The opinion of the court was delivered by: Simandle, Chief Judge:
This matter is before the Court on the cross motions of the parties for summary judgment. [Docket Items 26 & 28.] In her Complaint, Plaintiff H.A., a minor, individually and by her parent and legal guardian A.D. (hereafter "Plaintiff") brings claims under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.*fn1 See Compl. at ¶ 1. [Docket Item 1.] In July of 2009, Plaintiff alleges, she filed a due process petition against Defendant Camden City Board of Education with the State of New Jersey Office of Administrative Law alleging various infractions of the IDEA and Section 504 of the Rehabilitation Act. Id. at ¶ 9. On October 28, 2009, Plaintiff's petition came before the Honorable John R. Futey, ALJ, who dismissed her petition for failure to comply with a pre-trial order, and denied her motion for sanctions against Defendant for failing to appear at a pre-trial conference. Ex.
B. to Def.'s Motion for Summary Judgment, Oct. 28, 2009 Transcript. The Complaint seeks relief through only one count, requesting that the Court reverse the decision of the ALJ and to either hear Plaintiffs' petition de novo in this Court, or to remand the petition to the New Jersey Office of Administrative Law to be heard by a different ALJ.
The parties have conducted discovery and now cross-move for summary judgment. The principal questions to be determined are whether either of the ALJ's determinations in his October 28, 2009 decision should be reversed. As explained below, because the Court determines that the ALJ's decision should not be reversed, the Court will grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment.
Plaintiff H.A., at times relevant to this action, was a school-aged child, born in 1994, and domiciled in the City of Camden. Compl. ¶ 5. Plaintiff suffered from certain disabilities, bringing her within the ambit of the IDEA. Id. Plaintiff alleges generally that Defendant Camden City School Board ("CCBE") violated Plaintiff's rights under the IDEA and the Rehabilitation Act by improperly handling various aspects of her individualized education plan ("IEP") and medication. Id. ¶¶ 8-9.
Plaintiff filed a due process petition complaining of these violations on July 2, 2009. Epstein Aff. ¶ 2. On August 21, 2009, an initial hearing was scheduled in Plaintiff's petition before ALJ Futey. Id. ¶ 3; Oct. 29, 2009 Transcript at 1. Plaintiff and her attorney appeared in person before the ALJ on that date, but Defendant's counsel did not initially appear. Transcript at 2. After some effort was made to identify Defendant's counsel, the ALJ was able to reach Defendant's counsel by phone, and the ALJ and the parties engaged in a portion of the scheduled pre-conference and settlement negotiation. Id. The in-person portion of the hearing was thereafter rescheduled for August 26, 2009. Id. The ALJ found, based on the facts of the case, that defense counsel's failure to appear at the August 21, 2009 hearing was inadvertent. Id. at 6-7. The ALJ also found that Defense counsel's late appearance by telephone was "satisfactory" to the needs of the court on that day. Id. at 7.
Plaintiff had arranged travel plans around the August 21, 2009 hearing, costing more than $600. Epstein Aff. ¶ 4; Transcript at 7. There is no evidence in the record indicating that rescheduling part of the pre-hearing conference for August 26, 2009 caused any additional expense for Plaintiff or her attorney. Indeed, the ALJ found that the fact that Plaintiff had incurred travel expenses to attend the August 21, 2009 hearing was unknown to both him and Plaintiff's counsel, and that had Plaintiff's counsel notified him of the expense, he would have "directed the parties accordingly" (which the Court interprets to mean he would have rescheduled the hearing for a date that did not require expensive travel for Plaintiff or otherwise accommodated her travel). Id. at 7. Plaintiff later moved for sanctions against Defendant for failure to appear in person at the pre-conference, which the ALJ denied at the October 28, 2009 hearing. Id. at 7-8.
On August 27, 2009, the ALJ issued an order to both parites, indicating that both parties were to submit to each other and to the ALJ a complete witness list and exhibit list that each party intended to use in the matter by October 16, 2009. Id. at 2. On September 17, 2009, the ALJ extended the deadline to submit such witness and exhibit lists until October 22, 2009. Id. at 3.
Plaintiff's counsel notified Defense counsel on October 20, 2009, that Plaintiff would rely on the Defense counsel's exhibit and witness list, with the exception of also relying on Plaintiff's expert witness and expert report, which Plaintiff's counsel attached for Defense counsel. Id. at 3. Plaintiff's counsel did not, however, notify the ALJ of his intention to rely on the Defendant's witness and exhibit list before October 22, or send to the ALJ Plaintiff's expert's CV and report. Id. Indeed, on October 27, 2009, the day before trial, the ALJ reached out to Plaintiff's counsel to notify him of the absence of his exhibit and witness list. Plaintiff's counsel responded via e-mail by forwarding to the ALJ his e-mail to Defense counsel indicating that he would rely on Defendants' exhibit and witness list with the addition of the expert as a witness and the expert's report and CV as exhibits, but Plaintiff's counsel failed to include a copy of the expert's CV or report in his e-mail to the ALJ. Id. at 3-4. Thus, the ALJ did not have the opportunity to review Plaintiff's expert's CV and report until the actual day of the hearing, six days after the previously extended deadline of October 22, 2009 for Plaintiff's trial submissions.
The ALJ explained the significance of being deprived of reviewing Plaintiff's expert report prior to the hearing:
In receiving the documentation yesterday afternoon I find, for the first time, that there is an expert on behalf of the parent. Yet there is no expert report having been shared with me prior to today, and I am constrained to proceed in any form whatsoever without the benefit of having the opportunity to review such documentation in advance of hearing . . . . in order that I may be as prepared as possible to proceed with the proper handling of this matter at a minimum.
Transcript at 5. The ALJ therefore concluded that Plaintiff's counsel's failure to comply with the ALJ's pre-trial order was not excusable neglect, and found it to be "egregious on its face and it jeopardizes the integrity of this matter." Id. at 6. Consequently, the ALJ dismissed the petition pursuant to N.J. Admin. Code § 1:1-14.14. Id.
Plaintiff filed her Complaint in this matter, appealing the decision of the ALJ on both issues, on February 9, 2010. [Docket Item 1.] Both ...