UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------x
DOROTHY NESKE and CHRISTOPHER NESKE, as Parents and Natural Guardians of A.N., and DOROTHY NESKE and CHRISTOPHER NESKE, Individually, MEMORANDUM AND ORDER Plaintiffs, 20-CV-2009(EK)(SMG)
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
-------------------------------------------x ERIC KOMITEE, United States District Judge:
Plaintiffs, parents and their child, commenced this
action on May 1, 2020. On May 11, 2020, they sought an
injunction directing the New York City Department of Education
(DOE) to offer Plaintiffs pendency tuition funding pursuant to
Section 1415(j) of the Individuals with Disabilities Education
Act. DOE then filed a letter requesting transfer to the
Southern District of New York, where two similar actions filed
by Plaintiffs remain pending before Judge Valerie Caproni.
I. Background
This is one of many pending actions, by many
plaintiffs, challenging DOE’s refusal to award Section 1415(j)
“pendency funding” for children whose parents unilaterally
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transferred them from iHope to iBrain in recent years. 1 It bears
noting that the underlying legal questions have divided district
courts. 2
This is not the Neskes’ first (or second) federal-
court challenge to DOE’s funding decisions. They have applied
for such funding with respect to two school years: 2018-19 and
2019-20. They filed their first federal complaint against DOE
in the Southern District of New York on April 2, 2019. See
Complaint, Neske v. New York City Dep’t of Educ., No. 19-cv-
2933, ECF No. 1 (“DN I”). That case was randomly assigned to
Judge Caproni. In DN I, Plaintiffs requested an injunction
reversing DOE’s decision to deny pendency payments for the
2018-19 schoolyear. Id. at 5. Judge Caproni dismissed DN I for
failure to state a claim, see Neske v. New York City Dep’t of
1iHope and iBrain are private schools for special-needs children. Complaint, ECF No. 1 at ¶¶ 9, 13-14. As DOE points out, there appear to be dozens of cases with similar facts proceeding in the Southern District of New York. See Letter Motion, ECF No. 11 at 2. 2 Compare Navarro Carrilo v. New York City Dep’t of Educ., 384 F. Supp. 3d 441 (S.D.N.Y 2019) (finding children transferred from iHope to iBrain are entitled to pendency funding under Section 1415(j)) with de Paulino v. New York City Dep’t of Educ., 19-cv-222(GBD), 2019 WL 1448088 (S.D.N.Y. Mar. 20, 2019) (finding the opposite). The parties appealed these decisions to the Second Circuit. See Notice of Appeal, de Paulino v. New York City Dep’t of Educ., 19-cv-222, ECF No. 90; Notice of Appeal, Navarro Carrilo v. New York City Dep’t of Educ., 19- cv-2944, ECF No. 21. Yesterday, the Second Circuit issued an opinion holding that parents who unilaterally transferred their children from iHope to iBrain are not entitled to Section 1415(j) pendency funding. See Opinion, de Paulino v. New York City Dep’t of Educ., 19-cv-1662, ECF No. 149 (deciding both appeals in tandem). 2
Educ., 19-cv-2933(VEC), 2019 WL 3531959 (S.D.N.Y. Aug. 2, 2019),
concluding that DOE was not obligated to fund enrollment at
iBrain because the child’s “then-current educational placement”
was at iHope. See id. at *5-7. Plaintiffs moved for
reconsideration. DN I, ECF No. 38. Judge Caproni denied that
motion on November 7, 2019. DN I, Order, ECF No. 47.
While Plaintiffs’ motion for reconsideration in DN I
was pending, they filed another complaint in the Southern
District of New York on September 23, 2019, this time regarding
the 2019-20 school year. Complaint, Neske v. Carranza, No. 19-
cv-8817, ECF No. 1 (“DN II”). This action was commenced before
any decision was reached on Plaintiffs’ administrative
application for tuition funding. 3 Plaintiffs’ second complaint
was accompanied by a proposed order to show cause seeking the
same relief as before: an order requiring DOE to grant
Plaintiffs pendency funding. DN II, Proposed Order to Show
Cause at 1-2, ECF No. 3.
Tellingly, Plaintiffs did not mark DN II related to DN
I, despite the obvious connection. DN II, Civil Cover Sheet at
1, ECF No. 2. Plaintiffs’ complaint was instead randomly
assigned to Judge J. Paul Oetken, who apparently was not
3 Plaintiffs claim they need not exhaust administrative remedies before seeking judicial intervention. See DN II, Memorandum of Law in Support of Order to Show Cause for Preliminary Injunction at 10, ECF No. 4 (citing Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195 (2d Cir. 2002)). 3
informed of DN I until DOE filed a “Statement of Relatedness.”
DN II, Statement of Relatedness, ECF No. 22. Plaintiffs opposed
reassignment to Judge Caproni once DOE raised the issue. DN II,
Letter, ECF No. 25. Applying the applicable relation rule,
however, Judge Oetken transferred DN II to Judge Caproni on
October 28, 2019. While the parties were briefing the motion to
dismiss and the proposed order to show cause in DN II,
Plaintiffs appealed Judge Caproni’s dismissal in DN I. DN I,
Notice of Appeal, ECF No. 48. The appeal in DN I, and the
motions in DN II, remain pending.
