John v. Delaware County Intermediate Unit, Civil Action No. 98-5781 (E.D. Pa. 11/7/2001)
| Decision Date | 07 November 2001 |
| Docket Number | Civil Action No. 98-5781. |
| Parties | JOHN T., A Minor by His Parents and Next Friends, Paul T. and Joan T., and PAUL T. AND JOAN T., Individually and on Their Own Behalf v. THE DELAWARE COUNTY INTERMEDIATE UNIT, AND THE COMMONWEALTH OF PENNSYLVANIA. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
In 1998, the parents of a young boy with Down's Syndrome filed this action against Delaware County Intermediate Unit ("DCIU") to compel it to provide their son John with special education services in his regular classroom at St. Denis, a private Catholic school. After a great deal of litigation, but without the appearance or prospect of a decision on the merits, plaintiffs now move to dismiss voluntarily their claims under Fed.R.Civ.Pro. 41(a)(2). This memorandum GRANTS PLAINTIFFS' MOTION TO DISMISS WITH PREJUDICE, and also dismisses the remaining pending matters: cross motions for counsel fees, cross-motions for expenses, plaintiffs' motion to reverse the findings of an administrative appeals panel, defendant's motion to join Haverford School District, and defendant's claims against Third Party Defendant Pennsylvania Department of Education ("PDE").
Plaintiffs brought claims under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), § 504 of the Rehabilitation Act, 29 U.S.C. § 794, 24 Pa. Cons. Stat. § 9-972.1 ("Act 89"), and 24 Pa. Cons. Stat. § 13-1372(4) ("13-1372(4)"); they alleged DCIU failed to provide mandated special education services to John T. at St. Denis. Plaintiffs sought declaratory, injunctive, and compensatory relief, including preliminary and permanent injunctions compelling DCIU to provide speech therapy, occupational therapy, itinerant teaching services,1 and a teacher's aide.2
By Opinion and Order dated May 8, 2000, the court issued a preliminary injunction requiring the DCIU to provide John T. with special educational services at St. Denis. John T. v. Delaware County Intermediate Unit, 2000 U.S. Dist. LEXIS 6169, 2000 WL 558582 . The court held the heightened standard of 24 Pa. Cons. Stat. § 1372(4) was incorporated into the IDEA and required the DCIU to provide John with the services requested.3 The Order stated the preliminary injunction would be converted to a permanent injunction on May 26, 2000, unless either party objected: the defendant objected, and filed an appeal which it later withdrew.
The plaintiffs pursued administrative review of John's proposed Individualized Education Plan ("IEP"). A hearing officer suggested the DCIU had threatened to cut off services to other St. Denis students in retaliation for this court's order. She also ordered the DCIU to modify the IEP to include better trained aides and full-time placement at St. Denis. However, an Appeals Panel reversing this decision found the proposed IEP was lawful.4
As a result of this administrative action, and the aborted appeal of the DCIU, the preliminary injunction was never converted to a permanent injunction. By September, 2001, John had returned to public school from St. Denis. On September 4, 2001, the court issued two orders. First, it found the DCIU in contempt of the preliminary injunction for its failure to provide John with certain educational services for the month of September, 2000: DCIU was ordered to pay $1100.00. (#66) Second, it vacated the preliminary injunction for changed circumstances. (#67)
Defendant's appeal of the contempt order is pending. Plaintiff has since moved for voluntary dismissal under Fed.R.Civ.Pro. 41(a)(2), and for counsel fees as a "prevailing party." Defendant opposes plaintiffs' motion to dismiss, and responds with a petition for fees and expenses of its own.
Admissions and statements made in plaintiffs' motion for voluntary dismissal make it possible to resolve all pending motions.
Plaintiffs bring claims under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), § 504 of the Rehabilitation Act, 29 U.S.C. § 794, 24 Pa. Cons. Stat. § 9-972.1 ("Act 89"), and 24 Pa. Cons. Stat. § 13-1372(4). The court has jurisdiction over the subject matter under 28 U.S.C. § 1331 and 1367(a): the parties do not contest personal jurisdiction: and venue lies in this district.
The DCIU's appeal of the court's contempt order is an appeal of a collateral matter, and does not divest the court of jurisdiction over the rest of the action. See New York State Nat. Org. for Women v. Terry, 704 F. Supp. 1247, 1255 (S.D.N.Y. 1989).
