dk#J
Feb 07 11 05:23p
212-599-5162
Rutherford & Christie
Case 7:10-cv-09186-CS Document 6
p.1
Filed 02/10/11 Page 1 of 3
Dc .("""i I RUTHERFORD & CHRISTIE w
1\....0,---,
:.l"E'V YORK
ATlANH
F¥Qrpary 7, 2011 , ~~-,
Honorable Cathy Seibel United States Disttict Court Southern District of New York 300 Quarropas Street \\Thite Plains, New York 10601
Re:
.
,
---,~.,
N.B. and 8oB. v. Mahopac Central School District, et al V.S.D.C., Southern District of New York Docket No.: 10 CIV 9186 (CS) Our File No.: 5001.210
Dear Judge Seibel: We represent the defendants, Mahopac Central School District ("the District"), Mahopac Central School District Board of Education, Thomas J. Manko, and Ira Gurkin in the above referenced matter.~ Pursuant to your Honor's individual rules of practice we are writing to request a pre-motion conference and for permission to move to dismiss the pJaintiffs' Complaint pursuant to Rules 12(b)(6) aild 23(a) of the Federal Rules of Civil Procedure.
By way ofbackground, the plaintiffs are the parents ofH.B., who was a student in the District until June, 2010. According to their Complaint, the plaintiffs assert various federal claims induding violations of the Equal Protection Clause of the Fourteenth Amendment, as made actionable by 42 U.S.C. § 1983, Title VI, Title IX, claims under the New York State Human Rights Law, and various state law tort claims individually and on behalf of their daughter. Specifically, the plaintiffs allege that H.B. was subject to anti-Semitic discrimination and harassment while she was a student in the District. In addition, the plaintiffs attempt to bring a class action on behalf of other students of the Jewish faith within the District and seek certification pursuant to Rule 23 ofthe Federal Rules of Civil Procedure. pr~::...IJ'~ti,o~ 90nference to be held on:
~ "3/Lf)11
e:.-
,\
l
VIA FACSIMILE (914) 390-4278
/O;t.5~
Opposing counsel to state pOSitIOn (by letter not
to exceeq.3 pages) In writing one week In advance.
____
~/~;;;:dk#J
~bel, U.S.D.J. Dated:
11 f {II
...
Feb 07 11 05:23p
Rutherford & Christie
Case 7:10-cv-09186-CS Document 6
212-599-5162
p.2
Filed 02/10/11 Page 2 of 3
N.B. alld S.B. v. Mahopac CSD, et al
10 CIV 9186 (CS)
February 7,2011
Page No. 2
As an initial matter, the Court should decline to certify the matter as a class action and the class action component of the plaintiffs' Complaint must be dismissed. It is well settled that the factors set forth in Rule 23(a), numerosity, commonality, typicality, and adequate representation, must be met in order to justify class certification. Fed. R. Civ. p, 23(a); Davidson v. Yeshiva University, 55 F.Supp. 75, 77 (S.D.N,Y. 1982). However, the plaintiffs have failed to sufficiently plead these factors. According to the Complaint, the plaintiffs base their class action allegations on apparent cakulations as to the number of Je'>vish children who may be students in the District, yet they fail to identify any such students with similar claims. The plaintiffs have provided nothing more than vague speculation and conclusory allegatjons that there sufficiently numerous class members who have suffered harassment and discrimination similar to that alleged.ly suffered by H.B., and have asserted nothing more than a simple recitation ofthe factors set forth in Rule 23(a). Therefore, the plaintiffs have failed to sufficiently plead that the case is proper for class certification and the class action component of their Complaint must be dismissed. In addition, the plaintiffs' federal claims are subject to dismissaL Although the plaintiffs assert genera! allegations that H.B. was subject to harassment and discrimination because she is Jewish. the Complaint is devoid of any allegations to raise a plausible claim that the District was deliberately indifferent to any harassment she faced because of her race, color. or national origin such that it amounted to intentional discrimination. Similarly, the plaintiffs fail to allege factual allegations that the District exr.dbited deliberate indifference and was clearly unreasonable and inadequate in its response to sexual harassment or gender-based harassment suffered by H.B. Hayut v. State Oniv. ofNew York, 352 F.3d 733 (2d Cir. 2003); D.T. v. Somers Cent. Sch. Dist, 348 Fed. Appx. 697.669 (2d Cif. 2008), citing, Davis v. Monroe CU'. Bd. ofEduc.• 526 U.S. 629,633 (1999). Furthermore, even assuming the plaintiffs' allegations that H.B. was harassed by other students because she is Jewish to be true, the Complaint lacks sufficient allegations to make it plausible that the District was cJearly unreasonable in its response to such harassment such that it intended the discrimination to occur, as is required to state a Fourteenth Amendment claim of religious discrimination based on student on student harassment. Gant v. WallingtonBd. ofEdue., 195 F.3d 134, 140~141 (2d Cir, 2003). Therefore, the plaintiffs Title VI, Title IX, and Fourteenth Amendment claims must be dismissed. The plaintiffs' due process claims must also be dismissed because the plaintiffs personally chose to remove H.B, from school in the District and the Complaint is devoid ofany allegations ofthe requisite conscious shocking conduct. Sauerhoft v. Bd. ofEdue.: 2009 U,S. DistLEXIS46196at lie 26 (S.D.N.Y. 2009); Saggio v. Spradv,475 F.Supp.2d 203, 211-12 (E.D.N.Y.2009).
