On May 6, 2020, the U.S. District Court, Eastern District of California granted a student’s request for a 60-day extension of time to serve a peer harassment lawsuit on a school district.
On February 20, 2020, the student filed an initial complaint against the district alleging that the student had faced bullying and harassment by other students based upon the student’s disability. Thereafter, the student attempted on multiple occasions to effectuate service upon the district via personal delivery using the services of a registered process server. However, on each occasion, the district’s offices were closed with no one available to accept service due to the COVID-19 related school closures.
On May 4, 2020, the student filed a motion for a 60-day extension of time to serve the district due to the student’s inability to reach the district. Normally, a lawsuit must be served on a defendant within ninety days – the student had until May 7, 2020 to serve the school district.
The court granted the student’s request for an extension of time to serve the lawsuit on the district. The court found that the student had good cause for the failure to effect timely service on the district due to the school closures caused by COVID-19. Specifically, the court noted that the student had made multiple attempts to serve the district but, on each occasion, the building was vacant due to the school closures. The court also pointed out that the student had continued to monitor the status of the district’s operations and the district’s website informed the public that the district would remain closed through May 15, 2020. Furthermore, the court pointed out that the student had attempted to call the district’s main line and was unable to leave a message because the voicemail box was full. Based on the totality of the circumstances, the court found that the student had good cause for a 60-day extension to serve the district.
The takeaway from this case is that local educational agencies must consider developing a contingency plan during extended school closures, including summer breaks, for how to route voicemail messages and accept important documents. Furthermore, the U.S. Department of Education has not waived special education due process timelines during this global pandemic – these timelines continue to run even during school closures. As such, the failure to assign someone to review voice messages and receive documents during school closures may unnecessarily expose local educational agencies to liability and additional litigation.