COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Attleboro Public Schools
BSEA # 2313823
RULING ON
PARENTS’ MOTION REQUESTING EXTENSION OF TIME TO PROVIDE REQUESTED DISCOVERY
AND
PARENTS’ REQUEST TO POSTPONE HEARING
This matter comes before the Hearing Officer on Parents’ Motion Requesting Extension of the time to Provide Requested Discovery (Motion) filed initially via email September 8, 2023 and formally on September 12, 2023. In it, Parents asserts that they require
“an extension of time to provide answers to interrogatories and to produce documents [because] mother was hospitalized twice in August for surgery and then for complications resulting from the surgery. Discharge instructions included significant limitations for six weeks. In addition to [Student], mother has a 4-year-old to care for at home and required extensive help for an extended period of time. Mother is not yet able to resume full, unrestricted activities.”
On September 8, 2023, Attleboro Public Schools (Attleboro or the District) filed its Opposition to Parents’ Request for Additional Time to Produce Discovery (Opposition), asserting, in part, that Parents’ request comes “a mere eleven (11) business days before the scheduled hearing date of September 26, 2023,” and four (4) days before discovery is due. The District noted that “Parents do not mention any date or timeframe for the extension that they are seeking.” Moreover,
Were the Hearing Officer to grant this request, the District’s ability to prepare for Hearing would be irretrievably compromised. In this case, there exists an already narrow window to review discovery and prepare for hearing. In accordance with the BSEA Hearing Rules, Exhibit Books and Witness Lists are due on September 19, 2023, which is six (6) business days from today. Any extension would significantly narrow the preparation time between discovery compliance and hearing, resulting in significant and material prejudice in its ability to prepare for hearing.”
Via email on September 11, 2023, and formally on September 15, 2023, Parents filed a Request to Postpone Hearing (Postponement Request) citing as grounds thereof the desire to engage in further resolution discussions and participate in a Pre-Hearing Conference. The District did not object to the Postponement Request.
Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, Parents’ Extension Motion is ALLOWED. Parents’ Postponement Request is also ALLOWED.
RELEVANT FACTS[1] AND PROCEDURAL HISTORY:
- Student is a fourth-grade resident of Attleboro, Massachusetts. Student is eligible for special education services under the primary disability category of Communication.
- On or about December 2022, Parents requested, and the District agreed to fund in full a neuropsychological assessment by the Integrated Center for Child Development (“ICCD”), at a cost above the state rate, in which Student subsequently participated.
- On June 30, 2023, Parents filed the instant appeal seeking a finding that the IEE’s diagnoses and recommendations are appropriate and should be incorporated into the currently-proposed IEP; specifically, “emotional should be added as an educational impairment” and “goals and direct services should be added for executive functioning, social/emotional functioning and social skills.”
- On August 9, 2023, the District served its First Set of Interrogatories and First Request for Production of Documents to Parents. Parents did not raise any objections to those requests or produce any documents or responses.
- On September 8, 2023, Parents filed the instant Extension Motion.
- The discovery deadline expired on September 11, 2023.
- The Hearing is scheduled to begin on September 26, 2023.
- Via email communication on September 8 and 11, 2023, Parents requested a Pre-Hearing Conference in this matter.
LEGAL STANDARDS:
Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01.
1. Extensions to Discovery Deadlines.
Rule V of the BSEA Hearing Rules governs the discovery process before the BSEA. Rule V(A) advises that “the parties are encouraged to exchange information cooperatively and by agreement prior to the hearing.” Additionally, parties can request of other parties that they produce documents or answer up to 25 interrogatories within thirty (30) calendar days of being served such requests, unless a Hearing Officer orders otherwise.[2] Objections to any discovery requests can be made within ten (10) calendar days of service of the request, or parties can move for a protective order within that timeframe as well.[3] 801 CMR 1.01(8)(i)[4] authorizes parties who do not receive some or all the discovery responses or answers requested to file a Motion for an Order Compelling Discovery.[5]
Although the BSEA Hearing Rules do not address motions seeking extensions to discovery deadlines, 801 CMR 1.01(4)(e) states the “Presiding Officer may, for good cause shown, extend any time limit contained in 801 CMR 1.00, unless otherwise restricted by law. All requests for extensions of time shall be made by motion before the expiration of the original or next previous extended time period.”[6] Moreover, pursuant to Fed. R. Civ. Pro. 6(b)(1), in the ordinary course, a litigant who seeks an extension of time must show good cause for the desired extension.[7] In contrast, where “the litigant is faced with an expired deadline, more is required: she must show that her failure to request an extension in a timeous manner constitutes excusable neglect.”[8]
2. Postponement of Hearing Dates.
BSEA Hearing Rule III governs requests for postponement. Pursuant to this Rule, a party may request postponement of a hearing at least 6 business days before the scheduled hearing date, and the Hearing Officer may grant this request for good cause.[9] The decision whether to postpone a hearing is within the discretion of the Hearing Officer, who must give serious consideration to opposition to a request. Similarly, 801 CMR 1.01(7)(d) states that
“[f]or good cause shown a scheduled hearing may be continued to another date:
1. by agreement of all Parties with the permission of the Presiding Officer, provided the Presiding Officer receives a letter confirming the request and agreement before the hearing date; or
2. by written motion to continue made by a Party at least three days prior to the hearing date; or
3. by the Presiding Officer on his or her own motion or upon a motion to continue made at the scheduled hearing.”
