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Courtland Bishop, et al v. the Children's Center For

November 10, 2011

COURTLAND BISHOP, ET AL., PLAINTIFFS,
v.
THE CHILDREN'S CENTER FOR DEVELOPMENTAL ENRICHMENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Mark R. Abel

OPINION AND ORDER

This matter is before the Court on:

(1) Defendants' Motion for Reconsideration of Ruling on Contract Claim Addressed in Defendants' First Motion for Partial Summary Judgment ("Defendants' First Motion for Reconsideration") (ECF No. 59), Plaintiffs' Response in Opposition to Defendants' First Motion for Reconsideration (ECF No. 61), Defendants' Reply to Plaintiffs' Opposition to Defendants' First Motion for Reconsideration (ECF No. 69);

(2) Plaintiffs' Motion for Leave to File Sur-Reply to Defendants' Reply to Plaintiffs' Response to Defendants' First Motion for Reconsideration (ECF No. 70), Defendants' Memorandum in Opposition to Plaintiffs' Motion to File Sur-Reply (ECF No. 76);

(3) Plaintiffs' Motion to Strike Defendants' Memorandum in Opposition to Plaintiffs' Motion to File Sur-Reply (ECF No. 81), Defendants' Response to Motion to Strike Response to Motion for Sur-Reply (ECF No. 83);

(4) Defendants' Motion for Reconsideration of Denial of Summary Judgment on Plaintiffs' § 504 Rehabilitation Act Claim ("Defendants' Second Motion for Reconsideration") (ECF No. 71), Plaintiffs' Response in Opposition to Defendants' Second Motion for Reconsideration (ECF No. 77), Defendants' Reply to Plaintiffs' Opposition to Defendants' Second Motion for Reconsideration (ECF No. 78); and

(5) Plaintiffs' Motion to Strike Defendants' Exhibits 78-1 and 78-2 (ECF No. 82) For the reasons that follow, the Court DENIES all five motions.

I. Background

Plaintiffs Courtland and Michelle Bishop and their minor son C.B. reside in the Worthington, Ohio School District ("Worthington Schools"). In 2002 Worthington Schools placed C.B. at Oakstone Academy ("Oakstone") after he was identified as a child with disabilities under the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. § 1400 et seq. Oakstone is a school that educates autistic children in an environment with typically developing children. C.B.'s typically developing twin was also enrolled at Oakstone.

Defendant the Children's Center for Developmental Enrichment ("CCDE") is a private, non-profit corporation that is organized under Ohio law for charitable and educational purposes. CCDE operates Oakstone. Rebecca Morrison, Ph.D., is CCDE's Chief Executive Officer ("CEO") and is named as a defendant in this action in her individual and official capacities.

Oakstone provided educational services to C.B. pursuant to his Individualized Education Plan ("IEP") until August 2005. On August 29, 2005, the first day of school for the 2005-2006 school year, the Bishops accompanied C.B. to Oakstone. When the Bishops discovered that C.B. had been placed in an all-day preschool class they refused to allow C.B. to stay in that classroom. The Bishops believed that the classroom assignment was not in compliance with C.B.'s IEP. The Bishops were upset and Mr. Bishop used foul language to express his feelings about the placement. CEO Morrison was attending to a family emergency that day and was not present at the school. CCDE Administrator Nanci Morris suggested that the Bishops take C.B. home and wait for CEO Morrison to call. The Bishops followed Administrator Morris' suggestion. On August 31, 2005, CEO Morrison left a telephone message at the Bishop's home stating that C.B. "does not have a placement at Oakstone preschool [and] has been referred back to the [Worthington School] district[.]" (ECF No. 42-1 at 40.)

The parties disagree as to the ramifications of these occurrences. The Bishops contend that CEO Morrison expelled C.B. after the Bishops refused to place C.B. in a classroom that was not in compliance with C.B.'s IEP. Defendants claim that C.B.'s classroom assignment was in compliance with the IEP, and when the Bishops refused to place C.B. in that classroom they effectively withdrew C.B. from Oakstone.

II. Plaintiffs' Motions

Plaintiffs have filed a motion to file a sur-reply and two motions to strike.

A. Standard

This Court's Local Civil Rules permit the filing of a motion and memorandum in support, a memorandum in opposition, and a reply memorandum. S.D. Ohio Civ. R. 7.2(a)(1), (2). The rule specifically states that "[n]o additional memoranda beyond those enumerated will be permitted except upon leave of court for good cause shown." S.D. Ohio Civ. R. 7.2(a)(2).

B. Plaintiffs' Motion to File Sur-Reply

Plaintiffs request permission to file a sur-reply "for the purposes of addressing the new cases and arguments presented [by Defendants in their reply memorandum in support of Defendants' First Motion for Reconsideration] and correcting the mischaracterizations made of Plaintiffs' initial Response." (ECF No. 70-1.) Defendants oppose Plaintiffs' request to file a sur-reply, arguing that they made no new arguments in their reply memorandum but merely replied to Plaintiffs' arguments made in their memorandum in opposition. However, "Defendants request that Plaintiffs' proposed sur-reply be reviewed for purposes of the Court's consideration of the admissions made by Plaintiffs therein[.]" (ECF No. 76 at 1.)

As to Plaintiffs' arguments, they are not well taken. While it is true that in their reply memorandum Defendants relied upon several cases to which they had not previously cited, those cases were in support of arguments that had been previously made. Defendants offered no new arguments in their reply memorandum. With regard to Plaintiffs' desire to correct mischaracterizations and to explain the new cases upon which Defendants rely, that is not necessary nor does it constitute good cause to file a sur-reply. This Court is in the business of determining whether the litigants before it appropriately relate the facts, the other parties' arguments, and the propositions that are set forth in case law or whether the litigants mischaracterize those facts, arguments, and propositions. Thus, the Court DENIES Plaintiffs' request to file a sur-reply.

