The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
Document Nos. 57, 60, 61, 68
DENYING THE PLAINTIFF'S MOTION FOR MODIFICATION OF THE COURT'S SEPTEMBER 30,2005ORDER AND RELIEF FROM THE OCTOBER 10,2006ORDER;GRANTING THE DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT OR ORDER;DENYING AS MOOT THE PLAINTIFF'S MOTION FOR CONTEMPT AND MOTION FOR A TRO
This case comes before the court on the parties' competing motions for relief from judgment and the plaintiff's additional motions for contempt and a temporary restraining order ("TRO"). The plaintiff, A.J.P. is 7 years old and brings suit through his mother, Leslie T. Jackson, against the District of Columbia and the superintendent of the District of Columbia Public Schools ("DCPS"). Jackson is proceeding pro se and alleges that the defendants are in violation of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., and this court's September 30, 2005 order, requiring the defendants to comply with the IDEA by reimbursing aides and service providers. The defendants request that the court set aside the September 30, 2005 order as to A.J.P. because post-judgment changes warrant such relief. Because the court agrees that modification of the September 30, 2005 order is appropriate in this case, the court grants the defendants' motion and denies the plaintiff's motion for modification. In addition, the court denies as moot the plaintiff's motions for contempt and for a TRO.
II. FACTUAL & PROCEDURAL BACKGROUND
In August 2004, A.J.P.'s Individualized Education Plan ("IEP")*fn1 for the 2004-2005 school year stated that he should attend the "inclusion nursery school program" at Stoddert Elementary School. Compl. ¶ 27. Stoddert Elementary School, however, no longer offers an inclusion program, and on August 10, 2005, DCPS issued a new IEP, placing A.J.P. in the citywide autism program at Barnard Elementary School. Compl. ¶ 30; Mem. Op. (Sept. 28, 2005) at 3. That IEP also changed A.J.P.'s classification from "developmentally delayed" to "autistic." Compl. ¶ 30. Because Jackson disputes the new IEP's change in classification and the Barnard Elementary School placement, id. ¶ 32, she filed an administrative due process complaint on September 13, 2005, Mem. Op. (Sept. 28, 2005).
On September 28, 2005, the court granted the plaintiff's motion for a stay put injunction,*fn2 requiring DCPS to comply with "the mandates of the 2004-2005 school year IEPs." Order (Sept. 26, 2005) at 1-2. After a meeting between the parties and the court on September 29, 2005, the court issued an order requiring that DCPS: fund all related services and supplemental aids on the plaintiff A.J.P.'s April 9, 2004 Transition Plan and August 12, 2004 IEP, including speech therapy, occupational therapy, assistive technology, sign language instruction, behavioral management services and a full-time, one-on-one dedicated aide, until the plaintiff's administrative due process complaint is decided and any appeal therefrom is concluded. . . . [And DCPS] shall pay the identified aides and service providers, within 15 days of receipt from each aide of his or her weekly invoice.
Order (Sept. 30, 2005) at 1-2 (emphasis added). In a Joint Report on the Status of Administrative Proceedings, the parties informed the court that as of February 6, 2006, DCPS had not yet held a dispute resolution meeting, Joint Status Report (Feb. 6, 2006) at 5-7, which is a prerequisite to a due process hearing, 20 U.S.C. § 1415(f)(1)(B)(i). To date, a dispute resolution meeting has still not been convened for the plaintiff's claims from the 2004 Transition Plan and the August 12, 2004 IEP. See Defs.' 60(b) Mot. at 6; Pl.'s 60(b) Opp'n at 1.
The court subsequently granted the defendants' motion to modify the September 30, 2005 order, allowing 30 days, as opposed to 15 days, to pay aides and service providers. Order (Oct. 10, 2006). In granting the defendants' request, the court recognized that Judge Friedman's Order Regarding Payment for Services to Class Members in Petties v. District of Columbia, No. 95-0148 (D.D.C. filed Nov. 8, 2004) (the "Petties order") applies to all vendors providing special education services to students in the DCPS system, including A.J.P. Id. The court reasoned that modification was appropriate to mirror the time provided in the Petties order. Id.
Over the last six months Jackson has filed three motions requesting that the court hold the defendants in contempt, set aside the October 10, 2006 order, modify the September 30, 2005 order and issue a TRO requiring the defendants to pay invoices submitted by one of A.J.P.'s aides. Pl.'s Contempt Mot.; Pl.'s 60(b) Mot.; Pl.'s Mot. for TRO. The defendants have responded to all of Jackson's motions and have also filed a motion of their own requesting modification of the September 30, 2005 order. All motions are now fully briefed.
A. Relief Under Federal Rule of Civil Procedure 60(b)
In its discretion, the court may relieve a party from an otherwise final judgment pursuant to any one of six reasons set forth in Rule 60(b). FED. R. CIV. P. 60(b); Lepkowski v. Dep't of Treasury, 804 F.2d 1310, 1311-12 (D.C. Cir. 1986). First, the court may grant relief from a judgment involving "mistake, inadvertence, surprise, or excusable neglect." FED. R. CIV. P. 60(b). Such relief under Rule 60(b) turns on equitable factors, notably whether any neglect was excusable. Pioneer Inv. Servs. Co. v. Brunswick Ass'n Ltd. P'ship, 507 U.S. 380, 392 (1993). Second, the court may grant relief ...