Case: Wyatt B. v. Brown

6:19-cv-00556 | U.S. District Court for the District of Oregon

Filed Date: April 16, 2019

Case Ongoing

Clearinghouse coding complete

Case Summary

On April 16, 2019, ten children in the custody of the Oregon Department of Human Services (ODHS) filed this putative class action lawsuit in the United States District Court for the District of Oregon. The plaintiffs sued the Governor of Oregon, the Director of the Oregon Department of Child Welfare, and ODHS, along with its director, under 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA) (42 U.S.C. § 12131(2)), Section 504 of the Rehabilitation Act (29 USC § 794), the Adoption Assis…

On April 16, 2019, ten children in the custody of the Oregon Department of Human Services (ODHS) filed this putative class action lawsuit in the United States District Court for the District of Oregon. The plaintiffs sued the Governor of Oregon, the Director of the Oregon Department of Child Welfare, and ODHS, along with its director, under 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA) (42 U.S.C. § 12131(2)), Section 504 of the Rehabilitation Act (29 USC § 794), the Adoption Assistance Program (42 U.S.C. § 670 et seq.), and the Adoption Assistance and Child Welfare Act (CWA) of 1980 (42 U.S.C. § 620 et seq.).

The plaintiffs, represented by A Better Childhood, Disability Rights Oregon, and private counsel, sought a declaration that the defendants had violated the plaintiffs’ rights under the First, Ninth, and Fourteenth Amendments, the Adoption Assistance and Child Welfare Act of 1980, the ADA, and the Rehabilitation Act. They also sought an injunction against the defendants' unlawful practices, as well as attorneys' fees. Specifically, the plaintiffs alleged that the ODHS exhibited a pattern of:

  1. failing to follow through on numerous federal recommendations to hire more caseworkers, follow up with foster-home monitoring, and improve “permanency planning;”
  2. failing to ensure a sufficient number of foster homes for the disabled and non-disabled children in its care;
  3. sending excess disabled and non-disabled children to for-profit, out-of-state foster care centers unequipped to properly care for disabled children while failing to maintain oversight of such centers’ practices and child welfare; and
  4. subjecting disabled and non-disabled children to the risk of harm through placement instability.

On June 24th, the parties convened settlement negotiations, setting additional conferences for the months ahead. But the negotiations went nowhere and, during the second conference on July 11th, future settlement conferences were cancelled.

On July 25th, 2019, the defendants moved to dismiss or make more definite the complaint. They argued that the court should abstain from exercising jurisdiction because it would be inappropriate for a federal court to tell Oregon how to run its juvenile court system as the plaintiffs demanded. They also argued that the plaintiffs failed to state a claim under the ADA, Child Welfare Act, and § 1983. Specifically, the defendants illustrated DHS efforts to improve its foster services, placement, and permanency, and argued that these efforts met the Constitution's requirement that the State care for children’s basic needs; they also asserted that the ADA and CWA required reviews to be conducted only in state court.

On August 8th, 2019, the plaintiffs filed their response to the motion to dismiss. They argued that abstention should only be exercised in the most extraordinary of cases and that the cases cited by the defendants did not apply to the factual background of this case. The plaintiffs argued that DHS’ practices and case plans were inconsistent with provisions under the CWA and ADA and alleged that the defendants’ motion to dismiss lacked legal merit and was inconsistent with the congressional intent to have the ADA and CWA apply as equally to disabled children as to non-disabled children.

The plaintiffs moved to certify the class on December 9, 2019, seeking to establish a general class as well as three subclasses for (1) plaintiffs subject to ADA violations, (2) sexual and gender minorities, and (3) plaintiffs aging out of the foster care system. In their response in opposition to the class certification, the defendants disputed the commonality of the prospective class and the existence of policies and practices that harmed the plaintiffs. The defendants also moved to dismiss allegedly mooted claims—on the theory that the individual plaintiffs in question had left ODHS custody—on August 3, 2020. 

On September 24th, 2020, the next friend of one of the putative class members moved to intervene in the case for the limited purpose of obtaining discovery for use in a separate, ongoing civil case. Judge Aiken denied the motion on September 28th, 2022 because the information was available to the intervenor through ordinary discovery requests in the separate civil case.

On September 27, 2021, Judge Aiken granted the defendants’ motion to dismiss with respect to the plaintiffs’ § 1983 substantive due process claim, to the extent that it sought to “vindicate a right to be housed in the least restrictive setting, or a right to an array of community-based placements.” The court reasoned that the Fourteenth Amendment protects children under state care from deprivation of their rights but does not require the state to provide an optimal level of care or treatment. Judge Aiken denied the remainder of the defendants' motion to dismiss and the remainder of the plaintiffs’ due process claims survived, as did their §1983 Adoption Assistance and Child Welfare Act claim and their ADA and Rehabilitation Act claims. Finally, the court ruled that O'Shea abstention was not merited in this case because the plaintiffs were challenging specific DHS policies or practices rather than asking the court to provide ongoing case-by-case oversight of judicial proceedings.