As to Defendants' request, they ask the Court to consider selected portions of Plaintiffs' proposed sur-reply, because in it Plaintiffs made "admissions" that show that Plaintiffs failed to produce sufficient evidence to meet their burden of proof at summary judgment and that Defendants' previously denied motion for summary judgment should therefore be granted. For example, Defendants argue:

Though Defendants assert that the record evidence is clear and that there is no evidence to the contrary, Plaintiffs view the evidence in support of their claim that the purported contract for placement called for a pre-k classroom as being equally balanced. Doc. 70-1, Proposed Sur-Reply, p. 8. Plaintiffs acknowledge that "perhaps Defendants are correct. Or perhaps each [party] thought differently from the other" and assert "the possibility that any of these scenarios is the correct one."

Id. In recognizing that they have not produced sufficient evidence to meet their burden of proof, Plaintiffs admit that summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). (ECF No. 76 at 12-13.) Defendants' arguments set forth here and the other similar ones made in its request are not well taken.

Defendants do not understand the nature of Plaintiffs' burden at summary judgment. In opposing a motion for summary judgment, a party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A non-moving party need not prove that there is no evidence contrary to his or her position. Indeed, the central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. In their proposed sur-reply, Plaintiffs do nothing more than acknowledge that this Court has previously determined that Plaintiffs submitted specific facts showing that there is a genuine issue for trial. Accordingly, the Court DENIES Defendants' request that the Court consider selected portions of Plaintiffs' proposed sur-reply.

C. Plaintiffs' Motion to Strike Defendants' Memorandum in Opposition to Plaintiffs' Motion to File Sur-Reply

Plaintiffs filed a motion requesting that the Court strike Defendants' Memorandum in Opposition to Plaintiffs' Motion to File Sur-Reply. Plaintiffs contend that under Local Rule 7.2, Defendants have not shown good cause to file their memorandum. Defendants have opposed this motion.

By the time Plaintiffs filed their motion and Defendants filed their memorandum in opposition, the Court had already determined that Plaintiffs' request to file a sur-reply was not well taken and had already determined that the request Defendants made in their opposition memorandum was not well taken. The Court declines to revisit its decision to deny Plaintiffs the ability to file a sur-reply based upon any argument presented by Plaintiffs in their motion to strike. The Court also declines to revisit its decision to deny Defendants' request to consider selected portions of Plaintiffs' proposed sur-reply based upon any argument Defendants present in their opposition memorandum. Consequently, the Court DENIES Plaintiffs' motion.

D. Plaintiffs' Motion to Strike Defendants' Exhibits 78-1 and 78-2

Plaintiffs request that the Court strike two exhibits Defendants attached to their reply memorandum in support of Defendants' Second Motion for Reconsideration. Specifically, Defendants submitted the exhibits to support one of the three arguments they make in support of reconsideration of this Court's decision. Plaintiffs argue that the exhibits should not be considered in connection with Defendants' reconsideration motion because they were not presented in connection with Defendants' Second Motion for Summary Judgment and are not newly discovered or obtained evidence.

This Court's Local Rules do require that "all evidence then available shall be discussed in, and submitted no later than, the primary memorandum of the party relying upon such evidence." S.D. Ohio Civ. R. 7.2(d). In this instance, however, by the time Plaintiffs filed their motion to strike, the Court had already determined that Defendants' arguments for reconsideration were not well taken. Thus, it was not detrimental to Plaintiffs in any way if the Court relied upon these exhibits. Therefore, the Court DENIES Plaintiffs' motion.

III. Defendants' Motions for Reconsideration

Plaintiffs allege both federal and state law claims against Defendants. On January 16, 2011, Defendants filed a motion for summary judgment on Plaintiffs' state law claims for breach of contract and tortious interference with contract claim ("Defendants' First Motion for Summary Judgment"). (ECF No. 42.) On August 8, 2011, this Court denied Defendants' First Motion for Summary Judgment as it related to Plaintiffs' breach of contract claim and granted Defendants' motion as it related to Plaintiffs' tortious interference with contract claim. (ECF No. 55.) In Defendants' First Motion for Reconsideration, Defendants move this Court to reconsider and set aside the portion of its decision that denied summary judgment on Plaintiffs' breach of contract claim.

On June 30, 2011, Defendants moved for summary judgment on Plaintiffs' claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act or Section 504"), the Americans with Disabilities Act of 1991, 42 U.S.C. § 12131 ("ADA"), the IDEIA, and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983"). On September 15, 2011, this Court granted Defendants' Second Motion for Summary Judgment as it related to Plaintiffs' claims filed under the ADA, Section 1983 and Plaintiffs' punitive damages claim for alleged violations of Section 504 and denied the motion as it related to Plaintiffs' disability discrimination claim filed under Section 504 and Plaintiffs' claim for compensatory damages for alleged violations of Section 504. In Defendants' Second Motion for Reconsideration, they move the Court to reconsider and set aside its ruling denying summary judgment on Plaintiffs' disability discrimination claim filed under Section 504.

A. Standard for Reconsideration

Although the Federal Rules of Civil Procedure do not explicitly address motions for reconsideration of interlocutory orders, the authority for a district court to hear such motions is found in both the common law and in Rule 54(b) of the Federal Rules of Civil Procedure. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed. Appx. 949, 959 (6th Cir. 2004). A district court's authority to reconsider its previous orders has been recognized to afford such relief as justice requires. Id. 952. Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or, (3) a need to correct a clear error or prevent manifest injustice. Id. (citing Reich v. Hall Holding Co., 990 ...


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