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Brenneise v. San Diego Unified School Dist.

May 8, 2009

BRENNEISE, ET AL, PLAINTIFF,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT, DEFENDANT.
SAN DIEGO UNIFIED SCHOOL DISTRICT, PLAINTIFF,
v.
BRENNEISE, ET AL, DEFENDANT.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT [Doc. No. 55]

The above-captioned action arises under the Individuals with Disabilities Education Act ("IDEA"), 84 Stat. 175, as amended, 20 U.S.C. §§ 1400, et seq. (2000 ed. and Supp. IV), which "confers upon disabled students an enforceable substantive right to public education in participating States, and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the Act." Honig v. Doe, 484 U.S. 305, 310 (1988). Currently pending before the Court is Plaintiffs' Motion for Leave to File a Second Amended Complaint [Doc. No. 55].

Plaintiffs seek to amend their complaint to include additional causes of action, brought pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans With Disabilities Act of 1990, 42 U.S.C. § 12131. Defendant San Diego Unified School District opposes the motion [Doc. No. 58], and Plaintiffs filed a reply [Doc. No. 59]. For the following reasons, the Court GRANTS Plaintiffs' motion.

PROCEDURAL BACKGROUND*fn1

On January 4, 2008, Plaintiffs ("the Brenneises" -- mother, father, and minor child) filed this lawsuit against the San Diego Unified School District ("the School District"). The Brenneises invoked this Court's jurisdiction pursuant to the Individuals with Disabilities Education Act ("IDEA"), 84 Stat. 175, as amended, 20 U.S.C. §§ 1400, et seq. (2000 ed. and Supp. IV), in order to appeal the October 3, 2007 decision of the California Office of Administrative Hearings ("OAH") regarding T.B.'s access to a "free and appropriate public education" ("FAPE"). On March 12, 2008, the Brenneises filed a First Amended Complaint ("FAC"). The Brenneises alleged in claim one that the "OAH decision erred in holding in favor of San Diego Unified with respect to issues 1-5 (Issues Related to Assessments); issues 6-9 (Issues Related to the August 30, 2006 Proposed IEP); issues 11-13 (Issues Related to the December 4, 2006 Proposed IEP); and issues 16-18 (Issues Related to both IEPs)." The second claim for relief alleged that the Brenneises qualify as a prevailing party with respect to the due process proceedings before the OAH, and are therefore entitled to reimbursement of reasonable attorneys' fees incurred during the course of the due process proceedings. The third claim alleged that T.B. has been denied a FAPE in violation of the IDEA on grounds that the School District has "failed and refused to comply with the OAH Decision" with respect to the transition plan and with respect to T.B.'s G-Tube feedings. The fourth and final claim for relief in the FAC alleged that the Brenneises are entitled to reimbursement of reasonable attorneys' fees incurred in connection with their successful CDE Compliance Complaint.

On January 4, 2008, the School District filed a Complaint against the Brenneises, their attorney Steven Wyner, and the law firm of Wyner & Tiffany. The first cause of action in the School District's complaint alleges that the OAH Decision "wrongfully ordered [The School District] to modify the IEP to require a school nurse to be present to personally assist [T.B.] with his g-tube feedings and wrongfully concluded that [T.B.] would not have been safe at school under the December 4, 2006 IEP." The first cause of action further alleges that the "OAH erroneously concluded that the [transition] plan denied [T.B.] a FAPE." The second cause of action requests attorneys' fees on grounds that the Brenneises, Steven Wyner and the law firm of Wyner & Tiffany acted in bad faith and for an improper purpose with respect to the due process proceedings and subsequent litigation. The third cause of action requests a declaration that the "IDEA's fees shifting provisions do not entitle a parent to reimbursement for fees and costs incurred in filing a compliance complaint" with the CDE, and that "the IDEA provides [The School District] with the discretion to substitute one qualified provider for another in compliance with [T.B.'s] IEP and that [The School District] cannot be compelled to contract with non-certified NPAs in violation of State law."