Following the court’s ruling on the motion to dismiss, the defendants moved for leave to file an interlocutory appeal on October 27, 2021, arguing that the court’s ruling on the abstention issue warranted appeal because it involved a controlling question of law and grounds for difference of opinion existed among the circuit courts.  

The defendants filed motions to dismiss additional claims as moot on November 8, 2021 and February 16, 2022. 

Between April 14, 2022 and July 28, 2022, the defendants filed a number of notices of supplemental information and authority in support of their motions to dismiss mooted claims, their opposition to class certification, and their motion to certify an interlocutory appeal.

In an 80-page, omnibus order filed on August 17, 2022, Judge Aiken denied the defendants’ motion to exclude experts, granted in part and denied in part the plaintiffs’ motion to exclude expert testimony, denied all of the defendants’ motions to dismiss for mootness, and granted the plaintiff’s motion to certify the class action. 2022 WL 4536263.

The court ruled on the admissibility of testimony from eight different experts. According to Federal Rule of Evidence 702, an expert witness may provide opinion testimony if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert has reliably applied the principles and methods to the facts of the case. The motions to exclude were comprised of factual challenges to the sufficiency of these prongs for each expert.

The court has broad discretion in evaluating experts and was satisfied that the experts met each prong of the evidentiary rule. The sole exception regarded one of the defendants' expert witnesses, an economist. The court found that the economist's conclusions relied on opinions about the needs of Oregon’s foster care children and specialized data, neither of which he was qualified to evaluate. The court also found that the economist's testimony contained impermissible legal conclusions regarding the commonality and typicality of the issues of the named plaintiffs with respect to the rest of the class.

Regarding mootness, the court invoked an exception to the normal rule of mootness for claims that are inherently transitory—such as in a foster care system where children move from home to home and age out—and would therefore make it impossible for a plaintiff to have a stake in the case long enough for litigation to run its course. 

Regarding class certification, the court found that the prospective class met the numerosity, commonality, typicality, and adequacy of representation requirements necessary to certify a class action under Federal Rule of Civil Procedure 23(a). The main questions were of commonality and typicality. Where commonality is concerned, the court noted that class certification is typically proper when class members seek to enjoin state defendants from violating their rights through statewide policies and practices of uniform application. The court found that commonality was satisfied because the plaintiffs identified a number of statewide policies and practices that they alleged were common to the general class and subclasses, and which could be resolved in a single stroke. As to typicality, the court held that the prong was satisfied because the plaintiffs’ alleged injuries were the same for each class member—the exposure to a substantial risk of harm by ODHS policies and practices.

On September 29, 2022, Judge Aiken denied the defendants’ motion to certify the court's August 17 order for interlocutory appeal, agreeing with the defendants that the abstention issue pertained to a controlling question of law, but disagreeing that the Ninth Circuit had inconsistently analyzed and resolved cases relating to the issue. Since there was no “ground for difference of opinion,” the court found that an interlocutory appeal was inappropriate. 

As of November 2, 2022, this case was ongoing.

Summary Authors

Alec Richards (9/29/2019)

Terry Howard (11/1/2022)

Venesa Haska (3/17/2024)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/14943955/parties/wyatt-b-v-kotek/


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Documents in the Clearinghouse

Document

6:19-cv-00556

Docket [PACER]

Sept. 26, 2019

Sept. 26, 2019

Docket
1

6:19-cv-00556

Complaint

April 16, 2019

April 16, 2019

Complaint
31

6:19-cv-00556

Defendants' Motion to Dismiss or, in the Alternative, to Make More Definite and Certain

July 25, 2019

July 25, 2019

Pleading / Motion / Brief
37

6:19-cv-00556

Plaintiffs' Motion to Strike

Aug. 8, 2019

Aug. 8, 2019

Pleading / Motion / Brief
215

6:19-cv-00556

Opinion and Order

Sept. 27, 2021

Sept. 27, 2021

Order/Opinion

2021 WL 2021

275

6:19-cv-00556

Opinion and Order

Aug. 17, 2022

Aug. 17, 2022

Order/Opinion

2022 WL 2022

279

6:19-cv-00556

Opinion and Order

Sept. 28, 2022

Sept. 28, 2022

Order/Opinion

2022 WL 2022

282

6:19-cv-00556

Opinion and Order

Sept. 29, 2022

Sept. 29, 2022

Order/Opinion

2022 WL 2022

Docket

See docket on RECAP: https://www.courtlistener.com/docket/14943955/wyatt-b-v-kotek/

Last updated March 17, 2024, 10:08 p.m.