The Federal Rules of Civil Procedure permit voluntary dismissal after an answer or motion for summary judgment by an adverse party only by stipulation or court order. See Fed.R.Civ.Pro. 41(a). The dismissal may be with or without prejudice and "upon such terms and conditions as the court deems proper." Id. Granting a motion for voluntary dismissal is within the sound discretion of the trial court. See Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir. 1974). Rule 41 seeks to prevent a dismissal prejudicing the other parties by allowing the court to design conditions to cure any prejudice. See John Evans Sons, Inc. v. Majik-Ironers, Inc., 95 F.R.D. 186 (E.D.Pa. 1982); see also Ferguson, 492 F.2d at 28 ().
Often, dismissals under Rule 41(a)(2) are accompanied by curative conditions attempting to ensure defendants may recover some of the costs they expended in abandoned litigation. See John Evans Sons, 95 F.R.D. at 191. Defendants bereft of the ability to prevail on the merits are prejudiced: Rule 41(a)(2) enables the court to cure this prejudice.
In some circumstances, a court may attempt to cure defendants' injury by dismissing plaintiffs' claims with prejudice. This method: (1) ensures that defendants are not subject to duplicative litigation; and, (2) makes further curative conditions inappropriate "barring exceptional circumstances." John Evans Sons, 95 F.R.D. at 191.
Plaintiffs' motion for voluntary dismissal raises two issues: (a) should it be granted; and (b) should plaintiffs' claims be dismissed with or without prejudice.
Generally, a motion for dismissal "should not be denied absent substantial prejudice to the defendant." Johnston Development Group, Inc. v. Carpenters Local Union Co., 728 F. Supp. 1142, 1146 (D.N.J. 1990) (quoting Andes v. Versant Corp., 788 F.2d 1033, 1036 n. 4 (4th Cir. 1986)). In determining whether a voluntary dismissal is likely to result in substantial prejudice to the defendant, the factors to be considered include "the expense of a second litigation, the effort and expense incurred by a defendant in preparing for trial in the current case, the extent to which the current case has progressed, and plaintiff's diligence in bringing the motion to dismiss." Palmer v. Security National Bank, 2001 WL 877584, at * 1, 2001 U.S. Dist. Lexis 11473, at *3 (E.D.Pa. June 13, 2001) (citing Maleski v. DP Realty Trust, 162 F.R.D. 496, 498 (E.D.Pa. 1995)).
Defendant argues that it will be prejudiced for two reasons: (1) DCIU has outstanding and unresolved claims pending for costs and expenses; and, (2) the DCIU has an unresolved claim against the PDE.
The DCIU's motion for fees and expenses was only filed in response to plaintiffs' motion for voluntary dismissal. The language of the rule does not contemplate prejudice created after submission of a motion for voluntary dismissal, e.g., "If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of plaintiff's motion to dismiss, the action shall not be dismissed . . ." Fed.R.Civ.Pro. 41(a)(2) (emphasis added). Although DCIU is not prejudiced by plaintiffs' voluntary dismissal for the purposes of Rule 41, the court will cure any theoretical prejudice by addressing, and denying, defendant's motion for reimbursement of expenses and fees in this opinion and order.
Defendant's third party claims have not moved beyond the third party defendant's Motion to Dismiss. PDE is a contingent defendant: if the DCIU were to lose, PDE is alleged to be liable for contribution or indemnity. If this action is dismissed without a finding of DCIU liability, and DCIU's claim against PDE is dismissed without prejudice, DCIU will be able to adjudicate PDE's liability in another action. DCIU's position seems to be that it is entitled to a ruling on PDE's duty to pay. However, this would wrongly transform a contingent claim for contribution or indemnity permitted under Fed.R.Civ.Pro. 14. The plaintiffs may not be forced to pursue this action simply because the defendant believes itself entitled to a "ruling": a party does not have a property interest in a judicial opinion. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994) ().
On page 2 of their memorandum in support of the motion, plaintiffs state:
Inasmuch as John has transitioned to the public schools at an age when the transition is likely and expected to be successful, there is utterly no reason to expect that successive litigation would result from this dismissal. This conclusion is particularly compelling when one considers the extent of the pleadings, exhibits, and hearings caused by the DCIU's litigation strategy in this matter; quite simply, there is no reason for plaintiffs to seek further litigation with the DCIU in this matter. . . In view of these circumstances, plaintiffs would have no objection to a dismissal of this action with prejudice upon payment of counsel fees.
This admission makes clear that plaintiffs contemplate a dismissal with prejudice.5 A dismissal with prejudice may be granted "where it would be inequitable or...
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