Caselaw further demonstrates that whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and his decision will be upheld absent an abuse of that discretion.[10] However, such discretion is not unfettered.[11] In considering a request for a continuance, a judge should consider whether the failure to grant a continuance “would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice.”[12]
APPLICATION OF LEGAL STANDARDS AND CONCLUSIONS:
After consideration of the relevant procedural history and the applicable legal standards delineated supra, I find it is appropriate to ALLOW Parents’ Extension Motion. I also find it appropriate to ALLOW Parents’ Postponement Request.
Here, Parents filed their request for additional time to comply with discovery shortly before the expiration of the discovery deadline. As grounds thereof, they cite family illness. In light of Mother’s illness considered in tandem with the fact the request was made prior to the expiration of the discovery deadline, I find that Parents have articulated good cause for both their Extension Moton and Postponement Request.[13] Moreover, as Parents have asked to postpone the Hearing until October 25 and 26, 2023, a short extension to comply with discovery will not prejudice the District. As such, Parents’ Extension Motion is ALLOWED, and the discovery deadline is extended until the close of business day on September 25, 2023. Parents’ request to postpone, grounded in Mother’s illness and Parents’ desire to engage in further resolution discussions, is also ALLOWED for good cause.[14]
ORDER:
Parents’ Extension Motion is hereby ALLOWED. Parents’ Postponement Request is also ALLOWED.
The Parties understand that this extends the 45 day IDEA timeline and delays issuance of the Decision.
Accordingly, the matter will proceed as follows:
- The discovery deadline is extended until the close of business day on September 25, 2023.
- A Pre-Hearing Conference in this matter will take place via a virtual platform on September 26, 2023 at 11:00AM.
- A Hearing in this matter will take place via a virtual platform on October 25 and 26, 2023. It will begin at 9AM and conclude at 5PM, daily.
- Exhibits and witness lists are due by the close of business day on October 18, 2023.
So Ordered by the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: September 15, 2023
[1] The statements of fact are made for the purposes of this Ruling only and are subject to change in future rulings.
[2] See Rule V(B)(1) and (2).
[3] See Rule V(C).
[4] Pursuant to the Scope of the Rules section introductory to the Hearing Rules, “Unless modified explicitly by these Rules, hearings are conducted under the Formal Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 et seq.”
[5] In the event an Order is issued granting a Motion to compel, 801 CMR 1.01(8)(i) further authorizes a Hearing Officer, in situations for which good cause does not exist to justify failure to comply with such Order, to issue further orders regarding such failure,
“… as are just, including one or more of the following:
1. An order that designated facts shall be established adversely to the Party failing to comply with the order; or
2. An order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.”
[6] Emphasis added.
[7] Although Hearing Officers are not bound by the Federal Rules of Civil Procedure, they often look to them for guidance.
[8] Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 26 (1st Cir. 2013).
[9] See BSEA Hearing Rule III (A); see also 34 CFR 300.515.
[10] See, e.g., Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307, 565 N.E.2d 1205 (1991); Caira v. Zurich Am. Ins. Co., 91 Mass. App. Ct. 374, 384, 76 N.E.3d 1002, 1011 (2017); In re: Quinn, 54 Mass. App. Ct. 117, 120, 763 N.E.2d 573, 577–78 (2002).
[11] See, e.g., Commonwealth v. Super, 431 Mass. 492, 496, 727 N.E.2d 1175 (2000); Commonwealth v. Clegg, 61 Mass.App.Ct. 197, 200, 808 N.E.2d 818 (2004); Com. v. Burston, 77 Mass. App. Ct. 411, 417, 931 N.E.2d 1019, 1024 (2010).
[12] Com. v. Borders, 73 Mass. App. Ct. 911, 912, 900 N.E.2d 117, 119 (2009) (internal quotations and citations omitted).
[13] See 801 CMR 1.01(4)(e); see also Pantano v. Bartolini, No. 97-4810, 1999 WL 515753, at *2 (Mass. Super. May 4, 1999) (“I recognize, as did the judge who entered the prior orders in this case, that discovery, for one reason or another, sometimes does not proceed as smoothly as one would hope and that a variety of circumstances—including, but surely not limited to, family illness—inevitably occur and must be accommodated by any system having justice as its goal”).
[14] BSEA Hearing Rule III and 801 CMR 1.01(7)(d).