Andrew et al v. Falcon School District 49

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 1:23-cv-02461-PAB-SBP
DIANE ANDREW and
SEAN ANDREW, as parents of minor child C.A.,
Plaintiffs,
v.
FALCON SCHOOL DISTRICT 49,
Defendant.
______________________________________________________________________________
OPINION AND ORDER GRANTING MOTION TO AMEND
______________________________________________________________________________
Susan Prose, United States Magistrate Judge
This matter comes before the Court for resolution1 of the Andrews’ Motion For Leave To
File An Amended Complaint (ECF No. 28), which was referred to the undersigned by order
dated April 3, 2024 (ECF No. 30). The undersigned considers the Motion pursuant to 28 U.S.C.
§ 636(b). After reviewing the Motion, Response, and Reply, the entire case file, and the
applicable case law, the court grants the Motion.
BACKGROUND
The operative pleading is the Andrews’ Complaint (ECF No. 1). That Complaint alleges
that their child, C.A., is a sixteen year-old student diagnosed with Autism Spectrum Disorder and
1 Motions for leave to amend a complaint are treated as nondispositive matters that Magistrate
Judges may rule upon conclusively pursuant to 28 U.S.C. § 636(b)(1)(A). Franke v. ARUP Lab’s,
Inc., 390 F. App’x 822, 828 (10th Cir. 2010).
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Attention Deficit Disorder. ECF No. 1 ¶ 14. In 2019, the Andrews moved to Falcon School
District 49 (“the District”) and the Andrews requested that the District provide C.A. with special
education services under the Individuals With Disabilities In Education Act (“IDEA”), 20 U.S.C.
§ 1401, et seq. The central principle of providing students with special education under the IDEA
is the assessment of each student’s educational needs and the creation of an Individualized
Education Program (“IEP”), which establishes the student’s educational goals and the services
the school district will provide to help the student reach them. 20 U.S.C. § 1401(14). IEPs are
revisited and revised on an annual basis. 34 C.F.R. § 300.323.
The Complaint recites the Andrews’ dissatisfaction with certain aspects of the IEPs (or
the implementation thereof) that the District created for C.A. for the 2019-2021 school years,
ECF No. 1 ¶¶ 21-27, but the precipitating events for this lawsuit appear to derive from the
District’s design and implementation of C.A.’s 2022 IEP. The Andrews arranged for an
independent evaluation of C.A. in October 2022, and that evaluation reached different
conclusions about C.A.’s performance level, particularly in math, than the District’s IEP did. The
evaluation recommended a number of additional services and support be included in C.A.’s IEP.
Id. ¶¶ 78-80. Not only do the Andrews allege that the District did not adopt the recommendations
of the independent evaluation, they also allege that midway through the school year, the District
changed C.A.’s special education case manager and several of his teachers, further disrupting his
educational environment. Id. ¶¶ 86-88.
As a result, in April 2023, the Andrews invoked the IDEA’s machinery for resolving
disputes over a school district’s compliance with the Act’s provisions. A brief review of that
machinery will be helpful to the discussion here. The IDEA requires school districts to maintain
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complaint procedures with certain provisions. It requires a procedure to allow any party to file a
complaint about a failure to comply with the Act’s substantive requirements. 20 U.S.C
§ 1415(b)(6). (The filing is often referred to as a “Due Process Complaint,” and the court will
use that terminology here for purposes of clarity.) When a school board receives a Due Process
Complaint, either the student/parent or the district may request a “due process hearing” to be
conducted by an impartial member of the applicable state agency (in Colorado, by an
administrative law judge, “ALJ,” with the Colorado Office of Administrative Courts). 20 U.S.C.
§ 1415(f)(1)(A). Prior to that due process hearing, the parent/student and the district are required
to “convene a meeting . . . where the parents of the child discuss their complaint, and the facts
that form the basis of the complaint, and the [district] is provided the opportunity to resolve the
complaint.” 20 U.S.C. § 1415(f)(1)(B)(i)(IV). If the parties are unable to resolve the matter at
what this court will refer to as a “Resolution Meeting,” the parties proceed to an adjudicative
Due Process Hearing before the ALJ. See generally 20 U.S.C. § 1415(f)(1)(B)(ii), (iii). Parties
who are aggrieved by the ALJ’s decision following a Due Process Hearing at the state
educational agency may bring an action in the federal district courts to seek review of that
decision. 20 U.S.C. § 1415(i)(2)(A), (l).
