California OAH special education order · April 26, 2013
Order Granting Downey Unified School District's Motion for Reconsideration
OAH Case No. 2013040050 · ALJ Susan Ruff
OAH granted Downey's reconsideration motion because its earlier denial of Downey's unserved dismissal motion never reached the merits, allowing Downey to file and properly serve a new motion to dismiss.
Summary
Downey, then without a lawyer, moved to be dismissed from Student's case but did not serve the other parties and filed an insufficient declaration, so OAH denied the motion. Downey asked OAH to reconsider, explaining it had not understood the service requirement. OAH granted reconsideration, clarifying that the denial was not on the merits. Because Parent had never had a chance to respond and Downey raised new arguments, OAH did not decide the dismissal question and instead allowed Downey to file a new, properly served motion.
Why it matters
A motion denied for procedural defects like failing to serve the other parties can be refiled, and the parent must get a chance to respond before OAH rules. OAH also warned that arguments like 'we made no educational decisions' or residency disputes are usually defenses for hearing, not grounds for dismissal, because summary judgment is not available in due process cases.
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013040050
v. ORDER GRANTING DOWNEY
UNIFIED SCHOOL DISTRICT’S
DOWNEY UNIFIED SCHOOL DISTRICT, MOTION FOR RECONSIDERATION
ET AL.
On April 11, 2013, Downey Unified School District (Downey) filed a motion to be dismissed from this case. At the time, Downey was not represented by counsel. Downey did not serve the motion on the other parties to the case and the only declaration filed in support of the motion was not sufficient. On April 17, 2013, OAH issued an order denying that motion.
On April 25, 2013, Downey filed a motion seeking reconsideration of the OAH order denying dismissal. The District explained that it was not represented by counsel at the time of its initial motion and did not understand the requirement to serve all parties with the moving papers. The District points out that the OAH order did not reach the merits in denying the motion.
The District is correct. Nothing in the April 17, 2013 order was intended to address the substantive merits of the District’s motion to dismiss, nor was the order intended to prevent the District from filing a new motion with proper service on the parties.
The District’s motion for reconsideration is hereby granted.
However, because of nature of a reconsideration motion, Student’s parent has still not had an opportunity to respond to the underlying motion to dismiss. Therefore, it would not be appropriate to rule on the merits of the motion to dismiss as part of the reconsideration motion. In addition, the District has raised new arguments in its motion for reconsideration that were not raised in the initial motion to dismiss.
The appropriate course of action is to permit the District to file and properly serve a new motion to dismiss, giving Student’s parent an opportunity to oppose or otherwise respond to that motion. 1
ORDER
1. The District’s motion for reconsideration is granted.
2. The District shall be permitted to file a new motion to dismiss, with proper service
on all parties.
Dated: April 26, 2013 /s/
SUSAN RUFF
Administrative Law Judge Office of Administrative Hearings 1 However, the District should be cautioned that its main argument in support of the motion to dismiss – that it was not involved in any educational decisions regarding Student – appears at first glance to be a motion for summary judgment. Summary judgment motions are not permitted in special education due process cases. Questions of residency are usually raised as a defense at hearing, not in a motion. Motions to dismiss are usually reserved for circumstances in which OAH lacks subject matter jurisdiction or a case is outside the statute of limitations. The District should keep that in mind when deciding whether to refile its motion to dismiss.