The parties filed a first round of motions to dismiss. On June 24, 2008, former presiding District Judge William Q. Hayes issued an order consolidating the Brenneises' action with the School District's action; denying the Brenneises' Motion to Dismiss the School District's second and third causes of action; granting the School District's Amended Motion to Dismiss the Brenneises' third claim for relief; and denying the School District's Amended Motion to Dismiss the Brenneises' fourth claim for relief. The Court denied the Brenneises' Motion to Dismiss the School District's second cause of action for attorneys' fees and denied the Brenneises' Motion to Dismiss the School District's third cause of action for attorneys' fees with respect to Steven Wyner and the law firm of Wyner & Tiffany incurred in filing the CDE Compliance Complaint. The Court granted the School District's Motion to Dismiss the Brenneises' third claim to enforce the implementation of the December 4 IEP as premature and denied the School District's Motion to Dismiss the Brenneises' fourth claim for reimbursement of attorneys' fees and costs incurred in pursuing the CDE Compliance Complaint.

On July 14, 2008, the Brenneises filed an Answer and Counterclaims to the School District's complaint, alleging three counterclaims against the School District. The first counterclaim alleged that the School District "failed and refused to accommodate [T.B.'s] disability by providing for the G-Tube feedings in his IEPs for the 2006-2007 and 2007-2008 school years," which "resulted in his being excluded from school and being denied a FAPE solely on account of his disability." The second counterclaim alleged that the School District failed to comply with the OAH Decision by failing and refusing to provide T.B. with occupational therapy ("OT") services and to ensure the presence of a school nurse to assist T.B. with his G-Tube feedings. The second counterclaim further alleged that "[a]s a result of [The School District's] failure and refusal to comply with the OAH Decision, [T.B.] was denied the receipt of OT services and excluded from attending public school . . . solely on the basis of his disability." The third counterclaim alleged that T.B. "was required to remain at home because [The School District] failed and refused to accommodate his need for G-Tube feeding, during which time [The School District] failed and refused to provide [T.B.] with a qualified teacher to provide him with academic instruction at home." The third counterclaim further alleged that as a result of this conduct, the School District discriminated against T.B. solely on account of his disability. All three counterclaims alleged violations of Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131. The Brenneises requested damages arising out of T.B.'s suffering, including educational injury, hedonic injury, and emotional distress, and T.B.'s parents suffering of financial and other damages including lost wages and emotional distress.

On August 4, 2008, the School District filed a Motion to Dismiss and/or Strike Counterclaims and for Sanctions. The School District argued that all three counterclaims were subject to dismissal for failure to state a claim under Section 504 or the ADA. In an order issued November 7, 2008, Judge Hayes found that the counterclaims did not allege intent to discriminate or deliberate indifference on the part of the School District, nor how T.B. was treated differently than general education students as a result of the School District's alleged failures, essential elements to the purported causes of action. As such, the Court concluded that the counterclaims failed to state a claim under Section 504 or the ADA because the counterclaims did not allege "something more" than a denial of FAPE under the IDEA. The Court granted the School District's motion and dismissed the Counterclaims without prejudice.

This lengthy procedural history culminates in the motion currently before the Court. By way of filing a second amended complaint ("SAC"), the Brenneises seek to re-allege their former counterclaims as additional causes of action in their complaint, as well as to add retaliation claims against the School District and its Director of Special Education, Marysue Glynn, during the period in question. Specifically, the Brenneises propose amending their FAC to include the following additional claims: (1) T.B. has been denied a FAPE under Section 504, as interpreted by 34 C.F.R. § 104.33(a) & (b); (2) T.B. was intentionally and wrongfully excluded from the benefits of a free appropriate public education solely on the basis of his disability in violation of Section 504, as interpreted by 34 C.F.R. § 104.4, § 104.33 and § 104.34; (3) T.B. was forced to remain at home due to the School District's failure to provide for his G-Tube feedings by qualified personnel, or to provide a qualified teacher to instruct him in violation of Section 504 and the ADA; (4) the School District retaliated against T.B. and his mother by failing and refusing to provide qualified personnel to provide T.B.'s G-Tube feedings, failing and refusing to implement the OAH Decision, and failing and refusing to provide T.B. with a qualified teacher for his home instruction, in violation of Section 504, 34 C.F.R. § 100.7, and the ADA; and (5) the Direct of Special Education, Marysue Glynn, retaliated against T.B. and his mother in violation of Section 504 and the ADA.

DISCUSSION

1. Legal Standard

Under Federal Rule of Civil Procedure 15(a)(2), a court "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). "'Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and ...


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