ECF Number Description Date Link Date / Link
1

Complaint. (CLASS ACTION COMPLAINT) Filing fee in the amount of $400 collected. Agency Tracking ID: 0979-5813152 Jury Trial Requested: No. Filed by Simon S., Kylie R., Ruth T., Naomi B., Noah F., Bernard C., Wyatt B., Alec R., Norman N., Unique L. against Kate Brown, Marilyn Jones, Oregon Dept. of Human Services, Fairborz Pakseresht. (Southwick, Paul) (Entered: 04/16/2019)

April 16, 2019

April 16, 2019

Clearinghouse
2

Civil Cover Sheet regarding Complaint, 1 . Filed by Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., Ruth T.. (Southwick, Paul) (Entered: 04/16/2019)

April 16, 2019

April 16, 2019

PACER
3

CASE MANAGEMENT ORDER. Signed on 4/16/2019 by Judge Ann L. Aiken. (ck) (Entered: 04/16/2019)

April 16, 2019

April 16, 2019

PACER
4

Notice of Case Assignment to Judge Ann L. Aiken and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 8/14/2019. Joint Alternate Dispute Resolution Report is due by 9/13/2019. Pretrial Order is due by 9/13/2019. Ordered by Judge Ann L. Aiken. (bd) (Entered: 04/16/2019)

April 16, 2019

April 16, 2019

PACER
5

Notice of Appearance of Carla Scott appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Scott, Carla) (Entered: 04/25/2019)

April 25, 2019

April 25, 2019

PACER
6

Waiver of Service of Summons Returned Executed by All Defendants. Filed by All Plaintiffs. (Chaimov, Gregory) (Entered: 05/01/2019)

May 1, 2019

May 1, 2019

PACER
7

Motion for Leave to Appear Pro Hac Vice for Attorney Dawn Post . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-5838970. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 05/03/2019)

May 3, 2019

May 3, 2019

PACER
8

Motion for Leave to Appear Pro Hac Vice for Attorney Marcia Robinson Lowry . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-5838991. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 05/03/2019)

May 3, 2019

May 3, 2019

PACER
9

Motion for Leave to Appear Pro Hac Vice for Attorney Anastasia Benedetto . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-5839007. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 05/03/2019)

May 3, 2019

May 3, 2019

PACER
10

ORDER: Granting Application for Special Admission Pro Hac Vice of Dawn J. Post for Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., and Ruth T. Application Fee in amount of $300 collected. Receipt No. 0979-5838970 issued. Signed on 5/3/2019 by Judge Ann L. Aiken. (ck) (Entered: 05/03/2019)

May 3, 2019

May 3, 2019

PACER
11

Notification of CM/ECF Account for Dawn J. Post (Pro Hac Vice admission). Your login is: djpost. Go to the CM/ECF login page to set your password. (ck) (Entered: 05/03/2019)

May 3, 2019

May 3, 2019

PACER
12

ORDER: Granting Application for Special Admission Pro Hac Vice of Marcia Robinson Lowry for Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., and Ruth T. Application Fee in amount of $300 collected. Receipt No. 0979-5838991 issued. Signed on 5/6/2019 by Judge Ann L. Aiken. (ck) (Entered: 05/06/2019)

May 6, 2019

May 6, 2019

PACER
13

Notification of CM/ECF Account for Marcia Robinson Lowry (Pro Hac Vice admission). Your login is: mrlowry. Go to the CM/ECF login page to set your password. (ck) (Entered: 05/06/2019)

May 6, 2019

May 6, 2019

PACER
14

ORDER: Granting Application for Special Admission Pro Hac Vice of Anastasia Benedetto for Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., and Ruth T. Application Fee in amount of $300 collected. Receipt No. 0979-5839007 issued. Signed on 5/6/2019 by Judge Ann L. Aiken. (ck) (Entered: 05/06/2019)

May 6, 2019

May 6, 2019

PACER
15

Notification of CM/ECF Account for Anastasia Benedetto (Pro Hac Vice admission). Your login is: abenedetto. Go to the CM/ECF login page to set your password. (ck) (Entered: 05/06/2019)

May 6, 2019

May 6, 2019

PACER
16

SCHEDULING ORDER by Judge Acosta - SETTING an initial Settlement Conference for Monday, June 24, 2019, in Judge Acosta's chambers on the 11th floor of the Mark O. Hatfield United States Courthouse, 1000 SW Third Avenue, Portland, Oregon 97204; Plaintiffs to arrive at 9:00AM and Defendants at 9:45AM. Subsequent sessions are reserved for a 9:00AM start times on Thursday, July 11th, Friday, July 12th, and Monday, August 12th. (peg) (Entered: 05/30/2019)

May 30, 2019

May 30, 2019

PACER

1 - Scheduling

May 30, 2019

May 30, 2019

PACER
17

Notice of Appearance of David B. Markowitz appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Markowitz, David) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER

Order on Motion for Extension of Time to Answer a Complaint/Petition

June 14, 2019

June 14, 2019

PACER
18

Notice of Appearance of Laura R. Salerno Owens appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Salerno Owens, Laura) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER
19

Notice of Appearance of Anna Marie Joyce appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Joyce, Anna) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER
20

Notice of Appearance of Harry B. Wilson appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Wilson, Harry) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER
21

Notice of Appearance of Lauren F. Blaesing appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Blaesing, Lauren) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER
22

Unopposed Motion for Extension of Time to Answer or Otherwise Respond to Plaintiffs' Complaint, and Supporting Memorandum Complaint, 1 . Expedited Hearing requested. Filed by All Defendants. (Markowitz, David) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER
23

ORDER: Granting Unopposed Motion for Extension of Time to Answer 22 . Answer is due by 7/25/2019. Ordered by Judge Ann L. Aiken. (ck) (Entered: 06/14/2019)

June 14, 2019

June 14, 2019

PACER
24

MINUTES of Proceedings: Initial Settlement Conference held by Judge Acosta. ORDER: Additional Settlement Conference dates set for 7/11/19, 7/12/19 and 8/12/19, all starting at 9:00AM. Emily Cooper, Paul Southwick, Tom Stenson, Greg Chaimov, Marcia Lowry, Dawn Post present as counsel for plaintiff(s). Lauren Blaesing, David Markowitz, Dustin Buehler, Carla Scott, Laura Salerno Owens, Joanne Southey, Sheila Potter present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 06/25/2019)

June 24, 2019

June 24, 2019

PACER

Settlement Conference

June 25, 2019

June 25, 2019

PACER
25

MINUTES of Proceedings: Second settlement conference session held by Judge Acosta. Case does not settle at this time. The third settlement conference session scheduled for July 12, 2019, is cancelled. The court will keep on its calendar the fourth settlement conference session scheduled for August 12, 2019, should the parties wish to reconvene at that time. Emily Cooper, Paul Southwick, Tom Stenson, Greg Chaimov, Marcia Lowry, Dawn Post and Chris Shank present as counsel for plaintiff(s). Lauren Blaesing, David Markowitz, Dustin Buehler, Carla Scott, Laura Salerno Owens, Joanne Southey and Sheila Potter present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) Modified on 7/12/2019 to correct duplicative initial entry.(peg) (Entered: 07/12/2019)

July 11, 2019

July 11, 2019

PACER

Settlement Conference

July 12, 2019

July 12, 2019

PACER
26

Scheduling Order by Judge Ann L. Aiken. Telephonic Status Conference is set for 7/29/2019 at 09:30AM in Eugene by telephone before Judge Ann L. Aiken. The parties shall call in to the conference. Conference call information will be provided by the Court in a separate entry. The parties are directed to file a Joint Status Report by 7/25/2019. Ordered by Judge Ann L. Aiken. (ck) (Entered: 07/16/2019)

July 16, 2019

July 16, 2019

PACER

1 - Scheduling

July 16, 2019

July 16, 2019

PACER
27

Notice of Association of Attorney Carla Scott,Sheila H. Potter for Kate Brown,Sheila H. Potter for Fairborz Pakseresht,Sheila H. Potter for Oregon Dept. of Human Services,Sheila H. Potter for Marilyn Jones. Filed by Kate Brown, Fairborz Pakseresht, Oregon Dept. of Human Services, Marilyn Jones. (Scott, Carla) (Entered: 07/17/2019)

July 17, 2019

July 17, 2019

PACER
28

Notice of Change of Address Filed by All Defendants. (Blaesing, Lauren) (Entered: 07/18/2019)

July 18, 2019

July 18, 2019

PACER
29

Stipulated Motion to Substitute a Party and Change Case Caption. Filed by All Defendants. (Joyce, Anna) (Entered: 07/23/2019)

July 23, 2019

July 23, 2019

PACER

Order on Motion to Substitute Party

July 23, 2019

July 23, 2019

PACER
30

ORDER: Granting Stipulated Motion to Substitute a Party and Change Case Caption 29 . Ordered by Judge Ann L. Aiken. (ck) (Entered: 07/23/2019)

July 23, 2019

July 23, 2019

PACER
31

Motion to Dismiss for Failure to State a Claim, Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain. Oral Argument requested. Filed by All Defendants. (Joyce, Anna) (Entered: 07/25/2019)

July 25, 2019

July 25, 2019

Clearinghouse
32

Declaration of Anna M. Joyce in Support of Motion to Dismiss or, in the Alternative, to Make More Definite and Certain. Filed by All Defendants. (Related document(s): Motion to Dismiss for Failure to State a Claim,, Motion for more definite statement, 31 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Joyce, Anna) (Entered: 07/25/2019)

1 Exhibit 1

View on PACER

2 Exhibit 2

View on PACER

3 Exhibit 3

View on PACER

July 25, 2019

July 25, 2019

PACER
33

MINUTES of Proceedings: Telephonic Status Conference held before Judge Ann L. Aiken. The parties report that their Rule 26(f) conference is scheduled for 7/30/2019 and they are planning on a trial date in October, 2020. The parties shall submit a joint proposed scheduling order for the Court's review. A further Telephonic Status Conference is set for 9/6/2019 at 09:15AM in Eugene by telephone before Judge Ann L. Aiken. The parties shall call in to the conference. Conference call information will be provided by the Court in a separate entry. Dawn Post, Gregory Chaimov, Marcia Lowry, Emily Cooper present as counsel for plaintiffs. Carla Scott, David Markowitz, Laura Salerno Owens, Lauren Blaesing, Elleanor Chin present as counsel for defendants. Court Reporter: Sara Wilson. (ck) (Entered: 07/29/2019)

July 29, 2019

July 29, 2019

PACER

Status Conference

July 29, 2019

July 29, 2019

PACER
34

Fed. R. Civ. P. 26(a)(1) Agreement . Filed by Kate Brown, Jana McLellan, Oregon Dept. of Human Services, Fairborz Pakseresht. (Blaesing, Lauren) (Entered: 08/02/2019)

