DeCotiis v. Whittemore

• Decision Date: 16 March 2012
• Docket Number: No. 2:09–cv–354–GZS.,2:09–cv–354–GZS.
• Citation: 842 F.Supp.2d 354,281 Ed. Law Rep. 984
• Parties: Ellen H. DeCOTIIS, Plaintiff, v. Lori WHITTEMORE, et al., Defendant.
• Court: U.S. District Court — District of Maine

842 F.Supp.2d 354

281 Ed. Law Rep. 984

Ellen H. DeCOTIIS, Plaintiff,

v.Lori WHITTEMORE, et al., Defendant.

No. 2:09–cv–354–GZS.

United States District Court,

D. Maine.

Feb. 2, 2012.

Order Denying Reconsideration March 16, 2012.

Rufus E. Brown, Brown & Burke, Zachary L. Heiden, Portland, ME, for Plaintiff.

Sarah A. Forster, Susan P. Herman, Assistant Attorney Generals, Augusta, ME, for Defendant.

ORDER ON PENDING MOTIONS

GEORGE Z. SINGAL, District Judge.

Following a remand from the First Circuit, Plaintiff Ellen DeCotiis (“DeCotiis”) has filed the following motions: (1) Motion for Leave to Amend Complaint (“First Motion to Amend”) (Docket # 33); (2) Motion to Amend or Modify Order and Second Motion to Amend and Add a Party (“Motion to Modify Order and Second Motion to Amend”) (Docket # 38); and (3) Motion to Strike (Docket # 43). Defendants not only object to Plaintiff's motions but have filed the Motion to Dismiss the Complaint (“Motion to Dismiss”) (Docket # 37). As explained herein, the Court now DENIES Plaintiff's Motion to Strike (Docket # 43). The Court then GRANTS IN PART and DENIES IN PART Plaintiff's First Motion to Amend (Docket # 33), Plaintiff's Motion to Modify Order and Second Motion to Amend (Docket # 38), and Defendant's Motion to Dismiss (Docket # 37).

I. MOTION TO STRIKE (Docket # 43)

Via the Motion to Strike, Plaintiff alleges that Defendants engaged in a “blatant discovery violation” when (1) a defense witness provided testimony based on a document that had not been produced in discovery and (2) Defendants withheld the documents during briefing of the Eleventh Amendment issues. As a result, Plaintiff asks the Court to exclude from its consideration evidence that supports a finding that CDS–Cumberland is covered by the State's Risk Management Program. For reasons adequately stated in Defendant's Response (Docket # 45), the Court rules that there was no discovery violation. To the extent any impropriety occurred, Plaintiff was not prejudiced by the delayed production of the relevant documents. Accordingly, Plaintiff's Motion to Strike is DENIED.¹

II. THE REMAINING MOTIONSA. BACKGROUND & PROCEDURAL HISTORY

Both this Court and the First Circuit previously have detailed the factual background in this case. See Decotiis v. Whittemore, 635 F.3d 22 (1st Cir.2011); Decotiis v. Whittemore, 680 F.Supp.2d 263 (D.Me.2010). Accordingly, the Court briefly summarizes the relevant facts. Plaintiff Ellen DeCotiis is a licensed speech-language pathologist and speech-language therapist who for more than eighteen years has provided speech and language therapy and evaluations at various State of Maine Child Development Services (“CDS”) regional sites. In 2008, Plaintiff worked under contracts with CDS–York, CDS–Norway, and Defendant CDS–Cumberland to provide speech and language therapy and evaluations for children with disabilities between the ages of three and five.

Among the services CDS sites provide to children is Free Appropriate Public Education (“FAPE”), a program supervised by the Maine Department of Education in which children with disabilities between the ages of three and five years are provided with therapy for physical, cognitive, communication, social, emotional, and adaptive development. In 2008, the Maine legislature passed Unified Rule 101, which changed the way FAPE services were provided on a year-round basis. Unified Rule 101 provided that services would be offered on a school-year basis (September–June), and that children would be entitled to services in July and August only if they qualified for Extended School Year Services (“ESY”). Whereas the prior version of the rule provided children with year-round services if stated in their Individualized Family Service Plan (“IFSP”) or Individualized Education Plan (“IEP”), which was generally based on the calendar year, the State CDS adopted a policy under the new rule whereby ESY would be the exception and not the rule. Under the new policy, ESY services would be provided only if the team consulting on a child's IEP determined, on an individualized basis,that the services were necessary to comply with federal law.

