Student v. East Bridgewater Public Schools – BSEA # 07-1364



<br /> Student v. East Bridgewater Public Schools – BSEA # 07-1364<br />

COMMONWEALTH OF MASSACUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Student v. East Bridgewater Public Schools

BSEA# 07-1364

RULING ON SCHOOL’S MOTION TO DISMISS PARENTS’ HEARING REQUEST WITH PREJUDICE

STATEMENT OF THE CASE

1. Parents filed a request for hearing with the Bureau of Special Education Appeals on or about October 3, 2006.

2. On October 13, 2006, East Bridgewater, through counsel, filed a response as well as a request for postponement of the initial hearing date.

3. On October 27, 2006, the Hearing Officer issued a Notice of Pre-Hearing Conference Call scheduled for November 2, 2006 at 4:00 p.m.

4. On October 30, 2006, counsel for East Bridgewater requested a change of date for the Pre-Hearing Conference Call due to a previously scheduled commitment.

5. On October 31, 2006, the Hearing Officer issued an Amended Notice of Pre-Hearing Conference Call changing the date of the call to November 3, 2006 at 10:00 a.m.

6. On November 3, 2006 at 10:00 a.m. the Hearing Officer, with counsel for East Bridgewater on the conference call, called the Parents’ telephone number. When Parents did not respond, the Hearing Officer left a detailed telephone message explaining that a Pre-Hearing Conference was scheduled for November 27, 2006 at 2:00 p.m. at the BSEA and that East Bridgewater’s request to postpone the automatic hearing date was granted.

7. On November 3, 2006 the Hearing Officer issued a written Notice of Pre-Hearing Conference to all parties for November 27, 2006. The notice included the date of the Pre-Hearing Conference, the time, the location (11 Dartmouth Street, Malden, MA) and the telephone number of the Hearing Officer.

8. On November 27, 2006, counsel for East Bridgewater along with the Special Education Director for East Bridgewater, Student’s Kindergarten teacher and the teacher of the integrated Pre-School appeared at the BSEA for the Pre-Hearing Conference. Parents did not appear nor did they call or correspond via mail or fax to indicate that they were unable to attend the scheduled Pre-Hearing Conference or to request a postponement.

9.After waiting approximately forty minutes, the Hearing Officer attempted to call Parents on the telephone. Parents did not answer the telephone and the Hearing Officer left a detailed message asking them to please call as soon as possible.

10. The Hearing Officer then received notice that someone had placed a call to the Bureau of Special Education Appeals referencing the Pre-Hearing Conference with East Bridgewater. Thinking that perhaps Parents had gone to the wrong building, (i.e., 350 Main Street, the headquarters of the Massachusetts Department of Education), the Hearing Officer personally walked over to the Department of Education building and searched in all of the conference rooms on multiple floors in an attempt to locate Parents. Parents could not be located.

11. The Special Education Director for East Bridgewater received a telephone call on her cell phone at approximately 3:05 p.m. from Student’s school stating that Student’s mother was observed picking Student up from school at 3:00 p.m.

12. Again, the Hearing Officer attempted to call Parents on the telephone but was unable to make contact.

13. At approximately 3:30 p.m. the Hearing Officer dismissed the representatives from East Bridgewater.

14. On November 27, 2006 the Hearing Officer issued a 15 Day Order To Show Cause Why This Case Should Not Be Dismissed.

15. On November 29, 2006 East Bridgewater filed with the BSEA, with notice to Parents, its Motion To Dismiss Parents’ Hearing Request With Prejudice, accompanied by a Memorandum of Law.

16. Other than their Request for Hearing, Parents have neither filed anything in writing with the BSEA nor responded to any BSEA Notice, BSEA Order, or East Bridgewaters’ Motion To Dismiss With Prejudice.

RULING

BSEA #07-1364 is hereby DISMISSED WITH PREJUDICE . BSEA Rule XVII (B) and 801 CMR 1.01 (7)(g)(2) provide for dismissal of a case for failure to comply with these rules or any Hearing Officer Order. BSEA Rule X(B)(16) also gives the Hearing Officer the duty and authority to censure, reprimand or otherwise ensure that all participants conduct themselves in an appropriate manner. 801 CMR 101 (7)(g)(2) provides for dismissal when the moving party fails to prosecute its case.

Dismissal has been found to be a justified and appropriate remedy where there is a clear record of delay or contemptuous conduct by the plaintiff or where the non-compliant litigant has manifested a disregard for the orders of the court or the BSEA. See John’s Insulation v. L. Addison & Associates 156 F. 3d 101 (1s) Cir. 1998); Legault v Zambarano 105 F. 3d 24 (1 st Cir. 1997); Carter v Memphis 636 F. 2d 159 (6 th Cir. 1980); In re: James v. Hampden – Wilbraham Regional School District 12 MSER 200 (2006); In re: Student v Medford Public Schools 10 MSER 18 (2004).

Parents’ actions/inactions as delineated under STATEMENT OF THE CASE , above, clearly meet the above-cited standards for dismissal. Parents have failed to respond to and completely ignored BSEA Notices and Orders as well as East Bridgewater’s Motion To Dismiss With Prejudice. Parents’ utter disregard for the BSEA process, which Parents initiated as the moving party, has resulted in a total waste of resources and time for East Bridgewater and the BSEA. Such egregious conduct warrants dismissal.

ORDER

BSEA #07-1364 is DISMISSED WITH PREJUDICE.

By the Hearing Officer

Dated: __________________ ___________________


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