Somberg et al v. Utica Community Schools

Filing 103

ORDER Appointing Cynthia Raymo as Special Master Signed by District Judge Robert H. Cleland. (Attachments: # 1 Exhibit Affidavit of Cynthia Raymo) (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_________________________________________________________________
JEANNINE L. SOMBERG, et al.,
Plaintiffs,
v.

Case No. 13-11810

UTICA COMMUNITY SCHOOLS,
Defendant.
/
ORDER APPOINTING SPECIAL MASTER
This matter was submitted to the undersigned upon the consent of the parties.
The court has given the parties notice of the intended appointment of a master and an
opportunity to be heard. All parties were invited to submit candidates for appointment
but were unable to reach an agreement. The parties thus agreed to allow the court to
select a special master.
Counsel appearances were: Richard J. Alef for Plaintiffs and Robert A. Lusk for
Defendant.
Based upon the court’s earlier opinion ordering Defendant to pay for 1,200 hours
of compensatory education and one year of transition planning, (Dkt. #90), the fact that
the court is comparably ill-suited to arrange and oversee the proper facilities to carry out
this order particularly in light of complicating factor of the Plaintiff student’s disability, the
joint agreement of the parties as to this course of action as discussed at a status
conferences attended by counsel on March 9, 2017, and August 28, 2017, Federal Rule
of Civil Procedure 53(a)(1)(A) and 53(a)(1)(C):

IT IS HEREBY ORDERED:
1. Cynthia Raymo of 630 Oregon St., Marysville, MI 48040, is appointed Special
Master for the purpose of identifying, on an ongoing basis, the available compensatory
education and transitional services available to Dylan Somberg which will most
effectively alleviate the educational shortfalls identified in this court’s prior opinions,
(Dkts. ##30, 90), arranging for, and if necessary expediting, Dylan’s participation in
those services; receiving feedback from the Parties as to the efficacy or efficiency of
these services and make discretionary adjustments as necessary in light of the best
interests of the student mindful that the compensatory education is limited, subject to
adjustment if necessary, to approximately 1,200 hours and transition services to one
year; authorize any assessments that the Special Master deems warranted; supervise
the provision of the remedial educational services; negotiating and proposing for court
approval the particular service provider(s) of the education; negotiate and propose for
court approval the manner and rate of compensation for each service provider;
preparing and supplying to the court and parties on the last day of every third month
following the entry of this order a one-to-two-page report1 on the plan for Dylan’s
continued education and his progress; directing payment of the costs of such services
by Defendant Utica Community Schools; and maintaining records on those
services/service providers which were seriously considered but not selected, along with
their proposed costs.

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The court may entertain requests to expand the length of such reports as
necessary.
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The Special Master is directed to proceed with all reasonable diligence to
complete the tasks assigned by this order.
2. Cynthia Raymo shall have the sole discretion to determine the appropriate
procedures for resolution of all assigned matters and shall have the authority to take all
appropriate measures to perform the assigned duties consistent with this order. The
Special Master may file written recommendations that the court impose any sanction,
including contempt. The court will then duly consider the recommendation after
affording all parties an opportunity to be heard.
3. Because the proper administration and enforcement of the court’s order
regarding the amount and quality of compensatory education may require the parties to
readily provide feedback to the Special Master about the status or efficacy of specific
efforts to give effect to the court’s order, the Special Master shall be allowed to engage
in ex parte conversations with counsel for the parties upon written request with a copy
sent to opposing counsel. Ex parte communications with the court may occur
periodically to assist the court in management of the litigation or logistical matters upon
the court’s request or if the Special Master determines that any of the circumstances
enumerated in paragraph seven (7) have obtained. Any ex parte conversation will be
conducted on the record in order to permit appropriate review by the undersigned or the
appellate courts.
4. The parties shall file with the Clerk all papers filed for consideration by the
Master. The Special Master shall also file under seal with the Clerk all reports or other
communications with the undersigned.

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5. Any party seeking review of any decision of the Special Master shall comply
with the procedures specified in Fed. R. Civ. P. 53(f) with the exception that the normal
twenty-one day period for objections specified in Fed. R. Civ. P. 53(f)(2) is hereby
shortened to fourteen days.
6. Every third month the Special Master shall prepare and file the report of
activities accomplished (described in the above paragraph 1) as the required record.
7. The master shall promptly bring to the court’s attention any recommendation
requiring court approval; any action to which a party under the supervision of the
Special Master objects; any instance in which the provision of the remedial educational
services has become impracticable for any reason; any modification to the terms of the
Special Master’s appointment that may become necessary to serve the purposes of this
order.
8. The court has considered the fairness of imposing the likely expenses on the
parties and has taken steps to protect against unreasonable expenses or delay. The
Special Master shall be paid $75 per hour for work done pursuant to this order and shall
be reimbursed for all reasonable expenses incurred, including travel. The Special
Master shall maintain billing records in half-hour increments with a brief description of
the task performed. Unless the court separately provides approval, the Special Master
may not charge the parties for additional expenses such as lodging. The court orders
the Clerk of the Court to establish a non-interest bearing escrow account for
administration of the Special Master’s fees and expenses. The court further orders
Defendant, Utica Community Schools, to deposit $10,000 into this escrow account, out
of which the Special Master’s fees will be paid. A statement will be rendered monthly by
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the Special Master to the court and the court will, by appropriate order, provide for the
disbursement from said funds for such fees. The court may order the parties to make
additional deposits should the above amount prove at any time to be insufficient. As to
any particular portion of the proceedings necessitated by the conduct of one party or
group of parties, the Special Master can assess the costs of that portion of the
proceedings to the responsible party or parties.
9. Rule 53(b)(3) provides that the court may enter an order appointing a special
master “only after the master has filed an affidavit disclosing whether there is any
ground for disqualification under 28 U.S.C. § 455.” See also Fed. R. Civ. P. 53(a)(2)
(discussing grounds for disqualification). Attached to this order is the disclosure affidavit
earlier submitted to the court by the special master.
10. No Party has objected to the appointment of the Special Master.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 1, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 1, 2017, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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