Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carr v. Department of Public Instruction

United States District Court, W.D. Wisconsin

February 22, 2018




         On behalf of their son, “S.C., ” plaintiffs Melinda J. and Alistair P. Carr are appealing from the denial of their claims against the New Glarus School District under the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. More specifically, plaintiffs are appealing from Administrative Law Judge Sally Pederson's April 12, 2017, decision denying their son's claim to certain IDEA benefits following a three-day due process hearing. (See Third Am. Compl. (dkt. #22) at 1-2.) In response, the two defendants in this law suit, the New Glarus School District (“District ”) and the Department of Public Instruction (“DPI”), filed separate motions to dismiss to plaintiffs' third amended complaint. (Dkt. ##25, 27.) The District moves to dismiss under Federal Rule of Civil Procedure 12(b)(5), challenging plaintiffs' service of process (dkt. #27), while DPI moves to dismiss for failure to state a claim and on exhaustion grounds (dkt. #25). For the following reasons, the court will grant DPI's motion, but deny the District's motion pending plaintiffs' proper service of process on the District to avoid dismissal from this entire lawsuit.


         For purposes of defendants' pending motions, the court need only recite the procedural aspects of the due process hearing request, the allegations of the Carrs specific to DPI's claimed involvement, and how the Carrs served the District with the summons and complaint.

         A. Due Process Hearing

         On October 14, 2016, the Carrs submitted to DPI their request for a due process hearing against the District based on its alleged mishandling of S.C.'s educational needs during the 2015-2016 school year in violation of the IDEA. After receiving the request, DPI referred it to the State of Wisconsin Division of Hearings and Appeals (“DHA”). The DHA in turn assigned the matter to ALJ Pederson as Case No. DPI-16-0027.

         ALJ Pederson conducted a due process hearing in the case on January 12, February 22 and February 23, 2017. The parties to the hearing were the Carrs and the District. (DPI was not a listed party.) On April 12, 2017, the ALJ issued a decision finding that: (1) from January to May 2016, the District provided S.C. with a free, appropriate public education (“FAPE”) guaranteed by the IDEA, despite neither offering a math class appropriate to meet S.C.'s individual needs, nor paying the cost of S.C. taking a needs-appropriate math class at the University of Wisconsin-Madison; and (2) the District still provided FAPE during the 2015-2016 school year by not implementing various provisions of his individualized education program (“IEP”). (ALJ. Dec. (dkt. #22-1) at 2, 13-14, 16-17.)

         B. DPI

         The Carrs only allegations related to DPI are as follows:

8. The DPI is responsible for ensuring that school districts: comply with federal law, Individuals with Disabilities Education Act (IDEA); and provide disabled students with a free and appropriate public education (FAPE) as provided by 34 Code of Federal Regulations (CFR) § 300.17.
9. The DPI has not enforced IDEA and FAPE in this matter.

(3d Am. Comp. (dkt. #22) ¶¶ 8-9.) Other than those two paragraphs, the Carrs include no allegations related to the DPI.

         C. Plaintiffs' service on the District

         The Carrs filed their original complaint in this lawsuit on May 26, 2017, and on July 11, 2017, they filed the affidavit of their process server, Gregory Kowal. In his affidavit, Kowal avers that he received the complaint from Melinda Carr, directing that he serve “Attorney Lori Lubinsky, Axley Brynelson, LLP, 2 E. Mifflin St., #200, Madison, WI 53703.” (Dkt. #5-1, at 2.) Kowal further avers that on July 7, 2017, the Summons and Complaint were served upon Kathy Richardson, a legal assistant and employee authorized to accept service on behalf of Lubinsky.

         The Carrs amended their complaint multiple times after service, filing their First Amended Complaint on August 11 (dkt. #18), their Second Amended Complaint on August 15 (dkt. #19), and their Third Amended Complaint (the now operative complaint in this lawsuit) on August 16, 2017 (dkt. #22). The certificates of service accompanying each amended complaint indicated that they, too, were served on Attorney Lubinsky, albeit by the United States Postal Service. (Dkt. ##18-1, 19-1, 22-2.) In response, the District has filed answers to the Complaint, Second Amended Complaint and Third Amended Complaint on July 28, August 15, and August 21, 2017, respectively. As its first affirmative defense in each answer, the District claimed that plaintiffs ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.