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Swope v. Oneida School District No. 351

United States District Court, D. Idaho

September 1, 2017

TIMOTHY SWOPE and MARLA SWOPE, individually and on behalf of B.S., Plaintiffs,
v.
ONEIDA SCHOOL DISTRICT NO. 351, a county school district; DAVID RISENMAY, in his individual and official capacities; and TERRI SORENSEN, in her individual and official capacities, Defendants.

          OPINION AND ORDER REGARDING PLAINTIFFS' MOTION FOR LEAVE TO AMEND

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE

         This case, on behalf of a disabled elementary school student, is before me on the plaintiffs' August 1, 2017, Motion For Leave To Amend. Somewhat more specifically, the proffered amendment is a Second Amended Complaint adding a new plaintiff, a new defendant, and a new claim. The defendants filed their Objection on August 9, 2017, and the plaintiffs filed their Reply on August 24, 2017.

         I. INTRODUCTION

         A. Background

         In their Amended Complaint, Timothy and Marla Swope allege, on behalf of their son, BS, that BS is a wheelchair-bound student with physical and cognitive disabilities entitled to a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). The defendants are the Oneida School District No. 351, David Risenmay, the Superintendent for the District, and Terri Sorensen, the Special Education Director for the District. The Swopes assert several causes of action, arising, inter alia, from lack of appropriate transportation and bathroom facilities for BS, lack of facilities for BS to access the second floor and other portions of the school building, and from an accident on or about September 8, 2014, when BS's wheelchair tumbled off a sidewalk that lacked a safety bar or safety rail.

         More specifically, the Swopes' first cause of action, against the District, is for violations of the IDEA in failing to maintain a least restrictive environment (LRE), adequate transportation services, or a safety plan for BS, failure to provide a full-time aid for BS, and improper removals of BS from the regular education environment. Their second cause of action, against all defendants, is for disability discrimination in violation of Title II of the Americans with Disabilities Act (ADA) based on BS's exclusion from and denial of meaningful and safe access to the schools of the District. Their third cause of action, against all defendants, is for violation of the Rehabilitation Act, essentially mirroring their ADA claim. Their fourth cause of action is for “violation of 42 U.S.C. § 1983, ”[1]but is more properly described as a claim of violation of BS's right to equal protection under the Fourteenth Amendment to the United States Constitution.[2]Their fifth cause of action, against all defendants, is for child abuse. Their sixth cause of action, against all defendants, is for intentional infliction of emotional distress.

         On August 1, 2017, the Swopes sought leave to file a Second Amended Complaint, adding Denise Coombs as a plaintiff asserting claims on behalf of her disabled daughter, OC, and also adding as a defendant Kerry Adams, a member of the teaching faculty at the District's elementary school. The Second Amended Complaint alleges that OC is another largely wheelchair-bound elementary school student, one grade behind BS, but less than two months apart in age from BS. It also alleges that OC has suffered from the inaccessibility of parts of the school and injured her leg when she attempted to climb a stairway without adequate facilities. In the Second Amended Complaint, only the Swopes assert an IDEA claim, but Ms. Coombs joins in all of the Swopes' other claims. The Second Amended Complaint also adds a new claim of negligence, “in the alternative, ” against all defendants by all plaintiffs.

         B. Arguments Of The Parties

         The Swopes argue that the proffered amendment is proper under Rule 15 of the Federal Rules of Civil Procedure, because leave to amend should be freely given, when justice so requires. They contend that the claims on behalf of BS and OC are very similar and are probative, together, of the defendants' habitually discriminatory intent toward disabled students attending school in the District. They point out that both children attended the Malad Elementary School; they are close in age and one grade apart; they are both disabled and wheelchair-bound; owing to their disabilities, both have suffered severe physical injuries while at the same school as a result of the school's lack of accommodations; they have both been denied access in and around the same school; and, while at the same school, both were overtly discriminated against on the basis of their disability. They contend that a complete merger of these claims into one action is appropriate under Rule 42(a) of the Federal Rules of Civil Procedure in light of the similarities in their claims and the similarity of the location and witnesses involved.

         In response, the defendants argue that a proffered amendment may be denied when, as here, it is prejudicial to the opposing party. They contend that the proffered amendment is highly prejudicial, because the IDEA claim on behalf of BS has nothing to do with OC, the two students were allegedly injured in two separate incidents in different locations, and the claims of the two families involve two different sets of facts, which will permit introduction of prejudicial evidence that would normally be inadmissible as to one child in a trial involving claims of both children. Indeed, they argue that some of the evidence about specific facilities relevant to one child is completely irrelevant as to the other. They also argue that the undue prejudice is particularly apparent as to the original named individual defendants, who will be subjected to a trial involving evidence of alleged wrongdoing by others towards another child that is irrelevant as to them, and the same would be true as to the new individual defendant as to evidence relevant only to BS. They also contend that, contrary to the Swopes' arguments, there would be, in effect, completely separate sets of records and two sets of witnesses, some of whom have no knowledge or information pertaining to one child or the other. Finally, they contend that, if the amendment is allowed, the new claims of the new plaintiff should not relate back to the time of the filing of the Swopes' original Complaint.

         In reply, the Swopes belatedly argue that permissive joinder of the claims on behalf of OC is appropriate under Rule 20(a)(1) of the Federal Rules of Civil Procedure, because the claims on behalf of both children arise from the same occurrences or series of occurrences. They also argue that the claims on behalf of the two children involve the common question of discriminatory intent. Indeed, they argue that evidence about each child would be admissible as to the other child as Rule 404(b) “me too” evidence. They also contend that the defendants' “relation back” argument is a red herring, because the notices of the claims on behalf of both children were timely and/or that the timing issues on which the defendants rely have nothing to do with the federal claims at issue.

         II. ANALYSIS

A. Applicable Standards

         As a general matter, leave to amend pursuant to Rule 15(a)(2) should be “freely given.” Fed.R.Civ.P. 15(a)(2). As the Ninth Circuit Court of Appeals has explained, In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme ...


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