The adoption of Unified Rule 101 caused “confusion and concern” among regional CDS sites, providers of services, and parents of children with disabilities. (Amended Complaint (Docket # 38–1) ¶ 22.) In early 2008, CDS–York and CDS–Norway informed Plaintiff of the procedure by which requests for ESY services would be evaluated in their regions. CDS–Cumberland, however, gave Plaintiff no such guidance. In March 2008, Plaintiff completed her routine quarterly reports for her caseload of children covered by CDS–Cumberland. These reports included recommendations for ESY services. Based on her experience with CDS–York and CDS–Norway, Plaintiff expected that CDS–Cumberland would then notify her of an IEP meeting for each client, during which she expected that a decision would be made regarding that child's eligibility for ESY services. However, CDS–Cumberland did not contact Plaintiff to schedule IEP review meetings regarding ESY services.

In the Spring of 2008, Plaintiff became concerned that CDS–Cumberland was acting unlawfully by failing to comply with federal standards regarding the provision of ESY services. Plaintiff contacted Defendant Hannigan, State CDS Director and Director of CDS–Cumberland, regarding inconsistencies between the provision of ESY services at CDS–Cumberland and other regional CDS sites. Hannigan informed Plaintiff that she could not account for the inconsistencies. In response, Plaintiff contacted Southern Maine Parents Awareness (“SMPA”), a private advocacy group giving support to parents with children with disabilities; the Disability Rights Center (“DRC”), a federally funded, statewide advocacy group for people with disabilities; and individuals in the Maine Speech Language Hearing Association. SMPA and DRC informed Plaintiff that CDS–Cumberland did not appear to be complying with state and federal requirements under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1401, et seq. (“IDEA”). Plaintiff concluded that CDS–Cumberland was not operating in compliance with IDEA and was denying children of public services to which they were entitled.

Acting on her investigations and conclusions, Plaintiff advocated to parents of children she was treating that the criteria being used by CDS–Cumberland for determining eligibility for ESY services were not in compliance with IDEA and that parents should contact SMPA and DRC for guidance concerning their children's rights. In May 2008, Whittemore contacted Plaintiff to complain that Plaintiff was “out to get her” with the advice she was giving parents about contacting advocacy groups. (Amended Complaint ¶ 42.) On July 29, 2008, Plaintiff was informed that CDS–Cumberland had decided that it would not renew her annual contract, which was set to expire on September 1, 2008.

On August 7, 2009, Plaintiff filed her Complaint (the “Original Complaint”) (Docket # 1), which contained three counts: Count One, for retaliation in violation of her First Amendment rights against Defendant Whittemore individually and in her official capacity as director of CDS–Cumberland; Count Two, against CDS–Cumberland for an unconstitutional policy, custom, or procedure and for failure to train Whittemore; and Count Three, against Defendant Hannigan in her official capacity as Director of CDS for failure to adequately supervise Whittemore. In an Order dated January 28, 2010, this Court dismissed Plaintiff's Complaint in its entirety. (See Judgment (Docket # 17); Decotiis, 680 F.Supp.2d at 265). The Court dismissed Count One against Whittemore in her official capacity because it was redundant of the claim against CDS–Cumberland and against Whittemore in her individual capacity on qualified immunity grounds. The Court dismissed Count Two against CDS–Cumberland after concluding that Plaintiff had failed to adequately allege a violation of her First Amendment rights. Finally, the Court dismissed Count Three against Defendant Hannigan after concluding that Plaintiff failed to show that Hannigan's subordinates violated Plaintiff's First Amendment rights.

Following Plaintiff's appeal, the First Circuit upheld this Court's judgment dismissing the Complaint against Whittemore in both her individual and official capacity. See Decotiis, 635 F.3d at 26–27. However, after considering two First Circuit cases decided after the January 28, 2010 Order, the First Circuit vacated this Court's judgment dismissing the claims against Hannigan and CDS–Cumberland and remanded for further consideration. See id. Thus, on remand, Count Two and Count Three of Plaintiff's Original Complaint remain.

B. LEGAL STANDARD

On remand, Plaintiff moves this Court for leave to amend her Complaint. Pursuant to Fed.R.Civ.P. 15(a)(2), the Court “should freely give leave [to amend] when justice so requires.” In exercising its discretion to allow amendment of pleadings, a court may find that a motion to amend a complaint following an appeal and remand is still timely. See, e.g., 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1488 & n. 11 (3d ed. 2010) (collecting cases). Nonetheless, even a timely motion for leave to amend is properly denied when the proposed amendments would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (leave to amend should be granted where there is no “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility....”); Chiang v. Skeirik, 582 F.3d 238, 243–44 (1st Cir.2009); Correa–Martinez v. Arrillaga–Belendez, 903 F.2d 49, 59 (1st Cir.1990) (“Where an amendment would be futile or would serve no legitimate purpose, the district court should not...