California OAH special education order · February 28, 2014
Order Denying District's Motion to Strike Student's Reply Brief
OAH Case No. 2013090788, 2014010760 · ALJ Darrell Lepkowsky
OAH denied the District's motion to strike Student's closing reply brief, which was filed about seven hours late, because the District showed no prejudice from the short delay.
This case went to decision
Student v. Hemet Unified School District (consolidated): Hemet Unified's May 2013 preschool special day class offer upheld, but it cannot implement its January 2014 offer. (2014)
Summary
After the hearing, the parties filed written closing briefs. Reply briefs were due by 5:00 p.m. on February 26, 2014, and Student filed hers at about 11:53 p.m. that night. Student said she had mistakenly believed the deadline was February 27. The District moved to strike the brief as untimely, but OAH denied the motion because the District filed no supporting declaration and did not explain how the seven-hour delay harmed it.
Why it matters
A party asking OAH to strike a late filing generally needs to show actual prejudice, so a brief delay caused by an honest mistake may be excused. Parents and advocates should still meet filing deadlines and should calendar them carefully.
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 Consolidated Matters of:
PARENTS ON BEHALF OF STUDENT, OAH CASE NO. 2013090788
v.
HEMET UNIFIED SCHOOL DISTRICT,
HEMET UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2014010760
v.
PARENTS ON BEHALF OF STUDENT. ORDER DENYING DISTRICT’S
MOTION TO STRIKE STUDENT’S
REPLY BRIEF
The due process hearing in this matter ended on February 6, 2014. The undersigned Administrative Law Judge granted the parties’ request to file written closing arguments.
Opening briefs were due on February 20, 2014. Reply briefs were due on February 26, 2014, by 5:00 p.m. Both parties timely filed their opening briefs. The District timely filed its reply brief. Student’s reply brief was filed with the Office of Administrative Hearings at approximately 11:53 p.m. on February 26, 2014, some seven hours later than it was due.
On February 27, 2014, the District filed a motion to strike Student’s reply brief as untimely. Student filed an opposition to the District’s motion on February 28, 2014. Student explains that she mistakenly believed that the reply briefs were not due until February 27.
The District did not include a declaration in support of its motion or state how it has been prejudiced by Student’s filing of her brief seven hours late. Because there is no prejudice demonstrated to the District by Student’s short delay in filing her brief, the District’s motion to strike is denied.
IT IS SO ORDERED.
DATE: February 28, 2014 /s/
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings