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

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Case Summary

On April 16, 2019, ten children in the custody of the Oregon Department of Human Services (ODHS) filed this 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 Pro…

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:

failing to follow through on numerous federal recommendations to hire more caseworkers, follow up with foster-home monitoring, and improve “permanency planning;”
failing to ensure a sufficient number of foster homes for the disabled and non-disabled children in its care;
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
subjecting disabled and non-disabled children to the risk of harm through placement instability.

Two months later, on June 24, 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.

The defendants moved to dismiss or make more definite the complaint the following month, on July 25. 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 explained ODHS's 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 8, 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.

The following year, on September 24, 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.

A year later, 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. 2021 WL 4434011.

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 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. 2022 WL 4547903.

The court stayed the case on October 5, 2022 to facilitate settlement. However, the parties failed to settle and a few months later, on December 21, the court lifted the stay. The parties spent the first few months of 2023 exchanging discovery. A discovery dispute in September 2023 led the court ordering a site visit. Multiple settlement conferences were held in December 2023 and January 2024, but ultimately were not successful. The plaintiffs rejected defendants’ settlement offers, seeking policy changes instead of monetary damages.

On May 10, 2024, the parties held a status conference presided over by Judge Aiken. In it, they first confirmed that they had settlement authority, and that they would attempt to have a final settlement worked out by May 17, naming possible arbitrators in case they could not fully work out their issues by then. The original trial date was moved to May 20 pending settlement negotiations.

On May 23, 2024, the parties issued a final settlement agreement. The parties could not resolve the issue of the scope of the definition of 'child in care', but agreed to submit briefs about it to the court and not let it affect settlement on other issues. The second provision said that plaintiffs and ODHS would work together to improve child welfare in the state, and set timelines to resolve current case plans. The third provision created the position of a Neutral, a subject matter expert who would periodically assess OR's child welfare system, and resolved to work together to find an appropriate expert by May 31, 2024. The parties agreed to meet every 6 months to discuss the progress of the settlement, as well as an annual review every 1st of September along with a report issued by the neutral. The parties agreed that the agreement would continue until the Neutral determined that ODHS was in substantial compliance with the ultimate outcomes of the agreement, or within ten years of the signing.

Judge Aiken issued an order preliminarily approving the settlement on May 31, 2024. On June 24, 2024, the court selected a Neutral as provided in the settlement agreement.

On June 27, 2024, Judge Aiken issued an opinion finding that the definition of Child in Care excludes: "1) children who have not been removed and their family is receiving services through Oregon DHS in-home (i.e., through ODHS Family Preservation) because while those children may be in ODHS's legal custody, they are not in ODHS's physical custody and so are not "in care"; and (2) children who have been removed, are in ODHS's legal custody, but are not in ODHS's physical custody because they are place in-home with a parent or legal guardian".

On September 12, 2024, Judge Aiken issued a final judgment on the case dismissing the action, entering the settlement as an order of the court, and retaining jurisdiction over the settlement for the period the settlement lasts.

Though the case has been dismissed, monitoring on the case continues.

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Summary Authors

Alec Richards (9/29/2019)

Terry Howard (11/1/2022)

Venesa Haska (3/17/2024)

Carlos Hurtado-Esteve (11/20/2024)

People

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

Judge(s)

Aiken, Ann L. (Oregon)

Attorney for Plaintiff

Benedetto, Anastasia (New York)

Borle, Jonathan (Oregon)

Chaimov, Gregory A. (Oregon)

Attorney for Defendant

Blaesing, Lauren (Oregon)

Expert/Monitor/Master/Other

Judge(s)

Aiken, Ann L. (Oregon)

Attorney for Plaintiff

Benedetto, Anastasia (New York)

Borle, Jonathan (Oregon)

Chaimov, Gregory A. (Oregon)

Cooper, Emily R. (Oregon)

Gallagher, Erin (Oregon)

Gus, Lindsay (Oregon)

Iyer, Aarti (Oregon)

Lowry, Marcia Robinson (New York)

McStay, P. Andrew (Oregon)

Miner, William D. (Oregon)

Post, Dawn J. (New York)

Rizzo, Steven V. (Oregon)

Shank, Christine (Oregon)

Skjelset, Mary (Oregon)

Southwick, Paul J.C. (Oregon)

Stenson, Thomas (Oregon)

Stineman, Renee R. (Oregon)

Attorney for Defendant

Blaesing, Lauren (Oregon)

Crippen, Kelsie Gene (Oregon)

Fauria, David (Oregon)

Jindal, Anit K. (Oregon)

Joyce, Anna M. (Oregon)

Kothari, Vivek A. (Oregon)

Markowitz, David B. (Oregon)

Owens, Laura R. (Oregon)

Potter, Sheila (Oregon)

Ridenour, Adele J. (Oregon)

Scott, Carla (Oregon)

Wilson, Harry B. (Oregon)

Expert/Monitor/Master/Other

Kramer, David L. (Oregon)

Attorney Contact Information via CourtListener

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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
215 6:19-cv-00556	Opinion and Order	Sept. 27, 2021	Sept. 27, 2021 Order/Opinion 2021 WL 4434011
275 6:19-cv-00556	Opinion and Order	Aug. 17, 2022	Aug. 17, 2022 Order/Opinion 2022 WL 3445767
279 6:19-cv-00556	Opinion and Order	Sept. 28, 2022	Sept. 28, 2022 Order/Opinion 2022 WL 4536263
282 6:19-cv-00556	Opinion and Order	Sept. 29, 2022	Sept. 29, 2022 Order/Opinion 2022 WL 4547903
481 6:19-cv-00556	Settlement Agreement Wyatt B. v. Kotek	May 23, 2024	May 23, 2024 Settlement Agreement

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Docket

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

Last updated Dec. 17, 2024, 4:55 a.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 RECAP
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 PACER
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 RECAP
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 View on PACER 2 Exhibit 2 View on PACER 3 Exhibit 3 View on PACER 4 Exhibit 4 View on PACER	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 View on PACER	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 View on PACER 3 Exhibit 11-16 View on PACER 4 Exhibit 17-21 View on PACER 5 Exhibit 22-26 View on PACER 6 Exhibit 27-31 View on PACER	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 View on PACER 2 Exhibit View on PACER	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 View on PACER 2 Exhibit View on PACER 3 Exhibit View on PACER	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 View on PACER	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

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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:

All children for whom the Oregon Department of Human Services (“DHS”) has or will have legal responsibility and who are or will be in the legal or physical custody of DHS.

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