    16-421-cv
    Luo v. Baldwin Union Free Sch. Dist.


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 27th day of January, two thousand seventeen.

    PRESENT:
                PETER W. HALL,
                DEBRA ANN LIVINGSTON,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _____________________________________

    JENN-CHING LUO,

                                Plaintiff-Counter-Defendant-Appellant,

                       v.                                                 16-421-cv

    BALDWIN UNION FREE SCHOOL DISTRICT, MICHELLE
    GALLO,

                                Defendants-Appellees,

    ROBERT BRIGLIO,

                                Defendant-Counter-Claimant-Appellee,


    SUSAN M. GIBSON,

                                Defendant.

    _____________________________________
FOR PLAINTIFF-APPELLANT:                                       Jenn-Ching Luo, pro se, Bircheunvill,
                                                               PA.


FOR DEFENDANTS-APPELLEES:                                      Kelly E. Wright, Devitt Spellman
                                                               Barrett, LLP, Smithtown, NY.


       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Seybert, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Jenn-Ching Luo appeals from the district court’s award of summary judgment to

Baldwin Union Free School District (“Baldwin”) and Michelle Gallo, two defendants in this action

brought pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.

(“IDEA”), and 42 U.S.C. § 1983. Luo also appeals from the district court’s August 12, 2014

memorandum and order denying his motion to strike defendants’ late-filed answer. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

arguments on appeal.

       We review for abuse of discretion a district court’s decision on both a motion to strike a

responsive pleading and for an extension of a filing deadline under Federal Rule of Civil Procedure

6(b). See Sanozky v. Int’l Ass’n of Machinists & Aerospace Workers, 415 F.3d 279, 283 (2d Cir.

2005); Marfia v. T.C. Ziraat Bankasi, N.Y. Branch, 100 F.3d 243, 248–52 (2d Cir. 1996). Rule 6

permits a district court to extend an expired deadline “if the party failed to act because of excusable

neglect.” Fed. R. Civ. P. 6(b)(1)(B). Excusable neglect is an “elastic concept.” Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993) (quoting 4AC. Wright & A.

Miller, Federal Practice and Procedure, § 1165 (2d ed. 1987)). The Supreme Court has found the
following factors among those relevant to evaluating excusable neglect: “[1] the danger of

prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial

proceedings, [3] the reason for the delay, including whether it was within the reasonable control of

the movant, and [4] whether the movant acted in good faith.” Id. at 395. “[W]e and other

circuits have focused on the third factor . . . .’” Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355,

366 (2d Cir. 2003) (citing Pioneer, 507 U.S. at 395).

         Upon review, we concluded that the district court did not abuse its direction by denying

Luo’s motion to strike and accepting Baldwin and Gallo’s late-filed answer. We therefore affirm

for substantially the reasons stated by the district court in its thorough and well-reasoned August

12, 2014 memorandum and order. The district court considered the appropriate factors, and its

conclusion that Baldwin and Gallo established excusable neglect for their failure timely to answer

the complaint due to confusion from Luo’s multiple pending actions and motion for

reconsideration falls “within the range of permissible decisions.” See Zervos v. Verizon N.Y.,

Inc., 252 F.3d 163, 169 (2d Cir. 2001). The practical effect of granting Luo’s motion to strike

would have been a default judgment, and, “[w]hile courts are entitled to enforce compliance with

the time limits of the Rules by various means, the extreme sanction of a default judgment must

remain a weapon of last, rather than first, resort,” Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.

1981).

         “We review de novo the district court’s grant of summary judgment in an IDEA case.

Summary judgment in this context involves more than looking into disputed issues of fact; rather,

it is a pragmatic procedural mechanism for reviewing administrative decisions.” A.C. ex rel. M.C.

v. Bd. of Educ. Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009) (citation omitted)


                                                  3
(quoting Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)).

“While the district court must base its decision on the preponderance of the evidence, it must give

due weight to [the administrative] proceedings, mindful that the judiciary generally lack[s] the

specialized knowledge and experience necessary to resolve persistent and difficult questions of

educational policy.” Id. (internal quotation marks and citations omitted).

       Under the doctrine of collateral estoppel, a litigant is prevented from “relitigating in a

subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.”

Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002). Collateral estoppel applies

when “(1) the identical issue was raised in a previous proceeding; (2) the issue was actually

litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to

litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final

judgment on the merits.” Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013) (quoting Ball v.

A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006)). If these four factors are satisfied, collateral

estoppel applies even if the subsequent action asserts a different cause of action, see id., or the

issue “recurs in the context of a different claim,” Wyly v. Weiss, 697 F.3d 131, 140 (2d Cir. 2012)

(quoting Taylor v. Sturgell, 533 U.S. 880, 892 (2008)).

       Upon de novo review of the record and guided by the above principles, we conclude that

the district court properly granted Baldwin and Gallo summary judgment. We therefore affirm

for substantially the reasons stated by the district court in its thorough and well-reasoned January

12, 2016 memorandum and order. Luo’s claims, at bottom, sought to compel defendants to place

his child at a particular out-of-state school for the 2011-2012 school year. It is well settled,

however, that the IDEA does not authorize parents to determine “the ‘bricks and mortar’ of the


                                                 4
specific school.”    T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419–20 (2d Cir. 2009)

(“‘Educational placement’ refers to the general educational program—such as the classes,

individualized attention and additional services a child will receive—rather than the ‘bricks and

mortar’ of the specific school. . . . The parents’ actions suggest that they seek a ‘veto’ over school

choice, rather than ‘input’—a power the IDEA clearly does not grant them.”). The district court

correctly concluded that Luo was not prevented from participating in the decision-making process

because, among other things, he attended the committee on special education meeting at which the

required factors concerning Luo’s child were considered.          The district court also correctly

concluded that Luo was collaterally estopped from challenging the school district’s reliance on Dr.

Suozzi’s 2009 evaluation because Luo had made the same challenge in a prior action concerning

his child’s educational plan. See Jenn-Ching Luo v. Baldwin Union Free Sch. Dist., 556 F. App’x

1 (2d Cir. 2013); Proctor, 715 F.3d at 414.

       We have considered all of Luo’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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