speech and language therapy did not constitute a material failure to implement the Student's IEP,

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 8 of 14
and erroneously concluded that the Student was not denied a FAPE. 42. Plaintiffs have exhausted their administrative remedies.
CLASS ACTION ALLEGATIONS 43. The class consists of children, and parents of children, between the ages of 5 and 21
residing in the Buffalo City School District, present and future, who are classified as disabled per the definition in the Individuals with Disabilities Education Improvement Act ("IDEIA") (20 U.S.C. § 1400, et. seq.), and receive related services. 44. The members of this class are so numerous as to make joinder impracticable. 45. There are questions of law and fact common to the members of this class, namely whether the District is violating the substantive and procedural rights of the class members, which rights are guaranteed to students with disabilities by the laws of the United States, including their statutory and regulatory right to a FAPE and their parents' procedural rights conferred under the Individuals with Disabilities Education Improvement Act (20 U.S.C. §1400 et. seq.), the New York State Education Law and regulations and other statutes. In particular, the failure of the District to implement and provide related services (e.g.- speech and language therapy, occupational therapy, and physical therapy) provided for on students' IEPs during the first two weeks of the school year and whether this violates 20 U.S.C. § 1400 et. seq .. 46. The claims of the named plaintiffs are typical of the claims of the class. The named plaintiffs will fairly and adequately protect the interests of this class, as their interests do not, in any way, conflict with the interests of the class sought to be represented. The individual claims are not such that they can easily be compromised to the detriment of the claims of the class as a whole. Moreover, counsel for the named

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 9 of 14
plaintiffs will vigorously pursue this action on behalf of the named plaintiffs and presently unnamed class plaintiffs. 47. The District has acted, and failed to act on grounds generally applicable to all of the class members. The District's practices, customs, policies and/or procedures, of which plaintiffs complain, have had, and are having, a similar impact upon the plaintiffs and the class they seek to represent. Correction of these violations will benefit all of the class members. The relief sought herein applies to the class as a whole and not merely to any particular individual or group of individuals.
STATUTORY AND REGULATORY FRAMEWORK 48. The IDElA requires school districts to provide FAPE, including special education and
related services, to students who are educationally disabled. See, 20 U.S.C. § 1400 et seq., 34 C.F.R. Part 300, N.Y.S. Education Law§ 4401 et seq., and 8 N.Y.C.R.R. Parts 200 and 201. 49. The IDEIA establishes a system of procedural and substantive requirements to which school districts must adhere to ensure that each child with a disability receives a FAPE. 20 U.S.C. § 1401 et seq. 50. The IDElA and its implementing regulations require that a FAPE be determined by an appropriately constituted IEP Team (in New York, such Team is denominated as a "CSE"). 20 U.S.C. § 1414(A)-(B); 34 C.F.R. § 300.321; N.Y. Education Law§ 4402(b)(1 ); 8 N.Y.C.R.R. § 200.1 (k). 51. The IDEIA and its implementing regulations require that an IEP Team's (in New York, a "CSE") determination of an IEP be based on an assessment and determination of the student's individual needs. 20 U.S.C. § 1414(d); 34 C.F.R. §§ 300.320-300.324.

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 10 of 14
52. The IDElA and its implementing regulations require that the student's parent be included as a member of any such CSE, and be afforded the opportunity to meaningfully participate in the decision-making process. 20 U.S.C. §§ 1414(d)(1)(B)(i), 1414(e); 34 C.F.R. §§ 300.321 (a)(1 ), 300.322; N.Y. Education Law§ 4402(b)(1 )(a); 8 N.Y.C.R.R. § 200.3.
53. Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794 and with implementing regulations at 34 C.F.R. §§ 104.31-104.39, prohibits any entity that receives federal financial assistance from discriminating against individuals with disabilities. ADDITIONAL FACTUAL ALLEGATIONS
54. As alleged hereinbefore, Defendants have failed to fulfill their legal obligations to assure that the Student, and similarly situated students, are promptly and properly provided the related services to which they are entitled.
55. Defendants, due to their policy, procedure, custom and/or practice, as a general rule do not provide related services at the beginning of the school year, but rather delay services until not sooner than the third week of school.
56. The District receives federal financial assistance. 57. Defendants, due to the policy, procedure, custom and/or practice, discriminate
against the Student, and similarly situated students, by failing to provide related services at the beginning of the school year. 58. Services provided to non-disabled students are not subject to the Defendants' unlawful policy, procedure, custom and/or practice, and are routinely provided from the outset of the school year.

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 11 of 14
59. Upon information and belief, Defendants have failed to adopt and/or implement practices, customs, policies and/or procedures to assure that educationally disabled children's IEPs are adequately and/or properly formulated and implemented.
60. Upon information and belief, Defendants' practices, customs, policies and/or procedures deny parents their right to meaningfully participate in the educational decision-making process. FIRST LEGAL CLAIM
61. Plaintiffs repeat, reallege and incorporate hereunder by reference the allegations contained in paragraphs 1 through 60 above.
62.As set forth above, the District has substantively failed to provide the Student and similarly situated students with a FAPE, as mandated under the IDEIA (20 U.S.C. § 1400, et seq., 34 C.F.R. Part 300). SECOND LEGAL CLAIM
63. Plaintiffs repeat, reallege and incorporate hereunder by reference the allegations contained in paragraphs 1 through 62 above.
64. As set forth above, the District has procedurally failed to provide the Student and similarly situated students with a FAPE, as mandated under the IDEIA (20 U.S.C. § 1400, et seq., 34 C.F.R. Part 300). THIRD LEGAL CLAIM
65. Plaintiffs repeat, reallege and incorporate hereunder by reference the allegations contained in paragraphs 1 through 64 above.
66. As set forth above, the District has failed to make individual assessments of the needs of the Student, and similarly situated students, as mandated under the IDElA (20

Case 1:12-cv-00960-WMS-LGF Document 1 Filed 10/11/12 Page 12 of 14
U.S.C. § 1400, et seq., 34 C.F.R. Part 300). FOURTH LEGAL CLAIM
67. Plaintiffs repeat, reallege and incorporate hereunder by reference the allegations contained in paragraphs 1 through 66 above.
68.As set forth above, the District has denied the Parent, and similarly situated parents, meaningful participation in the decision-making regarding their children, as mandated under the IDEIA (20 U.S.C. § 1400, et seq., 34 C.F.R. Part 300). FIFTH LEGAL CLAIM
69. Plaintiffs repeat, reallege and incorporate hereunder by reference the allegations contained in paragraphs 1 through 68 above.
70.As set forth above, the District has failed to implement the related services provided for on the IEP of the Student, and similarly situated students, at the beginning of the school year, as mandated under the IDEIA (20 U.S.C. § 1400, et seq., 34 C.F.R. Part 300). SIXTH LEGAL CLAIM
71. Plaintiffs repeat, reallege and incorporate hereunder by reference the allegations contained in paragraphs 1 through 70 above.
72. As set forth above, the District has violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and discriminated against the Student, and similarly situated students, by failing to provide services to such disabled students where services for non-disabled students are no so delayed.
WHEREFORE, Plaintiffs respectfully request that this Court assume and retain

