McIntyre v. Eugene School District 4J et al

Filing 22

OPINION AND ORDER: I ADOPT Magistrate Judge Russo's F&R 11 in its entirety. The District's Motion to Dismiss 6 is GRANTED and the First Amended Complaint is DISMISSED without prejudice. Plaintiff may seek leave to file a second amended complaint by properly supported motion within fourteen days of the date of this Order. Plaintiff is advised that failure to seek leave to amend within the allotted time will result in a judgment of dismissal. Signed on 1/23/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

Case No. 6:18-cv-00768-MK
OPINION AND ORDER

LEXYNGTON MCINTYRE,
Plaintiff,
vs.
EUGENE SCHOOL DISTRICT 4J
Defendant.

AIKEN, District Judge:
United States Magistrate Judge Jolie Russo issued Findings and Recommendation ("F&R")
(doc. 11) in this case on September 12, 2018.

Magistrate Judge Russo recommended that

defendant's Eugene School District 4J ("District") Motion to Dismiss (doc. 6) be granted. For the
reasons stated below, the Coutt ADOPTS Magistrate Judge Russo's F&R.
STANDARDS
Under the Federal Magistrates Act ("Act"), the Coutt may "accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1 ).
If a party files objections to a magistrate judge's F&R, "the coutt shall make a de novo

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determination of those portions of the repo1t or specified proposed findings or recommendations
to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge's F&R to which neither party has objected, the
Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985)
("There is no indication that Congress, in enacting [the Act], intended to require a district judge to
review a magistrate's repo1t to which no objections are filed."); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en bane) (holding that the Comt must review a magistrate judge's
findings and recommendations de novo if objection is made, "but not otherwise"). Although in
the absence of objection no review is required, the Act "does not preclude further review by the
district judge[] sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Rule 72(b) recommend that "[w]hen no timely objection
is filed," the Court review the magistrate judge's reconunendations for "clear error on the face of
the record."
DISCUSSION
On May 3, 2018, plaintiff, a graduate of South Eugene High School, initiated this suit
against alleging that, during the 2013-2014, 2015-2016, and 2016-2017 school years, the District
violated her rights under the Rehabilitation Act and the Americans with Disabilities Act ("ADA").
The District moves to dismiss plaintiffs claims pursuant to Federal Rule of Civil Procedure
l 2(b)( 6), because plaintiff failed to exhaust her administrative remedies under the Individuals with
Disabilities Education Act ("IDEA") and because the claims are barred by the two-year statute of
limitations in Or. Rev. Stat. § 12.110. Judge Russo recommends that the Comt grant the District's
Motion to Dismiss on both grounds.

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Plaintiff filed timely objections (doc. 14) to which defendants responded (doc. 15) and
plaintiff replied (doc. 16). 1 Therefore, I will review de nova the specific portions of the F&R to
which plaintiff objected.
I will begin by addressing plaintiffs motion to take judicial notice of three documents.
Next, because it is potentially dispositive, I will address plaintiffs judicial estoppel argument,
which is based on one of those documents. Then, I will tum to plaintiffs objections~that
Magistrate Judge Russo erred in concluding that exhaustion was required and that the claims were
baned by the statute of limitations. Finally, I will address plaintiffs argument that Magistrate
Judge Russo erred in denying her request for leave to amend the complaint and plaintiffs renewed
request for leave to amend.
I.

Judicial Notice

In her objections, plaintiff, who is represented by counsel, asks the Comt to take judicial
notice of three documents, including (1) the District's reply brief on a motion to dismiss in case
involving a different plaintiff before the Oregon Office of Administrative Hearings; (2) one of
Judge Russo's F&R's in another educational discrimination case, G.1'1 v. Lincoln Cnty. Sch. Dist.,
2017 WL 2804996 (D. Or. Apr. 14, 2017); (3) Judge McShane's Opinion and Order adopting the
F&R 2017 WL 2804996 (D. Or. June 28, 2017). Plaintiffs requests are denied because they do
not comply with the Local Rules. LR 7-l(b) (motions may not be combined with any response,
reply, or other pleading).

1

Rule 72(b) permits objections and responses but does not provide for a reply.
Neve1thelcss, the Comt has considered plaintiffs reply in reviewing the F&R. In the future,
plaintiff should seek leave from the Court to file a reply in support of objections pursuant to Fed.
R. Civ. P. 72(b).
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IL

Judicial Estoppel

Plaintiff argues that the District's Motion to Dismiss should be denied because the District
took a contradictory position regarding IDEA exhaustion in a reply brief for another case before
the Oregon Office of Administrative Hearings. That brief was filed on September 17, 2018, after
Magistrate Judge Russo issued the F &R in this case. Because I denied plaintiffs motion to take
judicial notice above, the District's reply brief cannot provide a basis for judicial estoppel. But,
even if the Court did consider the brief, plaintiff has failed to establish that judicial estoppel applies
in this case.
Judicial estoppel "generally prevents a party from prevailing in one phase of a case on an
argument and then relying on a contradictory argument to prevail in another phase."

New

Hampshire v. 1vfaine, 532 U.S. 742, 749 (2001). Although "the doctrine of judicial estoppel is not
confined to inconsistent positions taken in the same litigation," Rissetto v. Plumbers & Steamfitters

Local 343, 94 F.3d 597, 605 (9th Cir. 1996), its application is limited "to cases where the court
relied on, or 'accepted,' the party's previous inconsistent position." Hamilton v. State Farm Fire

& Cas. Co., 270 F.3d 778, 783 (9th Cir.2001).
Even assuming that the District's position in the other case was inconsistent with their
position in this case, plaintiff has failed to establish that the Office of Administrative Hearings has
issued a ruling in that case, let alone that the ruling relied on or accepted the District's allegedly
inconsistent statement.
III.

