California OAH special education order · February 21, 2018
Order Denying Student's Motion to Add Issue
OAH Case No. 2017080513 · ALJ Tiffany Gilmartin
OAH denied Student's motion to restore an issue left out of the second amended complaint, calling it an improper backdoor amendment that bypassed the IDEA's procedure for amending complaints.
This case went to decision
Student v. Antioch Unified School District: Antioch Unified prevails on all nine claims about behavior plan implementation, speech-language, autism assessment, and discipline. (2018)
Summary
Student asked OAH to add back an issue about whether Antioch's placement offered a FAPE during 2016 and the 2016-2017 school year. That issue was in the first amended complaint but was accidentally left out of the second amended complaint. Student relied on Code of Civil Procedure section 473, which allows relief for an attorney's mistake or excusable neglect. Antioch opposed, calling it a third attempt to amend that would prejudice the District. OAH denied the motion because the IDEA sets out its own process for amending a due process complaint, and a motion to add an issue is not that process.
Why it matters
An issue dropped from an amended complaint cannot be restored through a civil-procedure 'mistake' motion. Parents and advocates should check every amended complaint carefully and, if something is missing, use the IDEA's formal amendment process (consent or leave to amend), which can restart timelines.
Key authority cited
- 20 U.S.C. § 1415(c)(2)(E)(i)
- Code Civ. Proc. § 473(a), (b)
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. 2017080513 v. ORDER DENYING STUDENT’S
MOTION TO ADD ISSUE
ANTIOCH UNIFIED SCHOOL
DISTRICT.
On February 19, 2018, Student filed a motion to add an issue inadvertently omitted by counsel. On February 21, 2018, Antioch Unified School District filed an opposition to Student’s motion asserting that this request is a third attempt to amend Student’s complaint, that granting the motion does not further justice, and prejudices Antioch.
Student originally filed his due process complaint on August 10, 2017. Student filed a motion to amend his due process complaint on November 13, 2017 and Antioch did not oppose. On January 16, 2018, Student filed a second motion to amend his due process complaint, again, Antioch did not oppose. Student’s request to file a second amended complaint was granted on January 19, 2018.
In Student’s first amended complaint issue number nine read as the following:
“Whether the District’s placement, given its failure to assess and identify Student’s needs, failure to create goals to address his unique needs, and failure to implement the agreed-upon behavior services was FAPE for Nikola during 2016 and the 2016-2017 school year.” The above issue was omitted from the second amended complaint.
Now Student seeks an order to add issue number nine as previously pled in the first amended complaint to the second amended complaint. In Student’s motion, Student contends issue nine as described above was left off of his second amended complaint due to “mistake, inadvertence, surprise, or excusable neglect,” of counsel (C.C.P § 473 (a), (b)). Student is attempting a backdoor amendment to the complaint. This is not the proper vehicle for seeking to amend a due process complaint under the IDEA. The IDEA provides a procedural vehicle for amending due process complaints. (20 U.S.C § 1415 (c)(2)(E)(i).) Student’s motion is improper and the motion is denied.
IT IS SO ORDERED.
DATE: February 21, 2018
TIFFANY GILMARTIN
Administrative Law Judge Office of Administrative Hearings