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jurisdiction over this action and issue the following relief: a. a judgment declaring that Defendants' practices, customs, policies and/or procedures, deprive Plaintiff (Parent and Student) and similarly situated parents and students their statutory rights, are illegal and/or invalid, and are in contravention of Defendants' statutory duty to assure that Student and similarly situated students (1) promptly receive services at the start of the school year; and (2) receive services based on an individual assessment of the child, rather than based on general policy or practice, and that Parent and similarly situated parents are afforded their right to meaningfully participate in the decision-making process; b. a preliminary and permanent injunction requiring Defendants to cease their unlawful practices and activities, to rescind their unlawful policy, and to provide students with disabilities the related services determined appropriate by the CSE, at the start of the school year based on individual assessment; c. an order directing the provision of additional related services for the Student to compensate for Defendants' implementation of its unlawful policy and practice, which resulted in Defendants' failure to provide the Student with related services at the start of the school year; d. an order directing Defendants to pay the costs and disbursements incurred by Plaintiffs in commencing and maintaining this action, and reasonable attorneys' fees pursuant to 20 U.S.C. § 1415(e)(4) and/or this Court's general equity powers; e. such other and further relief as to this Court may deem just and proper.

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DATED: October 13, 2012 Buffalo, New York

GOLDSTEIN, ACKERHA , & PLETCHER, LLP Attorneys for Plaintiffs Bruce A. Goldstein Arthur H. Ackerhalt Jay C. Pletcher bgoldstein@gapattorneys.com aackerhalt@gapattorneys.com jpletcher@gapattorneys. com 70 Niagara Street, Suite 200 Buffalo, New York, 14202

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
R. A-G, by her parent, R.B., individually and on behalf of a class of others (parents and students) similarly situated,
Plaintiffs, v.
BUFFALO CITY SCHOOL DISTRICT BOARD OF EDUCATION, and PAMELA C. BROWN, Superintendent,
Defendants.

DECISION AND ORDER 12-CV-960S

I. INTRODUCTION Plaintiffs commenced this putative class action alleging, among other things, that Defendants’ policies and procedures with respect to educationally disabled children attending school in the Buffalo City School District violate the rights of those children and their parents under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq. Presently before this Court is Plaintiffs’ motion to certify class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Also before this Court is Defendants’ cross-motion to stay class certification pending resolution of an as yet unfiled summary judgment motion. For the reasons that follow, Defendants’ motion is denied and Plaintiffs’ motion is granted.