Plaintiff's Objections - Exhaustion and Tolling the Statute ofLimitations

Plaintiff argues that Magistrate Judge Russo erred in determining that plaintiff was required
to exhaust her administrative remedies under the IDEA, based on Judge Russo's finding that
plaintiffs discrimination claims seek relief that is also available under the IDEA. Judge Russo

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explained that "[e]xhaustion is required 'when the gravamen of a complaint seeks redress for a
school's failure to provide a [free appropriate public education ("PAPE")], even if not pln·ased or
framed precisely in that way."' P&R at 6 (quoting Fly v. Napoleon C,nty. Sch,_ U.S._, 137
S.Ct. 734, 755 (2017). And she fmiher explained:
Based on the nature of the complaint's allegations, the Cou1i finds plaintiffs
discrimination claims under the ADA and the Rehabilitation Act are subject to the
IDEA's exhaustion requirement. Indeed, the complaint is premised exclusively on
educational harm to plaintiff. ll Specifically, plaintiff alleges the Section 504 Plansll
developed by the District were improperly implemented, such that she was denied
educational opportunities, which, in turn, "caus[ed] [her] to feel further behind.
Am. Comp!. ,r,r 11-17, 19, 21-25, 29-36 (doc. 4). The substance of plaintiffs
grievance is that the District failed to provide instruction tailored to meet her special
needs. Id. Contrary to plaintiffs assertion, her claims could not have been brought
against a public facility that was not a school, or by a nonstudent in a school setting.
See F1y, 137 S.Ct. at 756 (if essentially the same claims as the student's could not
have been brought against a public facility that was not a school or by an adult at
the school, "the complaint probably does concern a PAPE even if it does not
explicitly say so").
P&R at 6-7 (footnote omitted).
I agree with Magistrate Judge Russo's analysis of the issue and her findings outlined above.
I also conclude that she was co1Tect to apply the two-part test from F1y, 137 S.Ct. at 756, and
correctly concluded that, under the test, plaintiffs discrimination claims in this case are subject to
the IDEA exhaustion requirement. The analysis above also demonstrates that the P&R did not, as
plaintiff objects, fail to address plaintiffs ADA claims. Instead, Judge Russo explicitly considered
plaintiffs ADA and Rehabilitation Act claims together, and I conclude that Judge Russo did not
err in apply an identical exhaustion analysis to the two sets of claims. In sum, I find no error in
this portion of Judge Russo's P&R.
Plaintiff also objects to Judge Russo's finding that plaintiffs claims were not subject to
minority tolling. Plaintiff argues minority tolling is not inconsistent with the IDEA because the
claims do not seek relief under the IDEA and that Judge Russo inappropriately rejected plaintiffs

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arguments because they were "new." Plaintiff also objects to Judge Russo's finding that plaintiffs
claims were not subject to equitable tolling.

Having reviewed the objections and the F&R de

nova, I find no error.
Finally, having reviewed the record and F&R in this case, I find no clear enor in the
portions of the F&R to which the pmiies did not object.
IV.

Jvlotionfor Leave to Amend

In her Response (doc. 7) to the District's Motion to Dismiss, plaintiff also stated:
If a motion to dismiss is granted, "[the] district couti should grant leave to amend
even ifno request to amend the pleading was made." Hemy A. v. Willden, 678 F.3d
991, 1005 (9th Cir. 2012). Therefore, Plaintiff requests leave to amend if the court
grants Defendant's Motion.
Pl.'s Resp. to Mot. to Dismiss at 2. The District asked that the Court dismiss with prejudice,
arguing that amendment would be futile given plaintiffs failure to exhaust her administrative
remedies and failure to initiate the suit within the statute of limitations. Reply in Suppmi of Mot.
to Dismiss (doc. 8) at 13.
Judge Russo construed that statement as a motion for leave to amend the complaint and
denied the motion for failing to comply with the Local Rules. F&R at I 0. But Judge Russo
recommended that the Court dismiss the complaint without prejudice and that plaintiff be
required to file any motion to amend the complaint within fourteen days of the District Judge's
order. Id.
In her Objections, plaintiff "renews her request to amend," citing, again to Hemy A. Obj.
at 40. In response, the District asks plaintiffs First Amended Complaint be dismissed with
prejudice and that plaintiff be denied leave to amend because amendment would be futile. Resp.
to Obj. at 14. In reply, plaintiff clarifies that she did not mean to "file a motion within her
response brief; rather, Plaintiff asserted a future right to amend her complaint should the Court

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grant Defendant's motion to dismiss." Reply in Support of Obj. at 18. Given that clarification, I
ADOPT Judge Russo's recommendation that plaintiff have fourteen days from the date of this
Order to file a motion to amend the complaint. At that point, I will consider any arguments on
the issue that the pmiies wish to present and will keep in mind the "liberal policy in favor of
allowing pleading amendments" embodied by Federal Rule of Civil Procedure 15. United States

v. Gila Valley Irrigation Dist., 859 F.3d 789, 804 (9th Cir. 2017).
CONCLUSION
For the reasons stated above, I ADOPT Magistrate Judge Russo's F&R (doc. 11) in its
entirety. The District's Motion to Dismiss (doc. 6) is GRANTED and the First Amended
Complaint is DISMISSED without prejudice. Plaintiff may seek leave to file a second amended
complaint by properly supported motion within fomieen days of the date of this Order. Plaintiff
is advised that failure to seek leave to amend within the allotted time will result in a judgment of
dismissal.
IT IS SO ORDERED.
DATED this J3ctay of January 2019.

Ann Aiken
United States District Judge

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