On April 15, 2020, an initial hearing officer awarded
Plaintiffs pendency funding for the 2019-20 term. Complaint at
¶ 39. DOE notified Plaintiffs on April 29, 2020 that it would
withhold funding while DOE appealed the decision to the New York
State Education Department’s Office of State Review. Id. at
¶¶ 41, 43. Plaintiffs sought to challenge DOE’s decision to
withhold funding. Rather than file a third complaint in the
same venue, however, Plaintiffs sued in the Eastern District of
New York, seeking the exact relief they sought from Judge
Caproni in DN II: an injunction directing DOE to provide
pendency funding for the 2019-20 schoolyear. See Motion for
Order to Show Cause at 1-2, ECF No. 8.
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II. Analysis
“For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought. . . .” 28 U.S.C. § 1404(a). Moving parties must
show by “clear and convincing evidence” that transfer is proper.
See New York Marine & Gen. Ins. Co. v. Lafarge, 599 F.3d 102,
113-14 (2d Cir. 2010).
Courts conduct a two-part test when deciding whether
to transfer an action under Section 1404. See Ahmed v. TJ Maxx
Corp., 777 F. Supp. 2d 445, 448 (E.D.N.Y. 2011). First, the
Court must find that the action “might have been brought” in the
transferee court. See id.; see also Schertenleib v. Traum, 589
F.2d 1156, 1161 (2d Cir. 1978). Second, courts consider whether
the transfer would promote convenience and justice. See Ahmed,
777 F. Supp. 2d at 448. In doing so, courts weigh several
factors, including “(1) the plaintiff’s choice of forum, (2) the
convenience of witnesses, (3) the location of relevant documents
and relative ease of access to sources of proof, (4) the
convenience of parties, (5) the locus of operative facts,
(6) the availability of process to compel the attendance of
unwilling witnesses, [and] (7) the relative means of the
parties.” D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95,
106-07 (2d Cir. 2006).
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Given the close physical proximity of the Southern and
Eastern Districts, courts typically find that convenience
considerations pose no bar to transfers between them. See
Ahmed, 777 F. Supp. 2d at 449 (“[M]ost courts ordinarily find
. . . that due to the close proximity” of the Eastern and
Southern Districts of New York, most convenience factors “are
relatively neutral with regard to transfer.”). Likewise, when a
plaintiff files related claims in multiple districts, the first
factor – the plaintiff’s choice of forum – will not be
dispositive. See Williams v. City of New York, 03-cv-5342(RWS),
2006 WL 399456, at *3 (S.D.N.Y. Feb. 21, 2006) (noting that the
plaintiff’s choice of forum “is not at issue” because the
plaintiff “brought identical claims” in both districts).
This action is obviously related to the actions
pending before Judge Caproni. Indeed, Plaintiffs seek precisely
the same injunctive relief here as they do in DN II. See
Brooklyn Downtown Hotel, LLC v. New York Hotel & Motel Trades
Council, 14-cv-6067(ILG)(SMG), 2015 WL 779441, at *2-3 (E.D.N.Y.
Feb. 25, 2015) (transferring case to the Southern District of
New York where actions seeking “essentially the same relief” on
the same “essential issues” were pending because the “case reeks
of forum shopping”). There is no doubt that Plaintiffs could
have brought this action in the Southern District, where their
other actions are pending. Moreover, the “strong policy
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favoring the litigation of related claims in the same tribunal,”
Wyndham Assocs. v. Bintliff, 398 F.2d 614, 619 (2d Cir. 1968),
militates in favor of transfer. See also Cont’l Grain Co. v.
Barge FBL-585, 364 U.S. 19, 26 (1960) (“To permit a situation in
which two cases involving precisely the same issues are
simultaneously pending in different District Courts leads to the
wastefulness of time, energy and money that § 1404(a) was
designed to prevent.”). The proper tribunal to hear Plaintiffs’
complaint is the Southern District of New York, where Plaintiffs
filed first. See First City Nat’l Bank & Tr. Co. v. Simmons,
878 F.2d 76, 80 (2d Cir. 1989) (noting the “well-settled
principle favoring the forum wherein a [related] suit was first
filed”).
III. Conclusion
For these reasons, this action is transferred to the
United States District Court for the Southern District of New
York pursuant to 28 U.S.C. § 1404(a). All other relief sought
by Plaintiffs is denied without prejudice to the renewal of the
requests before the transferee court. The Clerk of Court is
directed to transfer this case to the Southern District of New
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York. Local Rule 83.1 of the Eastern District of New York,
which requires a seven-day delay between the date of this Order
and transfer, is waived.
SO ORDERED.
_____/s Eric Komitee_________ ERIC KOMITEE United States District Judge
Dated: Brooklyn, New York May 19, 2020
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