United States District Court, D. Connecticut
RULING ON PLAINTIFFS' MOTIONS FOR RECONSIDERATION
AND TO AMEND THE COMPLAINT
Bond Arterton, U.S.D.J.
are represented in this action by Attorney Eileen Hagerty and
associates at Kotkin, Crabtree & Strong, LLP.
Nonetheless, Ms. Doe filed a Motion to Amend the Complaint
[Doc. # 239] pro se, which the Court denied without prejudice
because the "law does not entitle a party to represent
himself or herself while also appearing through an
attorney." (Order Denying Pis.' Mot. to Amend [Doc.
# 240].) Ms. Doe subsequently filed a Motion for
Reconsideration of that ruling [Doc. #241] and asked the
Court to grant the underlying motion to amend. That motion
for reconsideration was similarly filed pro se, despite
Plaintiffs' continued representation by Attorney Hagerty.
Motion for Reconsideration
requests permission to represent herself for purposes of
filing a motion to amend the complaint while generally
maintaining Attorney Hagerty's representation because Ms.
Doe "irrefutably need[s] her to file the attorney fee
petition" and "cannot retain other coun[sel] this
late in the proceedings." (Mot. for Reconsid. at 2.) Ms.
Doe argues that to prevent her from filing the motion to
amend pro se, when combined with her need for Attorney
Hagerty's services for other purposes and Ms.
Hagerty's "steadfast resolute[ion] that she will
not represent [Ms. Doe] in this claim," will effectively
deprive Ms. Doe of the opportunity to pursue the claim she
seeks to add to the complaint-a claim for tuition
reimbursement for John Doe's "stay put
placement" at Solomon Schechter Academy. (Id.
such hybrid representation-in which a party is
"represented by counsel from time to time, but may slip
into pro se mode for selected presentations"-is within
the Court's discretion. United States v.
Rivernider, 828 F.3d 91, 108 (2d Cir. 2016) ("We do
not suggest that district courts lack discretion to hear from
a represented defendant personally, nor do we criticize the
district court for allowing Rivernider to make his pro se
submission."). Therefore, and in the interest of
deciding Ms. Doe's motion to amend on the merits, the
Court hereby GRANTS Plaintiffs' Motion for
Reconsideration [Doc. # 241] and will address Ms. Doe's
Motion to Amend the Complaint.
Motion to Amend the Complaint
to amend pleadings should be "freely give[n] . . . when
justice so requires," Fed.R.Civ.P. 15(a)(2), and courts
may not decline leave to amend "[i]n the absence of any
apparent or declared reason" for such denial, Foman
v. Davis, 371 U.S. 178, 182 (1962). However, where the
requested amendment would be futile, leave to amend maybe
denied. See Foman, 371 U.S. at 182 (listing
"futility of amendment" among possible justifying
reasons for denial of leave to amend); National Credit
Union Admin. Board v. U.S. Bank, N.A., 898 F.3d 243, 256
(2d Cir. 2018) (listing "futility" among reasons to
deny a Rule 15 motion).
moves for leave to amend the Complaint [Doc. # 1] to
"seek tuition reimbursement, interim funding and school
transportation expenses under" the stay-put pendency
provision. (Mot. to Amend at 1.) She argues that Solomon
Schechter Academy was the proper stay-put placement, and that
therefore Plaintiffs were entitled to tuition and travel
reimbursement for John Doe's attendance at that school
during the pendency of these proceedings. (Id. at
4.) However, because this argument is contrary to the
2008-2009 IEP (the stay-put placement) and the Second
Circuit's opinion in this case, Ms. Doe's requested
amendment to the complaint would be futile.
2008-2009 IEP, as amended in February 2009, is John Doe's
stay-put placement. Doe v. East Lyme Bd. of Educ,
790 F.3d 440, 452 (2d Cir. 2015) ("As the district court
determined, the Student's stay-put placement was the
placement described in the 2008-2009 IEP (as amended in
February 2009) . . ."). Therefore, under 20 U.S.C.
1415(j), Defendant's stay-put obligation was to
"continue funding whatever placement was ... agreed
upon" for John Doe in that IEP during the pendency of
this proceeding. Id. (internal quotation omitted).
2008-2009 IEP, as amended in February 2009, indicated that
John Doe would attend Solomon Schechter Academy "at
parental expense" and would "receive related
services at the expense of the Board." Id. at
454. Therefore, that arrangement was John Doe's stay-put
placement which the Board was obligated to maintain during
these proceedings. Because the operative IEP did not require
Defendant to pay John Doe's tuition at Solomon Schechter,
Plaintiffs were not entitled to reimbursement for that
tuition under the stay-put provision.
it did not directly address a request for tuition
reimbursement via the stay-put provision, the Second
Circuit's opinion in this case also indicates that
Plaintiffs were not entitled to tuition reimbursement under
the stay-put provision. Without mentioning that she also paid
John's tuition throughout the litigation, the Court of
Appeals explained Defendant's violation of the stay-put
provision by citing that "[w]hile paying for the
related services herself, the Parent maintained that
continuous placement during the pendency of this
litigation." Id. (emphasis added). In ordering
that Plaintiffs were entitled to the "full value of the
stay-put services" which should have been provided, the
Second Circuit again indicated that no tuition reimbursement
was available under the stay-put provision. Id. at
457 (holding that, in order to meet the Board's
obligations under the stay-put provision, "the Board
owes reimbursement in the amount the Parent expended/or
the services the Board was required to provide, plus
compensatory education to fill the gap of required services
that the Parent did not fund," without mentioning any
entitlement to tuition reimbursement as part of the
"full value of the stay-put services" to which
Plaintiffs are entitled) (emphasis added). The Second Circuit
then directed this Court to fashion relief for the
Defendant's violation of the stay-put provision based
upon "the total value of the related services
specified in the amended 2008-2009 IEP," again without
any mention of reimbursement for the tuition paid by Ms. Doe.
Id. (emphasis added). Finally, the Second
Circuit's opinion indicated that the stay-put provision
requires Defendant to "continue funding"
the agreed-upon services, not to force Defendant to
begin paying for services which were funded by the
parent under the operative IEP. Id. at 452.
under the terms of the operative 2008-2009 IEP, as amended in
February 2009, and the opinion of the Second Circuit Ms. Doe
is not entitled to reimbursement for John's tuition at
Solomon Schechter under the stay-put provision, her requested
amendment of the complaint to seek such reimbursement would
be futile. On reconsideration, Ms. Doe's pro se Motion to
Amend the Complaint is therefore denied.
foregoing reasons, Plaintiffs' Motion for Reconsideration
[Doc. # 241] is GRANTED. On reconsideration, Plaintiffs'