RUTHERFORD & CHRISTIE
I.LP
Feb 07 11 05:24p
212-599-5162
Rutherford & Christie
Case 7:10-cv-09186-CS Document 6
p.3
Filed 02/10/11 Page 3 of 3
N.B. and S.B. v. Mahopac CSD, et aJ
10 CIV 9186 (CS)
February 7,2011
Page No. 3
The plaintiffs' claims under New York Executive Law must also be dismissed. The District is not an education corporation or association under New York Executive Law § 296(4), and thus, cannot be held liable for alleged discriminatory acts against students under § 296. N.Y. Exec. L. S 296(4); East Meadow Union Free Sch. Dist. v. New York State Division of Human Rights" 886 N.Y.S.2d 211 (2d Dept. 2009). In addition. as will be more fully discussed in the proposed motion, the plaintiffs' CompIaint is devoid of factual allegations to raise a plausible claim for relief for the numerous other state Jaw tort claims.
Based on the foregoing, we respectfully request the pennission to file a motion to dismiss pursuant to Rules 12(b)(6) and 23(a) of the Federal Rules of Civil Procedure. Respectfully yours,
7
RUTHERI[ORD & CHRISTIE, LL .> By:
, l' l-~'·t'.....~6'i ~ ~LLLGtc.;LL~-~·:-Z:5 ' " '--"'., LewIs R. Silverman (LS 9723) Caroline B. Lineen (CL 0630) Attorneys for Defendants 369 Lexington Avenue, Sih Floor New York, New York 10017 (212) 599-5799
TO: LA W OFFICE OF PETER D. HOFFMAN, p.e.
Attorneys for Plaintiffs
200 Katonah Avenue
Village Commons East, 2d Floor
Katonah, New York 10536
Via Facsimile (914) 232-2245 and Regular Mail
RUTHERFORD & CHRISTIE
u.p
r----'-.
212-599-5162
Rutherford & Christie
Case 7:10-cv-09186-CS Document 6
p.1
Filed 02/10/11 Page 1 of 3
Dc .("""i I RUTHERFORD & CHRISTIE w
1\....0,---,
:.l"E'V YORK
ATlANH
F¥Qrpary 7, 2011 , ~~-,
Honorable Cathy Seibel United States Disttict Court Southern District of New York 300 Quarropas Street \\Thite Plains, New York 10601
Re:
.
,
---,~.,
N.B. and 8oB. v. Mahopac Central School District, et al V.S.D.C., Southern District of New York Docket No.: 10 CIV 9186 (CS) Our File No.: 5001.210
Dear Judge Seibel: We represent the defendants, Mahopac Central School District ("the District"), Mahopac Central School District Board of Education, Thomas J. Manko, and Ira Gurkin in the above referenced matter.~ Pursuant to your Honor's individual rules of practice we are writing to request a pre-motion conference and for permission to move to dismiss the pJaintiffs' Complaint pursuant to Rules 12(b)(6) aild 23(a) of the Federal Rules of Civil Procedure.
By way ofbackground, the plaintiffs are the parents ofH.B., who was a student in the District until June, 2010. According to their Complaint, the plaintiffs assert various federal claims induding violations of the Equal Protection Clause of the Fourteenth Amendment, as made actionable by 42 U.S.C. § 1983, Title VI, Title IX, claims under the New York State Human Rights Law, and various state law tort claims individually and on behalf of their daughter. Specifically, the plaintiffs allege that H.B. was subject to anti-Semitic discrimination and harassment while she was a student in the District. In addition, the plaintiffs attempt to bring a class action on behalf of other students of the Jewish faith within the District and seek certification pursuant to Rule 23 ofthe Federal Rules of Civil Procedure. pr~::...IJ'~ti,o~ 90nference to be held on:
~ "3/Lf)11
e:.-
,\
l
VIA FACSIMILE (914) 390-4278
/O;t.5~
Opposing counsel to state pOSitIOn (by letter not
to exceeq.3 pages) In writing one week In advance.
____
~/~;;;:dk#J
~bel, U.S.D.J. Dated:
11 f {II
...
