California OAH special education order · May 10, 2013
Order Denying Motion to Dismiss
OAH Case No. 2013040960 · ALJ Adeniyi Ayoade
OAH denied Student's motion to dismiss the District's complaint for late service, because Student received the complaint, timelines were reset, and Student showed no prejudice.
This case went to decision
Student v. Tustin Unified School District (consolidated): Tustin Unified may implement IEP moving medically fragile student from county program to Currie Middle School; Student's claims denied. (2013)
Summary
Student moved to dismiss the District's due process complaint because the District served it on Student's former attorney instead of on Parents, and Parents received it about six days after filing. OAH had already reset all timelines at Student's request, and the District later served the complaint directly on Student. OAH denied the motion. It explained that its usual remedy for late or improper service is to compel proper service and reset timelines, not to dismiss. Student had not claimed any prejudice or asked for more time.
Why it matters
Late or improper service of a due process complaint usually leads OAH to reset timelines, not to dismiss the case. A family seeking dismissal on this ground needs to show real prejudice to its ability to defend.
Key authority cited
- Ed. Code § 56500.2, subd. (a)(2)
- Ed. Code § 56502, subd. (c)(1)
- 20 U.S.C. § 1415
- 34 C.F.R. § 300.153(d)
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:
TUSTIN UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2013040960
v. ORDER DENYING MOTION TO
DISMISS
PARENTS ON BEHALF OF STUDENT.
On April 23, 2013, the Tustin Unified School District (District), through counsel, filed with the Office of Administrative Hearings (OAH) a Complaint for Due Process Hearing (Complaint) that named Student.
Based on the record, the District served the Complaint upon an attorney who has represented Student in past matters, but not upon Student’s parents directly. On April 29, 2013, Parents, on behalf of Student (Student), requested that OAH reset the timelines in the case because they had received the complaint six days after the date the complaint was filed with OAH. On May 2, 2013, OAH granted Student’s request to reset the timelines. OAH issued a new scheduling order setting new mediation, prehearing and due process hearing dates on May 6, 2013.
On May 7, 2013, Student filed a motion to dismiss District’s complaint (motion)
based on District’s failure to timely serve the complaint on them. District filed an opposition to the motion on May 38 2013.
APPLICABLE LAW
Pursuant to Education Code section 56500.2, subdivision (a)(2), the party filing the complaint shall forward a copy of the complaint to the local educational agency or public agency serving the child at the same time the complaint is filed. (20 U.S.C. § 1415(i)(b)(7)(A); (34 C.F.R. § 300.153(d).) Also, California Education Code Section 56502(c)(1) requires that the party initiating the complaint shall provide the other party to the hearing with a copy of the request for hearing at the same time the request is filed.
DISCUSSION
In her motion, Student contends that District’s complaint should be dismissed because District failed to timely serve the complaint on her parents. Student explains that because she received the complaint from her prior attorney six days after the date of filing of the compliant with OAH, the complaint was not served on them at the same time the complaint was filed as required by law. Therefore, Student argues that the complaint should be dismissed.
Student’s motion does not challenge OAH’s jurisdiction, but instead seeks a dismissal based on District’s failure to timely serve the complaint. OAH is not persuaded by Student’s argument, and the motion to dismiss is denied as discussed below.
When one party fails to timely or properly serve another, rather than issuing a dismissal in the first instance, usually OAH will issue an order compelling proper serve and resting all applicable timelines, in order to ensure that all parties have the full opportunity to participate in the due process hearing process. In this case, District’s complaint has been served on Student and all timelines have been reset due to the delay in service. Thus, while it is true that Student did not receive the compliant on the same day District filed the compliant with OAH, in her April 29, 2013 letter, to OAH, Student did acknowledge that she received the complaint through her prior attorney about six days following the April 23, 2013 date of filing with OAH. As a result of the late receipt of the complaint, Student requested and OAH granted Student’s request to reset all applicable timelines in the case on May 2, 2013. In addition, District further served a copy of the compliant directly on Student on May 6, 2013.
Student has received the complaint and has had the opportunity to review the allegations and the issues raised in it. Student has not raised any issue regarding the sufficiency of the complaint, nor made any allegation that her right to defend against the issues raised in the complaint has been prejudiced due to late service. Because OAH has reset the timelines in the case, Student has been afforded the full opportunity to prepare for, and participate in mediation and the due process hearing process. Student has not requested additional time to do so. Therefore, Student’s motion to dismiss is denied, and all dates currently set in this matter shall be confirmed.
ORDER
1. The motion to dismiss is denied.
2. All previously scheduled dates shall remain on calendar.
IT IS SO ORDERED.
Dated: May 10, 2013 /s/
ADENIYI AYOADE
Administrative Law Judge Office of Administrative Hearings