The Andrews filed their Due Process Complaint and they attended a Resolution Meeting
with the District on April 24, 2023. No substantive discussions were held at that meeting. By the
Andrews’ own admission, the parties reached an impasse on the preliminary issue of whether the
discussions at the meeting would, as the Andrews’ counsel demanded, be cloaked with the
protections of Federal Rule of Evidence 408 (rendering disclosures made during settlement
discussions and compromises inadmissible). Complaint ¶¶ 96-99. Because the District refused to
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agree to deem the Resolution Meeting subject to Rule 408, the Andrews “declined to respond to
[the District’s] fact-specific questions and instead, questioned whether [the District] was
prepared to offer a settlement.” Id. ¶ 99. Because the District failed to respond to the Andrews’
settlement offers, the Andrews’ counsel concluded the Resolution Meeting. Id. ¶ 102. The parties
scheduled a second Resolution Meeting on May 10, 2023, but the Andrews’ counsel again
demanded that that meeting be held subject to Rule 408, and the District refused. Id. ¶¶ 104-105.
The Andrews’ counsel advised the District in advance that, if the District “was not prepared to
offer a resolution and intended to engage the [Andrews] in an interrogation of the underlying
facts, the meeting would be terminated after 10 seconds.” Id. ¶ 108. As predicted, the parties held
that second meeting on May 10, but because the District refused to agree to the Andrews’
demands for confidentiality protections under Rule 408, the Andrews immediately terminated the
meeting. Id. ¶ 111.
On June 23, 2023, upon the District’s motion, a state ALJ dismissed the Andrews’ Due
Process Complaint.2 The ALJ concluded that the IDEA provides that the purpose of the
Resolution Meeting is to allow the parties to “discuss [the parent’s Due Process Complaint] and
the facts that form the basis of the complaint to give the school district an opportunity to resolve
the dispute. ECF No. 25 (docket entry for the Administrative Record filed on flash drive) at 346,
citing 34 C.F.R. § 300.510(a)(2). The ALJ found that “demanding an offer within 30 seconds
2 The Andrews’ Complaint and proposed Amended Complaint both refer to the ALJ’s decision as
an “attachment” to their pleading, but neither version actually attaches a copy of the ALJ’s
decision. Because the ALJ decision is expressly referred to in the Andrews’ pleadings, and no
party has objected to the authenticity of the version of that document found in the Administrative
Record, the court deems the ALJ ruling found in ECF No. 25 at 343-347, as having been attached
to both versions of the Andrews’ pleading.
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without allowing for any discussion or failing to discuss the complaint without an offer violates
both the spirit and letter of the resolution process” under the IDEA. Id. Because participation in
the Resolution Meeting process is mandatory under the statute, see, e.g., 34 C.F.R.
§ 300.510(b)(3), (4), the ALJ concluded that the Andrews had not adequately participated in
resolution efforts and dismissed their Due Process Complaint. Id.
The Andrews then commenced this action. The Andrews allege that the District violated
the IDEA by failing to provide C.A. with an education as required by the Act, by failing to
provide C.A. with an appropriate IEP, and by “predetermining” C.A.’s “placement based on [the
District’s] available resources outside of an IEP meeting.” Id. ¶¶ 185-192. Although the
Andrews’ Complaint did not assert a separately-enumerated claim seeking review of the ALJ’s
decision, the Complaint extensively alleged that the ALJ misapplied the IDEA’s regulations
regarding participation in Resolution Meetings, failed to address whether Federal Rule of
Evidence 408 applies to such meetings, and erred in granting a dismissal of the Due Process
Complaint with prejudice, ECF No. 1 ¶¶ 116-184. Among the Andrews’ Prayers for Relief is a
request that “the Court reverse the ALJ’s Decision regarding all claims pled” in the Due Process
Complaint, id. ¶ 194.
The District moved to dismiss the Andrews’ Complaint in this action, arguing that the
court lacks subject matter jurisdiction over this case due to the Andrews’ failure to exhaust their
administrative remedies. ECF No. 26. That motion remains pending before the District Judge and
has not been referred to the undersigned. But in response to the District’s motion, which includes
an argument that the Andrews have “entirely failed to seek review of the propriety of the ALJ’s
dismissal” of their Due Process Complaint, the Andrews filed the instant Motion to Amend,
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seeking to amend their Complaint to make that request express. ECF No. 28. Their Proposed
Amended Complaint differs from the original only insofar as it adds a fourth cause of action
seeking appellate review of the ALJ’s decision pursuant to 20 U.S.C. § 1415(i)(2)(A).
The District opposes the Andrews’ Motion to Amend, arguing that (1) the motion is
untimely, having been filed some seven months after this case was initiated, with no intervening
events changing the factual or legal landscape; (2) the motion is prompted by the Andrews’
realization that their initial Complaint was deficient in failing to challenge the ALJ’s ruling;
(3) the request is futile in any event, because District Court jurisdiction over the Andrews’
substantive IDEA claims is premised upon the outcome of a substantive Due Process Hearing,
and, as the ALJ found, no such hearing ever occurred; and (4) the District would be prejudiced
by granting the requested amendment because, essentially, the amendment is sought to overcome
what the District sees as its otherwise successful Motion to Dismiss. ECF No. 35.
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 15(a)(2), the court should “freely give” leave to
amend a pleading “when justice so requires.” 3 Generally, the court should only refuse to grant
leave to amend if it finds that the requested amendment is the product of undue delay or bad faith
on the part of the movant, that the movant has failed to cure previous pleading defects with prior
amendments, that granting leave would be unduly prejudicial to the non-movant, or that the
requested amendment is futile because the pleading as amended would still be subject to
3 Although this court entered a Joint Case Management Plan, ECF Nos. 22 and 23, that plan did
not set a deadline for amendment of pleadings. The court did not separately enter a Scheduling
Order containing such a deadline. Thus, there is no need to conduct a separate analysis under
Fed. R. Civ. P. 16(b) to determine whether good cause exists to amend those orders as well.
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dismissal. Foman v. Davis, 371 U.S. 178, 182 (1962); Jensen v. W. Jordan City, 968 F.3d 1187,
1202 (10th Cir. 2020).
ANALYSIS
Although the District is correct that the Andrews’ initial Complaint does not expressly
assert an independently-identified “Claim For Relief” seeking to set aside the ALJ’s dismissal of
their Due Process Complaint, any reasonable reading of the Complaint would recognize that the
Andrews extensively addressed a contention that “[t]his Court should overturn the ALJ’s
decision.” ECF No. 1 ¶ 116. The ensuing 40-some paragraphs in the Complaint lay out the
Andrews’ theory on this point in considerable detail, explaining the Andrews’ belief that, as a
matter of law, the IDEA merely requires them to “attend” a Resolution Meeting without
necessarily obligating them to participate meaningfully, id. ¶¶ 125-26, 134. The Complaint also
presents the Andrews’ contention that even if participation is required, the ALJ erred in
concluding that, factually, the Andrews did not meaningfully participate in the meetings, id.
¶¶ 135-144, among other matters. And the Andrews’ Prayer For Relief specifically asks that the
court reverse the ALJ’s decision. Id. ¶ 198. In these circumstances, the District can hardly claim
to be surprised to learn that the Andrews are indeed requesting reversal of the ALJ’s decision.
The court rejects the District’s suggestion that it will suffer prejudice because it has a
meritorious Motion to Dismiss pending based on the fact that the Andrews did not expressly
assert a claim seeking reversal of the ALJ’s decision, and that this meritorious defense would be
lost if the Andrews were allowed to replead. The District simply states a tautology: if a party is
prohibited from seeking to amend a pleading to cure a defect that the other side raised when
seeking dismissal, there would be little reason for a rule providing for amendment of pleadings,
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much less one with the generous standard favoring amendment whenever “justice requires.”
