govinfo:USCOURTS-tnwd-2_22-cv-02464-2

IN THE UNITED STATES DISTRICT COURT  
FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION 
 
 
K.B. A MINOR, by and through his parent, 
K.B., 
 
 
Plaintiff, 
 
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  Case No. 2:22-cv-02464-JPM-cgc 
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MEMPHIS-SHELBY COUNTY SCHOOL 
DISTRICT, 
  
Defendant. 
 
 
  
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR 
RECONSIDERATION 
 
 
Before the Court is Plaintiff’s Motion to For Reconsideration and to Strike, filed O ctober 
23, 2023.  (ECF No. 64.)  Plaintiff moves the Court to correct certain typographical errors in the 
Court’s October 10, 2023 Order (ECF 56), to strike Defendant’s Reply to Plaintiff’s Response to 
Defendant’s Motion for Judgment on the Administrative Record (ECF 55), and for reconsideration 
of a portion of the October 10, 2023 Order.  (ECF No. 64.)  For the re asons discussed below,  
Plaintiff’s Motion is GRANTED IN PART AND DENIED IN PART. 
As a preliminary matter, Plaintiff moves the Court to correct the title of a cited document 
in the October 10, 2023 Order.  (ECF 64 at PageID 4362.)  This correction was made on October 
11, 2023.  (ECF No. 56.)  Plaintiff’s Motion to Correct is therefore DENIED AS MOOT.  
Plaintiff also moves the Court to strike Defendant ’s Reply to Plain tiff’s Response to 
Defendant’s Motion for Judgment on the Administrative Record  because Defendant  failed to 
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comply with Local Rul e 7.3.  (ECF No. 64- 1 at PageID 4367.)  Defendant  does not oppose this 
Motion.  (ECF No. 66 at PageID 4592.)  Therefore, Plaintiff’s Motion to Strike Defendant’s Reply 
to P laintiff’s Response to Defendant ’s Motion for Judgment on the  Administrative Record is 
GRANTED. 
Plaintiff finally moves the Court to amend the Order to reflect that “ the issue of whether 
the Defendant employed an R egistered Beh avior Technician ( “RBT”) was an issue before the 
administrative law judge at the due process hearing, and . . . as a result, Plaintiff[] [should] be 
permitted to present relevant and related evidence at the evidentiary hearing set for December 18-
19, 2023, that this testimony was false and material.”   (ECF No. 64 at PageID 4363.)  Defendant 
argues that Plaintiff’s Motion falls outside of the permissible grounds for reconsideration pursuant 
to Local Rule 7.3, and that the issue of staffing during the Administrative Hearing was not an issue 
properly before the ALJ.  (Id. at PageID 4596.)    
Parties seem to interpret the October 10, 2023 Order as holding that evidence on whether 
the School District employed a n RBT between February 28, 2022 and May 17, 2022 was not 
properly before the ALJ, and therefore holding that it is not “additional” or permitted at evidentiary 
hearing.  (ECF 64-1 at PageID 4362, 4369; ECF 66 at PageID 4596.)   This holding is not explicit 
or implied in the text of the Order.  The Order ruled on a narrow question: whet her the evidence 
requested in Plaintiff ’s August 7, 2023 Motion would supplement the administrative rec ord 
without creating a prohibited trial de novo.  (ECF No. 56 at PageID 4340, 4342.)  The section in 
dispute, III.a.iv, discusses Plaintiff ’s statement that “ additional evidence and testimony are 
particularly helpful in this case because the IDEA violations have been continuing, as Plaintiff [] 
set[s] forth in their complaint. . .”  (ECF No. 36 -1 at PageID 3982 (citing ECF No. 1 ¶ ¶ 50-59).)  
The cited paragraphs of the Complaint summarize “Continuing Violations” alleged by the Plaintiff, 
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and do not distinguish violations which allegedly occurred between February 28, 2022 and May 
17, 2022 from those allegedly occurring after May 17, 2022.  (ECF No. 1 ¶¶ 50-59.)  Violations 
after May 17, 2022, are not properly before this Court.  (ECF No. 50.)   
Plaintiff did not specify in his August 7, 2023 Motion whether the information on the RBT 
would elucidate violation s between February 28, 2022 and May 17, 2022 or whether it was 
intended to establish “Continuing Violations” occurring after May 17, 2022.  The Court did not 
rule that all evidence on the RBT was barred , but rather stated that “ [c]onsidering the overall  
context of the P laintiff[‘s] Motion before this Court, and the lack of specificity with which the 
Plaintiff[] identif[ies] ‘updated information,’ this Court finds that without greater specificity, the 
risk that this evidence will result in relitigation of barred claims exceeds the l ikelihood that it is 
merely additional .”  (ECF No. 56 at PageID 4350.)  T he Cou rt’s sole determination  on RBT 
evidence in the October 10, 2023 Order was that without more detail on the evidence Plain tiff 
sought to present , the Court could not determine whether “ additional” evidence would go to an 
issue properly before the Court .  T he Court did not exclude  introduction of evidence on RBT 
employment wholesale: it fits within the Court ’s requirement that “each Party seeking to 
supplement the record [shall] submit a detailed list of the additional documents, testimony,  and 
expert testimony that they seek to present  at the Evidentiary hearing. . . [which must be] non-
duplicative of evidence in the record, strictly confined to the issues before the Court, and within 
the bounds set by Sixth Circuit precedent.”  (ECF No. 56 at PageID 4351.) 
Since the Court has not yet ruled on the impact of IDEA’s “stay-put” requirement on post-
February 28, 2023 compliance with K.B.’s IEP, Parties may be unsure as to whether post-February 
28, 2022 compliance is properly before the Court. To clarify, so long as proffered evidence is not 
already within the administrative record, Parties may submit evidence on compliance with the IEP, 
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or on the applicability of the sta y-put requirement, during the February 28, 2022–May 17, 2022 
period, but may not submit evidence on post -May 17, 2022 “Continuing Violations.”  This may 
include February 28, 2022–May 17, 2022 evidence on RBT employment.  However, this evidence 
must comply with the terms of the October 10, 2023 Order. It must be non-duplicative of material 
in the Administrative Record, confined to the period before May 17, 2022, and within the bounds 
of Sixth Circuit precedent.  
For the reasons discussed above , Plaintiff’s Motion to Correct is DE NIED AS MOOT. 
Plaintiff’s Motion to Strike is DENIED. Plaintiff’s Motion to Reconsider is GRANTED IN 
PART AND DENIED IN PART : Plaintiff may present “relevant and related evidence ” on the 
issue of whether Defendant employed a Registered Behavior Technician.  
IT IS SO ORDERED, this 28th day of November, 2023. 
/s/ Jon P. McCalla 
JON P. McCALLA 
UNITED STATES DISTRICT JUDGE 
 
 
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