Aug. 2, 2019

Aug. 2, 2019

PACER
35

Response to Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 . Filed by Naomi B., Wyatt B., Bernard C., Noah F., Unique L., Norman N., Alec R., Kylie R., Simon S., Ruth T.. (Southwick, Paul) (Entered: 08/08/2019)

Aug. 8, 2019

Aug. 8, 2019

RECAP

1 - Scheduling

Aug. 8, 2019

Aug. 8, 2019

PACER
36

SCHEDULING ORDER by Judge Acosta - STRIKING the Settlement Conference date of 8/12/19, from Judge Acosta's calendar, as the parties do not wish to proceed in that direction at this time. (peg) (Entered: 08/08/2019)

Aug. 8, 2019

Aug. 8, 2019

PACER
37

Motion to Strike Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 . Oral Argument requested. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 08/08/2019)

Aug. 8, 2019

Aug. 8, 2019

Clearinghouse
38

Joint Status Report and Discovery Plan. Filed by All Defendants. (Blaesing, Lauren) (Entered: 08/15/2019)

Aug. 15, 2019

Aug. 15, 2019

PACER

1 - Scheduling

Aug. 15, 2019

Aug. 15, 2019

PACER
39

Stipulated Motion for Protective Order Stipulated Protective Order. Filed by All Defendants. (Blaesing, Lauren) (Entered: 08/15/2019)

Aug. 15, 2019

Aug. 15, 2019

PACER
40

ORDER: Granting Stipulated Motion for a Protective Order 39 . Signed on 8/15/2019 by Judge Ann L. Aiken. (ck) (Entered: 08/15/2019)

Aug. 15, 2019

Aug. 15, 2019

PACER
41

Scheduling Order by Judge Ann L. Aiken. The Court is in receipt of the parties' Joint Status Report and Discovery Plan 28 and adopts the proposed deadlines as follows: Motion for class certification is due by 10/8/2019. Defendants' opposition to class certification is due by 12/6/2019. Plaintiffs' reply in support of class certification is due by 12/20/2019. Discovery is to be completed by 4/1/2020. Expert reports are to be exchanged by 6/3/2020. Expert response reports are to be exchanged by 7/1/2020. Expert Discovery is to be completed by 7/15/2020. Dispositive Motions are due by 8/7/2020. Responses to Dispositive Motions are due by 8/28/2020. Replies to Dispositive Motions are due by 9/11/2020. Ordered by Judge Ann L. Aiken. (ck) (Entered: 08/15/2019)

Aug. 15, 2019

Aug. 15, 2019

PACER
42

Unopposed Motion to Correct Caption. Filed by All Defendants. (Joyce, Anna) (Entered: 08/22/2019)

Aug. 22, 2019

Aug. 22, 2019

PACER

Order on Motion

Aug. 22, 2019

Aug. 22, 2019

PACER
43

ORDER: Granting Unopposed Motion to Correct Caption 42 . Defendant Fairborz Pakseresht will be corrected to Fariborz Pakseresht. Ordered by Judge Ann L. Aiken. (ck) (Entered: 08/22/2019)

Aug. 22, 2019

Aug. 22, 2019

PACER
44

Response in Opposition to Plaintiff's Motion to Strike to Motion to Strike Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 37 . Filed by All Defendants. (Joyce, Anna) (Entered: 08/22/2019)

Aug. 22, 2019

Aug. 22, 2019

PACER
45

Reply in Support of to Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 . Filed by All Defendants. (Joyce, Anna) (Entered: 08/22/2019)

Aug. 22, 2019

Aug. 22, 2019

RECAP
46

Reply to Motion to Strike Motion to Dismiss for Failure to State a Claim Motion for a More Definite Statement Defendants' Motion to Dismiss Or, In the Alternative, to Make More Definite and Certain 31 37 . Filed by All Plaintiffs. (Chaimov, Gregory) (Entered: 09/05/2019)

Sept. 5, 2019

Sept. 5, 2019

PACER
47

MINUTES of Proceedings: Telephonic Status Conference held before Judge Ann L. Aiken. The disputed case management issues are discussed as stated on the record. The Court takes the matters of a protective order and the total number of hours for non-expert depositions per side under advisement. Formal Written Order to follow. Dawn Post, Marcia Lowry, Emily Cooper, Paul Southwick, Thomas Stenson present as counsel for plaintiffs. Anna Joyce, David Markowitz, Sheila Potter present as counsel for defendants. Court Reporter: Deborah Cook. (ck) (Entered: 09/06/2019)

Sept. 6, 2019

Sept. 6, 2019

PACER

Status Conference

Sept. 6, 2019

Sept. 6, 2019

PACER
48

Motion for Protective Order and Memorandum in Support. Oral Argument requested.Expedited Hearing requested. Filed by All Defendants. (Blaesing, Lauren) (Entered: 09/12/2019)

