Osseo Area Schools, Independent School District No. 279 v. A.J.T.

District Court, D. Minnesota·Decided November 18, 2022·No. 0:21-cv-01453·Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

OSSEO AREA SCHOOLS, INDEPENDENT SCHOOL DISTRICT NO. 279,

Plaintiff,

v. MEMORANDUM OF LAW AND ORDER Civil File No. 21-1453 (MJD/DTS) A.J.T., by and through her parents, A.T. and G.T.,

Defendant.

Christian R. Shafer, Elizabeth M. Meske, and Laura Tubbs Booth, Ratwik, Roszak & Maloney, PA, Counsel for Osseo Area Schools, Independent School District No. 279.

Amy J. Goetz, School Law Center, LLC, Counsel for A.J.T.

I. INTRODUCTION This matter is before the Court on Defendant’s Motion for an Order to Show Cause Why Plaintiff Should Not be Found in Contempt. (Doc. 69.) Specifically, AJT seeks an order requiring Osseo Area Schools Superintendent Cory McIntyre to appear in person to show cause, if any, as to why an order should not be entered (1) adjudging the Osseo Area Schools and McIntyre guilty of failing and refusing to obey the Court’s Order affirming the Court’s September

13, 2022 Order in this case; (2) requiring the District to pay a fine of $5000 per day until it complies with the Order; and (3) committing McIntyre to confinement until the District complies with the Order.

II. BACKGROUND The basic facts of this case are well-known to the Parties. The facts relevant to this motion are that AJT’s April 24, 2017 IEP, which included a 4.25-

hour school day that begins at noon and ends at 4:15 became AJT’s “stay put IEP” when this case was being litigated and followed her from grade school to

middle school where AJT’s school day was extended beyond the school day of her non-disabled peers. AJT is now in high school where the school day ends at 2:00 p.m. At the time AJT filed her motion, the District had been unable to find a

licensed teacher for AJT from 2:00 to 4:15 p.m. However, on November 14, 2022, a licensed teacher and paraprofessional team began teaching Monday, Tuesday,

and Wednesday during these hours and the District continues to look for qualified professionals to staff this period of time on Thursdays and Fridays. (Doc. 73 at 5.)

On April 21, 2022, after an administrative hearing, an ALJ found, in part, that AJT “established that 495 hours of instruction would fairly remediate the denial of a FAPE” and that, among other things, adding “instruction at home

that includes discrete trial training interventions between 4:30 p.m. and 6:00 p.m. each school day” would “result in an educational program that is responsive to her individual needs and [is] appropriately ambitious in light of her

circumstances.” (ALJ Order Conclusions ¶¶ 14-15.) The “stay put” IEP was in place at the time the ALJ issued his order.

On September 13, 2022, the Court affirmed the ALJ’s Order, stating that “extending [ALJ’s] instructional day until 6:00 p.m. and including compensatory hours of instruction as found by the ALJ is the appropriate remedy.” (Doc. 61 at

65-66.) On November 17, 2022, the Parties filed a document called “Stipulation of

the Parties to Partial Resolution.” (Doc. 78.) The stipulation states that the District is now providing services to AJT from 2:00 to 4:30 p.m. on Mondays, Tuesdays, and Wednesdays, and has agreed to “provide compensatory

education services for any missed services from September 6, 2022 to November 11, 2022, and will agree to provide compensatory services for any missed services

for any time A.J.T. is provided less than full services from noon to 6:00 p.m.” (Id. at 1.) Accordingly, the Parties request that Defendant’s motion be interpreted to only include claims for failure to provide services between 2:00 and 4:15 p.m. on

Thursdays and Fridays after November 11, 2022. (Id. at 2.) The Court will abide by the Parties’ stipulation and address Defendant’s Motion for an Order to Show Cause Why Plaintiff Should Not be Found in

Contempt as a motion that addresses only the District’s failure to provide services between 2:00 and 4:15 p.m. on Thursdays and Fridays after November

11, 2022. III. AJT’S ARGUMENTS At the time AJT first filed her motion, she asserted that beginning this

school year, the District failed to provide her a full school day and had dismissed her at 2:15 every day since the beginning of the school year. (Doc. 69 at 2; Doc. 70 (AT Aff.) ¶¶ 8-10.) AJT stated that two paraprofessionals who currently work

with her were willing to provide additional support if the District will hire them to do so. (Doc. 70 (AT Aff.) ¶ 16.) She noted that she is now receiving fewer

hours of education than when this litigation began. She now confines those assertions to Thursdays and Fridays. AJT argues that it is appropriate to hold a chief operating officer in

contempt for violating a court order where he had notice of the court’s order and responsibility to comply with it even though he was not personally named in the litigation or order. (Doc. 69 at 5 (citing Chicago Truck Drivers v. Bhd. Labor

Leasing, 207 F.3d 500, 507 (8th Cir. 2000).) Therefore, AJT asks the Court for an order requiring McIntyre to appear in person to show cause, if any, as to why an order should not be entered adjudging the Osseo Area Schools and McIntyre

guilty of failing and refusing to obey the Order issued by the Court, and further, why the District should not be fined per diem a substantial amount and why

McIntyre should not be committed to confinement until compliance with the order. (Id. at 1.) IV. DISCUSSION

A. Civil Contempt Standard In a civil contempt proceeding, the moving party must prove, by clear and convincing evidence, that the person allegedly in contempt violated the court’s

order. Chicago Truck Drivers, 207 F.3d at 505. See also 18 U.S.C. § 401 (“A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . .

[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.”). “However, the moving party does not need to show that the

violation of the court’s order was willful.” Faegre & Benson, LLP v. Purdy, 367 F. Supp. 2d 1238, 1243 (D. Minn. 2005) (citations omitted). Once the moving party has met its burden, the burden shifts to the

nonmoving party to show inability to comply. Chicago Truck Drivers, 207 F.3d at 505. To demonstrate inability to comply, nonmoving parties must establish “(1) that they were unable to comply, explaining why categorically and in detail,

(2) that their inability to comply was not self-induced, and (3) that they made in good faith all reasonable efforts to comply.” United States v. Santee Sioux Tribe

of Neb., 254 F.3d 728, 736 (8th Cir. 2001) (citation omitted). “Civil contempt may be employed either to coerce the defendant into compliance with a court order or to compensate the complainant for losses

sustained, or both.” Chicago Truck Drivers, 207 F.3d at 505. The Court may levy a fine against the party in contempt, which is payable to the moving party or to

the Court or may order imprisonment. Id. In order for an order of incarceration to constitute civil, and not impermissible criminal, contempt, the defendant held in contempt must be able to obtain release from custody by purging himself of

contempt: in other words, the defendant “carries the keys of his prison in his own pocket.” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821,

828 (1994). B. Analysis Although AJT asserts that the District does not take the Court’s Order

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