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II. BACKGROUND A. Statutory Background
The purpose of IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). A key component to achieving this goal is the individualized education program, or “IEP,” which is a written statement jointly created annually by a team consisting of educators and the parents of the disabled child. 20 U.S.C. §§ 1401 (14), 1414(d). In New York, that team is referred to as a Committee on Special Education, or a “CSE.” N.Y. Educ. Law § 4402; 8 N.Y.C.R.R. § 200.3(a)(1); see T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., – F. Supp. 2d –, 2013 WL 1187479, *1 (S.D.N.Y. 2013). The CSE examines the student’s specific individual needs and develops an IEP that is “ ‘reasonably calculated to enable the child to receive educational benefits.’ ” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012), cert denied, – U.S. –, 2013 WL 1418840 (June 10, 2013)(quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed.2d 690 (1982)); D.N. v. N.Y.C. Dep’t of Educ., 905 F. Supp. 2d 582, 584 (S.D.N.Y. 2012).
An IEP must include “a statement of the special education and related services and supplementary aids and services” that will be provided in order for the child to be able to advance toward the specified annual goals. 20 U.S.C. § 1414 (d)(1)(A)(i)(IV). “The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from
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special education.” 20 U.S.C. § 1401(26)(A); see Cedar Rapids Community Sch. Dist. v. Garret F. Ex rel. Charlene F., 526 U.S. 66, 73, 119 S. Ct. 992, 143 L. Ed. 2d. 154 (1999). “As a general matter, services that enable a disabled child to remain in school during the day provide the student with the meaningful access to education that Congress envisioned.” Garret F. ex rel. Charlene F., 526 U.S. at 73 (internal quotation marks omitted). Related services therefore include a range of supportive services, such as transportation, speech pathology and audiology services, psychological services, physical and occupational therapy, therapeutic recreation, social work services, counseling services, and diagnostic and evaluative medical services. Id.; see 20 U.S.C. § 1401(26), (33).
The provisions of IDEA also “ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400 (d)(1)(B); Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002). “[P]arents of students with disabling conditions are guaranteed ‘both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.’ ” Cave v. East Meadow Union Free School Dist., 514 F.3d 240, 245 (2d Cir. 2008) (quoting Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). Parents are also entitled to present complaints regarding “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” and to an impartial due process hearing on that complaint. 20 U.S.C. § 1415(b)(6)(A), (f)(1)(A); Polera, 288 F.3d at 482.
In New York, this hearing process consists of a two-tier administrative system for reviewing IEPs. Cave, 514 F.3d at 245. “First, an impartial hearing officer is selected from
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a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision.” Id. A parent may appeal that decision to a state review officer of the New York Education Department. Id. (citing Heldman ex rel. v. Sobel, 962 F.2d 148, 152 (2d Cir. 1992)); see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(1)-(2). Any party aggrieved after utilizing these procedures may “bring a civil action with respect to the complaint presented” in state or district court. 20 U.S.C. § 1415(i)(2)(A). B. Factual Background
Plaintiff R. A-G. is a student in the Defendant Buffalo City School District (“the District”) and is classified by the District as learning disabled. (Compl. ¶¶ 2, 20, Docket No. 1.) The District’s CSE prepared the Plaintiff student’s IEP for the 2011-2012 school year in May 2011. (Compl. ¶ 21.) Her IEP indicated that she required integrated co-teaching services daily and three 30 minute sessions of related services per six day cycle, specifically speech and language small group therapy. (Compl. ¶ 22-23; Attorney Aff. of Bruce A. Goldstein, Esq., Ex. A, Docket No. 5 (Plaintiff student’s IEP).) At that time, the start date for both co-teaching and the related services was identified as September 7, 2011, the first week of school. (Compl. ¶ 24; Goldstein Aff. Ex A.)
Prior to the commencement of the 2011-2012 school year, the District sent Plaintiff R.B., R. A-G’s parent, a written notice of a “Proposed Amendment to IEP without a Committee Meeting.” (Compl. ¶ 28; Goldstein Aff. ¶ 9, Ex. B.) The notice was signed by the CSE Chairperson, and indicated that the Committee was proposing to amend the IEP in order to correct certain “clerical errors on the 2011-2012 IEP following the 2011 Annual Review.” (Goldstein Affid. ¶ 9, Ex. B.) The proposed changes included altering the start
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date of the Plaintiff student’s speech and language therapy to September 19, 2011 “to follow district policy.” (Id.) A form was included to allow the Plaintiff parent to sign and authorize the purported clerical changes without an additional meeting. (Id.) The Plaintiff parent was informed that if written consent was not received to amend the student’s IEP, the District would schedule a meeting with the CSE. (Id.) The Plaintiff parent did not sign the consent form, but no CSE meeting was ever scheduled. (Compl. ¶¶ 32-34; Goldstein Aff. ¶ 12.) An additional notice was dated September 22, 2011, which included a handwritten notation changing the related services start date from September 19th to September 21st. (Goldstein Aff. ¶ 11, Exs. C, D at 5.) The parties do not dispute that, although co-teaching of the Plaintiff student commenced at the beginning of the school year, her related services did not begin until September 23, 2011. (Compl. ¶ 34; Aff. of Kim H. Curtin ¶ 7, Docket No. 24.)
The Plaintiff parent, through counsel, requested an administrative hearing to address alleged violations of the Plaintiff student’s rights. (Compl. ¶ 37; Goldstein Aff. ¶ 15.) It was alleged in the administrative complaint that: (1) speech and therapy services were not provided until three weeks after the start of the school year; (2) the Plaintiff student was not consistently receiving class notes daily as required by her IEP; and (3) the CSE failed to recommend occupational therapy services as required by a prior agreement. (Affirm. of Jeffrey J. Weiss, Esq. ¶ 4, Ex. A (due process complaint notice).) It was further asserted that the failure to implement the IEP resulted in a denial of the Plaintiff student’s right to the free, appropriate public education (commonly referred to as a “FAPE”). (Id.)
A hearing was held before an impartial hearing officer in December 2011. (Compl. ¶ 38; Weiss Affirm. ¶ 5, Ex. B.) During his opening statement at the hearing, Plaintiffs’
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counsel asserted that the District had a “district wide policy that related services will not begin until the third week of school, regardless of what the IEP says,” which counsel argued was in violation of federal law and state regulations. (Weiss Affirm. Ex. D (pg. 24).) The hearing officer noted that he was constrained to the issues raised in the administrative complaint, and was not “to determine whether the city school district or the City of Buffalo is following laws generally.” (Id. (pg. 27-29).) In a written decision, the hearing officer determined that “[t]he minor flaws in [the] District’s special education program offered to Student, as raised in Parent’s Due Process Complaint . . . fail to establish that Student was denied her entitlement to a [FAPE],” and dismissed the due process complaint. (Weiss Affirm. Ex. B (pg. 14).)
Plaintiffs appealed the decision to a state review officer. (Compl. ¶ 40; Weiss Affirm. Ex. E.) Plaintiffs argued on appeal that the Plaintiff student was denied a FAPE because, among other things, the District’s “across-the-board” policy of delaying commencement of related services resulted in a delay of services. (Weiss Affirm. Ex. E (pg. 5).) The state review officer declined to review this issue in the absence of an agreement to expand the scope of the impartial hearing to include issues not raised in the administrative complaint. (Id. at 8.) With respect to the issues that were raised, the state review officer found, after independent review, that there was no material failure in the District’s implementation of the Plaintiff student’s IEP for the 2011-2012 school year. (Compl. ¶¶ 40-41; Weiss Affirm. Ex. E (pg. 12).)
The Plaintiff parent commenced the instant action on behalf of herself and the Plaintiff student in this Court in October 2012. (Compl. ¶¶ 14, 43.) Plaintiffs allege that “Defendants maintain and implement a policy by which the District does not provide the
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related services to be provided via students’ IEPs during the first two weeks of the school year (or longer), irrespective of any individual student’s need for such related services at the inception of the school year.” (Compl. ¶ 5.) They claim that, as a result of this policy, the District substantially failed to provide the student class with a FAPE; failed to make individual assessments of students’ needs; denied parents meaningful participation in the decision-making regarding their children; and failed to implement students’ related services as required by IEPs, all in contravention of the mandates of IDEA. (Compl. ¶¶ 61-70.) Plaintiffs further allege that, in failing to provide services to disabled students when services for non-disabled students were provided, the District discriminated against the student members of the class in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. (Compl. ¶ 72.)
Plaintiffs therefore seek a judgment declaring that Defendants’ policy or practice of delaying related services deprives Plaintiffs, as well as similarly situated students and parents, of their statutory rights with respect to the prompt receipt of services at the beginning of the school year, receipt of services based on an individual assessment of each disabled student’s need, and the meaningful participation of parents in the IEP process. (Compl. at pg. 13.) Plaintiffs further seek: (1) a preliminary and permanent injunction precluding Defendants from continuing the unlawful practice or policy of delaying related services; (2) an order directing that compensatory educational services, specifically additional related services, be provided to the Plaintiff student to compensate for the unlawful policy; and (3) costs, disbursements, and reasonable attorneys’ fees. (Id.)
Plaintiffs presently move for certification of a class consisting of “children, and parents of children, between the ages of 5 and 21 residing in the Buffalo City School
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District, present and future, who are classified as disabled per the definition in [IDEA] . . . and receive related services.” (Compl. ¶ 43.) Defendants cross-move for a stay of the Court’s resolution of this motion or, alternatively, denial of class certification.
III. DISCUSSION A. Defendants’ Cross-Motion to Stay Determination of Class Certification
Defendants request a stay of Plaintiffs’ motion for class certification pending filing and resolution of a summary judgment motion on the merits of the action. (Defs’ Mem of Law at 6-7, Docket No. 24-3.) Rule 23(c) of the Federal Rules of Civil Procedure directs that a court must determine whether to certify an action as a class action “[a]t an early practicable time after a person sues or is sued as a class representative.” The issue of certification is generally considered prior to any summary judgment determination. Ironforge.com v. Paychex, Inc., 747 F. Supp. 2d 384, 388 n. 1 (W.D.N.Y. 2010); Mendez v. The Radec Corp., 260 F.R.D. 38, 45 (W.D.N.Y. 2009); see Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d Cir. 1998). Defendants are correct, however, that because the purpose of early certification is for the benefit of defendants, a defendant may waive this protection and move for a judgment on the merits before a decision on certification is made. Ironforge.com, 747 F. Supp. 2d at 388 n. 1; Mendez, 260 F.R.D. at 45; Larsen v. JBC Legal Group, P.C., 235 F.R.D. 191, 193-94 (E.D.N.Y. 2006). Indeed, “[t]here is nothing in Rule 23 which precludes the court from examining the merits of plaintiff's claims on a proper Rule 12 motion to dismiss or Rule 56 motion for summary judgment simply because such a motion precedes resolution of the issue of class certification.” Schweizer,
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136 F.3d at 239 (citation omitted). Nonetheless, the Court declines to exercise its discretion to enter a stay at this time.
Initially, no dispositive motion is currently pending. Although Defendants point out this is because the parties are engaged in mediation, this does not alter the fact that they seek a stay based on speculation regarding the success of as yet unbriefed motion for summary judgment. Moreover, it appears that several of Defendants’ anticipated dispositive arguments have already been raised in their opposition to Plaintiffs’ motion for certification, such as the assertion that the class claims of systemic violations are unexhausted and therefore not properly before this Court.
With respect to this issue, the fact that the Second Circuit has previously labeled IDEA’s exhaustion rule as jurisdictional weighs in favor of denying the stay. Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 203 (2d Cir. 2007) (citing Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 2002)). This Court has a duty to consider whether subject matter jurisdiction exists at the earliest opportunity, even if not raised by the parties. Fed. R. Civ. P. 12(h)(3); Cave v. East Meadow Union Free School Dist., 514 F.3d 240, 250 (2d Cir. 2008). Notably, however, more recent Second Circuit decisions have highlighted Supreme Court case law requiring the more careful distinction between jurisdictional requirements and “mandatory claims-processing rules,” stating that a clear conclusion on whether the failure to exhaust under IDEA is a jurisdictional bar or a waivable affirmative defense has not yet been reached. Coleman, 503 F.3d at 203-4 (citing Eberhart v. United States, 546 U.S. 12, 16, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005)); Paese v. Harford Life and Acc. Ins. Co., 449 F.3d 435, 444 n. 2 (2d Cir. 2006).
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Resolution of the jurisdictional nature of exhaustion is not required at this time. See Baldessarre ex rel. Baldessare v. Monroe-Woodbury Cent. Sch. Dist., 496 Fed. App’x 131, 133 (2d Cir. 2012) (acknowledging that exhaustion is still a jurisdictional rule in this Circuit, but noting that it is a distinction without a difference where defendants timely raise the issue). Even if exhaustion is an affirmative defense, courts must nonetheless consider potential defenses in assessing certification factors. Myers v. Hertz Corp.. 624 F.3d 537, 551 (2d Cir. 2010), cert denied, 132 S. Ct. 368 (2011); Public Employees' Retirement Sys. of Mississippi v. Goldman Sachs Group, Inc., 280 F.R.D. 130, 137 (S.D.N.Y. 2012). Thus, exhaustion is properly considered in the context of the certification motion, and delaying resolution of this issue for the purpose of allowing Defendants to raise it again in a future dispositive motion is unnecessary. Indeed, because the exhaustion and certification issues are fully briefed, the resolution of these arguments will not be a waste of the parties’ and judicial resources, as Defendants assert, but will instead help frame the proceedings moving forward, inasmuch as “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Wal-Mart Stores, Inc. v. Dukes, – U.S. –, 131 S. Ct 2541, 2552, 180 L. Ed. 2d 374 (2011) (internal quotation marks omitted). Defendants’ motion to stay a determination on certification pending the filing and resolution of a dispositive motion on the merits is therefore denied.
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B. Plaintiffs’ Motion for Class Certification In “an exception to the usual rule that litigation is conducted by and on behalf of the
individual named parties only,” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432, 185 L. Ed. 2d 515 (2013) (citation omitted), Rule 23 of the Federal Rules of Civil Procedure permits individuals to sue as representatives of an aggrieved class. Floyd v. City of New York, 283 F.R.D. 153, 160 (S.D.N.Y. 2012). “The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers, 624 F.3d at 547; see Levitt v. J.P. Morgan Securities, Inc., 710 F.3d 454, 465 (2d Cir. 2013). Rule 23(a) provides that a class action is appropriate only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); Levitt, 710 F.3d at 464. “[C]ertification is proper only if the trial court is satisfied, after rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc., 131 S. Ct at 2551 (internal quotation marks omitted). In addition to these prerequisites of numerosity, commonality, typicality, and adequacy, a proposed class action must fall within one of the three class categories described in Rule 23(b). Finally, courts have also added an implied ascertainability requirement that the class description is sufficiently definite for a determination whether a particular individual is a member of the proposed class. Flores v. Anjost Corp., 284 F.R.D. 112, 122 (S.D.N.Y. 2012); Catanzano by Catanzano v. Dowling, 847 F. Supp. 1070, 1078 (W.D.N.Y. 1994). Plaintiffs seek to represent all children, and parents of such children, between the
11