Sept. 12, 2019

Sept. 12, 2019

PACER

Order on Motion for Protective Order

Sept. 12, 2019

Sept. 12, 2019

PACER
49

Order and Opinion. The total number of hours for non-expert deposition testimony is set initially at 100 hours per side. The Court will enter an Amended Protective Order which shall not change the agreed procedures for designation of information as confidential or AEO. The amended order shall allow the parties to use information derived from confidential reports in public filings in this litigation. Signed on 9/12/2019 by Judge Ann L. Aiken. (plb) (Entered: 09/12/2019)

Sept. 12, 2019

Sept. 12, 2019

RECAP
50

Amended Stipulated Protective Order. Signed on 9/12/2019 by Judge Ann L. Aiken. (plb) (Entered: 09/12/2019)

Sept. 12, 2019

Sept. 12, 2019

PACER
51

ORDER: The Court has reviewed the parties' September 6, 2019 letter regarding their most recent discovery dispute. Having considered the arguments presented, and noting that defendants' representation that they will agree to extend other case deadlines as necessary, the Court orders that the deposition currently scheduled for September 16, 2019 be continued to a new date. The parties shall confer and set a mutually agreed upon date for the deposition to take place within thirty days of this order. The Court will set prompt status conferences to deal with any further disputes. The Court DENIES defendant's Motion for a Protective Order as moot 48 . Ordered on 9/12/2019 by Judge Ann L. Aiken. (rdr) Modified on 9/12/2019 to correct a transcription error. (rdr). (Entered: 09/12/2019)

Sept. 12, 2019

Sept. 12, 2019

PACER
52

Order. The discovery dispute submitted by the parties through joint letter on September 23, 2019, is referred to Magistrate Judge Thomas Coffin for hearing and disposition. Ordered on 9/25/2019 by Judge Ann L. Aiken. (rdr) (Entered: 09/25/2019)

Sept. 25, 2019

Sept. 25, 2019

PACER

Order

Sept. 25, 2019

Sept. 25, 2019

PACER
53

Scheduling Order by Magistrate Judge Thomas M. Coffin. Telephonic Status Conference is set for 10/1/2019 at 11:00AM in Eugene by telephone before Magistrate Judge Thomas M. Coffin. The parties shall call in to the conference. Conference call information will be provided in a separate entry. Ordered by Magistrate Judge Thomas M. Coffin. (ck) (Entered: 09/26/2019)

Sept. 26, 2019

Sept. 26, 2019

PACER

1 - Scheduling

Sept. 26, 2019

Sept. 26, 2019

PACER
54

MINUTES of Proceedings: Telephonic Status Conference held before Magistrate Judge Thomas M. Coffin. The Court orders the parties to proceed with depositions of the minor plaintiffs' next friends as scheduled. Once completed, the Court shall address any remaining discovery issues dealing with the production of records from the next friends. Plaintiffs are not required to turn over any of the files discussed during the hearing at this time. Further, as discussed on the record, plaintiffs are not required to convey a related privilege log to defendants until after depositions are completed. The parties shall communicate with Judge Aiken's Chambers to submit any further disputes or schedule hearings with this Court. Dawn Post, Emily Cooper, Thomas Stenson present as counsel for plaintiffs. David Markowitz, Lauren Blaesing, Sheila Potter, Elleanor Chin present as counsel for defendants. Court Reporter: Deborah Cook. (ck) (Entered: 10/01/2019)

Oct. 1, 2019

Oct. 1, 2019

PACER

Status Conference

Oct. 1, 2019

Oct. 1, 2019

PACER
55

Unopposed Motion for Extension of Time to file Motion for Class Certification. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 10/04/2019)

Oct. 4, 2019

Oct. 4, 2019

PACER
56

ORDER: Granting Unopposed Motion for Extension of Time to file Motion for Class Certification 55 . Motion for class certification is due by 12/2/2019. Defendants' opposition to class certification is due by 3/2/2020. Plaintiffs' reply in support of class certification is due by 3/16/2020. Ordered by Judge Ann L. Aiken. (ck) (Entered: 10/07/2019)

Oct. 7, 2019

Oct. 7, 2019

PACER

Order on Motion for Extension of Time

Oct. 7, 2019

Oct. 7, 2019

PACER
57

Transcript Designation and Order Form for the hearing held on October 1, 2019 before Judge Thomas M. Coffin. Court Reporter: Deborah Cook. . Filed by All Defendants. (Blaesing, Lauren) (Entered: 11/04/2019)

Nov. 4, 2019

Nov. 4, 2019

PACER
58

Stipulated Motion to Substitute a Party and Change Case Caption. Filed by All Defendants. (Blaesing, Lauren) (Entered: 11/19/2019)

Nov. 19, 2019

Nov. 19, 2019

PACER
59

Motion for Extension of Time and Page Limitations for Motion for Class Certification and Supporting Memorandum. Expedited Hearing requested. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 11/22/2019)

Nov. 22, 2019

Nov. 22, 2019

PACER
60

Declaration of Marcia Robinson Lowry in support of Plaintiffs' Motion for Extension of Time and Page Limitations for Motion for Class Certification and Supporting Memorandum. Filed by All Plaintiffs. (Related document(s): Motion for Extension of Time 59 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Southwick, Paul) (Entered: 11/22/2019)