(And vice-versa: if a pleading defect did not affect the viability of any of the pleader’s claims,
there would be little need to amend the pleading to cure the defect.) The District’s argument
encourages the court to resolve cases on technical pleading defects, rather than reaching the
merits of clearly-articulated claims. This is clearly not the intention of Rule 15 nor of cases like
Foman, and the court finds that the District has not shown that it would be prejudiced in any
meaningful way if the Andrews’ motion to amend were granted.4
The District argues that the court should deny amendment because the Andrews’ request
to amend is untimely. It is true that seven months passed between the Andrews’ initial Complaint
and the current Motion. But the court notes that the Andrews’ Motion was filed twenty-one days
after the District timely raised the issue of a missing claim for reversal of the ALJ’s decision in
the District’s Motion to Dismiss. See ECF No. 23 (Joint Case Management Plan) at 4 § V.B
(motions to dismiss due within 30 days of the submission of the Administrative Record); ECF
No. 25 (Administrative Record submitted February 15, 2024); ECF No. 26 (the District’s Motion
to Dismiss, filed March 12, 2024). The court cannot say that the brief period of time in which the
Andrews considered the District’s motion and decided to address it by seeking amendment
4 Although the District accuses the Andrews’ counsel of having “late realization[s]” about the
defects in the Complaint, the District does not offer any argument that the Andrews acted in bad
faith by intentionally delaying the request to amend until after the District had filed its Motion to
Dismiss. Indeed, the District appears to recognize that “only after [its motion] did the [Andrews]
appreciate the Complaint’s deficiency.” ECF No. 35, ¶ 33.
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amounts to undue delay. Cf. Fed. R. Civ. P. 15(a)(1)(B) (allowing amendment of pleadings once
as a matter of course within twenty-one days of a responsive pleading or motion to dismiss).5
That leaves the District’s argument that it would be futile to permit the Andrews to amend
their Complaint to expressly assert a claim seeking reversal of the ALJ decision. The crux of that
argument is that, even if the court were to permit the Andrews to challenge the ALJ’s decision,
they would nevertheless fail on their substantive IDEA challenges because the ALJ dismissed the
Andrews’ Due Process Complaint on exhaustion grounds without reaching the merits, and
federal courts lack jurisdiction over IDEA claims where the parties did not exhaust their
administrative remedies before the ALJ. See, e.g., M.E. ex rel C.E. v. Buncombe Cnty. Bd. of
Educ., 72 F. App’x 940, 941-42 (4th Cir. 2003). That argument is very similar to the argument
pending in the District’s Motion to Dismiss that is presently before the District Judge. See ECF
No. 26 ¶¶ 42-44 (discussing mandatory exhaustion under IDEA). This court is reluctant to
attempt to usurp the District Judge’s opportunity to consider the question by adjudicating the
futility question in the context of a motion to amend. In such circumstances, the better practice is
to defer the question of futility to allow the District Judge the full opportunity to consider the
substantive merit of the argument in the Motion to Dismiss.6
5 In this case, the Andrews properly filed a motion for leave to amend, instead of asserting a right
to amend as a matter of course, because the District filed a responsive pleading four months
prior. ECF No. 12 (answer and counterclaims filed November 14, 2023).
6 The District relies on M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1087-89 & n.12 (9th Cir.
2012), for a somewhat unclear argument that this court would somehow need to grant the
Andrews two different opportunities to amend in order to allow them to effectively challenge the
ALJ’s ruling, although it is not plain what two steps the District believes are necessary here.
M.M. clearly explains that “[i]f the ALJ completely dismisses [a Due Process Complaint without
conducting a Due Process Hearing], the dismissal is final and judicially reviewable.” Id. at n.12.
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Accordingly, the court GRANTS the Andrews’ Motion For Leave To Amend. The
Andrews shall file the Proposed Amended Complaint, ECF No. 28-1, as a standalone document
within seven (7) days of this Order.
CONCLUSION
For the foregoing reasons, the Andrews’ Motion for Leave to Amend, ECF No. 28, is
GRANTED.7 The Andrews shall file a clean version of the Amended Complaint within seven
(7) days of this Order.
DATED: January 10, 2025 	BY THE COURT:
Susan Prose
United States Magistrate Judge
Here, the ALJ completely dismissed the Andrews’ Due Process Complaint based on their failure
to participate in the Resolution Meetings, and thus, under M.M., there is no impediment to the
Andrews’ seeking judicial review of that final dismissal at this time.
7 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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