ages of 5 and 21 who reside in the District and receive related services due to their classification as disabled within the meaning of IDEA. (Compl. ¶ 43.) Plaintiffs assert that the questions of law and fact common to this class are whether Defendants’ policy or practice of not providing related services in the first two weeks of the school year to those students whose IEPs call for such services constitutes a systemic violation of rights guaranteed by IDEA and New York State Education Law and regulations. (Pl’s Mem of Law at 4-5, Docket No. 5-8.) Specifically, Plaintiffs allege that this policy or practice violates the student’s right to receive related services, the right to an individualized determination of need, meaningful participation of a student’s parents in that determination, and the timely implementation of required services. (Id.)
As discussed above, Defendants argue that this Court lacks subject matter jurisdiction over Plaintiffs’ claims of systemic violations because Plaintiffs failed to exhaust administrative remedies with respect to these claims. (Def’s Mem of Law at 8-13, Docket No. 24-3.) Defendants further argue that Plaintiffs cannot satisfy the prerequisites of Rule 23(a) with respect to Plaintiffs’ remaining allegation that Defendants failed to implement the Plaintiff student’s IEP, the only exhausted claim. (Id. at 13-22.)
1. Exhaustion of Administrative Remedies Plaintiffs’ class action claims are brought under IDEA and Section 504 of the Rehabilitation Act. “It is well settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004), cert denied, 544 U.S. 968 (2005); see 20 U.S.C. § 1415(i)(2)(A). “The exhaustion requirement ‘prevents courts from undermining the administrative process and permits an agency to bring its expertise to
12