1 Exhibit 1

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2 Exhibit 2

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3 Exhibit 3

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4 Exhibit 4

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Nov. 22, 2019

Nov. 22, 2019

PACER
61

Motion for an Abatement of the Class Certification Schedule and Response to Plaintiff's Motion for an Extension. Oral Argument requested. Filed by All Defendants. (Wilson, Harry) (Entered: 11/26/2019)

Nov. 26, 2019

Nov. 26, 2019

PACER
62

Declaration of Greg Scott . Filed by All Defendants. (Related document(s): Motion - Miscellaneous 61 .) (Wilson, Harry) (Entered: 11/26/2019)

Nov. 26, 2019

Nov. 26, 2019

PACER
63

Response in Opposition to Motion for an Abatement of the Class Certification Schedule and Response to Plaintiff's Motion for an Extension 61 . Filed by All Plaintiffs. (Southwick, Paul) (Entered: 11/27/2019)

Nov. 27, 2019

Nov. 27, 2019

PACER
64

Motion to Certify the Class . Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Proposed Order) (Southwick, Paul) (Entered: 12/09/2019)

1 Proposed Order

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Dec. 9, 2019

Dec. 9, 2019

RECAP
65

Declaration of Amy Miller in support of Plaintiffs' Motion for Class Certification. Filed by All Plaintiffs. (Related document(s): Motion to certify class 64 .) (Southwick, Paul) (Entered: 12/09/2019)

Dec. 9, 2019

Dec. 9, 2019

PACER
66

Declaration of Thomas Stenson in support of Plaintiffs' Motion for Class Certification. Filed by All Plaintiffs. (Related document(s): Motion to certify class 64 .) (Southwick, Paul) (Entered: 12/09/2019)

Dec. 9, 2019

Dec. 9, 2019

PACER
67

Declaration of Marcia Robinson Lowry in support of Plaintiffs' Motion for Class Certification. Filed by All Plaintiffs. (Related document(s): Motion to certify class 64 .) (Attachments: # 1 Exhibit 1-7, # 2 Exhibit 8-10, # 3 Exhibit 11-16, # 4 Exhibit 17-21, # 5 Exhibit 22-26, # 6 Exhibit 27-31) (Southwick, Paul) (Attachment 1 replaced on 12/11/2019) (cw). (Entered: 12/09/2019)

2 Exhibit 8-10

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3 Exhibit 11-16

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4 Exhibit 17-21

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5 Exhibit 22-26

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6 Exhibit 27-31

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Dec. 9, 2019

Dec. 9, 2019

PACER
68

Notice of Correction by Clerk regarding 67 Declaration (Exhibits 1-7). A Clerical error has been discovered in the case record: Exhibits 1-7 contained personal identifier information and required redaction. The following corrections were made to the record: A corrected PDF has been uploaded and has replaced the incorrect attachment (attachment 1 - Exhibits 1-7).The Notice of Electronic Filing will be regenerated to all parties. (cw) (Entered: 12/11/2019)

Dec. 11, 2019

Dec. 11, 2019

PACER

Correction of the Record

Dec. 11, 2019

Dec. 11, 2019

PACER
69

Declaration of Dawn J. Post in support of Motion to Certify Class. Filed by All Plaintiffs. (Related document(s): Motion to certify class 64 .) (Southwick, Paul) (Entered: 12/11/2019)

Dec. 11, 2019

Dec. 11, 2019

PACER
70

ORDER: Exhibits 1-7 attached to document 67 shall be sealed pending an in camera review . Ordered by Judge Ann L. Aiken. (ck) Modified to add document number on 12/11/2019 (ck). (Entered: 12/11/2019)

Dec. 11, 2019

Dec. 11, 2019

PACER
71

Scheduling Order by Judge Ann L. Aiken. Telephonic Status Conference is set for 12/18/2019 at 09:30AM in Eugene by telephone before Judge Ann L. Aiken. The parties shall call in to the conference. Conference call information will be provided by the Court in a separate entry. Ordered by Judge Ann L. Aiken. (ck) (Entered: 12/12/2019)

Dec. 12, 2019

Dec. 12, 2019

PACER

Order

Dec. 12, 2019

Dec. 12, 2019

PACER

1 - Scheduling

Dec. 12, 2019

Dec. 12, 2019

PACER
72

Motion to Permanently Seal Exhibit 3 to the Declaration of Marcia Robinson Lowry in Support of Named Plaintiff Children's Motion for Class Certification and to Have Plaintiffs Publicly Re-File a Redacted Version. Filed by All Defendants. (Joyce, Anna) (Entered: 12/13/2019)

Dec. 13, 2019

Dec. 13, 2019

PACER
73

Declaration of Lauren F. Blaesing In Support of Defendants' Motion to Permanently Seal Exhibit 3 to the Declaration of Marcia Robinson Lowry in Support of Named Plaintiff Children's Motion for Class Certification and to Have Plaintiffs Publicly Re-File a Redacted Version. Filed by All Defendants. (Related document(s): Motion - Miscellaneous, 72 .) (Attachments: # 1 Exhibit, # 2 Exhibit) (Joyce, Anna) (Entered: 12/13/2019)