Feb 07 11 05:23p
Rutherford & Christie
Case 7:10-cv-09186-CS Document 6
212-599-5162
p.2
Filed 02/10/11 Page 2 of 3
N.B. alld S.B. v. Mahopac CSD, et al
10 CIV 9186 (CS)
February 7,2011
Page No. 2
As an initial matter, the Court should decline to certify the matter as a class action and the class action component of the plaintiffs' Complaint must be dismissed. It is well settled that the factors set forth in Rule 23(a), numerosity, commonality, typicality, and adequate representation, must be met in order to justify class certification. Fed. R. Civ. p, 23(a); Davidson v. Yeshiva University, 55 F.Supp. 75, 77 (S.D.N,Y. 1982). However, the plaintiffs have failed to sufficiently plead these factors. According to the Complaint, the plaintiffs base their class action allegations on apparent cakulations as to the number of Je'>vish children who may be students in the District, yet they fail to identify any such students with similar claims. The plaintiffs have provided nothing more than vague speculation and conclusory allegatjons that there sufficiently numerous class members who have suffered harassment and discrimination similar to that alleged.ly suffered by H.B., and have asserted nothing more than a simple recitation ofthe factors set forth in Rule 23(a). Therefore, the plaintiffs have failed to sufficiently plead that the case is proper for class certification and the class action component of their Complaint must be dismissed. In addition, the plaintiffs' federal claims are subject to dismissaL Although the plaintiffs assert genera! allegations that H.B. was subject to harassment and discrimination because she is Jewish. the Complaint is devoid of any allegations to raise a plausible claim that the District was deliberately indifferent to any harassment she faced because of her race, color. or national origin such that it amounted to intentional discrimination. Similarly, the plaintiffs fail to allege factual allegations that the District exr.dbited deliberate indifference and was clearly unreasonable and inadequate in its response to sexual harassment or gender-based harassment suffered by H.B. Hayut v. State Oniv. ofNew York, 352 F.3d 733 (2d Cir. 2003); D.T. v. Somers Cent. Sch. Dist, 348 Fed. Appx. 697.669 (2d Cif. 2008), citing, Davis v. Monroe CU'. Bd. ofEduc.• 526 U.S. 629,633 (1999). Furthermore, even assuming the plaintiffs' allegations that H.B. was harassed by other students because she is Jewish to be true, the Complaint lacks sufficient allegations to make it plausible that the District was cJearly unreasonable in its response to such harassment such that it intended the discrimination to occur, as is required to state a Fourteenth Amendment claim of religious discrimination based on student on student harassment. Gant v. WallingtonBd. ofEdue., 195 F.3d 134, 140~141 (2d Cir, 2003). Therefore, the plaintiffs Title VI, Title IX, and Fourteenth Amendment claims must be dismissed. The plaintiffs' due process claims must also be dismissed because the plaintiffs personally chose to remove H.B, from school in the District and the Complaint is devoid ofany allegations ofthe requisite conscious shocking conduct. Sauerhoft v. Bd. ofEdue.: 2009 U,S. DistLEXIS46196at lie 26 (S.D.N.Y. 2009); Saggio v. Spradv,475 F.Supp.2d 203, 211-12 (E.D.N.Y.2009).
RUTHERFORD & CHRISTIE
I.LP
Feb 07 11 05:24p
212-599-5162
Rutherford & Christie
Case 7:10-cv-09186-CS Document 6
p.3
Filed 02/10/11 Page 3 of 3
N.B. and S.B. v. Mahopac CSD, et aJ
10 CIV 9186 (CS)
February 7,2011
Page No. 3
The plaintiffs' claims under New York Executive Law must also be dismissed. The District is not an education corporation or association under New York Executive Law § 296(4), and thus, cannot be held liable for alleged discriminatory acts against students under § 296. N.Y. Exec. L. S 296(4); East Meadow Union Free Sch. Dist. v. New York State Division of Human Rights" 886 N.Y.S.2d 211 (2d Dept. 2009). In addition. as will be more fully discussed in the proposed motion, the plaintiffs' CompIaint is devoid of factual allegations to raise a plausible claim for relief for the numerous other state Jaw tort claims.
Based on the foregoing, we respectfully request the pennission to file a motion to dismiss pursuant to Rules 12(b)(6) and 23(a) of the Federal Rules of Civil Procedure. Respectfully yours,
7
RUTHERI[ORD & CHRISTIE, LL .> By:
, l' l-~'·t'.....~6'i ~ ~LLLGtc.;LL~-~·:-Z:5 ' " '--"'., LewIs R. Silverman (LS 9723) Caroline B. Lineen (CL 0630) Attorneys for Defendants 369 Lexington Avenue, Sih Floor New York, New York 10017 (212) 599-5799
TO: LA W OFFICE OF PETER D. HOFFMAN, p.e.
Attorneys for Plaintiffs
200 Katonah Avenue
Village Commons East, 2d Floor
Katonah, New York 10536
Via Facsimile (914) 232-2245 and Regular Mail
RUTHERFORD & CHRISTIE
u.p
r----'-.