bear on a problem as well as to correct its own mistakes.’ ” Polera v. Board of Educ. of Newburgh Enlarged City School Dist., 288 F.3d 478, 487 (2d Cir. 2002) (quoting Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992)). It is only after these procedures have been exhausted that a suit in state or federal court may be commenced. 20 U.S.C. § 1415(i)(2)(A); Cave, 514 F.3d at 245. Further, “[t]he exhaustion requirement also applies where plaintiffs seek relief under other federal statutes when relief is also available under the IDEA.” J.S. ex rel. N.S., 386 F.3d at 112; see 20 U.S.C. § 1415(l). Thus, the exhaustion requirement also applies to Plaintiffs’ additional Section 504 Rehabilitation Act claim in the instant case. J.S. ex rel. N.S., 386 F.3d at 112.
Here, Plaintiffs’ administrative complaint alleged a failure to implement the Plaintiff student’s IEP where: (1) her speech and therapy services were not provided until three weeks after the start of the school year; (2) the Plaintiff was not consistently receiving class notes daily as required by her IEP; and (3) the CSE failed to recommend occupational therapy services as required by a prior agreement. (Weiss Affirm. Ex. A.) As Defendants note, of these assertions only the alleged failure to timely provide related speech and therapy services appears in the present civil complaint, and although Plaintiffs’ counsel raised the issue of the improper policy at the hearing, it was not considered by either the impartial hearing officer or the state review officer. Defendants therefore argue that only the individual claim of delay in providing related services to the Plaintiff student may be considered by this Court. (Def’s Mem of Law at 8-13.)
Plaintiffs respond that all claims have been exhausted to the extent possible and, in any event, their allegations of Defendants’ systemic violations fall within an exception to the exhaustion requirement. (Pl’s Reply Mem of Law at 4-6, Docket No. 28-1.) As the
13

party asserting that an exception to this exhaustion requirement applies, Plaintiffs bear the burden of proof. J.S. ex rel. N.S., 386 F.3d at 112; Polera, 288 F.3d at 488 n. 8.
Although judicial review is normally not available under § 1415(i)(2)(A) until all administrative proceedings are complete, the Supreme Court has recognized that “parents may bypass the administrative process where exhaustion would be futile or inadequate.” Honig v. Doe, 484 U.S. 305, 326-27, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988); J.S. ex rel. N.S., 386 F.3d at 112; Heldman on Behalf of T. H. v. Sobol, 962 F.2d 158-59 (2d Cir. 1992). The Second Circuit in turn has specified that exhaustion is excused in cases where: (1) it would be futile to use the administrative due process procedures; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to law; or (3) defendants allegedly failed to implement services specified or otherwise clearly stated in a student’s IEP. Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir. 1987); see J.S. ex rel. N.S.. 386 F.3d at 113; Polera, 288 F.3d at 488-89; Kalliope R. Ex rel. Irene D. v. N.Y.S. Dep’t of Educ., 827 F. Supp. 2d 130, 138 (E.D.N.Y. 2010). These exceptions are grounded in the legislative history of IDEA, which recognized that there would be cases where exhaustion would be either legally or practically futile. Heldman, 962 F.2d at 158 n. 11.
“The futility exception is particularly relevant in actions, such as the one at hand, that allege systemic violations of the procedural rights accorded by IDEA.” Heldman, 962 F.2d at 158-59; Mrs. W., 832 F.2d at 757 (systemic violations claims unable to be adequately addressed at a due process hearing fall within the recognized categories); see Kalliope R., 827 F. Supp. 2d at 138. Systemic violations are exempted from the exhaustion requirement because they “are often the result of implemented policies and procedures, and administrative hearing officers do not have the ability to alter already existing policies.”
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S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 294 (S.D.N.Y. 2007). Indeed, because “claims of generalized violations . . . lend themselves well to class action treatment,” J.G. by Mrs. G. v. Bd. of Educ. of Rochester City Sch. Dist., 830 F.2d 444, 447 (2d Cir. 1987), exempting such claims from the individual administrative review process achieves the goal of promoting efficiency. J.S. ex rel. N.S., 386 F.3d at 113.
Here, Plaintiffs have alleged systemic violations. They allege that by maintaining a policy by which the District will not provide related services during the first two weeks of the school year, irrespective of any individual student’s need for such related services during that time, Defendants have precluded the CSE from making individual assessments of students’ needs; denied parents meaningful participation in the decision-making regarding their children; and prevented the implementation of students’ related services otherwise required by IEPs. (Compl. ¶¶ 61-70.) Thus, the argument is that the District adopted a policy that violates IDEA by hindering the IEP development and implementation process, requiring focus on the existence and scope of the alleged policy, “not whether a particular IEP is appropriate for a particular student.” Kalliope R., 827 F. Supp. 2d at 139; see J.S. ex rel. N.S., 386 F.3d at 115 (exhaustion not required where complaint challenged defendants’ total failure to prepare and implement an IEP, not the contents thereof). Indeed, the allegations here are consistent with acts already recognized by the Second Circuit to constitute exempt systemic violations, such as the failure to perform timely evaluations and reevaluations of disabled children, the failure to notify parents of meetings as required by law, and the failure to perform legally required responsibilities in a timely manner, including the provision of related services. J.S. ex rel. N.S.. 386 F.3d at 115.
Further, in considering whether exhaustion is exempted, courts “consider whether 15

administrative review would further the goals of developing facts making use of available expertise, and promoting efficiency.” J.S. ex rel. N.S., 386 F.3d at 113 (citing Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992)); see Kalliope R., 827 F. Supp. 2d at 137 (primary reason for exhaustion requirement is to utilize expertise of education administrators). As discussed, the Court will not be required to review whether a particular student’s IEP was insufficient to meet his or her particular educational needs, therefore the specialized educational expertise provided by the administrative process is not required. Kalliope R., 827 F. Supp. 2d at 139; J.S., 386 F.3d at 114-5.
Finally, based on his statements during the administrative hearing, it appears that the impartial hearing officer in the instant case believed that the issue of a District-wide policy was outside the scope of the hearing, not only because it was not raised in the administrative complaint, but also because Plaintiffs’ assertions of a systemic problem within the District were outside the officer’s jurisdiction. (Weiss Affirm. Ex. D (pg. 28-29).) The hearing officer stated that there were other “avenues to have, perhaps, the state education department review whether there are systemic problems within the district,” such as issues of whether the District was “following laws generally, but that is not within [the hearing officer’s] domain or jurisdiction.” (Id.) Thus, the record supports the assertion that it would have been futile for Plaintiffs to have pursued their systemic claims in this administrative proceeding.
Accordingly, contrary to Defendants’ contention, the Court is not precluded from considering whether certification of Plaintiffs’ “claims arising from an alleged ‘systemic’ decision to begin providing disabled students with related services after the first two weeks of school” is appropriate. (Defs’ Mem of Law at 10.)
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2. Rule 23(a) As noted above, “[t]o be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a): numerosity, commonality, typicality, and adequacy.” Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010). Here, Plaintiffs seek only declaratory and injunctive relief on behalf of the class for the claimed violations of IDEA and Section 504 of the Rehabilitative Act. Compensatory educational services, as alleged in the Complaint and clarified in Plaintiffs’ reply brief, are sought on behalf of only the currently named student Plaintiff, and therefore this claim will not be considered for certification. (Compl. at 13; Pls’ Reply Mem of Law at 8-9.); see Fed. R. Civ. P. 23(c)(4) (a class action may be maintained with respect to particular issues where appropriate).
i. Commonality Because the issue of commonality is the most sharply disputed, the Court will begin its Rule 23(a) analysis here. A party seeking certification must show “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This determination of commonality requires a plaintiff to establish that the claims of the proposed class depend upon a common contention or contentions “capable of classwide resolution – which means that determination of [the] truth or falsity [thereof] will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, Inc., 131 S. Ct. at 2551. Notably, although systemic violations “lend themselves well to class action treatment,” J.G. by Mrs. G., 830 F.2d at 447, mere conclusory allegations of such violations will not automatically satisfy Rule 23(a)’s commonality requirements. M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 844 (5th Cir. 2012). Defendant argues that commonality cannot be established because only students
17