1 Exhibit

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2 Exhibit

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Dec. 13, 2019

Dec. 13, 2019

PACER
74

Declaration of Rebecca K. Dodd In Support of Defendants' Motion to Permanently Seal Exhibit 3 to the Declaration of Marcia Robinson Lowry in Support of Named Plaintiff Children's Motion for Class Certification and to Have Plaintiffs Publicly Re-File a Redacted Version. Filed by All Defendants. (Related document(s): Motion - Miscellaneous, 72 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Joyce, Anna) (Entered: 12/13/2019)

1 Exhibit

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2 Exhibit

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3 Exhibit

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Dec. 13, 2019

Dec. 13, 2019

PACER
75

Motion to Permanently Seal Exhibit 3 to the Declaration of Marcia Robinson Lowry in Support of Named Plaintiff Children's Motion for Class Certification and to Have Plaintiffs Publicly Re-File a Redacted Version. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Defendants. (Joyce, Anna) (Entered: 12/13/2019)

Dec. 13, 2019

Dec. 13, 2019

PACER
76

Response in Opposition to Motion to Permanently Seal Exhibit 3 to the Declaration of Marcia Robinson Lowry in Support of Named Plaintiff Children's Motion for Class Certification and to Have Plaintiffs Publicly Re-File a Redacted Version 75 Oral Argument requested. Filed by All Plaintiffs. (Southwick, Paul) (Entered: 12/16/2019)

Dec. 16, 2019

Dec. 16, 2019

PACER
77

Declaration of Dawn J. Post in support of Plaintiffs' Opposition to Defendants' Motionto Permanently Seal Exhibit 3. Filed by All Plaintiffs. (Related document(s): Response in Opposition to Motion, 76 .) (Attachments: # 1 Exhibit 1-7) (Southwick, Paul) (Entered: 12/16/2019)

1 Exhibit 1-7

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Dec. 16, 2019

Dec. 16, 2019

PACER
78

ORDER: Granting Stipulated Motion to Substitute a Party and Change Case Caption 58 . Jana McLellan, the Interim Director of Child Welfare at the Oregon Department of Human Services is replaced by Rebecca Jones Gaston, Director of Child Welfare at the Oregon Department of Human Services. Ordered by Judge Ann L. Aiken. (ck) (Entered: 12/17/2019)

Dec. 17, 2019

Dec. 17, 2019

PACER

Order on Motion to Substitute Party

Dec. 17, 2019

Dec. 17, 2019

PACER
79

ORDER: Having considered the parties' submissions, and to the extent that requests are not moot, plaintiffs' Motion for Extension of Time and Page Limitations 59 is GRANTED. Defendants' Motion for Abatement 61 is DENIED. To date, the parties have moved forward expeditiously with discovery and briefing, and the Court finds no good cause at present to stay the current stipulated deadlines. A separate order on the pending dispositive motion shall be issued prior to the close of briefing on the Motion to Certify the Class. Ordered on 12/17/2019 by Judge Ann L. Aiken. (rdr) (Entered: 12/17/2019)

Dec. 17, 2019

Dec. 17, 2019

PACER
80

MINUTES of Proceedings: Telephonic Status Conference held before Judge Ann L. Aiken regarding permanently sealing Exhibit 3 to the Declaration of Marcia Robinson Lowry 67 . The Court hears argument as stated on the record and takes the matter under advisement. Formal Written Opinion to follow. Dawn Post, Marcia Lowry, Thomas Stenson present as counsel for plaintiffs. David Markowitz, Lauren Blaesing, Sheila Potter, Anit Jindal present as counsel for defendants. Court Reporter: Jan Duiven. (ck) (Entered: 12/18/2019)

Dec. 18, 2019

Dec. 18, 2019

PACER

Case Details

State / Territory: Oregon

Case Type(s):

Child Welfare

Disability Rights

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: April 16, 2019

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Foster children under the control of the Oregon Department of Human Services.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

NDRN/Protection & Advocacy Organizations

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

Oregon Department of Human Services, State

Director of Child Welfare, State

Governor of Oregon, State

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

42 U.S.C. § 1983

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.

Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. §§ 620 et seq.

Adoption Assistance Program, 42 U.S.C. §§ 670 et seq.

Section 504 (Rehabilitation Act), 29 U.S.C. § 701

Constitutional Clause(s):

Due Process

Available Documents:

Trial Court Docket

Complaint (any)

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General:

Classification / placement

Family abuse and neglect

Foster care (benefits, training)

Juveniles

Public benefits (includes, e.g., in-state tuition, govt. jobs)

Relative caretakers

Siblings (visitation, placement)

Suicide prevention

Disability and Disability Rights:

disability, unspecified

Discrimination-basis:

Disability (inc. reasonable accommodations)

Medical/Mental Health:

Medical care, general

Mental health care, general

Self-injurious behaviors

Suicide prevention

Type of Facility:

Government-run

Benefit Source:

Adoption Assistance and Child Welfare Act