The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court upon Plaintiffs' motion [Docket Item 45] to hold Defendant in contempt of the Court's November 5, 2007 Opinion and Order (the "November Opinion and Order") [Docket Items 41 and 42]. Plaintiffs argue that Defendant has failed to comply with a provision of the November Opinion and Order requiring Defendant to provide Plaintiff with compensatory education to make up for lost hours of educational programming during the 2005-2006 school year. For the following reasons, the Court finds that Defendant has not fully complied with the requirements of the November Order and is in contempt of that Order, and, as is explained in detail below, will impose coercive civil contempt sanctions in the form of a fine if Defendant's noncompliance persists.
The facts of this case are reviewed in detail in the November Opinion, and a more succinct summary is presented here. L.J. is an autistic child who was previously enrolled in the Audubon Public School system. His parents filed a due process petition pursuant to 20 U.S.C. § 1415(f) with the New Jersey Office of Special Education on behalf of their son, alleging that L.J.'s Individualized Education Plan ("IEP") for the 2005-2006 school year failed to address L.J.'s educational needs. The ALJ determined that Defendant Audubon Board of Education ("Audubon") had failed to provide L.J. with adequate educational programming in the form of Applied Behavior Analysis ("ABA"), and, inter alia, ordered Audubon to provide L.J. with fifteen hours per week of ABA-related services as compensatory education.*fn1
Plaintiffs filed a Complaint with this Court, alleging that Defendant had not complied with the ALJ's order. On November 24, 2006, Plaintiffs moved for an order to show cause asking the Court (1) to issue a preliminary injunction ordering Defendant to comply with the terms of the ALJ's order, and (2) to hold Defendant in contempt of that order. Defendant subsequently moved to dismiss the matter, arguing that this Court lacked subject matter jurisdiction [Docket Item 10], which the Court denied in its Opinion and Order of December 22, 2006 [Docket Items 15 and 16]. The Court also declined to remand the matter back to the ALJ for clarification of his order, instead calling upon Plaintiff "to develop the record in this Court so that a clear command of the ALJ Order emerges." Plaintiff subsequently responded by filing a supplemental brief discussing the requirements of the ALJ's order [Docket Item 17].
In its November Opinion and Order, the Court granted in part and denied in part Plaintiffs' motion for a preliminary injunction and denied Plaintiffs' motion to hold Defendant in contempt. In the portion of the November Opinion that is relevant to the instant motion, the Court found that Plaintiffs were likely to succeed on the merits of establishing that Audubon had failed to comply with the provision of the ALJ's order requiring Audubon to provide L.J. with fifteen weekly hours of ABA-related services as compensatory education:
Plaintiff alleges that Defendant has likewise failed to comply with the second element of the ALJ Order, which required Audubon to provide L.J. with "the sessions of behavior programming he lost during the 2005-2006 school year to be provided by qualified personnel at [Audubon's] expense and this compensatory education be completed within one year" (the "Compensatory Education Order"). Z.J. and V.J., 2006 NJ AGEN LEXIS 833, at *42-43. Defendant does not argue that it has complied with the Compensatory Education Order, but instead explains that it does not understand what ALJ Martone meant when referring to "lost" sessions. (Porreca Aff. ¶ 15.) In Defendant's words, it "cannot implement what it cannot understand." (Id.) . . . .
Audubon does not claim that it has attempted to provide these "lost" hours, arguing only that the Compensatory Education Order is too vague to be implemented. (Porreca Aff. ¶ 15.) The Court disagrees. Having assessed the requirements of the Order, and the ALJ's underlying findings, and in view of Audubon's acknowledged noncompliance, the Court finds that Plaintiff is likely to succeed in proving that Audubon has not complied with the second requirement of the ALJ Order.
L.J. ex rel. V.J. v. Audubon Bd. of Educ., No. 06-5350, 2007 WL 3252240, at *5 (D.N.J. Nov. 5, 2007) ("L.J. I"). The Court ordered Defendant to "provide L.J. with compensatory education in the form of fifteen hours of ABA-related services each week in accordance with ALJ Martone's order." Id. at *12. Plaintiffs now move the Court to hold Defendant in contempt of this part of its November Order.
A. The Parties' Arguments
Plaintiffs argue that the Court should hold Defendant in contempt of its November Opinion and Order because Defendant has "failed to comply with Judge Martone's and this Court's Order for compensatory education." (Epstein Aff. ¶ 4.) In an Affidavit filed with Plaintiffs' motion, Veronica Jurjevic states that "[a]s of November 30th, 2007 . . . Audubon has not provided the compensatory education that was ordered, nor have they contacted me in any way to discuss how these services will be provided." (Jurjevic Aff. ¶ 2.) In light of Audubon's noncompliance with the compensatory education component of the November Order, Plaintiffs urge the Court to impose the following sanctions to encourage compliance:
submit a written certification in affirmation of said compliance to this Court within five days; make payment of $10,000 to Clerk of the District Court within five (5) days hereof, for each and every day Defendant fails to comply with this Order; in the event proof of compliance of this Order is not submitted within five (5) days, counsel for Defendant shall appear before this Court with its superintendent, Don Borden, for further proceedings to compel Defendant's compliance, including, but not limited to, the incarceration of superintendent, Don Borden; and to pay reasonable attorney fees and costs to ...