who were denied a FAPE by the two week delay in related services could be members of the class. (Def’s Mem of Law at 16-19.) In so arguing, Defendants focus on the two-part inquiry for determining if a particular student has been denied a FAPE. This inquiry requires a court to first consider whether IDEA’s procedural requirements have been met, and then determine whether the IEP developed for the student through these procedures was reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-7; Grim v. Rhinebeck Central Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Thus, there are two types of claims under IDEA: procedural and substantive. Bryant v. N.Y.S. Educ. Dep’t, 692 F.3d 202, 212 (2d Cir. 2012), cert denied, 133 S. Ct. 2022 (2013). The Supreme Court has recognized that compliance with the “significant procedural provisions of IDEA ‘would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.’ ” Grim, 346 F.3d at 381 (quoting Rowley, 458 U.S. at 206). Nonetheless, as Defendants note, “not all procedural violations rise to the level of the denial of a ‘free appropriate public education,’ the primary substantive requirement of the statute.” A.M. ex rel. J.M. v. N.Y.C. Dep’t of Educ., 840 F. Supp. 2d 660, 685 (E.D.N.Y. 2012) (quoting Grim, 346 F.3d at 381), aff’d, 2013 WL 906110 (2d Cir. 2013).
This two-part inquiry for reviewing an administrative decision regarding an objection to an individual IEP, however, does not preclude a finding of commonality. J.S. ex rel. N.S. v. Attica Cent. Sch., No. 00-CV-513S, 2006 WL 581187, *5 (W.D.N.Y. Mar. 8, 2006) (collecting cases certifying IDEA class actions involving alleged systemic violations); see Grim, 346 F.3d at 381. The claims at issue in the instant case are ones that, as discussed, are exempt from this administrative process specifically because they are systemic, not
18

individual. In such cases, courts have held that the disparate impact of a challenged policy or regulation does not defeat class certification. L.V. v. N.Y.C. Dep’t of Educ., No. 03-Civ9917, 2005 WL 2298173, *3-4 (S.D.N.Y. Sept. 20, 2005); Ray M. by Juana D. v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 884 F. Supp. 696, 699 (E.D.N.Y. 1995); Louis M. by Velma M. v. Ambach, 113 F.R.D. 133, 136 (N.D.N.Y. 1986); Andre H. v. Ambach, 104 F.R.D. 606, 612 (S.D.N.Y. 1985); see P.V. v. School Dist. of Philadelphia, 289 F.R.D. 227, 233-34 (E.D. Pa. 2013); C.G. v Commonwealth of Pa. Dep’t of Educ., No. 06-cv-1523, 2009 WL 3182599, *5-6 (M.D. Pa. Sept. 29, 2009). “This is especially true where[, as here,] plaintiffs request declaratory and injunctive relief against a defendant engaging in a common course of conduct toward them, and there is therefore no need for individualized determinations of the propriety of injunctive relief.” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (emphasis in original) (cited in Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)); see generally Port Authority Police Benevolent Assoc. v. Port Authority, 698 F.2d 150, 153 (2d Cir. 1983) (denial of class certification improper where proposed class sought review of the policy or practice of denying promotion to employees who criticized the defendant employer, not the promotions themselves).
Similarly, a finding of commonality here would not, as Defendants argue, run afoul of the Supreme Court’s ruling in Wal-Mart, Inc. v. Dukes. 131 S. Ct. 2541. In Wal-Mart, Inc., the Court found that a policy of allowing local supervisors to exercise discretion over employment matters was “just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” but would instead require consideration of “literally millions of employment decisions at once.” Id. at 2552, 2554. In contrast, here a single District policy, one that allegedly precludes rather than permits
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discretion, is definable and equally applicable to members of this properly articulated class. Indeed, underlying every class member’s claim is the issue of whether Defendants implemented a policy that circumvented IDEA’s requirements with respect to related services. Thus, with respect to the alleged violations of IDEA, resolution of this issue will “generate [a] common answer[]” as to whether the CSE, which necessarily includes a disabled student’s parent or parents, was precluded from making an individualized assessment of need, and whether students were denied necessary related services as a result. Wal-Mart, Inc., 121 S. Ct. at 2551; cf. D.L. v. District of Columbia, 713 F.3d 120, 127-28 (D.C. Cir. 2013) (class certification improper where plaintiffs alleged violations of various IDEA requirements, but failed to identify a single or uniform policy or practice that bridged all the individual claims).
Similarly, the commonality requirement is also satisfied with respect to Plaintiffs’ Rehabilitation Act claim. Although a finding of intentional discrimination under Section 504 of the Rehabilitation Act requires something more than proof of a mere violation of IDEA, meaning more than evidence of a faulty IEP, the question common to the class will be whether the District acted in bad faith or with gross misjudgment in enacting this policy. See Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Central Sch. Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005); see generally Butler v. South Glens Falls Cent. Sch. Dist., 106 F. Supp. 2d 414, 420 (N.D.N.Y. 2000) (intentional discrimination properly inferred from enactment of policy with deliberate indifference to the “strong likelihood” that a violation of federally protected rights will result).
Thus, because Plaintiffs are challenging a single, definable policy of Defendants, they have sufficiently satisfied Rule 23(a)(2)’s requirement of identifying a common
20

question warranting class treatment. Wal-Mart, Inc., 131 S. Ct. at 2556 (reaffirming that only a single question is needed); Baby Neal, 43 F.3d at 57; Louis M., 113 F.R.D. at 136.
ii. Typicality The typicality requirement is driven by factors similar to those underlying the issue of commonality. Brown, 609 F.3d at 475; Marisol A., 126 F.3d at 376. “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993); Glatt v. Fox Searchlight Pictures, Inc., – F. Supp. 2d –, 2013 WL 2495140, *16 (S.D.N.Y. 2013). Here, the named Plaintiffs allege that they were harmed by, as concluded above, the same allegedly improper policy that undermines the claims of all proposed class members. The fact that Plaintiffs are seeking additional relief, specifically compensatory services, on top of and outside the scope of the class action claims does not undermine this conclusion.
iii. Numerosity Plaintiffs must also establish that the proposed class is so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). This criteria requires neither the complete impossibility of joinder nor evidence of the exact class size. Robidoux, 987 F.2d at 935; Glatt, 2013 WL 2495140 at *14; D.S. ex rel. S.S. v. N.Y. City Dep’t of Educ., 255 F.R.D. 59, 70-71 (E.D.N.Y. 2008). A reasonably estimated class of forty or more members raises a presumption of numerosity. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995), cert denied, 515 U.S. 1122 (1995). Plaintiffs assert that the number of children who are classified in the District as
21

