Johnson et al v. Boston Public Schools et al

First MOTION to Dismiss for Lack of Prosecution

D. Mass.September 30, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ____________________________________ JOHNSON, ET AL, ) ) Plaintiffs, ) ) v. ) ) Docket No: 1:15-CV-10026-ADB BOSTON PUBLIC SCHOOLS ET AL, ) ) Defendants. ) ___________________________________ ) DEFENDANT, BOSTON PUBLIC SCHOOL’S MOTION TO DISMISS FOR FAILURE TO SERVE AND PROSECUTE NOW COMES the Defendant, Boston Public Schools, (hereinafter, “BPS”), and moves, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 4.1 for the Local Rules of the District Court of Massachusetts, to dismiss the Plaintiffs, Nicole Johnson’s, et al (hereinafter, “Plaintiffs”) Second Portion of the Bifurcated Complaint (hereinafter, “Second Bifurcated Complaint”) in its entirety with prejudice. As grounds therefore, BPS states that the Plaintiff failed to serve the Second Bifurcated Complaint by April 21, 2016, and therefore, has failed to prosecute her claim(s) against BPS. A) Brief Procedural History 1) On January 5, 2015, the Plaintiffs filed a Complaint with this Court seeking to overturn a decision issued by the Bureau of Special Educations Appeals ( hereinafter, “BSEA”). Plaintiffs’ initial pleadings were filed Pro-Se. 2) On May 26, 2015, the Court, Burroughs, J. allowed the Plaintiffs to amend the original Complaint and they were ordered to Amend her complaint no later than June 26, 2015. On July 1, 2016, Plaintiffs amended the Complaint to include monetary damages as part Case 1:15-cv-10026-ADB Document 140 Filed 09/30/16 Page 1 of 4 of the relief sought as well as a request for a jury trial. Although Plaintiffs had filed the original Complaint in January and later amended it in July, Plaintiffs intentionally waited until September 1, 2015 to serve BPS, just days before the commencement of the school year. 3) On September 18, 2015, the Court, Burroughs, J. appointed Michael C. Walsh of Walsh & Sons as counsel for the Plaintiffs. 4) On September 30, 2015, BPS filed a Motion to Dismiss for Failure to State a Claim. Additionally, on October 16, 2015, BPS filed a Motion to Dismiss for Improper Service of Process. 5) On November 10, 2015, the Court, Burroughs, J. allowed BPS’ Motion to Dismiss for Improper Service of Process of the original complaint. However, the Court ordered the Plaintiffs to file another amended complaint and to bifurcate the claims arising for monetary damages from the claims regarding the Appeal of the BSEA’s administrative decision under the Individuals with Disabilities Education Act (hereinafter, “IDEA”). 6) On November 13, 2015 the Plaintiffs filed its Bifurcated Complaint Part 1 which addressed the IDEA claims. 7) On December 21, 2015, BPS filed a Motion for Summary Judgment specifically addressing the Plaintiff’s attempt to overturn the BSEA hearing officer’s decision. On August 17, 2015, the Court, Burrough, J. allowed BPS’ Motion for Summary Judgment regarding the Plaintiff’s claims under the IDEA. See Docket Entry No. 132. 8) On December 22, 2015, the Plaintiffs filed with the Court the “Second Portion of the Bifurcated Complaint” which addresses the Plaintiffs’ claim for monetary damages. On Case 1:15-cv-10026-ADB Document 140 Filed 09/30/16 Page 2 of 4 December 31, 2015, the Summons was issued and the Plaintiffs were directed to “serve it in accordance with Fed. R. Civ. P. 4 and LR 4.1” See Docket Entry No. 95. B) The Plaintiffs’ Second Bifurcated Complaint should be dismissed for lack of service and prosecution Plaintiffs have failed to serve BPS with the Second Bifurcated Complaint on a timely basis. Pursuant to LR 4.1 (a): Any summons not returned with proof that it was served within one hundred twenty (120) days of filing of the complaint is deemed to be unserved purpose of Fed.R.Civ. P. 4(m). Plaintiffs should have served BPS by April 21, 2016. To date BPS has not been served with said Complaint and Plaintiffs’ time to serve BPS has now expired. Plaintiffs filed the Second Portion of the Bifurcated Complaint on December 22, 2015 and the 120 days have lapsed. Plaintiffs have a long history of failing to meet service requirements and deadlines and have again failed to comply with the service requirement for the instant Complaint. WHEREFORE, the Defendant, Boston Public Schools respectfully requests this Honorable Court DISMISS WITH PREJUDICE the Plaintiff’s Second Portion of the Bifurcated Complaint. Respectfully submitted, Defendant, City of Boston Public Schools, By its Attorney, Corporation Counsel Eugene O’Flaherty, Esq. /s/ Karen G. Castaneda Karen G. Castaneda, BBO#662080 Assistant Corporation Counsel Boston Public Schools Office of Legal Advisor 2300 Washington Street Boston, MA 02119 Case 1:15-cv-10026-ADB Document 140 Filed 09/30/16 Page 3 of 4 Date: September 30, 2016 CERTIFICATE OF SERVICE I, Karen G. Castaneda, hereby certify that this Motion, filed on September 30, 2016, was electronically served upon all registered ECF/CM participating attorneys including Plaintiffs’ counsel, Attorney Walsh of Walsh & Son and BSEA’s counsel, Attorney Kobick from the Office of the Attorney General. /s/ Karen G. Castaneda Case 1:15-cv-10026-ADB Document 140 Filed 09/30/16 Page 4 of 4