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Honeoye Central School District v. S.V. As Parent and Next Friend of

January 24, 2011

HONEOYE CENTRAL SCHOOL DISTRICT, PLAINTIFF,
v.
S.V. AS PARENT AND NEXT FRIEND OF J.V., A CHILD WITH A DISABILITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION & ORDER

INTRODUCTION

Siragusa, J. This is a New York State lawsuit removed by Defendant ("S.V."), who is the plaintiff in a companion case before this Court, S.V. v. Honeoye Central School Dist., et al., No. 09-CV-6163. This matter is before the Court on the motion of Honeoye Central School District ("Honeoye") (Docket No. 3) for remand under the removal statute and a cross-motion by S.V.(Docket No. 8) for attorney fees. Honeoye alleges that the Court has no subject matter jurisdiction and the case must be remanded, whereas S.V. counters that the matter is properly before the Court under the Individuals with Disabilities Education Act ("IDEA"), among other Federal claims. For the reasons stated below, Honeoye's motion is granted and S.V.'s motion is denied.

BACKGROUND

This action involves a blind child whose mother alleges is not receiving a fair and appropriate public education in the Honeoye school district. Honeoye's complaint alleges the following:

4. J.V. is a student in the Honeoye Central School District.

5. On April 4, 2008, S.V. filed a due process hearing request pursuant to the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. and related New York Regulations (8 N.Y.C.R.R. §§ 200.1 et seq.), seeking relief pursuant to J.V.'s individualized education program (IEP) recommended by Honeoye's Committee on Special Education (CSE).

6. After the filing of the due process hearing request, S.V., proceeding pro se and with the assistance of an education advocate, David Rostetter, Ed., Ph.D., president of Education Policies Solutions Limited, negotiated a written settlement of her due process hearing request. The written settlement agreement is known as the "Joint Action Plan."

7. The applicable regulations allow a non-attorney to represent a parent in connection with the impartial hearing process.

8. Under the Joint Action Plan, the District and S.V. agreed, among other things, that a group of experts in various fields would be convened in order to assess J.V.'s needs and work together with school-based providers to develop a plan of services for J.v. based on the assessment.

9. The Joint Action Plan contemplated that the District would incorporate the recommendations of the experts into lV.'s IEP.

10. In exchange, S.V. agreed in the Joint Action Plan that "upon incorporation [of] the experts' recommendations into lV.'s IEP, she shall withdraw her April 4, 2008 request for an impartial hearing and shall waive and release the Honeoye Central School District from any and all claims under § 1415 of the Individuals with Disabilities Education Act ("IDEA")."

11. In accordance with the Joint Action Plan, the District incorporated the experts' recommendations into J.V.'s IEP.

12. Notwithstanding the terms of the Joint Action Plan, S.V. has failed and refused to withdraw her April 4,2008 request for an impartial hearing and failed and refused to waive and release the Honeoye Central School District from any and all claims under § 1415 of the IDEA.

CLAIM FOR RELIEF

13. Honeoye repeats and realleges ...


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