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Somberg v. Utica Community Schools

United States District Court, E.D. Michigan, Southern Division

December 27, 2017

JEANNINE L. SOMBERG et al., Plaintiffs,



         On December 6, 2017, the court circulated to the parties a proposed compensatory education plan prepared by Special Master Cynthia Raymo. The court held a status conference on December 15, 2017, on the record, where counsel for both sides sought clarification from the Special Master regarding her proposed plan. Defendant Utica Community Schools timely submitted objections, combined with a motion for relief from judgment, on December 20, 2017. (Collectively, “Objections.”) Plaintiffs have filed a response Defendant's Objections, and the court finds that no further hearing is necessary. See E.D. Mich. LR 7.1(f). For the reasons stated below, the court will overrule the objections and deny the motion for relief from judgment.

         I. BACKGROUND

         Through previous orders, the court has held that Utica Community Schools (the “District”) failed to provide Dylan Somberg, then a mentally disabled teenager, with the requisite “free appropriate public education” (“FAPE”) that he was owed under Section 1412(a)(1)(A) of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The court concluded that it would not defer to the “forward looking” remedies afforded by the Administrative Law Judge, because they were “designed to curtail further damage, but [failed] to address the need to compensate Dylan for education he was not provided in the past.” (Dkt. #30, Pg. ID 2231-32.) Specifically, it stated that Utica Community Schools “shall pay for compensatory education . . . in a manner and amount to be determined by further proceedings before this court.” (Dkt. #30, Pg. ID 2235.)

         A bench trial to resolve this question began on September 28, 2016 and the presentation of evidence concluded on October 3, 2016. On January 20, 2017, the court issued an order granting to Plaintiff “approximately 1, 200 hours of private tutoring” and “one year of transition planning . . ., possibly, but not necessarily, at Farber Soul Center.” (Dkt. #90, Pg. 3673.) The court further held that this compensatory education would be paid for by Defendant, though the details of the implementation would be determined through the use of a Special Master who could better determine the type of education needed under the evolving and particular needs of Plaintiff. The court stated that “[b]earing in mind that some degree of cooperation between the parties will be necessary to obtain the best results, this court may order an assessment of Dylan's progress following this year of tutoring and transition services.” (Dkt. #90, Pg. 3674.)

         In connection with this order, the court observed:

The question of the amount and nature of compensatory education that Defendant must supply to Dylan admits of no easy resolution. However, it is very clear to the court that the contentious relationship that has developed between the parties over the course of this case's long history make Defendant's direct participation in supplying any such education inappropriate. At the close of the presentation of evidence, for example, the court observed that Dylan's mother became “visibly upset” during her testimony that recounted Dylan's treatment by Defendant, her efforts to rectify what she viewed as shortcomings in this treatment, and Dylan's own statements reflecting his feelings about the prospect of additional education from Utica Community Schools. (Dkt. #82, Pg. ID 3480-81.) The fact that the District has sued Mrs. Somberg personally (though unsuccessfully) adds weight to the court's conclusion in this regard.

(Dkt. #90, Pg. 3670.)[1]

         Thereafter, the court appointed as Special Master Cynthia Raymo, who spent approximately three months assessing this case, visiting possible education facilities for Plaintiff, and preparing her recommendation for the court. After her considerable efforts and review of this case, she submitted her proposed compensatory education plan to the court (“the Plan”). The Plan provides for 362 hours of private tutoring in 2018, and one year of transition services, which will be implemented through the use of a Transition Navigator.[2] The Plan also provides for future adjustments, recognizing that its effectuation is a dynamic process, and some adjustments will be, if not inevitable, certainly likely. The Plan leaves open the question of the remaining 838 hours of court-ordered tutoring and, in the court's estimation, focuses primarily on the provision of transition services to Plaintiff, in recognition of his current age, needs, and career aspirations.

         Defendant has submitted objections to virtually every aspect of the Plan, including its very existence. Plaintiff does not appear to object to the Plan, but specifically reserves the right to seek compensation for the 838 unused hours of court-ordered tutoring.


         An award of compensatory education is an equitable remedy granted by the court as it finds appropriate. Bd. of Educ. of Fayette Cty., Ky. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007). An appropriate award of compensatory education is “relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.” Id. (quoting Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994)). Given the timing of the Special Master's submission and the subsequent objections, the court has sought to resolve the remaining issues prior to the 2018 calendar year. As such, each objection will be addressed briefly-but decisively-below. Expeditious treatment is appropriate given that the objections are largely a regurgitation of previous arguments submitted by the District in seeking to avoid liability. It seems to the court that the objections are not precisely tailored to the implementation of the plan presented here, but more generally directed at the implementation of a plan at all. In any event, the court will overrule them and order the Special Master's Plan to be put in effect.

         A. Objection No. 1: “The Special Master confirmed the District's position that the Parent's unilateral decision to remove the Student from the District in October 2015 and place him in a private placement left the parties, this Court and the Special Master unable to determine whether the Student experienced an educational loss arising from or relating to the September 2012 IEP.”

         This objection is little more than an attempt to set aside the court's ruling as to the District's liability. Indeed, combined within this objection is a procedurally-improper “motion for relief from judgment” under Federal Rule of Civil Procedure 60(b). Any such motion is untimely. It is more easily understood as a motion for reconsideration. But, such motions for reconsideration under the local rules must be brought within 14 days of the order being challenged and must not “merely present the same issues ruled upon by the Court, either expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). Defendant's motion here is untimely and simply rehashes old arguments already ruled upon. Defendant has failed to “demonstrate a palpable defect by which the Court and the parties and other persons entitled to be heard on the motion have been misled” and also failed to show that “correcting the defect will result in a different disposition of the case.” Id.

         Defendant seeks to avoid the local rules by relying on Federal Rule 60, but here, too, it is misguided. Defendant submits that it relies on “newly discovered evidence” in the form of “testimony” of the Special Master which purportedly confirmed the opinion of Defendant's expert, presented at trial, that “it was impossible, in October 2016, to determine the effect of an IEP error or errors that had occurred in 2012 . . . because so much time had passed since 2012 and because the Parent refused to permit the District to evaluate the Student in 2016.” (Dkt. # 131, Pg. ID 4349.) First, it is hard to conceive that “newly discovered evidence” can take the form of testimony which purportedly confirms prior testimony. There is nothing new in Defendant's theory. The court heard it, considered it, rejected it. Second, there is no newly discovered “evidence.” Defendant grounds the motion on the purported existence of “testimony” that was not testimony. It is no more than Defendant's imaginative (not to say misleading) interpretation of the Special Master's explanations-not given under oath-during an on the record status conference designed to provide clarity for the parties in serving the best interest of Dylan. Moreover, the court's recollection of the Special Master's explanation in this regard does not match that of Defendant's. The Special Master indeed stated that assessing Plaintiff and Plaintiff's progress was difficult, and would necessarily ...

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