Dutter et al v. Marshall School District

Filing 20

ORDER denying Motion to consolidate cases 08-cv-187-bbc and 08cv-189-bbc. Marshall School District to respond to the petition for fees and costs by 2/17/09. Signed by Chief Judge Barbara B Crabb on 2/11/09. (elc)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------M A R S H A L L JOINT SCHOOL DISTRICT NO. 2, Plaintiff, v. C .D ., by and through his parents, Brian and Traci D., D efendan t. --------------------------------------------T R AC I AND BRIAN D., as parents of and on behalf of their minor child C.D., P l a i n t i ff s , v. M A R SH AL L JOINT SCHOOL D I S T R I C T NO. 2, D efendan t. --------------------------------------------O n January 8, 2009, this court entered an order in case no. 08-cv-187-bbc, dkt. #47, dism issing plaintiff Marshall School District's appeal of a state administrative law judge's ORDER 0 8 - cv -1 8 7 - b b c

08-cv-189-bbc

decision brought pursuant to the Individuals with Disabilities Education Act and Wisconsin state special education law. In a related case, case no. 08-cv-189-bbc, Brian D. and Traci D. filed an action against Marshall School District for attorney fees and costs as the prevailing p arty in the administrative hearing. I stayed proceedings in that case, dkt. #12, pending resolution of the school district's appeal of the administrative decision. Now Traci and Brian D . have moved to consolidate the two cases and petitioned for costs and attorney fees in case n o . 08-cv-189-bbc. Meanwhile, the school district has filed a notice of appeal in case no. 08cv-1 8 7 -b bc and moved to stay proceedings on the motion to consolidate and petition for attorney fees and costs. Although the two cases share common questions of fact, I am denying the motion to con solidate them because it is unnecessary at this point. In case no. 08-cv-187-bbc, this co urt issued a final order with respect to the administrative decision, which the school district is now appealing. Although related, case no. 08-cv-189-bbc involves Traci and Brian D .'s petition for attorney fees and costs, a separate issue that is not yet final or appealable. Therefore, consolidating the two cases would not further the goals of Fed. R. Civ. P. 42(a) to promote judicial economy or simultaneous resolution of the related claims. Ikerd v. L apw orth, 435 F.2d 197, 204 (7th Cir. 1970). For similar reasons, I am denying the school district's motion to stay proceedings on the petition for attorney fees and costs: the two cases are separate. Even in the same case,

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"decisions on the merits and decisions about attorneys' fees are treated as separate final decisions, which must be covered by separate notices of appeal­each filed after the subject h as independently become `final.'" McCarter v. Retirement Plan for District Managers of A m erican Family Insurance, 540 F.3d 649, 652 (7th Cir. 2008). In this case, there is no reaso n to delay resolution of the petition for attorneys fees and costs in case no. 08-cv-189bbc. The school district has not filed a response to the fee petition, presumably waiting to see whether this court would stay that action. The school district may have until February 17 , 2009 in which to respond to the petition. The parties should file all documents related to the petition in case no. 08-cv-189-bbc and not in case no. 08-cv-187-bbc, which is now c lo s e d .

OR DER IT IS ORDERED that: 1 . Defendant C.D.'s motion to consolidate case nos. 08-cv-187-bbc and 08-cv­189bbc, dkt. #49, is DENIED as unnecessary. 2. Plaintiff Marshall School District's motion to stay proceedings on the motion to co nso lidate and petition for attorneys fees and costs, dkt. #58, is DENIED.

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3. Defendant Marshall School District may have until February 17, 2009 in which to file a response to the fee petition in case no. 08-cv-189-bbc. E n tered this 11t h day of February, 2009. B Y THE COURT:

/s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ B AR B AR A B. CRABB D istrict Judge

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