The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This case involving a claim for attorney fees under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, as well as a claim under the New Jersey Law Against Discrimination (NJLAD), N.J. Stat. Ann. § 10:5-1, is before the Court on multiple motions. Defendant Mount Laurel Board of Education moves for judgment on the pleadings as to the NJLAD claim pursuant to Federal Rule of Civil Procedure 12(c), arguing that the claim is not sufficiently supported by the Amended Complaint's allegations and that this Court lacks jurisdiction over it [Docket Item 20]; Defendant seeks to dismiss the claim for fees pursuant to Federal Rule of Civil Procedure 12(b)(6) because of a settlement offer that Defendant claims satisfies the statutory requirements for a prohibition on attorney fee-shifting in cases that could have settled [Docket Item 21]; and Defendant moves to sanction Plaintiff J.K. for allegedly misrepresenting the status of her legal representation to an Administrative Law Judge, citing Federal Rule of Civil Procedure 60(b)(3) [Docket Item 22]. Plaintiff moves to have a late-filed opposition to Defendant's motions considered by the Court [Docket Item 28], and Plaintiff also moves for partial summary judgment as to the fee-shifting claim pursuant to Federal Rule of Civil Procedure 56(a) [Docket Item 29].
T.B. is a child who resides within the Mount Laurel School District and has been deemed eligible for special education and related services pursuant to the IDEA. During the 2008-09 school year, J.K., the mother of T.B., and the school district were unable to agree through informal negotiations upon specific terms of an individualized education plan for T.B.*fn1 On January 23, 2009, J.K. filed a petition with the school district for a due process hearing pursuant to 20 U.S.C. § 1415. (Pl.'s Ex. 1 to summary judgment motion "Due Process Petition".) The petition alleges that T.B.'s then-current education plan was a fill-inthe-blank form filled with illegible handwriting. (Id. at 3.) The existing plan stated that T.B. needed one-on-one instruction, and the petition states T.B. was not receiving it. (Id.) Moreover, the petition alleges, the existing plan's assessment of T.B.'s behavior was not current, and the goals and objectives were inadequate. The petition complains that the behavior plan was not developed by a behavior consultant, and was not based on an assessment of T.B.'s behaviors. Finally, the petition addresses the disciplinary measures taken with respect to T.B. It states that T.B. had been improperly suspended on numerous occasions without the existing plan distinguishing between behaviors that were part of T.B.'s disability and other discipline-worthy behaviors, and adds, without further details, that T.B. had been subject to "corporeal punishment/adversive conditioning." (Id.)
The petition sought seven specific remedies: (1) an independent psychiatric evaluation; (2) an independent behavior assessment and behavior intervention plan, the implementation of which will be overseen by the behavior expert; (3) a prohibition on "corporeal punishment/adversive conditioning;" (4) a prohibition on discipline for behaviors that are a manifestation of T.B.'s disability; (5) a one-to-one aide; (6) compensatory education for the period the district failed to provide an appropriate education; and (7) a legible individualized education plan with reasonable and measurable goals. (Id.)
In response to the due process petition, district administrators scheduled a meeting with J.K., which took place in February 2009. (Def.'s Ex. 2 to summary judgment motion at 1.) After this meeting, Dr. Diane Willard, Director of Child Study Team and Special Services for the District, made an offer substantially but not entirely acceding to the requests made in the due process petition. (Id.) The District agreed to an independent psychiatric evaluation, an independent behavior assessment and behavior intervention plan, a one-to-one aide, and a legible individualized education plan with reasonable and measurable goals. And they agreed that the individualized plan would note J.K.'s request that T.B. not be "restrained" and an alternate plan to be implemented with delineated procedures when T.B. acts out aggressively. The district also offered to discuss and determine the necessary compensatory education at a later time. (Id.)
J.K. did not accept the offer. On February 25, 2009, the matter was transmitted to the Office of Administrative Law for a hearing scheduled for March 9, 2009. After some continuances for Plaintiff to seek legal advice, the parties subsequently attempted to resolve the matter on a number of occasions, but were still unable to reach a resolution.
Finally, on July 15, 2009, the parties met and were able to agree on settlement terms. ALJ James-Beavers memorialized those terms in an order issued July 20, 2009. (Pl.'s Ex. 2 to summary judgment.) They included: (1) provision of a one-to-one aide; (2) evaluation from a psychiatrist of J.K.'s choice at the district's expense for a reasonable hourly rate; (3) a functional behavioral assessment and positive behavior intervention plan from a behavior consultant of J.K.'s choice at the district's expense for a reasonable hourly rate, including having the behavioral consultant address the need to adopt different disciplinary procedures; (4) fifty hours of compensatory education from a certified special education teacher by September 30, 2009; (5) a legible IEP for the 2009-2010 school year with current levels of functioning in goals and objectives written in measurable and observable terminology; and (6) an agreement not to use corporal punishment or aversive conditioning on T.B. The parties were ordered to comply with the terms. (Id.)
Plaintiff brings this action to collect attorney fees as provided for in the IDEA, and brings a new claim for monetary damages and fees based pursuant to NJLAD. Defendant seeks to dismiss both claims, arguing that their attempt to settle the IDEA issue in February means attorneys fees are inappropriate; that there is no basis in the pleadings for the NJLAD claim, over which this Court lacks subject matter jurisdiction anyway; and that Plaintiff should be denied attorney fees for allegedly falsely telling ALJ James-Beavers in March 2009 that she needed an extension of time to obtain counsel when she was already being represented. Plaintiff, who failed to timely oppose these motions, seeks to have a late-filed opposition brief considered. Plaintiff also moves for partial summary judgment as to the fee-shifting issue.
A. Plaintiff's Untimely Opposition
Defendant filed its three motions on September 30, 2010, setting the deadline for opposition as October 18, 2010 under the Local Civil Rules. See L. Civ. R. 78.1(a). Realizing that he could not meet this deadline, Plaintiff's counsel filed for the automatic extension provided for under the Local Civil Rules, which moves the return date to the next available motion day, in this case November 15, 2010, requiring opposition to be filed by November 1, 2010. See L. Civ. R. 7.1(c)(5). But Plaintiff's counsel did not file that opposition until November 15, 2010, two weeks after the proper date.
The following day, Plaintiff's counsel filed a motion for a retroactive extension of time, stating that the mistake was due to an error he made in calendaring the due date for opposition. That motion is opposed by Defendant.
In order to grant a retroactive motion for an extension of time, the Court must find that Plaintiff's counsel's error constituted excusable neglect. See Lujan v. National Wildlife Federation, 497 U.S. 871, 896 (1990) ("Any postdeadline extension . . . is permissible only where the failure to meet the deadline 'was the result of excusable neglect.'") (quoting Fed. R. Civ. P. 6(b)). The Supreme Court, observing that the phrase "excusable neglect" is used throughout the Rules of Civil Procedure and Bankruptcy Rules, has said that the word "neglect" connotes even those simple errors not caused by some external force. Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 389 (1993). But only some of these errors are "excusable." The Supreme Court explained, "Because Congress has provided no other guideposts for determining what sorts of neglect will be considered 'excusable,' we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395.
In discussing the Rules of Appellate Procedure's identical provision, the Third Circuit Court of Appeals has held that five factors are ...