UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 14, 2010
WALTER COVINGTON, DRUSCILLA COVINGTON, AS PARENTS AND GUARDIANS AD LITEM OF STUDENT WAID COVINGTON, PLAINTIFFS,
YUBA CITY UNIFIED SCHOOL DISTRICT, DEFENDANT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
In this IDEA appeal, Plaintiffs challenge a decision by the assigned Administrative Law Judge which upheld Defendant's refusal to provide reimbursement for educational expenses incurred by Plaintiffs when they decided to send their son to a private, non-secular school in Tennessee. Plaintiffs' Complaint was filed more than three years ago, on September 4, 2007, in the wake of the ALJ's adverse June 4, 2007 decision.
Presently before the Court is Plaintiffs' Motion to Introduce Additional Evidence pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii). Plaintiffs urge the Court to hear additional evidence from two individuals in Tennessee before it renders any decision on the pending cross-motions for summary judgment in this matter, which were set for hearing on November 18, 2010 and submitted without oral argument by Minute Order dated November 15, 2010.
Despite Section 1415's directive that the court hear additional evidence in an IDEA appeal like this one, a party seeking to introduce such evidence at the district court level must still provide "some solid justification" for failing to do so earlier. See Indep. Sch. Dist. No. 283 v. S.D. by J.D., 88 F.3d 556, 560 (8th Cir. 1996) (citing Roland M v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990).
Plaintiffs' Motion fails. First, as recognized by Plaintiffs' counsel himself in his own Status Report provided to the Court on June 12, 2009 (ECF No. 21-1, 2:28-3:5), the parties themselves contemplated that this matter be resolved through the cross-motions for summary judgment now awaiting decision. Although Plaintiffs' counsel specifically alluded in the Status Report to the need for additional evidence prior to summary judgment, he never took steps to present that evidence before the present last-ditch effort instituted a year-and-a-half later after briefing on the motions had concluded and the matter was submitted.
Additionally, when the parties stipulated to a briefing schedule for hearing the matter on summary judgment in June of 2010, Plaintiffs' counsel failed to raise the issue of any additional evidence being needed before the motions were heard.
His attempt to do so now, when the motions have been fully briefed and are ready for decision, is clearly untimely.
Second, Plaintiffs' counsel has provided no convincing rationale as to why the evidence could not have been presented at the time of the administrative hearing. While he states that the two individuals were unavailable to come to California at that time, he does not rebut the defense contention that the witnesses could have testified by telephone, as customarily occurs in matters of this nature.
Plaintiff's Motion to Introduce Additional Evidence (ECF No. 63) is accordingly DENIED.*fn1
IT IS SO ORDERED.