L et al v. JACKSON COUNTY SCHOOL BOARD

Filing 41

ORDER granting 27 MOTION for Sanctions. Defendant is awarded attorneys fees and costs against Plaintiffs. If the parties are unable to reach an agreement, pursuant to Fed. R. Civ. P. 53(a)(1)(B)(ii), this issue will be referred to a special master. The parties shall nominate a special master not later than 3/15/2013. Signed by JUDGE RICHARD SMOAK on 2/15/2013. (jem)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

A.L., by P.L.B. and P.L.B for herself,
Plaintiffs,
v.

CASE NO. 5:12-cv-299-RS-EMT

JACKSON COUNTY SCHOOL BOARD,
Defendant.
_________________________________________/
ORDER
Before me are Defendant’s Motion For Sanctions Pursuant to Federal Rule
11 (Doc. 27), Plaintiff’s Response (Doc. 32), Defendant’s Reply (Doc. 37), and
Plaintiff’s Response to the Reply (Doc. 40).1
On March 15, 2011, Plaintiffs filed a Verified Amended Request for
Impartial Due Process Hearing in DOAH Case. No. 10-10485 (“AL I”). This
resulted in a six week administrative hearing that concluded on April 5, 2012. See
A.L. v. Jackson Cnty. Sch. Bd., DOAH Case No. 10-10485. Plaintiff challenged
many aspects of A.L.’s education including the sufficiency of A.L.’s existing June
2010 Individualized Education Program (“IEP”), A.L.’s November 2010 IEP, the
implementation of the June 2010 IEP, the consideration of Dr. Kytja Voeller’s
1

Plaintiff’s Response to the Reply was received more than an hour after the February 12, 2013, deadline; however,
the Court will still consider it.
1

recommendations, the provision of assistive technology, and A.L.’s performance
on standardized tests. A final order has not yet been issued by the Administrative
Law Judge.
On June 27, 2012, Defendant filed a Petition for Due Process to resolve
issues pertaining to the provision of Free Appropriate Public Education (“FAPE”)
to A.L. because Plaintiffs continued to demand to record IEP meetings.
Defendant’s Petition was assigned DOAH Case No. 12-002562 (“AL II”). On
August 13, 2012, Plaintiff filed a counterclaim for retaliation under IDEA and
Section 504/ADA. See Jackson Cnty. Sch. Bd. v. A.L. and P.L.B., DOAH Case
No. 12-002562. The petition and counterclaim were heard by the same
Administrative Law Judge who presided over AL I. A final order has not yet been
issued by the Administrative Law Judge.
On September 13, 2012, Plaintiff filed an amended complaint against
Defendant asserting the following claims: Count I for Injunctive Relief, Count II
for Declaratory Relief, Count II for Denial of FAPE under Individuals with
Disabilities Act (“IDEA”), Count IV for Section 504 Discrimination, Count V for
Retaliation under IDEA and Section 504, and Count VI for Writ of Mandamus.
(Doc. 13). On January 30, 2013, Defendant’s motion to dismiss was granted.
Defendant now brings a motion for sanctions under Fed. R. Civ. P. 11 for
attorneys’ fees and costs.

2

Fed. R. Civ. P. 11(c) states: “If, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been violated, the court may
impose an appropriate sanction on any attorney, law firm, or party that violated the
rule or is responsible for the violation.” Rule 11(b) requires that when an attorney
submits a pleading, that to the best of that person’s knowledge, information, and
belief that:
(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a non-frivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or lack of
information.
Defendant claims that Plaintiff violated Rule 11(b)(1-3).
The Supreme Court has stated that section 1415(j) of the IDEA is
“unequivocal,” stating “plainly” that a school board shall not change the current
education placement of the child without the consent of the parents or until the
issue is resolved through the administrative hearing process. 20 U.S.C. § 1415(j);
Honig v. Doe, 484 U.S. 305, 323 (1998). The Eleventh Circuit ruled on an almost
identical case, CP v. Leon Cnty. Sch. Bd., 483 F.3d 1151 (11th Cir. 2007):
In this case, CP argues that the School Board was obligated to implement an
alternative placement, abandoning the stay-put IEP, in spite of the fact that
3

the stay-put provision had been invoked and that the parties had not agreed
on an interim alternative placement. The thrust of CP’s argument is that the
School Board violated the IDEA’s requirement that local educational
agencies update a child’s IEP annually in order to provide FAPE, even
though the stay-put provision had been invoked and even though the School
Board and parents could not agree on an alternative placement.
Id. at 1156. In this case, Defendant and Plaintiff could not agree to changes in the
child’s IEP. Therefore, the stay-put provision of the IDEA prevented Defendant
from updating the IEP.
The attorney in this case is the same attorney in the CP case. She was well
aware of the current law on the issue and knew or should have known that the
claims in the amended complaint of this case were in violation of Fed. R. Civ. P.
11(b). Therefore, Defendant’s Motion For Sanctions Pursuant to Federal Rule 11
(Doc. 27) is GRANTED. Defendant is awarded attorneys’ fees and costs against
Plaintiffs.
The parties shall confer and attempt to reach an agreement on the issue of
reasonable attorneys’ fees and costs. If the parties are unable to reach an
agreement, pursuant to Fed. R. Civ. P. 53(a)(1)(B)(ii), this issue will be referred to
a special master. The parties shall nominate a special master not later than March
15, 2013. If the parties are unable to agree upon a special master, each party shall
nominate two persons who are willing to serve as a special master and submit their
qualifications to the Court. The parties shall also not later than March 15, 2013,
submit a proposed order of appointment which conforms to the requirements set
4

forth in Fed. R. Civ. P. 53(b). The parties shall also attempt to agree upon the level
of review I am to apply in reviewing the special master’s report. See Fed. R. Civ.
P. 53(f)(3).
Payment of the special master shall initially be shared equally by the parties.
However, the payment of the special master’s fees may reapportioned based upon
the special master’s findings. See Fed. R. Civ. P. 53 (g)(3).

ORDERED on February 15, 2013.

/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

5