E.M. v. Pajaro Valley Unified School District Office of Administrative Hearings et al

Filing 128

ORDER APPROVING 127 STIPULATED JOINT REQUEST FOR STATUS CONFERENCE. Signed by Judge Jeremy Fogel on 6/12/2009. (jflc2, COURT STAFF) (Filed on 6/12/2009)

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Mandy G. Leigh, SBN 225748 Sarah J. Fairchild, SBN 238469 LEIGH LAW GROUP also DBA EDULEGAL 870 Market Street, Suite 1161 San Francisco, CA 94102 Phone: [phone] Fax: [phone] E-mail: [e-mail] [e-mail] Attorneys for Plaintiff E.M. by and through E.M. and E.M. Kimberly A. Smith, SBN 176659 Sarah S. Orman, SBN 246259 FAGEN FRIEDMAN & FULFROST, LLP 6300 Wilshire Boulevard, Suite 1700 Los Angeles, California 90048 Phone: [phone] Fax: [phone] Attorneys for Defendant Pajaro Valley Unified School District

**E-filed 6/12/09**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

E.M. a minor, by and through his parents, E.M. and E.M. Plaintiff,

v. PAJARO VALLEY UNIFIED SCHOOL DISTRICT, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. C 06-04694 JF STIPULATED JOINT REQUEST FOR STATUS CONFERENCE AND -[PROPOSED]-ORDER -----------------Hon. Jeremy Fogel

E.M. V. PAJARO VALLEY UNIFIED SCHOOL DISTRICT

Case No. C 06-04694 JF 1

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A. Background On October 17, 2008 this Court denied both parties' motions for summary judgment and remanded the matter back to the office of administrative hearings ("OAH"). See Order Denying Cross Motions for Summary Judgment And Remanding Case to ALJ For Further Proceeding [Docket # 124] ("Remand Order"). In the Remand Order, this Court requested that the administrative law judge ("ALJ") who issued the original decision provide "additional discussion" to assist the Court in determining the substantive issues in this matter. See Docket 124 at 5:276:1. In purported compliance with the Remand Order, on or about May 29, 2009 ALJ Skarda issued a "Decision Following Remand" ("ALJ's Decision"). See Exhibit A. Although this matter was closed during the pendency of the remand, both parties to this action believe that the procedural posture of the case required a stay. See Shapiro v. Paradise Valley Unified School District, 152 F.3d 1159, 1160 (9th Cir.1998) holding that when a federal district court remands a case to a hearing officer for additional findings, the district court action should be stayed pending those proceedings. Counsel for each side conferred after receiving the ALJ's Decision and jointly agreed that the parties needed guidance from the Court as to how to proceed. With that in mind, the parties now petition this Court for a status conference in order to determine the next steps to be taken. B. Plaintiff E.M. Seeks A Status Conference And Opportunity to Brief Issue Of ALJ's Compliance With Remand Order Plaintiff E.M. believes that the most recent ALJ's Decision both failed to comport with this Court's Remand Order and failed to support his original determination that E.M. was not entitled to receive special education. Plaintiff requires guidance on whether the Court will allow further briefing regarding the content of the ALJ's Decision or will review the ALJ's Decision sua sponte. C. Defendant PVUSD Defendant Pajaro Valley Unified School District believes that the ALJ's Decision satisfies the Court's Remand Order and the Court may rule on the previously filed motions for summary judgment without filing further briefing.
E.M. V. PAJARO VALLEY UNIFIED SCHOOL DISTRICT

Case No. C 06-04694 JF 2

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D. Conclusion The ALJ has issued a Decision in response to this Court's Remand Order. The parties are requesting a status conference in order to determine the status of this appeal and to determine if the Court will permit or require additional briefing specific to the Decision issued by the ALJ.

Respectfully submitted,

DATED: June 11, 2009

/s/ Sarah J. Fairchild Sarah J. Fairchild Attorney for Plaintiff, E.M.

/s/ Kimberly Smith Kimberly Smith Attorney for Defendant, PVUSD

E.M. V. PAJARO VALLEY UNIFIED SCHOOL DISTRICT

Case No. C 06-04694 JF 3

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

E.M. a minor, by and through his parents, E.M. and E.M. Plaintiff,

PAJARO VALLEY UNIFIED SCHOOL DISTRICT,

) Case No. C 06-04694 JF ) ) [PROPOSED] ) ------------------ ORDER AUTHORIZING ) STATUS CONFERENCE ) ) Hon. Jeremy Fogel ) ) ) ) ) ) )

Parties jointly requested a status conference in order to determine status of Case Number 0604694. The Court agrees that a status conference is appropriate and will calendar a status conference for the next available date. A status conference is set on June 26, 2009 at 10:30 am.

12 Dated: June ___, 2009

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E.M. V. PAJARO VALLEY UNIFIED SCHOOL DISTRICT

Honorable Judge Fogel U.S. District Court, Northern District

Case No. C 06-04694 JF 4