educationally disabled and receive related services is too numerous for joinder. (Pls’ Mem of Law at 4.) Notably, where, as here, evidence regarding proposed class members is within the sole possession of defendants or membership in the proposed class is revolving, numerosity is generally recognized. J.S. ex rel. N.S., 2006 WL 581187 at *4. Moreover, Plaintiffs highlight Defendants’ own submissions recognizing that there are over 5,700 students classified as disabled in the District, many of whom receive one or more related services. (Pls’ Reply Mem of Law at 10-11 (citing Aff. of Kim Curtin ¶ 10, Docket No. 24-2).) The Court therefore finds the numerosity requirement satisfied.
iv. Adequacy To determine whether a named plaintiff “will fairly represent and adequately protect the interests of the class” as required by Rule 23(a)(4), courts inquire whether: “1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000); DeMarco v. Robertson Stephens Inc., 228 F.R.D. 468, 471 (S.D.N.Y. 2005). Initially, as noted above, the fact that Plaintiffs are seeking additional relief for the named student does not in this case render their interests antagonistic to those of the class. See Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990), cert denied, 498 U.S. 1025 (1991) (mere existence of individualized factual questions regarding class representative insufficient to defeat certification). In order for compensatory services to be warranted, Plaintiffs must first establish the claim underlying the class request for injunctive relief: that Defendants instituted a policy improperly that adversely affects the CSE’s ability to make a determination of individual need, the rights of parents to participate in that
22

determination, and the students’ right to receive services. Thus, any defense unique to the individual claim for compensatory services will not distract from the pursuit of this class relief. Gary Plastic Packaging Corp., 903 F.2d at 180; Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 344 n.102 (S.D.N.Y. 2004). Finally, Defendants do not dispute that Plaintiffs’ attorneys are qualified and have sufficient experience to conduct the litigation. (Defs’ Mem of Law at 20 n. 17.) The Court finds that the requirements of Rule 23(a)(4) are met.
3. Rule 23(b) Although Plaintiffs have established the four Rule 23(a) prerequisites, they must also show that the proposed class action falls within one of the three categories described in Rule 23(b). Plaintiffs assert that certification is proper under either Rule 23(b)(2) (classwide injunctive or corresponding declaratory relief appropriate) or Rule 23(b)(3) (superiority of class action to other methods). Rule 23(b)(2) allows certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Such is the case here, where Plaintiffs seek only injunctive and declaratory relief with respect to the class claims. Defendants oppose this categorization, raising the same argument which they use to oppose a finding of commonality: that injunctive relief would need to be specified to the unique circumstances of each student class member. As framed in the Complaint, however, the relief sought by Plaintiffs is more broadly applicable. Plaintiffs seek a declaration that Defendants’ policy precludes individualized assessment, as well as sufficient parental involvement and the implementation of services, and should therefore be discontinued, not that prior individualized assessments with respect to related services
23

were improper. A determination that such declaratory and injunctive relief is warranted would not therefore require consideration of the sufficiency of the services included in the individual IEPs of the student class members, instead the ordered relief, if warranted, would be equally applicable to all members of the proposed class.
In light of the conclusion that certification is proper under Rule 23(b)(2), the Court will not address whether certification would also be proper under Rule 23(b)(3).
IV. CONCLUSION Based on the foregoing, the Court declines to exercise its discretion to stay determination of class certification, and Defendants’ cross-motion is denied. Plaintiffs have met their burden of establishing by a preponderance of the evidence that the requisites of Rule 23 have been met, and therefore their motion is granted. The Court therefore orders that the class of “children, and parents of children, between the ages of 5 and 21 residing in the Buffalo City School District, present and future, who are classified as disabled per the definition in [IDEA] . . . and receive related services” to be certified under Rule 23(a) and (b)(2) with respect to Plaintiffs’ claims for injunctive and declaratory relief. The parties are nonetheless reminded that “[c]lass certification decisions by their nature are conditional, and a court has the power to alter or modify the class description if subsequent events suggest that it is appropriate to do so.” Levy, 780 F.Supp. at 905; see Fed. R. Civ. P. 23(c).
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V. ORDERS IT HEREBY IS ORDERED that Plaintiffs’ Motion for Class Certification (Docket No. 5) is GRANTED; FURTHER, that Defendants’ Cross-Motion for a Stay of the Class Certification Determination (Docket No. 24) is DENIED; FURTHER, that the proposed class is certified pursuant to Rule23(b)(2), consistent with the foregoing decision; FURTHER, that, pursuant to Fed. R. Civ. P. 23(c)(1)(B), the firm of Goldstein, Ackerhalt & Pletcher, LLP is appointed class counsel. SO ORDERED. Dated: June 30, 2013
Buffalo, New York /s/William M. Skretny WILLIAM M. SKRETNY
Chief Judge United States District Court
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 Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

R.A-G. by her parent, R.B., individually and on behalf of all others (parents and students) similarly situated
Plaintiffs
-against-
BUFFALO CITY SCHOOL DISTRICT BOARD OF EDUCATION and PAMELA C. BROWN, Superintendent
Defendants

STIPULATION AND ORDER OF SETTLEMENT
Civil Action No. 12-CV-0960

WHEREAS, plaintiffs commenced the instant lawsuit on October 13, 2012, in the United States District Court for the Western District of New York, Docket No. 12 CV 0960, alleging that defendants violated the Individual with Disabilities Education Improvement Act ("IDEIA), 20 U.S.C. §1400 et.seq., by depriving the class of a Free and Appropriate Public Education (FAPE); and
WHEREAS, plaintiffs further allege that the defendants violated the IDEIA by failing to provide members of the class timely and prompt related services, such as speech and language therapy, and by failing to afford members of the class individualized determinations and meaningful participation in the educational decision making process; and

Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 2 of 7
WHEREAS, defendants Pamela C. Brown, in her official capacity as Superintendent of the Buffalo City School District, and the Buffalo City School District Board of Education (BOE Defendants) deny each and every allegation contained in the complaint; and
WHEREAS, on November 2, 2012 Plaintiffs filed a Notice of Motion and Motion for Class Certification in connection with the aforementioned Complaint and Defendants thereafter filed a Cross-Motion to either stay resolution of the issue of class certification pending Defendants making a future dispositive motion to dismiss the lawsuit on the merits, or to deny class certification, and on June 30, 2013 the Honorable William M. Skretny granted Plaintiffs' Motion for Class Certification and denied Defendants' Cross-Motion after considering and rejecting Defendants' anticipated future dispositive arguments on the merits; and
WHEREAS, on July 3, 2013 , Defendants appealed the decision to the United States Court of Appeals for the Second Circuit granting class certification, and on June 17, 2014 the Court of Appeals affirmed the order of ruling of the District Court; and
WHEREAS, no finding regarding the presence or absence of liability or wrongdoing has been made; and
WHEREAS, the Plaintiffs and the BOE Defendants desire to resolve the issues raised in this litigation, without further proceedings and without either admitting or conceding the presence or absence of any fault or liability;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned as follows:

Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 3 of 7
1. Upon the full execution of this agreement and its being ordered by the Court,any practice, custom, policy, or procedure indicating that speech and language services shall commence no later than a school district designated point in time (e.g., two weeks after the start of the school year) shall be deemed null and void. The commencement date for speech and language services will be made by the Committee on Special Education (CSE) based on the individual assessments and data regarding each child, and specifically based on the child's needs. If the CSE recommends individual speech and language therapy for a child, then the presumption will be that those individual speech and language therapy services will commence at the start of the school year. In regard to group speech and language therapy, the parties agree that services will commence no later than two weeks after the start of each school year.
2. To ensure compliance with paragraph (1), the firm of Goldstein, Ackerhalt, and Pletcher LLP shall conduct monitoring during the 2015-2016 and 2016-2017 school years. a. The 2015-2016 school year will be the implementation year of this settlement order, and the 2016-2017 school year will be the enforcement year of this settlement order. b. Monitoring will not be conducted beyond the 2016-2017 school year unless mutually agreed to in writing by the parties, or unless ordered by the impartial third-party Arbitrator provided for hereafter in 2g. c. The District shall compensate Goldstein, Ackerhalt, and Pletcher LLP up to ten thousand dollars ($10,000.00) per year for monitoring. The BOE

Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 4 of 7
defendant will execute payment within sixty (60) business days of receipt of detailed invoices from Goldstein, Ackerhalt, and Pletcher LLP. The BOE defendant reserves the right to challenge the reasonableness of the invoices, but shall pay the uncontested amount within the sixty (60) business days after submission of an invoice for the uncontested amount. Submission of such replacement invoice shall not impair Plaintiffs' pursuit of the contested fees through the arbitration process set forth hereafter in 2g. d. By January 15 of each monitoring year, the BOE defendant agrees to provide a document to assist with monitoring. The document will include a unique identification number of every student in the Buffalo City School District recommended to receive group and individual speech and language therapy, and for each student the nature (group and/or individual) ofthe services, the commencement date for such services as noted on the student's IEP, and the date services actually commenced. e. Upon receipt of the document described in paragraph 2(d) and before February 15 of each monitoring year, Goldstein, Ackerhalt, and Pletcher LLP will request reasonable and appropriate documentation related to the provision of speech and language therapy services for all relevant students who receive individual services and no less than 20 and no more than 100 students mandated to receive group speech and language therapy. f. On or before April 15 of each monitoring year, the BOE Defendant will provide Goldstein, Ackerhalt, and Pletcher with the documentation

Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 5 of 7
/
requested pursuant to paragraph 2(e). The BOE Defendants reserve the right to challenge the reasonableness of the documentation requested pursuant to paragraph 2(e), and must notify Goldstein, Ackerhalt, and Pletcher LLP of its specific disagreement with the request by March 7 of each monitoring year. g. Any and all disputes between the parties related to the implementation and/or interpretation of this Settlement Agreement and Order, including, but not limited to documentation requested and/or provided; fee disputes; and compliance under number 1 above shall be determined by an impartial third-party Arbitrator. The parties shall agree upon an Arbitrator from the Western District ofNew York Mediator list within fifteen (15) days from receipt of written notice to utilize the arbitration process If they are unable to so agree within fifteen (15) days, they shall select an Arbitrator from the Western District ofNew York Mediator list via a random selection process.
l.The Arbitrator shall establish timelines (not to exceed sixty (60) calendar days) to receive written statements and/or oral arguments from the parties and may request evidence in documentary or evidentiary form if the Arbitrator determines it is needed.
2.The Arbitrator shall issue a decision on the dispute within thirty (30) days after receiving the parties' fmal submissions unless an extension of this time is mutually agreed to by the parties. The parties agree that the decision of the Arbitrator shall be final.

Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 6 of 7
3.If the Arbitrator rules in favor of the Plaintiffs, the Arbitrator shall have the authority to issue orders to the same extent as that of a court.
4.If compliance with this Settlement Agreement and Order is in . dispute, and if the Arbitrator determines that the BOE is not in
compliance, the Arbitrator shall order appropriate corrective action including, but not limited to, further monitoring. 5.If Plaintiffs are the prevailing party on an issue before the Arbitrator, Goldstein, Ackerhalt & Pletcher, LLP will be entitled to reasonable attorneys ' fees related thereto. The reasonableness of said fees shall be governed, to the extent feasible, by the attorney fee-shifting provisions of the IDEIA. 6.Except for a dispute regarding compliance under number 1 above, all costs of arbitration shall be borne by Defendant BOE. For any dispute regarding compliance as defined by number 1 above, the parties shall each bear half the cost of arbitration. 7.In the event a party fails to abide by a determination of the Arbitrator, the opposing party shall have the right to initiate and pursue an action in Federal Court to enforce said determination. 3. Within 90 business days from the execution of this agreement and the Court signing and granting this Order, BOE Defendant shall send written correspondence to all members of the class informing them of the nature of the Complaint and the stipulation contained in paragraph (1) above. The written

Case 1:12-cv-00960-WMS-LGF Document 58 Filed 03/24/15 Page 7 of 7

correspondence to be sent by the Defendant is incorporated into this agreement as

Attachment A.

4. BOE defendant shall provide the individual Plaintiff, R.A-G, with 10 hours of

compensatory speech and language therapy services. The BOE defendant shall

implement such services within (1 0) days of the receipt of the R.B. 's request for

such services at a time and place agreed upon by the Parent and the District. Such

services must be requested and utilized before June 1, 2016 or they will be forfeit.

5. Attorneys' fees in the amount of One Hundred and Sixty Five Thousand Dollars

($165,000.00) shall be paid by the Buffalo Public Schools to Goldstein, Ackerhalt

& Pletcher, LLP within a reasonable period of time not to exceed sixty (60)

business days, in full satisfaction of all claims for fees under this litigation up

until granting of this Order.

6. Upon execution of this agreement, and it being ordered by the Court, this action

w-it+h- p'or~eJ-."u"d''-ic_e_. ; :;;:e; w ;dra- mits en-tir_e_ty_,

_ _ _- - - t r - - - - - -

Jamoo Sampson

R.B.

Bo>Irrd~t ~

Donald Ogilvie , Interim Superintendent

1lham M. Skretny, Judge United States District Court