UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
JOHN DOE, by and through his parent, JANE DOE Plaintiffs, Civil No. 3:11cv291 (JBA) v.
EAST LYME BOARD OF EDUCATION Defendant. January 17, 2019
RULING ON PLAINTIFFS’ MOTIONS FOR RECONSIDERATION AND TO AMEND THE COMPLAINT
Plaintiffs are represented in this action by Attorney Eileen Hagerty and associates at
Kotkin, Crabtree & Strong, LLP. Nonetheless, Ms. Doe filed a Motion to Amend the Complaint
[Doc. # 239] pro se, which the Court denied without prejudice because the “law does not entitle a
party to represent himself or herself while also appearing through an attorney.” (Order Denying
Pls.’ Mot. to Amend [Doc. # 240].) Ms. Doe subsequently filed a Motion for Reconsideration’ of
that ruling [Doc. # 241] and asked the Court to grant the underlying motion to amend. That
motion for reconsideration was similarly filed pro se, despite Plaintiffs’ continued representation
by Attorney Hagerty.
I. Motion for Reconsideration
Ms. Doe requests permission to represent herself for purposes of filing a motion to amend
the complaint while generally maintaining Attorney Hagerty’s representation because Ms. Doe
“irrefutably need([s] her to file the attorney fee petition” and “cannot retain other coun|sel] this late
in the proceedings.” (Mot. for Reconsid. at 2.) Ms. Doe argues that to prevent her from filing the
1 As judgment has entered in this case, (Judgment [Doc. # 248]), the Court will treat Ms. Doe’s motion as one for relief from judgment under Fed. R. Civ. P. 60.
motion to amend pro se, when combined with her need for Attorney Hagerty’s services for other
purposes and Ms. Hagerty’s “steadfast[] resolute[ion] that she will not represent [Ms. Doe] in this
claim,” will effectively deprive Ms. Doe of the opportunity to pursue the claim she seeks to add to
the complaint—a claim for tuition reimbursement for John Doe’s “stay put placement” at Solomon
Schechter Academy. (Id. at 1-2.)
Permitting such hybrid representation—in which a party is “represented by counsel from
time to time, but may slip into pro se mode for selected presentations”—is within the Court’s
discretion. United States v. Rivernider, 828 F.3d 91, 108 (2d Cir. 2016) (“We do not suggest that
district courts lack discretion to hear from a represented defendant personally, nor do we criticize
the district court for allowing Rivernider to make his pro se submission.”). Therefore, and in the
interest of deciding Ms. Doe’s motion to amend on the merits, the Court hereby GRANTS
Plaintiffs’ Motion for Reconsideration [Doc. # 241] and will address Ms. Doe’s Motion to Amend
the Complaint.
II. Motion to Amend the Complaint
Leave to amend pleadings should be “freely give[n] ... wliet justice so requires,” Ted. R.
Civ. P. 15(a){2), and courts may not decline leave to amend “[i]n the absence of any apparent or
declared reason” tor such denial. kKoman v. Davis, 371 U.S. 178, 182 (1962). However, where the
requested amendment would be futile, leave to amend may be denied. See Foman, 371 U.S. at 182
(listing “futility of amendment” among possible justifying reasons for denial of leave to amend);
National Credit Union Admin. Board v. US Bank, N.A., 898 F.3d 243, 256 (2d Cir. 2018) (listing
“futility” among reasons to deny a Rule 15 motion).
Ms. Doe moves for leave to amend the Complaint [Doc. # 1] to “seek tuition
reimbursement, interim funding and school transportation expenses under” the stay-put
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pendency provision. (Mot. to Amend at 1.) She argues that Solomon Schechter Academy was the
proper stay-put placement, and that therefore Plaintiffs were entitled to tuition and travel
reimbursement for John Doe’s attendance at that school during the pendency of these proceedings.
(Id. at 4.) However, because this argument is contrary to the 2008-2009 IEP (the stay-put
placement) and the Second Circuit’s opinion in this case, Ms. Doe’s requested amendment to the
complaint would be futile.
The 2008-2009 IEP, as amended in February 2009, is John Doe’s stay-put placement. Doe
v. East Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (“As the district court determined, the
Student’s stay-put placement was the placement described in the 2008-2009 IEP (as amended in
February 2009) .. .”). Therefore, under 20 U.S.C. 1415(j), Defendant’s stay-put obligation was to
“continue funding whatever placement was ... agreed upon” for John Doe in that IEP during the
pendency of this proceeding. Id. (internal quotation omitted).
The 2008-2009 IEP, as amended in February 2009, indicated that John Doe would attend
Solomon Schechter Academy “at parental expense” and would “receive related services at the
expense of the Board.” Id. at 454. Therefore, that arrangement was John Doe’s stay-put placement
which the Board was obligated to maintain during these proceedings. Because the operative IEP
did not require Defendant to pay John Doe’s tuition at Solomon Schechter, Plaintiffs were not
entitled to reimbursement for that tuition under the stay-put provision.
Though it did not directly address a request for tuition reimbursement via the stay-put
provision, the Second Circuit’s opinion in this case also indicates that Plaintiffs were not entitled
to tuition reimbursement under the stay-put provision. Without mentioning that she also paid
John’s tuition throughout the litigation, the Court of Appeals explained Defendant's violation of
the stay-put provision by citing that “[w]hile paying for the related services herself, the Parent
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maintained that continuous placement during the pendency of this litigation.” Id. (emphasis
added). In ordering that Plaintiffs were entitled to the “full value of the stay-put services” which
should have been provided, the Second Circuit again indicated that no tuition reimbursement was
available under the stay-put provision. Id. at 457 (holding that, in order to meet the Board’s
obligations under the stay-put provision, “the Board owes reimbursement in the amount the
Parent expended for the services the Board was required to provide, plus compensatory education
to fill the gap of required services that the Parent did not fund,” without mentioning any
entitlement to tuition reimbursement as part of the “full value of the stay-put services” to which
Plaintiffs are entitled) (emphasis added). The Second Circuit then directed this Court to fashion
relief for the Defendant’s violation of the stay-put provision based upon “the total value of the
related services specified in the amended 2008-2009 IEP,” again without any mention of
reimbursement for the tuition paid by Ms. Doe. Id. (emphasis added). Finally, the Second Circuit's
opinion indicated that the stay-put provision requires Defendant to “continue funding” the agreed-
upon services, not to force Defendant to begin paying for services which were funded by the parent
under the operative IEP. Id. at 452.
Because under the terms of the operative 2008-2009 IEP, as amended in February 2009,
and the opinion of the Second Circuit Ms. Doe is not entitled to reimbursement for John’s tuition
at Solomon Schechter under the stay-put provision, her requested amendment of the complaint to
seek such reimbursement would be futile. On reconsideration, Ms. Doe’s pro se Motion to Amend
the Complaint is therefore denied.
III. Conclusion
For the foregoing reasons, Plaintiffs’ Motion for Reconsideration [Doc. # 241] is
GRANTED. On reconsideration, Plaintiffs’ Motion to Amend the Complaint [Doc. # 239] is
DENIED.
ATISSO ORDERED. S\
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on Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 17th day of January 2019.